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 Federal  Communications  Commission  FCC  02-  180 
 1 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 Allocations  and  Service  Rules  for  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  Bands 


 Loea  Communications  Corporation  Petition  for  Rulemaking 


 )  ) 
 )  ) 
 )  ) 
 ) 


 WT  Docket  No.  02-  146 
 RM-  10288 
 NOTICE  OF  PROPOSED  RULE  MAKING 
 Adopted:  June  13,  2002  Released:  June  28,  2002 
 Comment  Date:  90  days  after  publication  in  the  Federal  Register  Reply  Comment  Date:  135  days  after  publication  in  the  Federal  Register 


 By  the  Commission:  Commissioners  Abernathy,  Copps  and  Martin  issuing  separate  statements. 
 TABLE  OF  CONTENTS  Paragraph  # 


 I. 
 I.  INTRODUCTION  AND  EXECUTIVE  SUMMARY.................................................................  3 
 II.  BACKGROUND  ............................................................................................................................  4 
 III.  DISCUSSION..................................................................................................................................  7 
 A.  Allocation  Proposals  ...........................................................................................................  8  1.  Overview................................................................................................................  8 


 2.  71-  76  GHz  ...........................................................................................................  10  3.  81-  86  GHz  ...........................................................................................................  13 
 4.  92-  95  GHz  ...........................................................................................................  15  5.  RAS  Protection  in  the  81-  86  GHz,  92-  94  GHz,  and  94.1-  95  GHz  Bands  ...........  17 


 B.  Band  Plan..........................................................................................................................  18  1.  92-  95  GHz  Band  ..................................................................................................  19 
 2.  71-  76  GHz  and  81-  86  GHz  Bands.......................................................................  22 
 C.  Proposed  Service  Rules  for  Unlicensed  Bands  .................................................................  25 
 D.  Proposed  Rules  for  Licensed  Bands  .................................................................................  25  1.  Introduction..........................................................................................................  25 


 2.  Operational  Rules  ................................................................................................  26  a)  Geographic  Area  Licensing  ....................................................................  26 
 b)  Eligibility  ................................................................................................  29 
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 (1)  Foreign  Ownership  ....................................................................  29  (2)  Eligibility  Restrictions  ...............................................................  30 
 (3)  Band  Managers  ..........................................................................  31  c)  Canadian  and  Mexican  Coordination  .....................................................  33 
 d)  License  Term  and  Renewal  Expectancy  .................................................  33  e)  Construction  and  Coverage  Requirements..............................................  35 
 f)  Individual  Station  Licenses.....................................................................  36  g)  Application  of  Title  II  Requirements  to  Common  Carriers  ....................  36 
 h)  Partitioning  and  Disaggregation  .............................................................  37  3.  Technical  and  Operational  Rules  .........................................................................  38 
 a)  Regulation  Under  Part  101  .....................................................................  38  b)  Technical  Rules  ......................................................................................  39 
 4.  Licensing  Rules  and  Procedures  ..........................................................................  42  a)  Incorporation  by  Reference  of  Part  1  of  the  Wireless 
 Telecommunications  Services  Application  and  Procedural  Rules..........  42  b)  Competitive  Bidding...............................................................................  42 
 (1)  Assignment  of  Licenses  .............................................................  42  (2)  Incorporation  by  Reference  of  the  Part  1  Standardized 
 Auction  Rules  ............................................................................  45  (3)  Designated  Entity  Provisions.....................................................  45 
 c)  Application  Processing  ...........................................................................  47 
 D.  PROCEDURAL  MATTERS  ............................................................................................  48  1.  Initial  Regulatory  Flexibility  Analysis  ................................................................  48 


 2.  Paperwork  Reduction  Analysis............................................................................  48  3.  Ex  Parte  Rules    Permit-  But-  Disclose  Proceedings  ............................................  49 
 4.  Comment  Dates....................................................................................................  49 
 E.  ORDERING  CLAUSES...................................................................................................  51 
 A.  Need  for,  and  Objectives  of,  the  Proposed  Rules......................................................................  52 
 B.  Legal  Basis........................................................................................................................  53 
 C.  Description  and  Estimate  of  the  Number  of  Small  Entities  to  Which  the  Proposed  Rules  Will  Apply.  .............................................................................................................  53 


 D.  Description  of  Projected  Reporting,  Recordkeeping,  and  Other  Compliance  Requirements.  ...................................................................................................................  54 
 E.  Steps  Taken  to  Minimize  Significant  Economic  Impact  on  Small  Entities,  and  Significant  Alternatives  Considered.  ................................................................................  54 
 F.  Federal  Rules  that  May  Duplicate,  Overlap,  or  Conflict  with  the  Proposed  Rule.  ...........  55 
 G.  Ordering  Clause  ................................................................................................................  55 


 INITIAL  REGULATORY  FLEXIBILITY  ANALYSIS  Appendix  A  PROPOSED  RULES  Appendix  B 
 LIST  OF  COMMENTERS  Appendix  C 
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 I.  INTRODUCTION  AND  EXECUTIVE  SUMMARY 
 1.  With  this  Notice  of  Proposed  Rulemaking  (Notice),  we  examine  methods  to  promote  the  commercial  development  and  growth  of  the  "millimeter  wave"  spectrum  in  the  71-  76  GHz,  81-  86  GHz 


 and  92-  95  GHz  bands  under  Parts  15  and  101  of  our  Rules.  1  This  action  follows  an  initiative  by  our  Office  of  Engineering  and  Technology  concerning  possible  development  of  these  bands.  We  also  take 
 this  action  pursuant  to  our  mandate  under  Sections  7(  a)  and  303(  g)  of  the  Communications  Act  of  1934,  as  amended,  to  encourage  the  provision  of  new  technologies  and  services  to  the  public    and  encourage 
 the  larger  and  more  effective  use  of  radio  in  the  public  interest.  2  We  also  seek  comment  on  a  proposal  by  Loea  Communications  Corporation  (Loea)  to  establish  service  rules  for  the  licensed  use  of  the  71-  76 
 GHz  and  81-  86  GHz  bands.  We  seek  to  develop  a  flexible  and  streamlined  regulatory  framework  that  will  encourage  innovative  uses  of  the  spectrum;  accommodate  future  developments  in  technology  and 
 equipment;  promote  competition  in  the  communications  services,  equipment  and  related  markets;  and  advance  the  potential  sharing  between  non-  Federal  Government  and  Federal  Government  3  systems.  4 
 Additionally,  we  anticipate  that  our  proposals  will  encourage  the  use  of  technologies  developed  in  military  and  scientific  applications  in  a  broad  range  of  new  products  and  services,  such  as  high-  speed 
 wireless  local  area  networks  and  broadband  access  systems  for  the  Internet. 
 2.  In  July  2000,  the  Commission  held  a  public  forum  on  possible  new  uses  of  the  92-  95  GHz  band.  5  Several  speakers  at  the  forum  indicated  that  due  to  recent  technological  developments,  new  uses 


 of  this  band  are  approaching  practicality.  In  addition,  in  July  2001,  Loea  experimented  with  technology  it  developed  for  use  of  the  71-  76  GHz  and  81-  86  GHz  bands.  6  As  a  result,  Loea  filed  a  petition  requesting 
 the  establishment  of  service  rules  for  the  licensed  use  of  the  71-  76  GHz  and  81-  86  GHz  bands  on  September  10,  2001.  7  Accordingly,  we  seek  comment  on  our  proposed  rules  to  allow  use  of  the  71-  76 
 GHz,  81-  86  GHz,  92-  94  GHz  and  94.1-  95  GHz  bands  for  a  broad  range  of  new  fixed  and  mobile  services.  These  proposals  include  allocation  changes  to  the  bands  as  well  as  provisions  to  ensure  that  new  non-Federal 
 Government  operations  can  share  the  available  frequencies  with  Federal  Government  operations  in  the  same  bands  and  protect  operations  in  adjacent  bands.  Specifically,  we  seek  comment  on  the 
 following  issues  regarding  use  of  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands: 


 1  The  term  millimeter  wave  derives  from  the  wavelength  of  radio  signals  on  frequencies  between  30  GHz  and 
 300  GHz,  which  ranges  between  1  and  10  millimeters. 
 2  47  U.  S.  C.    7(  a),  303(  g). 


 3  In  the  context  of  spectrum  management,  Federal  Government  refers  to  use  by  the  Federal  Government  and 
 non-  Federal  Government  refers  to  use  by  private  entities  and  state  and  local  governments.  In  the  past,  the  Commission  has  sometimes  used  the  terms  Government  and  non-  Government  for  this  same  dichotomy,  but 


 we  feel  these  longer  terms  are  more  descriptive  and  thus,  are  phasing  in  the  more  descriptive  terms. 
 4  47  U.  S.  C.    7(  a),  303(  g). 


 5  See  Office  of  Engineering  and  Technology  to  Host  Forum  on  90  GHz  Technologies,  FCC  Public  Notice,  DA  00- 
 1191  (May  31,  2000). 
 6  See  Loea  Communications  Corporation,  Petition  for  Rulemaking  at  4  (filed  Sept.  10,  2001)  (Loea  Petition). 


 7  See  Loea  Petition. 
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   Reallocating  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  to  update  the  current  allocations,  which  were  established  at  the  World  Administration  Radio  Conference 
 (Geneva,  1979)  (WARC-  79); 
   Developing  an  appropriate  band  plan  for  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands; 


   Providing  for  unlicensed  use  of  the  92-  95  GHz  band; 
   Authorizing  the  new  licensed  services  under  Part  101  of  our  Rules  and  the  new  unlicensed  devices  under  Part  15  of  our  Rules; 


   The  appropriate  means  of  licensing  spectrum  for  these  bands  (e.  g.,  geographic  service  areas  or  site-  based  licenses); 
   Whether  to  permit  licensees  to  select  licensing  as  a  band  manager  or  as  a  regular  non-band  manager  licensee;  and 
   Developing  an  appropriate  eligibility  standard  for  potential  licensees. 
 II.  BACKGROUND 
 3.  The  use  of  wireless  frequencies  by  entities  regulated  by  the  Commission  is  subject  to  two  primary  types  of  regulatory  oversight:  an  allocation  of  spectrum  and  rules  to  govern  the  operations  in  the 


 band.  8  Spectrum  allocations  are  set  forth  in  the  United  States  Table  of  Allocations  (U.  S.  Table)  in  Section  2.106  of  our  Rules.  9  The  U.  S.  Table  now  extends  up  to  300  GHz  and  specifies  the  types  of  services  for 
 which  each  band  may  be  used.  Service  rules  describe  the  specific  technical  standards  and  licensing  criteria  to  be  used  for  licensed  services  or  the  technical  standards  that  apply  to  unlicensed  devices.  10  At 
 present,  the  highest  frequencies  for  which  we  authorize  licensed  services  are  in  the  48.2-  50.2  GHz  band  and  the  highest  frequencies  in  which  unlicensed  devices  may  operate  is  the  76-  77  GHz  band.  11  Thus, 
 currently,  radio  technology  that  operates  above  50.2  GHz  may  not  be  licensed  except  on  an  experimental  basis  under  Part  5  of  our  rules,  12  and  devices  for  operation  above  77  GHz  on  either  a  licensed  or 
 unlicensed  basis  may  not  be  marketed.  13 


 8  For  licensed  services,  these  rules  are  called  service  rules. 
 9  47  C.  F.  R.    2.106. 
 10  Unlicensed  devices  that  intentionally  emit  radio  frequency  energy  are  regulated  under  Part  15  of  our  Rules.  The 
 Part  15  rules  specify  limits  on  the  power  and  operating  characteristics  of  these  devices  that  are  designed  to  avoid  the  potential  for  such  devices  to  cause  interference.  These  rules  also  provide  that  unlicensed  devices  may  not 


 cause  interference  and  must  accept  interference  from  other  radio  transmitters.  See  generally,  47  C.  F.  R.  Part  15. 
 11  47  C.  F.  R.    15.253,  25.202(  a)(  1).  Consistent  with  their  class  of  licenses,  Amateur  licensees  are  permitted  to 
 use  various  bands  allocated  to  the  Amateur  Service  without  authorization  for  specific  frequencies.  Therefore,  it  is  unclear  as  to  whether  the  75.5-  76  GHz  Amateur  Radio  band  is  currently  being  used. 


 12  47  C.  F.  R.    5.01  et  seq.  These  rules  permit  simplified  licensing  of  spectrum  for  experiments  that  would  not 
 otherwise  be  permitted  under  our  Rules.  In  general,  equipment  may  not  be  marketed  in  connection  with  such  (continued.) 
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 4.  On  September  10,  2001,  Loea  requested  that  the  Commission  commence  a  rulemaking  proceeding  to  adopt  service  rules  governing  the  licensing  and  point-  to-  point  use  of  the  71-  76  GHz  and  81- 
 86  GHz  bands.  Nine  parties  filed  comments  in  response  to  Loeas  Petition.  14 
 5.  The  Commission  is  aware  of  the  advances  in  microchip  development,  and  of  the  special  propagation  characteristics  of  the  71-  76,  81-  86,  and  92-  95  GHz  frequency  bands  that  provide  a  new 


 environment  for  the  development  and  marketing  of  new  applications  in  these  bands.  Current  uses  of  the  millimeter  wave  bands  include  radio  astronomy,  spaceborne  cloud  radars,  and  military  applications.  There 
 also  is  the  potential  to  use  the  spectrum  for  other  applications  such  as  passive  imaging  of  airport  runways  (when  obscured  by  fog  or  smoke),  imaging  to  display  hidden  contraband,  weapons  and  nonmetal  objects, 
 point-  to-  point  communications,  and  point-  to-  multipoint  communications.  These  special  uses  are  possible  because  of  the  shorter  wavelengths,  which  are  about  three  to  five  millimeters,  and  because  of  other 
 technical  characteristics  that  differentiate  the  71-  76,  81-  86,  and  92-  95  GHz  bands  from  other  frequency  bands.  15  Loea,  for  example,  reports  successful  experiments  in  transmitting  video  and  teleconferencing 
 information  in  Maui,  Hawaii  over  separate  channels  at  71.0-  72.75  GHz  and  73.0-  74.75  GHz.  16  Loea  points  out  the  possibility  of  creating  and  offering  terrestrial  broadband  services  and  applications  in  these 
 bands,  which  would  lead  to  rapid  and  wider  deployment  of  broadband  capacity.  17 
 6.  Because  of  shorter  wavelengths,  the  71-  76,  81-  86,  and  92-  95  GHz  bands  permit  the  use  of  smaller  antennas  than  would  be  required  for  similar  circumstances  in  the  lower  bands,  to  achieve  the  same 


 high  directivity  and  high  gain.  18  The  immediate  consequence  of  this  high  directivity,  coupled  with  the  high  free  space  loss  at  these  frequencies,  is  the  possibility  of  a  more  efficient  use  of  the  spectrum  for 
 point-  to-  multipoint  applications.  Since  a  greater  number  of  high  directive  antennas  can  be  placed  than  less  directive  antennas  in  a  given  area,  the  net  result  is  higher  reuse  of  the  spectrum,  and  higher  density  of 
 users,  as  compared  to  lower  frequencies.  Furthermore,  due  to  the  fact  that  one  can  place  more  voice  channels  or  broadband  information  using  a  higher  frequency  to  transmit  the  information,  this  spectrum 
 could  potentially  be  used  as  a  replacement  for  or  supplement  to  fiber  optics. 


 (Continued  from  previous  page)  experiments  and  service  may  not  be  provided  for  commercial  use.  However,  there  are  provisions  for  limited 
 marketed  studies  that  permit  marketing  on  a  small  scale.  See  47  C.  F.  R.    5.93. 
 13  No  licensed  service  rules  address  frequency  use  above  50.2  GHz.  The  highest  frequency  specifically  authorized 
 for  unlicensed  use  is  77  GHz,  which  is  used  for  vehicular  radar  systems,  47  C.  F.  R.    15.253. 
 14  See  Appendix  C. 


 15  By  contrast,  the  wavelengths  in  the  UHF-  TV  band  are  about  half  a  meter  and  wavelengths  in  the  AM  broadcast 
 band  are  hundreds  of  meters.  The  wavelength  (expressed  in  meters)  for  a  given  frequency  can  be  found  by  dividing  300  by  the  frequency  (expressed  in  MHz). 


 16  See  Loea  Petition  at  4. 
 17  Id. 
 18  For  a  given  beamwidth  (directivity),  the  required  antenna  size  scales  inversely  with  frequency.  Thus  a  45  GHz 
 antenna  would  be  twice  as  large  as  a  90  GHz  antenna  with  the  same  beamwidth  and  a  22.5  GHz  antenna  would  be  four  times  as  large  as  a  90  GHz  antenna  with  the  same  diameter. 
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 7.  Another  important  propagation  characteristic  of  the  millimeter  wave  bands  is  its  particular  behavior  under  certain  atmospheric  conditions.  19  While  free  space  loss  is  proportional  to  the  distance 
 between  the  two  points  in  a  link,  and  the  frequency  used  in  the  link,  losses  due  to  atmospheric  absorption  are  dependent  on  the  frequency,  distance  and  weather  conditions.  Most  notable  is  how  the  loss  due  to  the 
 presence  of  oxygen  or  water  vapor  in  the  path  varies  greatly  with  frequency  and  increases  exponentially  with  distance.  Under  certain  circumstances,  it  can  be  much  greater  than  the  free  space  loss  that  is  the 
 main  factor  at  lower  frequencies.  For  example,  attenuation  below  30  GHz  due  to  the  atmosphere  absorption  is  about  0.4  dB/  km  for  the  worse  case  of  atmospheric  conditions  graphed.  With  the  same 
 conditions,  a  40  GHz  signal  was  shown  to  be  attenuated  at  about  0.7  dB/  km,  and  signals  between  92-  95  GHz  were  shown  to  be  attenuated  at  the  rate  of  about  2-  3  dB/  km.  20  Near  60  GHz,  the  signal  loss  due  to 
 absorption  by  oxygen  molecules  shows  a  dramatic  jump  in  signal  loss  to  a  peak  of  about  15  dB/  km.  21 
 8.  One  can  take  advantage  of  the  peculiar  behavior  of  different  frequencies  within  the  Extremely  High  Frequency  (EHF)  band  22  in  the  presence  of  oxygen  or  water  vapor.  Around  60  GHz  the  oxygen 


 absorption  produces  so  much  loss,  compared  to  other  parts  of  the  EHF  band,  that  it  makes  this  part  of  the  spectrum  less  suitable  for  fixed  point-  to-  point  or  point-  to-  multipoint  links,  but  more  suitable  for 
 applications  requiring  the  re-  use  of  the  spectrum.  However,  above  60  GHz,  oxygen  absorption  decreases.  In  the  92-  95  GHz  frequencies,  oxygen  absorption  in  dry  air  is  comparable  to  the  oxygen  absorption  at  40 
 GHz,  thus  making  these  frequencies  more  desirable  for  fixed  applications.  We  also  note  that  while  absorption  by  oxygen  of  radio  energy  at  92-  95  GHz  is  relatively  low,  absorption  of  such  energy  by  water 
 molecules  is  much  higher  at  these  frequencies.  As  a  result,  in  non-  desert  conditions  the  limiting  factor  in  achievable  range  is  usually  governed  by  humidity  and  precipitation  conditions.  High  humidity  and  rain 
 increase  path  absorption  by  increasing  the  number  of  water  molecules  in  the  air.  23  This  increased  absorption,  in  turn,  affects  the  range/  channel  reliability  tradeoff.  24  An  engineer  designing  a 
 telecommunications  system  for  this  band  can  choose  to  achieve  increased  communication  range  at  the  expense  of  reliability  due  to  weather-  related  absorption  or  can  seek  shorter  ranges  with  higher  reliability. 
 We  also  note  that  the  propagation  characteristics  of  the  71-  95  GHz  band  suggest  applications  in  conjunction  with  other  types  of  communications  systems  that  can  increase  reliability  of  the  overall 
 communications  system.  For  example,  fog  has  less  impact  on  millimeter  wave  propagation  than  it  does  on  optical  propagation  25  because  the  wavelength  of  millimeter  wave  signals  in  the  71-  95  GHz  spectrum  is 
 much  larger  than  the  size  of  the  fog  particles.  Therefore,  the  radio  signal  only  has  minimal  interaction  with  fog  particles,  thus  making  EHF  spectrum  potentially  a  good  choice  as  a  wireless  back-  up  for  an 
 optical  laser  communications  link. 
 19  See  Millimeter  Wave  Propagation:  Spectrum  Management  Implications,  OET  Bulletin  No.  70  (July  1997). 


 20  See  Loea  Petition,  Attachment  A,  Loveberg  Paper  at  3. 
 21  See  Millimeter  Wave  Propagation:  Spectrum  Management  Implications,  OET  Bulletin  No.  70  (July  1997)  at  6. 
 22  The  EHF  frequencies  are  between  30  GHz  and  300  GHz. 
 23  Fog  absorption  can  be  about  1  dB/  km.  Heavy  rain,  approximately  10  mm/  hr,  can  increase  fog  absorption  to  5 
 dB/  km. 
 24  That  is,  the  longer  the  telecommunications  path,  the  higher  the  possibility  of  weather  related  outages,  and  the 
 lower  the  reliability  of  the  microwave  path. 
 25  Optical  propagation  refers  to  the  propagation  of  visible  electromagnetic  waves  carrying  intelligence  such  as 
 voice,  data,  or  video. 
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 9.  Although  the  generation  and  experimental  use  of  millimeter  wave  frequencies  goes  as  far  back  as  the  work  of  Dr.  J.  C.  Bose  about  100  years  ago  in  India,  practical  and  affordable  technology  for  the  use 
 of  such  frequencies  has  been  generally  lacking.  26  However,  a  variety  of  development  efforts  in  the  1990s  in  millimeter  wave  device  technology,  such  as  the  Defense  Advanced  Research  Project  Agencys 
 Monolithic  Microwave  Integrated  Circuit  (MIMIC)  program  and  Microwave  and  Analog  Front  End  Technology  (MAFET)  program,  have  led  to  the  development  of  practical  designs  of  components  in  the 
 millimeter  wave  area,  such  as  in  the  92-  95  GHz  band.  27  Currently,  such  devices  are  produced  only  in  small  quantities  for  experimental  use  in  the  70-  90  GHz  bands  and  limited  Federal  Government 
 applications  and  are,  therefore,  very  costly.  The  creation  of  markets  for  70,  80  and  90  GHz  technology,  which  could  result  from  the  adoption  of  rules  by  this  agency,  could  reduce  the  costs  of  such  equipment  by 
 increasing  production  quantities  and  learning  curve  efficiencies.  Such  increased  production  may  also  benefit  Federal  Government  users  of  this  band  because  most  millimeter  wave  component  production 
 facilities  would  serve  both  military  and  private  sector  markets. 
 III.  DISCUSSION 
 10.  As  noted  previously,  this  region  of  the  spectrum  is  essentially  undeveloped  and  available  for  new  uses.  It  has  been  our  experience  that  opening  new  regions  of  the  spectrum  to  new  applications  and 


 technologies  fosters  the  development  of  new  communications  products  and  services  for  the  public  and  the  concomitant  economic  growth  and  jobs.  28  For  example,  opening  certain  bands  to  spread  spectrum 
 technology  on  an  unlicensed  basis  in  1985  stimulated  rapid  private  sector  development  of  that  technology.  Today,  numerous  businesses  and  other  entities  use  millions  of  spread  spectrum  devices  for 
 such  diverse  applications  as  remote  meter  reading,  utility  load  management,  voice-  secure  cordless  telephones,  and  radio  local  area  networks.  29  Similarly,  we  believe  that  opening  portions  of  the  millimeter 
 wave  spectrum  could  stimulate  new  applications  of  radio  technology,  facilitate  technology  transfer  from  the  military  sector,  and  create  opportunities  for  economic  growth  and  jobs.  This  action  will  also  promote 
 United  States  competitiveness  internationally  by  enabling  the  development  of  technology  for  potential  international  use. 


 26  John  F.  Ramsay,  Microwave  Antenna  and  Waveguide  Techniques  Before  1900,  Proc.  IRE,  February  1958,  p. 
 405-  415. 
 27  These  two  programs  spent  about  $700,000,000  on  developing  component  technology  for  millimeter  wave 
 frequencies.  See  Chapter  7.4  Monolithic  Microwave  Integrated  Circuit  Technology  in  The  RF  and  Microwave  Handbook,  Mike  Golio,  Ed.,  CRC  Press,  2001  for  a  discussion  of  the  component  technologies  involved. 


 28  See  Redevelopment  of  Spectrum  to  Encourage  Innovation  in  the  Use  of  New  Telecommunications 
 Technologies,  First  Report  and  Order  and  Third  notice  of  Proposed  Rule  Making,  7  FCC  Rcd  6886  (1992)  (reallocating  portions  of  the  2  GHz  from  fixed  microwave  services  to  emerging  technology  systems,  including 


 personal  communications  services  (PCS));  See  Authorization  of  Spread  Spectrum  and  Other  Wideband  Emissions  not  Presently  Provided  for  in  the  FCC  Rules  and  Regulations,  First  Report  and  Order,  GEN  Docket  No.  81-  413, 
 101  FCC  2d  419  (1985)  (Spread  Spectrum  First  R&  O)  (adopting  rules  in  Part  15  for  low  power  spread  spectrum  devices). 


 29  Spread  Spectrum  First  R&  O,  101  FCC  2d  419  (1985).  In  1989,  the  Commission  recodified  and  clarified  the  Part 
 15  spread  spectrum  rules.  Revision  of  Part  15  of  the  Rules  Regarding  the  Operation  of  Radio  Frequency  Devices  without  an  Individual  License,  First  Report  and  Order,  GEN  Docket  No.  87-  389,  4  FCC  Rcd  3493  (1989).  See  also 


 Amendment  of  Parts  2  and  15  of  the  Rules  with  Regard  to  the  Operation  of  Spread  Spectrum  Systems,  Report  and  Order,  GEN  Docket  No.  89-  354,  5  FCC  Rcd  4123  (1990)  (amending  Parts  2  and  15  of  the  Rules  with  regard  to 
 operation  of  spread  spectrum  systems).  See  47  C.  F.  R.    15.247. 
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 8 
 A.  Allocation  Proposals 
 1.  Overview 
 11.  All  of  the  current  domestic  allocations  for  the  71-  76  GHz,  81-  86  GHz,  and  92-  95  GHz  bands  were  established  at  WARC-  79  and  were  codified  in  the  Commissions  Rules  in  January  1984.  30  All  13 


 gigahertz  of  this  spectrum  is  allocated  to  satellite  services  (specifically,  the  broadcasting-  satellite  (BSS),  fixed-  satellite  (FSS),  mobile-  satellite  (MSS),  and  amateur-  satellite  (AMSAT)  services)  and  nearly  all  of 
 this  spectrum  (12.5  GHz)  is  allocated  to  the  fixed  and  mobile  services.  Satellite  services  in  the  71-  75.5  GHz  and  92-  95  GHz  bands  are  to  transmit  in  the  Earth-  to-  space  direction  (uplinks)  and  satellite  services 
 in  the  81-  86  GHz  band  are  to  transmit  in  space-  to-  Earth  direction  (downlinks).  Portions  of  this  spectrum  are  also  allocated  to  the  broadcasting,  radiolocation,  and  amateur  services.  All  of  these  allocations  are  on 
 a  primary  basis.  In  addition,  small  portions  of  this  spectrum  are  available  to  the  radio  astronomy  service  (RAS).  31  Table  1  provides  an  overview  of  the  WARC-  79  and  current  United  States  allocations  for  the  71- 
 76  GHz,  81-  86  GHz,  and  92-  95  GHz  bands. 


 Table  1:  Overview  of  WARC-  79  and  Current  United  States  Allocations 
 FSS  uplinks  FSS  downlinks  BSS  FSS  uplinks 


 MSS  uplinks  Radiolocation 


 RAS  MSS  downlinks  Broadcasting  RAS 
 Fixed  &  mobile 


 Amateur  & 
 AMSAT 


 Changes  not 
 considered  Fixed  &  mobile 


 No 
 changes  to 


 consider  Fixed  &  mobile  71 
 GHz  72.91  72.77 
 74 
 GHz  75.5 
 76 
 GHz 
 81 
 GHz 
 84 
 GHz 
 86 
 GHz 
 92 
 GHz  93.27  93.07 
 95 
 GHz 


 12.  The  World  Administrative  Radio  Conference  for  Dealing  with  Frequency  Allocations  in  Certain  Parts  of  the  Spectrum  (Malaga-  Torremolinos,  1992)  (WARC-  92)  allocated  the  74-  84  GHz  band  to 
 the  space  research  service  (space-  to-  Earth)  (SRS  downlinks)  on  a  secondary  basis  throughout  the  world  in  order  to  provide  10  gigahertz  of  contiguous  spectrum  for  space  Very  Long  Baseline  Interferometry 
 (VLBI)  purposes.  32  The  World  Radiocommunication  Conference  (Geneva,  1997)  (WRC-  97)  allocated  the  94-  94.1  GHz  band  to  the  Earth  exploration-  satellite  service  (EESS)  and  SRS  for  active  sensor 
 operations  (EESS  (active)  and  SRS  (active))  and  limited  the  use  of  these  allocations  to  spaceborne  cloud 


 30  See  Amendment  of  Part  2  of  the  Commissions  Rules  Regarding  Implementation  of  the  Final  Acts  of  the  World 
 Administrative  Radio  Conference,  Geneva,  1979,  General  Docket  No.  80-  739,  Second  Report  and  Order,  49  FR  2357  (January  19,  1984). 


 31  Radio  astronomy  is  astronomy  based  on  the  reception  of  radio  waves  of  cosmic  origin.  See  47  C.  F.  R.    2.1. 
 The  status  of  these  RAS  allocations  are  discussed  in  detail  in  paragraphs  15,  16,  and  35. 
 32  See  Final  Acts  of  the  World  Administrative  Radio  Conference  for  Dealing  with  Frequency  Allocations  in 
 Certain  Parts  of  the  Spectrum  (WARC-  92)  at  p.  92. 
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 radars.  33  In  order  to  provide  spectrum  for  the  spaceborne  cloud  radars,  WRC-  97  deleted  the  fixed,  mobile,  and  FSS  uplink  allocations  from  the  94-  94.1  GHz  band.  34 
 13.  Many  technological  and  scientific  advances  and  discoveries  pertaining  to  radio  waves  of  natural  (including  cosmic)  origin  have  occurred  since  the  passive  allocations  (RAS,  EESS  (passive),  and 
 SRS  (passive))  were  made  at  WARC-  79.  35  At  the  World  Radiocommunication  Conference  (Istanbul,  2000)  (WRC-  2000),  the  frequency  bands  above  71  GHz  were  realigned  to  reflect  present  and  foreseeable 
 future  requirements  for  the  passive  services.  36  This  realignment  essentially  reshuffled  the  allocations  in  the  71-  275  GHz  frequency  range  to  account  for  a  better  understanding  of  how  spectrum  in  this  range 
 might  be  used.  While  numerous  allocations  were  moved  to  different  frequency  bands,  generally  the  amount  of  spectrum  available  for  specific  services  did  not  change.  The  most  significant  WRC-  2000 
 change  to  the  frequency  bands  at  issue  in  this  proceeding  was  that  the  81-  86  GHz,  92-  94  GHz,  and  94.1-  95  GHz  bands  were  allocated  to  the  radio  astronomy  service  (RAS)  on  a  primary  basis.  The  RAS  can  not 
 share  the  same  spectrum  with  satellite  downlinks.  Thus,  it  was  necessary  to  change  the  81-  86  GHz  band  from  a  downlink  band  to  an  uplink  band.  This  was  achieved  by  interchanging  the  directional  indicators  of 
 the  FSS  and  MSS  allocations  in  the  71-  74  GHz  and  81-  84  GHz  bands.  37  Likewise,  the  BSS  allocation  was  moved  from  the  84-  86  GHz  band  to  the  74-  76  GHz  band  in  order  to  protect  the  new  RAS  allocation. 
 In  particular,  we  observe  that  these  and  other  WRC-  2000  actions  together  have  provided  the  FSS  with  5  gigahertz  of  downlink  spectrum  (71-  76  GHz)  that  can  be  paired  with  5  gigahertz  of  uplink  spectrum  (81- 
 86  GHz).  However,  WRC-  2000  also  provided  that  this  very  same  spectrum  can  be  used  for  fixed  applications,  which  is  the  focus  of  this  proceeding.  In  contrast,  there  are  no  co-  frequency  satellite  sharing 
 issues  in  the  92-  94  GHz  and  94.1-  95  GHz  bands  because  WRC-  2000  deleted  the  FSS  uplink  allocations  from  these  bands. 


 14.  In  this  proceeding,  we  will  consider  only  those  allocation  changes  that  concern  the  71-  76  GHz,  81-  86  GHz,  and  92-  95  GHz  bands  because  we  have  requests  before  us  to  use  that  spectrum. 
 Domestically,  the  71-  75.5  GHz,  81-  86  GHz,  and  92-  95  GHz  bands  are  shared  between  Federal  and  non-Federal  Government  users  on  an  equal  basis.  38  The  75.5-  76  GHz  band  is  currently  non-  Federal 
 Government  exclusive  spectrum.  We  will  consider  the  remaining  WRC-  2000  realignments  in  the  76-  81 


 33  An  active  sensor  is  an  EESS  or  SRS  measuring  instrument  by  means  of  which  information  is  obtained  by 
 transmission  and  reception  of  radio  waves.  See  47  C.  F.  R.    2.1. 
 34  See  Final  Acts  of  the  World  Radiocommunication  Conference  (WRC-  97)  at  p.  71. 


 35  A  passive  sensor  is  an  EESS  or  SRS  measuring  instrument  by  means  of  which  information  is  obtained  by 
 reception  of  radio  waves  of  natural  origin.  See  47  C.  F.  R.    2.1. 
 36  See  Final  Acts  of  the  World  Radiocommunication  Conference  (WRC-  2000)  at  pp.  43-  46.  See  also  United  States 
 Proposals  for  the  Work  of  the  Conference,  Document  12-  E,  dated  January  12,  2000.  at  pp.  31-  67. 
 37  Directional  indicators  specify  the  direction  in  which  satellites  or  earth  stations  would  be  authorized  to  transmit. 
 For  example,  FSS  uplinks  mean  that  fixed  earth  stations  would  be  authorized  to  transmit  to  satellites.  Another  frequency  band  would  be  used  for  FSS  downlinks,  wherein  satellites  would  be  authorized  to  transmit  to  fixed 


 earth  stations. 
 38  Frequency  assignments  in  bands  shared  by  Federal  and  non-  Federal  Government  services  are  subject  to 
 coordination  between  NTIA  and  the  FCC.  No  priority  is  recognized  unless  the  terms  of  such  priority  are  specifically  defined  in  the  U.  S.  Table  or  unless  they  are  subject  to  mutually  agreed  arrangements  in  specific  cases. 
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 GHz  band  and  in  the  95-  400  GHz  frequency  range  and  the  WARC-  92  SRS  downlink  allocation  in  the  76-  81  GHz  band  in  a  separate  proceeding. 
 2.  71-  76  GHz 
 15.  Prior  to  WRC-  2000,  the  71-  75.5  GHz  band  was  allocated  to  the  fixed,  mobile,  and  FSS  uplink  services  on  a  primary  basis  throughout  the  world.  The  71-  74  GHz  band  was  also  allocated  for  MSS 


 uplinks  on  a  primary  basis  throughout  the  world.  Footnote  5.556  stated  that  radio  astronomy  observations  could  be  carried  out  under  national  arrangements  in  the  72.77-  72.91  GHz  band  and,  in  making 
 assignments  to  stations  of  other  services,  footnote  5.149  urged  administrations  to  take  all  practical  steps  to  protect  the  RAS  in  this  band  from  harmful  interference.  39  The  74-  76  GHz  band  was  allocated  for  SRS 
 downlinks  on  a  secondary  basis  throughout  the  world.  The  75.5-  76  GHz  band  was  allocated  to  the  amateur  and  AMSAT  services  on  a  primary  basis  throughout  the  world. 


 16.  In  the  United  States,  these  pre-  WRC-  2000  allocations  have  been  implemented,  except  that  the  secondary  allocation  for  SRS  downlinks  made  at  WARC-  92  has  not  yet  been  considered.  40  Additionally, 
 the  Commission  adopted  footnote  US270,  which  states  that  the  72.77-  72.91  GHz  band  is  also  allocated  to  the  RAS,  in  lieu  of  international  footnotes  5.149  and  5.556.  41  The  Commission  also  adopted  footnote 
 US297,  which  states  that  a  portion  of  the  FSS  uplink  allocation  (74-  75.5  GHz)  is  available  to  be  used  as  BSS  feeder  links.  The  75.5-  76  GHz  band  has  been  allocated  to  the  Amateur  Radio  Service  under  Part  97 
 of  our  Rules.  42 
 17.  At  WRC-  2000,  the  81-  86  GHz  band  was  allocated  to  the  RAS  on  a  primary  basis.  In  order  to  avoid  having  satellite  downlinks  in  the  81-  84  GHz  band,  which  would  cause  harmful  interference  to  the 


 new  primary  RAS  allocation,  the  MSS  and  FSS  uplink  allocations  in  the  71-  74  GHz  band  were  interchanged  with  the  MSS  and  FSS  downlink  allocations  in  the  81-  84  GHz  band.  WRC-  2000  also 
 deleted  the  72.77-  72.91  GHz  band  from  footnotes  5.149  and  5.556  and  added  RAS  allocations  above  76  GHz. 


 18.  WRC-  2000  shifted  the  primary  amateur  and  AMSAT  allocations  from  75.5-  76  GHz  to  77.5-  78  GHz.  43  However,  footnote  5.559A  states  that  stations  in  the  amateur  and  AMSAT  services  in  the  75.5- 
 76  GHz  band  may  operate  on  a  primary  basis  until  2006.  In  its  comments  on  the  Loea  petition,  ARRL,  the  National  Association  for  Amateur  Radio  (ARRL),  states  that  it  has  only  a  limited  interest  in  this 
 proceeding,  due  to  a  legacy  allocation  in  the  75.5-  76  GHz  band  for  the  amateur  and  AMSAT  services.  44 


 39  See  47  C.  F.  R.    2.106,  footnotes  5.149,  5.556.  In  the  2001  Edition  of  the  ITU  Radio  Regulations,  the  S  has 
 been  dropped  from  the  footnote  numbering.  We  will  employ  the  new  convention  throughout  this  Notice  in  order  to  minimize  confusion.  See  International  Telecommunication  Union  Radio  Regulations,  Edition  of  2001. 


 40  The  amateur  and  AMSAT  services  are  regulated  solely  by  the  Commission  and  thus,  these  allocations  were 
 added  only  to  the  non-  Federal  Government  Table. 
 41  See  47  C.  F.  R.    2.106,  footnote  US270. 


 42  See  47  C.  F.  R.    97.301(  a). 
 43  The  Commission  has  already  raised  the  allocation  status  of  the  amateur  and  AMSAT  services  to  primary  in  the 
 77.5-  78  GHz  band. 
 44  See  ARRL  Comments  at  1. 
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 ARRL  requests  that  we,  in  any  rules  adopted  in  this  proceeding,  note  that  the  amateur  service  is,  until  2006,  entitled  to  operate  on  a  primary  basis  in  the  75.5-  76  band.  45 
 19.  WRC-  2000  relocated  the  BSS  allocation,  which  was  at  84-  86  GHz,  to  the  74-  76  GHz  band  in  order  to  protect  RAS  observations  above  76  GHz.  The  FSS  uplink  allocation  at  74-  75.5  GHz  was  moved 
 to  84-  86  GHz,  and  the  74-  76  GHz  band  was  allocated  for  FSS  downlinks.  Footnote  5.561  was  modified  to  recognize  the  change  in  the  BSS  allocation  and  now  reads  as  follows: 


 5.561  In  the  band  74-  76  GHz,  stations  in  the  fixed,  mobile  and  broadcasting  services  shall  not  cause  harmful  interference  to  stations  of  the  fixed-  satellite  service  or  stations  of 
 the  broadcasting-  satellite  service  operating  in  accordance  with  the  decisions  of  the  appropriate  frequency  assignment  planning  conference  for  the  broadcasting-  satellite 
 service. 
 20.  Proposal.  We  propose  to  implement  the  WARC-  92  Final  Acts  and  most  of  the  WRC-  2000  Final  Acts  with  respect  to  the  71-  76  GHz  band.  Specifically,  we  propose  to  change  the  FSS  directional 


 indicator  in  the  71-  75.5  GHz  band  and  the  MSS  directional  indicator  in  the  71-  74  GHz  band  from  uplinks  to  downlinks.  As  a  consequence  of  the  proposal  to  change  the  FSS  directional  indicator  in  the  74-  75.5 
 GHz  band,  we  propose  to  revise  footnote  US297  in  order  to  state  that  81-  82.5  GHz  (instead  of  74-  75.5  GHz)  is  available  for  BSS  feeder  links.  We  propose  to  delete  the  RAS  allocation  from  the  72.77-  72.91 
 GHz  band  by  removing  footnote  US270  from  the  Table.  We  also  propose  to  allocate  the  74-  76  GHz  band  to  the  BSS  and  broadcasting  service  on  a  primary  basis  and  for  SRS  downlinks  on  a  secondary  basis.  46 
 Further,  we  propose  to  allocate  the  75.5-  76  GHz  band  to  the  fixed,  mobile,  and  FSS  downlink  services  on  a  primary  basis  and  to  delete  the  amateur  and  AMSAT  allocations  from  the  75.5-  76  GHz  band. 


 21.  In  order  to  protect  future  Federal  Government  use,  NTIA  requests  that  footnote  5.561  be  adopted  domestically,  which  would  require  that  the  fixed,  mobile,  and  broadcasting  services  not  cause 
 harmful  interference  to  FSS  or  BSS  reception  in  the  74-  76  GHz  band.  47  NTIA  alternatively  requests  that  the  requirements  contained  in  this  international  footnote  be  placed  in  the  Federal  Government  Table  of 
 Frequency  Allocations.  48  Given  NTIAs  stated  need  for  future  Federal  FSS  operations,  we  propose  to  adopt  the  following  United  States  footnote: 


 USwww  In  the  band  74-  76  GHz,  stations  in  the  fixed,  mobile  and  broadcasting  services  shall  not  cause  harmful  interference  to  stations  of  the  Federal  Government  fixed-  satellite 
 service. 
 22.  We  request  comment  on  this  proposal  and  on  whether  similar  protection  should  be  provided  to  non-  Federal  FSS  and  BSS  operations.  If  both  satellite  and  terrestrial  allocations  are  implemented  in  the 


 71-  76  GHz  band,  technical  and  regulatory  guidelines  will  be  necessary  to  allow  spectrum  sharing.  We 
 45  Id.  at  3. 


 46  The  BSS  and  broadcasting  service  are  regulated  solely  by  the  Commission  and  thus,  these  allocations  will  be 
 added  only  to  the  non-  Federal  Government  Table. 
 47  See  Letter  from  Associate  Administrator,  Office  of  Spectrum  Management,  NTIA,  U.  S.  Department  of 
 Commerce,  to  Acting  Chief,  Office  of  Engineering  and  Technology,  FCC,  dated  July  18,  2001. 
 48  See  Letter  from  Associate  Administrator,  Office  of  Spectrum  Management,  NTIA,  U.  S.  Department  of 
 Commerce,  to  Chief,  Office  of  Engineering  and  Technology,  FCC,  dated  May  28,  2002. 
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 seek  comment  on  what  requirements  would  be  necessary  to  facilitate  sharing  between  the  various  services,  such  as  coordination  requirements  and  power  flux-  density  (PFD)  limits  for  satellite  operations  in 
 the  71-  76  GHz  band.  We  also  request  comment  on  whether  any  coordination  requirements  adopted  to  facilitate  sharing  would  eliminate  the  need  for  the  footnote  to  protect  future  FSS  use,  thus  placing  all 
 allocations  on  equal  footing.  PFD  limits  are  the  normal  means  by  which  FSS  downlinks  and  fixed  point-to-  point  operations  share  the  same  spectrum.  We  also  request  comment  on  the  appropriate  PFD  limit  for 
 the  71-  76  GHz  band. 
 23.  We  propose  to  permit  the  amateur  and  AMSAT  services  in  the  75.5-  76  GHz  band  to  continue  on  a  secondary  basis  until  January  1,  2006,  rather  than  to  adopt  footnote  5.559A,  which  would  allow 


 these  services  to  operate  on  a  primary  basis  until  2006.  We  believe  that  this  proposal  provides  the  best  transition  mechanism  from  amateur  use  to  new  licensed  fixed  and  mobile  services.  It  is  unclear  to  us  how 
 extensively  the  amateur  community  is  using  the  75.5-  76  GHz  band,  but  we  tentatively  find  that  the  impact  would  be  minor,  especially  since  the  nearby  primary  amateur  and  AMSAT  allocation  at  77.5-  78  GHz  has 
 been  available  for  nearly  four  years.  49  Moreover,  since  it  is  unlikely  that  there  will  be  any  fixed  or  mobile  users  for  several  years,  amateur  users  will  continue  to  have  the  band  to  themselves  until  fixed  licensed 
 systems  begin  their  service  rollout.  Accordingly,  we  propose  to  adopt  a  United  States  footnote  that  would  read  as  follows: 


 USyyy  The  band  75.5-  76  GHz  is  also  allocated  to  the  amateur  and  amateur-  satellite  services  on  a  secondary  basis  until  January  1,  2006. 
 24.  In  order  to  implement  this  proposal  in  the  Commissions  Rules  for  the  Amateur  Radio  Service,  we  propose  to  add  a  new  frequency  sharing  requirement  to  Section  97.303,  which  would  read  as  follows: 
 No  amateur  or  amateur-  satellite  station  transmitting  in  the  75.5-  76  GHz  segment  shall  cause  interference  to,  nor  is  protected  from  interference  due  to  the  operation  of,  stations 
 in  the  fixed  service.  After  January  1,  2006,  the  75.5-  76  GHz  segment  is  no  longer  allocated  to  the  amateur  service  or  to  the  amateur-  satellite  service. 


 25.  We  request  comment  on  all  of  the  above  proposals  for  the  71-  76  GHz  band.  Table  2  summarizes  our  proposals  for  the  71-  76  GHz  band. 
 Table  2:  71-  76  GHz  (All  allocations  are  on  a  primary  basis  unless  otherwise  stated)  Existing  U.  S.  Allocations  Proposed  U.  S.  Allocations  Summary  of  Major  Changes 
 71-  74  GHz  Fixed 
 Mobile  FSS  uplinks 
 MSS  uplinks  US270  (RAS) 


 71-  74  GHz  Fixed 
 Mobile  FSS  downlinks 
 MSS  downlinks 


 In  3  gigahertz  of  MSS  &  FSS  spectrum,  change  transmission  direction  from 
 uplink  to  downlink.  Delete  RAS  from  140  megahertz. 


 49  See  Amendment  of  Parts  2,  15,  and  97  of  the  Commissions  Rules  to  Permit  Use  of  Radio  Frequencies  Above  40 
 GHz  for  New  Radio  Applications,  ET  Docket  No.  94-  124,  Third  Report  and  Order,  13  FCC  Rcd  15074  (1998).  The  amateur  and  AMSAT  services  are  regulated  solely  by  the  Commission  and  thus,  these  allocation  changes 


 were  made  only  to  the  non-  Federal  Government  Table. 
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 74-  75.5  GHz  Fixed 
 Mobile  FSS  uplinks  US297  (74- 
 75.5  GHz  available  for  BSS  feeder  links) 
 75.5-  76  GHz  Amateur 
 AMSAT 


 74-  76  GHz  Fixed 
 Mobile  FSS  downlinks 
 Broadcasting  BSS 
 Secondary  SRS  downlinks  USwww  (In  the  band  74-  76  GHz, 
 stations  in  the  fixed,  mobile  and  broadcasting  services  will  not 
 cause  harmful  interference  to  stations  of  the  Federal  FSS.) 
 USyyy  (secondary  amateur  &  AMSAT  allocations  in  the  75.5-  76  GHz  band 
 until  2006) 


 In  1.5  gigahertz  of  FSS  spectrum,  change  transmission  direction  from  uplink  to 
 downlink.  Delete  500  megahertz  from  amateur  &  AMSAT  services,  but  permit 
 these  services  to  be  used  on  a  secondary  basis  until  2006.  Allocate  500  megahertz 
 for  fixed,  FSS  downlink  &  mobile  services.  Allocate  2  gigahertz  for  BSS  & 
 broadcasting  service  on  primary  basis  &  for  SRS  downlinks  on  secondary  basis. 


 3.  81-  86  GHz 
 26.  Prior  to  WRC-  2000,  the  81-  86  GHz  band  was  allocated  to  the  fixed  and  mobile  services  on  a  primary  basis  throughout  the  world.  The  81-  84  GHz  band  was  also  allocated  throughout  the  world  for 


 FSS  downlinks  and  MSS  downlinks  on  a  primary  basis  and  for  SRS  downlinks  on  a  secondary  basis.  The  84-  86  GHz  band  was  also  allocated  to  the  BSS  and  the  broadcasting  service  on  a  primary  basis 
 throughout  the  world.  Footnote  5.561  stated  that,  in  the  84-  86  GHz  band,  stations  of  the  fixed,  mobile,  and  broadcasting  services  may  not  cause  harmful  interference  to  the  BSS  stations  operating  in  accordance 
 with  the  decisions  of  the  appropriate  BSS  frequency  assignment  planning  conference. 
 27.  In  the  United  States,  these  pre-  WRC-  2000  allocations  have  been  implemented,  except  that  the  SRS  downlink  allocation,  which  was  established  at  WARC-  92,  has  not  yet  been  considered.  50 


 Additionally,  the  Commission  adopted  footnote  US211,  which  urges  applicants  for  airborne  or  space  station  assignments  in  the  84-  86  GHz  band  to  take  all  practicable  steps  to  protect  RAS  observations  in 
 adjacent  bands  from  harmful  interference. 
 28.  At  WRC-  2000,  the  81-  86  GHz  band  was  allocated  to  the  RAS  on  a  primary  basis.  The  addition  of  this  RAS  allocation  satisfies  the  requirements  for  radio  astronomy  spectral  line  and  wideband 


 continuum  observations  from  remote  locations  worldwide.  WRC-  2000  also  revised  footnote  5.149  to  add  the  81-  86  GHz  band  to  the  list  of  frequency  bands  wherein  administrations  are  urged  to  take  all 
 practicable  steps  to  protect  the  RAS  from  harmful  interference  when  making  assignments  to  stations  of  other  services. 


 29.  As  previously  stated,  the  MSS  and  FSS  downlink  allocations  in  the  81-  84  GHz  band  were  interchanged  with  the  MSS  and  FSS  uplink  allocations  in  the  71-  74  GHz  band.  WRC-  2000  relocated  the 
 BSS,  which  is  currently  allocated  to  the  84-  86  GHz  band,  to  the  74-  76  GHz  band.  WRC-  2000  took  these  actions  because  co-  frequency  satellite  downlinks  would  cause  interference  to  the  new  primary  RAS 
 allocation.  Footnote  5.560A,  which  allocates  the  81-  81.5  GHz  band  to  the  amateur  and  AMSAT  services  on  a  secondary  basis,  was  added  to  maintain  the  current  amount  of  secondary  amateur  and  AMSAT 
 spectrum.  Footnote  5.561  is  no  longer  relevant  to  the  84-  86  GHz  band;  it  was  appropriately  modified  to  apply  to  the  74-  76  GHz  band. 


 50  The  BSS  and  broadcasting  service  are  regulated  solely  by  the  Commission  and  thus,  these  allocations  were  only 
 added  to  the  non-  Federal  Government  Table. 
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 14 
 30.  Proposal.  We  propose  to  implement  the  WARC-  92  Final  Acts  and  most  of  the  WRC-  2000  Final  Acts  with  respect  to  the  81-  86  GHz  band.  Specifically,  we  propose  to  allocate  the  81-  86  GHz  band 
 to  the  RAS  on  a  primary  basis,  to  change  the  directional  indicators  on  the  FSS  and  MSS  allocations  in  the  81-  84  GHz  band  from  downlinks  to  uplinks,  to  allocate  the  84-  86  GHz  band  for  FSS  uplinks,  and  to 
 delete  the  BSS  and  broadcasting  allocations  from  the  84-  86  GHz  band.  We  propose  to  revise  footnote  US297  in  order  to  state  that  81-  82.5  GHz  (instead  of  74-  75.5  GHz)  is  available  for  BSS  feeder  links.  We 
 also  propose  to  revise  footnote  US211  by  deleting  the  84-  86  GHz  band  from  those  bands  in  which  applicants  for  airborne  or  space  station  assignments  are  urged  to  take  all  practicable  steps  to  protect  RAS 
 observations  in  adjacent  bands  from  harmful  interference  because  the  81-  86  GHz  band  has  been  proposed  to  be  allocated  to  the  RAS  on  a  primary  basis. 


 31.  Consistent  with  international  footnote  5.149,  we  propose  to  revise  footnote  US342  in  order  to  add  the  81-  86  GHz  band  to  the  list  of  frequency  bands  wherein  all  practicable  steps  are  to  be  taken  to 
 protect  the  RAS  from  harmful  interference  when  assignments  to  stations  of  other  services  are  made. 
 32.  We  request  comment  on  whether  footnote  5.560A,  which  would  allocate  the  81-  81.5  GHz  band  to  the  amateur  and  AMSAT  services  on  a  secondary  basis,  should  be  adopted  domestically.  The 


 Commission  has  previously  allocated  the  77.5-  78  GHz  band  to  the  amateur  and  AMSAT  services  on  a  primary  basis.  We  therefore  seek  comment  on  whether  these  secondary  allocations  are  needed.  Further, 
 we  request  comment  on  whether  amateur  and  AMSAT  services  in  the  81-  81.5  GHz  band  would  be  compatible  with  primary  commercial  operations. 


 33.  If  both  satellite  and  terrestrial  allocations  are  implemented  in  the  81-  86  GHz  band,  technical  and  regulatory  guidelines  will  be  necessary  to  allow  spectrum  sharing.  We  seek  comment  on  what 
 requirements  would  be  necessary  to  facilitate  sharing  between  the  various  services,  such  as  coordination  and  terrestrial  station  antenna  pointing  requirements  in  the  81-  86  GHz  band. 


 34.  We  request  comment  on  all  of  the  above  proposals  for  the  81-  86  GHz  band.  Table  3  summarizes  our  proposals  for  the  81-  86  GHz  band. 
 Table  3:  81-  86  GHz  (All  allocations  are  on  a  primary  basis  unless  otherwise  stated)  Existing  U.  S.  Allocations  Proposed  U.  S.  Allocations  Summary  of  Major  Changes 
 81-  84  GHz  Fixed 
 Mobile  FSS  downlinks 
 MSS  downlinks 


 81-  84  GHz  Fixed 
 Mobile  FSS  uplinks  US297  (81-  82.5 
 GHz  available  for  BSS  feeder  links) 
 MSS  uplinks  Radio  astronomy 
 Secondary  SRS  downlinks  US342  (take  all  practicable 
 steps  to  protect  RAS  in  the  81-  84  GHz  band  from  harmful 
 interference) 


 In  3  gigahertz  of  MSS  &  FSS  spectrum,  change  transmission  direction  from  downlink 
 to  uplink.  Specify  that  1.5  gigahertz  of  FSS  uplink  spectrum  is  available  for  BSS  feeder 
 links.  Allocate  3  gigahertz  for  RAS  on  a  primary  basis.  Allocate  3  gigahertz  for  SRS 
 downlinks  on  a  secondary  basis. 


 84-  86  GHz  Fixed 
 Mobile  Broadcasting 
 BSS  5.561  (fixed,  mobile  & 
 broadcasting  must  not  cause 


 84-  86  GHz  Fixed 
 Mobile  FSS  uplinks 
 Radio  astronomy  US342  (take  all  practicable 
 steps  to  protect  RAS  in  the 


 Allocate  2  gigahertz  to  RAS  &  FSS  uplinks.  Delete  2  gigahertz  from  broadcasting  & 
 broadcasting-  satellite  services.  Remove  requirement  in  2  gigahertz  that  fixed,  mobile 
 &  broadcasting  can  not  cause  harmful  interference  to  BSS. 
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 harmful  interference  to  BSS)  US211  (protect  RAS  in  the 
 adjacent  86-  92  GHz  band) 
 84-  86  GHz  band  from  harmful  interference) 


 4.  92-  95  GHz 
 35.  Prior  to  WRC-  97,  the  92-  95  GHz  band  was  allocated  to  the  fixed,  mobile,  FSS  uplink,  and  radiolocation  services  on  a  primary  basis  throughout  the  world.  Footnote  5.556  stated  that  radio 


 astronomy  observations  could  be  carried  out  under  national  arrangements  in  the  93.07-  93.27  GHz  band  and,  in  making  assignments  to  stations  other  services,  footnote  5.149  urged  administrations  to  take  all 
 practical  steps  to  protect  the  RAS  in  this  band  from  harmful  interference.  51  In  the  United  States,  these  pre-  WRC-  97  allocations  have  been  implemented.  52 


 36.  In  the  United  States  proposals  for  WRC-  97,  the  94-  94.1  GHz  band  was  proposed  for  use  by  spaceborne  cloud  radars  to  determine  the  vertical  profile  of  clouds  and  their  global  distribution.  53  The 
 allocation  would  be  limited  to  100  megahertz  because  it  could  be  coupled  with  the  primary  spaceborne  active  sensor  allocations  in  the  78-  79  GHz  band,  which  are  provided  for  in  footnote  5.560.  The  EESS 
 and  SRS  allocations  in  94-  94.1  GHz  band  would  be  limited  to  use  by  spaceborne  cloud  radars  because  the  78-  79  GHz  band  is  suitable  for  use  by  active  spaceborne  sensors  other  than  cloud  radars.  The  94-  94.1 
 GHz  band  was  proposed  because  it  is  of  less  interest  to  the  RAS  (it  has  relatively  few  spectral  lines)  and  because  it  has  adequate  frequency  separation  from  the  86-  92  GHz  band,  which  is  allocated  for  passive 
 use.  At  the  1997  Conference  Preparatory  Meeting  (CPM-  97),  it  was  determined  that  cloud  radars  and  the  radiolocation  service  are  compatible  in  the  92-  95  GHz  band.  However,  because  studies  indicated 
 compatibility  problems  between  cloud  radars  and  both  the  fixed  and  FSS  uplink  services  in  the  92-  95  GHz  band,  these  allocations  were  proposed  to  be  deleted. 


 37.  At  WRC-  97,  the  94-  94.1  GHz  band  was  allocated  to  the  EESS  (active)  and  the  SRS  (active)  on  a  primary  basis;  the  radiolocation  allocation  in  the  94-  94.1  GHz  band  was  maintained;  and  the  fixed, 
 mobile,  and  FSS  uplink  allocations  were  deleted  from  the  94-  94.1  GHz  band.  WRC-  97  added  footnote  5.562,  which  states  that  the  use  of  the  94-  94.1  GHz  band  by  the  EESS  (active)  and  SRS  (active)  is  limited 
 to  spaceborne  cloud  radars.  Recently,  we  agreed  that  the  Air  Force  could  operate  its  Cloudsat  system  at  94.045  GHz  on  a  non-  interference  basis,  pending  the  outcome  of  this  allocation  proceeding.  Cloudsat  is  a 
 spaceborne  radar  that  will  collect  high  resolution  vertical  profile  data  in  thick  clouds. 
 38.  At  WRC-  2000,  the  92-  94  GHz  and  94.1-  95  GHz  bands  were  allocated  to  the  RAS  on  a  primary  basis  and  the  94-  94.1  GHz  band  was  allocated  to  the  RAS  on  a  secondary  basis.  The  addition  of 


 these  RAS  allocations  satisfies  the  requirements  for  radio  astronomy  spectral  line  and  wideband  continuum  observations  from  remote  locations  worldwide.  Consequently,  the  RAS  band  at  93.07-  93.27 
 GHz  was  deleted  from  footnote  5.556.  The  FSS  uplink  allocations  in  the  92-  94  GHz  and  94.1-  95  GHz  band,  which  were  no  longer  needed  to  balance  the  FSS  allocation  at  102-  105  GHz,  were  deleted. 


 51  See  47  C.  F.  R.    2.106,  footnotes  5.149,  5.556. 
 52  We  observe  that  footnote  5.556  has  been  inadvertently  deleted  from  the  U.  S.  Table. 
 53  See  Unites  States  Proposals  for  the  Work  of  the  Conference,  Document  30-  E,  dated  September  4,  1997, 
 Proposals  for  Agenda  Item  1.9.2,  at  p.  120. 
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 39.  WRC-  2000  added  footnote  5.562A,  which  states  that  EESS  transmissions  that  are  directed  into  the  main  beam  of  a  RAS  antenna  have  the  potential  to  damage  some  RAS  receivers  and  that  space 
 agencies  operating  these  transmitters  and  the  RAS  observatories  should  mutually  plan  their  operations  so  as  to  avoid  such  occurrences  to  the  maximum  extent  possible.  WRC-  2000  revised  footnote  5.149  to 
 replace  the  93.07-  93.27  GHz  band  with  the  92-  94  GHz  and  94.1-  95  GHz  bands  in  the  list  of  frequency  bands  wherein  administrations  are  urged  to  take  all  practicable  steps  to  protect  the  RAS  from  harmful 
 interference  when  making  assignments  to  stations  of  other  services. 
 40.  Proposal.  We  propose  to  implement  the  WRC-  97  Final  Acts  and  WRC-  2000  Final  Acts  with  respect  to  the  92-  95  GHz  band.  Specifically,  we  propose  to  allocate  the  92-  94  GHz  and  94.1-  95  GHz 


 bands  to  the  RAS  on  a  primary  basis;  to  allocate  the  94-  94.1  GHz  band  to  the  EESS  (active)  and  SRS  (active)  on  a  primary  basis  for  Federal  Government  use,  limited  to  cloud  radars;  to  allocate  the  94-  94.1 
 GHz  band  to  the  RAS  on  a  secondary  basis;  to  delete  the  FSS  uplink  allocation  from  the  92-  95  GHz  band;  and  to  delete  the  fixed  and  mobile  allocations  from  the  94-  94.1  GHz  band. 


 41.  Consistent  with  international  footnote  5.149,  we  propose  to  revise  footnote  US342  in  order  to  add  the  92-  94  GHz  and  94.1-  95  GHz  bands  to  the  list  of  frequency  bands  wherein  all  practicable  steps  are 
 to  be  taken  to  protect  the  RAS  from  harmful  interference  when  assignments  to  stations  of  other  services  are  made. 


 42.  We  request  comment  on  all  of  the  above  proposals  for  the  92-  95  GHz  band.  Table  4  summarizes  our  proposals  for  the  92-  95  GHz  band. 


 Table  4:  92-  95  GHz  (All  allocations  are  on  a  primary  basis  unless  otherwise  stated)  Existing  U.  S.  Allocations  Proposed  U.  S.  Allocations  Summary  of  Major  Changes 
 92-  94  GHz  Fixed 
 Mobile  Radiolocation 
 Radio  astronomy  US342  (take  all  practicable  steps  to  protect  RAS 
 in  the  92-  94  GHz  band  from  harmful  interference) 


 Allocate  2  gigahertz  to  the  RAS  on  a  primary  basis. 
 Delete  FSS  uplinks  from  2  gigahertz. 


 94-  94.1  GHz  Radiolocation 
 Federal  Government  EESS  (active)  Federal  Government  SRS  (active) 
 Secondary  radio  astronomy  5.562  (EESS  &  SRS  limited  to  cloud  radars) 
 5.562A  (EESS  &  RAS  should  mutually  plan  their  operations) 


 Allocate  100  megahertz  to  the  EESS  (active)  and  SRS 
 (active)  on  a  primary  basis  for  Federal  Government  use, 
 limited  to  cloud  radars.  Allocate  100  megahertz  to  the 
 RAS  on  a  secondary  basis.  Delete  fixed,  mobile  &  FSS 
 uplinks  from  100  megahertz. 


 92-  95  GHz  Fixed 
 Mobile  FSS  uplinks 
 Radiolocation  5.149  (in  making 
 assignments  to  stations  of  other  services  to  which  the 
 93.07-  93.27  GHz  band  is  allocated,  administrations 
 are  urged  to  take  all  practicable  steps  to  protect 
 RAS  from  harmful  interference) 


 94.1-  95  GHz  Fixed 
 Mobile  Radiolocation 
 Radio  astronomy  US342  (take  all  practicable  steps  to  protect  RAS 
 in  the  94.1-  95  GHz  band  from  harmful  interference) 


 Allocate  900  megahertz  to  the  RAS  on  a  primary  basis. 
 Delete  FSS  uplinks  from  900  megahertz. 
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 5.  RAS  Protection  in  the  81-  86  GHz,  92-  94  GHz,  and  94.1-  95  GHz  Bands 
 43.  In  order  to  avoid  interference  to  18  RAS  observatories  that  currently  receive  in  the  81-  86  GHz,  92-  94  GHz,  and  94.1-  95  GHz  bands,  National  Science  Foundation  (NSF)  requests  that  we  require 


 licensees  of  all  other  allocated  services  in  these  bands  to  coordinate  with  these  RAS  sites.  54  NSF  states  that  coordination  radii  on  the  order  of  150  kilometers  (93  miles)  around  the  8  single  dish  observatories 
 and  25  kilometers  (15.5  miles)  around  the  10  Very  Long  Baseline  Array  (VLBA)  stations  appear  to  be  sufficient  to  ensure  protection  of  these  RAS  facilities. 


 44.  In  paragraphs  30  and  40,  above,  we  propose  to  allocate  the  81-  86  GHz,  92-  94  GHz,  and  94.1-  95  GHz  bands  to  the  RAS  on  a  primary  basis.  These  RAS  allocations  were  made  at  WRC-  2000  as  result 
 of  U.  S.  proposals  and  NTIA  has  requested  their  implementation.  55  We  recognize  that  radio  astronomers  must  observe  radio  waves  of  cosmic  origin  at  frequencies  over  which  they  have  no  control.  56  We  note, 
 however,  that  the  86-  92  GHz  band  is  already  allocated  to  the  RAS  on  a  primary  basis.  In  light  of  this  adjacent  6  gigahertz  primary  allocation,  we  request  comment  on  whether  the  81-  86  GHz,  92-  94  GHz,  and 
 94.1-  95  GHz  bands  should  also  be  allocated  to  the  RAS  on  a  primary  basis.  Is  this  quantity  of  spectrum  necessary  for  RAS  purposes  and  would  such  a  large  allocation  hinder  effective  use  of  spectrum  needed 
 for  other  applications?  If  not  all  of  this  spectrum  is  needed  by  the  RAS,  which  portions  are  most  essential  or,  alternatively,  should  certain  portions  be  on  a  secondary  or  unprotected  basis? 


 45.  The  customary  means  of  protecting  RAS  reception  is  through  coordination  around  RAS  observatories.  We  tentatively  propose  to  adopt  a  new  United  States  footnote  (footnote  USzzz)  that  would 
 specify  the  maximum  coordination  distances  requested  by  NSF  at  the  18  indicated  observatories  with  regard  to  RAS  reception  in  the  81-  86  GHz,  92-  94  GHz,  and  94.1-  95  GHz  bands.  57  However,  we  request 
 comment  on  means  to  minimize  any  coordination  burden  on  relevant  parties.  For  example,  are  the  coordination  distances  proposed  by  NSF  appropriate?  Further,  we  believe  that  terrain  shielding,  pointing 
 directions  when  narrow  beam  antennas  are  used,  and  other  factors  could  be  taken  into  account  in  order  to  reduce  unnecessary  coordination  requirements.  We  note  that  the  radio  telescope  in  Owens  Valley, 
 California  is  shielded  from  radio  frequency  interference  (RFI)  by  high  mountains  in  the  direction  of  Fresno,  California,  which  is  an  urban  area  within  the  150  kilometer  maximum  coordination  radius.  We 


 54  See  NSF  letter  to  Convener,  Ad  Hoc  212,  dated  March  1,  2002. 
 55  See  United  States  of  America  Proposals  for  the  Work  of  the  Conference,  Document  12-  E,  dated  January  12, 
 2000,  Proposals  for  agenda  item  1.16,  entitled  A  proposal  to  modify  the  allocations  above  71  GHz,  at  pp.  31-  67.  See  also  Letter  from  Associate  Administrator,  Office  of  Spectrum  Management,  NTIA,  U.  S.  Department  of 


 Commerce,  to  Acting  Chief,  Office  of  Engineering  and  Technology,  FCC,  dated  July  18,  2001. 
 56  The  radio  frequencies  of  interest  for  the  RAS  depend  on  the  characteristics  of  the  object  studied.  Celestial  radio 
 sources  radiate  radio  waves  varying  with  time  and  frequency,  with  intensity  and  with  the  polarization  determined  by  their  physical  conditions.  Each  part  of  the  radio  spectrum  gives  specific  information  about  a  source.  Radio 


 astronomers  have  to  follow  the  constraints  on  frequency  selection  imposed  by  nature.  A  similar  situation  holds  for  atmospheric  studies  based  on  observations  of  atmospheric  gases.  These  gases  generate  radio  emissions  at  one  or 
 more  discrete  frequencies  such  a  discrete  frequency  is  called  a  spectral  line.  These  spectral  lines  are  often  of  interest  for  Radio  astronomers.  In  addition,  various  RAS  projects  depend  on  measurements  of  broadband  or 
 continuum  emission.  See  CRAF  [Committee  on  Radio  Astronomy  Frequencies]  handbook  for  frequency  management,  dated  February  2002,  at  p.  6. 


 57  See  Appendix  A  for  the  text  of  proposed  footnote  USzzz,  which  contains  the  list  of  RAS  telescopes  that  would 
 be  protected  under  this  proposal. 
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 also  note  that  the  Haystack  Observatory  in  Westford,  Massachusetts  is  within  150  kilometers  of  most  of  the  western  suburbs  of  Boston  and  that  NSFs  request  would  require  coordination  of  pencil  beam 
 antennas  within  this  distance  even  if  they  were  pointed  away  from  radio  telescope.  Therefore,  in  order  to  minimize  unnecessary  coordination,  while  fully  protecting  the  new  RAS  allocations,  we  request  comment 
 on  whether  RAS  observatories  should  be  required  to  operate  a  web  site  where  fixed  point-  to-  point  licensees  can  input  end  points  of  links,  power,  and  antenna  characteristics  and  receive  back  promptly 
 whether  coordination  is  required.  This  process  would  take  into  account  the  observatory  sensitivity,  terrain  shielding,  and  the  azimuth  of  the  path  relative  to  the  observatory.  This  approach  is  similar  to  the 
 coordination  method  that  was  developed  for  the  1670-  1675  MHz  Government  transfer  band,  where  the  National  Oceanic  and  Atmospheric  Administration  (NOAA)  agreed  to  maintain  a  web  site  to  assist  in 
 coordination  near  two  of  its  receive  earth  stations.  58 
 46.  We  also  seek  comment  on  whether  we  should  geographically  limit  the  scope  of  these  RAS  allocations  in  a  similar  fashion  to  the  RAS  allocation  in  the  10.6-  10.68  GHz  band,  which  provides  that  the 


 RAS  will  not  receive  protection  from  stations  in  other  allocated  services  that  are  licensed  to  operate  in  the  one  hundred  most  populous  urbanized  areas  as  defined  by  the  U.  S.  Census  Bureau.  59  This  would 
 facilitate  commercial  deployment  in  areas  where  spectrum  demands  are  most  intense. 
 B.  Band  Plan 
 47.  As  we  examine  methods  to  promote  development  and  growth  of  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands,  we  must  consider  the  current  and  projected  uses  of  these  bands,  and  the  current  use 


 of  adjacent  bands,  such  as  the  86-  92  GHz  band.  We  are  aware  of  a  variety  of  military  research  and  development  projects  that  are  in  progress  in  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  band.  As  all  of 
 these  bands  (except  for  the  amateur  band  at  75.5-  76  GHz)  are  shared  on  a  co-  primary  basis  between  Federal  and  non-  Federal  Government  services,  our  rules  must  provide  for  equitable  sharing  with  Federal 
 Government  users,  especially  those  with  national  security  implications. 
 48.  We  recognize  that  there  may  be  Federal  installations  where  existing  and  planned  uses  in  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  require  high  confidence  protection  from  FCC  licensees  for 


 national  security  reasons.  We  propose  to  include  in  the  final  rules  specific  areas  proposed  by  NTIA  during  this  proceeding  which  will  require  coordination  with  the  Frequency  Assignment  Subcommittee 
 (FAS)  of  the  Interdepartment  Radio  Advisory  Committee  (IRAC)  for  frequency  assignments  and  licensing.  We  seek  comment  on  this  proposal.  We  also  ask  commenters  how  we  can  limit  the 
 administrative  burdens  for  the  Commission,  NTIA  and  potential  licensees  while  still  requiring  IRAC  coordination.  For  example,  rather  than  specifying  a  simple  geographic  area,  we  might  require  all 
 licensees  within  a  certain  distance  of  these  sites  to  verify  that  the  predicted  power  flux  density  at  a  reference  point  is  less  than  a  specified  value.  Any  potential  assignment  exceeding  the  specified  value 
 would  require  coordination. 


 58  See  Reallocation  of  the  216-  220  MHz,  1390-  1395  MHz,  1427-  1429  MHz,  1429-  1432  MHz,  1432-  1435  MHz, 
 1670-  1675  MHz,  and  2385-  2390  MHz  Government  Transfer  Bands,  ET  Docket  No.  00-  221,  Report  and  Order  and  Memorandum  Opinion  and  Order,  17  FCC  Rcd  368  (2002)  at  Appendix  C,  Section  1.924(  f)(  1)  of  the 


 Commissions  Rules. 
 59  This  approach  would  parallel  footnote  US277  where  the  10.6-  10.68  GHz  band  is  allocated  to  the  RAS  on  a 
 primary  basis.  However,  the  RAS  does  not  receive  protection  from  fixed  stations  that  are  licensed  to  operate  in  the  one  hundred  most  populous  urbanized  areas  as  defined  by  the  U.  S.  Census  Bureau.  See  47  C.  F.  R.    2.106, 


 footnote  US277. 
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 1.  92-  95  GHz  Band 
 49.  Given  that  we  are  aware  of  where  the  Federal  Government  is  operating  in  the  92-  95  GHz  band,  we  are  able  to  propose  specific  band  plans  for  the  92-  95  GHz  band.  However,  as  we  noted  earlier, 


 the  92-  95  GHz  band  is  shared  between  Federal  and  non-  Federal  Government  services.  60  We  also  believe  the  adjacent  passive  allocation  in  the  86-  92  GHz  band  will  have  an  impact  on  the  use  of  the  92-  95  GHz 
 band  because  the  86-  92  GHz  band  is  shared  among  several  passive  services.  61  Specifically,  the  aeronautical  community  has  been  considering  use  of  the  passive  band  for  aircraft-  based  86-  92  GHz 
 imaging  systems  that  would  allow  aircraft  to  view  runways  during  landings  in  inclement  weather.  62  Thus,  there  may  be  future  safety-  related  passive  aeronautical  systems  in  the  86-  92  GHz  band.  Consequently, 
 we  must  consider  adequate  protection  of  such  systems  as  we  examine  commercial  development  and  growth  in  the  92-  95  GHz  band.  We  seek  comment  on  this  tentative  conclusion.  We  also  seek  comment 
 on  whether  we  must  consider  adequate  protection  in  adjacent  95-  100  GHz  band,  which  is  currently  licensed  to  the  mobile,  MSS,  radionavigation  and  radionavigation-  satellite  services  on  a  primary  basis  and 
 to  the  radiolocation  service  on  a  secondary  basis.  We  observe  that  WRC-  2000  added  primary  fixed  and  RAS  allocations  to  the  95-  100  GHz  band,  raised  the  secondary  radiolocation  allocation  to  primary  status, 
 and  deleted  the  MSS  allocation  from  the  95-  100  GHz  band.  63 
 50.  In  light  of  the  considerations  mentioned  above,  we  request  comment  on  three  band  plans  for  the  92-  95  GHz  band.  Band  Plan  I  provides  for  three  900-  megahertz  segments  and  one  300-  megahertz 


 segment.  Under  this  plan,  we  would  license  the  92.3-  93.2  GHz  and  94.1-  95  GHz  spectrum  blocks  for  commercial  use.  That  is,  non-  Federal  licensees  would  have  access  to  two  900-  megahertz  segments  that 
 are  separated  by  900  megahertz.  Primary  Federal  assignments  would  be  made  in  the  92.3-  93.2  GHz  and  93.2-  94.1  GHz  spectrum  blocks  throughout  the  nation.  In  the  licensed  non-  Federal  bands  (92.3-  93.2  GHz 
 and  94.1-  95  GHz),  primary  Federal  assignments  could  be  authorized  at  designated  military  installations.  Thus,  under  this  option,  Federal  users  would  have  access  to  the  entire  92-  95  GHz  band  on  a  primary  basis 
 at  designated  military  installations.  Outside  the  designated  military  installations,  we  propose  that  Federal  assignments  would  be  authorized  in  the  licensed  non-  Federal  bands  on  a  secondary  basis.  These 
 secondary  Federal  allocations  would  permit  Federal  use  in  areas  of  low  population  density,  as  well  as  permitting  other  uses  such  as  ground-  based  Federal  radar  in  rural  areas.  Band  Plan  I  would  also  make  the 
 92-  95  GHz  band  available  for  unlicensed  Part  15  use. 


 60  Id. 
 61  These  passive  services  are  earth  exploration  satellite  (passive),  radio  astronomy,  and  space  research  (passive), 
 which  use  highly  sensitive  receivers  for  signals  from  outer  space.  These  devices  are  not  used  for  transmitting. 
 62  See  M.  Shoucri,  G.  S.  Do,  S.  Fornaca,  B.  Hauss,  L.  Yujiri,  J.  Shannon  and  L.  Summers,  Passive  Millimeter  Wave 
 Camera  for  Enhanced  Vision  Systems,  Proceedings  of  the  SPIE  Conference  on  Enhanced  and  Synthetic  Vision,  2736,  pp.  2-  8,  1996;  S.  Fornaca,  M.  Shoucri  and  L.  Yujiri,  Passive  Millimeter  Wave  Video  for  Aviation 


 Applications,  Proceedings  of  the  SPIE  Conference  on  Enhanced  and  Synthetic  Vision  1998,  3364,  pp.  20-  25,  1998.  This  region  of  the  spectrum  has  some  of  the  characteristics  of  infrared  radiation.  Objects  such  as  runways 
 and  vehicles  spontaneously  emit  low  levels  of  90  GHz  power  based  on  their  composition  and  temperature.  A  scanning  receiver  can  use  this  emitted  power  to  image  an  area.  While  fog,  rain  and  clouds  affect  emissions  in  this 
 band,  the  emissions  are  affected  significantly  less  than  visual  light  waves.  Hence  the  possibility  of  imaging  airports  from  an  airplane  in  adverse  weather  is  attractive  to  the  aeronautical  community  if  the  technology  can  be 
 commercialized. 
 63  See  WRC-  2000  Final  Acts  at  p.  45. 
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 51.  Band  Plan  II  would  provide  Federal  and  non-  Federal  users  with  the  same  amount  of  spectrum  as  in  Band  Plan  I.  However,  the  Federal  bands  would  now  be  equal  in  size,  that  is,  two  600-  megahertz 
 channel  blocks.  Another  option,  Band  Plan  III,  would  provide  Federal  and  non-  Federal  licensees  with  access  to  2,900  megahertz  of  spectrum  on  a  shared  basis.  Additionally,  we  encourage  commenters  to 
 propose  alternative  band  plans  that  will  stimulate  growth  in  the  92-  95  GHz  band  and  to  submit  rationale  supporting  adoption  of  their  proposed  alternative  band  plans. 


 52.  We  tentatively  conclude  that  Band  Plan  I  will  stimulate  growth  in  the  92-  95  GHz  band  without  hindering  growth  in  the  adjacent  86-  92  GHz  band.  Additionally,  we  believe  these  segments 
 provide  sufficient  capacity  for  licensees  to  utilize  and  provide  new  innovative  services  to  the  public.  Accordingly,  we  propose  to  adopt  Band  Plan  I  for  use  in  the  92-  95  GHz  band.  64  We  tentatively  conclude 
 that  the  mixture  of  licensed  and  unlicensed  use  in  Band  Plan  I  will  satisfy  the  needs  of  most  potential  users  of  this  band  while  facilitating  sharing  with  Federal  Government  users.  We  seek  to  maximize  the 
 opportunities  for  new  90  GHz  services  and  technologies,  avoid  interference  to  passive  services  operating  in  the  lower  adjacent  band  at  86-  92  GHz,  protect  the  94.0-  94.1  GHz  cloud  sensing  radar  allocation,  and 
 maximize  sharing  potential  for  Federal  Government  systems  in  the  same  band. 
 53.  In  order  to  codify  the  nature  of  the  Federal/  non-  Federal  Government  sharing  in  the  92-  95  GHz  band,  we  propose  to  add  a  new  United  States  footnote  to  the  U.  S.  Table,  which  would  read  as  follows: 


 USxxx  In  the  band  92-  95  GHz,  Federal  and  non-  Federal  users  may  operate  low  power,  unlicensed  devices.  In  the  band  92-  92.3  GHz  and  93.2-  94.1  GHz,  Federal  assignments 
 shall  operate  on  a  primary  basis.  In  the  bands  92.3-  93.2  GHz  and  94.1-  95  GHz,  non-Federal  licensed  systems  shall  operate  on  a  primary  basis  and  Federal  assignments  may 
 operate  on  a  secondary  basis,  except  that  Federal  assignments  at  the  following  military  installations  shall  operate  on  a  primary  basis:  .  .  .  65 


 54.  We  believe  that  Band  Plan  I  would  simplify  duplexer  design  for  full  duplex  bidirectional  systems.  Non-  Federal  use  of  the  300-  megahertz  segment  that  is  adjacent  to  the  86-  92  GHz  passive  band 
 would  be  limited  to  unlicensed  Part  15  devices.  This  placement  minimizes  the  likelihood  that  out-  of-  band  emissions  would  cause  harmful  interference  to  passive  band  receivers.  We  also  believe  that  it  would  be 
 more  economically  feasible  for  manufacturers  to  build  low  power  unlicensed  devices  to  meet  the  necessarily  restrictive  out-  of-  band  emission  limits  for  protection  of  passive  band  receivers  than  it  would 
 be  for  them  to  meet  those  limits  for  higher  power  equipment  for  licensed  use.  The  93.2-  94.1  GHz  unlicensed  band  includes  the  cloud  sensing  radar  allocation.  We  tentatively  conclude  that  sharing 
 between  these  two  types  of  operations  is  possible  without  harmful  interference  to  systems  operating  under  the  radar  allocation.  We  seek  comment  on  this  tentative  conclusion.  The  unlicensed  segments  also 
 provide  possible  locations  for  Federal  Government  systems  that  may  not  be  able  to  share  with  licensed  systems.  We  request  comment  on  whether  to  provide  two  licensed  portions  of  900-  megahertz  each  or  to 
 further  divide  the  licensed  portions.  We  also  seek  comment  whether  unlicensed  devices  can  share  the  94-  94.1  GHz  band  with  cloud  sensing  radars  without  causing  harmful  interference  to  Cloudsat  and  other  such 
 systems.  Finally,  we  seek  comment  on  whether  it  would  be  appropriate  for  non-  Federal  licensees  to  operate  on  a  secondary  basis  in  the  92.0-  92.3  GHz  and  93.2-  94.1  GHz  bands.  Table  5  summarizes  our 
 band  plan  proposal  for  the  92-  95  GHz  band. 


 64  See  Appendix  B  for  proposed  rules. 
 65  NTIA  will  supply  the  list  of  large  military  installations  prior  to  the  adoption  of  the  Report  and  Order. 
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 Table  5:  Commission  Proposal  for  the  92-  95  GHz  Band  (Band  Plan  I)  Type  of  Use  (Federal  and  non-  Federal  unlicensed  use  permitted 
 throughout  the  92-  95  GHz  band)  Band  Bandwidth  Federal  Government  non-  Federal  Government 
 92.0-  92.3  GHz  300  MHz  Primary  assignments  No  licensed  use 
 92.3-  93.2  GHz  900  MHz  Secondary  assignments,  except  on  specified  military  installations  where 
 assignments  are  on  a  primary  basis 
 Licensed  on  a  primary  basis 


 93.2-  94.0  GHz  800  MHz  Primary  assignments  No  licensed  use 
 94.0-  94.1  GHz  100  MHz  Cloudsat  and  primary  radiolocation  assignments  No  licensed  use 
 94.1-  95.0  GHz  900  MHz  Secondary  assignments,  except  on  specified  military  installations  where 
 assignments  are  on  a  primary  basis 
 Licensed  on  a  primary  basis 


 55.  Band  Plan  II  shares  many  of  the  favorable  characteristics  of  Band  Plan  I  as  it  also  divides  the  licensed  spectrum  from  the  unlicensed  spectrum.  However,  the  segmentation  of  the  band  is  different. 
 Under  Band  Plan  II,  commercial  users  have  full  access  to  the  92-  95  GHz  band  for  unlicensed  Part  15  use  and  two  900-  megahertz  licensed  bands.  This  band  plan  also  provides  additional  interference  protection  to 
 the  passive  band  receivers  in  the  86-  92  GHz  passive  band.  However,  this  band  plan  results  in  licensed  non-  Federal  Government  users  having  only  a  600-  megahertz  wide  separation  rather  than  a  900-  megahertz 
 separation  between  paired  bands.  66  Table  6  summarizes  the  Band  Plan  II  option  for  the  92-  95  GHz  band. 
 Table  6:  Band  Plan  II  Option  for  the  92-  95  GHz  Band  Type  of  Use  (Federal  and  non-  Federal  unlicensed  use  permitted 


 throughout  the  92-  95  GHz  band)  Band  Bandwidth  Federal  Government  non-  Federal  Government 
 92.0-  92.6  GHz  600  MHz  Primary  assignments  No  licensed  use  92.6-  93.5  GHz  900  MHz  Secondary  assignments,  except  on 
 specified  military  installations  where  assignments  are  on  a 
 primary  basis 


 Licensed  on  a  primary  basis 


 93.5-  94.0  GHz  500  MHz  Primary  assignments  No  licensed  use  94.0-  94.1  GHz  100  MHz  Cloudsat  and  primary  No  licensed  use 
 66  This  separation  might  complicate  the  isolation  of  transmit  and  receive  antennas  that  are  closely  spaced  and 
 require  duplexers. 
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 radiolocation  assignments  94.1-  95.0  GHz  900  MHz  Secondary  assignments,  except  on 
 specified  military  installations  where  assignments  are  on  a 
 primary  basis 


 Licensed  on  a  primary  basis 


 56.  Band  Plan  III,  proposed  by  Boeing,  provides  licensees  in  the  92-  95  GHz  band  with  access  to  2,900  megahertz  of  spectrum,  which  is  all  of  the  92-  95  GHz  band  that  can  be  allocated  to  the  fixed  and 
 mobile  services.  67  It  does  not  make  any  spectrum  available  for  unlicensed  use  and  thus,  may  not  provide  adequate  protection  for  Federal  operations  in  the  92-  95  GHz  band  or  for  receivers  in  the  adjacent  86-  92 
 GHz  passive  band.  However,  Boeing  argues  that  in  order  to  provide  very  high,  fiber-  like  data  transmissions  rates,  the  entire  band  must  be  made  available.  68  Boeing  claims  that  any  segmentation  of  the 
 band  would  deny  potential  licensees  the  ability  to  realize  fiber-  like  data  transmission  rates  that  are  possible  in  this  band.  69  We  seek  comment  on  Boeings  proposed  band  plan  for  the  92-  95  GHz  band. 
 Commenters  supporting  Boeings  proposal  should  address  how  its  proposal  could  accommodate  and  address  the  concerns  raised  above  with  the  Federal  Government  operations  and  operations  in  adjacent 
 bands.  Table  7  summarizes  the  Band  Plan  III  option  for  the  92-  95  GHz  band 
 Table  7:  Band  Plan  III  Option  for  the  92-  95  GHz  Band  Type  of  Use 
 Band  Bandwidth  Federal  Government  Non-  Federal  Government 
 92.0-  94.0  GHz  2,000  MHz  Primary  assignments  Licensed  on  a  primary  basis  94.0-  94.1  GHz  100  MHz  Cloudsat  and  primary 


 radiolocation  assignments  None  94.1-  95.0  GHz  900  MHz  Primary  assignments  Licensed  on  a  primary  basis 


 2.  71-  76  GHz  and  81-  86  GHz  Bands 
 57.  Similarly,  in  developing  a  band  plan  for  the  71-  76  GHz  and  81-  86  GHz  bands,  we  must  consider  that  the  71-  76  GHz  and  81-  86  GHz  bands  are  allocated  on  a  co-  primary  basis  for  Federal 


 Government  services.  70  Although  Loea  claims  that  the  Federal  Government  is  not  using  these  bands,  71  we  believe  that  any  band  plan  proposal  must  consider  the  possibility  that  the  Federal  Government  is  currently 
 operating  or  in  the  future  will  be  operating  in  those  bands  and  thus  will  require  protection.  We  also  must  consider  the  proposed  satellite  allocations  for  these  bands.  Loea  correctly  states  that  there  are  no  satellite 


 67  See  Comments  of  The  Boeing  Company  to  Petition  for  Rulemaking  at  4  (filed  Oct.  29,  2001)  (Boeing 
 Comments).  We  observe  that  Boeing  requested  the  entire  3,000  megahertz  between  92  GHz  and  95  GHz,  but  that  the  fixed  and  mobile  allocations  in  the  94-  94.1  GHz  band  have  been  proposed  for  deletion.  See  para.  40,  supra. 


 68  Id. 
 69  Id.  at  5. 
 70  47  C.  F.  R.    2.106. 
 71  See  Loea  Petition  at  9. 
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 services  currently  operating  in  these  bands.  72  Nonetheless,  we  believe  that  we  must  address  the  issue  of  protection  for  these  co-  primary  services  in  the  event  Federal  Government  or  satellite  operators  seek  to  use 
 these  bands  in  the  future.  Finally,  we  believe  that  the  bands  adjacent  to  the  71-  76  GHz  and  81-  86  GHz  bands,  especially  the  86-  92  GHz  passive  band,  may  require  protection. 


 58.  In  the  36-  51  GHz  proceeding,  the  Commission  addressed  similar  issues  when  it  proposed  a  band  plan  for  non-  Government  operations  in  the  36.0-  51.4  GHz  band.  Prior  to  the  commencement  of  the 
 36-  51  GHz  proceeding,  the  band  was  allocated  on  a  co-  primary  basis  to  the  fixed,  mobile,  FSS  and  MSS  services  for  Federal  and  non-  Federal  Government  use.  73  Therefore,  the  Commission  had  to  consider  the 
 feasibility  of  sharing  between  the  satellite  and  wireless  services  while  sharing  with  the  Federal  Government.  74  The  Commission  concluded  that  the  public  interest  would  be  best  served  by  providing 
 separate  primary  designations  for  the  satellite  and  wireless  services,  as  well  as  the  Federal  Government  services,  because  of  the  technical  difficulties  in  sharing.  75  In  2001,  the  Commission  proposed  a  new  band 
 plan  to  reflect  the  decisions  reached  at  WRC-  2000.  76  The  Commission  sought  to  provide  satellite  and  terrestrial  operators  with  greater  certainty  about  the  scope  of  operations  in  the  band  and  also  proposed 
 specific  PFD  limits  on  satellite  operations  in  specific  portions  of  the  band.  77  In  certain  portions  of  the  band  where  both  wireless  and  satellite  services  share  a  co-  primary  allocation,  the  Commission  proposed 
 some  sharing  criteria.  78  For  example,  in  the  37.5-  42.5  GHz  band,  the  Commission  proposed  specific  PFD  limits  for  the  satellite  services  in  order  to  provide  adequate  protection  for  the  wireless  services  in  the 
 band.  79  We  seek  comment  on  whether  this  type  of  sharing  criteria  is  appropriate  for  the  71-  76  GHz  and  81-  86  GHz  bands  80  and  whether  it  provides  adequate  protection  for  the  co-  primary  services. 


 72  Id. 
 73  See  Allocation  and  Designation  of  Spectrum  for  Fixed-  Satellite  Services  in  the  37.  5-  38.  5  GHz,  40.  5-  41.  5  GHz 
 and  48.2-  50.2  GHz  Frequency  Bands,  Report  and  Order,  13  FCC  Rcd  24649,  24650    1(  1998)  (36-  51  GHz  R&  O). 


 74  See  id.  at  24656    13. 
 75  Id.  The  Commission  had  considered  to  allow  underlay  licenses,  i.  e.,  the  licensing  of  a  second  service  in  the 
 bands  designated  for  satellite  services,  but  it  concluded  that  underlay  licenses  could  make  it  more  difficult  to  administer  the  various  services  and  could  increase  the  potential  for  interference  between  satellite  and  wireless 


 services.  See  id.  at  24651    3. 
 76  See  Allocation  and  Designation  of  Spectrum  for  Fixed-  Satellite  Services  in  the  37.  5-  38.  5  GHz,  40.  5-  41.  5  GHz 
 and  48.2-  50.2  GHz  Frequency  Bands,  Further  Notice  of  Proposed  Rulemaking,  16  FCC  Rcd  12244  (2001)  (36-  51  GHz  FNPRM). 


 77  Id.  at  12245    1. 
 78  Id.  at  12258    39. 
 79  Id.  at  12258-  60    39-  50. 
 80  We  note  that  PFD  limits  were  utilized  in  downlink  (space-  to-  Earth)  bands.  The  current  US  Table  shows  this 
 band  to  be  81-  86  GHz.  WRC-  2000  reallocated  the  satellite  allocation  at  81-  86  GHz  into  an  uplink  (Earth-  to-space)  band,  while  also  changing  the  satellite  band  at  71-  75.5  GHz  band  from  an  uplink  into  a  downlink 


 allocation. 
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 59.  In  its  Petition,  Loea  asks  the  Commission  to  authorize  licensees  use  of  the  entire  bandwidth  of  the  71-  76  GHz  and  81-  86  GHz  bands.  81  Loea  claims  that  a  service  provider  will  need  all  ten-  gigahertz  of 
 available  spectrum  in  these  bands  in  order  to  provide  point-  to-  point  access  with  sufficient  throughput  to  meet  local  backhaul  requirements  beyond  a  three-  year  time  horizon.  82  Loea  also  claims  that  because  the 
 systems  will  use  narrow  pencil-  beams  transmission,  it  will  be  difficult  to  interfere  with  them.  83  Loea,  therefore,  argues  that  with  the  low  likelihood  of  interference  there  is  no  impetus  for  the  Commission  to 
 subdivide  the  bands  into  channels.  84  In  further  support  of  its  request  for  the  entire  ten  gigahertz  of  spectrum,  Loea  contends  that  leaving  the  bands  undivided  provides  equipment  developers  with  the 
 greatest  amount  of  flexibility  to  design  systems.  85  Loea  also  contends  that  there  would  be  little  to  no  advantage  to  a  spectrum  grab  here  because  new  competitors  could  enter  a  geographical  location  at  any 
 time  and  connect  new  points  without  causing,  or  being  affected  by,  harmful  interference  from  existing  service  providers  in  the  same  location.  86  Boeing,  Endwave  and  the  Fixed  Wireless  Communications 
 Coalition  (FWCC)  all  filed  comments  supporting  Loeas  proposal  to  allow  licensees  in  the  band  access  to  the  entire  ten  gigahertz  of  available  spectrum  in  these  bands.  87  Boeing  notes,  however,  that  interservice 
 compatibility  should  be  required,  and  it  expresses  its  belief  that  sharing  criteria  should  be  easier  to  develop  in  these  bands  because  of  the  nature  of  propagation  in  these  bands.  88 


 60.  We  seek  comment  on  Loeas  proposal  to  authorize  the  entire  71-  76  GHz  and  81-  86  GHz  bands  for  fixed  use.  89  We  specifically  seek  comment  on  whether  Loeas  band  plan  proposal  for  the  71-  76 
 GHz  and  81-  86  GHz  bands  provides  adequate  protection  for  the  Federal  Government  and  non-  Federal  Government  services  that  share  the  bands  on  a  co-  primary  basis.  90  We  also  seek  comment  on  the  extent 
 to  which  we  can  implement  sharing  criteria  between  fixed  services  and  other  services  authorized  for  the  bands.  We  also  seek  comment  on  whether  Loeas  proposed  band  plan  for  the  71-  76  GHz  and  81-  86  GHz 
 bands  provides  adequate  protection  for  the  adjacent  bands,  especially  the  passive  86-  92  GHz  band. 
 61.  We  also  invite  commenters  to  propose  alternative  band  plans  for  this  spectrum.  We  seek  band  plan  proposals  that  will  provide  flexibility  and  efficient  spectrum  usage  while  providing  adequate 


 protection  for  the  co-  primary  users  described  above.  We  also  ask  commenters  to  consider  the  bands 


 81  See  Loea  Petition  at  10. 
 82  Id.  at  11. 
 83  Id.  at  12. 
 84  Id. 
 85  Id.  at  13. 
 86  Id. 
 87  See  Boeing  Comments  at  4-  6,  Comments  of  Endwave  Corporation  at  3  (filed  Oct.  29,  2001)  (Endwave 
 Comments),  Comments  of  the  Fixed  Wireless  Communications  Coalition  at  2  (filed  Oct.  29,  2001)  (FWCC  Comments). 


 88  Boeing  Comments  at  3. 
 89  See  para.  94  for  discussion  of  a  channelization  plan  in  the  71-  76  and  81-  86  GHz  bands. 
 90  Id. 
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 adjacent  to  the  71-  76  GHz  and  81-  86  GHz  bands.  Such  a  proposal  may  resemble  our  92-  95  GHz  band  plan  proposal,  in  which  adequate  protection  to  the  co-  primary  services  described  above  and  the  adjacent 
 bands  is  provided  by  dividing  the  spectrum  into  licensed  and  unlicensed  use  bands.  Another  possibility  is  a  band  plan  resembling  the  36-  51  GHz  proposal,  in  which  the  Commission  provided  PFD  limits  to  protect 
 co-  primary  users  in  certain  portions  of  the  band.  Commenters  may  also  consider  proposing  strict  emission  limitations  to  provide  the  necessary  protection.  Commenters  are  requested  to  provide  detailed 
 support  for  any  band  plan  proposal. 
 C.  Proposed  Service  Rules  for  Unlicensed  Bands 
 62.  As  stated  above,  we  have  proposed  to  make  the  92-  95  GHz  band  available  for  unlicensed  use.  We  are  proposing  rules  for  unlicensed  operation  in  the  92-  95  GHz  band  in  Appendix  B  that  are  based  on 


 our  existing  regulations  for  the  57-  64  GHz  band.  91  We  believe  that  power  levels  for  57-  64  GHz  unlicensed  operation  are  also  appropriate  for  92-  95  GHz  since  they  were  based  primarily  on  safety  issues 
 with  respect  to  power  densities.  92  The  proposed  rules  are  structured  to  be  as  flexible  as  possible  with  no  restrictions  on  the  types  of  modulation  or  applications,  except  that  these  devices  may  not  be  used  in 
 aircraft  or  satellites.  93  The  prohibition  on  airborne  and  spaceborne  use  is  necessary  to  protect  in-  band  RAS  observations. 


 63.  We  also  seek  comment  on  providing  for  operation  of  unlicensed  devices  in  the  71-  76  GHz  and  81-  86  GHz  bands.  We  believe  that  unlicensed  use  of  this  spectrum  could  provide  additional  bandwidth 
 for  high  capacity,  short-  range  communications  and  other  new  and  unique  communications  applications.  One  approach  would  be  to  permit  unlicensed  operation  in  these  bands  under  the  same  rules  (including 
 technical  parameters)  that  we  are  proposing  for  unlicensed  operation  in  the  92-  95  GHz.  We  request  comment  on  this  option  and  ask  that  commenting  parties  specifically  address  the  operating  parameters 
 that  should  be  specified  for  unlicensed  devices  in  the  71-  76  GHz  and  81-  86  GHz  bands. 
 D.  Proposed  Rules  for  Licensed  Bands 
 1.  Introduction 
 64.  With  the  increasing  demand  for  radio  spectrum,  our  spectrum  management  activities  must  focus  on  promoting  more  efficient  use  of  the  spectrum  and  increasing  the  amount  of  spectrum  available 


 for  new  services  while  continuing  to  ensure  access  to  adequate  spectrum  for  essential  incumbent  services.  With  these  goals  in  mind,  we  hereby  propose  new  service  rules  that  we  believe  provide  a  flexible  and 
 efficient  approach  to  spectrum  management.  We  believe  a  flexible  approach  will  allow  licensees  freedom  to  determine  the  services  to  offer  and  the  technologies  to  use  in  providing  these  services.  We  also  believe 
 that  any  approach  we  take  must  be  consistent  with  our  responsibility  to  promote  provision  of  communications  services  to  all  Americans  in  all  parts  of  the  United  States  and  to  promote  diverse 
 ownership  of  communications  service  providers  via  a  variety  of  platforms.  We  seek  an  approach  that  will 


 91  47  C.  F.  R.    15.255. 
 92  As  shown  in  Appendix  B,  the  proposed  power  levels  are  9  W/  cm  2  average  power  and  18  W/  cm  2  peak  power, 
 both  measured  3  meters  from  the  radiating  structure. 


 93  This  flexibility  follows  the  precedent  set  in  47  C.  F.  R.    15.407(  e)  for  the  Unlicensed  National  Information 
 Infrastructure  band. 
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 allow  licensees  to  make  the  most  efficient  use  of  their  assigned  spectrum  in  response  to  market  forces  and  that  will  advance  the  public  interest. 
 2.  Operational  Rules 
 a)  Geographic  Area  Licensing 
 65.  Loea  and  the  other  commenters  favor  a  site-  by-  site-  only  licensing  scheme  in  these  bands.  94  Loea  contends  that  geographic  area  licensing  would  only  succeed  in  keeping  competing  providers  out  of 


 an  area.  95  Under  Loeas  proposal,  potential  applicants  would  send  applications  to  coordinators  prior  to  filing  an  application.  96  If  interference  were  predicted,  the  application  would  be  amended  at  the 
 coordination  stage.  97  Loea  believes  that  there  is  little  likelihood  of  interference  because  the  point-  to-  point  systems  operating  in  these  bands  would  use  very  narrow  pencil-  beams  to  transmit  data.  98  These  pencil-sized 
 beams  will  allow  licensees  to  be  located  closely  together.  99  Therefore,  Loea  argues  that  a  site-  by-site-  only  licensing  scheme  would  enable  an  infinite  number  of  providers  to  be  authorized  in  the 
 spectrum.  100  We  seek  comment  on  this  proposal. 
 66.  Alternatively,  we  seek  comment  on  whether  to  define  licenses  in  the  licensed  portions  of  the  71-  76  GHz,  81-  86  GHz,  92-  94  GHz  and  94.1-  95  GHz  bands  on  the  basis  of  geographic  areas.  Our 


 experience  has  been  that  geographic  area  licensing  affords  licensees  substantial  flexibility  to  respond  to  market  demand  and  may  result  in  significant  improvements  in  spectrum  utilization.  101  We  believe  that 
 geographic  area  licensing  allows  licensees  to  coordinate  usage  of  the  spectrum  across  an  entire  geographic  area  to  maximize  the  use  of  spectrum  in  areas  of  highest  demand.  Geographic  area  licenses 
 also  provide  the  flexibility  to  dynamically  adjust  spectrum  usage  depending  upon  market  demands.  Such  adjustments  may  be  significantly  more  difficult  under  a  site-  by-  site  licensing  regime,  where  prior 
 Commission  approval  is  needed  before  a  licensee  can  address  growth  or  changes  in  demand. 


 94  See  Loea  Petition  at  19;  see  also  Boeing  Comments  at  6-  8;  Endwave  Comments  at  3;  FWCC  Comments  at  2; 
 PCIA  Comments  at  2;  Reply  Comments  of  the  Wireless  Communications  Association  International  at  3  (filed  Nov.  13,  2001)  (WCIA  Comments). 


 95  Id. 
 96  Id.  at  16. 
 97  Id. 
 98  Id.  at  19. 
 99  See  Boeing  Comments  at  7. 
 100  See  Loea  Petition  at  19. 
 101  See,  e.  g.  Amendment  of  Part  90  of  the  Commissions  Rules  to  Facilitate  Future  Development  of  SMR  Systems 
 in  the  800  MHz  Frequency  Band,  PR  Docket  No.  93-  144,  First  Report  and  Order,  Eighth  Report  and  Order,  and  Second  Further  Notice  of  Proposed  Rule  Making,  11  FCC  Rcd  1463  (1995)  (restructuring  licensing  framework  of 


 800  MHz  Specialized  Mobile  Radio  Service  and  adopting  wide-  area  licensing);  See  also  Gregory  L.  Rosston  &  Jeffery  S.  Steinberg,  Using  Market-  Based  Spectrum  Policy  to  Promote  the  Public  Interest,  50  Fed.  Comm.  L.  J.  87, 
 94  (1997). 
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 67.  We  note  that  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  are  allocated  to  Federal  Government  services  on  a  co-  primary  basis.  However,  we  believe  that  any  government  use  in  these  bands 
 would  be  limited  in  both  area  and  frequency.  Therefore,  we  ask  whether  it  would  be  appropriate  to  use  a  geographic  area  licensing  scheme  in  the  71-  76  GHz,  81-  86  GHz,  92-  94  GHz  and  94.1-  95  GHz  bands, 
 except  in  a  limited  number  of  defined  frequencies  or  areas  where,  upon  successful  coordination  with  the  Federal  Government,  licensees  would  use  a  site-  by-  site  licensing  scheme.  We  seek  comment  on  whether 
 this  hybrid  approach  would  provide  the  flexibility  of  geographic  licensing  while  ensuring  protection  for  the  Federal  Government  services  where  necessary.  We  also  ask  commenters  for  alternative  licensing 
 schemes.  For  example,  licensing  by  geographic  area  except  in  frequencies  where  the  Federal  Government  is  operating.  In  the  limited  spectrum  where  the  Federal  Government  is  operating,  we  then  would  require  a 
 geographic  area  licensee  to  apply  for  an  individual  station  license.  102  We  also  seek  comment  on  whether  allowing  unlicensed  use  of  any  part  of  this  band  would  allow  even  more  flexibility  and  promote  more 
 innovation  than  either  geographic  area  or  site-  by-  site  licensing.  103 
 68.  We  believe  that  an  exclusive  site-  by-  site-  only  licensing  scheme  could  impose  administrative  burdens  on  the  Commission  and  applicants  for  the  spectrum.  In  each  of  these  bands,  the  path  lengths  will 


 be  so  short  that  site-  by-  site  licensing  may  require  an  entity  to  obtain  hundreds  or  thousands  of  authorizations  in  a  given  area  to  effectuate  a  business  plan.  Moreover,  Section  8  of  the  Act  104  requires  an 
 application  fee  for  each  application,  and  Section  9  of  the  Act  105  requires  a  regulatory  fee  for  each  license.  Under  these  circumstances,  requiring  a  separate  license  for  each  path  could  impose  substantial  expenses 
 on  licensees  and  reduce  the  flexibility  that  licensees  would  need  in  order  to  respond  rapidly  to  changing  market  conditions.  Conversely,  we  believe  geographic  area  licensing  could  reduce  the  administrative 
 burdens  by  reducing  the  number  of  authorizations  licensees  must  obtain  to  operate  a  system.  Geographic  area  licensing  would  also  allow  licensees  to  establish  new  links  without  obtaining  prior  Commission 
 approval  (except  in  those  areas  where  coordination  with  the  Federal  Government  would  be  required). 
 69.  Loea  argues  that  administrative  burdens  could  be  reduced  if  we  delegated  a  significant  portion  of  the  licensing  process  to  an  independent  third-  party  coordinator.  106  In  support  of  this  argument,  Loea 


 provides  an  economic  study  by  HAI  Consulting,  Inc.  (HAI).  107  The  HAI  Paper  provides  that  this  third  party  would  be  part  of  a  joint  venture  of  the  licensees  and  would  provide  spectrum  management  services 
 and  contract  with  the  licensees  to  do  so.  108  HAI  claims  that  by  making  the  coordinator  the  creature  of  the  potential  users  of  the  spectrum,  the  Commission  avoids  having  to  regulate  them.  109  Even  if  we  did  agree 
 that  delegating  a  significant  portion  of  the  licensing  process  to  a  third  party  could  resolve  the  Commissions  administrative  burden,  it  may  not  resolve  the  substantial  and  costly  burdens  that  site-  by- 


 102  There  is  a  discussion  of  individual  station  licenses  in  para.  58. 
 103  See    62-  63,  supra. 
 104  47  U.  S.  C.    158. 
 105  47  U.  S.  C.    159. 
 106  Id.  at  16. 
 107  See  Loea  Petition,  Appendix  B  (HAI  Paper)  at  14. 
 108  Id. 
 109  Id. 
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 site  licensing  imposes  on  potential  licensees.  In  addition,  a  coordinator  would  have  to  function  in  accordance  with  the  technical  licensing  criteria  codified  in  our  Rules.  110  In  order  to  change  any  criteria  in 
 our  Rules,  we  would  have  to  institute  a  rulemaking  proceeding  as  technology  evolves.  We  seek  comment  on  the  costs  and  burdens  associated  with  site-  by-  site  licensing. 


 70.  Loea  and  the  commenters  also  argue  that  geographic  area  licensing  would  unduly  restrict  the  number  of  providers  who  could  provide  service  in  the  market.  Specifically,  they  argue  because  of  the 
 ability  to  reuse  the  spectrum  a  very  large  number  of  times  in  a  given  area,  licensing  the  spectrum  to  a  single  licensee  in  a  given  area  would  create  an  artificial  scarcity  that  would  create  an  undue  tax  on  the 
 users  of  the  spectrum.  111  This  argument,  however,  ignores  possible  licensing  mechanisms  such  as  band  managers  that  can  be  used  to  provide  service  to  a  greater  possible  number  of  users.  We  also  note  that 
 Loea  and  the  other  commenters  are  seeking  at  least  10,000  MHz  of  spectrum.  We  believe  that  it  could  be  more  efficient  to  license  such  a  large  amount  of  spectrum  on  a  geographic  area  basis.  In  light  of  these 
 considerations,  we  seek  comment  on  whether  using  a  site-  by-  site  licensing  scheme  exclusively  would  be  appropriate  for  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands. 


 71.  In  the  event  we  license  the  vast  majority  of  this  spectrum  on  the  basis  of  geographic  areas,  we  request  comment  on  the  most  appropriate  geographic  area  licensing  scheme  for  the  71-  76  GHz,  81-  86 
 GHz  and  92-  95  GHz  bands.  When  establishing  geographic  service  areas,  we  must  balance  the  competing  concerns  of  those  entities  that  desire  large  service  areas  with  those  entities  that  seek  small  service  areas. 
 Large  service  areas,  such  as  nationwide  licenses,  EAs,  REAs,  112  and  EAGs,  113  can  achieve  certain  economies  of  scale  and  increased  efficiencies  compared  to  smaller  service  areas.  114  However,  small 


 110  47  C.  F.  R    101.103. 
 111  See  Loea  Petition  at  17-  18  and  HAI  Paper  at  10.  See  also  Comments  of  DMC  Stratex  Networks,  Inc.  at  2-  3 
 (filed  Oct.  29,  2001)  (DMX  Comments);  Comments  of  The  Personal  Communications  Industry  Association,  Inc.  at  2-  3  (filed  Nov.  13,  2001)  (PCIA  Comments);  Endwave  Comments  at  3-  4;  Boeing  Comments  at  6-  10. 


 112  The  Commission  uses  Economic  Areas  (  EAs)  for  24  GHz  and  39  GHz  band,  and  Regional  Economic  Area 
 Groupings  (  REAs)  and  the  52  Major  Economic  Areas  (  MEAs)  for  the  2.3  GHz  band.  There  are  172  EAs,  as  defined  by  the  U.  S.  Department  of  Commerce,  and  three  additional  Commission-  defined  EA-  like  areas.  The  three 


 additional  EA-  like  services  areas  are:  (1)  Guam  and  the  Northern  Mariana  Islands  (combined  as  one  service  area);  (2)  Puerto  Rico  and  the  United  States  Virgin  Islands  (combined  as  one  service  area);  and  (3)  America  Samoa.  See 
 Amendments  to  Part  1,  2,  87  and  101  of  the  Commissions  Rules  to  License  Fixed  Services  at  24  GHz,  WT  Docket  99-  327,  Report  and  Order,  15  FCC  Rcd  16934,  16942-  16944    13-  18  (2000).  See  47  C.  F.  R.    101.64.  See  also 
 Amendment  of  the  Commissions  Rules  regarding  the  37.0-  38.6  GHz  and  38.6-  40.0  GHz  Bands,  Memorandum  Opinion  and  Order,  14  FCC  Rcd  12428,  12452    46  (1999).  At  the  time  of  the  2.3  GHz  auction,  REAs  were 
 defined  as  Regional  Economic  Area  Groupings  (  REAGs).  See  47  C.  F.  R.    27.6.  See  also  Amendment  of  the  Commissions  Rules  to  Establish  Part  27,  the  Wireless  Communications  Service  (WCS),  12  FCC  Rcd  at  10785, 
 10814-  10816    54-  60  (1997)  (WCS  R&  O). 
 113  See  Service  Rules  for  the  746-  764  and  776-  794  MHz  Bands  and  Revision  to  Part  27  of  the  Commissions 
 Rules,  First  Report  and  Order,  15  FCC  Rcd  at  476,  500  (2000). 
 114  2000  Biennial  Regulatory  Review  Spectrum  Aggregation  Limits  For  Commercial  Mobile  Radio  Services,  WT 
 Docket  No.  01-  14,  Report  and  Order  (2001);  Implementation  Of  Section  6002(  B)  of  the  Omnibus  Budget  Reconciliation  Act  of  1993,  Annual  Report  and  Analysis  of  Competitive  Market  Conditions  with  Respect  to 


 Commercial  Mobile  Services,  Fourth  Report,  14  FCC  Rcd  10145,  10154    18-  19  (Major  operational  trends)  (1999). 
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 service  areas,  such  as  MSAs,  RSAs,  and  CEAs,  115  may  encourage  rapid  service  deployment  to  less  populated  and  rural  regions  of  the  nation.  We  also  believe  that  in  some  cases,  smaller  service  areas  could 
 permit  additional  opportunities  for  small  businesses  to  provide  service  in  the  bands  and  thus,  more  varied  groups  of  service  providers.  Moreover,  the  use  of  small  service  areas  may  permit  the  meaningful 
 participation  of  small  businesses  in  the  bands  better  than  through  the  use  of  nationwide  or  regional  service  areas  because  the  smaller  service  areas  will  likely  require  a  lower  minimum  investment.  Thus,  smaller 
 service  areas  may  permit  the  dissemination  of  licenses  among  a  wide  variety  of  applicants.  116  We  seek  comment  on  whether  small  service  areas  would  permit  the  efficiencies  necessary  to  support  the  cost  of 
 providing  fixed  wireless  service. 
 72.  Alternatively,  we  seek  comment  on  whether  we  should  adopt  a  licensing  plan  where  the  geographic  service  areas  vary  in  size.  As  explained  in  the  Band  Plan  section,  we  could  adopt  a  segmented 


 band  plan.  If  such  a  band  plan  were  adopted,  we  seek  comment  on  whether  adoption  of  a  large  service  area  for  one  licensed  segment  of  the  band  and  a  smaller  service  area  for  the  remaining  licensed  segment(  s) 
 of  the  band  would  be  appropriate.  Commenters  supporting  a  licensing  plan  where  the  geographic  service  areas  vary  in  size  should  indicate  their  reasons  for  such  an  approach  as  well  as  the  amount  of  spectrum 
 that  would  be  appropriate  for  the  service  area  designation. 
 73.  We  ask  commenters  to  consider  service  areas  that  will  promote  efficient  spectrum  usage  and  flexibility.  We  wish  to  ensure  service  to  rural  areas  117  and  to  promote  investment  in  and  rapid 


 deployment  of  technologies  and  services  to  all  underserved  areas.  118  Commenters  that  support  licensing  based  on  service  areas  other  than  those  discussed  above  should  explain  why  other  types  of  service  areas 
 are  more  appropriate  for  this  band. 
 b)  Eligibility 
 (1)  Foreign  Ownership 
 74.  Sections  310(  a)  and  310(  b)  of  the  Act,  as  modified  by  the  Telecommunications  Act  of  1996,  impose  foreign  ownership  and  citizenship  requirements  that  restrict  the  issuance  of  licenses  to  certain 


 applicants.  119  Licensees  in  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  will  be  subject  to  section  310(  a)  and,  depending  upon  the  rules  established  in  this  proceeding,  may  be  subject  to  Section  310(  b).  120  An 


 115  The  Commission  uses  Metropolitan  and  Rural  Service  Areas  (  MSAs  and  RSAs)  for  Cellular.  There  are 
 734  MSAs  and  RSAs.  See  Public  Notice  Report  No.  Cl-  92-  40  Common  Carrier  Public  Mobile  Services  Information,  Cellular  MSA/  RSA  Markets  and  Counties,  dated  January  24,  1992,  DA  92-  109,  7  FCC  Rcd  742 


 (1992).  See  also  47  C.  F.  R.    22.909.  The  Commission  has  licensed  MVDDS  using  the  348  Component  Economic  Areas  (CEAs).  See  e.  g.  Amendment  of  Parts  2  and  25  of  the  Commissions  Rules  to  Permit  Operation 
 of  NGSO  FSS  Systems  Co-  Frequency  with  GSO  and  Terrestrial  Systems  in  the  Ku-  Band  Frequency  Range,  Memorandum  Opinion  and  Order,  Second  Report  and  Order  and  Second  Further  Notice  of  Proposed 
 Rulemaking,  ET  Docket  No.  98-  206,  FCC  No.  02-  116,  (May  23,  2002). 
 116  See  47  U.  S.  C.    309(  j)(  3)(  B),  (4)(  c). 


 117  See  47  U.  S.  C.    309(  j)(  3)(  B). 
 118  See  47  U.  S.  C.    309(  j)(  4)(  c)(  iii). 
 119  47  U.  S.  C.    310(  a),  310(  b). 
 120  Id. 
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 applicant  requesting  authorization  only  for  non-  common  carrier  or  non-  broadcast  services  would  be  subject  to  Section  310(  a)  but  not  to  the  additional  prohibitions  of  Section  310(  b).  An  applicant  requesting 
 authorization  for  broadcast  or  common  carrier  services  would  be  subject  to  both  Sections  310(  a)  and  310(  b). 


 75.  Further,  we  note  that  in  response  to  the  commitments  under  the  World  Trade  Organization  (WTO)  Basic  Telecommunications  Agreement,  the  Commission  liberalized  its  policy  for  applying  its 
 discretion  with  respect  to  foreign  ownership  of  common  carrier  radio  licensees  under  Section  310(  b)(  4).  121  Under  our  new  policy,  the  Commission  now  presumes  that  ownership  by  entities  from 
 countries  that  are  WTO  members  serves  the  public  interest.  122  Ownership  by  entities  from  countries  that  are  not  WTO  members  continues  to  be  subject  to  the  "effective  competitive  opportunities"  potential 
 established  earlier  by  the  Commission.  123 
 76.  In  the  filing  of  an  application  under  the  proposed  service  rules,  we  seek  to  require  common  carriers  and  non-  common  carriers  to  comply  with  similar  reporting  obligations.  In  order  to  foster 


 regulatory  parity  and  transparency,  we  believe  we  should  require  all  applicants  to  file  changes  in  foreign  ownership  information  to  the  extent  required  by  Part  101  of  our  Rules.  In  light  of  the  ability  of  Part  101 
 licensees  to  provide  both  common  carrier  and  non-  common  carrier  services,  our  Rules  require  all  licensees  to  report  alien  ownership  on  a  consistent  basis,  to  better  enable  the  Commission  to  monitor 
 compliance.  124  By  establishing  parity  in  reporting  obligations,  however,  we  do  not  propose  a  single,  substantive  standard  for  compliance.  Thus,  by  way  of  example,  we  do  not  believe  we  should  disqualify 
 an  applicant  requesting  authorization  exclusively  to  provide  non-  common  carrier  services  from  obtaining  a  license  simply  because  its  citizenship  information  would  disqualify  it  from  a  common  carrier  or 
 broadcast  license.  We  request  comment  on  this  proposal. 
 (2)  Eligibility  Restrictions 
 77.  We  believe  that  opening  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  to  as  wide  a  range  of  applicants  as  possible  will  encourage  entrepreneurial  efforts  to  develop  new  technologies  and  services, 


 while  helping  to  ensure  efficient  spectrum  use.  Nevertheless,  in  addressing  this  eligibility  issue,  we  seek  to  determine  whether  open  eligibility  imposes  a  significant  likelihood  of  substantial  competitive  harm  in 
 specific  markets,  and,  if  so,  whether  eligibility  restrictions  are  an  effective  way  to  address  that  harm.  We  believe  we  should  rely  on  competitive  market  forces  to  guide  license  assignment  absent  a  compelling 
 showing  that  regulatory  intervention  to  exclude  potential  participants  is  necessary.  When  granting  the  Commission  authority  in  Section  309(  j)  of  the  Act  to  auction  wireless  spectrum,  Congress  acknowledged 
 our  authority  to  [  specify]  eligibility  and  other  characteristics  of  such  licenses.  125  However,  Congress 
 121  The  commitments  are  incorporated  into  the  General  Agreement  of  Trade  in  Services  (GATS)  by  the  Fourth 
 Protocol  to  the  GATS.  See  Fourth  Protocol  to  the  General  Agreement  on  Trade  in  Services  (WTO  1997),  36  I.  L.  M.  366  (1997). 


 122  See  Rules  and  Policies  on  Foreign  Participation  in  the  U.  S.  Telecommunications  Market  and  Market  Entry  and 
 Regulation  of  Foreign-  Affiliated  Entities,  Report  and  Order  and  Order  on  Reconsideration,  12  FCC  Rcd  23891,  23935-  47,    97-  132  (1997). 


 123  Id. 
 124  See  Service  Rules  for  the  746-  764  and  776-  794  MHz  Bands,  and  Revisions  to  Part  27  of  the  Commissions 
 Rules,  First  Report  and  Order,  15  FCC  Rcd  476,  502-  3    64  (2000). 
 125  See  47  U.  S.  C.    309(  j)(  3). 
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 specifically  directed  the  Commission  to  exercise  that  authority  so  as  to  promot[  e]  .  .  .  economic  opportunity  and  competition.  126  Congress  also  emphasized  this  pro-  competitive  policy  in  Section  257, 
 where  it  articulated  a  national  policy  in  favor  of  vigorous  economic  competition  and  the  elimination  of  barriers  to  market  entry  by  a  new  generation  of  telecommunications  providers.  127 


 78.  Toward  that  end,  the  Commission  has  created  a  standard  for  determining  whether  an  eligibility  restriction  is  warranted  for  certain  services.  128  Specifically,  this  standard  demands  that  an  eligibility 
 restriction  be  imposed  only  when  there  is  significant  likelihood  of  substantial  harm  to  competition  in  specific  markets  and  when  the  restriction  will  be  effective  in  eliminating  that  harm.  129  The  effective 
 competition  standard  involves  much  more  than  examining  market  power.  In  addition,  the  test  entails  examining  other  relevant  market  facts  and  circumstances:  economic  incentives,  barriers  to  entry,  and 
 potential  competition.  130  Because  we  are  unsure  of  the  exact  type  of  services  that  will  operate  in  the  subject  bands,  we  are  unable  to  conclude  whether  open  eligibility  poses  a  significant  likelihood  of 
 substantial  competitive  harm  in  specific  markets  or  whether  eligibility  restrictions  are  an  effective  way  to  address  substantial  competitive  harm.  Accordingly,  we  seek  comment  on  whether  any  eligibility 
 restrictions  are  appropriate  for  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands.  Commenters  advocating  imposition  of  eligibility  restrictions  should  specify  the  level  of  restrictions  that  would  address 
 any  perceived  harm.  131 
 (3)  Band  Managers 
 79.  We  also  seek  comment,  in  the  event  we  adopt  a  geographic  area  licensing  scheme,  on  whether  licensing  to  band  managers  132  would  be  appropriate.  In  the  BBA  Report  and  Order,  the  Commission 


 126  Id. 
 127  See  47  U.  S.  C.    257. 
 128  See  Amendment  of  the  Commissions  Rules  Regarding  the  37.0-  38.6  GHz  and  38.6-  40.0  GHz  Bands,  Report 
 and  Order  and  Second  Notice  of  Proposed  Rule  Making,  12  FCC  Rcd  18600,  18617-  18619    30-  33  (39  GHz  R&  O). 


 129  Id.  at  18619    32. 
 130  Rule  Making  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  Services  and  for  Fixed  Satellite  Services,  Third  Order  on  Reconsideration,  13  FCC  Rcd 


 4856,  4861    7,  4863    12  (1998). 
 131  In  LMDS  and  the  commercial  mobile  radio  service  (CMRS)  Spectrum  Cap,  the  Commission  employed  an 
 attributable  interest  percentage. 
 132  Band  managers  are  a  class  of  licensees  that  are  specifically  authorized  to  lease  their  licensed  spectrum  usage 
 rights  for  use  by  third  parties  through  private,  contractual  agreements,  without  having  to  secure  prior  approval  by  the  Commission.  Promoting  Efficient  Use  of  Spectrum  Through  Eliminating  Barriers  to  the  Development  of 


 Secondary  Markets,  Notice  of  Proposed  Rule  Making,  WT  Docket  No.  00-  230,  15  FCC  Rcd  24203,  24209    17  (2000). 
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 recognized  band  managers  as  a  future  option  for  spectrum  licensing.  133  Because  the  technology  for  these  bands  is  new  and  developing,  we  believe  a  flexible  regulatory  approach  is  necessary  to  allow 
 development  of  applications  for  the  optimal  public  benefit.  In  this  connection,  we  seek  comment  on  whether  permitting  an  entity  to  hold  a  license  in  these  bands  as  a  band  manager  would  be  appropriate. 


 80.  We  note  that  Loea  made  comments  opposing  the  band  manager  concept.  134  Specifically,  Loea  contends  that  the  technological  applications  in  the  Upper  Millimeter  Wave  band  require  large  vertical 
 slices  of  spectrum  thereby  reducing  the  number  of  viable  spectrum  managers.  135  Loea  further  argues  that  giving  a  band  manager  exclusive  use  of  the  spectrum  in  a  geographic  area  gives  it  a  monopoly  in  the 
 area.  136  We  seek  comment  on  whether,  on  the  other  hand,  a  band  manager  could  actually  enhance  accessibility  by  third  parties  interested  in  providing  service  using  this  spectrum.  In  this  regard,  we  seek 
 comment  on  whether  a  band  manager  could  perform  many  of  the  functions  that  Loea  proposes  be  delegated  to  a  coordinator.  We  seek  comment  generally  on  the  feasibility,  if  we  decide  on  geographic 
 area  licensing,  of  providing  licensees  in  these  bands  with  the  option  of  electing  to  operate  either  as  a  band  manager  or  as  a  regular  non-  band  manager  licensee.  137 


 81.  If  we  allow  band  manager  licensees  in  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands,  we  seek  comment  on  the  rules  that  should  apply  to  band  managers  in  these  bands.  Additionally,  we  seek 
 comment  on  how  rules  for  band  managers  should  differ  from  the  rules  applicable  to  700  MHz  Guard  Band  Managers.  138  For  example,  we  ask  whether  we  should  also  implement  safeguards,  similar  to  those 
 in  Part  27  of  our  Rules,  to  ensure  that  a  band  managers  core  function  remains  focused  on  leasing.  139  We  also  seek  comment  on  whether  it  is  necessary  to  provide  additional  safeguards  to  prevent  a  band  manager 
 from  discriminating  among  spectrum  users.  140  We  note  that  in  the  27  MHz  Report  and  Order,  we  declined  to  apply  several  rules  to  band  managers  in  those  bands  that  do  apply  to  700  MHz  Guard  Band 


 133  See  Implementation  of  Sections  309(  j)  and  337  of  the  Communications  Act  of  1934  as  Amended,  WT  Docket 
 No.  99-  87,  Report  and  Order  and  Further  Notice  of  Proposed  Rule  Making,  WT  Docket  99-  87,  15  FCC  Rcd  22709,  22727-  22735  (2000)  (BBA  Report  and  Order). 


 134  See  id. 
 135  See  Loea  Petition  at  16. 
 136  Id. 
 137  We  note  that  the  Commission  is  exploring  ways  to  promote  leasing  in  its  Secondary  Markets  proceeding.  See 
 Promoting  Efficient  Use  of  the  Spectrum  through  Elimination  of  Barriers  to  the  Development  of  Secondary  Markets,  WT  Docket  No.  00-  230,  Notice  of  Proposed  Rule  Making,  15  FCC  Rcd  24203  (rel.  Nov.  27,  2000);  see 


 also  Promoting  Efficient  Use  of  the  Spectrum  through  Elimination  of  Barriers  to  the  Development  of  Secondary  Markets,  Policy  Statement,  15  FCC  Rcd  24178  (rel.  Dec.  1,  2000). 


 138  See  generally  47  C.  F.  R.  Part  27    Miscellaneous  Wireless  Communications  Services  (Subpart  G). 
 139  See  700  MHz  Guard  Band  Second  Report  and  Order,  supra,  note  137  (limiting  band  managers  and  affiliated 
 spectrum  use). 
 140  See  700  MHz  Guard  Band  Second  Report  and  Order,  15  FCC  Rcd  at  5327-  5328    63-  67;  see  also  BBA 
 Report  and  Order,  15  FCC  Rcd  22733    47. 
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 Managers.  141  We  seek  comment  on  which  Part  27  Rules  relating  to  band  managers  should  apply  to  band  managers  in  these  bands.  In  addition,  we  request  comment  on  the  type  of  information  to  include  in 
 agreements  between  band  mangers  and  spectrum  users.  142  Finally,  we  seek  comment  on  whether  we  should  require  band  managers  to  file  annual  reports  on  their  spectrum  usage  with  the  Commission.  143  The 
 annual  reports  would  enable  the  Commission  to  ensure  that  spectrum  is  not  being  warehoused  or  otherwise  not  being  made  available  despite  existing  demand.  144 


 c)  Canadian  and  Mexican  Coordination 
 82.  Section  2.301  of  our  Rules  requires  stations  using  wireless  frequencies  to  identify  their  transmissions  with  a  view  to  eliminating  harmful  interference  and  generally  enforcing  applicable  wireless 


 treaties,  conventions,  regulations,  arrangements,  and  agreements.  145  At  this  time,  there  are  no  international  agreements  between  and  among  the  United  States,  Mexico  and  Canada  concerning  the 
 reallocation  of  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  spectrum.  We  believe  we  should  adopt  interim  requirements  for  licensees  along  these  borders.  Additionally,  we  believe  we  should  require  these  licensees 
 to  comply  with  the  provisions  contained  within  future  agreements  between  and  among  the  three  countries.  Until  such  time  as  agreements  between  the  United  States,  Mexico  and  Canada  become  effective,  we 
 propose  to  apply  the  same  technical  restrictions  at  the  border  that  we  adopt  for  operation  between  the  geographic  service  areas.  146  Generally,  operations  must  not  cause  harmful  interference  across  the  border. 
 We  note  that  further  modification  might  be  necessary  in  order  to  comply  with  future  agreements  with  Canada  and  Mexico  regarding  the  use  of  this  band.  We  seek  comments  on  these  issues.  Additionally,  we 
 request  comment  on  alternative  interim  requirements  that  would  eliminate  harmful  interference  to  countries  along  our  borders. 


 d)  License  Term  and  Renewal  Expectancy 
 83.  We  seek  comment  on  the  appropriate  license  term  for  licensees  in  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands.  We  note  that  licenses  authorized  under  Part  101  of  our  Rules  are  licensed  for  a 


 period  of  ten  years.  147  In  addition,  if  we  adopt  a  licensing  scheme  under  which  a  licensee  obtains  the  exclusive  right  to  use  spectrum,  we  seek  comment  on  creating  a  renewal  expectancy  similar  to  that 
 afforded  to  licensees  in  the  Local  Multipoint  Distribution  Service  (LMDS).  For  LMDS  licensees,  we  concluded  that  a  renewal  applicant  shall  receive  a  preference  or  renewal  expectancy  if  the  applicant  has 


 141  See  Amendments  to  Parts  1,  2,  27  and  90  of  the  Commissions  Rules  to  License  Services  in  the  216-  220  MHz, 
 1390-  1395  MHz,  1427-  1429  MHz,  1429-  1432  MHz,  1432-  1435  MHz,  1670-  1675  MHz  and  2385-  2390  MHz  Government  Transfer  Bands,  WT  Docket  02-  8,  Report  and  Order,    39  (rel.  May  24,  2002). 


 142  For  example,  under  Part  27  of  our  Rules,  a  spectrum  user  must  specify,  in  detail,  the  operating  parameters  of 
 the  proposed  system  including  power,  maximum  antenna  heights,  frequency(  s)  of  operation,  base  station  locations  and  area  of  operations.  See  47  C.  F.  R.  Part  27,  Subpart  G. 


 143  See  47  C.  F.  R.    27.607. 
 144  See  700  MHz  Guard  Band  Second  Report  and  Order,  15  FCC  Rcd  at  5333    79. 
 145  See  47  C.  F.  R.    2.301. 
 146  See  47  C.  F.  R.    101.105. 
 147  See  47  C.  F.  R.    101.67. 
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 greater  rights  than  it  was  awarded  under  the  terms  of  its  license  grant.  We  seek  comment  on  this  approach. 
 e)  Construction  and  Coverage  Requirements 
 86.  We  seek  comment  on  what,  if  any,  construction  and/  or  minimum  coverage  requirements  should  apply  to  licensees  in  these  bands.  If  we  allow  licensees  to  acquire  exclusive  use  of  spectrum  in  an 


 area,  we  seek  comment  on  whether  we  should  require  licensees  to  satisfy  a  substantial  service  requirement  or  a  minimum  coverage  requirement  in  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  as 
 a  condition  of  license  renewal.  We  have  imposed  such  requirements  on  licensees  in  other  services  to  ensure  effective  and  efficient  spectrum  use  and  prompt  implementation  of  service.  155  We  seek  comment 
 on  whether  we  should  require  licensees  to  provide  substantial  service  to  the  geographic  license  area  within  the  license  term  that  we  adopt  for  this  service.  We  have  defined  substantial  service  as  service 
 which  is  sound,  favorable,  and  substantially  above  a  level  of  mediocre  service  which  just  might  minimally  warrant  renewal.  156  Further,  we  seek  comment  on  whether  there  should  be  an  alternative,  safe  harbor 
 standard.  We  ask  commenters  supporting  a  safe  harbor  standard  to  specify  the  type  of  safe  harbor  standard  we  should  provide.  We  also  seek  comment  on  whether  such  a  safe  harbor  standard  should  apply 
 to  band  managers  as  well  as  traditional  licensees  or  whether  we  need  to  apply  a  different  safe  harbor  to  band  managers.  In  addition,  we  seek  comment  on  whether  a  partitionee  or  disaggregatee  should  be  bound 
 by  the  standard,  either  substantial  service  or  a  construction  requirement,  for  its  partitioned  or  disaggregated  license.  Finally,  we  propose  that  licensees  who  fail  to  comply  with  the  adopted  standard 
 will  not  have  their  licenses  renewed.  157  These  standards  promote  efficient  spectrum  usage  and  maximize  opportunities  for  new  services  and  technologies  in  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands. 
 Moreover,  we  propose  that  any  exclusive  licensee  who  loses  its  license  for  failure  to  comply  with  the  adopted  standard,  will  be  prohibited  from  holding  that  same  license  for  the  same  territory  in  the  future.  158 
 We  seek  comment  on  these  proposals. 
 87.  If  we  decide  to  license  the  spectrum  in  these  bands  on  a  site-  by-  site  basis,  we  seek  comment  on  whether  to  apply  the  construction  requirements  set  forth  in  Section  101.63  of  our  Rules.  Section 


 101.63  provides,  inter  alia,  that  licensees  authorized  under  Part  101  of  our  Rules  must  be  in  operation  within  18  months  from  the  initial  date  of  grant.  159  Section  101.63  further  provides  that  failure  to  timely 
 begin  operation  of  the  station  will  result  in  the  automatic  cancellation  of  that  authorization.  160  We  seek  comment  on  this  construction  requirement,  as  well  as  alternative  construction  requirements,  for  site-  based 
 licenses  in  these  bands. 


 155  Cf.  47  C.  F.  R.    22.940(  a)(  2)(  i)-(  iv). 
 156  See  e.  g.,  47  C.  F.  R.    22.940(  a)(  1)(  i). 
 157  See,  e.  g.  47  C.  F.  R.    101.17(  b),  101.1011(  a). 
 158  See,  e.  g.  47  C.  F.  R.    101.1011(  a). 
 159  See  47  C.  F.  R.    101.63(  a). 
 160  See  47  C.  F.  R.    101.63(  b). 
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 f)  Individual  Station  Licenses 
 88.  In  the  event  we  adopt  a  geographic  area  licensing  scheme  for  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands,  we  seek  comment  on  circumstances  under  which  such  licensees  would  be  required  to 


 obtain  individual  station  licenses  within  its  geographic  area.  Under  geographic  area  licensing,  the  licensee  has  exclusive  use  of  its  assigned  spectrum  to  operate  within  its  original  geographic  service  area. 
 Ordinarily,  licensees  may  operate  without  filing  an  application  for  each  individual  station  within  its  service  area.  Nonetheless,  we  believe  there  are  situations  in  which  we  will  require  licensees  to  obtain  an 
 individual  station  license  for  a  particular  station  within  its  geographic  service  area.  We  believe  those  instances  include:  (1)  applications  requiring  submission  of  an  Environmental  Assessment,  161  (2) 
 international  coordination,  162  (3)  operation  in  quiet  zones,  163  or  (4)  coordination  through  the  Commission  with  IRAC.  164  We  believe  the  applicant,  in  the  first  instance,  is  in  the  best  position  to  determine  the 
 nature  of  its  operations  and  whether  those  operations  impact  environmental  rules,  quiet  zone  rules,  etc.  Accordingly,  we  tentatively  conclude  that  the  licensee  must  determine  whether  its  proposed  operations 
 and  location  require  an  individual  station  license  for  which  it  must  file  an  individual  application.  We  further  propose  to  apply  this  requirement  to  both  new  stations  and  station  modifications.  We  request 
 comment  on  this  tentative  conclusion  and  proposal. 
 g)  Application  of  Title  II  Requirements  to  Common  Carriers 
 89.  We  also  seek  comment  on  whether  we  should  forbear  from  applying  certain  obligations  on  common  carrier  licensees  in  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  pursuant  to  Section  10  of 


 the  Act.  165  In  the  case  of  CMRS  providers,  the  Commission  concluded  that  it  was  appropriate  to  forbear  from  Sections  203,  204,  205,  211,  212,  and  most  applications  of  Section  214.  166  The  Commission, 
 however,  declined  to  forbear  from  enforcing  other  provisions,  including  Sections  201  and  202.  167  The 


 161  See  47  C.  F.  R.    1.1307. 
 162  See,  e.  g.  47  C.  F.  R.    1.928  (regarding  frequency  coordination  arrangements  between  the  U.  S.  and  Canada). 
 163  47  C.  F.  R.    1.924. 
 164  This  coordination  may  be  necessary  depending  on  the  final  rules  adopted  in  this  proceeding,  near  a  limited 
 number  of  Federal  Government  installations  that  require  protection  from  FCC  licensed  stations  in  these  bands. 
 165  See  47  U.  S.  C.    160(  a)(  1-  3).  This  section  provides  the  Commission  with  authority  to  forbear  from  application 
 of  virtually  any  regulation  or  any  provision  of  the  Act  to  a  telecommunications  carrier  or  telecommunications  service,  or  a  class  of  carriers  or  services.  But,  the  Commission  may  not  forbear  from  applying  the  requirements  of 


 47  U.  S.  C.    251(  c)  and  271  until  the  Commission  determines  that  those  requirements  have  been  fully  implemented.  See  47  U.  S.  C.    160(  d). 


 166  See  Implementation  of  Sections  3(  n)  and  332  of  the  Communications  Act,  Regulatory  Treatment  of  Mobile 
 Services,  Second  Report  and  Order,  9  FCC  Rcd  1411,  1463-  93,  1478-  80  (1994)  (CMRS  Second  Report  and  Order). 


 167  See  CMRS  Second  Report  and  Order,  9  FCC  Rcd  at  1478;  Personal  Communications  Industry  Association's 
 Broadband  Personal  Communications  Services  Alliance's  Petition  for  Forbearance  for  Broadband  Personal  Communications  Services,  Forbearance  from  Applying  Provisions  of  the  Communications  Act  to  Wireless 


 Telecommunications  Carriers,  WT  Docket  No.  98-  100,  Memorandum  Opinion  and  Order  and  Notice  of  Proposed  Rulemaking,  13  FCC  Rcd  16857,  16914  (1998)  (declining  to  forbear  from  applying  Section  20.12(  b)  of 
 (continued.) 
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 Federal  Communications  Commission  FCC  02-  180 
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 Commission  also  has  exercised  its  forbearance  authority  in  permitting  competitive  access  providers  and  competitive  local  exchange  carriers  to  file  permissive  tariffs.  168  We  seek  comment  on  whether  it  is 
 appropriate  to  forbear  from  enforcing  any  provisions  of  the  Act  or  the  Commission's  Rules  in  these  bands. 
 90.  Before  forbearing  from  applying  any  section  of  Title  II,  Section  10(  a)  requires  the  Commission  to  find  each  of  the  following  conditions: 


   Enforcement  of  such  regulation  or  provision  is  not  necessary  in  order  to  ensure  that  the  charges,  practices,  classifications,  or  regulations  by,  for  or  in  connection  with  that 
 telecommunications  carrier  or  telecommunication  service  are  just  and  reasonable  and  are  not  unjustly  or  unreasonably  discriminatory;  169 


   Enforcement  of  such  regulation  or  provision  is  not  necessary  for  the  protection  of  consumers;  170  and 
   Forbearance  from  applying  such  regulation  or  provision  is  consistent  with  the  public  interest.  171 
 Accordingly,  any  proposal  to  forbear  from  enforcing  any  provisions  of  the  Act  or  our  Rules  must  address  the  conditions  annunciated  in  Section  10(  a)  of  the  act. 
 h)  Partitioning  and  Disaggregation 
 91.  We  propose  to  allow  licensees  to  partition  their  service  areas  and  to  disaggregate  their  spectrum.  We  seek  comment  on  whether  geographic  partitioning  and  spectrum  disaggregation  could 


 result  in  efficient  spectrum  use.  We  note  that  we  allow  partitioning  and  disaggregation  in  other  microwave  services,  such  as  the  39  GHz  Service  172  and  LMDS.  173  We  also  seek  comment  on  whether  our 
 proposed  approach  will  provide  a  means  to  overcome  entry  barriers  through  the  creation  of  smaller  licenses  that  require  less  capital,  thereby  facilitating  greater  participation  by  rural  telephone  companies 
 and  smaller  entities,  many  of  which  are  owned  by  minorities  and  women.  174  We  are  mindful  of  the 
 (Continued  from  previous  page)  the  Commission's  Rules  (resale  rule)  and  Sections  201  and  202  of  the  Communications  Act).  See  also  RegioNet 


 Wireless  License,  LLC,  Order,  15  FCC  Rcd  16,119  (2000). 
 168  See  Hyperion  Telecommunications,  Inc.  Petition  Requesting  Forbearance,  Time  Warner  Communications 
 Petition  for  Forbearance,  Complete  Detariffing  for  Competitive  Access  Providers  and  Competitive  Exchange  Carriers,  Memorandum  Opinion  and  Order  and  Notice  of  Proposed  Rulemaking,  12  FCC  Rcd  8596,  8608-  10 


 (1997). 
 169  See  47  U.  S.  C.    160(  a)(  1). 


 170  See  47  U.  S.  C.    160(  a)(  2). 
 171  See  47  U.  S.  C.    160(  a)(  3). 
 172  See  47  C.  F.  R.    101.56. 
 173  See  47  C.  F.  R.    101.1111. 
 174  See  Geographic  Partitioning  and  Spectrum  Disaggregation  by  Commercial  Mobile  Radio  Services  Licensees, 
 Report  and  Order,  11  FCC  Rcd  21831,  21843-  44    13-  17. 
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 concerns  of  the  rural  telecommunications  community  concerning  the  effectiveness  of  partitioning  and  disaggregation  in  facilitating  service  to  rural  areas.  We  intend  to  develop  a  more  current  and  substantial 
 record  on  the  Commissions  mandate  to  ensure  that  rural  telecommunication  companies  are  given  the  opportunity  to  participate  in  the  provision  of  spectrum-  based  services  pursuant  to  Section  309(  j)(  4)(  d)  of 
 the  Act.  175  Accordingly,  we  plan  to  initiate  a  Notice  of  Inquiry  regarding  a  number  of  topics  related  to  the  provision  of  spectrum-  based  service  to  rural  areas.  176 


 92.  We  seek  comment  on  the  advantages  and  disadvantages  of  allowing  partitioning  and  disaggregation  in  these  bands.  In  addition,  we  seek  comment  on  our  proposal  to  apply  the  unjust 
 enrichment  provisions  of  Section  1.2111  of  our  Rules  in  the  event  a  licensee  that  received  a  bidding  credit  chooses  to  partition  its  license  or  disaggregate  its  spectrum  to  an  entity  that  is  not  eligible  for  such  a 
 bidding  credit. 
 3.  Technical  and  Operational  Rules 
 a)  Regulation  Under  Part  101 
 93.  Loea  and  the  commenters  propose  that  we  regulate  these  bands  under  Part  101  of  our  Rules.  177  We  tentatively  conclude  that  regulation  under  Part  101  of  our  Rules  is  appropriate.  As  noted  by  the 


 commenters,  there  are  similarities  between  the  services  contemplated  in  these  bands  and  existing  fixed  microwave  services  such  as  the  39  GHz  service,  which  is  regulated  under  Part  101  of  our  Rules.  We  seek 
 comment  on  whether  we  should  regulate  primary  fixed  uses  in  this  band  pursuant  to  Part  101  of  our  Rules,  178  as  we  have  traditionally  done  for  fixed,  point-  to-  point,  and  point-  to-  multipoint  microwave 
 operations.  We  ask  commenters  to  discuss  the  advantages  and  disadvantages  of  regulating  this  service  pursuant  to  Part  101.  We  also  solicit  suggestions  on  other  methods  to  regulate  the  band,  along  with  the 
 advantages  and  disadvantages  thereof.  We  also  seek  comment  on  whether  certain  technical  rules  would  be  unnecessary  in  the  event  we  allow  band  managers  to  be  licensees. 


 94.  We  note  that  none  of  the  commenters  discussed  mobile  operations  in  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands.  However,  as  stated  above,  this  spectrum  is  allocated  for  fixed  and  mobile 
 services.  In  accordance  with  our  goal  of  providing  maximum  practicable  flexibility,  we  seek  comment  on  whether  it  would  be  appropriate  to  establish  rules  to  regulate  mobile  operation  in  the  spectrum.  We  ask 
 commenters  to  discuss  the  advantages  and  disadvantages  of  establishing  rules  to  regulate  mobile  service  in  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands.  We  also  ask  commenters  that  support  service  rules 
 for  mobile  service  to  propose  specific  technical  and  operational  rules  for  mobile  service. 


 175  47  U.  S.  C.    309(  j)(  4)(  C). 
 176  See  Amendment  to  Parts  1,  2,  27  and  90  of  the  Commissions  rules  to  License  Services  in  the  216-  200  MHz, 
 1390-  1395  MHz,  1427-  1429  MHz,  1429-  1432  MHz,  1432-  1435  MHz  1670-  1675  MHz  and  2385-  2390  MHz  Government  Transfer  Bands,  WT  Docket  No.  02-  8,  Report  and  Order,  FCC  02-  152  (rel.  May  24,  2002)  at    20. 


 177  Loea  Petition  at  9-  10,  DMC  Comments  at  2,  Boeing  Comments  at  6  n.  8,  Letter  from  Robert  Volker,  President 
 of  Pacific  LightNet  to  Magalie  Roman  Salas,  Secretary,  Federal  Communications  Commission  at  1-  2  (filed  Nov.  7,  2001)  (Pacific  LightNet  Comments). 


 178  Part  101  of  the  Commissions  Rules  governs  the  Fixed  Microwave  Services. 
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 b)  Technical  Rules 
 95.  As  stated  above,  we  propose  to  apply  our  Part  101  rules  to  govern  the  use  of  new  services  in  the  71-  76,  81-  86  and  92-  95  GHz  bands,  except  as  they  may  be  modified  as  a  result  of  this  proceeding. 


 Because  we  do  not  exactly  know  the  type  of  services  that  will  use  the  71-  76,  81-  86  and  92-  95  GHz  bands,  we  believe  it  is  appropriate  to  solicit  comments  on  possible  technical  requirements  for  operations  on  these 
 bands.  While  it  is  our  tentative  view  that  most  technical  issues  are  addressed  by  the  current  rules,  there  are  several  rules  discussed  below  that  should  be  considered.  We  solicit  comments,  however,  on  all 
 technical  parameters  that  should  apply  to  operations  at  71-  76,  81-  86  and  92-  95  GHz. 
 96.  Loeas  proposed  technical  rules  are  supported  by  FWCC  and  Pacific  LightNet.  179  Generally,  DMC  Stratex  Networks  also  supported  Loeas  proposed  technical  rules  but  believes  further 


 study  is  needed  before  any  final  values  are  set  in  the  rules.  180  Boeing,  however,  contends  that  the  parameters  Loea  proposed  only  reflect  Loeas  proposed  system  and  were  likely  not  designed  in  order  to 
 maximize  compatibility  with  other  systems  and  services.  181  Boeing  states  that  the  Commission  should  adopt  technical  rules  that  are  independent  and  neutral,  thus  permitting  the  licensing  of  competing  and 
 diverse  systems  and  services.  182 
 97.  Channelization  Plan.  As  provided  above,  we  propose  segmentation  of  the  92-  95  GHz  band  in  order  to  provide  adequate  protection  to  users  in  the  adjacent  spectrum  and  to  the  co-  primary 


 Federal  Government  and  non-  Federal  Government  users  in  the  band.  183  However,  at  this  time  we  do  not  propose  segmentation  of  the  71-  76  GHz  and  81-  86  GHz  bands.  The  commenters  argue  that  we  should  not 
 impose  a  channelization  plan  on  these  bands  because  licensees  will  need  access  to  the  entire  spectrum  in  order  to  obtain  the  very  high  throughput  they  will  need  to  provide  fiber-  like  services.  184  In  particular, 
 Boeing  states  that  the  entire  available  bandwidth  must  be  made  available  if  true  equivalence  and  compatibility  with  fiber  is  to  be  achieved.  185  We  seek  comment  on  whether  a  channelization  plan  would 
 impede  the  flexibility  of  licensees  to  provide  innovative  services  in  these  bands.  We  also  seek  comment  on  assertions  that  a  channelization  plan  is  unnecessary  because  of  the  ability  to  have  high  reuse  of  these 
 bands  in  a  limited  area.  186  We  seek  comment  on  whether  a  channelization  plan  would  enhance  competition  by  allowing  multiple  licensees  to  effectively  operate  in  the  same  area. 


 179  See  FWCC  Comments  at  2;  LightNet  Comments  at  2. 
 180  See  DMC  Comments  at  4. 
 181  See  Boeing  Comments  at  10. 
 182  Id. 
 183  See  paras.  47-  51. 
 184  See  Loea  Petition  at  11;  Boeing  Comments  at  4;  Endwave  Comments  at  3;  WCA  Comments  at  3.  We  note  that 
 only  Boeing  included  the  92-  95  GHz  band  in  its  comments  regarding  a  channelization  plan.  Boeing  Comments  at  4. 


 185  Boeing  Comments  at  5.  We  note  that  Boeing  included  the  92-  95  GHz  band  in  its  comments  regarding 
 channelization  plans.  Id. 
 186  Id. 
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 98.  Interference  Protection  Criteria.  In  the  24  GHz  band,  where  we  licensed  spectrum  in  geographic  areas,  187  we  concluded  that  licensees  must  be  assured  reasonable  and  effective  use  of  their 
 own  areas,  while  equally  protecting  the  interests  of  other  licensees.  188  Accordingly,  we  created  an  interference  protection  criteria  to  ensure  cooperation  among  licensees  to  minimize  and  resolve  potential 
 interference  problems  while  obtaining  the  most  efficient  and  effective  use  of  the  spectrum  and  authorized  facilities.  189  We  prohibited  all  harmful  interference  to  other  users  of  co-  channel  and  adjacent  channel  use 
 in  the  same  or  adjacent  geographical  area.  190  In  addition,  we  require  licensees  in  the  24  GHz  band  to  coordinate  their  facilities  whenever  the  facilities  have  optical  line-  of-  sight  into  other  licensees  areas  or 
 are  within  the  same  geographic  area.  191  However,  we  provided  a  flexible  approach  in  which  the  relevant  licensees  were  allowed  to  mutually  resolve  their  coordination  problems  with  as  little  input  from  the 
 Commission  as  possible.  192  To  the  extent  we  use  geographic  area  licensing,  we  propose  to  create  a  similar  flexible  approach  for  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands.  We  seek  comment  on  the 
 proposed  interference  protection  criteria.  To  the  extent  we  use  site-  by-  site  licensing  in  these  bands,  we  also  seek  comment  on  the  applicable  interference  protection  criteria  that  should  be  used.  In  particular,  we 
 seek  comment  on  whether  any  of  the  criteria  in  Section  101.105  of  our  Rules  193  could  be  applied  to  these  bands. 


 99.  Frequency  Tolerance.  Loea  proposes  a  frequency  tolerance  of  0.03  percent  for  all  fixed  and  mobile  stations.  194  Although  Loea  provides  no  basis  for  this  proposal,  we  note  that  this  is  the  same 
 frequency  tolerance  we  applied  in  the  31.3-  40.0  GHz  band.  We  believe  that  this  frequency  tolerance  should  provide  the  flexibility  necessary  for  manufacturers  to  develop  equipment  in  the  71-  76  GHz,  81-  86 
 GHz  and  92-  95  GHz  bands.  195  We  seek  comment  on  the  frequency  tolerance  proposed  by  Loea  and  other  possible  frequency  tolerance  criteria.  For  example,  we  could  specify  tight  transmitter  filter  requirements 
 to  minimize  transmissions  of  undesired  harmonics,  instead  of  specifying  tight  transmitter  frequency  tolerance. 


 100.  Restrictions  on  Total  Radiated  Power  and  Antenna  Directionality.  Loea  proposes  to  adopt  a  maximum  EIRP  of  +55  dBW.  196  Loea  notes  that  this  proposal  is  consistent  with  the  EIRP 


 187  See  e.  g.  Amendments  to  Parts  1,  2,  87  and  101  of  the  Commissions  Rules  to  License  Fixed  Services  at  24 
 GHz,  Report  and  Order,  15  FCC  Rcd  16935,  16965    70  (2000). 
 188  Id.  at  16963    65-  67. 


 189  Id. 
 190  See  47  C.  F.  R.    101.509(  b). 
 191  See  47  C.  F.  R.    101.509(  c). 
 192  Id.  at  16693    66. 
 193  47  C.  F.  R.    101.105. 
 194  See  Loea  Petition,  Appendix  C  at  4. 
 195  See  47  C.  F.  R.    101.107.  We  note  that  39  GHz  licensees  are  exempt  from  the  frequency  tolerance 
 requirements  set  forth  in  Section  101.107  of  the  Commissions  Rules.  Id. 
 196  See  Loea  Petition  at  14. 
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 limitation  in  the  39  GHz  band  and  several  other  bands.  197  While  this  proposal  is  consistent  with  the  EIRP  limits  set  for  39  GHz  licensees,  we  ask  commenters,  to  the  extent  we  adopt  geographic  area  licensing,  if 
 there  is  a  need  for  EIRP  limitations  in  a  band  occupied  only  by  geographic  area  licensees.  198  If  there  is  such  a  need,  we  seek  comment  on  whether  the  proposed  EIRP  values  are  appropriate  for  the  intended 
 services  in  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands.  We  also  ask  whether  the  proposed  EIRP  values  provide  adequate  power  for  stations  to  transmit  over  typical  distances  for  various  types  of 
 applications,  or  whether  the  proposed  maximum  has  the  potential  to  produce  harmful  interference  due,  for  instance,  to  scattering,  when  a  large  number  of  microwave  paths  criss-  cross  each  other. 


 101.  Loea  also  requests  that  the  Commission  specify  a  minimum  50  dBi  gain  and,  consistently,  a  0.6  degree  half  power  beamwidth  for  the  antennas  used  in  the  71-  76  and  81-  86  GHz 
 bands.  199  Loea  claims  that  instituting  such  a  requirement  will  result  in  a  gain  that  is  12  dB  higher  than  the  other  Part  101  regulated  bands,  thus  regulating  the  sharing  of  spectrum  by  spatially  narrowing  the  beams 
 used  to  provide  service.  200  We  seek  comment  on  this  proposal.  Endwave  argues  that  Loea  has  requested  antenna  specifications  that  are  difficult  to  meet  using  available  fabrication  processes.  201  Endwave 
 contends  that  a  minor  relaxation  of  certain  parameters  proposed  by  Loea  will  reduce  the  antenna  cost  sharply,  without  degrading  the  characteristics  that  support  the  licensing  approaches.  202  Specifically, 
 Endwave  proposes  that  manufacturers  should  have  the  option  of  reducing  antenna  gain,  so  long  as  they  cut  maximum  EIRP  by  twice  the  number  of  dB  by  which  they  reduce  antenna  gain.  For  example,  it 
 would  be  permissible  to  reduce  antenna  gain  by  3  dB  and  EIRP  by  6  dB,  or  antenna  gain  by  6  dB  and  EIRP  by  12  dB.  203  WCA  supports  Endwaves  proposal  for  a  minor  relaxation  of  Loeas  proposed 
 parameters.  204  We  seek  comment  on  the  radiated  power  and  directionality  proposed  by  Loea  and  ask  whether  these  parameters  should  also  apply  to  the  92-  95  GHz  bands.  We  seek  comment  on  whether  there 
 is  a  need  for  antenna  gain  regulation  if  we  adopt  geographic  area  licensing.  To  the  extent  commenters  believe  a  minimum  antenna  gain  requirement  is  necessary,  we  seek  comment  on  Endwaves  proposal  to 
 relax  the  technical  parameters  proposed  by  Loea. 
 102.  RF  Safety.  We  propose  that  licensees  and  manufacturers  be  subject  to  the  RF  radiation  exposure  requirements  specified  in  Sections  1.1307(  b),  2.1091  and  2.1093  of  our  Rules,  205  which  list  the 


 services  and  devices  for  which  an  environmental  evaluation  must  be  performed.  We  seek  comment  on 


 197  Id. 
 198  We  note  that  an  EIRP  limitation  was  necessary  in  the  39  GHz  service  because  of  incumbents  and  overlays  in 
 the  spectrum.  See  39  GHz  R&  O,  12  FCC  Rcd  at  18632-  18634    66-  69. 
 199  Id. 


 200  Id. 
 201  See  Endwave  Comments  at  5. 
 202  Id. 
 203  Id. 
 204  See  WCIA  Comments  at  4. 
 205  47  C.  F.  R.    1.1307(  b),  2.1091,  2.1093. 
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 requiring  routine  environmental  evaluations  for  RF  exposure  206  in  the  case  of  fixed  operations,  including  base  stations  in  cases  where  there  is  a  possible  safety  risk  if  the  installation  of  the  transmitter  antenna  is 
 not  properly  designed.  We  propose  to  do  this  by  amending  Table  1  of  Section  1.1307  of  our  Rules  207  to  require  an  evaluation  if  the  ration  is  4P/  A  is  greater  than  1  mW/  cm,  where  A  is  the  area  of  the  antenna  in 
 cm  and  P  is  the  power  of  the  transmitter  in  mW.  While  other  fixed  transmitter  evaluation  requirements  are  based  on  an  effective  isotropic  radiated  power  threshold,  we  believe  that  this  ratio  is  a  better  indicator 
 of  health  risk  and  will  minimize  the  number  of  evaluations  needed  and  hence  decrease  administrative  burdens. 


 4.  Licensing  Rules  and  Procedures 
 a)  Incorporation  by  Reference  of  Part  1  of  the  Wireless  Telecommunications  Services  Application  and  Procedural  Rules 


 103.  We  propose  to  license  portions  of  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  in  conformity  with  the  general  application  and  procedure  rules  for  wireless  telecommunications  set  forth  in 
 Part  1,  Subpart  F,  of  our  Rules.  208  We  seek  comment  on  whether  any  of  our  Part  1  Rules  would  be  inappropriate  for  the  licensed  portion  of  these  bands. 


 b)  Competitive  Bidding 
 (1)  Assignment  of  Licenses 
 104.  As  discussed  above,  if  we  adopt  a  licensing  mechanism  that  could  result  in  the  filing  of  mutually  exclusive  applications,  we  will  resolve  any  mutually  exclusive  initial  applications  for  licenses 


 for  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  through  the  use  of  competitive  bidding.  Loea  and  its  supporters  are  opposed  to  the  concept  of  assigning  licenses  in  the  71-  76  GHz,  81-  86  GHz  and  92-  95 
 GHz  bands  via  competitive  bidding.  209  Loeas  provides  three  main  reasons  for  its  opposition.  First,  Loea  argues  that  mutual  exclusivity  will  not  exist  in  these  bands  and  therefore  auctions  are  neither  appropriate 
 nor  necessary.  210  Loea  claims  there  will  be  no  mutual  exclusivity  because  of  the  point-  to-  point  nature  of  these  paths  and  the  nature  of  the  propagation  of  the  Upper  Millimeter  Wave  bands.  211  Specifically,  Loea 
 contends  that  in  the  Upper  Millimeter  Wave  bands,  harmful  interference  can  be  eliminated  by  reorientation  of  the  antenna  by  tenths  of  degrees  or  relocation  of  the  antenna  by  tenths  of  meters.  212 


 206  See  Evaluating  Compliance  with  FCC  Guidelines  for  Human  Exposure  to  Radiofrequency  Electromagnetic 
 Fields,  OET  Bulletin  No.  65  (August  1997). 
 207  47  C.  F.  R.    1.1307. 


 208  See  47  C.  F.  R.    1.901-  1.981. 
 209  See  Loea  Petition  at  17;  see  also  Boeing  Comments  at  6-  8;  Endwave  Comments  at  3;  FWCC  Comments  at  2; 
 PCIA  Comments  at  2;  WCIA  Comments  at  3. 
 210  Loea  Petition  at  17. 


 211  Id. 
 212  Id. 
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 Therefore,  Loea  concludes  that  even  if  two  entities  want  to  provide  service  over  the  same  path,  harmful  interference  can  be  avoided  by  judiciously  routing  the  second  path  around  the  first.  213 
 105.  Second,  Loea  argues  that  assignment  of  licenses  via  competitive  bidding  is  not  always  beneficial  to  the  consumer.  214  In  its  paper,  HAI  concludes  that  an  auction  of  the  spectrum  will,  in  effect, 
 be  an  inefficient  tax.  215  HAI  claims  that  such  a  tax  increases  the  prices  consumers  pay  and  discourages  investment  in  telecommunications  and  may  conflict  with  other  public  policy  goals,  such  as  increasing 
 competition.  216  HAI  also  concludes  that  auctions  have  the  potential  to  raise  monopoly  problems.  Based  on  the  HAI  Paper,  Loea  argues  that  auctions  reduce  the  ability  of  new  service  providers  to  enter  the 
 market,  impairs  the  Commission  ability  to  reach  spectrum  goals  and  makes  it  less  likely  that  consumers  will  be  able  to  enjoy  a  variety  of  innovative  services  at  reasonable  cost.  217  Boeing  supports  this 
 conclusion  and  further  argues  that  competitive  bidding  would  only  impose  additional  and  unnecessary  costs,  both  in  terms  of  real  dollars  and  delay,  in  the  deployment  of  new  services.  218 


 106.  Finally,  Loea  argues  that  Section  309(  j)(  6)  of  the  Act  mandates  that  the  Commission  employ  coordination  or  other  services,  rather  than  auctions,  to  avoid  the  potential  for  mutual  exclusivity.  219  It 
 further  contends  that  mutual  exclusivity  can  be  avoided  by  using  a  site-  by-  site  licensing  scheme.  220  Accordingly,  Loea  concludes  that  there  is  no  reason  to  assign  the  licenses  by  competitive  bidding. 


 107.  We  nevertheless  seek  comment  on  competitive  bidding  rules  for  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  in  case  we  adopt  a  licensing  mechanism  that  could  result  in  the  filing  of  mutually 
 exclusive  applications.  We  note  that  Congress  has  mandated  that  we  auction  spectrum  in  order  to  resolve  mutual  exclusivity.  The  Balanced  Budget  Act  of  1997  (BBA-  97)  revised  the  Commissions  auction 
 authority.  221  Specifically,  it  amended  Section  309(  j)  of  the  Act  to  require  the  Commission  to  grant  licenses  through  the  use  of  competitive  bidding  when  mutually  exclusive  applications  for  initial  licenses 
 are  filed,  unless  certain  specific  statutory  exemptions  apply.  222  The  BBA-  97  also  incorporated  in  Section  309(  j)(  1)  a  reference  to  the  Commissions  obligation  to  avoid  mutual  exclusivity  under  Section 
 309(  j)(  6)(  E)  to  use  engineering  solutions,  negotiation,  threshold  qualifications,  service  regulations,  or 
 213  Id.  at  18. 


 214  Id. 
 215  See  Loea  Petition,  Appendix  B,  HAI  Paper  at  9. 
 216  Id. 
 217  See  Loea  Petition  at  18. 
 218  See  Boeing  Comments  at  7. 
 219  See  Loea  Petition  at  18;  see  also  Boeing  Comments  at  9. 
 220  Id. 
 221  See  47  U.  S.  C.    309(  j)(  1),  (2)  (as  amended  by  Balanced  Budget  Act,    3002). 
 222  Id.  47  U.  S.  C.    309(  j)(  2)  exempts  from  auctions  licenses  and  construction  permits  for  public  safety  radio 
 services,  digital  television  service  licenses  and  permits  given  to  existing  terrestrial  broadcast  licensees  to  replace  their  analog  television  service  licenses,  and  licenses  and  construction  permits  for  noncommercial  educational 


 broadcast  stations  and  public  broadcast  stations. 
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 other  means  to  avoid  mutual  exclusivity  where  it  is  in  the  public  interest  to  do  so.  223  BBA-  97  did  not  amend  Section  309(  j)(  3)  s  directive  to  consider  certain  public  interest  objectives  in  identifying  classes  of 
 licenses  and  permits  to  be  issued  by  competitive  bidding.  224 
 108.  In  the  BBA  Report  and  Order,  the  Commission  established  a  framework  for  exercise  of  the  Commissions  auction  authority,  as  expanded  by  the  Balanced  Budget  Act.  225  The  BBA  Report  and 


 Order  affirmed  that,  in  identifying  which  classes  of  licenses  should  be  subject  to  competitive  bidding,  the  Commission  must  pursue  the  public  interest  objectives  set  forth  in  Section  309(  j)(  3).  226  The  BBA  Report 
 and  Order  also  affirmed  that,  as  part  of  this  public  interest  analysis,  the  Commission  must  continue  to  consider  alternative  procedures  that  avoid  or  reduce  the  likelihood  of  mutual  exclusivity.  227  The 
 Commission  has  concluded,  however,  that  its  obligation  to  avoid  mutual  exclusivity  does  not  preclude  it  from  adopting  licensing  processes  in  the  non-  exempt  services  that  result  in  the  filing  of  mutually 
 exclusive  applications  where  it  determines  that  such  an  approach  would  serve  the  public  interest.  228 
 109.  In  determining  whether  to  assign  licenses  through  competitive  bidding  in  this  proceeding,  we  intend  to  follow  the  approach  set  forth  in  the  Balanced  Budget  Act  proceeding  regarding  the  exercise  of 


 our  auction  authority.  We  note,  too,  that  subsequent  to  the  adoption  of  Balanced  Budget  Act,  the  U.  S.  Court  of  Appeals  for  the  D.  C.  Circuit  concluded  that  the  Section  309(  j)(  6)(  E)  obligation  does  not 
 foreclose  new  licensing  schemes  that  are  likely  to  result  in  mutual  exclusivity.  229  The  court  stated  that  if  the  Commission  finds  such  schemes  to  be  in  the  public  interest,  it  may  implement  them  without  regard  to 
 Section  309(  j)(  6)(  E)  which  imposes  an  obligation  only  to  minimize  mutual  exclusivity  in  the  public  interest  and  within  the  framework  of  existing  policies.    230  . 


 110.  As  stated  earlier,  we  seek  comment  on  whether  to  adopt  a  geographic  area  licensing  scheme  for  the  proposed  licensed  portion  of  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands.  We  also  seek 
 comment  on  appropriate  licensing  approaches  for  these  bands  and  whether  such  schemes  would  promote  the  objectives  of  Section  309(  j)(  3),  including  promoting  economic  opportunities  and  competition  by 
 disseminating  licenses  among  a  wide  variety  of  applicants.  231  If  we  find  that  it  would  serve  the  public  interest  to  implement  a  geographic  area  licensing  scheme,  under  which  mutual  exclusivity  is  possible, 
 then  we  must  resolve  mutually  exclusive  applications  for  initial  licenses  in  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  through  competitive  bidding. 


 223  See  47  U.  S.  C.    309(  j)(  1),  309(  j)(  6)(  E). 
 224  See  47  U.  S.  C.    309(  j)(  3). 
 225  See  BBA  Report  and  Order,  15  FCC  Rcd  22709. 
 226  Id.  at  22718-  22723. 
 227  Id. 
 228  Id. 
 229  See  Benkelman  Telephone  Co.  et  al  v.  FCC,  220  F.  3d  601,606  (D.  C.  Cir  2000),  petition  for  rehearing  on  other 
 grounds  pending. 
 230  Id.  (citations  omitted)  (citing  DIRECTV,  Inc.  v.  FCC,  110  F.  3d  816,  828  (D.  C.  Cir.  1997)). 


 231  See  supra  paras.  61-  69;  47  U.  S.  C.    309(  j)(  3). 
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 (2)  Incorporation  by  Reference  of  the  Part  1  Standardized  Auction  Rules 
 111.  If  we  adopt  a  licensing  mechanism  that  could  result  in  mutually  exclusive  applications,  we  propose  to  conduct  any  auction  of  initial  licenses  in  the  licensed  portion  of  the  71-  76  GHz,  81-  86  GHz 
 and  92-  95  GHz  bands  in  conformity  with  the  general  competitive  bidding  rules  set  forth  in  Part  1,  Subpart  Q,  of  our  Rules,  and  substantially  consistent  with  the  bidding  procedures  that  we  have  employed  in 
 previous  auctions.  232  Specifically,  we  propose  to  employ  our  Part  1  Rules  governing  competitive  bidding  design,  designated  entities,  application  and  payment  procedures,  reporting  requirements,  collusion  issues, 
 and  unjust  enrichment.  233  Under  this  proposal,  we  propose  to  employ  our  Part  1  competitive  bidding  rules,  as  they  may  be  modified  in  future  Part  1  proceedings.  234  In  addition,  consistent  with  current 
 practice,  the  Wireless  Telecommunications  Bureau  (  Bureau)  would  determine  matters  such  as  the  appropriate  competitive  bidding  design  for  the  auction  of  these  licenses,  as  well  as  minimum  opening  bids 
 and  reserve  prices,  pursuant  to  its  delegated  authority.  235  We  seek  comment  on  whether  any  of  our  Part  1  Rules  or  other  auction  procedures  would  be  inappropriate  in  an  auction  of  licenses  in  these  bands. 


 (3)  Designated  Entity  Provisions 
 112.  In  authorizing  the  Commission  to  use  competitive  bidding,  Congress  mandated  that  the  Commission  ensure  that  small  businesses,  rural  telephone  companies,  and  businesses  owned  by  members 


 of  minority  groups  and  women  are  given  the  opportunity  to  participate  in  the  provision  of  spectrum-  based  services.  236  In  addition,  Section  309(  j)(  3)(  B)  of  the  Act  provides  that  in  establishing  eligibility  criteria 
 and  bidding  methodologies  the  Commission  shall  promote  economic  opportunity  and  competition  .  .  .  by  avoiding  excessive  concentration  of  licenses  and  by  disseminating  licenses  among  a  wide  variety  of 
 applicants,  including  small  businesses,  rural  telephone  companies,  and  businesses  owned  by  members  of  minority  groups  and  women.  237  The  Commission  defines  small  business  eligibility  requirements  on  a 
 service-  specific  basis  taking  into  account  the  capital  requirements  and  other  characteristics  of  each  particular  service  in  establishing  the  appropriate  threshold.  238 


 232  See  47  C.  F.  R.  Section  1.2101  et.  seq.  (Part  1,  Subpart  Q).  In  2000,  the  Commission  clarified  and  amended  its 
 general  competitive  bidding  procedures  for  all  auctionable  services.  See  Amendment  of  Part  1  of  the  Commission's  Rules  --  Competitive  Bidding  Procedures,  WT  Docket  No.  97-  82,  Order  on  Reconsideration  of  the 


 Third  Report  and  Order,  Fifth  Report  and  Order,  and  Fourth  Further  Notice  of  Proposed  Rule  Making,  15  FCC  Rcd  15293  (2000)  (modified  by  Erratum,  15  FCC  Rcd  21520  (2000))  (pet.  for  recons.  pending). 


 233  Id. 
 234  Id. 
 235  See  Amendment  of  Part  1  of  the  Commission's  Rules  -  Competitive  Bidding  Procedures,  Third  Report  and 
 Order  and  Second  Further  Notice  of  Proposed  Rule  Making,  13  FCC  Rcd  374,  448-  49,  454-  55  (  125,  139)  (directing  the  Bureau  to  seek  comment  on  specific  mechanisms  relating  to  auction  conduct  pursuant  to  the 


 Balanced  Budget  Act)  ("  Part  1  Third  Report  and  Order"). 
 236  See  47  U.  S.  C.    309(  j)(  4)(  D). 


 237  See  47  U.  S.  C.    309(  j)(  3)(  B). 
 238  See  Implementation  of  Section  309(  j)  of  the  Communications  Act    Competitive  Bidding,  PP  Docket  No.  93- 
 253,  Second  Memorandum  Opinion  and  Order,  9  FCC  Rcd  7245,  7269  (  145)  (1994)  (Competitive  Bidding  (continued.) 
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 113.  In  this  Notice,  we  propose  rules  for  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  to  allow  their  use  for  a  broad  range  of  purposes.  We  do  not  know  precisely  the  types  of  services  that 
 licensees  may  seek  in  these  bands  or  the  business  models  that  such  entities  may  pursue  which  makes  it  difficult  to  forecast  the  capital  requirements  for  these  particular  services.  Nevertheless,  we  note  that  Loea 
 promotes  gigabit  wireless  access  as  a  complement  or  supplement  to  optical  fiber  in  urban,  suburban,  and  even  rural  areas  for  a  range  of  uses  such  as  internet  access  or  backhaul  to  cellular  or  PCS  towers.  239  To 
 accomplish  these  goals,  Loea  envisions  the  deployment  of  highly  directional,  fixed  point-  to-  point,  high  millimeter  wave  systems  that  would  transmit  narrow  beams  (typically  less  than  0.5  degrees  beamwidth) 
 with  large  bandwidths  (of  5  GHz)  along  straight  paths  to  cover  relatively  short  distances  (of  10  miles  or  less).  240  Loea  also  contends  that  the  technical  characteristics  of  such  systems  allow  for  the  operation  of  a 
 vast  number  of  users  and  paths  in  any  given  geographical  area.  241  Further,  Endwave  contends  that  high  millimeter  wave  systems  would  be  more  cost  effective  than  fiber,  which  typically  costs  approximately 
 $250,000  to  $  1  million  per  mile  to  install  in  urban  areas.  242  The  record  suggests  that  proposed  fixed  services  provided  in  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  may  be  somewhat  similar  to  the 
 fixed  services  provided  in  the  39  GHz  Band,  and  thus,  we  believe  the  capital  requirements  associated  with  these  bands  will  be  similar  to  the  capital  requirements  associated  with  the  39  GHz  band.  Because  of  this 
 similarity,  we  propose  to  use  the  same  small  business  standards  that  the  Commission  applied  in  the  39  GHz  proceeding.  243  In  the  39  GHz  proceedings,  we  defined  a  very  small  business  as  an  entity  with 
 average  annual  gross  revenue  not  exceeding  $15  million  for  the  preceding  three  years  and  a  small  business  as  an  entity  with  average  annual  gross  revenues  not  exceeding  $40  million  for  the  preceding 
 three  years.  244  We  seek  comment  on  whether  it  is  appropriate  to  use  the  same  small  business  standards  that  were  used  in  the  39  GHz  proceeding  or  whether  a  different  standard  should  be  applied.  We  ask  that 
 any  commenters  proposing  different  small  business  standards  to  support  their  proposal  with  specific  details. 


 114.  If  we  ultimately  adopt  our  proposed  small  business  definitions  we  further  propose  to  provide  small  businesses  with  a  bidding  credit  of  fifteen  percent,  and  very  small  businesses  with  a  bidding  credit 
 of  twenty-  five  percent.  Our  proposed  bidding  credits  are  set  forth  in  the  standardized  schedule  in  Part  1 


 (Continued  from  previous  page)  Second  Memorandum  Opinion  and  Order);  see  Part  1  Third  Report  and  Order,  13  FCC  Rcd  at  388    18 
 (Commission  will  continue  a  service-  by-  service  approach  to  defining  small  businesses.). 
 239  See  Loea  Petition  at  5-  7;  Loea  Comments  at  5-  7. 


 240  See  id.  at  9-  14. 
 241  See  id.  at  12. 
 242  See  Endwave  Comments  at  2. 
 243  See  Amendment  of  the  Commissions  Rules  Regarding  the  37.0-  38.6  GHz  and  38.6-  40.0  GHz  Bands,  Report 
 and  Order  and  Second  Notice  of  Proposed  Rule  Making,  12  FCC  Rcd  18600,  18662    150  (1997).  Currently,  these  special  small  business  size  standards  are  being  coordinated  with  the  U.  S.  Small  Business  Administration. 


 244  Id.  See  also  47  C.  F.  R.    101.1209. 
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 of  our  Rules.  245  We  believe  that  these  bidding  credits  will  provide  adequate  opportunities  for  small  businesses  to  participate  in  the  auction.  246 
 115.  In  developing  these  proposals,  we  acknowledge  the  difficulty  in  accurately  predicting  the  market  forces  that  will  exist  at  the  time  these  frequencies  are  licensed.  Thus,  our  forecasts  of  types  of 
 services  that  will  be  offered  over  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  may  require  adjustment  depending  upon  ongoing  technological  developments  and  changes  in  market  conditions.  For 
 these  reasons,  we  invite  interested  parties  to  submit  detailed  information  on  the  factors  that  may  affect  the  capital  requirements  of  the  possible  services  that  could  be  provided  in  the  band.  Such  factors  include  the 
 types  of  system  architectures,  equipment  availability,  and  market  conditions. 
 116.  We  also  seek  comment  on  whether  these  small  business  proposals  are  sufficient  to  promote  participation  by  businesses  owned  by  minorities  and  women,  as  well  as  rural  telephone  companies.  To 


 the  extent  that  commenters  propose  additional  provisions  to  ensure  participation  by  minority-  owned  or  women-  owned  businesses,  they  should  address  how  such  provisions  should  be  crafted  to  meet  the 
 relevant  standards  of  judicial  review.  247 
 c)  Application  Processing 
 117.  As  noted  previously,  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  allocation  includes  fixed  and  mobile  service.  Based  on  the  record  before  us,  we  believe  the  technologies  that  will  be 


 employed  primarily  will  be  fixed  broadband  in  nature.  248  Accordingly,  we  propose  to  license  these  new  services  under  Part  101  of  our  Rules.  We  recognize  and  anticipate  that  new  technology  may  be 
 developed  to  utilize  these  bands.  Future  technologies  may  blur  both  technical  and  regulatory  distinctions  resulting  in  technical  and  operational  regulations  that  could  inadvertently  impinge  on  efficient  spectrum 
 use.  Consequently,  we  seek  to  develop  service  rules  that  are  not  based  on  a  Commission  prediction  of  how  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  may  ultimately  be  used,  but  instead  reflect  a 
 record  that  enables  us  to  establish  maximum  practicable  flexibility.  In  light  of  these  considerations,  we  seek  comment  on  the  following  issues.  Would  the  application  of  our  Part  101  Rules  to  the  71-  76  GHz, 
 81-  86  GHz  and  92-  95  GHz  bands  be  in  the  public  interest  by  contributing  to  technological  and  service  innovation  and  improving  the  national  telecommunications  infrastructure?  249  Further,  we  seek  comment 


 245  In  the  Part  1  Third  Report  and  Order,  we  adopted  a  standard  schedule  of  bidding  credits,  the  levels  of  which 
 were  developed  based  on  our  auction  experience.  Part  1  Third  Report  and  Order,  13  FCC  Rcd  at  403-  04,    47.  See  also  47  C.  F.  R.    1.2110(  f)(  2). 


 246  Id. 
 247  See  Adarand  Constructors  v.  Pea,  515  U.  S.  200  (1995)  (requiring  a  strict  scrutiny  standard  of  review  for 
 Congressionally  mandated  race-  conscious  measures);  United  States  v.  Virginia,  518  U.  S.  515  (1996)  (applying  an  intermediate  standard  of  review  to  a  state  program  based  on  gender  classification). 


 248  See  Loea  Comments  at  8-  11,  Boeing  Comments  at1-  2. 
 249  The  Commission  has  recognized  that  "[  f]  lexible  allocations  may  result  in  more  efficient  spectrum  markets." 
 Spectrum  Policy  Statement,  14  FCC  Rcd  at  19870-  71    9  (1999).  As  the  Commission  observed  when  it  adopted  service  rules  for  the  39  GHz  bands:  "It  is  in  the  public  interest  to  afford  [  ]  licensees  flexibility  in  the  design  of 


 their  systems  to  respond  readily  to  consumer  demand  for  their  services,  thus  allowing  the  marketplace  to  dictate  the  best  uses  for  this  band."  Amendment  of  the  Commission's  Rules  Regarding  the  37.0-  38.6  GHz  and  38.6-  40 
 GHz  Bands,  Report  and  Order  and  Second  Notice  of  Proposed  Rulemaking,  12  FCC  Rcd  18600,  18616    26  (1997). 
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 on  the  benefits  and  costs,  including  potential  interference,  of  such  flexibility,  and  whether  application  of  our  Part  101  Rules  is  in  the  public  interest.  We  seek  comment  on  this  proposal. 
 118.  Additionally,  we  propose  to  use  our  Universal  Licensing  System  (ULS)  250  to  process  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  applications.  ULS  is  the  Commission's  automated  licensing  system 
 and  integrated  database  for  wireless  services.  ULS  includes  consolidated  applications  forms,  which  permit  licensees  and  applicants  to  file  applications  electronically,  thus  increasing  the  speed  and  efficiency 
 of  the  application  process.  All  licensees  filing  applications  and  other  filings  using  FCC  Forms  601  through  605  or  associated  schedules  must  make  these  filings  in  accordance  with  ULS.  251  Use  of  ULS  will 
 permit  Commission  staff  to  process  filings  more  efficiently  and  will  enhance  the  availability  of  pertinent  licensing  information  to  the  public.  We  seek  comment  on  requiring  the  71-  76  GHz,  81-  86  GHz  and  92- 
 95  GHz  applicants  to  comply  with  our  ULS  processes. 
 D.  PROCEDURAL  MATTERS 
 1.  Initial  Regulatory  Flexibility  Analysis 
 119.  As  required  by  Section  603  of  the  Regulatory  Flexibility  Act,  the  Commission  has  prepared  an  Initial  Regulatory  Flexibility  Analysis  (IRFA)  of  the  expected  impact  on  small  entities  of  the 


 proposals  suggested  in  this  document.  252  The  IRFA  is  set  forth  in  Appendix  A.  Written  public  comments  are  requested  on  the  IRFA.  In  order  to  fulfill  the  mandate  of  the  Contract  with  America  Advancement 
 Act  of  1996  regarding  the  Final  Regulatory  Flexibility  Analysis,  we  ask  a  number  of  questions  regarding  the  prevalence  of  small  businesses  in  the  affected  industries. 


 120.  Comments  must  be  filed  in  accordance  with  the  same  filing  deadlines  as  comments  filed  in  this  Notice,  but  they  must  have  a  separate  and  distinct  heading  designating  them  as  responses  to  the 
 IRFA.  The  Commissions  Consumer  Information  Bureau,  Reference  Information  Center,  SHALL  SEND  a  copy  of  this  Notice,  including  the  IRFA,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business 
 Administration  in  accordance  with  Section  603(  a)  of  the  Regulatory  Flexibility  Act.  253 
 2.  Paperwork  Reduction  Analysis 
 121.  This  Notice  contains  either  a  proposed  or  modified  information  collection.  As  part  of  our  continuing  effort  to  reduce  paperwork  burdens,  we  invite  the  general  public  and  the  Office  of 


 Management  and  Budget  (  OMB)  to  take  the  opportunity  to  comment  on  the  information  collections  contained  in  this  Notice,  as  required  by  the  Paperwork  Reduction  Act  of  1995.  254  Public  and  agency 


 250  Biennial  Regulatory  Review  --  Amendment  of  Parts  0,  1,  13,  22,  24,  26,  27,  80,  87,  90,  95,  97,  and  101  of  the 
 Commission's  Rules  to  Facilitate  the  Development  and  Use  of  the  Universal  Licensing  System  in  the  Wireless  Telecommunications  Services,  WT  Docket  No.  98-  20,  Amendment  of  the  Amateur  Service  Rules  to  Authorize 


 Visiting  Foreign  Amateur  Operators  to  Operate  Stations  in  the  United  States,  WT  Docket  No.  96-  188,  RM-  8677,  Report  and  Order,  13  FCC  Rcd  21027  (1998)  (ULS  Report  and  Order). 


 251  47  C.  F.  R.    1.913(  b). 
 252  5  U.  S.  C.    603  (1996). 
 253  Id. 
 254  See  Pub.  L.  No.  104-  13. 
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 comments  are  due  at  the  same  time  as  other  comments  on  this  Notice;  OMB  comments  are  due  sixty  days  from  the  date  of  publication  of  this  Notice  in  the  Federal  Register.  Comments  should  address: 
   Whether  the  proposed  collection  of  information  is  necessary  for  the  proper  performance  of  the  functions  of  the  Commission,  including  whether  the  information  shall  have  practical  utility; 


   The  accuracy  of  the  Commission's  burden  estimates; 
   Ways  to  enhance  the  quality,  utility,  and  clarity  of  the  information  collected;  and 
   Ways  to  minimize  the  burden  of  the  collection  of  information  on  the  respondents,  including  the  use  of  automated  collection  techniques  or  other  forms  of  information  technology. 


 122.  Written  comments  by  the  public  on  the  proposed  and/  or  modified  information  collections  are  due  ninety  days  after  the  date  of  publication  in  the  Federal  Register.  Written  comments  must  be 
 submitted  by  the  OMB  on  the  proposed  and/  or  modified  information  collections  on  or  before  sixty  days  after  the  date  of  publication  in  the  Federal  Register.  In  addition  to  filing  comments  with  the  Secretary,  a 
 copy  of  any  comments  on  the  information  collections  contained  herein  should  be  submitted  to  Judy  Boley  Herman,  Federal  Communications  Commission,  Room  1-  C804,  445  12  th  Street,  S.  W.,  Washington,  D.  C. 
 20554,  or  via  the  Internet  to  jbherman@  fcc.  gov,  and  to  Jeannette  Thornton,  OMB  Desk  Officer,  Room  10236  New  Executive  Office  Building,  725  Seventeenth  Street,  N.  W.,  Washington,  D.  C.  20503,  or  via 
 the  Internet  to  jthornto@  mb.  eop.  gov. 
 3.  Ex  Parte  Rules    Permit-  But-  Disclose  Proceedings 
 123.  This  is  a  permit-  but-  disclose  notice  and  comment  rule  making  proceeding.  Ex  parte  presentations  are  permitted,  except  during  the  Sunshine  Agenda  period,  provided  they  are  disclosed  as 


 provided  in  the  Commission's  rules.  See  generally  47  C.  F.  R.    1.1202,  1.1203,  1.2306(  a). 
 4.  Comment  Dates 
 124.  Pursuant  to  Sections  1.415  and  1.419  of  our  Rules,  interested  parties  may  file  comments  on  or  before  90  days  from  the  date  of  publication  in  the  Federal  Register  and  reply  comments  on  or 


 before  135  days  from  the  date  of  publication  in  the  Federal  Register.  255  Comments  may  be  filed  using  the  Commission's  Electronic  Comment  Filing  System  (ECFS),  http://  www.  fcc.  gov/  e-  file/  ecfs.  html,  or  by 
 filing  paper  copies.  256 
 125.  Comments  filed  through  the  ECFS  can  be  sent  as  an  electronic  file  via  the  Internet  to  http://  www.  fcc.  gov/  e-  file/  ecfs.  html.  Generally,  only  one  copy  of  an  electronic  submission  must  be  filed. 


 If  multiple  docket  or  rulemaking  numbers  appear  in  the  caption  of  this  proceeding,  however,  commenters  must  transmit  one  electronic  copy  of  the  comments  to  each  docket  or  rulemaking  number  referenced  in 
 the  caption.  In  completing  the  transmittal  screen,  commenters  should  include  their  full  name,  U.  S.  Postal  Service  mailing  address,  and  the  applicable  docket  or  rulemaking  number.  Parties  may  also  submit  an 
 electronic  comment  by  Internet  e-  mail.  To  get  filing  instructions  for  e-  mail  comments,  commenters 
 255  47  C.  F.  R.    1.415,  1.419. 
 256  See  Electronic  Filing  of  Documents  in  Rulemaking  Proceedings,  Report  and  Order,  13  FCC  Rcd  11322 
 (1998). 
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 should  send  an  e-  mail  to  ecfs@  fcc.  gov,  and  should  including  the  following  words  in  the  body  of  the  message,  "get  form  <your  e-  mail  address."  A  sample  form  and  directions  will  be  sent  in  reply. 
 126.  Parties  who  choose  to  file  by  paper  must  file  an  original  and  four  copies  of  each  filing.  If  more  than  one  docket  or  rule  making  number  appear  in  the  caption  of  this  proceeding,  commenters  must 
 submit  two  additional  copies  for  each  additional  docket  or  rulemaking  number.  Filings  can  be  sent  by  hand  or  messenger  delivery,  by  commercial  overnight  courier,  or  by  first-  class  or  overnight  U.  S.  Postal 
 Service  mail  (although  we  continue  to  experience  delays  in  receiving  U.  S.  Postal  Service  mail).  The  Commissioners  contractor,  Vistronix,  Inc.,  will  receive  hand-  delivered  or  messenger-  delivered  paper 
 filings  for  the  Commissions  Secretary  at  236  Massachusetts  Avenue,  N.  E.,  Suite  110,  Washington,  D.  C.  20002.  The  filing  hours  at  this  location  are  8:  00  a.  m.  to  7:  00  p.  m.  All  hand  deliveries  must  be  held 
 together  with  rubber  bands  or  fasteners.  Any  envelopes  must  be  disposed  of  before  entering  the  building.  Commercial  overnight  mail  (other  than  U.  S.  Postal  Service  Express  Mail  and  Priority  Mail)  must  be  sent 
 to  9300  East  Hampton  Drive,  Capitol  Heights,  MD  20743.  U.  S.  Postal  Service  first-  class  mail,  Express  Mail,  and  Priority  Mail  should  be  addressed  to  445  12th  Street,  S.  W.,  TW-  A325,  Washington,  D.  C. 
 20554.  All  filings  must  be  addressed  to  the  Commissioners  Secretary,  Office  of  the  Secretary,  Federal  Communications  Commission. 


 127.  Parties  who  choose  to  file  by  paper  should  also  submit  their  comments  on  diskette.  Such  a  submission  should  be  on  a  3.5-  inch  diskette  formatted  in  an  IBM  compatible  format  using  Microsoft 
 Word  or  compatible  software.  The  diskette  should  be  accompanied  by  a  cover  letter  and  should  be  submitted  in  read  only  mode.  The  diskette  should  be  clearly  labeled  with  the  commenters  name, 
 proceeding  (including  the  lead  docket  number,  type  of  pleading  (comment  or  reply  comment),  date  of  submission,  and  the  name  of  the  electronic  file  on  the  diskette.  The  label  should  also  include  the 
 following  phrase  Disk  Copy    Not  an  Original.  Each  diskette  should  contain  only  one  partys  pleading,  preferably  in  a  single  electronic  file.  In  addition,  commenters  must  send  diskette  copies  to  the 
 Commissions  copy  contract,  Qualex  International,  Portals  II,  445  12  th  Street,  SW.,  Room  CY-  B402,  Washington,  D.  C.  20554,  telephone  202-  863-  2893,  facsimile  202-  863-  2898,  or  via  e-  mail 
 qualexint@  aol.  com. 
 128.  Alternative  formats  (computer  diskette,  large  print,  audio  cassette  and  Braille)  are  available  to  persons  with  disabilities  by  contacting  Brian  Millin  at  (202)  418-  7426,  TTY  (202)  418-  7365 


 or  via  e-  mail  to  bmillin@  fcc.  gov/  oet.  This  Notice  can  also  be  downloaded  at  http://  www.  fcc.  gov/  oet. 
 129.  For  further  information  concerning  this  Notice  of  Proposed  Rule  Making,  contact  Michael  Marcus,  Office  of  Engineering  and  Technology,  (202)  418-  2418,  TTY  (202)  418-  2989,  email 


 mmarcus@  fcc.  gov,  or  Brian  ODonnell,  Policy  and  Rules  Branch,  Public  Safety  and  Private  Wireless  Division,  Wireless  Telecommunications  Bureau,  (202)  418-  2135,  email  bodonnel@  fcc.  gov. 


 130.  The  World  Wide  Web  addresses/  URLs  that  we  give  here  were  correct  at  the  time  this  document  was  prepared  but  may  change  over  time.  They  are  included  herein  in  addition  to  the 
 conventional  citations  as  a  convenience  to  readers.  We  are  unable  to  update  these  URLs  after  adoption  of  this  Notice,  and  readers  may  find  some  URLs  to  be  out  of  date  as  time  progresses.  We  also  advise  readers 
 that  the  only  definitive  text  of  FCC  documents  is  the  one  that  is  published  in  the  FCC  Record.  In  case  of  discrepancy  between  the  electronic  documents  cited  here  and  the  FCC  Record,  the  version  in  the  FCC 
 Record  is  definitive. 
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 E.  ORDERING  CLAUSES 
 131.  IT  IS  ORDERED  that  the  Commission  s  Consumer  and  Governmental  Affairs  Bureau,  Reference  Information  Center,  SHALL  SEND  a  copy  of  this  Notice  of  Proposed  Rule  Making,  including 


 the  Initial  Regulatory  Flexibility  Analysis,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration  in  accordance  with  Section  603(  a)  of  the  Regulatory  Flexibility  Act,  5  U.  S.  C.    603(  a). 


 132.  IT  IS  FURTHER  ORDERED,  that  pursuant  to  the  authority  contained  in  Sections  4,  4(  i),  157,  303,303(  g),  303(  r),  307  and  332(  c)(  7)  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C. 
   154,  154(  i),  157,  303,  303(  g),  303(  r),  307,  this  Notice  of  Proposed  Rule  Making  IS  ADOPTED. 
 FEDERAL  COMMUNICATIONS  COMMISSION 


 Marlene  H.  Dortch  Secretary 
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 APPENDIX  A:  INITIAL  REGULATORY  FLEXIBILITY  ANALYSIS 
 1.  As  required  by  the  Regulatory  Flexibility  Act  of  1980,  as  amended  (RFA),  257  the  Commission  has  prepared  this  present  Initial  Regulatory  Flexibility  Analysis  (IRFA)  of  the  possible  significant 


 economic  impact  on  a  substantial  number  of  small  entities  by  the  policies  and  rules  proposed  in  this  Notice  of  Proposed  Rule  Making  (Notice).  Written  public  comments  are  requested  on  this  IRFA. 
 Comments  must  be  identified  as  responses  to  the  IRFA  and  must  be  filed  by  the  deadlines  for  comments  on  the  Notice  provided  in  paragraph  124  of  the  item.  The  Commission  will  send  a  copy  of  this  Notice, 
 including  this  IRFA,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration  (SBA).  258  In  addition,  the  Notice  and  IRFA  (or  summaries  thereof)  will  be  published  in  the  Federal  Register.  259 


 A.  Need  for,  and  Objectives  of,  the  Proposed  Rules. 
 2.  In  this  Notice,  we  examine  methods  to  promote  the  development  and  growth  of  the  in  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  to  encourage  the  provisions  of  new  technologies  and  services 


 to  the  public  and  encourage  the  larger  and  more  effective  use  of  wireless  in  the  public  interest.  We  believe  that  this  Notice  will  set  the  framework  for  the  establishment  of  new  wireless  services  in  the  71-  76 
 GHz,  81-  86  GHz  and  92-  95  GHz  bands. 
 3.  We  seek  comment  on  the  following  issues  under  consideration  in  this  Notice: 


   Reallocating  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  in  order  to  more  fully  comply  with  the  allocations  established  at  the  World  Administrative  Radio  Conference; 


   Providing  licensees  in  the  71-  76  GHz  and  81-  86  GHz  access  to  the  entire  spectrum  to  provide  sufficient  capacity  for  licensees  to  utilize  and  provide  new  innovative  services  to 
 the  public; 
   Dividing  the  92-  95  GHz  band  into  licensed  use  and  unlicensed  use  in  order  to  stimulate  growth  in  the  band  while  providing  adequate  protection  to  the  Government  operations  in 


 the  band  and  to  operations  in  the  adjacent  spectrum; 
   Authorizing  the  71-  76  GHz,  81-  86  GHz  and  portions  of  the  92-  95  GHz  under  Part  101  of  our  Rules  in  order  to  facilitate  investment  capital  for  business; 


   Whether  to  license  the  new  services  by  geographic  service  areas  or  by  site-  by-  site  licensing; 
   Licensing  the  spectrum  to  individual  licensees  and  band  managers  to  optimize  the  use  of  the  spectrum  and  to  provide  maximum  flexibility  for  potential  licensees  and  new 
 services; 


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


 259  See  5  U.  S.  C.    603(  a). 
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   Proposing  open  eligibility,  rather  than  imposing  eligibility  restrictions,  to  allow  market  forces  to  guide  license  assignment  absent  a  compelling  showing  that  regulatory 
 intervention  to  exclude  potential  participants  is  necessary; 
   Adopting  a  10-  year  license  term  and  providing  licensees  with  a  renewal  expectancy  upon  establishing  substantial  service  in  order  to  provide  a  stable  regulatory  environment  that 


 will  be  attractive  to  investors  and  will  thus  encourage  development  of  the  spectrum;  and 
   Allowing  licensees  to  partition  and  disaggregate  their  spectrum  to  provide  an  opportunity  for  a  wide  range  of  applicants,  including  small  business,  rural  telephone,  minority-  owned 


 and  women-  owned  applicants. 
 B.  Legal  Basis 
 4.  The  proposed  action  is  authorized  under  Sections  4(  i),  301,  302,  303(  e),  303(  f),  303(  r),  304  and  307  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  301,  302,  303(  e),  303(  f), 


 303(  r),  304,  307. 
 C.  Description  and  Estimate  of  the  Number  of  Small  Entities  to  Which  the  Proposed  Rules  Will  Apply. 


 5.  The  RFA  directs  agencies  to  provide  a  description  of  and,  where  feasible,  an  estimate  of  the  number  of  small  entities  that  may  be  affected  by  the  proposed  rules.  260  The  RFA  generally  defines  the 
 term  small  entity  as  having  the  same  meaning  as  the  terms,  small  business,  small  organization,  and  small  governmental  jurisdiction.  261  In  addition,  the  term  small  business  has  the  same  meaning  as  the 
 term  small  business  concern  under  the  Small  Business  Act.  262  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  SBA.  263  A  small  organization  is  generally  any  not-  for-  profit  enterprise  which  is  independently  owned  and  operated  and  is  not  dominant  in  its  field.  264  Nationwide,  as 
 of  1992,  there  were  approximately  275,801  small  organizations.  265 
 6.  The  Commission  has  not  developed  a  definition  of  small  entities  applicable  to  Radio  Frequency  Equipment  Manufacturers  (RF  Manufacturers).  Therefore,  the  applicable  definition  of  small 


 260  5  U.  S.  C.    603(  b)(  3). 
 261  5  U.  S.  C.    601(  6). 
 262  5  U.  S.  C.    601(  3)  (incorporating  by  reference  the  definition  of  small  business  concern  in  the  Small  Business 
 Act,  15  U.  S.  C.    632).  Pursuant  to  5  U.  S.  C.    601(  3),  the  statutory  definition  of  a  small  business  applies  unless  an  agency,  after  consultation  with  the  Office  of  Advocacy  of  the  Small  Business  Administration  and  after 


 opportunity  for  public  comment,  establishes  one  or  more  definitions  of  such  term  which  are  appropriate  to  the  activities  of  the  agency  and  publishes  such  definition(  s)  in  the  Federal  Register.  5  U.  S.  C.    601(  3). 


 263  15  U.  S.  C.    632. 
 264  5  U.  S.  C.    601(  4). 
 265  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). 
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 entity  is  the  definition  under  the  SBA  rules  applicable  to  manufacturers  of  Radio  and  Television  Broadcasting  and  Communications  Equipment.  According  to  the  SBAs  regulation,  an  RF  manufacturer 
 must  have  750  or  fewer  employees  in  order  to  qualify  as  a  small  business.  266  Census  Bureau  data  indicates  that  there  are  858  companies  in  the  United  States  that  manufacture  radio  and  television 
 broadcasting  and  communications  equipment,  and  that  778  of  these  firms  have  fewer  than  750  employees  and  would  be  classified  as  small  entities.  267  Therefore,  we  believe  that  many  of  the  companies  that 
 manufacture  RF  equipment  may  qualify  as  small  entities. 
 7.  The  Commission  has  proposed  to  assign  licenses  in  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands  by  competitive  bidding.  The  Commission  has  not  yet  determined  how  many  licenses  will  be 


 awarded.  Moreover,  the  Commission  does  not  know  how  many  licensees  will  partition  their  license  areas  or  disaggregate  their  spectrums,  if  partitioning  and  disaggregation  are  allowed.  268  Therefore,  the  exact 
 number  of  smaller  licensees  in  these  bands  to  which  the  proposed  rules  will  apply  cannot  be  known  precisely  at  this  time. 


 D.  Description  of  Projected  Reporting,  Recordkeeping,  and  Other  Compliance  Requirements. 
 8.  Equipment  designed  for  unlicensed  use  will  be  subject  to  the  existing  requirements  of  Subpart  J  of  Part  2  269  of  our  Rules,  which  governs  equipment  authorization  procedures.  In  addition,  winning 
 bidders  for  licensed  use  must  submit  long-  form  license  applications  through  the  Universal  Licensing  System  using  FCC  Form  601,  270  and  other  appropriate  forms.  271  Licensees  will  also  be  required  to  apply 
 for  an  individual  station  license  by  filing  FCC  Form  601  for  those  individual  stations  that  (1)  require  submission  of  an  Environmental  Assessment  of  the  facilities  under  Section  1.1307  of  our  Rules;  272  (2) 
 require  international  coordination  of  the  application;  273  or  (3)  require  coordination  with  the  Frequency  Assignment  Subcommittee  (FAS)  of  the  Interdepartment  Radio  Advisory  Committee  (IRAC).  While 
 these  requirements  are  new  with  respect  to  potential  licensees  in  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  bands,  the  Commission  has  applied  these  requirements  to  licensees  in  other  bands. 


 E.  Steps  Taken  to  Minimize  Significant  Economic  Impact  on  Small  Entities,  and  Significant  Alternatives  Considered. 
 9.  The  RFA  requires  an  agency  to  describe  any  significant  alternatives  that  it  has  considered  in 
 266  See  13  C.  F.  R.    121.201,  NAICS  Code  334220. 
 267  See  U.  S.  Department  of  Commerce,  1992  Census  of  Transportation,  Communications  and  Utilities  (issued  May 
 1995),  NAICS  category  334220. 
 268  See  para.  91. 


 269  47  C.  F.  R.    2.901,  2.1093. 
 270  47  C.  F.  R.    1.913(  a)(  1). 
 271  47  C.  F.  R.    1.2107. 
 272  47  C.  F.  R.    1.1307. 
 273  See  e.  g.,  47  C.  F.  R.    1.928  (regarding  frequency  coordination  arrangements  between  the  U.  S.  and  Canada). 
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 reaching  its  proposed  approach,  which  may  include  the  following  four  alternatives:  (  1)  the  establishment  of  differing  compliance  or  reporting  requirements  or  timetables  that  take  into  account  the  resources 
 available  to  small  entities;  (2)  the  clarification,  consolidation,  or  simplification  of  compliance  or  reporting  requirements  under  the  rule  for  such  small  entities;  (3)  the  use  of  performance,  rather  than  design 
 standards;  and  (4)  an  exemption  from  coverage  of  the  rule,  or  any  part  thereof,  for  small  entities.  274 
 10.  We  believe  that  the  rules  proposed  in  this  Notice  provide  a  flexible  and  efficient  approach  to  spectrum  management.  To  minimize  any  negative  impact  on  smaller  entities,  however,  we  propose 


 certain  incentives  for  small  entities  that  will  be  to  their  benefit.  For  example,  we  seek  comment  on  licensing  the  spectrum  to  band  managers  that  will  be  authorized  to  lease  portions  of  their  spectrum  to  all 
 entities,  including  smaller  entities,  and  to  allow  partitioning  and  spectrum  disaggregation.  These  provisions  will  enable  smaller  entities,  which  sometimes  may  lack  sufficient  resources  to  bid  in  the 
 auction  on  an  equally  competitive  basis,  to  acquire  smaller  portions  of  the  spectrum.  The  use  of  smaller  licensing  areas  could  also  benefit  small  entities  by  reducing  costs  and  build  out  expenses. 


 11.  We  also  propose  bidding  credits  for  smaller  entities  that  participate  in  auctions  of  licenses  that  are  conducted  pursuant  to  the  rules  proposed  in  this  Notice.  Specifically,  we  propose  to  define  an 
 entrepreneur  as  an  entity  with  average  annual  gross  revenues  not  exceeding  $40  million  for  three  preceding  years  and  we  propose  to  define  a  small  business  as  an  entity  with  an  average  annual  gross 
 revenues  not  exceeding  $15  million  for  three  preceding  years.  We  believe  that  these  small  business  definitions  and  bidding  credits  will  help  small  entities  compete  in  our  auctions  and  acquire  licenses.  275 


 12.  In  addition,  we  propose  to  adopt  a  10-  year  license  term  and  provide  licensees  with  a  renewal  expectancy  upon  establishing  substantial  service.  We  believe  these  provisions  will  provide  a  stable 
 regulatory  environment  that  will  be  attractive  to  investors  and  thus  enable  smaller  entities  to  acquire  the  necessary  capital  to  operate  in  the  spectrum. 


 13.  The  regulatory  burdens  we  have  retained,  such  as  filing  applications  on  appropriate  forms,  are  necessary  in  order  to  ensure  that  the  public  receives  the  benefits  of  innovative  new  services  in  a  prompt 
 and  efficient  manner  and  apply  equally  to  large  and  small  entities,  thus  without  differential  impact.  We  will  continue  to  examine  alternatives  in  the  future  with  the  objectives  of  eliminating  unnecessary 
 regulations  and  minimizing  any  significant  impact  on  small  entities. 
 F.  Federal  Rules  that  May  Duplicate,  Overlap,  or  Conflict  with  the  Proposed  Rule. 
 15.  None. 
 G.  Ordering  Clause 
 16.  IT  IS  FURTHER  ORDERED  that  the  Commissions  Consumer  &  Governmental  Affairs  Bureau,  Reference  Information  Center,  SHALL  SEND  a  copy  of  this  Notice  for  Proposed  Rule  Making, 


 including  the  Initial  Regulatory  Flexibility  Analysis,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration. 


 274  See  5  U.  S.  C.    603(  c). 
 275  Currently,  these  special  small  business  size  standards  are  being  coordinated  with  the  U.  S.  Small  Business 
 Administration. 
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 APPENDIX  B 
 PROPOSED  DEFINITIONS  AND  RULES 


 1.  For  the  reasons  discussed  in  the  preamble,  the  Federal  Communications  Commission  proposes  to  amend  47  CFR  Parts  2,  15,  97,  and  101  as  follows: 


 PART  2  --  FREQUENCY  ALLOCATIONS  AND  RADIO  TREATY  MATTERS;  GENERAL  RULES  AND  REGULATIONS 
 2.  The  authority  citation  for  part  2  continues  to  read  as  follows: 
 Authority:  47  U.  S.  C.  154,  302a,  303,  and  336,  unless  otherwise  noted. 
 3.  Section  2.106,  the  Table  of  Frequency  Allocations,  is  amended  as  follows: 
 a.  Revise  pages  81  through  83. 
 b.  In  the  list  of  International  Footnotes,  under  I.,  revise  footnotes  5.149,  5.556,  and  5.561;  and  add  footnotes  5.559A,  5.560A,  5.561A,  and  5.562A. 


 c.  In  the  list  of  United  States  (US)  Footnotes,  revise  footnotes  US211,  US297,  and  US342;  remove  footnote  US270;  and  add  footnotes  USwww,  USxxx,  USyyy,  and  USzzz. 
 The  additions  and  revisions  read  as  follows: 
   2.106  Table  of  Frequency  Allocations. 
 *  *  *  *  * 
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 65-  66  EARTH 
 EXPLORATION- 


 SATELLITE 


 FIXED  INTER- 
 SATELLITE  MOBILE  except  aeronautical 


 mobile 


 SPACE 
 RESEARCH  5.547 


 65-  66  EARTH 
 EXPLORATION-  SATELLITE  FIXED  MOBILE  except  aeronautical  mobile  SPACE  RESEARCH 


 65-  66  EARTH 
 EXPLORATION-  SATELLITE  FIXED  INTER-  SATELLITE  MOBILE  except  aeronautical  mobile  SPACE  RESEARCH 


 66-  71  INTER- 
 SATELLITE  MOBILE  5.553  5.558  MOBILE-  SATELLITE  RADIONAVIGATION  RADIONAVIGATION- 


 SATELLITE 


 5.554 


 66-  71  MOBILE 
 5.553 
 5.558 


 MOBILE- 
 SATELLITE  RADIONAVIGATION  RADIONAVIGATION-  SATELLITE  5.554 


 66-  71  INTER- 
 SATELLITE  MOBILE  5.553  5.558  MOBILE-  SATELLITE  RADIONAVIGATION  RADIONAVIGATION-  SATELLITE  5.554 


 71-  74  FIXED  FIXED- 
 SATELLITE 


 (space-  to- 
 Earth) 


 MOBILE  MOBILE- 
 SATELLITE 


 (space-  to- 
 Earth) 


 71-  74  FIXED  FIXED- 
 SATELLITE 


 (space-  to- 
 Earth) 


 MOBILE  MOBILE- 
 SATELLITE 


 (space-  to- 
 Earth) 


 74-  76  FIXED  FIXED- 
 SATELLITE 


 (space-  to- 
 Earth) 


 MOBILE  BROADCASTING  BROADCASTING- 
 SATELLITE 
 Space 
 research 


 (space-  to- 


 Earth) 


 5.559A 
 5.561 


 74-  76  FIXED  FIXED- 
 SATELLITE 


 (space-  to- 


 Earth)  MOBILE  Space 
 research 


 (space-  to- 


 Earth)  US211 
 USwww 


 USyyy 


 74-  76  FIXED  FIXED- 
 SATELLITE 


 (space-  to- 


 Earth)  MOBILE  BROADCASTING  BROADCASTING-  SATELLITE  Space 
 research 


 (space-  to- 


 Earth)  US211 
 USwww 


 USyyy 


 Fixed 
 Microwave 


 (101) 


 76-  77  RADIOLOCATION  Amateur 
 RF 
 Devices 


 (15) 


 76-  81  RADIOLOCATION  Amateur  Amateur- 
 satellite 
 Space 
 research 


 (space-  to- 


 Earth) 


 76-  81  RADIOLOCATION 
 77-  77.5  RADIOLOCATION  Amateur  Amateur- 
 satellite 


 Amateur 
 (97) 
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 77.5-  78  RADIOLOCATION  AMATEUR  AMATEUR- 
 SATELLITE 
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 5.560 
 5.560 
 78-  81  RADIOLOCATION  Amateur  Amateur- 
 satellite 
 5.560 


 81-  84  FIXED  FIXED- 
 SATELLITE 


 (Earth-  to- 
 space) 


 MOBILE  MOBILE- 
 SATELLITE 


 (Earth-  to- 
 space) 


 RADIO 
 ASTRONOMY  Space  research  (space- 


 to-  Earth) 


 5.149 
 5.560A 


 81-  84  FIXED  FIXED- 
 SATELLITE 


 (Earth-  to- 
 space) 
 US297 


 MOBILE  MOBILE- 
 SATELLITE 


 (Earth-  to- 
 space) 


 RADIO 
 ASTRONOMY 


 USzzz 


 Space 
 research 


 (space-  to- 


 Earth) 


 US342 


 84-  86  FIXED  FIXED- 
 SATELLITE 


 (Earth-  to- 
 space) 
 5.561A 


 MOBILE  RADIO  ASTRONOMY  5.149 


 84-  86  FIXED  FIXED- 
 SATELLITE 


 (Earth-  to- 
 space) 


 MOBILE  RADIO  ASTRONOMY 
 USzzz 
 US342 


 Fixed 
 Microwave 


 (101) 


 86-  92  EARTH 
 EXPLORATION- 


 SATELLITE 
 (passive) 


 RADIO 
 ASTRONOMY  SPACE  RESEARCH  (passive)  5.340 


 86-  92  EARTH 
 EXPLORATION- 


 SATELLITE 
 (passive) 


 RADIO 
 ASTRONOMY 


 US74 


 SPACE 
 RESEARCH 


 (passive) 


 US246 


 92-  94  FIXED  MOBILE  RADIO 
 ASTRONOMY  RADIOLOCATION  5.149 


 92-  94  FIXED  MOBILE  RADIO 
 ASTRONOMY 


 USzzz 


 RADIOLOCATION  US342  USxxx 


 Fixed 
 Microwave 


 (101) 


 94-  94.1  EARTH 
 EXPLORATION- 


 SATELLITE 
 (active) 


 RADIOLOCATION  SPACE  RESEARCH 
 (active) 
 Radio 
 astronomy  5.562  5.562A 


 94-  94.1  EARTH 
 EXPLORATION-  SATELLITE  (active)  RADIOLOCATION  SPACE  RESEARCH  (active)  Radio  Astronomy  5.562  5.562A 


 94-  94.1  RADIOLOCATION  Radio 
 astronomy  5.562A 
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 Region 
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 94.1-  95  FIXED  MOBILE  RADIO 
 ASTRONOMY  RADIOLOCATION  5.149 


 94.1-  95  FIXED  MOBILE  RADIO 
 ASTRONOMY 


 USzzz 


 RADIOLOCATION  US342  USxxx 


 Fixed 
 Microwave 


 (101) 


 95-  100  MOBILE 
 S5.553 
 MOBILE- 
 SATELLITE  RADIONAVIGATION  RADIONAVIGATION- 


 SATELLITE 


 Radiolocation  S5.149  S5.554 
 S5.555 


 95-  100  MOBILE 
 S5.553 
 MOBILE- 
 SATELLITE  RADIONAVIGATION  RADIONAVIGATION- 


 SATELLITE 


 Radiolocation  S5.149  S5.554 


 100-  102  EARTH 
 EXPLORATION- 


 SATELLITE 
 (passive) 


 FIXED  MOBILE  SPACE 
 RESEARCH 


 (passive) 


 S5.341 


 100-  102  EARTH 
 EXPLORATION- 


 SATELLITE 
 (passive) 


 SPACE 
 RESEARCH 


 (passive) 


 S5.341 
 US246 


 102-  105  FIXED  FIXED- 
 SATELLITE 


 (space-  to- 
 Earth) 


 MOBILE  S5.341 


 102-  105  FIXED  FIXED- 
 SATELLITE 


 (space-  to- 
 Earth) 


 S5.341 
 US211 


 105-  116  EARTH 
 EXPLORATION- 


 SATELLITE 
 (passive) 


 RADIO 
 ASTRONOMY  SPACE  RESEARCH  (passive)  S5.340  S5.341 


 105-  116  EARTH 
 EXPLORATION- 


 SATELLITE 
 (passive) 


 RADIO 
 ASTRONOMY 


 US74 


 SPACE 
 RESEARCH 


 (passive) 


 S5.341 
 US246 


 116-  119.98  EARTH 
 EXPLORATION- 


 SATELLITE 
 (passive) 


 FIXED  INTER- 
 SATELLITE  MOBILE  S5.558  SPACE  RESEARCH 


 (passive) 


 S5.341 


 116-  119.98  EARTH 
 EXPLORATION- 


 SATELLITE 
 (passive) 


 FIXED  INTER- 
 SATELLITE  MOBILE  S5.558  SPACE  RESEARCH 


 (passive) 


 S5.341 
 US211 
 US263 
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 *  *  *  *  * 
 INTERNATIONAL  FOOTNOTES 
 *  *  *  *  * 
 5.149  In  making  assignments  to  stations  of  other  services  to  which  the  bands: 
 13360-  13410  kHz,  4990-  5000  MHz,  94.1-  100  GHz,  25550-  25670  kHz,  6650-  6675.2  MHz,  102-  109.5  GHz, 


 37.5-  38.25  MHz,  10.6-  10.68  GHz,  111.8-  114.25  GHz,  73-  74.6  MHz  in  Regions  1  and  3,  14.47-  14.5  GHz,  128.33-  128.59  GHz, 
 150.05-  153  MHz  in  Region  1,  22.01-  22.21  GHz,  129.23-  129.49  GHz,  322-  328.6  MHz,  22.21-  22.5  GHz,  130-  134  GHz, 
 406.1-  410  MHz,  22.81-  22.86  GHz,  136-  148.5  GHz,  608-  614  MHz  in  Regions  1  and  3,  23.07-  23.12  GHz,  151.5-  158.5  GHz, 
 1330-  1400  MHz,  31.2-  31.3  GHz,  168.59-  168.93  GHz,  1610.6-  1613.8  MHz,  31.5-  31.8  GHz  in  Regions  1  and  3,  171.11-  171.45  GHz, 
 1660-  1670  MHz,  36.43-  36.5  GHz,  172.31-  172.65  GHz,  1718.8-  1722.2  MHz,  42.5-  43.5  GHz,  173.52-  173.85  GHz, 
 2655-  2690  MHz,  42.77-  42.87  GHz,  195.75-  196.15  GHz,  3260-  3267  MHz,  43.07-  43.17  GHz,  209-  226  GHz, 
 3332-  3339  MHz,  43.37-  43.47  GHz,  241-  250  GHz,  3345.8-  3352.5  MHz,  48.94-  49.04  GHz,  252-  275  GHz 
 4825-  4835  MHz,  76-  86  GHz,  4950-  4990  MHz,  92-  94  GHz, 


 are  allocated,  administrations  are  urged  to  take  all  practicable  steps  to  protect  the  radio  astronomy  service  from  harmful  interference.  Emissions  from  spaceborne  or  airborne  stations  can  be  particularly  serious 
 sources  of  interference  to  the  radio  astronomy  service  (see  Nos.  S4.5  and  S4.6  and  Article  S29). 
 *  *  *  *  * 
 5.556  In  the  bands  51.4-  54.25  GHz,  58.2-  59  GHz  and  64-  65  GHz,  radio  astronomy  observations  may  be  carried  out  under  national  arrangements. 


 *  *  *  *  * 
 5.559A  The  band  75.5-  76  GHz  is  also  allocated  to  the  amateur  and  amateur-  satellite  services  on  a  primary  basis  until  the  year  2006. 


 *  *  *  *  * 
 5.560A  The  81-  81.5  GHz  band  is  also  allocated  to  the  amateur  and  amateur-  satellite  services  on  a  secondary  basis. 


 *  *  *  *  * 
 5.561  In  the  band  74-  76  GHz,  stations  in  the  fixed,  mobile  and  broadcasting  services  shall  not  cause  harmful  interference  to  stations  of  the  fixed-  satellite  service  or  stations  of  the  broadcasting-  satellite 


 service  operating  in  accordance  with  the  decisions  of  the  appropriate  frequency  assignment  planning  conference  for  the  broadcasting-  satellite  service. 
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 5.561A  In  Japan,  use  of  the  band  84-  86  GHz,  by  the  fixed-  satellite  service  (Earth-  to-  space)  is  limited  to  feeder  links  in  the  broadcasting-  satellite  service  using  the  geostationary-  satellite  orbit. 
 *  *  *  *  * 
 5.562A  Transmissions  from  space  stations  of  the  Earth  exploration-  satellite  service  (active)  that  are  directed  into  the  main  beam  of  a  radio  astronomy  antenna  have  the  potential  to  damage  some  radio 


 astronomy  receivers.  Space  agencies  operating  the  transmitters  and  the  radio  astronomy  stations  concerned  should  mutually  plan  their  operations  so  as  to  avoid  such  occurrences  to  the  maximum  extent 
 possible. 
 *  *  *  *  * 
 United  States  (US)  Footnotes 
 *  *  *  *  * 
 US211  In  the  bands  1670-  1690,  5000-  5250  MHz  and  10.7-  11.7,  15.1365-  15.35,  15.4-  15.7,  22.5-  22.55,  24-  24.05,  31.0-  31.3,  31.8-  32.0,  40.5-  42.5,  102-  105,  116-  126,  151-  164,  176.5-  182,  185-  190,  231- 


 235,  252-  265  GHz,  applicants  for  airborne  or  space  station  assignments  are  urged  to  take  all  practicable  steps  to  protect  radio  astronomy  observations  in  the  adjacent  bands  from  harmful  interference;  however, 
 US74  applies. 
 *  *  *  *  * 
 US297  The  bands  47.2-  49.2  GHz  and  81-  82.5  GHz  are  also  available  for  feeder  links  for  the  broadcasting-  satellite  service. 


 *  *  *  *  * 
 US342  In  making  assignments  to  stations  of  other  services  to  which  the  bands: 
 13360-  13410  kHz,  14.47-  14.5  GHz,*  92-  94  GHz,  37.5-  38.25  MHz,  22.01-  22.21  GHz,*  94.1-  95  GHz, 


 322-  328.6  MHz,*  22.21-  22.5  GHz,  97.88-  98.08  GHz,*  1330-  1400  MHz,*  22.81-  22.86  GHz,*  140.69-  140.98  GHz,* 
 1610.6-  1613.8  MHz,*  23.07-  23.12  GHz,*  144.68-  144.98  GHz,*  1660-  1670  MHz,  31.2-  31.3  GHz,  145.45-  145.75  GHz,* 
 3260-  3267  MHz,*  36.43-  36.5  GHz,*  146.82-  147.12  GHz,*  3332-  3339  MHz,*  42.5-  43.5  GHz,  262.24-  262.76  GHz,* 
 3345.8-  3352.5  MHz,*  48.94-  49.04  GHz,*  265-  275  GHz  4825-  4835  MHz,*  81-  86  GHz, 


 are  allocated  (*  indicates  radio  astronomy  use  for  spectral  line  observations),  all  practicable  steps  shall  be  taken  to  protect  the  radio  astronomy  service  from  harmful  interference.  Emissions  from  spaceborne  or 
 airborne  stations  can  be  particularly  serious  sources  of  interference  to  the  radio  astronomy  service  (see  Nos.  4.5  and  4.6  and  Article  29  of  the  ITU  Radio  Regulations). 


 *  *  *  *  * 
 USwww  In  the  band  74-  76  GHz,  stations  in  the  fixed,  mobile  and  broadcasting  services  shall  not  cause  harmful  interference  to  stations  of  the  Federal  Government  fixed-  satellite  service. 
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 USxxx  In  the  band  92-  95  GHz,  Federal  and  non-  Federal  users  may  operate  low  power,  unlicensed  devices.  In  the  band  92-  92.3  GHz  and  93.2-  94.1  GHz,  Federal  assignments  shall 
 operate  on  a  primary  basis.  In  the  bands  92.3-  93.2  GHz  and  94.1-  95  GHz,  non-  Federal  licensed  systems  shall  operate  on  a  primary  basis  and  Federal  assignments  may  operate  on  a  secondary 
 basis,  except  that  Federal  assignments  at  the  following  military  installations  shall  operate  on  a  primary  basis:  [NTIA  will  supply  the  list  of  large  military  installations  prior  to  the  adoption  of 
 the  Report  and  Order].  USyyy  The  band  75.5-  76  GHz  is  also  allocated  to  the  amateur  and  amateur-  satellite  services  on  a 
 secondary  basis  until  January  1,  2006. 
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 USzzz  In  the  bands  81-  86  GHz,  92-  94  GHz,  and  94.1-  95  GHz,  the  radio  astronomy  service  shall  not  receive  protection  from  other  allocated  services,  except  within  the  maximum  coordination  distances  listed 
 for  the  following  radio  astronomy  observatories. 
 150  kilometer  (93  mile)  radius  centered  on:  Telescope  and  site  North  Latitude  West  Longitude 


 National  Radio  Astronomy  Observatory  (NRAO),  Robert  C.  Byrd  Telescope,  Green  Bank,  WV  38  25'  59''  79  50'  24'' 
 NRAO,  Very  Large  Array,  Socorro,  NM  34  04'  44''  107  37'  06''  University  of  Arizona  12-  m  Telescope,  Kitt  Peak,  AZ  31  57'  10''  111  36'  50'' 
 BIMA  Telescope,  Hat  Creek,  CA  40  49'  04''  121  28'  24''  Caltech  Telescope,  Owens  Valley,  CA  37  13'  54''  118  17'  36'' 
 Five  Colleges  Observatory,  Amherst,  MA  42  23'  33''  72  20'  40''  Haystack  Observatory,  Westford,  MA  42  37'  23''  71  29'  19'' 
 James  Clerk  Maxwell  Telescope,  Mauna  Kea,  HI  19  49'  33''  155  28'  20'' 
 25  kilometer  (15.5  mile)  radius  centered  on:  NRAO,  Very  Long  Baseline  Array  Stations  North  Latitude  West  Longitude 


 Brewster,  WA  48  07'  52''  119  41'  00''  Fort  Davis,  TX  30  38'  06''  103  56'  41'' 
 Hancock,  NH  42  56'  01''  71  59'  12''  Kitt  Peak,  AZ  31  57'  23''  111  36'  45'' 
 Los  Alamos,  NM  35  46'  31''  106  14'  44''  Mauna  Kea,  HI  19  48'  05''  155  27'  19'' 
 North  Liberty,  IA  41  46'  17''  91  34'  27''  Owens  Valley,  CA  37  13'  54''  118  16'  37'' 
 Pie  Town,  NM  34  18'  04''  108  07'  09''  Saint  Croix,  VI  17  45'  24''  64  35'  01'' 


 *  *  *  *  * 
 4.  Part  15  of  Title  47  of  the  Code  of  Federal  Regulations  is  proposed  to  be  amended  as  follows: 


 PART  15    RADIO  FREQUENCY  DEVICES 
 5.  The  authority  citation  continues  to  read  as  follows: 
 AUTHORITY:  47  U.  S.  C.  154,  302,  303,  304,  307,  336  and  544A 
 6.  Section  15.257  is  added  to  Subpart  C  to  read  as  follows: 
   15.257  Operation  within  the  band  92  95  GHz. 
 (a)  Operation  under  the  provisions  of  this  section  is  not  permitted  for  equipment  used  on  aircraft  or  satellites. 
 (b)  Within  the  92-  95  GHz  band,  emission  levels  shall  not  exceed  the  following:  (1)  The  average  power  density  of  any  emission,  measured  during  the  transmit  interval,  shall  not 
 exceed  9  W/  cm  2  ,  as  measured  3  meters  from  the  radiating  structure,  and  the  peak  power  density  of  any  emission  shall  not  exceed  18  W  cm  2  ,  as  measured  3  meters  from  the  radiating  structure. 
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 (2)  Peak  power  density  shall  be  measured  with  an  RF  detector  that  has  a  detection  bandwidth  that  encompasses  the  band  being  used  and  has  a  video  bandwidth  of  at  least  10  MHz,  or  using  an  equivalent 
 measurement  method.  (3)  The  average  emission  limits  shall  be  calculated,  based  on  the  measured  peak  levels,  over  the  actual 
 time  period  during  which  transmission  occurs.  (c)  Limits  on  spurious  emissions: 
 (1)  The  power  density  of  any  emissions  outside  the  band  being  used  band  shall  consist  solely  of  spurious  emissions. 
 (2)  Radiated  emissions  below  40  GHz  shall  not  exceed  the  general  limits  in  Sec.  15.209.  (3)  Between  40  GHz  and  200  GHz,  the  level  of  these  emissions  shall  not  exceed  90  pW/  cm  2  at  a 
 distance  of  3  meters.  (4)  The  levels  of  the  spurious  emissions  shall  not  exceed  the  level  of  the  fundamental  emission. 
 (i)  The  total  peak  transmitter  output  power  shall  not  exceed  500  mW.  (ii)  Fundamental  emissions  must  be  contained  within  the  frequency  bands  specified  in  this  section 
 during  all  conditions  of  operation.  Equipment  is  presumed  to  operate  over  the  temperature  range  -20  to  +50  degrees  celsius  with  an  input  voltage  variation  of  85%  to  115%  of  rated  input  voltage,  unless 
 justification  is  presented  to  demonstrate  otherwise.  (iii)  Regardless  of  the  power  density  levels  permitted  under  this  section,  devices  operating  under  the 
 provisions  of  this  section  are  subject  to  the  radiofrequency  radiation  exposure  requirements  specified  in  47  C.  F.  R.    1.1307(  b),  2.1091  and  2.1093,  as  appropriate.  Applications  for  equipment  authorization  of 
 devices  operating  under  this  section  must  contain  a  statement  confirming  compliance  with  these  requirements  for  both  fundamental  emissions  and  unwanted  emissions.  Technical  information  showing 
 the  basis  for  this  statement  must  be  submitted  to  the  Commission  upon  request. 
 PART  97--  AMATEUR  RADIO  SERVICE 


 7.  The  authority  citation  for  Part  97  continues  to  read  as  follows: 
 Authority:  48  Stat.  1066,  1082,  as  amended;  47  U.  S.  C.  154,  303.  Interpret  or  apply  48  Stat.  1064-  1068,  1081-  1105,  as  amended;  47  U.  S.  C.  151-  155,  301-  609,  unless  otherwise  noted. 


 8.  Section  97.303  is  revised  by  adding  new  paragraph  97.303(  r)(  3)  to  read  as  follows: 
   97.303  Frequency  sharing  requirements. 
 *  *  *  *  * 
 (r)  *  *  * 


 *  *  *  *  * 
 (3)  No  amateur  or  amateur-  satellite  station  transmitting  in  the  75.5-  76  GHz  segment  shall  cause  interference  to,  nor  is  protected  from  interference  due  to  the  operation  of,  stations  in  the  fixed  service.  After 


 January  1,  2006,  the  75.5-  76  GHz  segment  is  no  longer  allocated  to  the  amateur  service  or  to  the  amateur-satellite 


 Part  101  of  title  47  of  the  Code  of  Federal  Regulations  is  proposed  to  be  amended  as  follows: 
 PART  101    FIXED  MICROWAVE  SERVICES 
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 9.  The  authority  citation  for  Part  101  continues  to  read  as  follows: 
 AUTHORITY:  47  U.  S.  C.  154  and  303,  unless  otherwise  noted. 
 10.  Section  101.101  is  amended  by  adding  four  new  entries  in  numerical  order  as  follows: 
   101.101  Frequency  Availablity 
 Radio  Service 
 Frequency  band  (MHz)  Common  carrier 


 (Part  101) 
 Private  radio 
 (Part  101) 
 Broadcast  auxiliary 
 (Part  74) 
 Other  (Parts  15,  21, 
 22,  24,  25,  74,  78  &  100)  Notes 


 *  *  *  *  *  ** 
 71,000-  76,000  CC..  OFS    .  F/  M/  TF 


 81,000-  86,000  CC..  OFS    .  F/  M/  TF 
 92,300-  93,200  CC...  OFS.  .  .  F/  M/  TF. 
 94,100-  95,000  CC...  OFS.  .  .  F/  M/  TF. 


 11.  Section  101.107(  a)  is  amended  by  adding  four  new  entries  in  numerical  order  as  follows: 
   101.107  Frequency  tolerance 
 (a)*  *  *  *  * 
 Frequency  Tolerance  (percent) 
 Frequency  (MHz)  All  fixed  and  base  stations  Mobile  stations  over  3  watts  Mobile  stations  3  watts  or  less 


 *  *  *  **** 
 71,000  to  76,000  \9\  0.03  0.03  0.03 
 81,000  to  86,000  \9\  0.03  0.03  0.03 
 92,300  to  93,200  \9\ 
 94,100  to  95,000  \9\ 


 *  *  * 
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 \9\  Equipment  authorized  to  be  operated  in  the  38,600-  40,000  MHz,  71,000-  76,000  MHz,  81,000-  86,000  MHz,  92,300-  93,200  MHz  and  94,100-  95,000  MHz  bands  are  exempt  from  the  frequency  tolerance 
 requirement  noted  in  the  above  table. 
 *  *  *  *  * 
 12.  Section  101.113(  a)  is  amended  by  adding  four  entries  in  numerical  order  as  follows: 
   101.113  Transmitter  power  limitations 
 (a)  *  *  *  *  * 
 Maximum  Allowable  EIRP  Frequency  band  (MHz) 
 Fixed  (dBW)  Mobile  (dBW) 
 *  *  ***** 
 71,000-  76,000  +55  +55 
 81,000-  86,000  +55  +55 
 92,300-  93,200  +55  +55 
 94,100-  95,000  +55  +55 


 13.  Section  101.147(  a)  is  amended  by  adding  four  entries  in  numerical  order  as  follows: 
   101.147  Frequency  assignments 
 (a)  *  *  *  *  * 
 71,000-  76,000  MHz  \4\  \5\  \11\  \17\  \19\  81,000-  86,000  MHz  \4\  \5\  \11\  \17\  \19\ 


 92,300-  93,200  MHz  \17\  94,100-  95,000  MHz  \17\ 


 *  *  *  *  * 
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 APPENDIX  C 
 LIST  OF  COMMENTERS 
 Comments: 
 The  Boeing  Company 
 DMC  Stratex  Networks,  Inc. 
 Endwave  Corporation 
 Fixed  Wireless  Communications  Coalition 
 Kauai  Economic  Development  Board 
 The  National  Association  of  for  Amateur  Radio  (AARL) 
 Pacific  LightNet 
 The  Personal  Communications  Industry  Association,  Inc. 
 Wireless  Communications  Association  International 
 Reply  Comments: 
 Loea  Communications  Corporation 
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 SEPARATE  STATEMENT  OF  COMMISSIONER  KATHLEEN  Q.  ABERNATHY 
 Re:  Service  Rules  for  Use  of  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  Bands,  Notice  of  Proposed  Rulemaking. 
 As  technology  advances  and  the  pressure  to  find  more  spectrum  increases,  commercial  and  government  research  efforts  increasingly  focus  on  spectrum  in  upper  bands.  There  was  certainly  a  time 
 when  commercial  RF  interests  looked  askance  at  spectrum  at  40  GHz,  let  alone  the  70,  80,  and  90  GHz  bands  we  examine  today.  Innovation,  technological  change,  and  increasing  encumbrances  in  the  lower 
 bands  have  driven  the  regulatory  process  to  open  these  new  bands  to  commercial  operations.  Over  the  past  few  months  I  have  spoken  often  about  the  challenges  presented  by  new  technologies  and  the 
 increasingly  encumbered  FCC-  administered  spectrum  space,  todays  decision  is  the  positive  outgrowth  of  the  spectrum  draught  in  the  lower  bands. 


 As  currently  conceived  the  70,  80  and  90  GHz  bands  will  use  pencil  beams  of  radio  energy  to  transmit  data  relatively  short  distances  between  fixed  sites.  In  many  cases  there  could  be  thousands  of 
 these  hops  in  a  relatively  small  geographic  area    but  because  of  the  narrow  beam  it  is  believed  multiple  systems  can  co-  exist  without  interference.  This  deployment  model  is  unlike  anything  we  have  ever  seen 
 and  may  require  new  thinking  on  the  appropriate  licensing  approach. 
 As  I  have  stated  before,  spectrum  management  in  our  age  requires  that  we  consider  the  full  panoply  of  tools  that  Congress  gave  us  for  spectrum  distribution:  licensed  and  unlicensed,  site-  by-  site  and 
 geographic,  large  and  small  service  areas,  paired  and  unpaired.  Here  I  strongly  believe  that  this  new  technology  requires  a  cautious  approach  to  the  licensing  question.  That  is,  I  am  not  prepared  to 
 tentatively  conclude  that  an  auction  or  even  licensing  is  required.  I  am  pleased  that  the  item  reflects  this  approach  and  I  look  forward  to  a  full  record  on  this  issue  with  the  type  of  creative  thinking  that  new 
 technologies  may  require  to  succeed. 
 Commercial  operations  also  must  share  these  new  bands  with  federal  government  spectrum  users.  However,  we  have  an  obligation  to  ensure  that  our  new  licensees  are  not  ultimately  surprised  to  learn  that 
 the  nature  of  the  federal  government  uses  in  a  band  preclude  commercial  development.  I  understand  that  some  of  this  information  regarding  government  systems  is  classified,  but  we  must  find  a  way  to  protect 
 national  security  while  also  developing  the  commercial  spectrum  resource.  I  look  forward  to  working  with  my  colleagues  at  NTIA  to  ensure  the  greatest  transparency  possible  in  this  and  other  bands. 


 *  *  *  *  * 
 Thanks  to  Loea  Communications  Corporation    the  party  that  petitioned  for  the  rulemaking  we  begin  today,  the  other  innovators  in  the  bands,  and  the  hard  work  of  OET  and  the 
 WTB,  with  todays  Notice  we  begin  to  open  a  new  spectrum  frontier  for  the  American  people. 
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 STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS 
 RE:  In  the  Matter  of  Service  Rules  for  Use  of  the  71-  76  GHz,  81-  86  GHz  and  92-  95  GHz  Bands, 
 Notice  of  Proposed  Rulemaking. 


 I  want  to  commend  the  Chairman,  the  Wireless  Bureau  and  OET  for  initiating  this  proceeding.  Todays  NPRM  begins  the  process  of  commercializing  around  13  GHz    or  13,000  MHz    of  spectrum. 
 We  may  be  dealing  with  apples  and  oranges  in  comparing  this  spectrum  with  other  bands,  but  thats  as  much  spectrum  as  currently  occupied  by  all  AM  and  FM  broadcasting,  all  the  television  channels,  all  of 
 the  CMRS  spectrum,  all  the  way  up  to  the  DBS  bands.  Thats  a  lot  of  room  to  cover  with  one  NPRM,  so  good  work. 


 Im  glad  that  we  leave  this  NPRM  open,  with  few  tentative  conclusions.  These  bands  are  very  different  than  most  of  our  other  bands,  and  we  should  keep  our  minds  open.  Im  particularly  glad  to  see 
 that  we  seek  comments  on  where  unlicensed  operations  are  feasible.  Unlicensed  service  has  had  great  success  elsewhere,  and  we  should  do  our  best  to  explore  this  option  when  we  encounter  new 
 opportunities. 
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 SEPARATE  STATEMENT  OF  COMMISSIONER  KEVIN  J  .  MARTIN 
 Re:  Allocations  and  Service  Rules  for  the  71-  76  GHz,  81-  86  GHz,  and  92-  95  GHz  Bands;  Loea  Communications  Corporation  Petition  for  Rulemaking,  Notice  of  Proposed  Rulemaking,  WT 
 Docket  No.  02-  146,  RM-  10288 
 I  am  pleased  to  approve  this  item,  which  initiates  a  rulemaking  to  enable  commercial  use  of  the  71-  76  GHz,  81-  86  GHz,  and  92-  95  GHz  bands.  As  I  have  previously  discussed,  the  amount  of  available 
 spectrum  is  ultimately  limited  only  by  technology.  See  generally  Separate  Statement  of  Commissioner  Kevin  J.  Martin,  Amendment  of  Part  2  of  the  Commissions  Rules  To  Allocate  Spectrum  Below  3  GHz  for 
 Mobile  and  Fixed  Services  To  Support  the  Introduction  of  New  Advanced  Wireless  Services,  Including  Third  Generation  Wireless  Systems,  Memorandum  Opinion  and  Order  and  Further  Notice  of  Proposed 
 Rulemaking,  16  FCC  Rcd  16043  (2001).  This  item  is  a  perfect  illustration  of  that  point.  The  71-  76  GHz,  81-  86  GHz,  and  92-  95  GHz  bands    which  have  wavelengths  of  about  three  to  five  millimeters    have 
 never  before  been  used  commercially,  and  it  was  previously  unclear  how  these  bands  could  be  used.  Now,  commercial  interests  are  experimenting  with  different  uses  for  these  bands,  and  this  spectrum  may 
 ultimately  be  used  commercially  for  high-  speed  wireless  local  area  networks,  broadband  access  systems  for  the  Internet,  point-  to-  point  communications,  and  point-  to-  multipoint  communications.  I  am  glad  that, 
 through  this  rulemaking,  we  can  enable  these  kinds  of  commercial  uses. 
 While,  at  present,  the  Commission  must  regard  spectrum  as  a  scarce  natural  resource,  I  am  hopeful  that  future  technological  development  will  reduce  this  sense  of  scarcity    by  allowing  us  to  use 
 previously  unusable  spectrum  bands  and  enabling  us  to  use  the  spectrum  we  are  already  using  more  efficiently.  Todays  item  only  increases  my  optimism. 
71