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 Federal  Communications  Commission  FCC  02-  47 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 

 In  the  Matter  of 
 The  4.9  GHz  Band  Transferred  from  Federal  Government  Use 
 )  ) 
 )  ) 
 ) 

 WT  Docket  No.  00-  32 

 SECOND  REPORT  AND  ORDER  AND  FURTHER  NOTICE  OF  PROPOSED  RULE  MAKING 
 Adopted:  February  14,  2002  Released:  February  27,  2002 
 Comment  Date:  90  days  after  Federal  Register  Publication  Reply  Comment  Date:  120  days  after  Federal  Register  Publication 
 By  the  Commission:  Commissioners  Abernathy  and  Martin  issuing  separate  statements. 

 TABLE  OF  CONTENTS 
 Heading  Paragraph  # 
 I.  INTRODUCTION  AND  EXECUTIVE  SUMMARY...............................................................  1  II.  BACKGROUND  .......................................................................................................................  3 

 III.  SECOND  REPORT  AND  ORDER...........................................................................................  8  A.  Allocation  of  the  4.9  GHz  Band  ..........................................................................................  8 
 B.  Sharing  with  Passive  Operations  .......................................................................................  12  C.  Deletion  of  Part  26  of  the  Commissions  Rules.................................................................  20 
 D.  Designation  of  the  4.9  GHz  Band  for  Use  in  Support  of  Public  Safety  ............................  23  IV.  FURTHER  NOTICE  OF  PROPOSED  RULEMAKING  ........................................................  31 
 A.  Eligibility  to  Use  the  4.9  GHz  Band  ..................................................................................  31  B.  Fixed  and  Mobile  Use  of  the  4.9  GHz  Band......................................................................  39 
 C.  Channel  Plan  ......................................................................................................................  42  D.  Licensing............................................................................................................................  45 
 1.  Mobile  Licensing  .........................................................................................................  46  a.  State  Licensing.......................................................................................................  47 
 b.  Blanket  Licensing  or  Unlicensed  Operation..........................................................  50  c.  Regional  Planning  Committees..............................................................................  53 
 d.  Band  Managers  ......................................................................................................  54  2.  Fixed  Licensing............................................................................................................  57 
 E.  Interference  ........................................................................................................................  59  F.  Technical  Standards  for  Mobile  Equipment  ......................................................................  63 
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 1.  Broadband  Technologies  .............................................................................................  65  2.  Power  limits  .................................................................................................................  66 
 G.  Technical  Rules  for  Fixed  Operations  in  the  4.9  GHz  Band  .............................................  67  V.  CONCLUSION........................................................................................................................  69 
 VI.  PROCEDURAL  MATTERS  ...................................................................................................  70  A.  Ex  Parte  Rules  -  Permit-  But-  Disclose  Proceeding  ............................................................  70 
 B.  Regulatory  Flexibility  Act  .................................................................................................  71  C.  Paperwork  Reduction  Act..................................................................................................  72 
 D.  Comment  Dates..................................................................................................................  73 
 APPENDIX  A:  FINAL  RULES 
 APPENDIX  B:  FINAL  REGULATORY  FLEXIBILITY  CERTIFICATION  (SECOND  REPORT 
 AND  ORDER) 
 APPENDIX  C:...  INITIAL  REGULATORY  FLEXIBILITY  ANALYSIS  (FURTHER  NOTICE  OF  PROPOSED  RULEMAKING) 

 APPENDIX  D:  GEOGRAPHIC  AREAS  WHERE  DEPARTMENT  OF  DEFENSE  COOPERATIVE  ENGAGEMENT  CAPABILITY  (CEC)  WILL  BE  USED  FOR 
 TRAINING  IN  ITS  HIGH  POWER,  FULL  BANDWIDTH  MODE 

 I.  INTRODUCTION  AND  EXECUTIVE  SUMMARY 
 1.  By  this  Second  Report  and  Order  and  Further  Notice  of  Proposed  Rulemaking  (Second  R&  O  &  FNPRM),  we  are  allocating  50  megahertz  of  spectrum  in  the  4940-  4990  MHz 

 band  (4.9  GHz  band)  for  fixed  and  mobile  services  (except  aeronautical  mobile  service)  and  designating  this  band  for  use  in  support  of  public  safety.  1  This  allocation  and  designation  will 
 provide  public  safety  users  with  additional  spectrum  to  support  new  broadband  applications  such  as  high-  speed  digital  technologies  and  wireless  local  area  networks  (WLANs)  for  incident  scene 
 management.  The  spectrum  will  also  support  dispatch  operations  and  vehicular/  personal  communications.  We  believe  this  decision  aligns  with  new  national  priorities  focusing  on 
 homeland  security,  and  will  ensure  that  agencies  involved  in  the  protection  of  life  and  property  possess  the  communications  resources  needed  to  successfully  carry  out  their  mission. 
 Furthermore,  we  seek  to  transition  to  an  environment  in  which  the  public  safety  community  enjoys  maximum  access  to  emerging  broadband  technologies.  This  action  effectuates  the 
 transfer  of  this  spectrum  from  Federal  Government  (Government)  to  non-  Federal  Government  (non-  Government)  2  use  pursuant  to  statutory  requirements  of  the  Omnibus  Budget 

 1  See,  e.  g.,  47  C.  F.  R.  Part  90  (Private  Land  Mobile  Radio  Services)  and  Part  101  (Fixed  Microwave  Services). 
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 Reconciliation  Act  of  1993.  3  We  also  continue  our  ongoing  effort  to  streamline  our  Rules  and  eliminate  redundancy  by  deleting  Part  26  of  our  Rules. 
 2.  In  our  FNPRM,  we  seek  comment  on  the  establishment  of  licensing  and  service  rules  for  the  4.9  GHz  band.  Further,  we  solicit  comment  on  defining  eligibility  to  use  the  band.  We 
 seek  to  develop  a  record  on  specific  segmentation  or  channeling  plans  for  use  of  the  band.  We  also  request  comment  on  the  impact  of  adjacent  band  U.  S.  Navy  operations  on  operations  in  the 
 4.9  GHz  band.  Finally,  we  solicit  suggestions  on  how  to  utilize  the  band  in  a  manner  that  will  not  interfere  with  adjacent  band  radio  astronomy  operations. 

 II.  BACKGROUND 
 3.  In  the  United  States,  the  4.9  GHz  band  is  allocated  to  Government  fixed  and  mobile  services  on  a  co-  primary  basis.  4  The  band  has  been  used  for  fixed  services  such  as  conventional 

 point-  to-  point  microwave,  tactical  radio  relay,  and  high  power  tropospheric  scatter  systems,  and  for  mobile  services  such  as  control  of  remote  piloted  vehicles,  video  and  data  telemetry  links, 
 target  drone  control  links,  fleet  defense  systems,  and  tethered  aerostat  systems.  5  Radio  astronomy  observations  are  permitted  in  the  sub-  band  4950-  4990  MHz  at  certain 
 Government/  non-  Government  observatories  that  are  listed  in  footnote  US257.  6  Footnote  US257  states  that,  when  assignments  are  made  to  stations  of  other  services  to  which  the  sub-  band  4950- 
 4990  MHz  is  allocated,  "every  practicable  effort  will  be  made  to  avoid  the  assignment  of  frequencies  in  this  band  to  stations  in  the  aeronautical  mobile  service.  .  .  which  may  cause 
 harmful  interference  to  the  listed  observatories."  In  addition,  international  footnote  S5.149  states  that  administrations  are  urged  to  take  all  practicable  steps  to  protect  the  radio  astronomy  service 
 from  harmful  interference,  because  emissions  from  spaceborne  or  airborne  stations  can  be  particularly  serious  sources  of  interference  to  the  radio  astronomy  service.  7  We  note  that  the 
 upper  adjacent  band  4990-  5000  MHz  is  allocated  to  the  Government/  non-  Government  radio 
 (Continued  from  previous  page)  2  The  use  of  spectrum  by  Federal  Government  agencies  is  regulated  by  the  National  Telecommunications  and 
 Information  Administration  (NTIA)  under  the  Department  of  Commerce.  Non-  Federal  Government  spectrum  use,  which  is  regulated  by  the  Commission,  refers  to  all  other  spectrum  use,  including  use  by  state  and  local 
 governments,  businesses,  and  individuals. 
 3  Omnibus  Budget  Reconciliation  Act  of  1993,  Pub.  L.  No.  103-  66,  107  Stat.  312  (1993)  (OBRA-  93). 

 4  See  Table  of  Frequency  Allocations,  47  C.  F.  R.    2.106. 
 5  See  Letter  to  the  Honorable  William  E.  Kennard,  Chairman,  Federal  Communications  Commission,  from  Larry 
 Irving,  the  Assistant  Secretary  for  Communications,  United  States  Department  of  Commerce  (rel.  Mar.  30,  1999)  (Reallocation  Letter)  at  Annex  D.  See  also  The  4.9  GHz  Band  Transferred  from  Federal  Government  Use,  Notice 

 of  Proposed  Rulemaking,  WT  Docket  No.  00-  32,  15  FCC  Rcd  4778,  4788    20  (2000)  (First  NPRM). 
 6  See  Table  of  Frequency  Allocations,  47  C.  F.  R    2.106,  footnote  US257. 

 7  See  Table  of  Frequency  Allocations,  47  C.  F.  R    2.106,  international  footnote  S5.149.  This  international 
 footnote  has  previously  been  added  domestically  to  both  the  Government  and  non-  Government  Tables,  thus  effecting  its  protection  to  radio  astronomy  observatories  domestically. 
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 astronomy  service  on  a  primary  basis.  8  In  addition,  the  sub-  band  4950-  4990  MHz  is  allocated  to  the  Government/  non-  Government  space  research  (passive)  and  earth  exploration-  satellite 
 (passive)  services  (EESS)  on  a  secondary  basis  by  international  footnote  S5.339.  9  Thus,  the  only  non-  Government  services  currently  permitted  in  the  4.9  GHz  band  are  passive  and  operate  on  a 
 secondary  (unprotected)  basis.  Finally,  we  note  that  the  4.9  GHz  band  is  currently  being  studied  internationally  as  a  candidate  band  for  global  harmonization  of  spectrum  for  public  protection 
 and  disaster  relief,  with  band  identification  and  regulatory  provisions  to  be  considered  under  Agenda  Item  1.3  at  the  2003  World  Radio  Conference  (WRC-  03).  10 

 4.  OBRA-  93  required  that  the  Secretary  of  Commerce  identify  at  least  200  megahertz  of  spectrum  then  allocated  for  Government  use  to  be  transferred  to  non-  Government  use.  Pursuant 
 to  these  requirements,  in  its  February  1995  Final  Report  on  spectrum  allocation,  the  Department  of  Commerce  reallocated  the  4660-  4685  MHz  band,  and  identified  the  lower  adjacent  4635-  4660 
 MHz  band,  among  others,  for  additional  transfer  effective  January  1,  1997.  11  In  March  1999,  pursuant  to  Section  6001(  a)(  3)  of  OBRA-  93,  12  the  Department  of  Commerce  notified  the 
 Commission  13  that  the  Government  was  reclaiming  the  4635-  4685  MHz  band  and  identified  the  4.9  GHz  band  as  substitute  spectrum  for  transfer  to  non-  Government  use.  14  The  Department  of 
 Commerce  also  stated  that,  upon  completion  of  this  rulemaking,  all  current  Government  assignments,  except  those  for  radio  astronomy  observatories,  would  be  withdrawn  or  limited  in 

 8  See  Table  of  Frequency  Allocations,  47  C.  F.  R    2.106.  The  sub-  band  4950-  4990  MHz,  together  with  the  upper 
 adjacent  band  4990-  5000  MHz,  is  used  in  studying  the  brightness  distributions  of  both  galactic  and  extra-  galactic  objects  such  as  ionized  hydrogen  clouds  and  supernova  remnants.  Further,  radio  astronomy  is  particularly 

 vulnerable  to  potential  interference  from  other  services  because  it  is  a  passive  service  that  involves  the  reception  of  exceptionally  weak  cosmic  radio  waves  emanating  from  a  great  distance  from  the  Earth. 

 9  See  Table  of  Frequency  Allocations,  47  C.  F.  R    2.106,  international  footnote  S5.339.  This  international 
 footnote  has  previously  been  added  domestically  to  both  the  Government  and  non-  Government  Tables,  thus  effecting  the  allocation  domestically. 

 10  See  ITU  Document,  Provisional  Final  Acts  and  Working  Papers  of  the  WRC-  2000,  Resolution  645,  Global 
 Harmonization  of  Spectrum  for  Public  Protection  and  Disaster  Relief.  See  also  ITU  Document  C2000/  88-  E,  Resolution  1156,  Agenda  for  the  World  Radio  Conference  (WRC-  03),  dated  July  26,  2000. 

 11  See  Spectrum  Reallocation  Final  Report,  Response  to  Title  VI    Omnibus  Budget  Reconciliation  Act  of  1993, 
 U.  S.  Department  of  Commerce,  NTIA  Special  Publication  95-  32  (Feb.  1995)  (Final  Report). 
 12  See  OBRA-  93,    6001(  a)(  3),  as  codified  at  47  U.  S.  C.    924(  b),  926. 

 13  See  Reallocation  Letter. 
 14  From  February  1995  to  April  1998,  the  Commission  had  accomplished  rulemaking  and  auction  scheduling  to 
 allocate  and  license  the  4660-  4685  MHz  band  to  fixed  and  mobile  services  in  the  General  Wireless  Communications  Service  (GWCS)  under  Part  26.  In  April  1998,  however,  the  Commission  postponed  the  auction 

 due  to  a  lack  of  demand.  See  First  NPRM,  15  FCC  Rcd  at  4780-  83    3-  10  for  a  detailed  review  of  the  4635-  4685  MHz  band  allocation,  rulemaking,  and  reclamation. 
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 the  4.9  GHz  band.  15  In  December  1999,  the  Commission  issued  a  Memorandum  Opinion  and  Order,  in  pertinent  part  revising  the  Table  of  Frequency  Allocations  to  note  that  the  band  had 
 become  non-  Government  exclusive  spectrum  in  March  1999.  16 
 5.  On  February  29,  2000,  the  Commission  released  a  Notice  of  Proposed  Rulemaking  (First  NPRM)  proposing  to  allocate  the  4.9  GHz  band  to  non-  Government  fixed  and  mobile 

 services,  excluding  aeronautical  mobile  service,  on  a  co-  primary  basis  and  to  allow  for  flexible  use  of  the  spectrum.  17  In  the  First  NPRM,  the  Commission  proposed  to  license  the  band  for 
 commercial  services  under  Part  27  of  the  Commissions  rules  and  to  assign  initial  licenses  for  the  band  under  the  Commissions  Part  1  competitive  bidding  rules.  18  The  Commission 
 tentatively  concluded  not  to  designate  the  band,  or  any  portion  thereof,  to  exclusive  public  safety  use,  but  requested  comment  on  this  proposal.  19  The  Commission  noted  that  it  had  recently  acted 
 pursuant  to  the  Balanced  Budget  Act  of  1997  20  to  allocate  the  764-  776  MHz  band  and  the  794-  806  MHz  band  (collectively,  the  700  MHz  band)  to  exclusive  public  safety  use.  21  Hence,  the 
 Commission  tentatively  concluded  that  its  designation  of  spectrum  in  the  700  MHz  band  for  exclusive  public  safety  use  constituted  a  significant  commitment  of  spectrum  to  serve  public 
 safety  needs  into  the  next  century,  making  it  unnecessary  to  set  aside  additional  spectrum  in  the  4.9  GHz  band  for  exclusive  public  safety  use.  22  The  Commission  noted,  however,  that  the  4.9 
 GHz  band  could  be  used  for  public  safety  purposes  provided  that  such  use  was  consistent  with 
 15  See  Reallocation  Letter  at  Statement  of  Reasons,  pp.  4-  5.  See  also  First  NPRM,  15  FCC  Rcd  at  4788    20.  In  its 
 March  1999  letter,  the  Department  of  Commerce  noted  that  the  Departments  of  Justice,  Treasury,  and  Energy  had  35,  five  (5),  and  four  (4)  frequency  assignments,  respectively,  in  the  band  4940-  4990  MHz.  The  Department  of 

 Commerce  anticipated  that  these  agencies  would  explore  retuning  as  the  most  cost-  effective  option.  As  we  noted  in  the  First  NPRM,  because  the  4.9  GHz  band  was  transferred  from  Government  to  non-  Government  use  as  a 
 replacement  for  the  band  4635-  4685  MHz,  which  was  transferred  pursuant  to  the  provisions  of  OBRA-  93,  the  NTIA  has  concluded  that  new  non-  Government  licensees  will  not  be  required  to  pay  Government  agencies  vacating 
 the  band  for  the  marginal  cost  of  their  relocation,  as  is  required  in  spectrum  transferred  pursuant  to  the  Balanced  Budget  Act  of  1997  (BBA-  97),  according  to  the  provisions  of  the  Defense  Authorization  Act  of  1998.  See 
 Balanced  Budget  Act  of  1997,  Pub.  L.  No.  105-  33,  111  Stat.  251  (1997)  (BBA-  97);  Defense  Authorization  Act  of  1998,  Pub.  L.  No.  105-  261  (1998)  (amending  47  U.  S.  C.    923(  g)).  See  also  First  NPRM,  15  FCC  Rcd  at  4815    96. 

 16  See  Amendment  of  Part  2  of  the  Commissions  Rules  to  Make  Non-  Substantive  Revisions  to  the  Table  of 
 Frequency  Allocations,  Memorandum  Opinion  and  Order,  15  FCC  Rcd  3459,  3475    39  (2000). 
 17  See  First  NPRM,  15  FCC  Rcd  at  4786    16. 

 18  Id.  at  4779-  80    2. 
 19  Id.  at  4790    26. 
 20  See  BBA-  97,    3004,  as  codified  at  47  U.  S.  C.    337(  a). 
 21  See  The  Development  of  Operational,  Technical  and  Spectrum  Requirements  For  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,  First  Report  and  Order  and  Third  Notice  of 

 Proposed  Rulemaking,  14  FCC  Rcd  152  (1998)  (700  MHz  First  R&  O  and  700  MHz  Third  NPRM  as  appropriate). 
 22  First  NPRM,  15  FCC  Rcd  at  4790    26. 
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 the  Commissions  licensing  scheme  for  the  band.  23  The  Commission  sought  comment  on  its  tentative  conclusion. 
 6.  On  October  24,  2000,  the  Commission  released  a  First  Report  and  Order  and  Second  Notice  of  Proposed  Rule  Making  (First  R&  O/  Second  NPRM)  24  that  sought  comment  on  the 
 feasibility  of  pairing  the  4.9  GHz  band  with  the  3650  MHz  band.  In  the  First  R&  O/  Second  NPRM,  the  Commission  allocated  the  3650-  3700  MHz  band  (3650  MHz  band)  for  fixed  and 
 mobile  services,  except  aeronautical  mobile  service,  on  a  co-  primary  basis,  but  limiting  the  mobile  allocation  to  base  station  use  only.  As  with  the  4.9  GHz  band,  the  First  R&  O/  Second 
 NPRM  proposed  to  license  the  3650  MHz  band  pursuant  to  Part  27  under  a  flexible  allocation  with  wide  area  licensing  by  competitive  bidding.  The  Commission  sought  comment  on  whether 
 pairing  the  4.9  GHz  and  3650  MHz  bands  would  encourage  synergies  in  the  use  of  both  bands.  25 
 7.  The  Commission  has  received  varied  comments  in  this  proceeding.  Many  of  the  comments  focused  on  issues  relating  to  the  3650  MHz  band.  26  Five  commenters  expressed  open 

 interest  in  use  of  the  4.9  GHz  band  for  commercial  purposes.  27  Two  parties  filed  comments  opposing  the  designation  of  this  spectrum  to  public  safety  use.  28  In  contrast,  six  commenters 
 opposed  the  Commissions  tentative  conclusion  not  to  designate  the  4.9  GHz  band,  or  some  portion  thereof,  to  exclusive  public  safety  use.  29  These  commenters  request  that  the  Commission 

 23  Id.  at  4790  n.  61. 
 24  Amendment  of  the  Commissions  Rules  With  Regard  to  the  3650-  3700  MHz  Government  Transfer  Band  (ET 
 Docket  No.  98-  237)  and  The  4.9  GHz  Band  Transferred  from  Federal  Government  Use  (WT  Docket  No.  00-  32),  First  Report  and  Order  and  Second  Notice  of  Proposed  Rule  Making,  15  FCC  Rcd  20488  (2000)  (First 

 R&  O/  Second  NPRM). 
 25  See  First  R&  O/  Second  NPRM,  15  FCC  Rcd  at  20507-  8    43-  44. 

 26  See  e.  g.  Reply  Comments  of  Adaptive  Broadband  Corporation  (Adaptive)  (May  17,  2000)  (Adaptive  Reply 
 Comments);  Comments  of  INMARSAT  Ltd.  (December  18,  2000);  Comments  of  Lockheed  Martin  Corporation  (December  18,  2000). 

 27  See  Comments  of  Global  Frontiers,  Inc.  (Global)  (Apr.  26,  2000)  (Global  Comments);  Comments  of  Rural 
 Telecommunications  Group  (Apr.  26,  2000)  (Rural  Comments);  Comments  of  Advanced  TelCom,  Inc.  (Apr.  26,  2000)  (Advanced  Comments);  Comments  of  Coloma  Partners,  LLC  (Apr.  26,  2000)  (Coloma  Comments);  Reply 

 Comments  of  Rock  Hill  Telephone  Company,  et  al.  (May  16,  2000)  at  2  (Rock  Hill  Reply  Comments). 
 28  See  Reply  Comments  of  SBC  Communications,  Inc.  (SBC)  (Jan.  16,  2001)  at  1-  2  (SBC  Reply  Comments); 
 Reply  Comments  of  Global  Frontiers,  Inc.  (May  17,  2000)  at  3  (Global  Reply  Comments). 
 29  Comments  of  Association  of  Public-  Safety  Communications  Officials-  International,  Inc.  (  APCO)  (Dec.  18, 
 2000)  at  5  (APCO  First  NPRM  Comments);  Comments  of  Federal  Law  Enforcement  Wireless  Users  Group  (  FLEWUG)  (Apr.  26,  2000)  at  3  (FLEWUG  Comments);  Comments  of  Major  Cities  Chiefs  Association 

 (  MCC)  (Dec.  18,  2000)  at  2  (MCC  Comments);  Reply  Comments  of  International  Association  of  Chiefs  of  Police  (  IACP)  (May  17,  2000)  at  1  (IACP  Reply  Comments);  Reply  Comments  of  Motorola,  Inc.  (May  17, 
 2000)  at  1  (Motorola  Reply  Comments);  Reply  Comments  of  Public  Safety  Wireless  Network  (  PSWN)  (May  17,  2000)  at  2  (PSWN  Reply  Comments).  Two  of  these  five  commenters  also  filed  comments  in  the  related  3650 
 MHz  band  proceeding  opposing  the  Commissions  proposal  to  pair  the  4.9  GHz  band  with  the  3650  MHz  band.  APCO  Comments  at  2;  Comments  of  Motorola,  Inc.  (Dec.  18,  2000)  at  1  (Motorola  Comments).  See  also  MCC 
 Comments  at  2. 
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 designate  the  entire  4.9  GHz  band  for  exclusive  public  safety  use.  Two  commenters  suggest,  in  the  alternative,  designation  of  at  least  a  portion  of  the  band  for  exclusive  public  safety  use,  but 
 they  do  not  quantify  this  amount.  30  Furthermore,  local  police,  fire,  and  rescue  organizations  from  around  the  country  have  sent  over  one  hundred  letters  to  the  Commission,  urging  allocation 
 of  the  4.9  GHz  band  to  exclusive  public  safety  use  to  support  new  broadband  public  safety  applications.  31  In  addition,  both  the  National  Public  Safety  Telecommunications  Council 
 (NPSTC)  and  Motorola  have  met  with  Commission  staff  to  discuss  this  issue.  32  Motorola  also  has  submitted  a  white  paper  to  the  Commission  urging  designation  of  the  4.9  GHz  band  to  public 
 safety  use.  33  Generally,  these  parties  assert  that  the  public  safety  community  is  in  great  need  of  additional  spectrum  to  utilize  emerging,  state  of  the  art  technologies,  to  meet  their  critical 
 operations  needs,  and  assert  that  the  4.9  GHz  band  is  ideal  for  these  emerging  broadband  technologies.  34 

 III.  SECOND  REPORT  AND  ORDER 
 A.  Allocation  of  the  4.9  GHz  Band 
 8.  As  noted  above,  the  First  NPRM  proposed  to  allocate  the  4.9  GHz  band  to  non-Government  fixed  and  mobile  services,  excluding  aeronautical  mobile  service,  on  a  co-  primary 

 basis.  35  To  permit  flexibility  and  a  wide  range  of  fixed  and  mobile  services,  the  Commission  proposed  to  permit  licensees  to  utilize  this  spectrum  for  any  service  permitted  within  any  of  the 
 allocation  categories  of  fixed  and  mobile,  to  include  any  fixed,  land  mobile,  or  maritime  mobile  service,  but  excluding  aeronautical  mobile  service.  36  The  Commission  proposed  to  exclude 
 aeronautical  mobile  service  from  the  entire  4.9  GHz  band  to  protect  radio  astronomy  operations  in  the  4950-  4990  MHz  sub-  band  and  the  4990-  5000  MHz  band,  consistent  with  footnote  US257 
 and  with  the  Department  of  Commerce's  request  that  the  Commission  protect  such  operations.  37 
 30  See  APCO  First  NPRM  Comments  at  8;  FLEWUG  Comments  at  2. 
 31  These  letters  have  been  placed  in  the  record  for  WT  Docket  No.  00-  32. 
 32  See  Letter  to  Magalie  Roman  Salas,  Secretary,  Federal  Communications  Commission,  from  Robert  M.  Gurss, 
 Shook,  Hardy  &  Bacon,  L.  L.  P.  (Apr.  16,  2001);  Letter  to  Magalie  Roman  Salas,  Secretary,  Federal  Communications  Commission,  from  John  Lyons,  Motorola,  Inc.  (May  31,  2001);  Letter  to  Magalie  Roman  Salas, 

 Secretary,  Federal  Communications  Commission,  from  Robert  L.  Pettit,  Counsel  for  Motorola,  Inc.,  Wiley,  Rein  &  Fielding  (Apr.  19,  2001). 

 33  See  4.9  GHz  Allocation  to  Public  Safety:  Motorola  White  Paper  for  Submission  to  FCC  (July  31,  2001)  at  2 
 (Motorola  White  Paper). 
 34  See  Final  Report  of  the  Public  Safety  Wireless  Advisory  Committee  to  the  Federal  Communications 
 Commission,  September  11,  1999,  at  3  (PSWAC  Final  Report). 
 35  See  First  NPRM,  15  FCC  Rcd  at  4786    16. 

 36  Id. 
 37  Id.  at    16,    19;  Reallocation  Letter,  Statement  of  Reasons  at  n.  5  and  Annex  D. 
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 Further,  the  Commission  proposed  to  delete  the  Government  fixed  and  mobile  service  allocations  from  the  4.9  GHz  band,  thus  completing  its  transfer  to  exclusive  non-  Government  use.  38  The 
 Commission  also  proposed  to  license  the  4.9  GHz  band  under  Part  27  of  the  Commissions  rules,  with  wide  area  licensing  and  service  rules  fostering  commercial  use,  and  with  initial  licenses  to 
 be  assigned  under  the  Commissions  Part  1,  Subpart  Q,  competitive  bidding  rules.  Finally,  the  Commission  also  sought  comment  on  its  tentative  conclusion  that  a  flexible  allocation  would  be 
 in  the  public  interest;  would  not  deter  investment  in  communications  and  services,  or  technology  development;  and  would  not  cause  harmful  interference  among  users,  as  required  by  Section 
 303(  y)(  2)  of  the  Communications  Act  (Act),  39  as  amended  by  the  BBA-  97,  for  flexible  allocations.  40 

 9.  The  record  clearly  supports  allocating  the  band  4940-  4990  MHz  for  fixed  and  mobile  services,  except  aeronautical  mobile  service,  on  a  co-  primary  basis.  This  allocation  will  allow  a 
 variety  of  fixed  and  mobile  applications,  including  voice  and  high-  speed  data.  In  order  to  protect  radio  astronomy  observations  in  this  band,  however,  we  are  not  allocating  the  band  for 
 aeronautical  mobile  service.  The  transfer  of  this  spectrum  from  Government  to  non-  Government  use  was  conditioned  on  excluding  air-  to-  ground  or  space-  to-  Earth  links  from  the  entire  4.9  GHz 
 band,  in  order  to  protect  radio  astronomy  operations  in  the  4950-  4990  MHz  sub-  band  and  the  upper  adjacent  4990-  5000  MHz  band.  41  The  National  Academy  of  Sciences,  through  the  National 
 Research  Councils  Committee  on  Radio  Frequencies,  supports  the  exclusion  of  aeronautical  mobile  service,  stating  that  such  use  would  be  destructive  to  scientific  observations.  42  While  no 
 commercial  commenters  oppose  the  exclusion  of  aeronautical  mobile  service,  several  ex  parte  comments  from  the  public  safety  community  support  an  aeronautical  mobile  allocation  to  allow 
 real  time  video  and  imagery  from  surveillance  helicopters  and  other  communications  from  aircraft  to  ground  command  centers.  43  However,  these  commenters  did  not  demonstrate  that 
 aeronautical  mobile  operations  could  operate  while  protecting  radio  astronomy.  A  fixed  and  mobile,  except  aeronautical  mobile,  allocation  is  consistent  with  the  international  table  of 
 allocations,  which  excludes  aeronautical  mobile  service  from  the  4950-  4990  MHz  sub-  band  and  the  4990-  5000  MHz  band.  44 

 38  See  First  NPRM,  15  FCC  Rcd  at  4786    16. 
 39  47  U.  S.  C.    303(  y)(  2). 
 40  See  First  NPRM,  15  FCC  Rcd  at  4788-  89    21-  24. 
 41  See  Reallocation  Letter,  Statement  of  Reasons,  at  4-  5,  n.  5. 
 42  See  Comments  of  the  National  Research  Councils  Committee  on  Radio  Frequencies  (CORF)  (Apr.  26,  2000)  at 
 4  (CORF  First  NPRM  Comments). 
 43  See,  e.  g.,  City  of  Chesapeake  Ex  Parte  Comments  (Apr.  11,  2001);  Hispanic  American  Police  Command 
 Officers  Association  Ex  Parte  Comments  (May  3,  2001);  City  and  County  of  San  Francisco  Ex  Parte  Comments  (May  14,  2001);  City  of  Detroit  Ex  Parte  Comments  (Aug.  7,  2001);  and  Motorola  White  Paper  at  7. 

 44  See  Table  of  Frequency  Allocations,  47  C.  F.  R.    2.106,  international  footnote  S5.442.  We  note  that  the 
 aeronautical  mobile  service  exclusion  in  S5.442  does  not  apply  to  the  lower  sub-  band  4940-  4950  MHz. 
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 10.  Consistent  with  the  transfer  of  the  4.9  GHz  band  from  Government  to  non-Government  use,  we  are  deleting  the  Government  fixed  and  mobile  allocations  from  the  band. 
 We  are  amending  the  Table  of  Frequency  Allocations  to  revise  Government  footnote  G122  to  permit  Government  operations  to  continue  on  a  non-  interference  basis  in  the  4.9  GHz  band  as  of 
 the  effective  date  of  the  rules  adopted  in  this  Second  R&  O.  45  Finally,  as  noted  below,  we  are  designating  the  4.9  GHz  band  for  use  in  support  of  public  safety.  Under  similar  designations, 
 such  as  in  the  700  MHz  band,  the  rules  allow  Government  users  to  operate  on  non-  Government  public  safety  frequencies  if  the  Commission  finds  that  such  use  is  necessary  for  coordination  of 
 Government  and  non-  Government  activities.  46  Therefore,  to  facilitate  interoperability  in  support  of  joint  Government/  non-  Government  public  safety  and  disaster  relief  operations,  we  will 
 explore  this  issue  in  the  attached  FNPRM  to  establish  service  rules. 
 11.  In  view  of  our  decision  to  designate  use  of  the  4.9  GHz  band  for  public  safety,  infra,  we  decline  to  pair  the  4.9  GHz  and  3650  MHz  bands,  and  thus  the  3650  MHz  band  will  be  free 

 for  other  uses.  47  We  note  that  there  was  almost  unanimous  opposition  to  pairing  the  bands  due  to  technological  problems  and  associated  implementation  costs.  Comments  indicated  that  pairing 
 could  inhibit  more  feasible  unpaired  implementations,  such  as  Time  Division  Duplexing  (TDD)  applications.  The  only  reason  advanced  in  support  of  coupling  these  two  50  megahertz  bands  is 
 the  prospect  of  their  100  megahertz  aggregate  bandwidth,  with  most  commenters  preferring  that  actual  paired  operation  not  be  required. 

 B.  Sharing  with  Passive  Operations 
 12.  In  the  First  NPRM,  regarding  radio  astronomy  use  of  the  4.9  GHz  band,  the  Commission  proposed  to  delete  footnote  US257  from  the  Table  of  Frequency  Allocations, 

 subsuming  it  into  a  revised  footnote  US311.  48  Footnote  US257  requires  that  every  practical  effort  be  made  to  protect  radio  astronomy  observations  in  the  4950-  4990  MHz  band  which 
 operate  on  an  unprotected  basis  at  certain  Radio  Astronomy  Observatories  listed  therein.  49  Likewise,  footnote  US311  requires  that  every  practical  effort  be  made  to  protect  radio  astronomy 
 observations  in  the  1350-  1400  MHz  band,  which  operate  on  an  unprotected  basis  at  certain  Radio  Astronomy  Observatories  listed  therein.  50  The  Commissions  proposal  was  in  response  to 

 45  See  Letter  to  Bruce  Franca,  Office  of  Engineering  Technology,  Federal  Communications  Commission,  from 
 William  T.  Hatch,  NTIA,  United  States  Department  of  Commerce  (Dec.  19,  2001).  This  letter  clarifies  that  footnote  G122,  which  allows  Government  operations  to  be  authorized  on  a  non-  interference  basis  in  certain  non-Government 

 bands,  applies  to  the  4.9  GHz  band,  which  was  substituted  for  the  4660-  4685  MHz  band. 
 46  See  47  C.  F.  R.    2.103(  b)  (setting  forth  conditions  for  Government  use  of  non-  Government  frequencies  in  the 
 700  MHz  band). 
 47  The  use  of  the  3650  MHz  band  will  be  addressed  in  a  separate  future  proceeding. 

 48  See  First  NPRM,  15  FCC  Rcd  at  4786-  87    18. 
 49  See  Table  of  Frequency  Allocations,  47  C.  F.  R.    2.106,  footnote  US257. 
 50  See  Table  of  Frequency  Allocations,  47  C.  F.  R.    2.106,  footnote  US311.  All  radio  astronomy  facilities  listed  in 
 Footnotes  US257  and  US311  are  represented  by  circular  or  rectangular  geographic  zones,  specified  by  coordinate  (continued.) 
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 a  National  Science  Foundation  (NSF)  request  that  the  list  of  radio  astronomy  observatories  identified  in  footnote  US257  be  updated  to  accurately  reflect  radio  astronomy  use  of  the  sub-band 
 4950-  4990  MHz.  Recognizing  that  the  observatories  currently  observing  in  the  sub-  band  4950-  4990  MHz  were  also  listed  in  footnote  US311,  the  NSF  requested  that  the  Commission  add 
 the  sub-  band  4950-  4990  MHz  to  footnote  US311  and  delete  footnote  US257.  In  the  First  NPRM,  the  Commission  also  sought  comment  on  whether  frequency  coordination  or  restrictions 
 in  power,  area,  or  operations  should  be  imposed  in  order  to  protect  radio  astronomy  observations.  51 

 13.  In  response  to  the  First  NPRM,  the  National  Academy  of  Sciences,  through  CORF,  supports  the  proposed  deletion  of  footnote  US257  and  the  resultant  inclusion  of  the  band  4950- 
 4990  MHz  in  footnote  US311.  CORF  also  indicates  that  footnote  US311  should  include  the  Owens  Valley  Radio  Observatory  at  Big  Pine,  California,  listed  in  current  footnote  US257  with  a 
 coordinate-  rectangular  geographic  area.  52  Similarly,  in  response  to  the  First  R&  O/  Second  NPRM,  CORF  proposes  the  addition  of  two  more  observatories:  the  Allen  Telescope  Array,  a 
 joint  project  of  the  University  of  California  and  the  Search  for  Extra-  Terrestrial  Intelligence  (SETI)  Institute,  at  Hat  Creek,  California,  specified  by  a  coordinate-  rectangular  geographic  area, 
 and  the  National  Aeronautic  and  Space  Administration's  (NASA)  Goldstone  Deep  Space  Communications  Complex  at  Goldstone,  California,  specified  by  a  circular,  coordinate-  point-and- 
 radius  geographic  area.  CORF  points  out  that  operations  in  other  frequency  bands  used  by  the  Allen  Telescope  Array  and  NASA  Goldstone  facilities  are  afforded  protection  by  footnotes 
 US203  and  US257,  and  by  footnotes  US251,  US262,  and  US338,  respectively.  CORF  states  that  the  Allen  Telescope  Array  at  the  Hat  Creek  facility  is  designed  for  both  SETI  and  astronomical 
 research,  and  will  be  the  most  powerful  radio  telescope  available  for  studies  of  early  star  formation,  making  possible  many  high-  spatial-  resolution  measurements  in  the  band  4950-  5000 
 MHz.  53  To  protect  radio  astronomy  observations  in  the  4950-  5000  MHz  band  from  terrestrial  fixed  and  mobile  operations,  CORF  also  proposes  that  fixed  stations  within  the  radio  astronomy 
 zones  listed  in  revised  footnote  US311  be  required  to  coordinate  with  radio  astronomy  observatories,  in  a  manner  similar  to  that  specified  in  Section  1.924  of  our  Rules,  Quiet  Zones.  54 
 CORF  proposes  that  mobile  operations  in  the  4.9  GHz  band  be  excluded  from  the  radio  astronomy  zones.  55 

 (Continued  from  previous  page)  point  with  distance  radius  or  by  coordinate  rectangle(  s),  respectively.  We  will  refer  to  these  zones  as  "radio 
 astronomy  zones". 
 51  See  First  NPRM,  15  FCC  Rcd  at  4797,  4812    44,  83. 

 52  See  CORF  First  NPRM  Comments  at  3. 
 53  See  CORF  Comments  (Dec.  19,  2000)  at  7-  9  (CORF  First  R&  O/  Second  NPRM  Comments).  Although  these 
 comments  were  late-  filed,  we  find  it  in  the  public  interest  to  accept  these  comments  in  order  to  have  a  complete  record. 

 54  See  47  C.  F.  R.    1.924. 
 55  See  CORF  First  R&  O/  Second  NPRM  Comments  at  5-  7. 
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 14.  In  its  comments  responding  to  the  First  NPRM  and  First  R&  O/  Second  NPRM,  CORF  describes  current  and  potential  uses  of  the  sub-  band  4950-  4990  MHz  by  the  EESS.  CORF 
 explains  that  the  band  is  used  for  remote  sensing  of  ocean  surface  temperature  and  soil  moisture,  and  has  been  shown  to  be  useful  for  sensing  ocean  surface  salinity,  and,  in  addition,  that  the  use 
 of  a  non-  U.  S.  EESS  spaceborne  sensor  is  expected  to  begin  shortly.  CORF  notes  that  electromagnetic  hot  spots  could  result  from  a  high  density  of  terrestrial  mobile  stations  with  low-gain 
 antennas  emitting  substantial  radiation  in  the  upward  direction  in  the  4.9  GHz  band.  To  protect  EESS  remote  sensing  measurements  of  the  natural  emissions  of  the  surface  and 
 atmosphere  from  masking  interference  from  terrestrial  radiocommunications  hot  spots,  CORF  urges  that  radiation  levels  produced  by  terrestrial  stations  into  satellite  receivers  be  maintained 
 consistent  with  International  Telecommunications  Union  Recommendation  ITU-  R  SA.  1029-  1  (SA.  1029),  Interference  Criteria  for  Satellite  Passive  Remote  Sensing.  56 

 15.  No  commenters  opposed  the  update  and  subsumption  of  footnote  US257  into  footnote  US311,  as  proposed  in  the  First  NPRM,  or  the  inclusion  of  the  three  additional  radio  astronomy 
 zones  into  footnote  US311,  as  proposed  in  comments  to  the  First  NPRM  and  First  R&  O/  Second  NPRM.  Motorola,  in  its  White  Paper,  proposes  that  terrestrial  mobile  operations  not  be  excluded 
 from  radio  astronomy  zones,  as  proposed  by  CORF,  but  rather  that  both  fixed  and  mobile  operations  within  50  miles  of  radio  astronomy  sites  be  coordinated.  57  No  commenters  replied  to 
 CORFs  comments  to  the  First  NPRM  and  First  R&  O/  Second  NPRM  urging  that  SA.  1029  protection  be  provided  to  EESS  operations. 

 16.  We  find  that  merging  footnote  US257  into  a  revised  footnote  US311  will  make  our  Rules  clearer  and  have  no  negative  impacts.  Further,  adding  the  additional  radio  astronomy 
 observatories  that  use  the  4.9  GHz  band  will  ensure  that  spectrum  users  are  aware  of  interference  situations  that  should  be  avoided.  Therefore,  US257  will  be  deleted  and  US311  will  be  amended 
 to  include  the  additional  sites.  58 
 17.  We  believe  that,  given  the  small  number  and  remote  locations  of  radio  astronomy  observatories,  public  safety  deployment  in  the  4.9  GHz  band  in  their  vicinity  would  be  unlikely 

 and  any  public  safety  operations  that  may  occur  would  likely  be  short-  term.  Public  safety  use  of  the  band  within  the  vicinity  of  radio  astronomy  observatories  could  be  easily  accommodated  on  a 
 case  by  case  basis  within  the  existing  framework  set  forth  in  footnote  US311,  which  requires  parties  to  make  every  practicable  effort  to  protect  radio  astronomy  facilities  that  operate  on  an 
 unprotected  basis  in  the  band.  We  therefore  decline  to  exclude  non-  aeronautical  mobile  operations  or  to  impose  frequency  coordination  procedures  on  fixed  or  non-  aeronautical  mobile 
 operations  within  the  radio  astronomy  zones,  as  proposed  by  CORF. 
 18.  We  note  that  the  upper  adjacent  4990-  5000  MHz  band  is  allocated  to  radio  astronomy  service  on  a  primary  basis,  both  internationally  and  in  the  United  States.  Thus,  such 

 56  See  CORF  First  NPRM  Comments  at  2-  3;  CORF  First  R&  O/  Second  NPRM  Comments  at  4-  5. 
 57  See  Motorola  White  Paper  at  24. 
 58  See  Appendix  A:  Final  Rules. 
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 observations  in  the  4990-  5000  MHz  band  are  entitled  to  protection,  as  specified  in  the  Table  of  Frequency  Allocations  and  our  service  rules,  from  any  prospective  fixed  and  mobile  service 
 operations  in  the  4.9  GHz  band.  59 
 19.  Finally,  we  decline  to  require  protection  of  EESS  under  SA.  1029.  While  we  remain  sensitive  to  the  need  to  protect  the  passive  services  in  the  4.9  GHz  band,  the  imposition  of 

 SA.  1029  protection  requirements  for  the  secondary  EESS  could  pose  an  onerous  constraint  on  the  utilization  of  this  spectrum  by  primary  terrestrial  fixed  and  non-  aeronautical  mobile 
 services.  60  Moreover,  such  protection  would  be  tantamount  to  giving  EESS  primary  status.  Thus,  while  we  encourage  prospective  licensees  to  maintain  such  protection  wherever  feasible, 
 we  decline  to  mandate  SA.  1029  protection  of  EESS.  61 
 C.  Deletion  of  Part  26  of  the  Commissions  Rules 
 20.  On  February  7,  1995,  the  Commission,  in  accordance  with  the  provisions  of  OBRA-93,  adopted  the  GWCS  First  Report  and  Order  and  Second  Notice  of  Proposed  Rulemaking,  62  in 

 which,  inter  alia,  the  Commission  proposed  to  create  a  new  service,  the  GWCS.  On  August  2,  1995,  the  Commission  released  the  GWCS  Second  Report  and  Order  that  established  the  GWCS 
 and  adopted  Part  26  of  its  Rules  setting  out  licensing  and  operating  rules  for  the  service  in  the  4660-  4685  MHz  band.  63  On  December  17,  1997,  the  Wireless  Telecommunications  Bureau 
 (Bureau)  announced  that  the  auction  for  licenses  in  the  4660-  4685  MHz  band  would  commence 

 59  See  Table  of  Frequency  Allocations,  47  C.  F.  R.    2.106,  footnote  US74.  Footnote  US74  requires  protection  to 
 radio  astronomy  observations  in  the  band  4990-  5000  MHz  from  stations  operating  outside  the  band  only  to  the  extent  that  the  offending  station  operating  outside  the  band  complies  with  service  band  technical  standards  or 

 criteria  applicable  to  the  service  in  which  it  operates. 
 60  For  example,  SA.  1029  requires  that  the  level  of  interference  received  at  the  satellite  not  exceed  -161  dBW.  To 
 protect  an  EESS  passive  receiver  with  an  antenna  gain  of  36  dBi  operating  at  an  altitude  of  1000  km  in  the  4.9  GHz  band,  SA.  1029  would  therefore  limit  the  equivalent  isotropic  radiated  power  (EIRP)  from  a  terrestrial  station 

 within  its  beam  to  30.6  dBW  in  the  direction  of  the  satellite.  This  skyward  EIRP  reduction  would  limit  a  typical  point-  to-  point  transmitting  antenna  with  a  gain  of  36  dBi  and  a  90-  degree  off-  axis  attenuation  of  42  dB,  consistent 
 with  a  higher  quality  antenna  conforming  to  Category  A  antenna  standards  specified  in  Part  101  for  point-  to-  point  systems  in  the  nearby  band  3700-  4200  MHz,  to  an  on-  beam  EIRP  of  11.4  dBW.  The  SA.  1029  calculation  is  more 
 limiting  for  EESS  receivers  with  higher  gain  antennas  and  for  terrestrial  transmitters  with  omnidirectional  and  other  wide-  beamwidth  antennas,  with  typical  gains  ranging  from  0  to  12  dBi,  typically  used  in  fixed  point-  to-multipoint 
 and  mobile  systems. 
 61  In  the  FNPRM,  we  seek  comment  on  the  best  means  of  implementing  the  required  protection  of  radio 
 astronomy  sites  into  our  service  rules.  See  FNPRM    61,  infra. 
 62  Allocation  of  Spectrum  Below  5  GHz  Transferred  from  Federal  Government  Use,  ET  Docket  No.  94-  32,  First 
 Report  and  Order  and  Second  Notice  of  Proposed  Rulemaking,  10  FCC  Rcd  4769  (1995)  (GWCS  First  Report  and  Order  and  GWCS  Second  Notice  of  Proposed  Rulemaking  as  appropriate). 

 63  Allocation  of  Spectrum  Below  5  GHz  Transferred  from  Federal  Government  Use,  ET  Docket  No.  94-  32, 
 Second  Report  and  Order,  11  FCC  Rcd  624  (1995)  (GWCS  Second  Report  and  Order). 
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 on  May  27,  1998.  64  In  April  1998,  however,  the  Bureau  postponed  the  commencement  of  the  auction  due  to  a  demonstrated  absence  of  demand  for  licenses  in  the  4660-  4685  MHz  band.  65 
 21.  On  March  30,  1999,  pursuant  to  Section  6001(  a)(  3)  of  OBRA,  66  the  Department  of  Commerce  notified  the  Commission  that  the  Federal  Government  was  reclaiming  the  4635-  4685 
 MHz  band  and  identifying,  as  substitute  spectrum,  the  4.9  GHz  band.  67  Partially  in  response  to  the  Department  of  Commerces  decision  to  reclaim  the  4635-  4685  MHz  band,  on  December  20, 
 1999,  the  Commission  released  a  Memorandum  Opinion  and  Order  revising  Part  2  of  the  Commissions  Rules  making  non-  substantive  revisions  to  the  Table  of  Frequency  Allocations.  68 
 In  the  Part  2  MO&  O,  the  Commission,  inter  alia,  returned  the  4660-  4685  MHz  band  to  the  status  quo  ante,  i.  e.,  deleting  the  allocation  to  non-  Federal  Government  fixed  and  mobile 
 services,  while  retaining  the  prior  allocation  on  a  primary  basis  to  fixed-  satellite  service.  69 
 22.  With  the  return  of  the  4660-  4685  MHz  band  to  exclusive  Federal  Government  use,  Part  26  of  the  Commissions  Rules  serves  no  specific  purpose.  Accordingly,  in  the  First  NPRM, 

 the  Commission  proposed  to  delete  Part  26.  70  Since  we  received  no  objections  to  this  proposal,  and  as  noted  in  the  First  NPRM,  there  are  no  Part  26  licensees,  we  hereby  delete  this  part  from 
 our  Rules.  71 
 D.  Designation  of  the  4.9  GHz  Band  for  Use  in  Support  of  Public  Safety 
 23.  After  reviewing  the  record  in  this  proceeding,  we  reject  our  tentative  conclusion  not  to  designate  the  4.9  GHz  band  for  public  safety  use,  and  conclude  that  the  public  interest  would 

 be  best  served  by  designating  the  4.9  GHz  band  for  use  in  support  of  public  safety.  In  evaluating  the  commenters  positions,  we  are  mindful  of  the  Commissions  statutory  obligation  to  oversee 
 wire  and  radio  communications  .  .  .  for  the  purpose  of  promoting  safety  of  life  and  property 

 64  Wireless  Telecommunications  Bureau  Announces  Auction  Schedule  for  the  General  Wireless  Communications 
 Service,  Public  Notice,  DA  97-  2634  (rel.  Dec.  17,  1997);  see  also  Auction  Schedule  for  the  General  Wireless  Communications  Service  Correction,  Public  Notice,  DA  97-  2662  (rel.  Dec.  19,  1997). 

 65  Wireless  Telecommunications  Bureau  Announces  Postponement  of  General  Wireless  Communications  Service 
 (GWCS)  Auction,  Public  Notice,  Report  No.  AUC-  98-  19-  B  (Auction  No.  19),  DA  98-  792  (rel.  Apr.  24,  1998). 
 66  OBRA,    6001(  a)(  3),  as  codified  at  47  U.  S.  C.    924(  b),  926. 

 67  See  Reallocation  Letter. 
 68  Amendment  of  Part  2  of  the  Commissions  Rules  to  Make  Non-  Substantive  Revisions  to  the  Table  of 
 Frequency  Allocations,  Memorandum  Opinion  and  Order,  DA  99-  2743,  15  FCC  Rcd  3459  (rel.  Dec.  20,  1999);  65  FR  4636  (Jan.  31,  2000)  (Part  2  MO&  O). 

 69  Id.  at  3475  39. 
 70  First  NPRM,  15  FCC  Rcd  at  4791  28. 
 71  Id. 
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 through  the  use  of  wire  and  radio  communication  .  .  .    72  Numerous  state,  county,  and  local  government  and  national  public  safety  associations  representing  a  diverse  group  of  critical  public 
 safety  activities  (e.  g.,  law  enforcement,  fire  fighting,  SWAT/  tactical  team  and  bomb  squad,  hazardous  materials  handling,  railroad  passenger  rescue,  and  emergency  medical  operations) 
 argue  persuasively  that  a  public  safety  designation  will  enable  responders  to  carry  out  critical  and  urgent  missions  in  a  way  that  ensures  more  effective  and  efficient  service  to  their 
 communities  and  provide  a  safer  environment  for  emergency  responders.  73  The  acts  of  terrorism  committed  against  the  United  States  on  September  11  th  ,  2001  reinforce  the  critical  nature  of  the 
 public  safety  communitys  responsibilities  to  our  Nations  safety  and  well  being.  Access  to  modern  wireless  communications  is  essential  to  ensuring  that  the  public  safety  community  can 
 effectively  fulfill  these  responsibilities.  After  considering  these  factors,  we  conclude  that  the  4.9  GHz  band  should  be  designated  for  use  in  support  of  public  safety. 

 24.  The  emerging  broadband  technologies  envisioned  by  the  public  safety  community  in  the  record  of  this  proceeding  for  the  4.9  GHz  band  are  generally  categorized  into  three  groups  of 
 broadband  systems.  The  first  group  of  systems  are  Personal  Area  Network/  Vehicular  Area  Network  systems  (  PAN  or  VAN  systems  respectively).  74  PAN  and  VAN  systems  are 
 wireless  links  between  a  portable  or  mobile  transceiver  and  devices  such  as  headsets,  portable  computing  devices,  video  cameras,  thermal  imagers,  and  3D  locators.  Manufacturers  can 
 integrate  these  devices  into  specialized  helmets  and  suits  to  enable  localized  teaming  and  coverage  around  an  officer  or  vehicle.  75  The  second  group  of  systems  is  Wireless  Local  Area 
 Network  systems  (WLAN),  which  enable  simultaneous  voice  duplex,  high-  speed  data  and  full  motion  video  transfers  between  emergency  workers  at  an  incident  scene  and  command  center 
 personnel  using  mobile  computers.  The  third  group  is  wireless  fixed  hot  spot  location  devices,  which  provide  automatic  high-  speed  public  safety  intranet  file  downloading  and  uploading  of 
 very  large  data,  image  and  video  files  at  predetermined  locations,  as  well  as  critical  information  transfer  to  and  from  public  safety  vehicular  computers  in  the  immediate  vicinity  of  a  hot  spot 
 transceiver.  76 
 25.  As  noted  above,  numerous  public  safety  entities  have  filed  in  this  proceeding  supporting  public  safety  use  of  the  4.9  GHz  band  to  implement  and  utilize  the  technologies 

 described  above.  In  contrast,  only  a  few  commenters  such  as  Adaptive  expressed  interest  in 

 72  47  U.  S.  C.    151.  See  also  47  U.  S.  C.    332(  a)  (  In  taking  actions  to  manage  the  spectrum  .  .  .  the  Commission 
 shall  consider,  consistent  with  section  1  of  this  Act,  whether  such  actions  will  -  -  promote  the  safety  of  life  and  property  .  .  .). 

 73  Commenters  note,  for  example,  the  use  of  video  for  remote  controlled  robotics  in  highly  dangerous  terrorist 
 situations  or  the  live  monitoring  of  officer  or  suspects  in  high  risk  situations. 
 74  See  Motorola  White  Paper  at  2. 

 75  Id. 
 76  For  additional  information  concerning  these  broadband  technologies,  see  id.  at  9-  11. 
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 commercial  use  of  the  4.9  GHz  band.  77  Adaptive  and  Motorola  believe  that  the  interest  of  equipment  manufacturers  for  commercial  use  in  the  4.9  GHz  band  is  probably  limited.  78 
 Motorola  also  notes  that  many  of  the  commercial  technologies  proposed  for  use  in  the  4.9  GHz  band  are  currently  being  used  in  the  5  GHz  Unlicensed  National  Information  Infrastructure  (U-NII) 
 band.  79 
 26.  The  record  does  not  support  the  Commissions  previous  tentative  conclusion,  set  forth  in  the  First  NPRM,  that  the  designation  of  spectrum  in  the  700  MHz  band  for  public  safety 

 use  obviates  a  need  to  allocate  spectrum  in  the  4.9  GHz  band  for  use  in  support  of  public  safety.  Commenters  state  that  the  700  MHz  band  provides  insufficient  channel  bandwidth  and  is  not 
 presently  available  for  accommodating  broadband,  short-  range  communications  supporting  high-speed  data  and  video  traffic.  80  They  further  explain  that  the  4.9  GHz  band  could  be  used  for 
 short-  range  broadband  WLANs,  involving  distances  not  exceeding  1000  meters,  so  that  this  spectrum  could  be  reused  for  different  operations  at  different  locations  in  the  same  city,  thus 
 multiplying  its  utilization.  Further,  these  parties  argue  that  flexible,  standards-  based  broadband  technology  will  be  used  for  unlicensed  operation  in  the  nearby  U-  NII  bands  at  5150-  5350  MHz 
 and  5725-  5825  MHz  and  that  such  devices  can  be  adapted  for  use  in  the  4.9  GHz  band  on  a  licensed  basis  in  order  to  maintain  the  priority,  reliability,  and  security  of  mission  critical  public 
 safety  communications.  The  International  Association  of  Chiefs  of  Police  (IACP)  and  Public  Safety  Wireless  Network  (PSWN)  support  these  positions,  as  do  numerous  ex  parte  filings.  81 
 Public  safety  commenters  have  shown  a  need  for  spectrum  dedicated  to  high-  speed  data  transmission.  Inasmuch  as  these  applications  involve  the  transfer  of  large  amounts  of  data,  a 
 large  bandwidth,  such  as  that  provided  by  the  4.9  GHz  band,  would  be  ideal  to  ensure  proper  transmission.  In  contrast,  while  the  700  MHz  band  provides  narrowband  and  wideband 
 communications  channels,  only  a  limited  amount  of  broadband  use  was  contemplated  for  this  spectrum  through  the  aggregation  of  three  wideband  channels.  Furthermore,  because  the 

 77  See  Adaptive  Reply  Comments  at  4.  Other  commenters  also  expressed  interest  in  providing  commercial 
 services  in  the  4.9  GHz  band.  See  Advanced  Comments,  Coloma  Comments;  Global  Comments;  Rock  Hill  Comments;  and  Reply  Comments  of  US  West  Wireless,  LLC  (May  17,  2000)  (US  West  Reply  Comments). 

 78  Adaptive  Reply  Comments  at  4. 
 79  Motorola  Reply  Comments  at  5-  7. 
 80  They  state  that  the  150  kHz  maximum  bandwidth  permitted  in  the  700  MHz  band  is  insufficient  to 
 accommodate  high  speed  data  for  imaging  and  full-  motion  real-  time  video  traffic  and  that  the  700  MHz  band  will  remain  unavailable  for  public  safety  use  in  several  locales  until  incumbent  television  broadcast  stations  vacate  by 

 the  end  of  2006,  or  later  if  such  stations'  incumbency  is  extended.  They  also  assert  that  the  700  MHz  band  is  used  for  wide-  area  mobile  coverage,  so  that  use  of  this  band  for  localized  WLANs  would  be  spectrally  inefficient,  as  it 
 would  consume  spectrum  intended  and  better  suited  for  wide-  area  use. 
 81  See  APCO  First  NPRM  Comments  at  2-  7;  FLEWUG  Comments  at  2-  6;  Motorola  Comments  at  3-  9;  IACP  Reply 
 Comments  at  1-  2;  PSWN  Reply  Comments  at  2-  4;  MCC  First  NPRM  Comments  at  1-  2;  and  Ex  Parte  Comments  of  National  Public  Safety  Telecommunications  Council  (NPSTC)  (Aug.  7,  2000)  at  2-  4  (NPSTC  Ex  Parte  Comments). 

 See  also  Comments  of  APCO  (Dec.  18,  2000)  at  2-  3  (APCO  First  R&  O/  Second  NPRM  Comments);  MCC  Comments  at  2-  3;  and  IACP  Comments  (Dec.  18,  2000)  at  1-  4  (IACP  First  R&  O/  Second  NPRM  Comments). 
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 currently  contemplated  usage  of  this  band  contemplates  utilization  in  small  service  areas,  such  as  incident  scenes,  the  4.9  GHz  band  is  superior  to  the  700  MHz  band  in  that  it  has  propagation 
 characteristics  that  are  ideal  for  short-  range  communications.  Conversely,  the  narrowband  and  wideband  communications  provided  by  the  700  MHz  band  are  better  suited  for  longer-  range 
 communications  over  larger  service  areas.  As  commenters  have  noted,  broadband  applications  will  become  essential  law  enforcement  and  first  responder  tools  in  the  21  st  century.  82  We  believe 
 our  decision  today  will  provide  the  public  safety  community  with  the  requisite  spectrum  to  employ  these  emerging  broadband  technologies. 

 27.  Global  83  opposes  the  designation  of  the  4.9  GHz  band  to  the  public  safety  community.  Global  argues  that  the  band  is  more  appropriate  for  commercial  use  because  it  is  suited  for  high-speed 
 data  transmission  between  fixed  points  while  the  public  safety  community  tends  to  rely  on  voice  transmission.  84  While  we  agree  with  Global  that  the  4.9  GHz  band  is  appropriate  for  high-speed 
 data  transmission,  the  record  in  this  proceeding  clearly  demonstrates  that  the  use  of  high-speed  data  transmissions  is  becoming  progressively  more  common  and  will  play  an  increasingly 
 critical  role  in  public  safety  operations.  Furthermore,  we  reject  Globals  argument  that  designating  the  band  to  public  safety  would  hinder  interoperability  by  further  fragmenting  the 
 public  safety  spectrum  because  this  argument  is  based  upon  the  assumption  that  the  spectrum  will  be  used  primarily  for  voice  communications.  Moreover,  we  believe  our  actions  in  this 
 proceeding  will  in  fact  further  the  goal  of  interoperability  by  providing  different  public  safety  agencies  access  to  cutting  edge  technologies  that  will  enhance  their  ability  to  share  critical  and 
 time-  sensitive  information  during  emergencies  and  other  critical  situations. 
 28.  We  also  reject  the  argument  that  we  need  not  designate  the  spectrum  for  public  safety  use  because  the  needs  of  public  safety  agencies  can  be  met  solely  by  acquiring  service  from 

 commercial  providers.  85  We  encourage  public  safety  agencies  to  work  with  commercial  telecommunications  providers  wherever  possible.  Indeed,  in  the  FNPRM,  infra,  we  seek 
 comment  on  licensing  schemes  that  will  encourage  innovative  partnerships  between  public  safety  entities  and  commercial  providers.  The  public  safety  commenters  consistently  state, 
 however,  that  the  spectrum  will  be  used  primarily  in  emergency  situations,  and  they  need  dedicated  spectrum  that  will  be  reliably  available  without  delay.  86  Moreover,  public  safety  and 

 82  See,  e.  g.,  Motorola  White  Paper  at  2. 
 83  Global  Reply  Comments  at  1.  SBC  opposes  even  a  partial  designation  for  public  safety  in  the  4.9  GHz  band, 
 asserting  that  it  would  reduce  the  value  of  the  band  and  that  commenters  urging  such  designation  have  not  demonstrated  why  spectrum  in  addition  to  that  designated  in  the  700  MHz  band  is  needed.  SBC  Reply  Comments 

 at  2. 
 84  Global  Reply  Comments  at  7. 

 85  See  Global  Reply  Comments  at  7;  US  West  Reply  Comments  at  5. 
 86  See  Letter  to  the  Honorable  Michael  K.  Powell,  Chairman,  Federal  Communications  Commission,  from  Ralph 
 Mendoza,  Chief  of  Police,  Fort  Worth  Police  Department,  dated  May  9,  2001;  Letter  to  the  Honorable  Michael  K.  Powell,  Chairman,  Federal  Communications  Commission,  from  Gerald  R.  Whitman,  Chief  of  Police,  Denver  Police 

 Department,  dated  June  14,  2001;  Letter  to  the  Honorable  Michael  K.  Powell,  Chairman,  Federal  Communications  Commission,  from  Al  A.  Philippus,  Chief  of  Police,  City  of  San  Antonio  Police  Department,  dated  June  14,  2001. 
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 commercial  entities  contemplate  different  uses  for  the  band.  For  example,  Global  and  Adaptive  contemplate  using  the  spectrum  for  high-  speed  Internet  access.  87  Accordingly,  we  believe  that 
 the  needs  of  the  public  safety  community  are  best  served  by  designating  the  4.9  GHz  band  for  use  in  support  of  public  safety. 

 29.  Finally,  we  agree  with  Motorola  that  the  Commission  is  not  statutorily  required  to  use  competitive  bidding  to  license  the  4.9  GHz  band  and  therefore  licensing  this  band  for  public 
 safety  is  fully  consistent  with  the  Communications  Act.  88  As  Motorola  points  out,  OBRA-  93  required  the  Commission  to  auction  licenses  for  at  least  10  megahertz  of  reassigned  government 
 spectrum  by  August  10,  1998,  89  but  this  requirement  did  not  apply  to  any  particular  band  and  thus  imposes  no  requirement  to  auction  licenses  for  the  4.9  GHz  band.  As  a  matter  of  history, 
 we  note  that  in  April  1997,  in  partial  fulfillment  of  OBRA-  93s  requirement  to  auction  licenses  for  at  least  10  megahertz  of  reassigned  government  spectrum,  the  Commission  auctioned  5 
 megahertz  of  spectrum,  the  2305-  2310  MHz  band.  90  Thereafter,  the  Commission  concluded  that  the  4660-  4685  band  would  fulfill  the  requirement  to  auction  an  additional  5  megahertz  of 
 spectrum,  and  announced  that  this  auction  would  commence  on  May  27,  1998.  However,  the  auction  was  postponed  due  to  a  demonstrated  lack  of  interest  in  that  band,  and  NTIA 
 subsequently  identified  the  4.9  GHz  band  as  spectrum  to  be  reallocated  from  government  to  non-government  use  in  place  of  the  4635-  4685  band.  However,  this  substitution  created  no 
 obligation  to  auction  the  4.9  GHz  band.  There  was  no  specific  statutory  requirement  that  the  4635-  4685  MHz  band  be  auctioned,  nor  does  the  Commissions  earlier  decision  to  auction  the 
 4660-  4685  MHz  band,  or  its  previous  intention  to  use  this  spectrum  to  satisfy  the  requirement  under  OBRA-  93    6002,  now  obligate  the  Commission  to  auction  the  4.9  GHz  band.  91 
 Moreover,  NTIAs  substitution  of  the  4.9  GHz  band  for  the  4635-  4685  band  is  unrelated  to  any  of  the  Commissions  statutory  obligations  to  auction  spectrum  licenses,  none  of  which  is 
 implicated  here. 
 30.  Therefore,  based  upon  the  record  in  this  proceeding,  we  conclude  that  the  4.9  GHz  band  should  be  designated  for  use  in  support  of  public  safety.  We  believe  this  action  will 

 complement  our  prior  700  MHz  allocation,  and  takes  into  account  the  varying  benefits  associated  with  different  spectrum.  Furthermore,  this  action  will  provide  public  safety  users  with  access  to 
 state  of  the  art  technologies  that  will  enhance  their  critical  operations  capabilities. 

 87  Adaptive  Reply  Comments  at  2;  Global  Reply  Comments  at  1. 
 88  Motorola  Comments  at  7,  Motorola  White  Paper  at  17-  18,  Motorola  ex  parte  letter,  dated  April  11,  2001,  at  2. 
 89  OBRA-  93    6002,  codified  at  47  U.  S.  C.    309(  j)(  9). 
 90  NTIA  identified  and  made  available  the  2300-  2310  MHz  band  for  exclusive  non-  government  use  by  August  10, 
 1995.  However,  NTIA  indicated  that  the  2300-  2305  MHz  band  carried  constraints  necessary  to  protection  of  NASAs  Deep  Space  Network  and  Planetary  Radar  operations  at  Goldstone,  California.  In  addition,  this  band  is 

 used  by  radio  amateurs  for  weak  signal  reception. 
 91  As  Motorola  points  out,  pursuant  to  OBRA-  93    6002,  auctioning  any  5  megahertz  of  OBRA-  93  spectrum 
 would  fulfill  this  obligation.  See  Motorola  ex-  parte  letter,  dated  April  11,  2001;  Motorola  Comments  at  7. 
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 IV.  FURTHER  NOTICE  OF  PROPOSED  RULEMAKING 
 A.  Eligibility  to  Use  the  4.9  GHz  Band 
 31.  We  seek  comment  on  the  criteria  we  can  use  to  determine  eligibility  to  operate  equipment  within  the  4.9  GHz  band.  Acting  pursuant  to  a  Congressional  directive  in  BBA-  97, 

 the  Commission,  in  the  700  MHz  band  public  safety  allocation,  restricted  eligibility  to  use  the  700  MHz  band  to  the  entities  described  in  Section  337(  f)  of  the  Act.  92  Section  337(  f)  of  the  Act 
 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 
 We  seek  comment  on  whether  we  should  adopt  the  same  eligibility  standards  for  the  4.9  GHz  band.  Such  a  standard  would  generally  limit  uses  of  the  spectrum  to  state  and  local  emergency 

 workers  and  non-  governmental  public  safety  providers  authorized  to  provide  public  safety  services  by  a  governmental  entity  whose  primary  mission  is  to  protect  the  safety  of  life,  health, 
 or  property.  94 
 32.  Unlike  the  700  MHz  band,  however,  the  4.9  GHz  band  is  not  subject  to  any  statutory  restrictions  on  eligibility  to  operate  on  the  band.  We  note  that  Section  309(  j)(  2)  of  the  Act 

 exempts  certain  groups  from  the  Commissions  auction  authority  as  public  safety  radio  services,  which  are  defined  as  services,  including  private  internal  radio  services,  used  by  State 
 and  local  governments  and  non-  government  entities,  and  including  emergency  road  services  provided  by  not-  for  profit  organizations  that  are:  (i)  used  to  protect  the  safety  of  life,  health,  or 
 property;  and  (ii)  are  not  made  commercially  available  to  the  public.  95  This  exemption  extends  to  private  internal  radio  services  used  by  utilities,  railroads,  metropolitan  transit  systems, 

 92  BBA-  97  directed  the  Commission,  by  January  1,  1998,  to  reallocate  24  megahertz  of  spectrum  between  746  MHz 
 and  806  MHz  (inclusive)  for  public  safety  services  as  defined  in  Section  337(  f)  of  the  Act.  See  47  U.  S.  C.    337(  a)(  1). 

 93  See  47  U.  S.  C.    337(  f)(  1). 
 94  The  Commission  has  previously  concluded  that  state  or  local  government  entities  whose  primary  mission  is  not 
 the  provision  of  public  safety  services  fall  within  the  definition  of  Section  337(  f).  700  MHz  First  R&  O,  14  FCC  Rcd  at  180-  81    54;  see  also  47  C.  F.  R.    90.523(  a). 

 95  47  U.  S.  C.    309(  j)(  2). 
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 pipelines,  private  ambulances,  volunteer  fire  departments,  and  not-  for-  profit  organizations  that  offer  emergency  road  services,  such  as  the  American  Automobile  Association  (AAA).  96 
 33.  We  recognize  that  some  of  the  public  safety  entities  covered  by  Section  309(  j)(  2)  of  the  Act,  whose  facilities  may  be  directly  involved  in  an  emergency,  and  who  provide  essential 
 services  to  the  public  at  large,  may  also  be  interested  in  utilizing  the  4.9  GHz  band.  The  very  nature  of  the  services  provided  by  these  entities  involve  potential  hazards  whereby  reliable  radio 
 communications  is  an  essential  tool  in  either  avoiding  the  occurrence  of  such  hazards,  or  responding  to  emergency  circumstances.  Furthermore,  such  entities  need  reliable 
 communications  in  order  to  prevent  or  respond  to  disasters  or  crises  affecting  their  service  to  the  public.  We  also  recognize  that  in  the  course  of  their  duties,  these  entities  will  need  to  interact 
 with  the  traditional  public  safety  service  providers,  and  the  inability  to  do  so  may  affect  the  ability  of  both  groups  of  public  safety  entities  to  fulfill  their  missions. 

 34.  Since  we  seek  to  define  eligibility  so  as  to  ensure  that  all  necessary  parties  can  communicate  with  one  another,  we  seek  comment  on  whether  we  should  use  the  broader 
 description  of  public  safety  radio  services  contained  in  Section  309(  j)(  2)  of  the  Act  to  define  eligibility  to  use  the  band.  Commenters  should  address  whether  the  utilization  of  Section 
 309(  j)(  2)  would  broaden  partnership  opportunities  between  the  more  traditional  public  safety  entities  (i.  e.,  police,  fire  and  ambulatory  entities),  and  critical  infrastructure  entities,  such  as 
 utility  companies,  railroads,  and  others.  This  approach  creates  a  larger  group  of  eligible  users,  thereby  resulting  in  greater  use  of  the  spectrum,  with  its  attendant  efficiencies  of  scale  in  the 
 equipment  market.  Nonetheless,  we  recognize  that  expanding  the  universe  of  users  on  this  spectrum  may  result  in  congestion  on  the  band,  hindering  the  communications  of  emergency 
 workers,  and  causing  the  traditional  public  safety  users  to  compete  for  valuable  spectrum.  We  ask  that  commenters  discuss  other  advantages  and  disadvantages  of  the  approaches  we  have 
 identified.  We  also  seek  comment  on  whether  we  should  restrict  either  group  of  potentially  eligible  users  to  fixed  or  mobile  use. 

 35.  Additionally,  we  seek  comment  on  the  possibility  of  licensing  part  of  the  4.9  GHz  band  pursuant  to  the  Section  337  definition  of  eligibility,  and  part  of  the  band  pursuant  to  the 
 Section  309(  j)(  2)  definition  of  eligibility,  or  utilizing  the  Section  337(  f)  definition  and  allowing  sharing  agreements  with  Section  309(  j)  entities.  Commenters  should  address  the  appropriate 
 division  of  spectrum  in  their  comments,  and  address  whether  the  extent  thereof  would  permit  a  larger  group  of  users  to  utilize  the  band  without  impeding  emergency  operations. 

 36.  Because  of  the  novelty  of  this  new  service,  we  are  also  interested  in  exploring  innovative  and  non-  traditional  means  of  employing  public  safety  use  of  the  band.  A  possible 
 approach  would  be  to  allow  commercial  use  in  support  of  public  safety  in  this  band.  For  example,  we  could  allow  commercial  licensees  to  utilize  the  band  in  order  to  serve  public  safety 
 entities.  We  ask  commenters  to  provide  specific  information  on  how  such  an  approach  could  be  implemented,  including  identifying  potential  classes  of  commercial  providers  and  discussing  the 
 arrangements  that  would  ensue  between  such  providers  and  public  safety  entities.  We  could  also  allow  commercial  use  to  be  licensed  on  a  secondary  basis.  We  seek  comment  on  whether  such 

 96  See  H.  R.  Conf.  Rep.  No.  105-  217,  105  th  Cong.,  1  st  Sess.,  at  572  (1997)  (Conference  Report). 
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 an  action  would  be  in  the  public  interest  and  result  in  the  most  efficient  use  of  the  4.9  GHz  band.  We  invite  commenters  to  suggest  other  novel  approaches  and  seek  comment  on  the  feasibility 
 and  desirability  of  adopting  non-  traditional  means  of  employing  public  safety  use  of  the  band. 
 37.  Consistent  with  our  statutory  obligations  and  Commission  precedent,  if  our  service  rules  permit  commercial  providers  to  be  eligible  for  licenses  in  support  of  public  safety  entities, 

 or  if  we  allow  secondary  commercial  use,  then  we  will  make  a  public  interest  determination  of  whether  to  adopt  a  licensing  process  whereby  mutually  exclusive  applications  could  be  accepted 
 for  filing  and  would  be  resolved  by  competitive  bidding.  97  We  note  that  in  the  First  NPRM,  we  tentatively  concluded  to  adopt  a  geographic  area  licensing  scheme  for  this  band  under  which 
 mutual  exclusivity  would  be  possible,  98  and  we  sought  comment  on  the  use  of  our  Part  1  general  competitive  bidding  rules,  the  use  of  small  business  bidding  credits  and  the  adoption  of  small 
 business  size  definitions.  99  Commenters  may  supplement  the  record  regarding  these  issues. 
 38.  Another  issue  that  arises  with  regard  to  eligible  users  is  whether  we  should  permit  Federal  Government  entities  to  use  this  spectrum.  As  noted  above,  the  Commission  does  not 

 license  Federal  entities  to  use  non-  Federal  spectrum.  100  Federal  agencies,  however,  play  a  vital  role  in  providing  public  safety  related  services  to  the  American  people.  101  Considering  the  type 
 of  mobile  use  currently  envisioned  for  this  band,  we  tentatively  conclude  that  both  Federal  and  non-  Federal  public  safety  entities  are  potential  participants  in  incident-  scene  emergency 
 operations,  and  could  benefit  from  the  same  broadband  communications  technologies  discussed  within  this  FNPRM.  We  note  that  the  Commission  reached  a  similar  conclusion  with  regard  to 
 Federal  use  of  frequencies  in  the  700  MHz  public  safety  band,  and  required  that  Federal  entities  enter  into  agreements  with  the  appropriate  state  or  local  government  agency  license  holder  in 

 97  See  47  U.  S.  C.  309(  j)(  1);  In  the  Matter  of  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,  Report  and  Order  and  Further  Notice  of  Proposed  Rule  Making,  15  FCC  Rcd  22709,  22750    83  (rel.  Nov.  29,  2000)  (BBA  Report  and  Order)  (stating  that 
 commercial  service  providers  intending  to  serve  public  safety  entities  are  ineligible  to  apply  for  auction-  exempt  spectrum). 

 98  In  the  First  NPRM,  we  sought  comment  on  the  appropriate  size  geographic  licensing  area  and  appropriate  size 
 spectrum  block  to  be  licensed.  See  First  NPRM,  15  FCC  Rcd  at  4796-  4798    41-  48. 
 99  See  First  NPRM,  15  FCC  Rcd  at  4813-  4818    90-  103.  In  the  First  NPRM,  we  proposed  to  define  a  "small 
 business"  as  an  entity  with  average  annual  gross  revenues  not  exceeding  $40  million  for  the  three  preceding  years  and  a  "  very  small  business"  as  an  entity  with  average  annual  gross  revenues  not  exceeding  $15  million  for  the 

 three  preceding  years.  We  further  proposed  to  provide  small  businesses  with  a  bidding  credit  of  15  percent  and  very  small  businesses  with  a  bidding  credit  of  25  percent.  The  SBA  approved  these  definitions.  See  Letter  from 
 Aida  Alvarez,  Administrator,  Small  Business  Administration,  to  Mark  Bollinger,  Acting  Chief,  Auctions  and  Industry  Analysis  Division,  Wireless  Telecommunications  Bureau,  Federal  Communications  Commission,  dated 
 April  7,  2000. 
 100  See  n.  2,  supra. 

 101  Comments  of  NTIA  to  700  MHz  First  NPRM  at  5;  700  MHz  First  R&  O,  14  FCC  Rcd  at  183    61. 
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 order  to  use  that  spectrum.  102  We  seek  comment  on  our  tentative  conclusion  to  allow  Federal  use  of  the  spectrum,  as  well  as  whether  we  should  require  sharing  agreements  between  public  safety 
 entities  and  Federal  users  as  a  prerequisite  to  Federal  use.  We  ask  commenters  to  discuss  our  authority  to  permit  such  operations  and  to  address  the  types  of  uses  Federal  Government  entities 
 might  seek  to  employ  in  the  band. 
 B.  Fixed  and  Mobile  Use  of  the  4.9  GHz  Band 
 39.  Along  with  managing  spectrum  to  promote  the  safety  of  life  and  property,  the  Commission  is  also  charged  with  ensuring  that  spectrum  is  used  efficiently.  103  In  the  Second 

 Report  and  Order,  we  allocated  the  4.9  GHz  band  for  both  fixed  and  non-  aeronautical  mobile  operations.  104  The  comments,  letters  and  ex  parte  presentations  we  have  received  to  date  in  this 
 proceeding  on  behalf  of  the  public  safety  community  consistently  advocate  the  use  of  spectrally-efficient  low-  power  wireless  portable  or  mobile  technologies  on  the  4.9  GHz  band.  While  the 
 public  safety  community  has  not,  heretofore,  expressed  any  interest  in  utilizing  the  4.9  GHz  band  for  fixed  operations,  we  are  concerned  that  prohibiting  such  uses  would  restrict  licensee 
 flexibility  and  could  prohibit  future  technologies  that  could  benefit  public  safety.  Furthermore,  the  mobile  technologies  currently  envisioned  for  the  band  are  intended  for  short-  range 
 communications  at  an  incident  scene,  and  allow  for  multiple  reuse  of  the  spectrum  at  other  nearby  locations.  Since  we  do  not  expect  that  there  will  be  many  locations  at  which  mobile, 
 incident-  scene  specific,  use  of  the  spectrum  will  be  needed  at  any  given  time,  we  are  concerned  that  the  limiting  of  operations  on  the  spectrum  to  mobile  uses  could  result  in  an  inefficient  use  of 
 this  spectrum.  Additionally,  we  are  concerned  that  restricting  the  band  to  mobile  operations  would  result  in  limited  use  of  the  band  during  non-  emergency  periods. 

 40.  In  order  to  prevent  a  spectrally-  inefficient  allocation,  we  seek  comment  on  the  circumstances  under  which  we  should  permit  fixed  operations  on  the  4.9  GHz  band.  We  further 
 ask  commenters  to  address  whether  permitting  fixed  operations  would  provide  public  safety  entities  with  an  additional  tool  for  responding  to  emergency  situations.  We  seek  information  on 
 whether  fixed  applications  on  the  band  would  consist  of  the  traditional  point-  to-  point  microwave  operations,  more  advanced  point-  to-  multipoint  services,  or  temporary  fixed  links  that  would 
 allow  communication  between,  for  example,  an  incident  scene  and  police  headquarters,  or  both.  We  ask  commenters  to  address  whether  fixed  and  mobile  operations  can  co-  exist  on  this  band, 
 and  whether  fixed  use  should  be  made  secondary  to  mobile  use,  and  to  discuss  the  types  of  fixed 
 102  See  In  the  Matter  of  the  Development  of  Operational,  Technical  and  Spectrum  Requirements  For  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,  Fourth  Notice  of 

 Proposed  Rulemaking,  15  FCC  Rcd  16899,  16922    60  (2000)  (700  MHz  Fourth  NPRM),  citing  In  the  Matter  of  the  Development  of  Operational,  Technical  and  Spectrum  Requirements  For  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  Memorandum  Opinion  and  Order,  15 
 FCC  Rcd  16844,  16865-  68    46-  53  (2000)  (700  MHz  Second  MO&  O). 
 103  See  47  U.  S.  C.    332(  a)(  2). 

 104  See  Second  R&  O,  supra  at    9. 
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 public  safety  applications  that  could  be  employed  thereon.  We  specifically  seek  comment  on  whether  any  proposed  fixed  operations  would  interfere  with  the  use  of  the  emerging  mobile 
 technologies  discussed  herein. 
 41.  We  must  also  address  the  question  of  how  to  regulate  the  band.  Because  the  uses  we  anticipate  for  this  band  are  unique,  we  could  create  a  new  mobile  radio  service  covering  the 

 mobile  uses  envisioned  for  this  band,  and  regulate  the  service  via  a  new  subpart  within  Part  90  of  our  Rules.  105  We  seek  comment  on  this  proposal,  as  well  as  suggestions  on  a  name  for  this  new 
 service.  We  also  request  that  commenters  in  favor  of  allowing  fixed  uses  on  this  band  suggest  how  such  uses  should  be  regulated.  Specifically  we  seek  comment  on  whether  we  should 
 regulate  primary  fixed  uses  in  this  band  pursuant  to  Part  101  of  our  Rules,  106  as  we  have  traditionally  done  for  fixed,  point-  to-  point,  and  point-  to-  multipoint  microwave  operations.  In  the 
 alternative,  if  we  allow  fixed  uses  on  a  secondary  basis,  we  could  regulate  such  uses  pursuant  to  Part  90  of  our  Rules.  Another  option  is  to  regulate  all  uses  of  this  band  pursuant  to  Part  27  of 
 our  Rules,  which  governs  Miscellaneous  Wireless  Communications  Services.  We  seek  comment  on  this  approach.  We  ask  commenters  to  discuss  the  advantages  and  disadvantages  of  the 
 approaches  discussed  herein.  We  also  solicit  suggestions  on  other  methods  to  regulate  the  band,  along  with  the  advantages  and  disadvantages  thereof.  In  particular,  we  invite  the  public  safety 
 community  and  all  parties  familiar  with  the  WLAN  and  PAN  uses  envisioned  for  this  band  to  comment  on  which  subpart  of  our  Rules  is  most  appropriate  for  these  services. 

 C.  Channel  Plan 
 42.  We  recognize  that  there  are  a  number  of  channelization  plans  we  could  employ  to  divide  the  50  megahertz  of  spectrum  at  issue  in  this  proceeding.  We  received  several  channel 

 plan  proposals  in  response  to  the  First  NPRM.  Motorola  recommends  that  we  divide  the  spectrum  into  two  20-  25  megahertz  blocks,  to  accommodate  the  type  of  broadband  application 
 that  the  public  safety  community  seeks  to  deploy  in  this  band.  107  Motorola  asserts  that  such  a  channel  plan  will  allow  public  safety  users  to  leverage  commercial  technologies  from  the 
 unlicensed,  adjacent  5  GHz  band.  108  US  West  stated  that  the  band  could  be  divided  into  two  unpaired  20  megahertz  blocks  and  one  10  megahertz  block.  109  Rock  Hill  indicated  that  the  4.9 
 GHz  band  could  be  licensed  using  10  megahertz  blocks  of  spectrum  with  each  block  composed 

 105  Part  90  of  the  Commissions  Rules  governs  the  Private  Land  Mobile  Radio  Services. 
 106  Part  101  of  the  Commissions  Rules  governs  the  Fixed  Microwave  Services. 
 107  Motorola  White  Paper  at  11.  Motorola  also  suggests  that  dividing  the  band  in  this  manner  may  help  to 
 ameliorate  the  Navy  interference  problem,  discussed  infra  at  Section  H.  Motorola  White  Paper  at  20.  Motorola  does  not  state  what  uses  it  envisions  for  any  unused  spectrum  should  the  channel  blocks  use  less  than  the  full  50 

 MHz  we  contemplate  allocating  to  public  safety. 
 108  Id.  at  23. 

 109  US  West  Reply  Comments  at  2. 
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 of  two  paired  blocks  of  noncontiguous  frequencies  (i.  e.,  license  A  would  be  composed  of  the  4940-  4945  MHz  and  4965-  4970  MHz  frequencies).  110 
 43.  With  the  exception  of  Motorola,  we  realize  that  commenters  based  their  proposals  on  our  prior  tentative  conclusion  to  designate  the  4.9  GHz  band  for  commercial  use.  To  the  extent 
 that  these  suggestions  are  likewise  applicable  to  our  new  designation  of  the  spectrum  for  use  in  support  of  public  safety,  we  seek  comment  on  whether  the  Commission  should  adopt  one  of 
 these  band  plans  for  the  4.9  GHz  spectrum.  We  also  invite  comment  on  whether  the  band  would  have  to  be  segmented  should  we  decide  to  permit  fixed  operations  thereon.  Commenters  should 
 be  mindful  of  the  specific  mobile  uses  currently  envisioned  for  the  band,  as  outlined  herein,  and  should  also  discuss  the  impact  that  fixed  operations  would  have  on  the  channel  plan.  Further, 
 commenters  in  favor  of  the  Motorola  proposal  should  discuss  how  we  should  use  the  two  proposed  channel  blocks.  For  example,  should  we  designate  the  lower  half  of  the  block  for  fixed 
 operations  and  the  upper  half  for  mobile  operations,  or  vice-  versa?  If  so,  should  we  further  divide  the  fixed  band  operations  into  five  channel  pairs  of  2.5  megahertz  bandwidth  per  path? 
 Would  blocks  smaller  than  those  proposed  by  Motorola  accommodate  the  emerging  broadband  services  discussed  herein?  Commenters  supporting  these  or  other  band  plans  should  provide 
 specific  rationales  for  why  a  particular  band  plan  would  meet  public  safety  needs  while,  at  the  same  time,  maximizing  user  flexibility  and  spectral  efficiency.  Finally,  we  ask  that  commenters 
 address  the  advantages  and  disadvantages  associated  with  any  of  the  proposed  channel  plans. 
 44.  We  recognize  that  if  fixed  uses  are  ultimately  permitted  on  the  4.9  GHz  band,  there  may  be  interference  between  the  fixed  and  mobile  operations.  Accordingly,  we  seek  comment 

 on  whether  we  should  require  coordination  of  fixed  and  mobile  services.  Commenters  should  specify  the  markets  in  which  such  coordination  should  be  required,  and  discuss  the  factors 
 considered  in  reaching  such  a  determination. 
 D.  Licensing 
 45.  Designating  the  4.9  GHz  band  for  use  in  support  of  public  safety  coupled  with  limiting  user  eligibility  to  public  safety  entities  as  discussed  above,  would  mean  licenses  for  this 

 spectrum  could  not  be  auctioned.  111  Accordingly,  we  seek  comment  on  the  appropriate  means  of  licensing  the  4.9  GHz  spectrum.  We  seek  suggestions  for  licensing  schemes  for  both  fixed  and 
 mobile  uses.  Below,  we  discuss  various  licensing  approaches  that  we  can  utilize  for  the  contemplated  operations.  We  seek  comment  on  these  and  other  licensing  approaches  we  could 
 employ.  Finally,  we  ask  commenters  advocating  any  particular  licensing  approach  to  address  the  best  means  of  implementing  the  Commissions  obligations  with  respect  to  radio  astronomy 
 stations  under  footnote  US311  pursuant  to  such  approach. 

 110  Rock  Hill  Reply  Comments  at  4-  5. 
 111  Section  309(  j)(  2)  of  the  Communications  Act  provides  that  the  Commission  does  not  have  authority  to  award 
 licenses  or  construction  permits  for  public  safety  radio  services  by  competitive  bidding.  47  U.  S.  C.    309(  j)(  2)(  A).  However,  as  discussed  above,  if  we  allow  some  commercial  use  of  this  band  not  all  licenses  would  be  exempt 

 from  auction.  See  supra    36-  37,  infra    56. 
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 1.  Mobile  Licensing 
 46.  We  believe  that  the  licensing  scheme  we  adopt  for  mobile  operations  on  the  band  must  be  flexible  enough  to  accommodate  use  at  geographically  dispersed  areas.  We  note  that 

 one  contemplated  use  of  this  band  would  involve  use  at  emergency  and  incident  scenes.  Inasmuch  as  the  locations  of  such  scenes  are  not  determinable  in  advance,  we  tentatively 
 conclude  that  our  licensing  scheme  should  allow  for  maximum  flexibility.  Within  the  confines  of  these  requirements,  there  is  nevertheless  a  variety  of  licensing  schemes  we  could  employ. 
 Below,  we  set  forth  the  advantages  and  disadvantages  of  several  licensing  schemes  and  seek  comment  on  whether  we  should  adopt  one  of  these  approaches.  We  also  seek  alternative 
 proposals  for  licensing  mobile  use.  Commenters  should  also  address  traditional  licensing  issues  such  as  license  terms,  restrictions  and  qualifications. 

 a.  State  Licensing 
 47.  Large-  scale  public  safety  incidents  often  require  multi-  agency  coordination  of  spectrum  usage.  This  coordination  is  ancillary  to  coordination  issues  between  fixed  and  mobile 

 use  in  a  particular  band,  and  with  adjacent  band  users.  A  mobile  licensing  scheme  in  which  mobile  units  are  licensed  to  specific  entities  could  expedite  this  coordination.  One  possible 
 licensing  scheme  that  could  adequately  address  these  issues  is  the  licensing  of  mobiles  to  states  through  a  geographic  area  license.  This  mechanism  is  akin  to  awarding  each  state  a  50 
 megahertz  block  grant  that  could  be  utilized  for  state-  wide  communications.  Pursuant  to  this  scheme,  the  state  would  be  the  licensee  for  all  mobile  units  operating  on  the  band.  A  state-  level 
 agency  or  organization  responsible  for  administering  state  emergency  communications  would  be  responsible  for  authorizing  local  and  other  public  safety  entities  to  operate  on  the  spectrum  and 
 coordinating  spectrum  use. 
 48.  With  respect  to  the  700  MHz  public  safety  band,  the  Commission  found  that  there  were  several  advantages  to  a  state-  licensing  scheme,  all  of  which  would  be  applicable  to  the 

 instant  case.  For  example,  the  Commission  concluded  that  state-  level  organizations  are  usually  in  charge  in  emergency  situations  involving  multiple  agencies,  which  is  the  sort  of  use  currently 
 envisioned  for  this  spectrum,  and  therefore  constituted  the  ideal  body  to  administer  the  spectrum.  112  The  Commission  also  concluded  that  states  were  in  a  better  position  to  coordinate 
 with  Federal  Government  emergency  agencies,  113  which  we  have  already  tentatively  concluded  should  be  permitted  to  operate  on  the  4.9  GHz  band.  The  Commission  also  found  state  licensing 
 attractive  because  of  the  inherent  ability  to  simplify  system  expansion.  114  Another  advantage  of  a  state  licensing  scheme  is  that  it  reduces  the  administrative  burden  on  both  the  Commission  and 
 the  public  safety  community.  115  Because  the  state  licensing  approach  was  used  in  the  700  MHz 

 112  See  700  MHz  Fourth  NPRM,  15  FCC  Rcd  at  16909    21. 
 113  Id. 
 114  See  700  MHz  Third  R&  O,  15  FCC  Rcd  at  19867-  68    54. 
 115  Id. 
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 proceeding,  we  expect  that  states  will  have  spectrum  management  capabilities  already  in  place.  Furthermore,  in  the  event  that  we  permit  both  fixed  and  mobile  uses  on  the  band,  we  believe  that 
 the  states  are  in  a  better  position  to  coordinate  fixed  and  mobile  interference  issues. 
 49.  State  licensing,  however,  has  certain  potential  drawbacks.  State  licensing  would  impose  additional  spectrum  management  duties  upon  state  agencies.  We  therefore  seek 

 comment  on  whether  this  approach  places  cumbersome  responsibilities  upon  the  states,  as  well  as  on  what  alternative  licensing  mechanism  we  should  employ  if  a  state  is  unwilling  or  unable  to 
 administer  such  a  license.  Furthermore,  such  a  licensing  scheme  may  exacerbate  tensions  between  state-  level  and  local-  level  public  safety  agencies  over  spectrum  use.  Hence,  we  seek 
 comment  on  whether  we  should  establish  guidelines  to  ensure  that  states  do  not  unduly  restrict  the  access  of  other  eligible  entities  to  this  spectrum.  We  also  seek  comment  on  whether  we 
 should  license  this  spectrum  as  was  done  in  the  700  MHz  band,  in  which  states  were  given  a  window  to  apply  for  a  state  license  and  at  the  end  of  that  period,  unclaimed  spectrum  would 
 revert  to  a  Regional  Planning  Committee.  Commenters  should  specifically  address  whether  such  an  approach  is  feasible  and  appropriate,  and  if  so,  what  entity  should  be  designated  the  default 
 licensee  in  those  cases  in  which  a  state  does  not  file  for  its  license.  Commenters  should  also  discuss  the  other  advantages  and  disadvantages  of  this  scheme,  as  identified  herein  or  otherwise. 

 b.  Blanket  Licensing  or  Unlicensed  Operation 
 50.  Another  option  for  the  licensing  of  mobile  operations  is  blanket  licensing  mobile  units  by  rule.  Such  licensing  would  be  analogous  to  our  licensing  of  interoperability  mobiles 

 used  in  the  700  MHz  band.  116  Under  this  approach,  mobile  operations  would  be  permitted  on  the  band  without  an  individual  license  by  entities  if  (1)  such  entities  are  eligible  to  operate  on  the 
 band  as  discussed,  supra,  or  (2)  such  entities  are  eligible  for  frequencies  in  the  Public  Safety  Radio  Pool  set  forth  in  Section  90.15  of  our  Rules.  117  Considering  that  the  contemplated  mobile 
 use  of  this  band  would  be  incident-  specific,  this  approach  is  advantageous  in  that  it  accounts  for  the  fact  that  the  service  area  for  on-  scene  incident  service  is  not  determinable  in  advance. 
 Furthermore,  the  small  service  contour  contemplated  minimizes  interference  concerns,  thereby  obviating  the  need  for  a  more  complicated  licensing  scheme.  Moreover,  blanket  licensing 
 alleviates  the  administrative  burdens  associated  with  traditional  licensing,  such  as  the  filing  and  processing  of  applications. 

 51.  There  are  certain  drawbacks,  however,  to  blanket  licensing.  We  question  whether,  in  the  absence  of  named  licensees,  there  will  be  adequate  mechanisms  for  ensuring  that  there  will 
 116  See  Development  of  Operational,  Technical  and  Spectrum  Requirements  For  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,  Fourth  Report  and  Order  and  Fifth  Notice  of 

 Proposed  Rulemaking,  16  FCC  Rcd  2020    30-  33  (2001)  (700  MHz  Fourth  R&  O  and  700  MHz  Fifth  NPRM  as  appropriate).  We  have  also  used  this  approach  for  mobile  operation  on  the  800  MHz  band.  See  In  the  Matter  of 
 Development  and  Implementation  of  a  Public  Safety  National  Plan  and  Amendment  of  Part  90  to  Establish  Service  Rules  and  Technical  Standards  for  Use  of  the  821-  824/  866-  869  MHz  Bands  by  the  Public  Safety  Services, 
 Report  and  Order,  3  FCC  Rcd  905,  909    30,  33-  34  (rel.  Dec.  18,  1987)  (800  MHz  R&  O). 
 117  47  C.  F.  R.    90.15. 
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 be  proper  coordination  concerning  communications  among  the  various  agencies  that  may  respond  to  an  incident  or  emergency.  Moreover,  if  both  fixed  and  mobile  operations  are 
 permitted  on  the  band,  the  absence  of  individual  mobile  licensees  may  complicate  coordination  with  fixed  users  or  users  in  adjacent  bands. 

 52.  We  seek  comment  on  this  licensing  approach.  Commenters  should  address  whether,  despite  the  small  service  contour  for  the  envisioned  mobile  uses,  such  operations  would  affect 
 fixed  operations,  thereby  detracting  from  the  desirability  of  this  approach.  We  invite  suggestions  on  what  requirements  we  should  set  in  order  to  qualify  for  operation  on  the  band.  We  also  invite 
 discussion  on  management  of  the  spectrum  by  an  individual  in  charge  at  an  incident  scene,  and  whether  we  can  rely  on  such  an  individual  to  adequately  manage  the  spectrum  under  such 
 circumstances.  Alternatively,  we  also  seek  comment  on  allowing  unlicensed  operation  pursuant  to  Part  15  of  the  Commissions  Rules  with  sales  and  marketing  restrictions  to  ensure  that  the 
 equipment  is  used  in  support  of  public  safety.  Finally,  we  seek  comment  on  whether  such  approaches  would  result  in  any  abuses  that  might  interrupt  emergency  communications 
 operations  on  the  band. 
 c.  Regional  Planning  Committees 
 53.  Another  licensing  scheme  that  would  allow  the  designation  of  a  licensee  for  coordination  purposes  with  minimal  administrative  burden  on  end  users  would  be  to  license 

 mobile  use  through  the  use  of  regional  planning  committees.  Under  a  regional  planning  licensing  scheme,  which  the  Commission  used  in  both  the  700  MHz  and  800  MHz  public  safety 
 bands,  the  nation  is  divided  into  regions  that  have  the  autonomy  to  develop  plans  that  meet  their  different  communications  needs.  118  Based  on  the  experience  gained  from  the  implementation  of 
 this  plan  in  the  700  MHz  and  800  MHz  bands,  we  seek  comment  on  whether  we  should  employ  regional  planning  committee  licensing  in  the  4.9  GHz  band. 

 d.  Band  Managers 
 54.  Another  licensing  scheme  that  would  allow  the  designation  of  a  licensee  for  coordination  purposes  with  minimal  administrative  burden  on  end  users  would  be  to  license 

 mobile  use  through  the  use  of  band  managers.  The  Commission  has  defined  band  managers  as  "a  class  of  licensees  that  are  specifically  authorized  to  lease  their  licensed  spectrum  usage  rights 
 for  use  by  third  parties  through  private,  contractual  agreements,  without  having  to  secure  prior  approval  by  the  Commission.  119 

 55.  We  seek  comment  as  to  whether  we  should  employ  a  band  manager  licensing  scheme  for  the  administration  of  this  spectrum.  Commenters  should  address  whether  a  band  manger 
 approach  would  permit  more  flexible  use  of  this  spectrum  and  would  facilitate  efficient  spectrum  management,  especially  considering  this  spectrum  could  conceivably  be  utilized  for  both  fixed 

 118  See  700  MHz  First  R&  O,  14  FCC  Rcd  at  190    77  citing  800  MHz  R&  O,  3  FCC  Rcd  at  906. 
 119  Promoting  Efficient  Use  of  Spectrum  Through  Eliminating  Barriers  to  the  Development  of  Secondary  Markets, 
 Notice  of  Proposed  Rulemaking,  WT  Docket  No.  00-  230,  15  FCC  Rcd  24203,  24209    17  (2000). 
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 and  mobile  operations.  In  particular,  we  seek  comment  on  whether  our  spectrum  management  policies  would  be  enhanced  by  permitting  band  managers  the  expanded  flexibility  to  use  their 
 spectrum  internally  or  provide  telecommunications  services,  in  addition  to  leasing  it.  120  If  we  were  to  permit  such  flexibility,  should  we  also  implement  safeguards  to  ensure  that  a  band 
 manager's  core  function  remains  focused  on  leasing;  and  if  so,  how?  For  example,  the  Commission  has  previously  prohibited  band  managers  from  using  spectrum  directly,  and  limited 
 the  amount  of  spectrum  that  they  could  lease  to  affiliated  entities.  121  We  seek  comment  on  the  appropriate  geographic  area  for  a  band  manager  license  (i.  e.,  state,  local,  or  nationwide  licenses), 
 as  well  as  the  respective  advantages  and  disadvantages  of  using  a  band  manager  licensing  scheme  vis-  -  vis  the  other  licensing  schemes  mentioned  herein.  We  ask  commenters  to  address 
 possible  consideration  for  spectrum  leases.  We  also  seek  comment  on  whether  it  is  necessary  to  provide  additional  safeguards  to  prevent  a  band  manager  from  discriminating  among  spectrum 
 users. 
 56.  Commenters  should  initially  address  whether  we  should  restrict  the  role  of  band  manager  to  public  safety  entities  that  are  eligible  to  hold  licenses  pursuant  to  the  standard  of 

 eligibility  we  ultimately  define  for  this  spectrum  band.  We  ask  commenters  to  address  how  we  should  resolve  competing  band  manager  applications.  Alternatively,  as  proposed  above, 
 commenters  should  address  whether  we  should  allow  all  or  some  band  managers  to  be  commercial  entities  that  lease  spectrum  to  public  safety  entities.  122 

 2.  Fixed  Licensing 
 57.  We  also  seek  comment  on  the  appropriate  means  of  licensing  fixed  use  of  the  4.9  GHz  band  by  the  public  safety  community.  Because  we  anticipate  that  public  safety  entities  will 

 utilize  this  spectrum  in  a  manner  analogous  to  that  used  by  private  (including  public  safety)  radio  users  in  other  fixed  microwave  bands,  we  believe  that  the  licensing  scheme  should  likewise  be 
 similar.  Accordingly,  we  seek  comment  on  whether  we  should  license  fixed  use  in  this  band  pursuant  to  Part  27,  Part  90  or  Part  101  of  the  Commissions  Rules. 

 58.  We  note  that  should  we  allow  site-  based  fixed  use  of  this  spectrum,  site-  based  licensing  deprives  licensees  of  the  flexibility  to  relocate  transmitter  sites  within  a  defined  service 
 area  without  obtaining  the  Commissions  prior  approval.  123  We  seek  comment  on  whether  public  safety  entities  employing  fixed  operations  on  the  4.9  GHz  band  would  require  flexibility  in 
 licensing.  We  solicit  proposals  on  other  innovative  licensing  approaches  that  will  minimize  burdens  upon  both  the  Commission  and  public  safety  users.  Furthermore,  we  seek  proposals  for 

 120  In  the  BBA  Report  and  Order,  we  consider  this  issue  in  the  context  of  whether  to  permit  a  band  manager  in  a 
 particular  service  to  act  as  a  spectrum  broker  that  leases  spectrum  and  as  a  user  of  its  licensed  spectrum,  with  respect  to  future  allocations,  such  as  the  instant  proceeding.  BBA  Report  and  Order,  15  FCC  Rcd  at  22734    49. 

 121  Service  Rules  for  the  746-  764  and  776-  794  MHz  Bands  and  Revisions  to  Part  27  of  the  Commissions  Rules, 
 Second  Report  and  Order,  WT  Docket  No.  99-  168,  15  FCC  Rcd  5299  (2000). 
 122  See  supra      36-  37. 

 123  See  700  MHz  Third  R&  O,  15  FCC  Rcd  at  19868    55. 
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 the  setting  of  license  terms,  and  comment  on  whether  and  under  what  circumstances  should  we  impose  construction  requirements  for  fixed  services.  Commenters  who  believe  that  construction 
 requirements  are  necessary  in  this  proceeding  should  suggest  proposed  time  periods  for  construction  of  stations.  We  also  seek  comment  on  the  extent  to  which  the  choice  of  an 
 appropriate  licensing  scheme  for  fixed  services  is  dependent  on  how  we  define  eligible  public  safety  radio  services  in  this  band.  Commenters  are  also  invited  to  recommend  other  licensing 
 restrictions  and  qualifications. 
 E.  Interference 
 59.  The  U.  S.  Navy  conducts  Cooperative  Engagement  Capability  (CEC)  operations  in  nine  training  areas  in  the  band  immediately  below  the  4.9  GHz  band.  Operations  of  the  U.  S. 

 Navy's  CEC  system,  particularly  its  aeronautical  mobile  operations  below  the  4.9  GHz  band,  may  inhibit  use  of  the  lower  portion  of  the  4.9  GHz  band  in  large  areas  along  the  East,  West,  and 
 Gulf  Coasts.  124  We  note  that  this  system  operates  in  accordance  with  the  specifications  detailed  in  a  recent  Department  of  Commerce  letter,  125  which  differs  from  the  description  contained  in  the 
 First  NPRM.  The  CEC  system  may  operate  in  full  power  mode,  including  airborne  operations,  in  each  of  the  nine  training  areas.  These  full  power  emissions  abut  the  lower  portion  of  the  4.9 
 GHz  band.  In  addition,  airborne  use  may  impact  systems  operating  in  the  4.9  GHz  band  as  far  as  394  kilometers  (245  miles)  away.  126  NTIA,  in  a  letter  dated  March  31,  2001,  stated  that 
 operational  use  of  the  CEC  systems  will  occur  outside  of  the  training  areas  and  such  use  will  continue  to  evolve  as  national  defense  requirements  for  the  CEC  system  are  further  defined.  In 
 areas  where  non-  Government  operations  have  not  yet  been  authorized,  the  Department  of  Defense  reserves  the  right,  after  coordinating  with  NTIA  and  the  Commission,  to  expand 
 permanently  the  designated  training  areas  and  utilize  the  full  power  mode  and  full  band  capability.  127  In  areas  outside  of  the  nine  identified  training  areas  where  non-  Government 
 operations  are  authorized,  the  Department  of  Defense  has  agreed  that  any  operational  use  of  the  CEC  system  will,  except  in  the  case  of  a  National  Defense  Emergency,  128  be  limited  to  the 
 medium  power  mode  with  a  50  megahertz  guard  band  protecting  the  4.9  GHz  band.  129  Emissions  from  these  types  of  operations  would  be  below  the  spurious  emission  limits  normally  imposed  on 

 124  Appendix  D  details  the  nine  CEC  training  areas  as  well  as  the  emission  characteristics  of  this  system. 
 125  See  Letter  to  Bruce  Franca,  Acting  Chief,  Office  of  Engineering  and  Technology,  Federal  Communications 
 Commission,  from  William  T.  Hatch,  Associate  Administrator,  Office  of  Spectrum  Management,  National  Telecommunications  and  Information  Administration,  United  States  Department  of  Commerce  (rel.  Jun.  27,  2001) 

 (CEC  Letter). 
 126  The  ceiling  altitude  specified  for  aeronautical  mobile  operations  in  Appendix  B  is  30,000  feet.  The  radio 
 horizon  for  that  altitude,  calculated  assuming  a  standard  worst  case  earth  curvature  of  4/  3  earth  radius,  is  245  miles. 

 127  Id. 
 128  We  note  the  neither  NTIA  nor  the  Navy  expressly  defines  what  would  constitute  a  National  Defense 
 Emergency. 
 129  See  CEC  Letter. 
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 mobile  services  and  thus  have  limited  potential  to  cause  interference  to  non-  Government  systems.  130 
 60.  Given  the  high  power  at  which  the  CEC  system  operates,  we  do  not  anticipate  that  the  currently  contemplated  low  power  public  safety  operations  in  the  4.9  GHz  band  would  cause  any 
 interference  to  the  CEC  system.  We  are  concerned,  however,  that  the  Navys  use  of  the  CEC  system,  as  set  forth  in  NTIAs  letter,  could  cause  interference  to  public  safety  systems.  In  its 
 comments  to  the  First  NPRM,  Motorola  estimates  that  if  the  top  CEC  channel  is  used  and  all  of  the  CEC  channels  are  used  airborne  at  full  power,  the  preclusion  zones  around  the  training  areas 
 will  be  125-  250  miles;  if  the  CEC  use  is  land  or  ship  based,  the  preclusion  zones  around  the  training  areas  will  be  25-  30  miles.  131  Furthermore,  Motorola  states  that  if  the  Navy  uses  the 
 topmost  channel  of  the  CEC  system,  at  least  the  lower  25  megahertz  of  the  band  will  be  unavailable.  132  Motorola  cautions  that  public  safety  and  Federal  users  must  work  together  to 
 minimize  the  impact  of  CEC  systems  operating  within  the  training  areas,  or  else  the  full  allocation  will  be  unavailable  in  those  areas.  133  We  seek  comment  on  Motorola's  analysis  and 
 conclusions,  as  well  as  on  our  conclusion  that  the  low  power  operations  contemplated  for  the  band  will  not  interfere  with  the  CEC  system.  More  generally,  we  seek  comment  on  the  Navys 
 plans  for  the  CEC  system  in  the  band  below  the  4.9  GHz  band  and  the  impact  that  the  CEC  operations  will  have  on  provision  of  service  in  the  4.9  GHz  band.  We  solicit  comment  on  the 
 effect  CEC  operations  would  have  on  any  segmentation  or  channelization  plans  adopted  for  this  band,  and  what  steps  public  safety  licensees  in  the  4.9  GHz  band  could  take  to  minimize  the 
 impact  of  CEC  operations  on  their  services.  We  ask  commenters  to  address  whether  there  are  any  technical  rules  we  could  apply  to  4.9  GHz  band  licensees  that  would  minimize  the  impact  of 
 CEC  operations  on  public  safety  licensees. 
 61.  The  issue  of  interference  with  public  safety  communications  is  of  particular  concern  given  the  vital  nature  of  public  safety  communications  and  the  emphasis  the  public  safety 

 community  has  placed  on  ensuring  that  the  services  they  utilize  guarantee  them  immediate  access,  ubiquitous  coverage,  flawless  reliability,  and  security.  134  Given  the  CEC  operations  in 
 the  band  below  the  4.9  GHz  band,  we  seek  comment  on  how  to  ensure  that  the  4.9  GHz  spectrum  can  provide  the  public  safety  community  with  these  types  of  benefits.  Our  aim  is  to  develop  a 
 record  on  how  the  public  safety  community  operations  in  the  4.9  GHz  band  can  co-  exist  with  the  Navys  operations  in  the  adjacent  band. 

 130  Id. 
 131  Letter  to  Magalie  Roman  Salas,  Secretary,  Federal  Communications  Commission,  from  John  Lyons,  Motorola, 
 Inc.,  Attachment  at  7  (May  31,  2001). 
 132  Id.  at  8. 

 133  Motorola  White  Paper  at  21. 
 134  See,  e.  g.,  APCO  First  NPRM  Comments  at  6;  Motorola  Comments  at  6. 
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 62.  Finally,  protection  of  primary  radio  astronomy  operations  in  the  adjacent  4990-  5000  MHz  band  may  inhibit  operation  in  the  upper  portion  of  the  band  in  certain  areas.  135  We  seek 
 comment  on  what,  if  any,  restrictions  may  be  needed  on  new  users  in  the  4.9  GHz  band  to  protect  these  adjacent  band  uses. 

 F.  Technical  Standards  for  Mobile  Equipment 
 63.  When  contemplating  the  introduction  of  new  technologies  into  an  established  regulatory  framework,  the  anticipated  use  of  these  new  technologies  must  be  considered.  In  light 

 of  these  considerations,  we  seek  comment  on  whether  to  establish  technical  standards  for  mobile  equipment  operating  in  the  4.9  GHz  band,  and  if  so,  what  standards  should  be  included  in  our 
 Rules.  As  a  general  rule,  the  Commission  has  traditionally  disfavored  the  specification  of  performance  or  quality  standards  for  equipment,  136  leaving  the  selection  of  technology  entirely 
 within  the  realm  of  the  licensees.  We  seek  comment  on  whether  our  Rules  should  specify  particular  standards.  We  also  ask  commenters  to  discuss  regulatory  goals  that  could  warrant  the 
 use  of  particular  standards,  including  incident  scene  interoperability  and  the  accommodation  of  the  peak  demand  that  occurs  during  multiple  emergencies.  Commenters  should  address  whether 
 the  specification  of  particular  standards  would  promote  these  regulatory  goals.  We  also  seek  comment  on  other  means  by  which  we  can  craft  our  Rules  to  permit  operational  flexibility  while 
 ensuring  interoperability  between  different  agencies.  We  ask  commenters  to  discuss  alternative  regulatory  approaches,  including  the  operational  factors  (such  as  ad  hoc  and  access  point 
 operations)  that  should  be  considered  in  the  regulatory  approach  we  adopt.  We  ask  commenters  to  discuss  these  system  requirements,  particularly  as  they  relate  to  emerging  broadband 
 technologies,  as  well  as  any  other  requirements  necessary  for  effective  and  efficient  operations  by  public  safety  agencies.  Further,  we  seek  comment  on  whether  the  setting  of  performance 
 standards  will  delay  the  production  of  equipment  that  will  be  operated  on  this  band,  and  if  so,  what  we  can  do  to  prevent  any  production  delays. 

 64.  Prior  to  beginning  our  analysis  of  technical  standards,  we  note  that  the  current  record  in  this  proceeding  reflects  the  public  safety  communitys  vision  of  a  low-  power  mobile  service. 
 We  stress  that  we  generally  seek  comment  on  whether  such  a  system  would  represent  the  best  use  of  this  spectrum.  However,  since  we  wish  to  develop  as  full  a  record  as  possible,  we  also 
 seek  comment  on  our  analysis  of  the  technologies  envisioned  by  the  current  record. 
 1.  Broadband  Technologies 
 65.  We  note  that  there  are  two  widely  contemplated,  spectrally  efficient  broadband  standards  available  for  WLAN:  (1)  Institute  of  Electrical  and  Electronics  Engineering  standard 

 802.11a  (IEEE  802.11a);  and  (2)  European  Telecommunications  Standardization  Institute  (ETSI)  Broadband  Radio  Access  Network  (BRAN)  High  Performance  Local  Area  Network  number  two 
 (HiperLAN2).  137  IEEE  802.11a  technology  takes  advantage  of  more  spectra  to  provide  higher 
 135  See  Motorola  White  Paper  at  17-  25. 

 136  See,  e.  g.,  700  MHz  First  R&  O,  14  FCC  Rcd  at  207-  211    118,  121,  123,  124,  130,  132. 
 137  We  note  that  American  National  Standards  Institute  (ANSI)  has  not  yet  approved  HiperLAN2. 
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 data  rates  and  improves  system  capacity  performance.  IEEE  802.11a  has  been  cleared  in  the  United  States  for  unlicensed  use  through  the  category  of  U-  NII,  described  above.  HiperLAN2  is 
 a  new,  high  performance,  5  GHz  radio  networking  technology,  specifically  suited  for  operating  in  LAN  environments.  HiperLAN2  provides  high-  speed  access  to  a  variety  of  networks 
 including  3G  core  networks,  Asynchronous  Transfer  Mode  (ATM)  and  Internet  Protocol  (IP)  based  networks,  and  also  for  private  use  as  a  wireless  LAN.  HiperLAN2  is  very  similar,  at  the 
 physical  level,  to  IEEE  802.11a.  We  seek  comment  on  these  standards.  Additionally,  the  public  safety  community  states  that  it  can  defray  equipment  costs  by  relying  on  equipment  and 
 technology  being  utilized  in  the  nearby  5  GHz  U-  NII  band.  138  We  seek  comment  on  the  viability  of  these  technologies  for  public  safety  operations.  We  also  seek  comment  on  whether  any  cost 
 savings  public  safety  licensees  might  gain  from  relying  on  U-  NII  equipment  and  technology  might  be  off-  set  by  the  expense  involved  in  modifying  this  equipment  and  technology  to  include 
 encryption  and  other  security  features  characteristic  of,  or  desirable  for,  public  safety  equipment. 

 2.  Power  limits 
 66.  As  discussed  above,  the  mobile  broadband  technologies  that  the  public  safety  community  seeks  to  deploy  on  the  4.9  GHz  band  involve  the  use  of  incident  scene  equipment. 

 Inasmuch  as  these  uses  are  expected  to  cover  only  a  small  radius,  Motorola  recommends  that  we  adopt  a  1-  watt  maximum  transmitter  power  limit,  and  a  20-  dB  maximum  antenna  gain.  139 
 Motorola  asserts  that  on-  scene  broadband  LAN  operations  will  require  a  one-  watt  power  level,  but  that  PAN/  VAN  uses  may  actually  operate  at  lower  levels,  depending  upon  the  choice  of 
 public  safety  users.  Motorola  contends  that  adopting  its  recommended  power  levels  as  ceilings  will  allow  public  safety  users  the  flexibility  to  accommodate  all  possible  situations.  140  We  seek 
 comment  on  whether  we  should  adopt  a  power  limit  and  what  that  level  should  be.  Commenters  should  explain  the  basis  for  any  suggested  power  limits. 

 G.  Technical  Rules  for  Fixed  Operations  in  the  4.9  GHz  Band 
 67.  As  noted  above,  we  are  considering  whether  to  permit  fixed  operations  on  the  4.9  GHz  band.  While  we  reach  no  conclusion  on  this  issue  at  this  time,  we  nevertheless  believe  it  is 

 appropriate  to  solicit  comment  on  possible  technical  requirements  for  fixed  operations  on  the  band.  We  believe  that  such  comments  will  be  valuable  in  that  they  will  assist  in  the  development 
 of  a  record  on  which  to  base  our  ultimate  decision.  Accordingly,  we  discuss  below  various  technical  issues  that  should  be  considered  for  fixed  uses.  We  invite  comment  on  these  and  other 
 technical  issues  related  to  such  uses. 
 68.  One  of  the  technical  issues  that  arise  is  the  appropriate  Effective  Isotropic  Radiated  Power  (EIRP)  values  for  fixed  operations.  We  ask  whether  fixed  operations  for  the  4.9  GHz 

 138  See  Motorola  Comments  at  1. 
 139  Id.  at  23. 
 140  Id. 
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 band  should  have  an  EIRP  limit  of  55  dBW,  which  is  identical  to  the  limit  set  for  the  3700-  4200  MHz  and  5925-  6425  MHz  bands.  141  In  particular,  we  ask  commenters  to  address  whether  the 
 proposed  EIRP  values  are  appropriate  for  the  intended  services,  and  whether  it  provides  adequate  power  for  stations  to  transmit  over  typical  distances  for  various  types  of  applications.  We  also 
 ask  whether  we  should  apply  the  minimum  path  length  contained  in  Section  101.143  of  our  Rules  142  to  operations  in  4.9  GHz  band.  We  tentatively  conclude  that  applying  the  minimum 
 path  length  would  promote  spectral  efficiency  by  preventing  the  use  of  overpowered  systems  over  short  paths.  Third,  we  seek  comment  on  whether  to  make  the  emission  mask  requirements 
 for  fixed  microwave  services  in  the  4.9  GHz  band  consistent  with  the  emission  mask  requirements  for  fixed  microwave  services  in  Part  101  of  our  Rules.  143  We  also  seek  comment 
 on  whether  to  allow  fixed  licensees  in  the  4.9  GHz  band  to  use  Automatic  Transmitter  Power  Control  (ATPC).  ATPC  is  a  function  that  typically  provides  for  more  efficient  spectrum  use.  144 
 Finally,  we  ask  whether  we  should  adopt  a  frequency  tolerance  level  of  0.005%  for  fixed  equipment  operating  on  the  band.  This  approach  is  consistent  with  the  frequency  tolerance 
 allowed  in  Part  101  of  our  Rules  for  the  3700-  4200  MHz  and  5925-  6875  MHz  bands.  145  Since  operations  in  these  bands  are  technically  similar  to  the  fixed  microwave  services  we  anticipate 
 will  operate  in  the  4.9  GHz  band,  we  believe  the  same  frequency  tolerance  is  appropriate  for  the  4.9  GHz  band.  146  We  seek  comment  on  this  approach. 

 V.  CONCLUSION 
 69.  As  stated  in  PSWACs  Final  Report,  [  n]  o  responsibility  is  more  fundamental  and  reflective  of  the  nations  values  than  that  of  its  public  safety  agencies.  147  Indeed,  our  public 

 safety  providers  are  critical  to  our  nations  well  being.  Their  missions  should  not  be  compromised  by  inadequate  communications,  or  lack  of  access  to  state  of  the  art  technologies 
 that  can  enhance  their  abilities  to  conduct  critical  operations.  Our  actions  today  are  in  keeping  with  one  of  our  primary  mandates;  that  is,  to  promote  the  use  of  spectrum  to  further  safety  of  life 
 and  property.  148 

 141  See  47  C.  F.  R    101.113.  The  3700-  4200  MHz  and  5925-  6425  MHz  bands  are  the  next  lower  and  upper  bands 
 below  and  above  4940-  4965  MHz  band  respectively. 
 142  See  47  C.  F.  R.    101.143. 

 143  See  47  C.  F.  R.    101.111. 
 144  ATPC  technology  employs  the  minimum  amount  of  power  needed  to  transmit  a  signal,  thereby  minimizing 
 interference  within  adjacent  channels. 
 145  See  47  C.  F.  R    101.107. 

 146  See  47  C.  F.  R.    2.106 
 147  PSWAC  Final  Report  at  5. 
 148  See  47  U.  S.  C.    151. 
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 VI.  PROCEDURAL  MATTERS 
 A.  Ex  Parte  Rules  -  Permit-  But-  Disclose  Proceeding 
 70.  This  is  a  permit-  but-  disclose  notice  and  comment  rule  making  proceeding.  Ex  parte  presentations  are  permitted,  except  during  the  Sunshine  Agenda  period,  provided  they  are 

 disclosed  as  provided  in  our  Rules.  149 
 B.  Regulatory  Flexibility  Act 
 71.  The  Regulatory  Flexibility  Act  (RFA)  150  requires  that  an  agency  prepare  a  regulatory  flexibility  analysis  for  notice  and  comment  rulemakings,  unless  the  agency  certifies  that  "the  rule 

 will  not,  if  promulgated,  have  a  significant  economic  impact  on  a  substantial  number  of  small  entities.  151  Accordingly,  we  have  prepared  a  Final  Regulatory  Flexibility  Certification  concerning 
 the  impact  of  the  rule  changes  contained  in  the  Second  R&  O  on  small  entities.  The  Final  Regulatory  Flexibility  Certification  is  set  forth  in  Appendix  B.  Additionally,  we  have  prepared 
 an  Initial  Regulatory  Flexibility  Analysis  concerning  the  impact  on  small  entities  of  the  policies  and  rules  proposed  by  this  FNPRM.  The  Initial  Regulatory  Flexibility  Analysis  is  set  forth  in 
 Appendix  C. 
 C.  Paperwork  Reduction  Act 
 72.  This  Further  Notice  does  not  contain  either  a  proposed  or  modified  information  collection.  152 

 D.  Comment  Dates 
 73.  Pursuant  to  Sections  1.415  and  1.419  of  our  Rules,  interested  parties  may  file  comments  on  or  before  [90  days  after  Federal  Register  publication]  and  reply  comments  on  or 

 before  [120  days  after  Federal  Register  publication].  153  Comments  may  be  filed  using  the  Commission's  Electronic  Filing  System  (ECFS)  or  by  filing  paper  copies.  154 

 74.  Comments  filed  through  the  ECFS  can  be  sent  as  an  electronic  file  via  the  Internet  to  <http://  www.  fcc.  gov/  e-  file/  ecfs.  html>.  Generally,  only  one  copy  of  an  electronic  submission 

 149  See  generally  47  C.  F.  R.    1.1202,  1.1203,  1.1206(  a). 
 150  See  5  U.  S.  C.    603.  The  RFA,  see  5  U.  S.  C.    601    612,  has  been  amended  by  the  Small  Business  Regulatory 
 Enforcement  Fairness  Act  of  1996  (SBREFA),  Pub.  L.  No.  104-  121,  Title  II,  110  Stat.  857  (1996). 
 151  5  U.  S.  C.    605(  b). 

 152  At  this  time  we  do  not  have  a  sufficient  record  to  address  application  filing  procedures. 
 153  47  C.  F.  R.    1.415,  1.419. 
 154  See  Electronic  Filing  of  Documents  in  Rulemaking  Proceedings,  GC  Docket  No.  97-  113,  Report  and  Order,  13 
 FCC  Rcd  11322  (1998). 
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 must  be  filed.  If  multiple  docket  or  rulemaking  numbers  appear  in  the  caption  of  this  proceeding,  however,  then  commenters  must  transmit  one  electronic  copy  of  the  comments  to 
 each  docket  or  rulemaking  number  referenced  in  the  caption.  In  completing  the  transmittal  screen,  commenters  should  include  their  full  name,  Postal  Service  mailing  address,  and  the 
 applicable  docket  or  rulemaking  number.  Parties  may  also  submit  an  electronic  comment  by  Internet  e-  mail.  To  obtain  filing  instructions  for  e-  mail  comments,  commenters  should  send  an 
 e-  mail  to  ecfs@  fcc.  gov,  and  should  include  the  following  words  in  the  body  of  the  message,  "get  form  <your  e-  mail  address>."  A  sample  form  and  directions  will  be  sent  in  reply. 

 75.  Parties  who  choose  to  file  by  paper  must  file  an  original  and  four  copies  of  each  filing.  If  more  than  one  docket  or  rulemaking  number  appears  in  the  caption  of  this  proceeding, 
 commenters  must  submit  two  additional  copies  for  each  additional  docket  or  rulemaking  number.  All  filings  must  be  sent  to  the  Commission's  Acting  Secretary,  William  F.  Caton,  Office  of  the 
 Secretary,  Federal  Communications  Commission,  445  12th  St.,  S.  W.,  Room  TW-  A325,  Washington,  D.  C.  20554. 

 76.  Parties  who  choose  to  file  by  paper  should  also  submit  their  comments  on  diskette.  These  diskettes  should  be  submitted  to:  Genevieve  Augustin,  Esq.,  Public  Safety  and  Private 
 Wireless  Division,  Wireless  Telecommunications  Bureau,  445  12th  St.,  S.  W.,  Room  3-  A431,  Washington,  D.  C.  20554.  Such  a  submission  should  be  on  a  3.5-  inch  diskette  formatted  in  an 
 IBM  compatible  format  using  Microsoft  Word  97  or  compatible  software.  The  diskette  should  be  accompanied  by  a  cover  letter  and  should  be  submitted  in  "read  only"  mode.  The  diskette 
 should  be  clearly  labeled  with  the  commenter's  name,  proceeding  (including  the  lead  docket  number  in  this  case,  WT  Docket  No.  00-  32),  type  of  pleading  (comment  or  reply  comment),  date 
 of  submission,  and  the  name  of  the  electronic  file  on  the  diskette.  The  label  should  also  include  the  following  phrase  "Disk  Copy  -  Not  an  Original."  Each  diskette  should  contain  only  one 
 party's  pleadings,  preferably  in  a  single  electronic  file.  In  addition,  commenters  should  send  diskette  copies  to  the  Commission's  copy  contractor,  Qualex  International,  Inc.,  445  12th  St., 
 S.  W.,  Room  CY-  B402,  Washington,  D.  C.  20554. 
 E.  Ordering  Clauses 
 77.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  Sections  4(  i),  303(  r),  and  403  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  303(  r),  403,  this  Report  and 

 Order  and  Further  Notice  of  Proposed  Rule  Making  IS  HEREBY  ADOPTED. 
 78.  IT  IS  FURTHER  ORDERED  that  Part  2  of  the  Commission's  rules  IS  AMENDED  as  specified  in  Appendix  A  and  such  rule  amendments  shall  be  effective  30  days  after  publication  in 

 the  Federal  Register. 
 79.  IT  IS  FURTHER  ORDERED  that  pursuant  to  section  4(  i)  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  that  Part  26  of  the  Commission's  rules,  47  C.  F.  R.  Part 

 26,  is  no  longer  in  the  public  interest,  and  therefore  is  REMOVED,  effective  30  days  after  publication  of  the  text  thereof  in  the  Federal  Register. 

 80.  IT  IS  FURTHER  ORDERED  that  the  Commission's  Consumer  Information  Bureau,  Reference  Information  Center,  SHALL  SEND  a  copy  of  this  Further  Notice  of  Proposed  Rule 
 Making,  including  the  Final  Regulatory  Flexibility  Certification  and  Initial  Regulatory  Flexibility  Analysis,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration. 

 F.  Further  Information 
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 81.  For  further  information,  contact  Genevieve  Augustin,  Esq.,  gaugusti@  fcc.  gov,  or  Roberto  Mussenden,  Esq.,  rmussend@  fcc.  gov,  Policy  and  Rules  Branch,  Public  Safety  and 
 Private  Wireless  Division,  Wireless  Telecommunications  Bureau,  (202)  418-  0680,  or  TTY  (202)  418-  7233. 
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 82.  Alternative  formats  (computer  diskette,  large  print,  audiocassette  and  Braille)  are  available  to  persons  with  disabilities  by  contacting  Brian  Millin  at  (202)  418-  0260,  TTY  (202) 
 418-  2555,  or  at  bmillin@  fcc.  gov.  This  Further  Notice  of  Proposed  Rule  Making  can  also  be  downloaded  at:  http://  www.  fcc.  gov/  dtf/. 

 FEDERAL  COMMUNICATIONS  COMMISSION 

 William  F.  Caton  Acting  Secretary 
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 APPENDIX  A:  FINAL  RULES 
 Part  2  of  Title  47  of  the  Code  of  Federal  Regulations  is  amended  as  follows: 
 PART  2  --  FREQUENCY  ALLOCATIONS  AND  RADIO  TREATY  MATTERS;  GENERAL  RULES  AND  REGULATIONS 

 1.  The  authority  citation  for  Part  2  continues  to  read  as  follows: 
 AUTHORITY:  47  U.  S.  C.  154,  302(  a),  303,  and  336,  unless  otherwise  noted. 
 2.  Section  2.106,  the  Table  of  Frequency  Allocations,  is  amended  as  follows: 
 a.  Revise  page  55. 
 b.  In  the  list  of  United  States  (US)  Footnotes,  remove  footnote  US257  and  revise  footnote  US311. 
 c.  In  the  list  of  Government  (G)  Footnotes,  revise  footnote  G122. 
 The  revisions  and  additions  read  as  follows: 
   2.106  Table  of  Frequency  Allocations. 
 *  *  *  *  * 
37
 38 
 3700-  5650 

 MHz 
 (SHF) 

 Page 
 55 

 International 
 Table 

 United 
 States 
 Table 

 Region 
 1 

 Region 
 2 

 Region 
 3 

 Federal 
 Government 

 Non-  Federal 
 Government 

 FCC 
 Rule 
 Part(  s) 

 See 
 previous 

 page 
 for 

 3600- 
 4200 
 MHz 

 3700-  4200  FIXED  FIXED- 
 SATELLITE 

 (space-  to- 
 Earth) 

 MOBILE 
 except 
 aeronautical 

 mobile 

 3700-  4200 
 3700-  4200  FIXED 
 NG41 
 FIXED- 
 SATELLITE  (space-  to-  Earth) 

 International 
 Fixed 
 (23) 

 Satellite  Communications 
 (25) 
 Fixed 
 Microwave 

 (101) 

 4200-  4400  AERONAUTICAL 
 RADIONAVIGATION 

 S5.438 

 S5.437 
 S5.439 
 S5.440 

 4200-  4400  AERONAUTICAL 
 RADIONAVIGATION  S5.440  US261 

 Aviation 
 (87) 

 4400-  4500  FIXED  MOBILE 
 4400-  4500  FIXED  MOBILE 
 4400-  4500 

 4500-  4800  FIXED  FIXED- 
 SATELLITE 

 (space-  to- 
 Earth) 
 S5.441 

 MOBILE 

 4500-  4800  FIXED  MOBILE  US245 
 4500-  4800  FIXED- 
 SATELLITE  (space-  to-  Earth)  792A  US245 

 4800-  4990  FIXED  MOBILE 
 S5.442 
 Radio 
 astronomy 

 4800-  4940  FIXED  MOBILE  S5.149 
 US203 

 4800-  4940  S5.149 
 US203 

 S5.149 
 S5.339 
 S5.443 

 4940-  4990  S5.149 
 S5.339 
 US311 
 G122 
 4940-  4990  FIXED  MOBILE 

 except 
 aeronautical 

 mobile  S5.149 
 S5.339 
 US311 

 Private 
 Land 
 Mobile 

 (90) 

 Fixed 
 Microwave 

 (101) 

 4990-  5000  FIXED  MOBILE 
 except 
 aeronautical 

 mobile 

 RADIO 
 ASTRONOMY  Space  research  (passive)  S5.149 

 4990-  5000  RADIO 
 ASTRONOMY 

 US74 

 Space 
 research 

 (passive) 

 US246 

 5000-  5150  AERONAUTICAL 
 RADIONAVIGATION 

 5000-  5250  AERONAUTICAL 
 RADIO- 
 NAVIGATION 
 US260 

 5000-  5150  AERONAUTICAL 

 RADIO- 
 NAVIGATION 
 US260 
 S5.367 
 S5.444 
 S5.444A 

 Satellite  Communications 

 (25) 
 Aviation 
 (87) 
38
 39 
 S5.367 
 S5.444 
 S5.444A 

 US211 
 US344 
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 *  *  *  *  * 
 UNITED  STATES  (US)  FOOTNOTES 
 *  *  *  *  * 
 US311  Radio  astronomy  observations  may  be  made  in  the  bands  1350-  1400  MHz  and  4950-  4990  MHz  on  an  unprotected  basis  at  the  following  radio  astronomy  observatories: 

 Allen  Telescope  Array,  Hat  Creek,  California  Rectangle  between  latitudes  40  00'  N  and  42  00'  N  and  between  longitudes  120  15'  W  and  122  15'  W. 
 NASA  Goldstone  Deep  Space  Communications  Complex,  Goldstone,  California  80  kilometers  (50  mile)  radius  centered  on  latitude  35  18'  N,  longitude  116  54'  W. 
 National  Astronomy  and  Ionosphere  Center,  Arecibo,  Puerto  Rico  Rectangle  between  latitudes  17  30'  N  and  19  00'  N  and  between  longitudes  65  10'  W  and  68  00'  W. 
 National  Radio  Astronomy  Observatory,  Socorro,  New  Mexico  Rectangle  between  latitudes  32  30'  N  and  35  30'  N  and  between  longitudes  106  00'  W  and  109  00'  W. 
 National  Radio  Astronomy  Observatory,  Green  Bank,  West  Virginia  Rectangle  between  latitudes  37  30'  N  and  39  15'  N  and  between  longitudes  78  30'  W  and  80  30'  W. 
 80  kilometers  (50  mile)  radius  centered  on:  National  Radio  Astronomy  Observatory,  Very  Long  Baseline  Array  Stations  Latitude  (North)  Longitude  (West) 
 Brewster,  WA  48  08'  119  41'  Fort  Davis,  TX  30  38'  103  57' 
 Hancock,  NH  42  56'  71  59'  Kitt  Peak,  AZ  31  57'  111  37' 
 Los  Alamos,  NM  35  47'  106  15'  Mauna  Kea,  HI  19  48'  155  27' 
 North  Liberty,  IA  41  46'  91  34'  Owens  Valley,  CA  37  14'  118  17' 
 Pie  Town,  NM  34  18'  108  07'  Saint  Croix,  VI  17  46'  64  35' 
 Owens  Valley  Radio  Observatory,  Big  Pine,  California  Two  contiguous  rectangles,  one  between  latitudes  36  00'  N  and  37  00'  N  and  between  longitudes  117  40'  W  and 
 118  30'  W  and  the  second  between  latitudes  37  00'  N  and  38  00'  N  and  between  longitudes  118  00'  W  and 
 118  50'  W. 

 Every  practicable  effort  will  be  made  to  avoid  the  assignment  of  frequencies  in  the  bands  1350-  1400  MHz  and  4950-  4990  MHz  to  stations  in  the  fixed  and  mobile  services  that  could  interfere 
 with  radio  astronomy  observations  within  the  geographic  areas  given  above.  In  addition,  every  practicable  effort  will  be  made  to  avoid  assignment  of  frequencies  in  these  bands  to  stations  in 
 the  aeronautical  mobile  service  which  operate  outside  of  those  geographic  areas,  but  which  may  cause  harmful  interference  to  the  listed  observatories.  Should  such  assignments  result  in  harmful 
 interference  to  these  observatories,  the  situation  will  be  remedied  to  the  extent  practicable. 
 *  *  *  *  * 
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 GOVERNMENT  (G)  FOOTNOTES 
 *  *  *  *  * 
 G122  In  the  bands  2390-  2400  MHz,  2402-  2417  MHz,  and  4940-  4990  MHz,  Government  operations  may  be  authorized  on  a  non-  interference  basis  to  authorized  non-  Government 

 operations,  but  shall  not  hinder  the  implementation  of  any  non-  Government  operations. 
 *  *  *  *  * 

 Under  the  authority  47  U.  S.  C.    154,  amend  47  C.  F.  R.  chapter  I  by  removing  Part  26. 
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 APPENDIX  B:  FINAL  REGULATORY  FLEXIBILITY  CERTIFICATION  (SECOND  REPORT  AND  ORDER) 
 The  Regulatory  Flexibility  Act  (RFA)  155  requires  that  a  regulatory  flexibility  analysis  be  prepared  for  notice  and  comment  rulemaking  proceedings,  unless  the  agency  certifies  that  "the 
 rule  will  not,  if  promulgated,  have  a  significant  economic  impact  on  a  substantial  number  of  small  entities."  The  RFA  generally  defines  "small  entity"  as  having  the  same  meaning  as  the 
 term  "small  business,"  "small  organization,"  and  "small  governmental  jurisdiction."  In  addition,  the  term  "small  business"  has  the  same  meaning  as  the  term  "small  business  concern"  under  the 
 Small  Business  Act.  A  small  business  concern  is  one  which:  (1)  is  independently  owned  and  operated;  (2)  is  not  dominant  in  its  field  of  operation;  and  (3)  satisfies  any  additional  criteria 
 established  by  the  Small  Business  Administration  (SBA). 
 This  Second  R&  O  allocates  the  band  4940-  4990  MHz  to  the  fixed  and  mobile,  except  aeronautical  mobile,  services  on  a  co-  primary  basis,  to  be  used  exclusively  by  public  safety.  This 
 allocation  will  thus  provide  public  safety  users  with  additional  spectrum  to  support  new  broadband  applications  such  as  high-  speed  digital  technologies  and  wireless  local  area  networks 
 for  incident  scene  management,  dispatch  operations,  and  vehicular/  personal  communications,  and  thus  enable  public  safety  providers  to  more  effectively,  efficiently  and  safely  serve  their 
 communities.  In  addition,  our  action  may  affect  indirectly  equipment  manufacturers  by  ultimately  potentially  increasing  the  demand  for  their  goods  and  services.  Both  of  these  effects 
 are  positive  benefits,  with  no  associated  additional  compliance  burdens.  Also,  an  indirect  affect  of  this  allocation  on  some  small  entities  is  the  potential  enhancement  of  their  protection  from 
 crime  and  hazards,  and  of  their  receipt  of  emergency  services. 
 Therefore,  we  certify  that  the  requirements  of  this  Second  R&  O  will  not  have  a  significant  economic  impact  on  a  substantial  number  of  small  entities.  The  Commission  will 
 send  a  copy  of  the  Second  R&  O,  including  a  copy  of  this  final  certification,  in  a  report  to  Congress  pursuant  to  the  Congressional  Review  Act,  see  U.  S.  C.    801(  a)(  1)(  A).  In  addition,  the 
 Second  R&  O  and  this  certification  will  be  sent  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration,  and  will  be  published  in  the  Federal  Register.  See  U.  S.  C.    605(  b). 

 155  See  5  U.  S.  C.    603.  The  RFA,  see  5  U.  S.  C.    601    612,  has  been  amended  by  the  Small  Business  Regulatory 
 Enforcement  Fairness  Act  of  1996  (SBREFA),  Pub.  L.  No.  104-  121,  Title  II,  110  Stat.  857  (1996). 
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 APPENDIX  C:  INITIAL  REGULATORY  FLEXIBILITY  ANALYSIS  (FURTHER  NOTICE  OF  PROPOSED  RULEMAKING) 
 As  required  by  the  Regulatory  Flexibility  Act  of  1980,  as  amended  (RFA),  156  the  Commission  has  prepared  this  present  Initial  Regulatory  Flexibility  Analysis  (IRFA)  of  the 
 possible  significant  economic  impact  on  a  substantial  number  of  small  entities  by  the  policies  and  rules  proposed  in  this  FNPRM.  Written  public  comments  are  requested  on  this  IRFA. 
 Comments  must  be  identified  as  responses  to  the  IRFA  and  must  be  filed  by  the  deadlines  for  comments  on  the  FNPRM  provided  in  paragraph  72  of  the  item.  The  Commission  will  send  a 
 copy  of  the  FNPRM,  including  this  IRFA,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration  (SBA).  157  In  addition,  the  FNPRM  and  IRFA  (or  summaries  thereof) 
 will  be  published  in  the  Federal  Register.  158 
 A.  Need  for,  and  Objectives  of,  the  Proposed  Rules 
 In  this  FNPRM,  we  solicit  comment  on:  the  establishment  of  licensing  and  service  rules  for  the  4.9  GHz  band;  159  defining  eligibility  to  use  the  band;  160  segmentation  or  channeling  plans 
 for  use  of  the  band;  161  ways  to  mitigate  interference  on  the  4.9  GHz  band  from  adjacent  band  U.  S.  Navy  operations;  162  and  ways  to  utilize  the  band  in  a  manner  that  will  not  interfere  with 
 adjacent  band  radio  astronomy  operations.  163 
 Our  objectives  for  the  Notice  are  to:  (1)  set  the  framework  for  the  establishment  of  a  new  public  safety  radio  service  in  the  4.9  GHz  band;  (2)  encourage  flexible  and  efficient  use  of  the 
 4.9  GHz  spectrum;  (3)  encourage  innovative  applications  in  support  of  public  safety;  and  (4) 

 156  See  5  U.  S.  C.    603.  The  RFA,  see  5  U.  S.  C.    601    612,  has  been  amended  by  the  Small  Business  Regulatory 
 Enforcement  Fairness  Act  of  1996  (SBREFA),  Pub.  L.  No.  104-  121,  Title  II,  110  Stat.  857  (1996). 
 157  See  5  U.  S.  C.    603(  a). 

 158  Id. 
 159  See  Sections  IV-  A  through  D,  supra. 
 160  See  Section  IV-  A,  supra. 
 161  See  Section  IV-  C,  supra. 
 162  See  Section  IV-  E,  supra. 
 163  See    62,  supra. 
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 improve  access  to  communications  and  state  of  the  art  first  responder  tools  for  entities  engaged  in  public  safety  operations.  The  Commission  also  seeks  to  ensure  a  regulatory  plan  for  the  4.9 
 GHz  band  that  will  allow  for  the  efficient  licensing  and  use  of  the  band,  and  eliminate  unnecessary  regulatory  burdens. 

 B.  Legal  Basis 
 The  proposed  action  is  authorized  under  Sections  1,  4(  i),  7,  10,  201,  202,  208,  214,  301,  303, 
 308,  309(  j),  and  310  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    151,  154(  i),  157,  160,  201,  202,  208,  214,  301,  303,  308,  309(  j),  310. 

 C.  Description  and  Estimate  of  the  Number  of  Small  Entities  to  Which  the  Proposed  Rules  Will  Apply 
 The  RFA  directs  agencies  to  provide  a  description  of,  and  where  feasible,  an  estimate  of  the  number  of  small  entities  that  may  be  affected  by  the  proposed  rules,  if  adopted.  164  The  RFA 
 generally  defines  the  term  small  entity  as  having  the  same  meaning  as  the  terms  small  business,  small  organization,  and  small  governmental  jurisdiction.  165  In  addition,  the  term 
 small  business  has  the  same  meaning  as  the  term  small  business  concern  under  the  Small  Business  Act.  166  A  small  business  concern  is  one  which:  (1)  is  independently  owned  and 
 operated;  (2)  is  not  dominant  in  its  field  of  operation;  and  (3)  satisfies  any  additional  criteria  established  by  the  Small  Business  Administration  (SBA).  167 

 Nationwide,  as  of  1992,  there  were  approximately  275,801  small  organizations.  168  "Small  governmental  jurisdiction"  generally  means  "governments  of  cities,  counties,  towns, 
 townships,  villages,  school  districts,  or  special  districts,  with  a  population  of  less  than  50,000."  169  As  of  1992,  there  were  approximately  85,006  such  jurisdictions  in  the  United  States.  170  This 

 164  5  U.  S.  C.    603(  b)(  3). 
 165  5  U.  S.  C.    601(  6). 
 166  5  U.  S.  C.    601(  3)  (incorporating  by  reference  the  definition  of  small-  business  concern  in  the  Small  Business 
 Act,  15  U.  S.  C.    632).  Pursuant  to  5  U.  S.  C.    601(  3),  the  statutory  definition  of  a  small  business  applies  unless  an  agency,  after  consultation  with  the  Office  of  Advocacy  of  the  Small  Business  Administration  and  after 

 opportunity  for  public  comment,  establishes  one  or  more  definitions  of  such  term  which  are  appropriate  to  the  activities  of  the  agency  and  publishes  such  definition(  s)  in  the  Federal  Register. 

 167  15  U.  S.  C.    632. 
 168  1992  Economic  Census,  U.  S.  Bureau  of  the  Census,  Table  6  (special  tabulation  of  data  under  contract  to  Office 
 of  Advocacy  of  the  U.  S.  Small  Business  Administration. 
 169  5  U.  S.  C.    601(  5). 

 170  U.  S.  Department  of  Commerce,  Bureau  of  the  Census,  1992  Census  of  Governments. 
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 number  includes  38,978  counties,  cities,  and  towns;  of  these,  37,566,  or  ninety-  six  percent,  have  populations  of  fewer  than  50,000.  171  The  Census  Bureau  estimates  that  this  ratio  is 
 approximately  accurate  for  all  governmental  entities.  Thus,  of  the  85,006  governmental  entities,  we  estimate  that  81,600  (ninety-  one  percent)  are  small  entities. 

 The  proposed  radio  service  may  affect  users  of  public  safety  radio  services,  the  extent  of  which  is  not  defined  in  this  proceeding.  This  service  may  also  affect  manufacturers  of  radio 
 communications  equipment.  An  analysis  of  the  number  of  small  businesses  that  may  be  affected  follows.  We  also  note  that  according  to  SBA  data,  there  are  approximately  4.44  million  small 
 businesses  nationwide. 
 Public  Safety  Radio  Services  and  Governmental  entities.  As  a  general  matter,  Public  Safety  Radio  Services  include  police,  fire,  local  government,  forestry  conservation,  highway  maintenance, 
 and  emergency  medical  services.  172  Non-  Federal  governmental  entities,  as  well  as  private  businesses,  are  potential  licensees  for  these  services  in  this  proceeding.  Neither  the  Commission 
 nor  the  SBA  has  developed  a  definition  of  small  businesses  directed  specifically  toward  public  service  licensees.  Therefore,  the  applicable  definition  of  small  business  is  the  definition  under 
 the  SBA  rules  applicable  to  Cellular  and  other  Wireless  Telecommunications.  This  provides  that  a  small  business  is  a  radiotelephone  company  employing  no  more  than  1,500  persons.  173 
 According  to  the  Bureau  of  the  Census,  only  twelve  radiotelephone  firms  from  a  total  of  1,178  such  firms  which  operated  during  1992  had  1,000  or  more  employees.  174  Therefore,  even  if  all 
 twelve  of  these  firms  were  public  safety  licensees,  nearly  all  would  be  small  businesses  under  the  SBA's  definition,  if  independently  owned  and  operated. 

 171  Id. 
 172  See  subparts  A  and  B  of  Part  90  of  the  Commissions  Rules,  47  C.  F.  R.    90.1-  90.22.  Police  licensees  include 
 26,608  licensees  that  serve  state,  county,  and  municipal  enforcement  through  telephony  (voice),  telegraphy  (code),  and  teletype  and  facsimile  (printed  material).  Fire  licensees  include  22,677  licensees  comprised  of  private 

 volunteer  or  professional  fire  companies,  as  well  as  units  under  governmental  control.  Public  Safety  Radio  Pool  licensees  also  include  40,512  licensees  that  are  state,  county,  or  municipal  entities  that  use  radio  for  official 
 purposes.  There  are  also  7,325  forestry  service  licensees  comprised  of  licensees  from  state  departments  of  conservation  and  private  forest  organizations  that  set  up  communications  networks  among  fire  lookout  towers  and 
 ground  crews.  The  9,480  state  and  local  governments  are  highway  maintenance  licensees  that  provide  emergency  and  routine  communications  to  aid  other  public  safety  services  to  keep  main  roads  safe  for  vehicular  traffic. 
 Emergency  medical  licensees  (1,460)  use  these  channels  for  emergency  medical  service  communications  related  to  the  delivery  of  emergency  medical  treatment.  Another  19,478  licensees  include  medical  services,  rescue 
 organizations,  veterinarians,  handicapped  persons,  disaster  relief  organizations,  school  buses,  beach  patrols,  establishments  in  isolated  areas,  communications  standby  facilities,  and  emergency  repair  of  public 
 communications  facilities. 
 173  13  C.  F.  R.  121.201,  NAICS  code  513322. 

 174  Economics  and  Statistics  Administration,  Bureau  of  Census,  U.  S.  Department  of  Commerce,  1992  Census  of 
 Transportation,  Communications  and  Utilities,  Establishment  and  Firm  Size,  Series  UC92-  S-  1,  at  Table  5,  SIC  code  4812. 
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 Equipment  Manufacturers.  We  anticipate  that  at  least  six  radio  equipment  manufacturers  will  be  affected  by  our  decisions  in  this  proceeding.  According  to  the  Small  Business 
 Administrations  regulations,  a  Radio  and  Television  Broadcasting  and  Wireless  Communications  Equipment  Manufacturing  businesses  must  have  750  or  fewer  employees  in  order  to  qualify  as  a 
 small  business  concern.  175  Census  Bureau  data  indicate  that  there  are  858  U.  S.  firms  that  manufacture  radio  and  television  broadcasting  and  communications  equipment,  and  that  778  of 
 these  firms  have  fewer  than  750  employees  and  would  therefore  be  classified  as  small  entities.  176  We  do  not  have  information  that  indicates  how  many  of  the  six  radio  equipment  manufacturers 
 associated  with  this  proceeding  are  among  these  778  firms.  Motorola  and  Ericsson,  however,  are  major,  nationwide  radio  equipment  manufacturers,  and  thus,  we  conclude  that  they  would  not 
 qualify  as  small  businesses. 
 We  invite  comment  on  this  analysis. 
 D.  Description  of  Projected  Reporting,  Recordkeeping,  and  Other  Compliance  Requirements  for  Small  Entities 

 We  note  that  in  this  FNPRM,  we  propose  a  variety  of  licensing  approaches  we  could  employ  on  this  band,  but  formulate  no  tentative  conclusions  on  this  matter.  Possible 
 requirements  under  consideration  in  this  Further  Notice  include:  recordkeeping  and  reporting  requirements,  and/  or  third-  party  consultation,  if  state  licensing  is  ultimately  utilized;  compliance 
 with  part  101  of  our  Rules,  in  the  event  that  fixed  operations  are  licensed  on  the  4.9  GHz  band;  compliance  with  part  90  of  our  Rules,  if  mobile  operations  are  licensed  individually;  compliance 
 with  part  27  of  our  Rules,  if  4.9  GHz  band  operations  are  licensed  pursuant  thereto;  and  compliance  with  part  15  of  our  Rules,  in  the  event  that  mobile  operations  on  the  4.9  GHz  band 
 are  unlicensed.  177  Applicants  and  licensees  would  possibly  be  required  to  follow  current  service  rules  for  such  approaches,  if  ultimately  chosen. 

 E.  Steps  Taken  to  Minimize  the  Significant  Economic  Impact  on  Small  Entities,  and  Significant  Alternatives  Considered 
 The  RFA  requires  an  agency  to  describe  any  significant,  specifically  small  business,  alternatives  that  it  has  considered  in  reaching  its  proposed  approach,  which  may  include  the 
 following  four  alternatives  (among  others):  (  1)  the  establishment  of  differing  compliance  or  reporting  requirements  or  timetables  that  take  into  account  the  resources  available  to  small 
 entities;  (2)  the  clarification,  consolidation,  or  simplification  of  compliance  and  reporting 
 175  13  C.  F.  R.    121.201,  NAICS  code  334220. 
 176  U.  S.  Dept  of  Commerce,  1992  Census  of  Transportation,  Communications  and  Utilities  (issued  May  1995), 
 SIC  category  3663. 
 177  See  Section  IV-  D,  supra. 
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 requirements  under  the  rule  for  such  small  entities;  (3)  the  use  of  performance  rather  than  design  standards;  and  (4)  an  exemption  from  coverage  of  the  rule,  or  any  part  thereof,  for  such  small 
 entities.  178 
 The  possible  regulatory  burdens  we  have  described  above,  such  as  recordkeeping,  recording,  and  filing  requirements,  if  implemented,  are  necessary  in  order  to  ensure  that  the 
 public  safety  operations  benefit  from  the  innovative  new  services  described  herein,  in  a  prompt  and  efficient  manner.  We  will  continue  to  examine  alternatives  in  the  future  with  the  objectives 
 of  eliminating  unnecessary  regulations  and  minimizing  any  significant  economic  impact  on  small  entities.  We  seek  comment  on  significant  alternatives  commenters  believe  should  be  adopted  in 
 this  proceeding. 
 F.  Federal  Rules  that  May  Duplicate,  Overlap,  or  Conflict  with  the  Proposed  Rules 
 None. 

 APPENDIX  D:  GEOGRAPHIC  AREAS  WHERE  DEPARTMENT  OF  DEFENSE  COOPERATIVE  ENGAGEMENT  CAPABILITY  (CEC)  WILL  BE  USED  FOR 
 TRAINING  IN  ITS  HIGH  POWER,  FULL  BANDWIDTH  MODE 

 CEC  TRAINING  AREA  1 
 Training  Area  1  supports  Atlantic  Coast  Exercises,  and  extends  inland  from,  seaward  from,  and  along  the  low  water  mark  of  a  portion  of  the  Mid-  Atlantic  and  South-  Atlantic  coastline,  and 
 includes  separate  areas  in  Maryland  (MD)  and  Virginia  (VA). 
 INLAND  PORTION:  The  inland  portion  of  Training  Area  1  extends  westward  from  the  low  water  mark  of  the  Atlantic  Ocean,  and  includes  all  of  the  area  contained  within  the  boundaries  of 
 the  following  counties  and  within  the  other  identified  areas  in  the  indicated  state: 
 Delaware:  Sussex  County  Maryland:  Wicomico,  Somerset,  and  Worcester  Counties 

 178  5  U.  S.  C.    603(  c)(  1)    (c)(  4). 
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 Virginia:  Accomack  and  Northampton  Counties;  all  of  the  area  east  of  the  eastern  most  boundaries  of  Isle  of  Wight  and  Southampton  Counties  (includes  the 
 cities  of  Suffolk,  Portsmouth,  Chesapeake,  Virginia  Beach,  Norfolk,  and  others) 
 North  Carolina  (NC):  Currituck,  Camden,  Pasquotank,  Perquimans,  Tyrell,  Dare,  Hyde,  Craven,  Pamlico,  Jones,  Carteret,  Onslow,  Pender,  New  Hanover,  and 
 Brunswick  Counties 
 Exercises  within  the  above  boundaries  of  the  inland  portion  of  Training  Area  1  will  include  aircraft  operating  at  altitudes  to  30  thousand  feet  (kft),  mobile  ground  based  equipment,  and 
 permanent  ground  based  equipment.  Aircraft  and  mobile  ground  based  equipment  can  be  positioned  anywhere  in  the  defined  area.  Permanent  ground  based  terminals  are  now  located  at 
 Wallops  Island,  VA;  Eastville,  VA;  and  Dam  Neck  Fleet  Combat  Training  Center-  Atlantic,  VA.  Other  permanent  ground  based  terminals  will  be  added  within  the  above  defined  area  as 
 required.  Other  specific  sites  within  the  above  defined  area  include,  but  are  not  limited  to:  Norfolk  Naval  Base,  VA;  Norfolk  Naval  Air  Station  (NAS),  VA;  Little  Creek  Naval  Amphibious 
 Base,  VA;  Oceana  NAS,  VA;  Marine  Corps  Bogue  Field,  NC;  and  Cherry  Point  Marine  Corps  Air  Station  (MCAS),  NC. 

 Permanent  ground  based  terminals  not  within  the  above  defined  area  operate  within  the  legal  boundaries  of  the  Naval  Surface  Warfare  Center  at  Dahlgren,  VA;  and  the  Patuxent  River  Naval 
 Air  Warfare  Center,  MD.  A  permanent  ground  based  terminal  also  operates  within  a  5  nm  radius  of  Reedville,  VA. 

 SEAWARD  PORTION:  The  seaward  portion  of  Training  Area  1  is  bounded  on  the  north  by  the  line  that  extends  eastward  from  the  low  water  mark  of  the  Atlantic  Ocean  along  38.914055  north 
 decimal  degrees  of  latitude.  The  western  boundary  of  the  seaward  portion  of  Training  Area  1  begins  at  the  intersection  of  the  low  water  mark  of  the  Atlantic  Ocean  with  38.914055  north 
 decimal  degrees  of  latitude,  extends  generally  southward  and  southwestward  along  the  low  water  mark  of  the  Atlantic  Ocean  to  the  intersection  of  the  low  water  mark  with  78.660000  west 
 decimal  degrees  of  longitude,  and  then  continues  southward  along  78.660000  west  decimal  degrees  of  longitude.  There  is  no  eastern  or  southern  boundary  of  the  seaward  portion  of 
 Training  Area  1.  Exercises  in  the  seaward  portion  of  Training  Area  1  will  include  aircraft  operating  at  altitudes  to  30  kft  and  surface  ships.  These  assets  can  be  positioned  anywhere 
 within  the  defined  area. 

 CEC  TRAINING  AREA  2 
 Training  Area  2  supports  Gulf  Coast  exercises.  Training  Area  2  extends  inland  from,  seaward  from,  and  along  the  low  water  mark  of  a  portion  of  the  Florida  (FL),  Alabama  (AL),  and 
 Mississippi  (MS)  Gulf  coastlines,  and  includes  a  separate  area  near  Huntsville,  AL  and  a  separate  area  encompassing  Pinellas  County,  FL. 
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 INLAND  PORTION:  The  inland  portion  of  Training  Area  2  extends  northward  from  the  low  water  mark  of  the  Gulf  of  Mexico,  and  includes  all  of  the  areas  contained  within  the  boundaries 
 of  the  following  counties  in  the  indicated  state: 
 Florida:  Bay,  Washington,  Holmes,  Walton,  Okaloosa,  Santa  Rosa,  and  Escambia  Alabama:  Baldwin  and  Mobile 
 Mississippi:  George,  Pearl  River,  Stone,  Jackson,  Harrison,  and  Hancock 
 Exercises  within  the  boundaries  of  the  inland  portion  of  Training  Area  2  identified  above  will  include  aircraft  operating  at  altitudes  to  30  kft,  mobile  ground  based  equipment,  and  permanent 
 ground  based  equipment.  Aircraft  and  mobile  ground  based  equipment  can  be  positioned  anywhere  within  the  area  defined  above.  Permanent  ground  based  terminals  will  be  added 
 within  the  above  defined  area  as  required.  Specific  sites  within  the  area  identified  above  include,  but  are  not  limited  to,  Pensacola  NAS,  FL;  Eglin  Air  Force  Base  (AFB),  FL;  and  Tyndall  AFB, 
 FL. 
 Redstone  Arsenal,  located  in  Madison  County,  AL  is  included  in  Training  Area  2.  Mobile  and  ground  based  equipment  will  be  located  anywhere  within  the  legal  boundaries  of  Redstone 
 Arsenal.  Aircraft  operating  in  the  vicinity  of  Redstone  Arsenal  will  maintain  emissions  at  the  lower  defined  power  level  and  reduced  bandwidth. 

 Pinellas  County,  FL  is  included  in  Training  Area  2.  Mobile  and  ground  based  equipment  will  be  located  anywhere  within  the  legal  boundaries  of  Pinellas  County.  Permanent  ground  based 
 terminals  are  now  located  in  the  St.  Petersburg,  FL  metropolitan  area.  Aircraft  operating  above  Pinellas  County,  FL  will  maintain  emissions  at  the  lower  defined  power  level  and  reduced 
 bandwidth. 
 SEAWARD  PORTION:  The  seaward  portion  of  Training  Area  2  is  bounded  on  the  east  by  the  line  that  extends  southward  from  the  low  water  mark  of  the  Gulf  of  Mexico  along  85.400000 
 west  decimal  degrees  of  longitude.  The  northern  boundary  of  the  seaward  portion  of  Training  Area  2  begins  at  the  intersection  of  the  low  water  mark  of  the  Gulf  of  Mexico  with  85.400000 
 west  decimal  degrees  of  longitude,  extends  generally  westward  along  the  low  water  mark  of  the  Gulf  of  Mexico  to  the  intersection  of  the  low  water  mark  with  89.350000  west  decimal  degrees 
 of  longitude.  The  seaward  portion  of  Training  Area  2  is  bounded  on  the  west  by  the  line  that  extends  due  southeast  from  the  intersection  of  low  water  mark  of  the  Gulf  of  Mexico  with 
 89.350000  west  decimal  degrees  of  longitude.  There  is  no  southern  boundary  of  the  seaward  portion  of  Training  Area  2.  Exercises  in  the  seaward  portion  of  Training  Area  2  will  include 
 aircraft  operating  at  altitudes  to  30  kft  and  surface  ships.  These  assets  can  be  positioned  anywhere  within  the  defined  area. 

 CEC  TRAINING  AREA  3 
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 Training  Area  3  supports  Pacific  Coast  Exercises,  and  extends  inland  from,  seaward  from,  and  along  the  low  water  mark  of  a  portion  of  the  California  (CA)  mid  and  southern  Pacific  coastline. 
 INLAND  PORTION:  The  inland  portion  of  Training  Area  3  extends  eastward  from  the  low  water  mark  of  the  Pacific  Ocean,  and  includes  all  of  the  land  areas  contained  within  the  boundaries  of 
 Ventura  and  Santa  Barbara  Counties  in  the  state  of  California. 
 Exercises  within  the  boundaries  of  the  inland  portion  of  Training  Area  3  will  include  aircraft  operating  at  altitudes  to  30  kft,  mobile  ground  based  equipment,  and  permanent  ground  based 
 equipment.  Aircraft  and  mobile  ground  based  equipment  can  be  positioned  anywhere  within  the  area  identified  above.  Permanent  ground  based  terminals  will  be  added  within  the  area  identified 
 above  as  required.  Specific  sites  within  the  identified  area  include,  but  are  not  limited  to,  Vandenberg  AFB,  CA;  Point  Magu  NAS,  CA;  and  Naval  Surface  Warfare  Center  at  Port 
 Hueneme,  CA. 
 SEAWARD  PORTION:  The  seaward  portion  of  Training  Area  3  is  bounded  on  the  north  by  the  line  that  extends  westward  from  the  low  water  mark  of  the  Pacific  Ocean  along  34.960000  north 
 decimal  degrees  of  latitude.  The  eastern  boundary  of  the  seaward  portion  of  Training  Area  3  begins  at  the  intersection  of  the  low  water  mark  of  the  Pacific  Ocean  with  34.960000  north 
 decimal  degrees  of  latitude,  extends  generally  southward  and  eastward  along  the  low  water  mark  of  the  Pacific  Ocean  to  the  intersection  of  the  low  water  mark  with  119.000000  west  decimal 
 degrees  of  longitude,  then  continues  south  along  119.000000  west  decimal  degrees  of  longitude.  There  is  no  southern  or  western  boundary  of  the  seaward  portion  of  Training  Area  3.  Exercises 
 in  the  seaward  portion  of  Training  Area  3  will  include  aircraft  operating  at  altitudes  to  30  kft  and  surface  ships.  These  assets  can  be  positioned  anywhere  within  the  defined  area. 

 CEC  TRAINING  AREA  4 
 Training  Area  4  supports  Pacific  Coast  Exercises,  and  extends  inland  from,  seaward  from,  and  along  the  low  water  mark  of  a  portion  of  the  southern  California  Pacific  coastline. 

 INLAND  PORTION:  The  inland  portion  of  Training  Area  4  extends  eastward  from  the  low  water  mark  of  the  Pacific  Ocean,  and  includes  all  of  the  land  areas  contained  within  the  boundaries  of 
 San  Diego  County  in  the  state  of  California.  Exercises  within  the  boundaries  of  the  inland  portion  of  Training  Area  4  will  include  aircraft  operating  at  altitudes  to  30  kft,  mobile  ground 
 based  equipment,  and  permanent  ground  based  equipment.  Aircraft  and  mobile  ground  based  equipment  can  be  positioned  anywhere  within  the  area  identified  above.  Permanent  ground 
 based  terminals  will  be  added  within  the  area  defined  above  as  required.  Specific  sites  within  the  area  defined  above  include,  but  are  not  limited  to,  Camp  Pendleton  Marine  Corps  Base,  CA; 
 Miramar  NAS,  CA;  Coronado  Naval  Amphibious  Base,  CA;  U.  S.  Naval  Air  Station  North  Island,  CA;  and  at  the  Naval  facilities  located  on  the  Point  Loma,  CA  peninsula. 

 SEAWARD  PORTION:  The  seaward  portion  of  Training  Area  4  is  bounded  on  the  north  by  the  line  that  extends  westward  from  the  low  water  mark  of  the  Pacific  Ocean  along  33.450000  north 
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 decimal  degrees  of  latitude.  The  eastern  boundary  of  the  seaward  portion  of  Training  Area  4  begins  at  the  intersection  of  the  low  water  mark  of  the  Pacific  Ocean  with  33.450000  north 
 decimal  degrees  of  latitude,  extends  generally  southward  and  eastward  along  the  low  water  mark  of  the  Pacific  Ocean  to  the  intersection  of  the  low  water  mark  with  32.600000  north  decimal 
 degrees  of  latitude.  The  seaward  portion  of  Training  Area  4  is  bounded  on  the  south  by  the  line  that  extends  westward  from  the  low  water  mark  of  the  Pacific  Ocean  along  32.600000  north 
 decimal  degrees  of  latitude.  There  is  no  western  boundary  of  the  seaward  portion  of  Training  Area  4.  Exercises  in  the  seaward  portion  of  Training  Area  4  will  include  aircraft  operating  at 
 altitudes  to  30  kft  and  surface  ships.  These  assets  can  be  positioned  anywhere  within  the  defined  area. 

 CEC  TRAINING  AREA  5 
 Training  Area  5  includes  all  areas  within  the  boundaries  of  the  White  Sands  Missile  Range,  New  Mexico  and  the  Fort  Bliss  Military  Reservation,  Texas  and  New  Mexico,  to  support  the  Joint 
 Chiefs  of  Staff  Roving  Sands  Exercise.  The  exercises  will  include  aircraft  flying  at  altitudes  to  30  kft,  mobile  ground  based  equipment,  and  permanent  ground  based  equipment.  The  assets  can 
 be  positioned  anywhere  within  the  identified  areas. 

 CEC  TRAINING  AREA  6 
 Training  Area  6  includes  the  China  Lake  Naval  Weapons  Center,  CA;  Fort  Irwin  Military  Reservation,  CA;  and  Twentynine  Palms  Marine  Corps  Base,  CA.  The  exercises  will  include 
 aircraft  flying  at  altitudes  to  30  kft,  mobile  ground  based  equipment,  and  permanent  ground  based  equipment.  The  assets  can  be  positioned  anywhere  within  the  identified  areas. 

 CEC  TRAINING  AREA  7 
 Training  Area  7  supports  Pacific  training  exercises.  Training  Area  7  includes  all  of  the  state  of  Hawaii  and  the  Pacific  Ocean  waters  surrounding  the  islands  of  Hawaii. 

 Exercises  within  the  land  boundaries  of  Training  Area  7  will  include  aircraft  operating  at  altitudes  to  30  kft,  mobile  ground  based  equipment,  and  permanent  ground  based  equipment. 
 Aircraft  and  mobile  ground  based  equipment  can  be  positioned  anywhere  within  the  area.  Permanent  ground  based  terminals  will  be  added  as  required.  Specific  sites  within  Training  Area 
 7  include,  but  are  not  limited  to,  the  Pacific  Missile  Range  Facility  on  the  Island  of  Kauai. 
 Exercises  in  the  Pacific  Ocean  waters  will  include  aircraft  operating  at  altitudes  to  30  kft  and  surface  ships.  These  assets  can  be  positioned  anywhere.  The  waters  of  the  Pacific  Missile 
 Range  Facility  are  included. 
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 CEC  TRAINING  AREA  8 
 Training  Area  8  supports  Atlantic  Ocean  and  Caribbean  Ocean  training  exercises.  The  area  includes  all  of  Puerto  Rico;  St.  Thomas,  Virgin  Islands;  and  the  ocean  waters  surrounding  Puerto 
 Rico  and  The  Virgin  Islands. 
 Exercises  within  the  land  boundaries  of  Training  Area  8  include  aircraft  operating  at  altitudes  to  30  kft,  mobile  ground  based  equipment,  and  permanent  ground  based  equipment.  Aircraft  and 
 mobile  ground  based  equipment  can  be  positioned  anywhere  within  the  area.  A  permanent  ground  based  terminal  is  located  on  St.  Thomas,  Virgin  Islands.  Other  permanent  ground  based 
 terminals  will  be  added  as  required.  Specific  sites  within  Area  8  include,  but  are  not  limited  to,  the  Armed  Forces  Weapons  Test  Facility  and  the  Navy  Reservation,  Vieques  Island. 

 Exercises  in  the  Atlantic  Ocean  and  Caribbean  Ocean  waters  will  include  aircraft  operating  at  altitudes  to  30  kft  and  surface  ships.  These  assets  can  be  positioned  anywhere.  The  waters  of 
 the  Armed  Forces  Weapons  Test  Facility  are  included. 

 CEC  TRAINING  AREA  9 
 Training  Area  9  supports  Atlantic  Coast  exercises.  Training  Area  9  extends  inland  from,  seaward  from,  and  along  the  low  water  mark  of  a  portion  of  the  South  Carolina  (SC)  and  Georgia 
 (GA)  Atlantic  coastlines,  and  includes  a  separate  area  in  the  Jacksonville,  FL  metropolitan  area. 
 INLAND  PORTION:  The  inland  portion  of  Training  Area  9  extends  westward  from  the  low  water  mark  of  the  Atlantic  Ocean,  and  includes  all  of  the  areas  contained  within  the  boundaries 
 of  the  following  counties  and  facilities  in  the  indicated  state: 
 South  Carolina:  Beaufort  and  Jasper  Counties  Georgia:  Chatham,  Bryan,  Liberty,  Long,  and  McIntosh  Counties;  Ft.  Stewart  U.  S.  Army 
 Facility 
 Exercises  within  the  boundaries  of  the  inland  portion  of  Training  Area  9  will  include  aircraft  operating  at  altitudes  to  30  kft,  mobile  ground  based  equipment,  and  permanent  ground  based 
 equipment.  Aircraft  and  mobile  ground  based  equipment  can  be  positioned  anywhere  within  the  area  defined  above.  Permanent  ground  based  terminals  will  be  added  within  the  above  defined 
 area  as  required.  Specific  sites  within  the  above  defined  area  include,  but  are  not  limited  to,  Beaufort  MCAS,  SC;  Wright  Army  Air  Field,  GA;  and  Hunter  Army  Air  Field,  GA.  All  of  the 
 area  within  the  legal  boundaries  of  Ft.  Stewart  U.  S.  Army  Facility,  GA  is  included. 
 Training  Area  9  also  includes  the  Jacksonville,  FL  metropolitan  area.  Mobile  and  ground  based  equipment  will  be  located  anywhere  within  the  legal  boundaries  of  the  Jacksonville  NAS,  FL.  Mobile, 
 ground  based,  and  ship  based  equipment  will  be  located  anywhere  within  the  legal  boundaries  of  the  Mayport  Naval  Station,  FL.  Aircraft  operating  in  the  vicinity  of  Jacksonville,  FL  will  maintain  emissions 
 at  the  lower  defined  level. 
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 SEAWARD  PORTION:  The  seaward  portion  of  Training  Area  9  is  bounded  on  the  north  by  the  line  that  extends  eastward  from  the  low  water  mark  of  the  Atlantic  Ocean  along  32.480000  north 
 decimal  degrees  of  latitude.  The  western  boundary  of  the  seaward  portion  of  Training  Area  9  begins  at  the  intersection  of  the  low  water  mark  of  the  Atlantic  Ocean  with  32.480000  north 
 decimal  degrees  of  latitude,  extends  generally  southward  and  southwestward  along  the  low  water  mark  of  the  Atlantic  Ocean  to  the  intersection  of  the  low  water  mark  with  31.370000  north 
 decimal  degrees  of  latitude.  The  seaward  portion  of  Training  Area  9  is  bounded  on  the  south  by  the  line  that  extends  eastward  from  the  low  water  mark  of  the  Atlantic  Ocean  along  31.370000 
 north  decimal  degrees  of  latitude.  There  is  no  eastern  boundary  of  the  seaward  portion  of  Training  Area  9.  Exercises  in  the  seaward  portion  of  Training  Area  9  will  include  aircraft 
 operating  at  altitudes  to  30  kft  and  surface  ships.  These  assets  can  be  positioned  anywhere  within  the  defined  area. 
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 CEC  EMISSIONS  ACROSS  THE  4940-  4990  MHz  BAND 
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 SEPARATE  STATEMENT  OF  COMMISSIONER  KATHLEEN  ABERNATHY 
 In  re:  The  4.9  GHz  Band  Transferred  from  Federal  Government  Use,  Second  Report  and  Order  and  Further  Notice  of  Proposed  Rulemaking  (WT  Docket  No.  00- 
 32)(  adopted  February  14,  2002). 
 Todays  Order  begins  to  deliver  on  the  Commissions  new  homeland  security  policy  priorities.  While  public  safety  issues  have  always  been  important  to  the  Commission, 
 there  is  no  doubt  that  this  falls  events  created  a  new  sense  of  urgency.  The  allocation  of  the  4.9  GHz  band,  its  designation  for  public  safety,  and  the  initiation  of  a  service  rules 
 proceeding,  signal  this  Commissions  commitment  to  public  safety  and  homeland  security.  Our  long-  anticipated  decision  has  three  important  components:  a  national 
 flexible  allocation,  broadband  capability,  and  possible  international  harmonization.  For  these  reasons,  I  have  previously  indicated  my  support  for  the  policy  approach  taken  today 
 and  I  reaffirm  that  support  today. 
 National  Flexible  Allocation:  The  public  safety  community  has  long  suffered  under  a  fragmented  spectrum  allocation  and  service  rule  regime  that  limits  the  ability  of  various 
 public  safety  entities  to  provide  a  diverse  range  of  services  across  national  spectrum  bands.  Todays  50  MHz  allocation  that  will  lend  itself  to  operations  across  traditional 
 state  and  local  boundaries  and  speed  response  times  at  emergency  sites.  I  look  forward  to  developing  service  rules  that,  like  our  approach  at  700  MHz,  emphasize  the  ability  of 
 emergency  response  service  providers  to  communicate  in  a  variety  of  ways  and  inter-operate  across  jurisdictions. 

 Broadband  Capability:  For  too  long,  the  public  safety  community  has  not  had  the  spectrum  capacity  to  deploy  dedicated  wireless  broadband  facilities.  The  spectrum 
 characteristics  and  bandwidth  at  4.9  GHz  will  allow  the  public  safety  community  to  utilize  the  latest  technological  tools    through  real  time  video  displays,  Internet  access, 
 and  other  capabilities    in  respond  to  emergency  situations. 
 International  Considerations:  As  we  prepare  for  the  2003  World  Radiocommunication  Conference  in  Caracas,  the  U.  S.  is  examining  the  value  of  a  possible  global  allocation  for 
 public  protection  use.  WRC  Agenda  Item  1.3  is  actually  the  topic  of  an  ITU  Working  Group  meeting  in  Rome  as  we  speak.  Going  forward,  it  is  important  that  any 
 international  allocation  decision  grant  respective  administrations  significant  flexibility,  while  also  identifying  multiple  possible  bands  for  such  use.  In  this  regard,  the  United 
 States  must  be  vigilant  that  the  international  decisions  reached  include  bands  identified 
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 domestically    such  as  the  4.9  GHz  and  700  MHz  bands.  Global  harmonization  creates  significant  advantages  in  the  scale  and  scope  of  manufacturing  for  public  safety  uses   
 particularly  vital  because,  by  definition,  this  is  a  fairly  discrete  market  for  manufacturers.  In  addition  to  the  commercial  advantages,  harmonization  may  also  allow  for  possible 
 interoperability  in  anticipation  of  security  threats  with  an  international  scope. 
 Today  is  a  good  day  for  public  safety    and  the  Commission  staff  should  take  considerable  pride  in  our  decision  that  helps  public  safety  to  complete  their  vital  mission 
 for  the  American  people. 

 SEPARATE  STATEMENT  OF  COMMISSIONER  KEVIN  J.  MARTIN 
 In  re:  The  4.9  GHz  Band  Transferred  from  Federal  Government  Use,  Second  Report  and  Order  and  Further  Notice  of  Proposed  Rulemaking  (WT  Docket  No.  00- 
 32)(  adopted  February  14,  2002). 
 Recent  events  serve  as  an  important  reminder  of  just  how  critical  public  safety  and  national  security  operations  are  to  the  welfare  of  our  society.  The  Commission  must  do 
 its  part  to  ensure  that  the  communications  requirements  for  such  operations  are  satisfied.  I  have  enjoyed  working  with  the  public  safety  community  on  these  challenging  issues.  I 
 am  very  pleased  to  approve  this  allocation  and  public  safety  designation,  which  reflects  this  Commissions  dedication  to  promoting  safety  of  life  and  property  by  supporting  such 
 operations. 
 It  is  important  for  the  Commission  to  ensure  sufficient  spectrum  for  the  public  safety  community,  which  requires  spectrum  that  will  be  readily  available  in  times  of 
 emergencies.  It  is  also  important  for  the  Commission  to  facilitate  interoperability,  as  well  as  multiple  types  of  uses.  This  is  particularly  true  during  crisis  situations  and  for 
 incident  scene  management.  The  allocation  here  of  an  additional  50  MHz  of  spectrum  for  the  public  safety  community  will  help  to  further  both  of  these  goals.  Members  of  the 
 public  safety  community  have  also  emphasized  the  importance  of  this  band  for  emerging  broadband  technologies  like  wireless  local  area  networks  to  coordinate  incident  scene 
 and  command  center  personnel.  I  look  forward  to  seeing  these  and  other  sophisticated  applications,  such  as  high  speed  on-  site  file  transfers  and  specialized  headsets  equipped 
 with  video  cameras  and  environmental  sensors,  being  used  to  assist  such  operations. 
 This  spectrum  and  these  types  of  uses  will  help  enable  emergency  response  service  providers,  such  as  law  enforcement  personnel,  fire  fighters,  SWAT  teams,  bomb  squads, 
 emergency  medical  providers,  and  others  whose  livelihoods  revolve  around  protecting  our  owns  lives  and  property,  better  carry  out  their  missions.  I  look  forward  to  reviewing 
 comments  regarding  the  service  rules  portion  of  this  proceeding,  and  to  a  continuing  dialogue  regarding  how  the  Commission  can  best  advance  and  support  national  security 
 and  public  safety  missions. 
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