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 Federal  Communications  Commission  FCC  01-  323 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of  )  ) 
 Redesignation  of  the  17.7-  19.7  GHz  Frequency  )  Band,  Blanket  Licensing  of  Satellite  )  IB  Docket  No.  98-  172 
 Earth  Stations  in  the  17.7-  20.2  GHz  and  )  RM-  9005  27.5-  30.  0  GHz  Frequency  Bands,  )  RM-  9118 
 and  the  Allocation  of  Additional  Spectrum  )  in  the  17.3-  17.8  GHz  and  24.  75-  25.25  GHz  ) 
 Frequency  Bands  for  Broadcast  )  Satellite-  Service  Use  ) 


 FIRST  ORDER  ON  RECONSIDERATION 
 Adopted:  October  31,  2001  Released:  November  1,  2001 
 By  the  Commission: 
 TABLE  OF  CONTENTS 


 Paragraph 
 I.  INTRODUCTION  1 


 II.  BACKGROUND  3 
 III.  DISCUSSION  21 
 A.  18  GHz  Band  Plan  21 
 1.  Status  of  the  Fixed  Service  in  19.26-  19.3  GHz  21 
 2.  Channelization  of  Fixed  Service  bands  26 
 3.  Secondary  Satellite  Designations  27 
 4.  Secondary  Designation  for  BSS  at  17.7-  17.  8  GHz  30 
 5.  Low  Power  Terrestrial  Operat  ions  in  Satellite  Bands  32 
 B.  Legacy  List  42 
 C.  Licensing  Issues  48 
 1.  Technical  Corrections  48 
 2.  Satellite  pfds  51 
 D.  Relocation  Issues  54 
 1.  Comparable  Facilities  54 
 2.  Definition  of  Throughput  56 
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 3.  Alternative  Media  60 
 4.  Cut-  off  Dates  62 
 5.  Negotiation  Periods  65 
 6.  Right  to  Return  to  Original  Spectrum  68 
 7.  Assignments  and  Transfers  72 
 8.  Measure  and  Mitigation  of  Relocation  Costs  75 


 IV.  CONCLUSION  81 
 V.  ORDERING  CLAUSES  86 
 APPENDIX  A:  FINAL  RULES 
 APPENDIX  B:  FINAL  REGULATORY  FLEXIBILITY  ANALYSIS 
 APPENDIX  C:  LIST  OF  COMMENTS  AND  REPLY  COMMENTS 


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


 2.  Specifically,  we  change  the  power  flux-  density  (pfd)  value  for  the  18.  3-18.8 
 GHz  frequency  band  to  the  values  in  section  25.208(  c)  to  be  consistent  with  the  pfd 
 limit  in  the  Radio  Regulations  of  the  International  Telecommunications  Union  and  we 
 delete  section  25.208(  d),  which  previously  contained  pfd  limits  for  the  18.3-  18.  8  GHz 


 1  Redesignation  of  the  17.  7-  19.  7  GHz  Frequency  Band,  Blanket  Licensing  of  Satellite  Earth  Stations 
 in  the  17.  7-  20.  2  GHz  and  27.  5-  30.0  GHz  Frequency  Bands,  and  the  Allocation  of  Additional  Spectrum  in 
 the  17.  3-  17.  8  GHz  and  24.  75-  25.25  GHz  Frequency  Bands  for  Broadcast  Satellite-  Service  Use,  Report  and 
 Order,  IB  Docket  No.  98-  172,  15  FCC  Rcd  13430  (rel.  June  22,  2000)  (18  GHz  Order).  2 
 See  Hughes  Electronics  Corporation,  Petition  for  Partial  Reconsideration,  IB  Docket  No.  98-  172 
 (filed  Oct.  6,  2000)  (Hughes  petition);  Fixed  Wireless  Communications  Coalition,  Petition  for 
 Reconsideration,  IB  Docket  No.  98-  172  (filed  Sept.  29,  2000)  (FWCC  petition);  Winstar  Communications, 
 Inc.,  Petition  for  Clarification  and  Reconsideration,  IB  Docket  98-  172  (filed  Oct.  10,  2000)  (Winstar 
 petition).  3 
 See  Letter  from  Samuel  L.  Feder,  Harris,  Wiltshire  &  Grannis,  to  Steven  D.  Selwyn,  International 
 Bureau,  Federal  Communications  Commission  (September  27,  2000)  (Teledesic  Letter).  See  also  Teledesic 
 LLC  v.  FCC,  Petition  for  Review,  Case  No.  00-  1466  (D.  C.  Cir.  filed  November  6,  2000)  (Teledesic 
 Petition) 
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 frequency  band.  We  also  determine  that  the  pfd  level  in  section  25.138(  a)(  6)  of  -118 
 dBW/  m  2  /MHz  should  apply  to  all  Geostationary  Satellite  Orbit/  Fixed  Satellite  Service 
 (GSO/  FSS)  downlink  bands  in  which  the  Commission  permits  blanket  licensing.  We 
 amend  section  101.97  to  clarify  that  an  incumbent  Fixed  Service  (FS)  licensee  retains 
 primary  status  notwithstanding  a  change  in  ownership  or  control.  Further,  we  clarify  that 
 an  incumbent  licensee  is  entitled  to  a  12-  month  trial  period  after  relocation  to  test  the  new 
 facilities.  We  also  conclude  that  existing  terrestrial  services  operating  in  the  19.26-  19.3 
 GHz  band  will  continue  to  be  allowed  to  recover  relocation  reimbursement,  but  this 
 reimbursement  will  now  be  subject  to  the  10-  year  sunset  period  applicable  to  other  FS 
 operations  in  the  18  GHz  band.  In  response  to  Teledesic,  we  take  the  following 
 additional  steps  in  order  to  better  reconcile  the  competing  interests  of  the  new  satellite 
 entrants  and  the  low-  power  terrestrial  operators  in  the  18.82-  18.87  GHz  and  19.16-  19.21 
 GHz  bands:  1)  we  cut-  off  any  further  low-  power  applications  under  section 
 101.147(  r)(  10)  as  of  April  1,  2002  (the  18  GHz  Order  already  cut  off  applications  for 
 outdoor  use);  and  2)  we  permit  low-  power  services  authorized  pursuant  to  section 
 101.147(  r)(  10)  to  continue  to  operate  on  a  co-  primary  basis  for  a  period  of  ten  years, 
 subject  to  reimbursed  relocation  at  the  request  of  the  satellite  provider.  Finally,  we  delete 
 section  25.145(  i)  of  our  rules  and  reverse  the  Legacy  List  policy  that  we  adopted  in  the 
 18  GHz  Order;  thus,  we  will  no  longer  require  the  use  of  the  Legacy  List  coordination 
 process  by  an  FSS  space  station  licensee  to  alleviate  interference  to  a  terrestrial  fixed 
 station. 


 II.  BACKGROUND 
 3.  On  September  18,  1998,  the  Commission  released  a  Notice  of  Proposed 
 Rulemaking  (18  GHz  NPRM)  4  in  this  proceeding  that  sought  public  comment  on  several 
 proposed  plans  to  redesignate  the  17.7-  19.  7  GHz  band  (the  18  GHz  band)  among  the 
 various  allocated  services  in  order  to  make  more  efficient  and  better  use  of  this  portion  of 
 the  radio  spectrum.  In  the  18  GHz  NPRM,  we  stated  that  the  existing  terrestrial  services 
 currently  operating  in  the  18  GHz  band  serve  a  variety  of  important  communications 
 needs,  and  that  the  satellite  services  licensed  to  operate  in  this  band  have  the  potential  to 
 provide  consumers  with  several  new  services.  5 


 4.  Prior  to  the  18  GHz  Order,  the  18  GHz  band  was  allocated  on  a  shared, 
 co-  primary  basis  for  use  by  the  terrestrial  fixed  service  (FS),  the  Fixed-  Satellite  Service 
 (FSS),  and  the  Mobile-  Satellite  Service.  6  Terrestrial  FS  operators  using  the  18  GHz  band 
 include  Private  Cable  Operators/  Cable  Television  Relay  Service  (PCO/  CARS),  auxiliary 
 broadcasting,  local  television  transmission,  fixed  point-  to-  point  and  low  power  point-  to-multipoint 
 service.  Mobile-  Satellite  Service  operations  were  limited  to  Feeder  Links 


 4  Redesignation  of  the  17.  7-  19.  7  GHz  Frequency  Band,  Blanket  Licensing  of  Satellite  Earth  Stations 
 in  the  17.  7-  20.  2  GHz  and  27.  5-  30.0  GHz  Frequency  Bands,  and  the  Allocation  of  Additional  Spectrum  in 
 the  17.  3-  17.  8  GHz  and  24.  75-  25.25  GHz  Frequency  Bands  for  Broadcast  Satellite-  Service  Use,  Notice  of 
 Proposed  Rulemaking,  IB  Docket  No.  98-  172,  13  FCC  Rcd  19923  (rel.  June  22,  2000)  (18  GHz  NPRM).  5 
 Id.  at  19929-  30,  paras.  8,  9.  6 
 Id.  at  19928-  29,  para.  7. 
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 (MSS/  FL).  These  services  meet  a  variety  of  important  communications  needs,  including 
 remote  monitoring  of  gas  and  petroleum  pipelines,  public  safety  links,  video  distribution 
 links  and  point-  to-  point  data  links.  7 


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


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


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


 7  In  the  18  GHz  Order,  we  stated  that  there  are  currently  approximately  179,000  terrestrial  fixed 
 links  in  the  18  GHz  band.  18  GHz  Order  at  13435-  36,  para.  11.  8 
 The  18  GHz  band  comprises  a  portion  of  the  Ka-  band  for  satellite  services.  The  Ka-  band  refers  to 
 the  space-  to-  Earth  or  downlink  frequencies  in  the  17.  7-  20.2  GHz  band  along  with  the  corresponding  Earth-to- 
 space  or  uplink  frequencies  at  27.  5-  30.  0  GHz  (the  28  GHz  band).  9 
 18  GHz  NPRM  at  19929-  30,  para.  9.  10 
 Id.  at  19925,  para.  1.  11 
 There  are  over  300  filings  in  the  docket.  12 
 18  GHz  Order  at  13431-  32,  para.  2. 
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 designations;  and  (e)  allocated  the  17.3-  17.  7  GHz  band  to  the  Broadcasting-  Satellite 
 Service  (BSS)  and  the  24.75-  25.  25  GHz  band  to  the  FSS  for  BSS  feeder  links. 


 (a)  18  GHz  Band  Plan.  At  the  time  the  18  GHz  NPRM  was  released,  the  18 
 GHz  band  plan  was  as  follows: 


 DOWNLINK  Ka-  BAND  (18  GHz)  13 


 GSO/  FSS 
 and 
 FS 


 ngso/  fss 
 1100  MHz 


 NGSO/  FSS 
 and 
 FS 


 gso/  fss 
 500  MHz 


 MSS/  FL 
 and 
 FS 


 gso/  fss 
 400  MHz 


 GSO/  FSS  14 
 ngso/  fss 
 500  MHz 
 17.  7  18.  8  19.  3  19.  7  20.  2  GHz 


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


 FS 


 600  MHz 
 GSO/  FSS 
 &FS 


 280  MHz 


 GSO/  FSS 
 220  MHz 
 NGSO/  FSS 
 500  MHz 
 MSS/  FL 
 & 
 FS 


 400  MHz 


 GSO/  FSS 
 500  MHz 
 17.  7  18.  3  18.  58  18.  8  19.  3  19.  7  20.  2  GHz 
 Under  this  new  band  plan,  the  Commission  designated  a  total  of  1280  MHz  of  spectrum 
 for  the  FS  as  follows:  600  MHz  of  spectrum  in  the  17.7-  18.3  GHz  band  for  primary  use 
 by  the  FS,  280  MHz  of  spectrum  in  the  18.3-  18.58  GHz  band,  designated  for  co-  primary 
 use  by  the  FS  and  the  GSO/  FSS,  400  MHz  of  spectrum  in  the  19.3-  19.7  GHz  band, 
 designated  for  co-  primary  use  by  the  FS  and  the  MSS/  FL.  17  The  Commission  has 
 designated  a  total  of  1000  MHz  of  downlink  spectrum  for  the  GSO/  FSS  as  follows:  220 


 13  Capital  letters  identify  services  designated  for  primary  domestic  licensing  priority,  while  lower 
 case  letters  identify  services  designated  for  secondary  domestic  licensing  priority.  14 
 The  19.  7-  20.  2  GHz  band  appears  here  merely  to  show  the  total  spectrum  available  to  the 
 GSO/  FSS.  15 
 18  GHz  Order  at  13435-  36,  para.  11.  16 
 Id.  at  13438-  39,  para.  17.  17 
 Id.  at  13443-  44,  para.  28. 
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 MHz  in  the  18.58-  18.8  GHz  band  for  exclusive  primary  use  by  the  GSO/  FSS,  280  MHz 
 in  the  18.3-  18.58  GHz  band,  designated  for  co-  primary  use  with  the  FS,  in  addition  to 
 existing  designation  of  500  MHz  in  the  19.7-  20.2  GHz  band  for  primary  use  by  the 
 GSO/  FSS.  18  The  Commission  designated  500  MHz  of  spectrum  to  the  NGSO/  FSS  in  the 
 18.8-  19.3  GHz  band  for  primary  use.  19  Finally,  the  Commission  retained  the  existing 
 designation  of  400  MHz  of  spectrum  in  the  19.3-  19.7  GHz  band  to  the  MSS/  FL,  which  is 
 shared  on  a  co-  primary  basis  with  the  FS.  20 


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


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


 (d)  Blanket  Licensing.  Blanket  licensing  refers  to  a  procedure  that  allows  Ka-band 
 FSS  satellite  earth  stations  to  operate  under  a  single  system-  wide  license  for  all 
 stations  rather  than  individually  licensing  and  coordinating  each  satellite  earth  station. 
 The  18  GHz  Order  authorized  a  blanket  licensing  regime  for  satellite  earth  stations  for 
 those  segments  of  the  Ka-  band  (both  downlink  at  17.  7-  20.  2  GHz  and  uplink  at  27.5-  30.  0 
 GHz)  that  are  not  subject  to  sharing  with  other  services.  27  Specifically,  the  Commission 
 stated  that  we  would  accept  applications  for  blanket  licensing  in  the  following  bands: 


 18  Id.,  see  also  id.  at  13443,  para.  28  n.  61. 
 19  Id.  at  13443-  44,  para.  28. 
 20  Id. 
 21  Id.  at  13451,  para.  43. 
 22  Id.  at  13451-  52,  para.  44. 
 23  Id.  at  13452-  53,  para.  46. 
 24  Id. 
 25  Id.  at  13460-  61,  para.  63. 
 26  Id.  at  13463-  65,  paras.  69-  71. 
 27  Id.  at  13467-  68,  para.  77. 
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 18.58-  18.8  GHz,  18.  8-  19.  3  GHz,  19.7-  20.2  GHz,  28.  35-  28.  6  GHz,  28.6-  29.1  GHz  and 
 29.5-  30.0  GHz.  28  The  blanket  licensing  rules  adopted  in  the  18  GHz  Order  contain 
 specific  technical  parameters  for  the  bands  designated  for  GSO  systems  within  which 
 satellite  earth  stations  may  be  operated  under  a  blanket  license  in  order  to  minimize 
 potential  interference  on  both  an  intra-  and  inter-  service  basis.  29 


 (e)  Allocation  to  the  BSS  and  the  GSO/  FSS.  In  the  18  GHz  Order,  the 
 Commission  allocated  400  MHz  of  spectrum  at  17.3-  17.  7  GHz  for  primary  use  by  the 
 BSS,  effective  April  1,  2007.  30  In  addition,  the  Commission  allocated  the  24.75-  25.05 
 GHz  band  on  a  primary  basis  to  the  FSS  (Earth  to  space),  limited  to  BSS  feeder  links.  31 
 The  Commission  also  allocated  the  25.05-  25.25  GHz  band  for  co-  primary  use  between 
 the  24  GHz  Fixed  Service,  formerly  known  as  Digital  Electronic  Messaging  Service 
 (DEMS),  and  the  FSS  (Earth  to  space),  limited  to  BSS  feeder  links.  32 


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


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


 28  Id. 
 29  Id.  at  13474,  para.  93. 
 30  Id.  at  13475-  77,  para.  96;  see  also  18  GHz  NPRM  at  19959  n.  116.  This  allocation  was  made  in 


 conformity  with  the  corresponding  ITU  Region  2  allocation,  although  the  Commission  allocated  only  400 
 MHz  to  the  BSS  whereas  the  Region  2  allocation  is  for  500  MHz.  See  also  ITU  Radio  Regulations 
 Footnote  S5.  517  31 
 18  GHz  Order  at  13479,  para.  102.  32 
 Id.  at  13479-  80,  para.  102-  106.  33 
 See  Hughes  petition,  FWCC  petition  and  Winstar  petition,  n.  2  supra;  see  also  Teledesic  Letter.  34 
 See  Teledesic  has  also  filed  a  petition  for  review  of  the  18  GHz  Order  in  the  U.  S.  Court  of 
 Appeals  for  the  District  of  Columbia  Circuit.  See  Teledesic  Petition.  35 
 Id.  at  12.  36 
 Id.  at  13. 
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 10.  Hughes  also  contends  that  the  Legacy  List  policy  was  adopted  without 
 adequate  notice  and  comment  as  required  by  the  Administrative  Procedures  Act  (APA).  37 
 Hughes  contends  the  APA  was  violated  because  the  18  GHz  NPRM  did  not  discuss  the 
 terms  or  substance  of  any  proposal  that  deviated  from  the  Commissions  long-  standing 
 interpretation  of  the  existing  pfd  limits  in  section  25.208.  38  Hughes  also  states  that  the 
 Commission  failed  to  address  Hughess  argument  that  any  such  potential  interference 
 experienced  by  terrestrial  operators  was  solely  due  to  the  failure  of  terrestrial  fixed 
 operators  to  design  their  systems  to  take  into  account  the  satellite-  terrestrial  sharing 
 rules.  39 


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


 12.  Hughes  also  argues  that  the  Commission  should  reconsider  or  correct 
 several  technical  aspects  of  the  Ka-  band  licensing  rules  regarding  pfd  limits,  including 
 sections:  25.208(  c),  25.138(  a)(  6)  and  25.138(  b).  Hughes  states  that  the  Commission  did 
 not  adequately  explain  why  it  changed  the  longstanding  pfd  limit  in  section  25.208(  c) 
 from  -115  dBW/  m  2  /MHz  to  -118  dBW/  m  2  /MHz.  Hughes  contends  that  the 
 Commissions  new  rules  irrationally  apply  a  different  pfd  standard  to  the  GSO/  FSS 
 service  in  the  18.3-  18.8  GHz  band  from  that  applied  to  the  NGSO/  FSS  at  18.  8-  19.3  GHz 
 and  to  NGSO/  MSS  Feeder  Links  at  19.3-  19.7  GHz.  Hughes  also  argues  that  the  new 
 25.208(  d)  limit  is  inconsistent  with  the  coordination  threshold  approach  in  sections 
 25.138(  a)  and  (b).  43 


 13.  Hughes  contends  the  pfd  limit  of  -118  dBW/  m  2  /MHz  in  section 
 25.138(  a)(  6)  should  apply  to  all  GSO/  FSS  downlink  bands  in  which  the  Commission 
 permits  blanket  licensing.  According  to  Hughes,  the  Commission  incorrectly  omits  the 
 18.58-  18.8  GHz  downlink  band  from  section  25.138(  a)(  6).  Hughes  states  that  the  current 
 section  25.138(  a)(  6)  allows  for  routine  processing  of  a  blanket  license  application  that 
 contemplates  a  higher  pfd  in  the  18.58-  18.8  GHz  band  than  -118  dBW/  m  2  /MHz,  for 


 37  See  5  U.  S.  C.    553(  b)(  3)  (requiring  agencies  to  provide  adequate  notice  of  and  a  meaningful 
 opportunity  to  comment  on  proposed  rules  being  considered).  38 
 Hughes  petition  at  15.  39 
 Id.  at  16.  40 
 Id.  41 
 Id.  at  17.  42 
 Id.  43 
 Id.  at  20-  22. 
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 example,  and  this  would  cause  disruption  to  the  industry  consensus  reached  on  this 
 issue.  44 


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


 15.  There  are  several  issues  that  Hughes  raises  in  its  petition  upon  which  we 
 defer  action  to  a  further  Commission  order.  For  example,  with  regard  to  the  18  GHz 
 band  plan,  asks  the  Commission  to  reconsider  its  decision  to  designate  only  220  MHz  of 
 additional  Ka-  band  downlink  spectrum  for  ubiquitously-  deployed  earth  stations. 
 According  to  Hughes,  the  Commissions  decision  is  based  on  two  flawed  arguments:  (1) 
 that  the  Commission  designated  only  750  MHz  of  unshared  primary  uplink  spectrum  to 
 GSO/  FSS  in  the  28  GHz  First  Report  and  Order,  49  and  that  therefore  a  similar 
 designation  of  downlink  spectrum  is  appropriate;  and  (2)  that  the  Commissions  overall 
 band  plan  for  18  GHz  is  a  balanced  accommodation  of  the  various  uses  of  the  band.  50 
 Hughes  also  argues  that  the  18  GHz  Order  disproportionately  burdened  the  GSO/  FSS 
 industry  by  failing  to  meet  adequately  its  needs  for  spectrum  while  providing  more  fully 
 for  the  needs  of  other  industry  operators,  such  as  PCO/  CARS  and  the  NGSO/  FSS.  51 
 Hughes  states  that  the  Commission  did  not  address  its  proposal  that  the  Commission 
 accommodate  PCO/  CARS  operators  in  the  12.7-  13.2  GHz  and/  or  21.  2-  23.6  GHz  bands. 
 Hughes  also  states  that  the  Commissions  decision  in  the  18  GHz  Order  ignores  the 
 decision  in  the  28  GHz  Order  that  GSO/  FSS  systems  warranted  the  designation  of  1000 
 MHz  for  ubiquitous  earth  stations.  52  Finally,  Hughes  contends  that  the  Commission 
 should  permit  either  blanket  licensing  of  GSO/  FSS  earth  stations  in  the  satellite-  only 
 band  of  29.25-  29.5  GHz  or  streamlined  registration  of  receive-  only  earth  stations  in  the 


 44  Id.  at  22-  23. 
 45  Id.  at  23-  25. 
 46  Id.  at  24. 
 47  Id. 
 48  Id.  at  23-  25. 
 49  See  Rulemaking  to  Amend  Parts  1,  2,  21,  and  25  of  the  Commissions  Rules  to  Redesignate  the 


 27.  5-  29.  5  GHz  Frequency  Band,  to  Reallocate  the  29.  5-  30.  0  GHz  Frequency  Band,  to  Establish  Rules  and 
 Policies  for  Local  Multipoint  Distribution  Service  and  for  Fixed  Satellite  Service,  First  Report  and  Order 
 and  Fourth  Notice  of  Proposed  Rulemaking,  CC  Docket  No.  92-  297,  11  FCC  Rcd  19005  (1996)  (28  GHz 
 First  Report  and  Order).  The  28  GHz  First  Report  and  Order  established  a  band  plan  for  the  Ka-  band.  50 
 Hughes  petition  at  5-  6.  51 
 Id.  at  9.  52 
 Id.  at  10. 
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 18.3-  18.58  GHz  band.  53  Hughes  argues  that  the  Commission  gave  no  rationale  for  its 
 refusal  to  establish  blanket  licensing  in  the  29.25-  29.5  GHz  band  and  its  decision  to  defer 
 action  on  the  18.3-  18.  58  GHz  band  to  a  future  proceeding.  Hughes  contends  that  the 
 record  in  the  28  GHz  proceeding  is  clear  that  the  parties  in  that  proceeding  intended  that 
 the  shared  use  of  the  29.25-  29.5  GHz  band  between  the  GSO/  FSS  and  NGSO/  MSS 
 feeder  links  would  not  prevent  deployment  of  ubiquitous  GSO/  FSS  earth  stations. 


 16.  FWCC  filed  a  petition  for  reconsideration  asking  that  the  Commission 
 restore  sole  primary  status  to  the  FS  in  19.26-  19.3  GHz.  54  FWCC  also  expressed  concern 
 that  the  Commission  has  not  yet  taken  action  to  rechannelize  a  portion  of  the  17.7-  18.  14 
 and  19.26-  19.7  GHz  bands  for  low  capacity  systems.  55  One  of  the  results  of  the  18  GHz 
 Order  is  that  the  point-  to-  point  fixed  microwave  licensees  in  this  band  (17.7-  19.7  GHz) 
 no  longer  have  access  to  channels  that  are  5  MHz  wide  and  only  shared  access  to 
 channels  that  are  6  MHz  wide.  The  remaining  channels  are  10  MHz  wide,  or  wider.  This 
 channelization  can  create  inefficient  use  of  the  spectrum  or  increased  costs  for  licensees 
 whose  traffic  needs  do  not  require  such  large  bandwidths.  FWCC  argues  that  the 
 Commissions  decision  to  designate  19.26-  19.3  GHz  on  a  primary  basis  to  the 
 NGSO/  FSS  was  based  on  an  historical  study  by  Comsearch,  which  indicated  that  the 
 remaining  paired  bands  designated  on  a  primary  basis  to  the  FS  (17.74-  18.14  and  19.3- 
 19.7  GHz)  would  be  adequate  to  accommodate  FS  needs.  56  FWCC  argues  that  there  has 
 been  significant  growth  and  activity  in  this  band  by  FS  operators  and  the  bands  currently 
 designated  for  the  FS  are  insufficient  to  accommodate  them;  therefore,  the  Commission 
 should  restore  the  19.26-  19.3  GHz  band  to  the  FS.  57 


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


 53  Id.  at  18. 
 54  FWCC  petition  at  1. 
 55  Id.  at  1-  2.  Channelization  refers  to  the  process  of  subdividing  bandwidth  into  smaller  increments. 


 See  Newtons  Telecom  Dictionary,  15th  edition  at  168.  Channelization  allows  applicants  to  apply  only  for 
 the  spectrum  they  actually  need,  and  therefore  can  promote  more  efficient  spectrum  use.  56 
 Id.  at  4.  57 
 Id.  58 
 Winstar  petition  at  6-  8.  59 
 Id.  at  10-  11.  60 
 Id.  at  12-  14. 
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 relocation  is  unsuccessful.  61  Finally,  Winstar  argues  that  the  Commission  should 
 reconsider  its  decision  to  not  permit  a  voluntary  negotiation  period  in  18  GHz  relocation 
 proceedings.  62 


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


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


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


 III.  DISCUSSION 
 A.  18  GHz  Band  Plan 
 21.  Status  of  the  Fixed  Service  in  19.26-  19.3  GHz.  We  reject  the  argument 
 advanced  by  FWCC  to  restore  primary  status  for  the  terrestrial  fixed  services  in  the 
 19.26-  19.3  GHz  band.  FWCC  argues  that  the  Commissions  decision  was  erroneously 
 based  in  part  on  a  historical  study  suggesting  that  other  FS-  primary  bands  (e.  g.,  17.74- 
 18.14  GHz  and  19.3-  19.  7  GHz)  could  accommodate  the  expected  significant  growth  in 


 61  Id.  at  16-  18. 
 62  Id.  at  18-  19. 
 63  Teledesic  letter  at  1. 
 64  See  Teledesic  Petition. 
 65  See  Appendix  C. 
 66  See  Central  Florida  Enterprises  v.  FCC,  598  F.  2d  37,  48  n.  51  (D.  C.  Cir.  1978),  cert.  dismissed, 


 441  U.  S.  957  (1979)  (holding  that  the  filing  of  a  petition  for  reconsideration  tolls  the  normal  30-  day  limit 
 on  Commission  action  to  reconsider  a  decision  sua  sponte). 
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 the  Fixed  Service  and  relocation.  67  We  find  that,  although  the  study  was  historical,  in  the 
 course  of  the  proceeding  the  Commission  had  the  opportunity  to  consider  the  present 
 level  of  growth  in  the  FS,  as  well  as  other  issues  relating  to  relocation.  68  We  are  also 
 aware  of  FWCCs  projections  for  growth  in  the  FS.  We  agree,  however,  with  Astrolink 
 that  FWCCs  proposal  to  redesignate  this  band  would  be  detrimental  to  NGSO/  FSS  use 
 of  the  band.  69  We  find  that  this  allocat  ion  was  made  based  on  the  Commissions 
 assessment  of  the  relative  needs  of  the  competing  services.  Furthermore,  we  agree  with 
 Teledesic  that  there  is  no  other  suitable  spectrum  available  for  NGSO/  FSS  services  in  the 
 Ka-  band.  70 


 22.  We  recognize,  as  we  did  in  the  18  GHz  Order,  the  unique  international 
 status  of  the  18.8-  19.3  band  and  that  NGSO/  FSS  systems  are  likely  to  need  the  entire  500 
 megahertz  of  spectrum.  We  find  that  in  the  18  GHz  Order,  the  Commission  designated 
 the  18.8-  19.  3  GHz  band  to  the  NGSO/  FSS  service  on  a  primary  basis,  in  part  to  preserve 
 decisions  made  at  the  1995  and  1997  World  Radiocommunication  Conferences  (WRCs)  71 
 to  allocate  internationally  the  18.8-  19.3  GHz  band  to  the  NGSO/  FSS  service.  72  We  note 
 that  in  the  original  proceeding,  terrestrial  fixed  operators  had  requested  that  the 
 Commission  maintain  the  19.26-  19.3  GHz  band  for  terrestrial  fixed  service  use  in  order 
 to  maintain  the  existing  paired  channel  in  the  17.7-  17.74  GHz  band.  73  Teledesic  placed 
 on  the  record  a  statement  showing  that  its  proposed  NGSO/  FSS  system  would  suffer 
 unacceptable  interference  from  fixed  stations  operating  anywhere  in  the  18.8-  19.3  GHz 
 band.  74  We  acknowledge  that  there  is  growth  in  the  demand  for  spectrum  among  FS 
 operators.  We  conclude,  however,  that  current  operators  can  be  accommodated  through 
 the  policies  adopted  in  the  18  GHz  Order. 


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


 67  FWCC  petition  at  4-  5. 
 68  18  GHz  Order  at  13455-  56,  para.  52. 
 69  See  Astrolink  comment  at  9-  10. 
 70  See  Teledesic  opposition  at  2. 
 71  WRCs  are  regular  international  conferences  held  under  the  auspices  of  the  International 


 Telecommunications  Union  (ITU),  headquartered  in  Geneva,  Switzerland.  The  ITU  is  the  specialized 
 agency  of  the  United  Nations  dealing  with  international  telecommunications  matters.  72 
 See  Teledesic  reply  comments  at  9-  10,  IB  Docket  98-  172  (filed  December  21,  1998).  73 
 See  TIA-  Fixed  Section  comments  at  3-  4,  IB  Docket  98-  172  (filed  November  19,  1998).  74 
 See  Letter  from  Mark  A.  Grannis  on  behalf  of  Teledesic  to  Donald  S.  Abelson,  Chief, 
 International  Bureau,  FCC,  IB  Docket  98-  172,  (November  30,  1999).  75 
 Teledesic  LLC  v.  FCC,  Brief  for  Petitioner  Teledesic,  Case  No.  00-  1466  (D.  C.  Cir.  filed  April  30, 
 2001)  (Teledesic  Brief)  at  45-  46. 
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 existing  terrestrial  services  operating  in  this  segment,  and  apply  the  same  rules  relating  to 
 relocation  of  existing  users,  including  the  right  to  compensation  for  relocation  of  both 
 parts  of  a  channel  pair. 


 24.  We  find  that  this  treatment  of  FS  licensees  in  the  19.26-  19.3  GHz  band  is 
 supported  by  our  findings  in  the  18  GHz  Order  concerning  the  unique  circumstances 
 surrounding  FS  operations  in  the  19.26-  19.3  and  17.7-  17.  74  GHz  bands.  76  In  the  18  GHz 
 Order  we  concluded  that  existing  terrestrial  fixed  services  operating  in  the  19.26-  19.3 
 GHz  band,  which  was  redesignated  to  reflect  primary  status  for  FSS  operations,  would  be 
 grandfathered  on  a  permanent  basis  because,  the  channels  in  this  band  are  paired  with 
 channels  that  are  being  retained  for  primary  terrestrial  fixed  use  at  17.  7-  17.74  GHz,  thus 
 magnifying  the  impact  of  this  redesignation  on  the  fixed  service.  77  The  18  GHz  Order 
 explained  that: 


 [i]  f  we  were  to  impose  a  ten  year  sunset  period,  users  of  these  pairings 
 would  likely  be  required  because  of  equipment  availability  to  relocate  not 
 only  their  transmissions  in  the  19.26-  19.30  GHz  band  but  also  their  paired 
 transmissions  in  the  17.7-  17.74  GHz  even  though  the  17.7-  17.  74  GHz 
 transmissions  are  not  in  a  band  that  would  be  shared  with  FSS  operations. 
 Because  of  the  significant  impact  on  terrestrial  fixed  licensees,  and  since 
 there  are  few  existing  fixed  stations  in  this  band,  we  do  not  believe  it  is 
 appropriate  to  sunset  the  co-  primary  status,  and  associated  relocation 
 reimbursement  rights,  of  existing  terrestrial  stations  in  this  band.  78 


 25.  Upon  reconsideration,  however,  we  conclude  that  the  best  way  to  resolve 
 the  issues  surrounding  shared  use  and  relocation  of  FS  operations  in  the  19.26-  19.3  GHz 
 band  is  to  treat  such  operations  in  the  same  manner  as  other  operations  in  the  18  GHz 
 band.  We  find  that  such  equal  treatment  necessarily  includes  the  right  to  compensation 
 for  relocation  of  those  parts  of  a  channel  pair  that  might  be  located  in  the  17.7-  17.74  GHz 
 band,  even  though  we  did  not  redesignate  the  17.7-  17.  74  band  for  FSS  use.  We  find  that 
 there  is  nothing  inherent  in  the  19.26-  19.  3  GHz  band  that  would  dictate  that  there  be  a 
 transition  period  longer  than  ten  years,  but  there  is  an  inherent  need  to  have  both  sides  of 
 paired  frequencies  be  addressed  and  relocated.  We  also  find  that  requiring  FSS  operators 
 to  compensate  fully  FS  operators  in  the  19.26-  19.3  GHz  band  for  relocation  of  channels 
 in  both  this  band  and  the  paired  17.7-  17.74  GHz  band,  and  subjecting  these  rights  to  the 
 standard  ten-  year  sunset  period  are  more  narrowly  tailored  and  directly  related  to  the 
 unique  circumstances  in  these  bands  than  our  decision  in  the  18  GHz  Order  to  extend 
 permanent  relocation  reimbursement  rights  for  FS  operations  in  the  19.26-  19.3  GHz 
 band.  Accordingly,  we  find  that  the  public  interest  would  be  better  served  by  giving  FSS 
 operators  the  flexibility  of  undertaking  the  expense  of  relocating  existing  terrestrial  fixed 
 service  providers  in  the  subject  band  under  the  same  terms  and  conditions  discussed  in 


 76  18  GHz  Order  at  13463-  64,  para.  69. 
 77  Id. 
 78  Id. 
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 the  Relocation  section  of  the  18  GHz  Order  applicable  to  all  other  FS  licensees.  79  We 
 conclude  that  existing  terrestrial  services  operating  in  the  19.26-  19.3  GHz  band  will  not 
 be  allowed  to  recover  relocation  reimbursement  on  a  permanent  basis  and  will  be  subject 
 to  the  ten-  year  sunset  period  applicable  to  other  FS  operations  in  the  18  GHz  band.  We 
 conclude,  however,  that  the  ten-  year  sunset  period  for  existing  terrestrial  services 
 operating  in  the  19.26-  19.3  GHz  band  will  begin  from  the  adoption  date  of  this  Order. 


 26.  Channelization  of  Fixed  Service  bands.  We  agree  with  FWCC  and 
 Teledesic  that  there  is  a  need  to  rechannelize  the  17.7-  18.14  GHz  and  19.3-  19.7  GHz 
 bands,  and  we  plan  to  address  channelization  of  these  bands  in  a  future  rulemaking.  This 
 is  because  we  expect  that  as  noted  by  FWCC,  as  a  result  of  the  18  GHz  Order,  many  FS 
 licensees  will  migrate  from  the  18.58-  18.  82  GHz  and  18.92-  19.16  GHz  bands  that  are 
 designated  on  a  primary  basis  only  to  satellite  services.  80  We  agree  with  FWCC  and 
 Teledesic  that  we  will  need  to  find  other  suitable  channel  pairings  for  the  continued 
 operation  of  these  fixed  service  operators.  We  find  that  rechannelization  of  Fixed  Service 
 bands  has  the  potential  to  facilitate  the  relocation  of  these  FS  operators.  Therefore,  the 
 Commission  intends  to  open  a  new  proceeding  to  rechannelize  the  17.7-  18.14  GHz  and 
 19.3-  19.7  GHz  bands,  and  we  will  transfer  FWCCs  proposed  band  plan  to  that  docket 
 for  further  consideration.  81 


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


 28.  Hughes  and  Astrolink  argue  that  the  Commission  acted  arbitrarily  in 
 removing  the  secondary  designations  for  NGSO/  FSS  in  the  18.3-  18.8  GHz  GSO/  FSS  co-primary 
 and  primary  bands,  and  the  secondary  designations  for  GSO/  FSS  in  the  18.8- 
 19.3  GHz  NGSO/  FSS  primary  band.  86  Hughes  and  Astrolink  further  claim  that  the 


 79  18  GHz  Order  at  13467-  70,  paras.  76-  84. 
 80  FWCC  petition  at  5-  6. 
 81  See  Fixed  Wireless  Communications  Coalition,  Ex  parte  Presentation,  IB  Docket  98-  172,  (July  27, 


 2001).  82 
 18  GHz  Order  at  13459,  para.  58.  83 
 Id.  at  13457-  58,  para.  56.  84 
 18  GHz  NPRM  at  19939,  para.  33.  85 
 18  GHz  Order  at  13459,  para.  58.  86 
 Hughes  petition  at  16-  17;  Astrolink  opposition  and  comments  at  8. 
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 Commission  failed  to  provide  an  explanation  for  its  decision  in  the  18  GHz  Order.  87 
 According  to  Hughes,  the  Commissions  decision  is  inconsistent  with  treatment  of 
 secondary  satellite  designations  in  the  corresponding  uplink  band  segments  in  the  28  GHz 
 band.  88  Hughes  indicates  that  it  does  not  necessarily  disagree  with  the  Commission  that 
 deleting  the  secondary  satellite  designations  that  were  established  in  the  28  GHz  Order  in 
 the  satellite-  primary  bands  ultimately  may  be  sensible.  Hughes,  however,  argues  that 
 adopting  this  policy  in  a  haphazard  and  piecemeal  way  without  an  adequate  record 
 makes  no  sense.  89  Hughes,  Astrolink,  and  GE  Americom  argue  that  the  Commission 
 should  issue  a  Further  Notice  of  Proposed  Rulemaking  and  comprehensively  address  the 
 issue  for  both  the  Ka-  band  uplink  and  downlink  bands  in  a  new  proceeding,  where  the 
 results  of  WRC-  2000  could  be  considered.  90 


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


 30.  Secondary  Designation  for  BSS  at  17.7-  17.8  GHz.  We  disagree  with 
 Pegasuss  argument  that,  pending  the  Commissions  future  re-  examination  of  the  status 
 of  the  17.7-  17.  8  GHz  band,  the  Commission  should  adopt  a  secondary  allocation  to  BSS 
 in  this  band.  92  In  the  18  GHz  Order,  we  allocated  400  MHz  of  spectrum  at  17.3-  17.7 
 GHz  for  primary  BSS  use,  300  MHz  of  spectrum  at  24.  75-  25.  05  GHz  for  primary  FSS 
 Earth  to  space  use  that  is  limited  to  feeder  links  for  the  BSS  and  200  MHz  of  spectrum  at 
 25.05-  25.25  GHz  for  co-  primary  use  between  the  Fixed  Service  and  the  GSO/  FSS  service 


 87  Id. 
 88  Hughes  petition  at  16-  17. 
 89  Id. 
 90  Hughes  petition  at  16-  18;  Astrolink  opposition  and  comments  at  8;  GE  Americom  comments  at  5. 
 91  18  GHz  Order  at  13459,  para.  58. 
 92  See  Comments  and  Opposition  to  Petition  for  Clarification  and  Reconsideration  of  Pegasus 


 Development  Corporation,  November  13,  2000  (Pegasus  opposition).  We  note  that  Pegasuss  arguments 
 with  respect  to  the  17.  7-  17.  8  GHz  band  were  not  raised  in  a  timely  filed  petition  for  reconsideration,  but 
 rather  in  objections/  comments  to  timely  filed  petitions  in  this  proceeding,  and  thus  are  not  properly  before 
 the  Commission.  Nevertheless,  to  ensure  that  all  possible  issues  in  the  18  GHz  band  are  resolved,  the 
 Commission  on  its  own  motion  considers  the  issues  raised  by  Pegasus. 
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 that  is  limited  to  BSS  feeder  links.  93  In  the  18  GHz  Order,  we  recognized  the  importance 
 of  preserving  terrestrial  fixed  service  operations  in  the  17.7-  17.8  GHz  band.  94  We  found 
 in  the  18  GHz  Order  that  the  ubiquitous  nature  of  BSS  services  precludes  successful 
 coordination  with  similarly  widespread  terrestrial  services.  95  Although  we  decided  not  to 
 designate  the  17.7-  17.  8  GHz  band  for  BSS  use  in  the  18  GHz  Order,  we  noted  that  we 
 may  re-  examine  the  availability  of  this  spectrum  in  the  future,  depending  on  the  outcome 
 of  the  ongoing  terrestrial  fixed  service  relocation  efforts.  96 


 31.  Pegasus  argues  that  a  secondary  designation  for  the  BSS  in  the  17.7-  17.  8 
 GHz  is  appropriate  because  BSS  downlinks  in  the  band  will  not  cause  interference  to  FS 
 operations,  and  that  secondary  status  in  the  band  will  allow  Pegasus  to  provide  service  in 
 areas  where  there  are  no  FS  operations.  97  We  find  that  BSS  is  a  consumer  service  and  it 
 would  be  unreasonable  to  subject  consumers  to  the  risk  of  experiencing  service 
 interruption  each  time  a  new  terrestrial  fixed  service  link  is  introduced  in  the  area.  We 
 also  find  that,  at  this  time,  it  would  create  uncertainty  in  this  band  to  provide  a  secondary 
 allocation  to  BSS.  Accordingly,  we  conclude  that  the  Commission  may  re-  examine  this 
 issue  in  the  future  when  the  needs  of  operators  are  clearer.  Given  that  we  have  little  more 
 information  than  we  did  at  the  time  that  we  issued  the  18  GHz  Order,  we  find  no  reason 
 to  deviate  from  it  at  this  time.  We,  therefore,  reaffirm  our  decision  to  consider  BSS 
 service  rules  in  the  17.3-  17.7  GHz  band  in  a  future  proceeding. 


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


 33.  We  find  merit  in  some  of  the  concerns  expressed  by  Teledesic  in  its  brief 
 to  the  U.  S.  Court  of  Appeals  regarding  the  continued  licensing  and  operation  of  low-power 
 terrestrial  fixed  systems  in  the  18.82-  18.87  GHz  and  19.16-  19.21  GHz  bands 
 pursuant  to  section  101.147(  r)(  10)  of  our  rules.  98  In  the  18  GHz  NPRM,  we  proposed  to 
 permit  low-  power  fixed  systems  to  continue  to  operate  in  the  18.82-  18.87  GHz  and 
 19.16-  19.21  GHz  bands  on  a  primary  basis.  99  In  its  comments  in  response  to  the  18  GHz 
 NPRM,  Teledesic  suggested  that  the  Commission  not  leave  these  low-  power  fixed  service 
 stations  in  these  bands  on  a  permanent  co-  primary  basis,  based  on  the  possibility  that 


 93  18  GHz  Order  at  13475-  77,  para.  96. 
 94  18  GHz  Order  at  13477-  78,  paras.  97-  99. 
 95  18  GHz  Order  at  13477,  para.  98. 
 96  18  GHz  Order  at  13477-  78,  para.  99. 
 97  Pegasus  opposition  at  8-  9. 
 98  See  Teledesic  Brief  at  38-  39. 
 99  See  18  GHz  NPRM  at  19943,  para.  42. 
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 these  stations  could  cause  harmful  interference  to  an  NGSO/  FSS  terminal  located  up  to 
 two  km  away.  100  Teledesic  proposed  that  the  Commission  refuse  to  accept  any  new 
 applications  for  these  low-  power  stations  and  halt  the  deployment  of  additional  stations 
 under  existing  licenses.  101  Teledesic  also  proposed  that  existing  stations  be  permitted  to 
 continue  operating  for  the  full  term  of  their  licenses,  or  until  January  1,  2003,  whichever 
 is  earlier.  102  In  response  to  the  concerns  raised  by  Teledesic,  the  Commission  decided  in 
 the  18  GHz  Order  that: 


 [r]  egarding  the  low  power  fixed  systems  mentioned  in  the  NPRM,  in  the  18.82- 
 18.87  and  19.16-  19.  21  GHz  bands,  such  stations  have  been  licensed  on  a  primary 
 basis  and  will  continue  to  be  so  licensed,  given  the  proposal  in  the  NPRM  and  the 
 lack  of  significant  comments.  They  will  not  be  subject  to  the  same  transition 
 rules  as  the  full  power  stations  in  their  band.  In  addition,  they  will  not  be  subject 
 to  the  same  relocation  requirement,  since  they  will  be  co-  primary  with  the  FSS. 
 They  will  be  permitted  to  continue  to  operate,  and  new  stations  will  be  licensed 
 subject  only  to  the  limitation  that  they  operate  indoors.  The  restriction  to  indoor 
 use  will,  of  necessity,  place  some  signal-  attenuating  barrier  between  low  power 
 fixed  stations  and  FSS  earth  stations,  which  are  always  located  outdoors.  While 
 interference  could  still  be  possible,  the  probability  of  interference  is  significantly, 
 and  acceptably,  reduced  as  the  interfering  signal  is  so  diminished.  103 


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


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


 100  See  Teledesic  comments  at  6,  IB  Docket  98-  172  (filed  November  19,  1998)  (Teledesic 
 Comments).  101 
 Id.  102 
 Id.  103 
 See  18  GHz  Order  at  1347-  58,  para.  56.  104 
 See  Teledesic  LLC  v.  FCC,  Reply  Brief,  No.  00-  1466  (D.  C.  Cir.  filed  xx  date)  (Teledesic  Reply 
 Brief)  at  19.  105 
 See  Teledesic  Reply  Brief  at  20.  106 
 18  GHz  Order  at  13432,  para.  4. 
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 providers  to  require  them  to  relocate;  and  3)  require  satellite  providers  to  pay  for  all 
 necessary  relocation  costs.  107 


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


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


 107  See  18  GHz  Order  at  13460-  61,  para.  63. 
 108  47  C.  F.  R.    101.147(  r)(  10). 
 109  See  Teledesic  Comments. 
 110  See  Teledesic  Reply  Brief  at  20. 
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 transmitters  that  cause  interference.  We  find  that  because  our  decision  in  the  18  GHz 
 Order  indicates  that  the  low-  power  transmitters  are  not  subject  to  our  transition  and 
 relocation  rules,  the  ubiquitous  deployment  of  NGSO/  FSS  earth  stations  in  this  band 
 could  be  hindered  if  we  do  not  take  further  action. 


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


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


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


 111  18  GHz  Order  at  13460-  61,  13464-  70,  paras.  63,  70-  84. 
 112  47  C.  F.  R    15.  247. 
 113  See  47  C.  F.  R.    15.  5(  b). 
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 alternative  arrangements  for  future  low-  power  fixed  operations.  Also,  we  find  this  cut  off 
 date  is  appropriate  and  consistent  with  Teledesics  current  service  deployment  plans. 


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


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


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


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


 45.  We  agree  with  Hughes  and  several  commenters  that  the  pfd  values  in 
 place  before  we  adopted  the  18  GHz  Order  were  already  designed  to  pre-  coordinate 


 114  18  GHz  Order  at  13451,  para.  43. 
 115  Id.  at  13451-  52,  para.  44. 
 116  Id.  at  13452-  53,  para.  46. 
 117  Hughes  petition  at  13-  14. 
 118  Id. 
 119  Astrolink  opposition  and  comments  at  10-  11. 
 120  SIA  comments  at  2. 
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 spacecraft  transmissions,  and  terrestrial  fixed  service  receivers  regardless  of  the  elevation 
 angle  and  azimuth  of  the  terrestrial  receiver.  121  We  find  that  the  pfd  limit  set  in  the  17.  7-19.7 
 GHz  band  had  been  internationally  adopted  since  September  6,  1983  to  protect 
 Fixed  Service  operations,  and  to  avoid  the  need  for  Fixed  Service  /  Fixed  Satellite 
 Service  coordination.  While  we  noted  in  the  18  GHz  Order  that  the  Commission  has 
 adopted  no  rule  limiting  terrestrial  systems  operating  above  15  GHz  from  pointing  at  the 
 geostationary-  satellite  arc,  the  limitation  that  applies  below  15  GHz  applies  to  terrestrial 
 transmitters  for  the  purpose  of  protecting  FSS  space  station  receivers,  and  not  for  the 
 protection  of  terrestrial  receivers  from  the  transmissions  of  space  stations.  Therefore,  we 
 find  that  our  comparison  in  the  18  GHz  Order  to  the  rules  for  operation  below  15  GHz  is 
 inappropriate.  122 


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


 47.  Similarly,  for  the  8.8-  19.  3  GHz  NGSO/  FSS  bands,  the  18  GHz  Order 
 adopted  pfd  limits  for  NGSO/  FSS  satellites.  The  limits  adopted  were  those  adopted  at 
 the  ITU  WRC-  2000  conference  for  NGSO  satellites  in  the  17.7-  19.7  GHz  band.  That 
 conference  recognized  that  the  satellite  pfd  limits  adopted  were  sufficient  to  protect 
 terrestrial  FS  receivers  in  those  bands.  Accordingly,  on  reconsideration  we  find  that 
 section  25.145(  i)  of  the  rules  is  neither  necessary  nor  appropriate,  and  we  hereby  delete 
 section  25.145(  i)  from  our  rules. 


 C.  Licensing  Issues 


 48.  Technical  Corrections.  We  deny  Hughess  request  to  modify  section 
 25.138(  b)  of  the  Commissions  rules  to  limit  the  rules  application  to  blanket-  licensed 
 earth  stations.  Section  25.138  establishes  guidelines  for  Ka-  band  earth  station 
 operations.  123  It  also  requires  licensees  of  non-  compliant  stations  to  coordinate  with 
 affected  Ka-  band  satellite  operators,  and  bear  the  burden  of  coordinating  with  future 
 applicants  and  licensees.  124  Hughes  argues  that  modification  is  warranted  because  the 
 Commission  improperly  omitted  the  word  blanket  before  the  phrase  earth  station 


 121  Hughes  petition  at  12;  SIA  opposition  and  comments  at  5. 
 122  See  18  GHz  Order  at  13451-  52,  para.  44. 
 123  47  C.  F.  R.    25.  138. 
 124  See  47  C.  F.  R.    25.  138(  c). 
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 license  in  25.138(  b),  and  failed  to  explain  the  basis  for  the  omission.  125  According  to 
 Hughes,  the  rule  is  the  result  of  a  proposal  of  an  industry-  working  group,  and  the 
 industry-  working  group  only  intended  it  to  apply  to  blanket-  licensed  earth  terminals.  126 
 Hughes  argues  that  in  its  current  state  the  rule  could  be  incorrectly  interpreted  to  require 
 individually  licensed  earth  stations,  even  after  they  are  coordinated,  to  power  down  to 
 accommodate  new  operations  at  any  of  the  six  orbital  locations  within  six  degrees.  127 


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


 125  Hughes  petition  at  24. 
 126  Id. 
 127  GE  Americom  supports  Hughess  request  for  modifications  to  the  technical  rules.  GE  Americom 


 comments  at  7-  8.  128 
 Astrolink  opposition  and  comments  at  15.  129 
 Astrolink  reply  at  4-  6.  130 
 Pegasus  comment  and  reply  at  1-  2,  Astrolink  opposition  and  comments  at  15.  131 
 Lockheed  Martin  comments  at  2-  3.  132 
 Id.  133 
 Id. 
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 50.  As  noted  above,  we  agree  with  Astrolink,  Pegasus,  and  Lockheed  Martin 
 that  section  25.138(  b),  as  adopted  in  the  18  GHz  Order,  correctly  establishes  the 
 procedure  to  license  non-  compliant  earth  stations  on  both  a  blanket  and  individual  basis. 
 We  find  that  section  25.138(  c)  was,  among  other  things,  intended  to  preserve  the  bands 
 designated  only  for  GSO/  FSS  for  such  licensing.  Consequently,  we  find  that  section 
 25.138(  c)  properly  places  the  coordination  burden  on  the  operator  of  the  non-  compliant 
 terminals,  appropriately  considering  the  type  of  GSO/  FSS  usage  for  these  frequency 
 bands.  We  find  that  this  procedure  makes  additional  spectrum  available  with  fewer 
 constraints  on  those  satellite  operators  that  plan  to  operate  at  those  levels  established  for 
 blanket  licensing.  Furthermore,  for  those  operators  that  chose  to  operate  blanket-  or 
 individually-  licensed  earth  stations  within  the  unshared  GSO/  FSS  bands  at  levels  beyond 
 those  established  for  blanket  licensing,  we  adopt  a  flexible  coordination  approach  in 
 section  25.138(  c)  to  accommodate  such  applications.  Individually-  licensed  non-complaint 
 earth  stations,  e.  g.,  TT&  C  stations,  are  not  precluded  from  operating  in  the 
 unshared  GSO/  FSS  bands.  However,  the  risk  of  additional  future  operating  constraints 
 must  be  assessed  by  the  applicant  and  the  non-  compliant  operations  must  be  coordinated 
 with  existing  and  future  compliant  operations  in  the  unshared  GSO/  FSS  bands.  In  this 
 manner,  continued  orbit  spectrum  utilization  efficiency  will  be  assured. 


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


 52.  We  find  that  the  pfd  limits  specified  in  section  25.208(  c)  should  apply  to 
 the  18.3-  18.  8  GHz  band,  where  satellite  and  terrestrial/  grandfathered  terrestrial  operators 
 still  share  the  band.  We  agree  with  the  petitioner  and  commenters  that  the  pfd  values  in 
 place  were  already  designed  to  pre-  coordinate  spacecraft  transmissions  and  terrestrial 
 fixed  service  receivers  regardless  of  the  elevation  angle  and  azimuth  of  the  terrestrial 
 receiver.  We  note  that  the  pfd  limit  set  in  the  17.7-  19.7  GHz  band  had  been 
 internationally  adopted  since  September  6,  1983,  to  protect  FS  operations  and  to  avoid 


 134  GE  Americom  comments  at  7-  8. 
 135  Astrolink  opposition  and  comments  at  12-  17. 
 136  SIA  comments  at  5. 
 137  Hughes  petition  at  22-  23;  SIA  comments  at  5. 
 138  SIA  comments  at  5. 
 139  SIA  comments  at  5. 
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 the  need  for  FS/  FSS  coordination.  We  find  that  GSO/  FSS  operations  in  the  17.8-  20.2 
 GHz  band,  in  accordance  with  footnote  US334  of  the  United  States  Table  of  Frequency 
 Allocations,  permit  FSS  sharing  with  the  FS  in  those  bands  using  the  same  pfd  limits 
 specified  in  section  25.208(  c).  Accordingly,  we  delete  section  25.208(  d),  and  amend  the 
 rules  to  apply  the  pfd  values  in  section  25.208(  c)  to  the  18.3-  18.  8  GHz  frequency  band. 
 Only  sections  25.208(  e)  and  25.208(  f)  therefore  remain,  and  are  accordingly  re-  lettered 
 within  section  25.208. 


 53.  We  also  agree  with  Hughes  that  the  pfd  level  in  section  25.138(  a)(  6)  of 
 -118  dBW/  m  2  /MHz  should  apply  to  all  GSO/  FSS  downlink  bands  in  which  the 
 Commission  permits  blanket  licensing.  140  Specifically,  Hughes  contends  that  the 
 Commission  incorrectly  omitted  the  18.58-  18.8  downlink  band  from  section 
 25.138(  a)(  6).  141  We  find  that  the  pfd  value  in  section  25.138(  a)(  6)  should  apply  as  a 
 coordination  threshold  in  each  GSO/  FSS  downlink  band  in  which  blanket  earth  station 
 licensing  is  permitted.  In  paragraph  87  of  the  18  GHz  Order,  the  Commission  adopted 
 the  blanket  licensing  procedure  for  GSO/  FSS  earth  stations  in  the  unshared  18.58-  18.8 
 GHz,  19.7-  20.  2  GHz,  28.  35-  28.6  GHz,  and  29.5-  30  GHz  bands.  142  Therefore,  we  find 
 that  despite  the  fact  that  there  is  no  reference  to  the  18.58-  18.8  GHz  band  in  section 
 25.138(  a)(  6),  the  blanket  licensing  text  in  the  18  GHz  Order  is  applicable  to  the  18.  58-18. 
 8  GHz  band.  In  an  effort  to  make  the  rules  consistent,  we  hereby  delete  reference  to 
 the  19.7-  20.  2  GHz  band  in  section  25.138(  a)(  6)  of  our  rules,  and  conclude  that  the  pfd 
 requirement  will  be  applicable  to  all  frequencies  listed  under  section  25.138. 


 D.  Relocation  Issues 


 54.  Comparable  Facilities.  We  deny  Winstars  request  that  the  Commission 
 clarify  through  a  modification  of  its  rules  that  if  an  incoming  licensee  is  unable  or 
 unwilling  to  provide  an  incumbent  licensee  with  comparable  facilities,  the  incumbent 
 licensee  will  not  be  subject  to  mandatory  relocation.  Teledesic  disagrees  with  Winstars 
 request  for  clarification,  claiming  that  it  is  an  attempt  to  bait  the  Commission  into  stating 
 that  facilities  must  be  perfect  in  every  respect  before  relocation  will  be  required.  143 
 According  to  Teledesic,  sometimes  it  is  necessary  to  make  post-  installation  adjustments 
 to  facilities  after  the  switchover  has  occurred,  and  it  would  be  unreasonable  to  state 
 otherwise  by  way  of  clarification.  144  We  find  that,  as  noted  by  Astrolink  145  and 
 Teledesic,  146  modification  of  the  Commissions  rules  is  unnecessary  because  the  18  GHz 
 Order  states  that  incumbents  need  not  relocate  until  alternative  facilities  are  available  for 
 a  reasonable  time.  Specifically,  we  note  that  the  rule  adopted  in  the  18  GHz  Order  states 
 [  n]  egotiations  will  be  conducted  with  the  goal  of  providing  the  FS  licensee  with 


 140  Hughes  petition  at  23. 
 141  Id. 
 142  18  GHz  Order  at  13471,  para.  87. 
 143  Teledesic  opposition  at  3. 
 144  Id. 
 145  Astrolink  opposition  and  comments  at  6. 
 146  Teledesic  opposition  at  9. 
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 comparable  facilities,  and  that  comparable  facilities  are  defined  as  facilities 
 comparable  with  respect  to  measurable  criteria  that  include  throughput,  reliability,  and 
 operating  costs.  147  We  find  that  the  18  GHz  Order  sufficiently  establishes  that  an  FS 
 licensee  is  not  required  to  relocate  until  the  alternative  facilities  are  available  to  the  FS 
 licensee  for  a  reasonable  time  to  make  adjustments,  determine  comparability,  and  ensure 
 a  seamless  handoff.  We  note  that,  according  to  the  relocation  rules,  if  the  FS  licensee 
 demonstrates  to  the  Commission  that  the  new  facilities  are  not  comparable  to  the  former 
 facilities,  the  Commission  can  require  the  FSS  licensee  to  modify  further  or  replace  the 
 FS  licensees  equipment. 


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


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


 147  See  47  C.  F.  R.    101.89. 
 148  Astrolink  opposition  and  comments  at  6-  7. 
 149  Winstar  petition  at  11. 
 150  Winstar  petition  at  9-  10. 
 151  Id. 
 152  See  47  C.  F.  R.    101.89(  d)  (  Negotiations  will  be  conducted  with  the  goal  of  providing  the  FS 


 licensee  with  comparable  facilities.).  153 
 See  18  GHz  Order  at  para.  82  n.  167.  154 
 See  47  C.  F.  R.    101.89(  d)(  1).  155 
 See  47  C.  F.  R.    101.91(  b)(  1). 
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 57.  These  basic  relocation  principles,  which  we  reaffirm  in  this  order,  were 
 originally  drawn  from  the  2  GHz  Relocation  Order.  156  In  the  2  GHz  Relocation  Order, 
 the  Commission  determined  that  an  incumbent  needs  to  receive  only  enough  throughput 
 to  satisfy  its  needs  at  the  time  of  relocation.  157  In  the  2  GHz  Relocation  Order,  the 
 Commission  noted  that  it  selected  this  amount  of  throughput  to  prevent  inefficient  use  of 
 the  spectrum,  which  could  occur  if  an  incumbent  were  relocated  to  a  system  with 
 capacity  that  exceeds  its  current  needs.  158  For  example,  the  Commission  would  not 
 require  that  a  2  GHz  incumbent  that  has  5  MHz  of  bandwidth  be  relocated  to  a  similar-size 
 location  when  its  current  needs  only  justify  a  1.25  MHz  bandwidth  system.  159  In  the 
 18  GHz  Order,  the  Commission  likewise  required  that  relocated  incumbents  be  provided 
 only  with  enough  throughput  to  satisfy  the  FS  licensees  system  use  at  the  time  of 
 relocation,  not  match  the  total  capacity  of  the  FS  system.  160 


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


 59.  Moreover,  we  agree  with  the  majority  of  commenters.  For  example, 
 Astrolink  argues  that  the  Commission  properly  required  FSS  licensees  to  provide  FS 
 operators  with  replacement  throughput  to  satisfy  actual  use  at  time  of  relocation,  not  total 
 capacity,  because  relocation  will  only  be  performed  on  a  link-  by-  link  basis.  163  Hughes 
 argues  that  the  Commissions  decision  to  limit  the  throughput  of  the  relocated  FS 
 systems  to  the  capacity  actually  in  use  was  correct  because  this  ensures  that 
 grandfathered  FS  licensees  do  not  warehouse  spectrum  during  the  transition  period  in  the 
 hope  of  receiving  a  windfall  of  capacity  upon  relocation  by  a  satellite  licensee  and  also 
 recognizes  that  FS  licensees  will  have  additional  growth  opportunities  in  the  17.7-  18.3 
 GHz  band.  164  Pegasus  argues  that  the  Commission  properly  took  account  of  the  expected 
 growth  of  both  satellite  and  terrestrial  services  in  its  order  and  rationally  concluded  that 


 156  See  Amendment  to  the  Commissions  Rules  Regarding  a  Plan  for  Sharing  the  Costs  of  Microwave 
 Relocation,  11  FCC  Rcd  8825,  8840-  41  (1996)  (2  GHz  Relocation  Order),  at  para.  28  (addressing 
 relocation  of  microwave  facilities  operating  in  the  1850  to  1990  MHz  or  2  GHz  band.).  157 
 Id.  at  para.  29.  158 
 Id.  at  para.  29.  159 
 Id.  160 
 See  47  C.  F.  R.  101.  89(  d)(  1),  as  adopted  in  the  18  GHz  Order.  161 
 See  18  GHz  Order  at  13437,  para.  14  n.  27.  162 
 Winstar  petition  at  11.  163 
 Astrolink  opposition  and  comments  at  3.  164 
 Hughes  opposition  at  4-  5. 
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 the  public  interest  in  efficient  market  entry  of  FSS  licensees  outweighed  the  competing 
 interest  in  FS  growth.  165  Teledesic  argues  that  the  goal  of  the  relocation  rules  should  be 
 to  move  usage  toward  conformity  with  the  Commissions  band  plan  quickly  and  with  the 
 least  social  cost  possible.  166  According  to  Teledesic,  a  facility  using  an  over-  sized  40 
 MHz  channel  pair  that  has  customer  requirements  for  only  a  20  MHz  pair  is  made  whole 
 by  receiving  only  a  20  MHz  pair.  167  Teledesic  argues  that  requiring  the  new  entrant  to 
 build  a  40  MHz  facility  that  will  remain  underused  is  inefficient  and  will  result  in 
 spectrum  warehousing.  168 


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


 61.  We  generally  agree  with  Astrolink,  173  Hughes,  SIA,  174  and  Teledesic,  175 
 and  thus  we  conclude  that  in  evaluating  possible  relocation  options  for  FS  providers,  the 


 165  Pegasus  opposition  at  5-  6. 
 166  Teledesic  opposition  at  11. 
 167  Id. 
 168  Id. 
 169  FWCC  comments  at  2;  Winstar  petition  at  12. 
 170  Winstar  petition  at  13. 
 171  Id. 
 172  Winstar  petition  at  13-  14. 
 173  Astrolink  opposition/  comments  at  4.  Astrolink  argues  that  if  other  media  are  not  available  or 


 otherwise  inappropriate,  then  they  obviously  cannot  be  substituted  as  replacement  facilities.  Therefore, 
 Winstars  concern  is  unfounded  because  a  relocated  FS  operator  will  either  obtain  comparable  facilities,  as 
 defined  by  the  Commission,  or  continue  to  use  its  existing  facilities.  Astrolink  argues  the  Commission 
 should  permit  all  potential  replacement  facility  options  to  be  explored  and  utilized,  so  long  as  they  are 
 comparable,  rather  than  arbitrarily  exclude  certain  options  from  the  outset,  as  proposed  by  Winstar.  Id.  174 
 Hughes  opposition  at  5;  SIA  comments  at  7-  8.  Hughes  and  SIA  argue  that  alternative  media,  such 
 as  fiber,  wireline  or  even  satellite  networks  will  provide  the  necessary  flexibility  in  the  relocation  process. 
 According  to  Hughes,  to  foreclose  the  option  to  relocate  existing  licensees  to  comparable  facilities  in 
 alternative  media  would  force  the  Commission  into  the  position  of  choosing  between  competing  but 
 comparable  technologies.  Hughes  and  SIA  argue  that  as  long  as  the  alternative  media  facilities  are 
 comparable  under  the  Commissions  rules,  licensees  have  no  basis  for  concern.  Hughes  argues  that  the 
 alternative  media  simply  need  to  meet  the  Commissions  tests  for  throughput,  reliability  and  operating  cost, 
 the  same  as  a  terrestrial  fixed  wireless  relocation  option. 
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 key  test  should  be  whether  the  alternative  facilities  are  comparable  under  the  applicable 
 Commission  rules.  The  relocation  rules  adopted  in  the  18  GHz  Order  states  in  part  that: 
 FSS  licensees  may  negotiate  with  FS  licensees  authorized  to  use  frequencies  in  the 
 18.58-  19.30  band  for  the  purpose  of  agreeing  to  terms  under  which  the  FS  licensees 
 would  .  .  .  [r]  elocate  their  operations  to  other  fixed  microwave  bands  or  other  media.  176 
 We  find  that  this  provision  provides  flexibility  to  incumbents  and  new  entrants  in  the 
 relocation  process  to  be  able  to  use  whatever  comparable  facilities  are  available, 
 including  alternative  media.  We  find  that,  as  long  as  the  alternative  medium  is 
 comparable,  in  terms  of  throughput,  operating  costs,  and  reliability,  it  should  not  be  ruled 
 out  as  a  possible  option  for  relocation.  We  note,  however,  that  with  respect  to  fiber  optic 
 facilities,  the  receiving  fees  for  the  lease  of  such  lines  would  be  considered  a  valid 
 operating  cost  and  must  be  considered  as  a  factor  in  any  comparability  analysis.  We 
 also  note  that  our  rules  provide  that  a  terrestrial  fixed  licensee  will  be  given  a 
 reasonable  amount  of  time  to  test  the  new  facilities  to  ensure  comparability.  177 
 Accordingly,  we  conclude  that  there  is  no  need  for  further  clarification  of  this  issue. 


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


 63.  With  respect  to  the  identification  of  terrestrial  fixed  station  that  are 
 entitled  to  compensation  from  a  satellite  licensee  that  wishes  to  relocate  the  fixed  station, 
 in  the  18.58-  18.8  GHz  band,  stations  licensed  or  with  applications  pending  as  of  the 
 adoption  date  of  the  18  GHz  Order  (June  8,  2000)  are  entitled  to  compensation  for  the 
 relocation  of  their  facilities  for  a  period  of  ten  years  from  the  adoption  date  of  the  18  GHz 
 Order.  178  In  the  18.8-  19.  3  GHz  band,  stations  licensed  or  with  applications  pending  as  of 
 September  18,  1998,  are  also  entitled  to  compensation  for  the  relocation  of  their  facilities 
 for  a  period  of  ten  years  from  the  adoption  date  of  the  18  GHz  Order.  179  These 
 provisions  are  reflected  in  sections  21.901,  74.502,  74.  602,  78.18,  and  101.147(  r)  of  our 
 rules,  and  we  affirm  them. 


 175  Teledesic  opposition  at  11-  12.  Teledesic  argues  that  fiber  networks  and  other  options  may 
 sometimes  be  a  reasonable  relocation  option  and  therefore  should  be  considered.  Teledesic  further  argues 
 that  where  fiber  is  not  cost-  effective,  the  new  entrant  is  unlikely  to  suggest  it  since  the  new  entrant  will  be 
 paying  for  it.  Id.  176 
 18  GHz  Order  at  13466,  para.  73,  Appendix  A,  Section  101.  85(  a).  177 
 See  47  C.  F.  R.    101.91(  c).  178 
 See  18  GHz  Order  at  13464-  65,  paras.  71-  72.  179 
 Id. 
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 64.  With  respect  to  identification  of  a  terrestrial  fixed  stations  that  are  entitled 
 to  protection  from  interference  from  the  satellite  stations,  we  have  reconsidered  our 
 decision  to  adopt  Legacy  List  procedures  for  fixed  service  receivers  that  point  within  two 
 degrees  of  an  FSS  satellite.  Specifically,  upon  further  consideration,  we  have  determined 
 that  the  power  flux-  density  limits  adopted  for  both  the  GSO  and  NGSO  satellites  in  the 
 17.7-  19.7  GHz  band  are  sufficient  to  protect  the  fixed  service  receivers.  180  With  the 
 elimination  of  the  Legacy  List  procedures  and  the  acceptance  of  the  section  25.208  Power 
 Flux-  Density  Limits  as  the  sole  protection  criteria  for  terrestrial  fixed  stations  from  FSS 
 satellites  in  the  17.7-  19.7  GHz  band,  we  see  no  need  for  a  cut-  off  date  for  the  protection 
 of  terrestrial  fixed  stations.  Accordingly,  we  delete  section  25.145(  i)  from  our  rules. 


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


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


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


 180  See  paras.  49-  51  supra. 
 181  Astrolink  opposition  and  comments  at  5-  6. 
 182  See  18  GHz  Order  at  13469-  50,  para.  82. 
 183  Id. 
 184  Hughes  opposition  at  8-  9.  Hughes  further  argues  that  Winstar  seeks  solely  to  delay  the  relocation 


 process,  increasing  its  bargaining  leverage  with  satellite  licensees.  Id.  According  to  Hughes,  adding  to  the 
 current  two-  year  mandatory  negotiation  period  simply  increases  the  time  terrestrial  fixed  operators  have  to 
 operate  until  subject  to  involuntary  relocation.  Id.  Hughes  and  Teledesic  argue  that  voluntary  periods  allow 
 incumbents  to  refuse  to  negotiate  unless  new  entrants  pay  a  premium,  and  this  has  happened  to  those 
 involved  with  relocation  pursuant  to  the  2  GHz  Relocation  Order.  Hughes  opposition  at  8-  9;  Teledesic 
 opposition  at  8. 
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 access  to  this  spectrum,  which  we  believe  will  be  promoted  by  our  current  relocation 
 rules. 


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


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


 70.  We  agree  with  Hughes,  Astrolink  193  and  Pegasus  194  that  a  right  of  return 
 period  is  not  necessary  because  the  Commissions  18  GHz  relocation  rules  provide  that 


 185  Winstar  petition  at  16-  18.  The  2  GHz  Relocation  Order  provides  that  if  a  new  facility  was  not 
 found  to  be  comparable  during  the  first  twelve  months  of  operation,  the  PCS  licensee  must  either  cure  the 
 problem,  restore  the  incumbent  to  its  original  frequency,  or  relocate  it  to  an  equivalent  2  GHz  frequency.  2 
 GHz  Relocation  Order  at  para.  44.  186 
 Winstar  petition  at  17.  187 
 Id.  at  18.  188 
 Id.  at  16-  18.  189 
 Teledesic  opposition  at  10-  11;  Astrolink  opposition  and  comments  at  4-  5.  190 
 Hughes  opposition  at  5-  8,  TRW  opposition  at  5-  6.  191 
 TRW  opposition  at  5-  6.  192 
 Id.  193 
 Astrolink  opposition  and  comments  at  4-  5.  194 
 Pegasus  opposition  at  6-  8.  Pegasus  further  argues  that  the  Commission  denied  a  right  of  return 
 specifically  to  provide  FSS  licensees  flexibility  to  develop  their  operations  in  a  timely  and  economic 
 manner,  due  the  disruption  it  would  cause  to  national,  regional  and  global  satellite  systems  for  the  benefit 
 of  relatively  few  terrestrial  fixed  incumbents.  Pegasus  argues  that  a  right  of  return  is  not  necessary  in  light 
 of  the  Commissions  other  procedural  safeguards,  such  as  the  rules  requiring  the  FSS  licensee  pay  all 
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 involuntary  relocation  occurs  only  when  a  satellite  licensee  has  built  and  tested  a 
 comparable  facility  for  the  relocated  licensee  prior  to  relocation.  195  Moreover,  we  find 
 that,  as  noted  by  these  parties  and  SIA,  the  FS  licensee  has  the  ability  to  contest 
 comparability  if  there  has  been  inadequate  testing,  and  the  Commission  may  order  the 
 satellite  licensee  to  take  additional  measures  to  ensure  comparability  after  the 
 relocation.  196  Our  rules  provide  that  the  fixed  licensee  be  given  a  reasonable  time  to 
 conduct  such  tests,  197  and  we  amend  section  101.91(  c)  to  clarify  that  the  fixed  licensee 
 may  take  up  to  twelve  months  to  complete  such  testing,  to  make  adjustments,  and  ensure 
 compatibility. 


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


 72.  Assignments  and  Transfers.  We  agree  with  Winstar  that  the  adoption  of 
 section  1.929  of  our  rules  requires  that  we  clarify  section  101.97  with  regard  to  the 
 transfer  of  control  and  assignments  by  incumbent  18  GHz  licensees.  The  issue  that 
 Winstar  presents  arises  because  section  101.97  does  not  explicitly  address  whether  a 
 transfer  of  control  or  assignment  of  an  FS  license  by  an  incumbent  is  considered  a  major 
 or  minor  modification.  Winstar  points  out  that  in  the  ULS  Order,  199  the  Commission 
 adopted  section  1.929  of  our  rules,  which  is  entitled  Classification  of  filings  as  major  or 
 minor.  Section  1.929  states  in  part  as  follows:  Applications  and  amendments  to 
 applications  for  stations  in  the  wireless  radio  services  are  classified  as  major  or  minor.   
 For  all  stations  in  all  Wireless  Radio  Services    the  following  actions  are  classified  as 
 major:    Any  substantial  change  in  ownership  or  control.  200  Winstar  and  API  are 
 concerned  that  a  literal  reading  of  section  101.97  together  with  section  1.929  will  result  in 


 relocation  costs  and  complete  all  necessary  activities  for  implementing  replacement  facilities,  including 
 testing  and  a  reasonable  time  to  ensure  a  seamless  handoff.  Id.  195 
 See  47  C.  F.  R.    101.91(  a)(  1)-(  3)  (providing  that  the  FSS  licensee  must,  inter  alia,  guarantee 
 payment  of  relocation  costs,  complete  all  activities  necessary  for  implementing  the  replacement  facilities 
 and  build  the  replacement  facilities  and  test  it  for  comparability).  196 
 SIA  comments  at  8,  Hughes  opposition  at  5-  8  197 
 See  47  C.  F.  R.    101.  91(  c).  198 
 See  47  C.  F.  R.    101.91(  d).  199 
 See  Biennial  Regulatory  Review  --  Amendment  of  Parts  0,  1,  13,  22,  24,  26,  27,  80,  87,  90,  95,  97 
 and  101  of  the  Commissions  Rules  to  Facilitate  the  Development  and  Use  of  the  Universal  Licensing 
 System  in  the  Wireless  Telecommunications  Services,  Report  and  Order,  WT  Docket  No.  98-  20,  13  FCC 
 Rcd  21027  (1998)  (ULS  Order).  200 
 47  C.  F.  R.    1.  929. 
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 a  new  owner  of  a  facility  being  denied  the  primary  status  that  the  incumbent  seller  had 
 when  the  incumbent  seller  owned  the  facility.  201  Winstar  and  API  argue  that,  although 
 the  18  GHz  Order  intended  to  allow  an  incumbent  to  retain  primary  status  even  after  a 
 change  in  ownership  or  control,  the  Commission  failed  to  codify  this  aspect  of  the 
 decision  in  the  amended  rules,  and  a  literal  reading  of  the  rules  will  lead  to  the  opposite 
 result.  202  Therefore,  Winstar  requests  that  the  Commission  clarify  section  101.97  to 
 make  it  consistent  with  the  18  GHz  Order,  i.  e.,  to  state  explicitly  that  changes  of 
 ownership  or  control  are  granted  with  primary  status,  unless  the  Commission  determines 
 that  doing  so  would  increase  the  relocation  costs  or  that  the  transaction  involves  an 
 attempt  to  abuse  the  Commissions  relocation  policies.  203 


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


 74.  We  clarify  that,  notwithstanding  the  transfer  of  control  or  assignment  of  an 
 FS  license  by  an  incumbent,  the  license  will  retain  primary  status.  As  noted  by  API,  this 
 policy  is  consistent  with  long-  standing  Commission  policy  with  respect  to  license 
 assignments  and  transfers  of  control  in  the  2  GHz  relocation  proceedings.  207  We  agree 


 201  Winstar  petition  at  7,  API  reply  at  4. 
 202  Id. 
 203  Winstar  petition  at  6-  7. 
 204  See  47  C.  F.  R.    101.97(  a). 
 205  See  47  C.  F.  R.    101.97(  a)(  1)-(  8). 
 206  47  C.  F.  R.    101.97(  a). 
 207  See  47  C.  F.  R.    101.81.  The  language  in  section  101.97  parallels  the  language  adopted  in  section 


 101.81,  the  rule  that  dealt  with  the  same  issue  for  fixed  microwave  users  in  the  2  GHz  Relocation  Order.  Id. 
 In  the  2  GHz  proceeding,  the  Commission  noted  that,  existing  2  GHz  fixed  facilities  licensed  before 
 January  16,  1992,  are  permitted  to  make  modifications  and  minor  extensions  and  retain  their  primary 
 status  and  listed  modifications  in  ownership  or  control  among  the  acceptable  modifications  that  warrant 
 continued  primary  status.  Redevelopment  of  Spectrum  to  Encourage  Innovation  in  the  Use  of  New 
 Telecommunications  Technologies,  Third  Report  and  Order,  ET  Docket  No.  92-  9,  8  FCC  Rcd  6589,  6611 
 (Emerging  Technologies  Third  Report  and  Order)  at  paras.  53-  54. 
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 with  API  208  that  a  contrary  policy  would  likely  seriously  impair  the  marketability  of  the 
 licenses  in  question  and  cause  significant  harm  to  the  existing  investments  made  by  18 
 GHz  incumbents,  whereas  allowing  incumbents  the  opportunity  to  retain  primary  status 
 would  cause  little  or  no  harm  because  it  would  not  likely  increase  terrestrial  use  of  the 
 band  or  relocation  costs.  API  correctly  notes  that  assignees  and  transferees  will  be 
 limited  to  the  same  scope  of  operations  as  their  predecessors,  and  that  the  majority  of 
 transfers  will  involve  either  pro  forma  reorganizations  or  sale  of  an  entire  business.  209 
 For  these  reasons,  we  reject  the  argument  by  Teledesic  that  the  Commission  should  treat 
 the  transfer  of  control  or  assignment  of  an  incumbent  license  as  an  opportunity  to  reduce 
 the  number  of  FS  licensees  operating  in  the  band,  by  not  permitting  the  transferee  or 
 assignee  to  retain  primary  status.  We  are  not  persuaded  by  Teledesics  argument  that 
 denying  the  new  owner  the  benefit  of  primary  status  will  promote  band  segmentation 
 while  lowering  the  total  social  cost  of  the  transition  because  it  would  not  involve 
 relocation.  210 


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


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


 208  API  reply  at  1-  5.  Specifically,  API  argues  that  its  industry  relies  heavily  on  private  microwave 
 facilities  to  provide  important  safety-  related  functions,  and  that  they  have  been  experiencing  a  high  level  of 
 mergers  and  acquisitions  that  may  result  in  license  assignments  or  transfers.  Id.  API  further  argues  that  if 
 these  transactions  lead  to  a  loss  of  the  right  to  relocation  compensation,  it  will  impair  the  marketability 
 and/  or  market  value  of  these  companies,  as  well  as  other  18  GHz  FS  incumbents,  and  may  impede  the 
 ability  of  these  companies  to  continue  to  maintain  the  microwave  facilities  needed  to  conduct  their 
 operations  safely  and  efficiently.  Id.  209 
 API  reply  at  6-  7.  API  also  argues  that,  in  the  latter  case,  in  the  rare  event  that  a  particular 
 applications  appears  to  involve  trafficking  in  a  license  itself  or  sale  of  a  license  no  longer  needed,  it  would 
 be  within  the  Commissions  discretion  to  condition  grant  on  the  acceptance  of  secondary  status.  Id.  210 
 Teledesic  opposition  at  6. 
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 77.  In  addition,  we  are  not  convinced  by  Teledesics  argument  that  the 
 requirement  for  a  comparable  facility  is  a  windfall;  rather  we  are  convinced  that  anything 
 less  will  discourage  incumbents  from  relocating.  This  is  because  as  we  noted  in  the  18 
 GHz  Order,  comparable  facilities  must  be  equal  to  or  superior  to  existing  facilities.  211  It 
 stands  to  reason,  therefore,  that  anything  less  than  a  comparable  facility  is  an  inferior 
 facility.  We  find  Teledesics  effort  to  reduce  its  potential  costs  to  relocate  existing 
 terrestrial  operators  is  an  inadequate  basis  for  putting  an  incumbent  in  a  worse  position 
 than  it  would  have  been  before  the  relocation.  Indeed,  as  we  have  previously  stated,  we 
 believe  that  compensating  licensees  merely  for  the  depreciated  value  of  their  equipment 
 is  insufficient  to  enable  incumbents  to  construct  comparable  facilities,  and,  thus,  to 
 remain  in  full  operation,  in  replacement  spectrum.  212 


 78.  In  any  event,  we  note  that  the  18  GHz  Order  properly  left  it  up  to  the 
 parties  to  determine  whether  the  new  entrant  replaces  the  old  equipment  with  new 
 equipment.  213  That  is,  we  find  that,  as  we  explained  in  the  Emerging  Technologies  Third 
 Report  &  Order,  whether  the  incumbent  receives  a  windfall  is  largely  a  question  of 
 whether  the  new  entrant  agrees  to  it.  214  In  the  Emerging  Technologies  proceeding,  the 
 Commission  faced  a  similar  situation,  where  circumstances  required  the  modification  of 
 existing  spectrum  allocations  to  make  new  communications  services  possible  in  an 
 already-  occupied  band.  The  Commission  there,  as  here,  imposed  upon  the  new  entrant 
 the  responsibility  to  guarantee  payment  of  all  relocation  costs  for  comparable 
 alternative  facilities.  215  In  that  proceeding,  the  Commission  considered  the  issue  of  the 
 appropriate  standard  for  determining  the  level  of  costs  and  rejected  a  depreciated  value 
 standard  in  favor  of  the  cost  of  comparable  facilities.  216  In  the  Emerging  Technologies 
 Third  Report  and  Order,  the  Commission  specifically  rejected  the  argument  that 
 Teledesic  seeks  to  advance  in  the  petition  for  review  that  is  pending  in  the  United  States 
 Court  of  Appeals:  that  requiring  new  entrants  to  pay  the  full  cost  of  relocation  to 
 comparable  facilities  amounts  to  an  inequitable  windfall  for  existing  operators.  217 


 211  See  18  GHz  Order  at  13468,  para.  78.  To  determine  comparability  we  would  consider,  inter  alia, 
 system  reliability,  capability,  speed,  bandwidth,  throughput,  overall  efficiency,  bands  authorized  for  such 
 services,  and  interference  protection.  See  47  C.  F.  R.    101.89(  d)(  1)-(  3).  212 
 See  e.  g.,  MSS  Allocation,  15  FCC  Rcd  12352-  53,  paras.  111-  112,  118  ([  A]  ny  further  relief  from 
 relocation  costs  for  MSS  licensees,  such  as  allowing  them  to  pay  only  the  depreciated  value  of  the 
 equipment  operated  by  incumbents,  would  be  contrary  to  the  policies  we  established  in  our  Emerging 
 Technologies  proceeding,  and  would  threaten  the  integrity  and  continuity  of  the  services  provided  to  the 
 public  by  incumbent  2  GHz  licensees.    Relocation  is  not  a  question  of  compensation,  but  rather  a 
 requirement  that  the  new  technology  licensees  take  upon  themselves  the  burden  of  all  actions  necessary  to 
 provide  incumbents  with  comparable  facilities.);  Amendment  of  the  Rules  Regarding  Sharing  the  Costs  of 
 Microwave  Relocation,  11  FCC  Rcd  8825,  8844  at  para.  34  (1996)  ([  C]  ompensation  for  the  depreciated 
 value  of  the  old  equipment  would  not  enable  [incumbents]  to  construct  a  comparable  replacement  system 
 without  imposing  costs  on  the  incumbent,  which  would  be  inconsistent  with  our  relocation  rules.)  213 
 18  GHz  Order  at  13468,  para.  78.  214 
 Emerging  Technologies  Third  Report  and  Order  at  6603-  04  paras.  36-  38.  215 
 Id.  216 
 See  47  C.  F.  R.    101.91(  a)(  1),  see  also  Emerging  Technologies  Third  Report  and  Order  at  6603-  04 
 paras.  36.  217 
 18  GHz  Order  at  para.  78. 
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 Instead,  in  the  Emerging  Technologies  Third  Report  &  Order  the  Commission  declined 
 to  adopt  a  specific  definition  of  comparable  facilities  and  allowed  the  parties  in  each  case 
 to  negotiate  mutually  agreeable  terms  for  determining  comparability.  218  The  Commission 
 further  noted  in  the  Emerging  Technologies  Third  Report  &  Order  that,  in  any  case 
 brought  to  the  Commission  for  resolution  we  will  use  as  our  benchmark  that  comparable 
 facilities  must  be  equal  to  or  superior  to  existing  facilities.  219  However,  the  Commission 
 stated  in  the  Emerging  Technologies  Third  Report  &  Order  that  to  determine 
 comparability  we  would  consider,  inter  alia,  system  reliability,  capability,  speed, 
 bandwidth,  throughput,  overall  efficiency,  bands  authorized  for  such  services,  and 
 interference  protection.  220  The  18  GHz  Order  properly  cited  the  Emerging  Technologies 
 Third  Report  &  Order  to  explain  its  conclusions. 


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


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


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


 218  See  Emerging  Technologies  Third  Report  and  Order  at  6603-  04  paras.  36. 
 219  Id. 
 220  Id. 
 221  See  Amendment  of  Section  2.  106  of  the  Commissions  Rules  to  Allocate  Spectrum  at  2  GHz  for 


 Use  by  the  Mobile-  Satellite  Service,  ET  Docket  No.  95-  18,  15  FCC  Rcd  12315,  para.  109  (2000).  222 
 See  Hall  v.  McLaughlin,  864  F.  2d  at  872. 
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 Technologies  proceeding,  we  reaffirm  the  adoption  in  the  18  GHz  Order  of  the  measure 
 of  relocation  costs  derived  from  the  Emerging  Technologies  proceeding.  223 


 IV.  CONCLUSION 


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


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


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


 84.  This  Order  also  generally  affirms  our  basic  findings  in  the  18  GHz  Order 
 with  regard  to  the  blanket  licensing  rules.  It  changes,  however  the  power  flux-  density 
 (pfd)  value  for  the  18.3-  18.  8  GHz  frequency  band  to  the  values  in  section  25.208(  c)  to  be 
 consistent  with  the  pfd  limit  in  the  Radio  Regulations  of  the  International 
 Telecommunication  Union  and  deletes  section  25.208(  d).  We  also  determine  that  the  pfd 
 level  in  section  25.138(  a)(  6)  of  -118  dBW/  m2/  MHz  should  apply  to  all  Geostationary 
 Satellite  Orbit/  Fixed  Satellite  Service  (GSO/  FSS)  downlink  bands  in  which  the 
 Commission  permits  blanket  licensing.  We  amend  section  101.97  to  clarify  that  an 
 incumbent  Fixed  Service  (FS)  licensee  retains  primary  status  notwithstanding  a  change  in 
 ownership  or  control.  Further,  we  clarify  that  an  incumbent  licensee  is  entitled  to  a  12- 
 month  trial  period  after  relocation  to  test  the  new  facilit  ies. 


 85.  Finally,  this  Order  generally  denies  the  requests  to  reconsider  the 
 relocation  issues,  and  reaffirms  the  Commission  decision  to  adopt  the  relocation  rules 


 223  See,  e.  g.,  18  GHz  Order  at  13468,  para.  80. 
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 codified  in  sections  101.89  and  101.91.  This  is  in  part  because  we  find  that  it  is 
 appropriate  to  apply  in  the  18  GHz  band  the  established  policy  that  the  Commission  has 
 employed  in  other  similar  circumstances.  In  addition,  we  find  that  it  is  Commission 
 policy  to  enable  an  incumbent,  that  is  required  to  relocate,  to  construct  a  comparable 
 replacement  system  without  the  additional  burden  of  undue  costs.  Moreover,  this  Order 
 finds  that  the  alternative  proposals  offered  by  Teledesic  for  measuring  relocation  costs 
 are  plainly  inconsistent  with  this  Commission  goal.  We  further  find  that,  contrary  to  the 
 allegations  made  by  Teledesic,  new  entrants  benefit  from  the  Commission  policy  of 
 seeking  to  ensure  that  incumbents  have  every  possible  reasonable  incentive  to  relocate 
 promptly  and  voluntarily. 


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


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


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


 FEDERAL  COMMUNICATIONS 
 COMMISSION 


 Magalie  Roman  Salas 
 Secretary 
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 APPENDIX  A:  Final  Rules 
 Rule  Changes 


 For  the  reasons  set  forth  in  the  preamble,  parts  25,  and  101  of  title  47  of  the  Code  of 
 Federal  Regulations  are  amended  as  follows 


 PART  25--  SATELLITE  COMMUNICATIONS 
 The  authority  citation  for  Part  25  continues  to  read  as  follows: 
 AUTHORITY:  47  U.  S.  C.  701-  744.  Interprets  or  applies  sec.  303,  47  U.  S.  C.  303.  47 
 U.  S.  C.  sections  154,  301,  302,  303,  307,  309  and  332,  unless  otherwise  noted. 


 1.  Section  25.138  is  amended  to  read  as  follows: 
   25.138  Blanket  licensing  provisions  of  GSO  FSS  Earth  Stations  in  the  18.58-  18.8  GHz 
 (space-  to-  Earth),  19.  7  20.2  GHz  (space-  to-  Earth),  28.  35-  28.  6  GHz  (Earth-  to-  space)  and 
 29.5  30.0  GHz  (Earth-  to-  space)  bands. 


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


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


   25.145  Licensing  Conditions  for  the  Fixed-  Satellite  Service  in  the  20/  30  GHz  Bands 
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 *  *  * 
 (h)  Policy  governing  the  relocation  of  terrestrial  services  from  the  18.58  to  19.3  GHz 
 band:  Frequencies  in  the  18.58-  19.3  GHz  band  listed  in  Parts  21,  74,  78,  and  101  of  this 
 chapter  have  been  reallocated  for  primary  use  by  the  Fixed-  Satellite  Service,  subject  to 
 various  provisions  for  the  existing  terrestrial  licenses.  Fixed-  Satellite  Service  operations 
 are  not  entitled  to  protection  from  the  co-  primary  operations  until  after  the  period  during 
 which  terrestrial  stations  remain  co-  primary  has  expired.  (see    21.  901(  e),  74.  502(  c), 
 74.602(  g),  78.  18(  a)(  4),  and  101.147(  r)). 


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


   25.202  Frequencies,  frequency  tolerance  and  emission  limitations. 
 (a)(  1)  Frequency  bands.  *  *  * 
 *  *  * 
 7  The  band  18.8-  19.3  GHz  is  shared  co-  equally  with  terrestrial  radiocommunications 
 services  until  June  8,  2010. 


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


   25.208  Power  flux-  density  limits. 
 *  *  *  *  * 
 (c)  In  the  18.3-  18.  8  GHz,  19.3-  19.7  GHz,  22.  55-  23.00  GHz,  23.00-  23.55  GHz,  and 
 24.45-  24.75  GHz  frequency  bands,  the  power  flux-  density  at  the  Earth's  surface  produced 
 by  emissions  from  a  space  station  for  all  condit  ions  and  for  all  methods  of  modulat  ion 
 shall  not  exceed  the  following  values: 
 (1)  -115  dB  (W/  m  2  )  in  any  1  MHz  band  for  angles  of  arrival  between  0  and  5  degrees 
 above  the  horizontal  plane. 
 (2)  -115+  0.5  (d-  5)  dB  (W/  m  2  )  in  any  1  MHz  band  for  angles  of  arrival  d  (in  degrees) 
 between  5  and  25  degrees  above  the  horizontal  plane. 
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 (3)  -105  dB  (W/  m  2  )  in  any  1  MHz  band  for  angles  of  arrival  between  25  and  90  degrees 
 above  the  horizontal  plane. 


 (d)  In  addition  to  the  limits  specified  in  paragraph  26.138  of  this  Part,  the  power  flux-density 
 across  the  200  MHz  band  18.6-  18.8  GHz  produced  at  the  Earths  surface  by 
 emissions  from  a  space  station  under  assumed  free-  space  propagation  conditions 
 shall  not  exceed  -95  dB(  W/  m  2  )  for  all  angles  of  arrival.  This  limit  may  be  exceeded 
 by  up  to  3  dB  for  no  more  than  5%  of  the  time. 
 (e)  In  the  18.  8-  19.  3  GHz  frequency  band,  the  power  flux-  density  at  the  Earth's  surface 
 produced  by  emissions  from  a  space  station  for  all  conditions  and  for  all  methods  of 
 modulation  shall  not  exceed  the  following  values: 


 -115  -  X  dB(  W/  m  2  MHz)  for  0  d  G  <  5 
 -115  -  X  +  ((  10  +  X)/  20)(  G  -  5)  dB(  W/  m  2  MHz)  for  5  d  G  <  25 
 -105  dB(  W/  m  2  MHz)  for  25  d  G  <  90  Where: 


 G  :  is  the  angle  of  arrival  above  the  horizontal  plane  and 
 X  is  defined  as  a  function  of  the  number  of  satellites  in  the  non-  GSO  FSS  constellation,  n,  as  follows: 
 for  n  d  50  X  =  0  (dB) 
 for  50  <  n  d  288  X  =  (5/  119)  (n  -  50)  (dB) 
 for  n  >  288  X  =  (1/  69)  (n  +  402)  (dB) 


 PART  101  FIXED  MICROWAVE  SERVICES 
 The  authority  citation  for  Part  101  continues  to  read  as  follows: 
 AUTHORITY:  47  U.  S.  C.  154,  and  303. 
 5.  Section  101.85  is  amended  by  revising  paragraph  (b)  to  read  as  follows: 
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   101.85  Transition  of  the  18.  58-  19.  3  GHz  band  from  the  terrestrial  fixed  services  to  the  fixed-  satellite  service  (FSS) 
 *  *  * 
 (b)  FS  operations  in  the  18.58-  19.30  GHz  band  that  remain  co-  primary  under  the 
 provisions  of    21.901(  e),  74.  502(  c),  74.  602(  d),  78.  18(  a)(  4),  and  101.147(  r)  will 
 continue  to  be  co-  primary  with  the  FSS  users  of  this  spectrum  until  June  8,  2010  or  until 
 the  relocation  of  the  fixed  service  operations,  whichever  occurs  sooner,  except  for 
 operations  in  the  band  19.26-  19.3  GHz  and  low  power  systems  operating  pursuant  to 
 section  101.47(  r)  (10),  which  shall  operate  on  a  co-  primary  basis  until  (10  years  after 
 adoption  of  this  First  Report  and  Order  on  Reconsideration).  If  no  agreement  is 
 reached  during  the  negotiations,  an  FSS  licensee  may  initiate  relocation  procedures. 
 Under  the  relocation  procedures,  the  incumbent  is  required  to  relocate,  provided  that  the 
 FSS  licensee  meets  the  conditions  of  Sec.  101.91. 


 *  *  *  *  * 


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


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


 *  *  *  *  * 


 7.  Section  101.95  is  amended  by  revising  the  title  to  read  as  follows: 
   101.95  Sunset  provisions  for  licensees  in  the  18.  58-  19.  30  GHz  band. 
 *  *  *  *  * 


 8.  Section  101.97  is  revised  by  adding  an  additional  sub-  paragraph  (a)  9  as  follows: 
   101.97  Future  licensing  in  the  18.  58-  19.  30  GHz  band. 
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 *  *  *  *  * 
 a(  9)  Changes  in  ownership  or  control. 


 9.  Section  101.147(  r)  is  amended  to  read  as  follows: 
   101.147  Frequency  assignments 
 *  *  *  *  * 
 (r)  17,700  to  19,  700  and  24,250  to  25,  250  MHz:  Stations  operating  on  the  following 
 frequencies  in  the  band  18.58-  18.8  GHz  that  were  licensed  or  had  applications  pending 
 before  the  Commission  as  of  June  8,  2010  may  continue  those  operations  on  a  shared  co-primary 
 basis  with  other  services  under  Parts  21,  25,  and  74  of  the  Commission's  rules 
 until  June  8,  2010,  except  for  operations  in  the  band  19.26-  19.3  GHz  and  low  power 
 systems  operating  pursuant  to  section  101.47(  r)  (10),  which  shall  operate  on  a  co-  primary 
 basis  until  (10  years  after  adoption  of  this  First  Report  and  Order  on 
 Reconsideration).  Those  stations  operating  on  the  following  frequencies  in  the  band 
 18.8-  19.3  GHz  that  were  licensed  or  had  applications  pending  before  the  Commission  as 
 of  September  18,  1998  may  continue  those  operations  on  a  shared  co-  primary  basis  with 
 other  services  under  Parts  21,  25,  and  74  of  the  Commission's  rules  until  June  8,  2010. 
 After  this  date,  operations  in  the  18.58-  19.30  GHz  band  are  not  entitled  to  protection 
 from  fixed-  satellite  service  operations  and  must  not  cause  unacceptable  interference  to 
 fixed-  satellite  service  station  operations.  No  new  Part  101  licenses  will  be  granted  in  the 
 18.58-  19.3  GHz  band  after  June  8,  2010,  except  for  certain  low  power  operations 
 authorized  under  Sec.  101.  147(  r)(  10),  which  may  continue  to  be  licensed  until  April  1, 
 2002.  Licensees  may  use  either  a  two-  way  link  or  one  frequency  of  a  frequency  pair  for  a 
 one-  way  link  and  must  coordinate  proposed  operations  pursuant  to  the  procedures 
 required  in  Sec.  101.103.  (Note,  however,  that  stations  authorized  as  of  September  9, 
 1983,  to  use  frequencies  in  the  band  17.7-  19.7  GHz  may,  upon  proper  application, 
 continue  to  be  authorized  for  such  operations,  consistent  with  the  above  conditions 
 related  to  the  18.58-  19.  3  GHz  band.) 


 *  *  *  *  * 


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


   101.147  Frequency  assignments 
 *  *  *  *  * 
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 (r)  (10)  *  *  *  *  * 
 *  *  *  *  * 
 (iv)  Low  power  stations  authorized  in  the  bands  18.82-  18.87  GHz  and  19.16-  19.  21  GHz 
 after  June  8,  2000  are  restricted  to  indoor  use  only.  No  new  licenses  will  be  authorized 
 for  applications  received  after  April  1,  2002. 
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 APPENDIX  B 
 Supplemental  Final  Regulatory  Flexibility  Analysis 
 As  required  by  the  Regulatory  Flexibility  Act  (RFA),  224  an  Init  ial  Regulatory 
 Flexibility  Analysis  (IRFA)  of  the  possible  significant  economic  impact  on  small  entities 
 was  incorporated  in  the  18  GHz  NPRM.  225  The  Commission  sought  written  public 
 comments  on  the  proposals  in  the  18  GHz  NPRM  including  comment  on  the  IRFA.  This 
 Supplemental  Final  Regulatory  Flexibility  Analysis  (FRFA)  conforms  to  the  RFA.  226 


 A.  Need  for,  and  Objectives  of,  the  Rules 
 In  this  First  Order  on  Reconsideration,  the  Commission  changes  the  pfd  value  for 
 the  18.3-  18.  8  GHz  frequency  band  to  the  values  in  section  25.208(  c)  to  be  consistent  with 
 the  pfd  limit  in  the  Radio  Regulations  of  the  International  Telecommunications  Union 
 and  delete  section  25.208(  d).  This  First  Order  on  Reconsideration  also  determines  that 
 the  pfd  level  in  section  25.138(  a)(  6)  of  -118  dBW/  m  2  /MHz  should  apply  to  all 
 Geostationary  Satellite  Orbit/  Fixed  Satellite  Service  (GSO/  FSS)  downlink  bands  in 
 which  the  Commission  permits  blanket  licensing.  It  amends  section  101.97  to  clarify  that 
 an  incumbent  Fixed  Service  (FS)  licensee  retains  primary  status  notwithstanding  a 
 change  in  ownership  or  control.  Further,  this  First  Order  on  Reconsideration  clarifies  that 
 an  incumbent  licensee  is  entitled  to  a  twelve-  month  trial  period  after  relocation  to  test  the 
 new  facilities.  Upon  reconsideration,  this  First  Order  on  Reconsideration  also  concludes 
 that  existing  terrestrial  services  operating  in  the  19.26-  19.3  GHz  band  will  not  be  allowed 
 to  recover  relocation  reimbursement  on  a  permanent  basis,  and  will  be  subject  to  the  ten 
 year  sunset  period  applicable  to  other  FS  operations  in  the  18  GHz  band.  This  First 
 Order  on  Reconsideration  also  takes  the  following  steps  to  better  reconcile  the 
 competing  interests  of  the  new  entrants  and  the  low-  power  terrestrial  fixed  service 
 operators  in  satellite  bands:  1)  cuts  off  any  further  low-  power  fixed  service  applications 
 under  section  101.147(  r)(  10)  as  of  April  1,  2002  (outdoor  applications  were  already  cut 
 off  in  the  18  GHz  Order);  and  2)  permits  low-  power  services  authorized  pursuant 
 section  101.147(  r)(  10)  to  continue  to  operate  on  a  co-  primary  basis  for  a  period  of  ten 
 years,  subject  to  the  right  of  satellite  providers  to  require  low-  power  operators  to  relocate. 
 Finally,  this  First  Order  on  Reconsideration  deletes  section  25.145(  i)  of  our  rules  and 


 224  See  5  U.  S.  C.    603.  The  RFA,  see,  5  U.  S.  C.    601  et  seq.,  has  been  amended  by  the  Contract  With 
 America  Advancement  Act  of  1996,  Pub.  L.  No.  104-  121,  110  Stat.  847  (1996)  (CWAAA).  Title  II  of  the 
 CWAAA  is  the  Small  Business  Regulatory  Enforcement  Fairness  Act  of  1996  (SBREFA).  225 
 See  Redesignation  of  the  17.  7-  19.  7  GHz  Frequency  Band,  Blanket  Licensing  of  Satellite  Earth  Stations 
 in  the  17.  7-  20.  2  GHz  and  27.  5-  30.0  GHz  Frequency  Bands,  and  the  Allocation  of  Additional  Spectrum  in 
 the  17.  3-  17.  8  GHz  and  24.  75-  25.25  GHz  Frequency  Bands  for  Broadcast  Satellite-  Service  Use,  Notice  of 
 Proposed  Rulemaking,  IB  Docket  No.  98-  172,  13  FCC  Rcd  19923  (1998)  (18  GHz  NPRM).  at  Appendix  B.  226 
 5  U.  S.  C.    604. 
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 reverses  the  Legacy  List  policy  that  the  Commission  adopted  in  the  18  GHz  Order;  thus, 
 the  Commission  will  no  longer  require  the  use  of  the  Legacy  List  coordination  process  by 
 an  FSS  space  station  licensee  to  alleviate  interference  to  a  terrestrial  fixed  station. 


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


 No  comments  were  submitted  in  direct  response  to  the  IRFA. 


 C.  Description  and  Estimate  of  the  Number  of  Small  Entities  To  Which  the  Rules  Will  Apply 


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


 227  5  U.  S.  C.    603(  b)(  3). 
 228  Id.    601(  6). 
 229  5  U.  S.  C.    601(  3).  (incorporating  by  reference  the  definition  of  "small  business  concern"  in  15  U.  S.  C.   


 632).  Pursuant  to  the  RFA,  the  statutory  definition  of  a  small  business  applies  "unless  an  agency,  after 
 consultation  with  the  Office  of  Advocacy  of  the  Small  Business  Administration  and  after  the  opportunity 
 for  public  comment,  establishes  one  or  more  definitions  of  such  term  which  are  appropriate  to  the  activities 
 of  the  agency  and  publishes  such  definition(  s)  in  the  Federal  Register."  5  U.  S.  C.    601(  3).  230 
 Small  Business  Act,  15  U.  S.  C.    632  (1996).  231 
 5  U.  S.  C.    601(  4).  232 
 1992  Economic  Census,  U.  S.  Bureau  of  the  Census,  Table  6  (special  tabulation  of  data  under  contract  to 
 Office  of  Advocacy  of  the  U.  S.  Small  Business  Administration).  233 
 5  U.  S.  C.    601(  5).  234 
 U.  S.  Dept.  of  Commerce,  Bureau  of  the  Census,  1992  Census  of  Governments.  235 
 Id. 
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 describe  and  estimate  the  number  of  small  entity  licensees  that  may  be  affected  by  the 
 adopted  rules. 


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


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


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


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


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


 6.  Direct  Broadcast  Satellites.  Because  DBS  provides  subscription  services,  DBS 
 falls  within  the  SBA  definition  of  Cable  and  Other  Pay  Television  Services  (SIC  4841). 
 This  definition  provides  that  a  small  entity  is  expressed  as  one  with  $11.0  million  or  less 
 in  annual  receipts.  As  of  December  1996,  there  were  eight  DBS  licensees.  However,  the 
 Commission  does  not  collect  annual  revenue  data  for  DBS  and,  therefore,  is  unable  to 


 236  An  exception  is  the  Direct  Broadcast  Satellite  Service  (DBS),  infra. 
 237  13  C.  F.  R.    120.121,  SIC  code  4899. 
 238  1992  Economic  Census  Industry  and  Enterprise  Receipts  Size  Report,  Table  2D,  SIC  code  4899  (U.  S. 


 Bureau  of  the  Census  data  under  contract  to  the  Office  of  Advocacy  of  the  Small  Business  Administration). 
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 ascertain  the  number  of  small  DBS  licensees  that  could  be  impacted  by  these  proposed 
 rules.  Although  DBS  service  requires  a  great  investment  of  capital  for  operation,  we 
 acknowledge  that  there  are  several  new  entrants  in  this  field  that  may  not  yet  have 
 generated  more  than  $11  million  in  annual  receipts,  and  therefore  may  be  categorized  as  a 
 small  business,  if  independently  owned  and  operated. 


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


 8.  Microwave  Services.  Microwave  services  includes  common  carrier,  private 
 operational  fixed,  and  broadcast  auxiliary  radio  services.  At  present,  there  are  22,  015 
 common  carrier  licensees,  approximately  61,670  private  operational  fixed  licensees  and 
 broadcast  auxiliary  radio  licensees  in  the  microwave  services.  Inasmuch  as  the 
 Commission  has  not  yet  defined  a  small  business  with  respect  to  microwave  services,  we 
 will  utilize  the  SBA's  definition  applicable  to  radiotelephone  companies  --  i.  e.,  an  entity 
 with  no  more  than  1,500  persons.  13  C.  F.  R.    121.  201,  SIC  CODE  4812.  We  estimate, 
 for  this  purpose,  that  all  of  the  Fixed  Microwave  licensees  (excluding  broadcast  auxiliary 
 licensees)  would  qualify  as  small  entities  under  the  SBA  definition  for  radiotelephone 
 companies. 


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


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


 F.  Report  to  Congress 
 The  Commission  will  send  a  copy  of  this  First  Order  on  Reconsideration 
 including  this  Supplemental  FRFA,  in  a  report  to  be  sent  to  Congress  pursuant  to  the 
 Small  Business  Regulatory  Enforcement  Fairness  Act  of  1966,  see  5  U.  S.  C.    801 
 (a)(  1)(  A).  In  addition,  the  Commission  will  send  a  copy  of  this  First  Order  on 
 Reconsideration,  including  this  Supplemental  FRFA,  to  the  Chief  Counsel  for  Advocacy 
 of  the  Small  Business  Administration.  A  copy  of  this  First  Order  on  Reconsideration  and 
 Supplemental  FRFA  (or  summaries  thereof)  will  also  be  published  in  the  Federal 
 Register.  See  5  U.  S.  C.    604(  b). 
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 APPENDIX  C 
 List  of  Oppositions/  Comments  and  Reply  Comments 
 Oppositions/  Comments: 
 Astrolink 
 American  Petroleum  Institute  (API) 
 Fixed  Wireless  Communications  Coalition  (FWCC) 
 GE  Americom 
 Hughes  Electronics  Corporation  (Hughes) 
 Independent  Cable  and  Telecommunications  Association  (ICTA) 
 Pegasus 
 Satellite  Industry  Association  (SIA) 
 Teledesic 
 TRW 
 Winstar 


 Reply  Comments: 
 Astrolink 
 American  Petroleum  Institute  (API) 
 Fixed  Wireless  Communications  Coalition  (FWCC) 
 Hughes  Electronics  Corporation  (Hughes) 
 Lockheed  Martin 
 Pegasus 
 Winstar 


 Late-  Filed  Reply  Comments: 
 Fixed  Wireless  Communications  Coalition 
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