[Federal Register Volume 86, Number 43 (Monday, March 8, 2021)]
[Proposed Rules]
[Pages 13266-13278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04115]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2, 15, 25, 27 and 101

[WT Docket No. 20-443, GN Docket No. 17-183, RM-11768 (Proceeding 
Terminated); FCC 21-13; FRS 17479]


Expanding Flexible Use of the 12.2-12.7 GHz Band

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission seeks comment on whether it 
could add a new Mobile allocation or expanded terrestrial service 
rights in 500 megahertz of mid-band spectrum between 12.2-12.7 GHz (12 
GHz band) without causing harmful interference to incumbent licensees. 
Assuming the Commission could do so, it seeks comment on whether that 
action would promote or hinder the delivery of next-generation services 
in the 12 GHz band given the existing and emergent services offered by 
incumbent licensees. The Commission proceeds mindful of the significant 
investments made by incumbents and values the public interest benefits 
that could flow from investments made to provide satellite broadband 
services, particularly in rural and other underserved communities that 
might be more expensive to serve through other technologies. The 
Commission believes that it is appropriate, however, to initiate a 
rulemaking proceeding to allow interested parties to address whether 
additional operations can be accommodated in the band while protecting 
incumbent operations from harmful interference and for the Commission 
to assess the public interest considerations associated with adding a 
new allocation.

DATES: Comments due on or before April 7, 2021 and reply comments due 
on or before May 7, 2021.

ADDRESSES: You may submit comments, identified by WT Docket No. 20-443 
and GN Docket No. 17-183, by any of the following methods:
    <bullet> Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: https://www.fcc.gov/ecfs.
    <bullet> Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. If more than one docket 
or rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by commercial overnight courier, or by first-
class or overnight U.S. Postal Service mail. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
    <bullet> Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
    <bullet> U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 45 L Street NE, Washington DC 20554.
    <bullet> Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health

[[Page 13267]]

and safety of individuals, and to mitigate the transmission of COVID-
19.
    <bullet> During the time the Commission's building is closed to the 
general public and until further notice, if more than one docket or 
rulemaking number appears in the caption of a proceeding, paper filers 
need not submit two additional copies for each additional docket or 
rulemaking number; an original and one copy are sufficient.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#a0c6c3c3959094e0c6c3c38ec7cfd6"><span class="__cf_email__" data-cfemail="dcbabfbfe9ece89cbabfbff2bbb3aa">[email protected]</span></a> or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).

FOR FURTHER INFORMATION CONTACT: Madelaine Maior of the Wireless 
Telecommunications Bureau, Broadband Division, at 202-418-1466 or 
<a href="/cdn-cgi/l/email-protection#cd80aca9a8a1aca4a3a8e380aca4a2bf8dabaeaee3aaa2bb"><span class="__cf_email__" data-cfemail="521f3336373e333b3c377c1f333b3d20123431317c353d24">[email protected]</span></a>; or Simon Banyai of the Wireless 
Telecommunications Bureau, Broadband Division, at 202-418-1443 or 
<a href="/cdn-cgi/l/email-protection#eab983878584c4a88b84938b83aa8c8989c48d859c"><span class="__cf_email__" data-cfemail="84d7ede9ebeaaac6e5eafde5edc4e2e7e7aae3ebf2">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:  This is a summary of the Commission's 
Notice of Proposed Rulemaking (NPRM), in WT Docket No. 20-443; FCC 21-
13, adopted on January 2, 2021 and released on January 15, 2021. The 
full text of this document is available electronically via the FCC's 
website at https://docs.fcc.gov/public/attachments/FCC-21-13A1.pdf or 
via the FCC's Electronic Comment Filing System (ECFS) website at http://www.fcc.gov/ecfs. (Documents will be available electronically in 
ASCII, Microsoft Word, and/or Adobe Acrobat.) Alternative formats are 
available for people with disabilities (braille, large print, 
electronic files, audio format), by sending an email to <a href="/cdn-cgi/l/email-protection#385e5b5b0d080c785e5b5b165f574e"><span class="__cf_email__" data-cfemail="8aece9e9bfbabecaece9e9a4ede5fc">[email protected]</span></a> 
or calling the Commission's Consumer and Governmental Affairs Bureau at 
(202) 418-0530 (voice), (202) 418-0432 (TTY).

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980, as amended (RFA), requires 
that a regulatory flexibility analysis be prepared for notice and 
comment rulemaking proceedings, unless the agency certifies that ``the 
rule will not, if promulgated, have a significant economic impact on a 
substantial number of small entities.'' Accordingly, the Commission has 
prepared an Initial Regulatory Flexibility Analysis (IRFA) concerning 
potential rule and policy changes contained in this NPRM. The IRFA is 
set forth in Appendix A, visit https://www.fcc.gov/edocs.

Paperwork Reduction Act

    This NPRM may contain potential new or revised information 
collection requirements. Therefore, the Commission seeks comment on 
potential new or revised information collections subject to the 
Paperwork Reduction Act of 1995. If the Commission adopts any new or 
revised information collection requirements, the Commission will 
publish a notice in the Federal Register inviting the general public 
and the Office of Management and Budget to comment on the information 
collection requirements, as required by the Paperwork Reduction Act of 
1995, Public Law 104-13. In addition, pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4), the Commission seeks specific comment on how it might 
further reduce the information collection burden for small business 
concerns with fewer than 25 employees.

Ex Parte Rules

    Pursuant to Sec.  1.1200(a) of the Commission's rules, this NPRM 
shall be treated as a ``permit-but-disclose'' proceeding in accordance 
with the Commission's ex parte rules. Persons making ex parte 
presentations must file a copy of any written presentation or a 
memorandum summarizing any oral presentation within two business days 
after the presentation (unless a different deadline applicable to the 
Sunshine period applies). Persons making oral ex parte presentations 
are reminded that memoranda summarizing the presentation must (1) list 
all persons attending or otherwise participating in the meeting at 
which the ex parte presentation was made, and (2) summarize all data 
presented and arguments made during the presentation. If the 
presentation consisted in whole or in part of the presentation of data 
or arguments already reflected in the presenter's written comments, 
memoranda or other filings in the proceeding, the presenter may provide 
citations to such data or arguments in his or her prior comments, 
memoranda, or other filings (specifying the relevant page and/or 
paragraph numbers where such data or arguments can be found) in lieu of 
summarizing them in the memorandum. Documents shown or given to 
Commission staff during ex parte meetings are deemed to be written ex 
parte presentations and must be filed consistent with rule 1.1206(b). 
In proceedings governed by rule 1.49(f) or for which the Commission has 
made available a method of electronic filing, written ex parte 
presentations and memoranda summarizing oral ex parte presentations, 
and all attachments thereto, must be filed through the electronic 
comment filing system available for that proceeding, and must be filed 
in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). 
Participants in this proceeding should familiarize themselves with the 
Commission's ex parte rules.

Synopsis

I. Background

    1. In the United States, the 12 GHz band is allocated on a primary 
basis for non-Federal use for Broadcasting Satellite Service (BSS) 
(referred to domestically in the band as Direct Broadcast Satellite 
(DBS), Fixed Satellite Service (space-to-Earth) limited to non-
geostationary orbit systems (NGSO FSS), and Fixed Service.\1\ While 
these three services are co-primary, NGSO FSS and Fixed Service are 
allocated on a non-harmful interference basis with respect to BSS.\2\
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    \1\ See 47 CFR 2.106, United States Table of Frequency 
Allocations, non-Federal Table for the band 12.2-12.7 GHz. NGSO FSS 
(space-to-Earth) operations are authorized pursuant to international 
footnote 5.487A, which provides additional allocations including in 
Region 2 as follows:
    [The 12.2-12.7 GHz is] allocated to the fixed-satellite service 
(space-to-Earth) on a primary basis, limited to non-geostationary 
systems and subject to application of the provisions of [ITU Radio 
Regulations] No. 9.12 for coordination with other non-geostationary-
satellite systems in the fixed-satellite service. Non-geostationary-
satellite systems in the fixed-satellite service shall not claim 
protection from geostationary-satellite networks in the 
broadcasting-satellite service operating in accordance with the 
Radio Regulations, irrespective of the dates of receipt by the [ITU 
Radiocommunication] Bureau of the complete coordination or 
notification information, as appropriate, for the non-geostationary-
satellite systems in the fixed-satellite service and of the complete 
coordination or notification information, as appropriate, for the 
geostationary-satellite networks, and [international footnote] No. 
5.43A does not apply. Non-geostationary-satellite systems in the 
fixed-satellite service in the [12 GHz band] shall be operated in 
such a way that any unacceptable interference that may occur during 
their operation shall be rapidly eliminated.
    47 CFR 2.106, n.5.487A. When an international footnote is 
applicable without modification to non-Federal operations, the 
Commission places the footnote on the non-Federal Table. See 47 CFR 
2.105(d)(5).
    \2\ See 47 CFR 2.106, n.5.490 (International Footnote). In 
Region 2, in the 12.2-12.7 GHz band, existing and future terrestrial 
radiocommunication services shall not cause harmful interference to 
the space services operating in conformity with the broadcasting 
satellite Plan for Region 2 contained in Appendix 30. ``Harmful 
Interference'' is defined under the Commission's rules as 
``[i]nterference which endangers the functioning of a 
radionavigation service or of other safety services or seriously 
degrades, obstructs, or repeatedly interrupts a radiocommunication 
service operating in accordance with the ITU Radio Regulations.'' 47 
CFR 2.1(c).

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[[Page 13268]]

    2. NGSO FSS operators also have a non-federal co-primary downlink 
allocation and access to the 10.7-12.2 GHz band on a co-primary basis 
with Fixed Service in 10.7-11.7 GHz and on a primary basis from 11.7-
12.2 GHz.\3\ Meanwhile, the adjacent frequencies above the band, 12.7-
12.75 GHz, are allocated for non-federal Fixed Service, FSS, and Mobile 
Service.
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    \3\ See 47 CFR 2.106. See also Update to Parts 2 and 25 
Concerning Non-Geostationary, Fixed-Satellite Service Systems and 
Related Matters, Report and Order and Further Notice of Proposed 
Rulemaking, 32 FCC Rcd 7809 (2017) (2017 NGSO Order). FSS is co-
primary with Fixed Service for individually licensed earth stations. 
Individually licensed FSS earth stations require coordination with 
co-primary Fixed Service. The 2017 NGSO Order also adopted rules to 
allow blanket earth station licensing for NGSOs in the 10.7-11.7 GHz 
band on an unprotected basis relative to terrestrial Fixed Service. 
As a result, blanket earth station licenses for NGSOs cannot claim 
interference protection from terrestrial Fixed Service in the band. 
Id. at 7817, paras. 24-25.
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    3. Currently there are three services authorized and operating in 
the band: DBS providers operating under the primary BSS allocation, 
Multi-Channel Video and Data Distribution Service (MVDDS) licensees 
operating on a non-harmful interference basis to DBS under the co-
primary Fixed Service allocation, and NGSO licensees operating on a 
non-harmful interference basis to DBS under the co-primary NGSO FSS 
allocation. The Commission's rules enable sharing between co-primary 
NGSO FSS and MVDDS using a combination of technical limitations, 
information sharing, and first-in-time procedures.\4\
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    \4\ See 47 CFR 101.113(a) n.11, 101.147(p).
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    4. The Commission added the DBS allocation in the early 1980s \5\ 
and DBS service began in 1994.\6\ In 1996 and 2004, some of these 
licenses were awarded by competitive bidding.\7\ In 2000, the 
Commission permitted a new terrestrial service, MVDDS, to operate in 
the 12 GHz band under the existing Fixed Service allocation on a co-
primary, non-harmful interference basis to the incumbent DBS providers, 
and on a co-primary basis to NGSO FSS.\8\ The Commission also adopted 
rules to permit NGSO FSS operations in the 12 GHz band at this same 
time.\9\
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    \5\ See Inquiry into the Development of Regulatory Policy in 
Regard to Direct Broadcast Satellites for the Period Following the 
1983 Regional Administrative Radio Conference, Report and Order, 90 
FCC2d 676 (1982), recon. denied, 53 RR2d 1637 (1983).
    \6\ See Revision of Rules and Policies for the Direct Broadcast 
Satellite Service, Report and Order, 11 FCC 9712 (1995). DBS 
operations are subject to the International Telecommunication (ITU) 
Radio Regulations BSS and Feeder Link Plans contained in Appendices 
30 and 30A.
    \7\ In 1996 the Commission held two auctions for DBS orbital 
slots at 110[deg] and 148[deg] in 1996. See, e.g., https://www.fcc.gov/auction/8; https://www.fcc.gov/auction/9. In 2004, the 
Commission held an auction for three licenses for certain channels 
at DBS orbital slots at 175,[deg] 166[deg] and 157[deg] but this 
auction was nullified. See Direct Broadcast Satellite (DBS) Service 
Auction Nullified: Commission Sets Forth Refund Procedures for 
Auction No. 52 Winning Bidders and Adopts a Freeze on All New DBS 
Service Applications, Public Notice, 20 FCC Rcd 20618, 20618 & n.3 
(2005) (citing Northpoint Technology, Ltd. v. FCC, 412 F.3d 145 (DC 
Cir. 2005)). In its decision, the Appellate Court vacated and 
remanded the section of the DBS Auction Order that concluded that 
DBS is not subject to the auction prohibition of the Open-Market 
Reorganization for the Betterment of International 
Telecommunications Act, Public Law 106-180, 114 Stat. 48 section 647 
(enacted Mar. 12, 2000), codified at 47 U.S.C. 765f (ORBIT Act). Id. 
at n.3
    \8\ See Amendment of Parts 2 and 25 of the Commission's Rules to 
Permit Operation of NGSO FSS Systems Co-Frequency with GSO and 
Terrestrial Systems in the Ku-Band Frequency Range, Amendment of the 
Commission's Rules to Authorize Subsidiary Terrestrial Use of the 
12.2-12.7 GHz Band by Direct Broadcast Satellite Licensees and Their 
Affiliates; and Applications of Broadwave USA, PDC Broadband 
Corporation, and Satellite Receivers, Ltd. to Provide A Fixed 
Service in the 12.2-12.7 GHz Band, ET Docket No. 98-206, First 
Report and Order and Further Notice of Proposed Rule Making, 16 FCC 
Rcd 4096, 4177, para. 213 (2000) (First R&O and FNPRM).
    \9\ Id. at 4099-4100, para. 2; see also Establishment of 
Policies and Service Rules for the Non-Geostationary Satellite 
Orbit, Fixed Satellite Service in the Ku-band, IB Docket No. 01-96, 
Report and Order, 17 FCC Rcd 7841 (2002).
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    5. The service rules for MVDDS permit one-way digital fixed non-
broadcast service, including one-way direct-to-home/office wireless 
service.\10\ To protect DBS, the Commission adopted technical rules to 
ensure that MVDDS stations would not cause harmful interference to DBS 
and imposed extensive coordination requirements on MVDDS licensees for 
each proposed station.\11\ These rules include detailed frequency 
coordination procedures, interference protection criteria, and 
limitations on signal emissions, transmitter power levels, and 
transmitter locations.\12\ In particular, the rules limit the effective 
isotropic radiated power (EIRP) for MVDDS stations to 14.0 dBm per 24 
megahertz (-16.0 dBW per 24 megahertz).\13\
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    \10\ See 47 CFR 101.1407 (two-way services can be provided using 
spectrum in other bands for the return link). See also Amendment of 
Parts 2 and 25 of the Commission's 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 and Second Report 
and Order, 17 FCC Rcd 9614 (2002) (MVDDS Second Report and Order) 
(aff'd Northpoint Technology, LTD et al. v. FCC, 414 F.3d 61 (DC 
Cir. 2005)).
    \11\ See 47 CFR 101.1440.
    \12\ See, e.g., MVDDS Second Report & Order, 17 FCC Rcd at 9634-
9664 paras. 53-125; 9690-9695 paras. 196-209; 47 CFR 25.139 (NGSO 
FSS coordination and information sharing between MVDDS licensees in 
the 12.2 GHz to 12.7 GHz band); 25.208(k) (Power flux density 
limits); 101.103 (Frequency coordination procedures); 101.105 
(Interference protection criteria); 101.111 (Emission limitations); 
101.113 (Transmitter power limitations); 101.129 (Transmitter 
location); 101.1409 (Treatment of incumbent licensees); 101.1440 
(MVDDS protection of DBS).
    \13\ See 47 CFR 101.113(a) n.11; 101.147(p). The EIRP limit for 
MVDDS is expressed as a power spectral density, i.e., 14 dBm per 24 
megahertz of spectrum. Herein the Commission occasionally refers to 
EIRP levels in shorthand, e.g., ``14 dBm.'' The Commission clarifies 
that these shorthand references are for convenience only.
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    6. To accommodate co-primary DBS earth stations that must be 
protected from interference caused by MVDDS, an MVDDS licensee may not 
begin operation unless it can ensure that the equivalent power flux 
density (EPFD) \14\ from a proposed transmitting antenna does not 
exceed the applicable EPFD limit at any DBS subscriber location.\15\ 
Specifically, an MVDDS licensee cannot begin operation in the 12 GHz 
band unless it can ensure that the signal from its proposed 
transmitting antenna will not exceed certain specified EPFD limits at 
the receive antennas of any DBS customers of record (i.e., those who 
have had their antenna installed either before or within 30 days after 
the MVDDS licensee provides 90-days notice to DBS licensees of its 
intent to commence operations).\16\ Accordingly, when an MVDDS licensee 
is proposing to deploy a transmitting antenna, it must conduct a survey 
of the area around its proposed transmitting antenna site to determine 
the location of all DBS customers of record that may potentially be 
affected by its service.\17\ After coordinating a proposed transmitter 
with DBS licensees, the MVDDS licensee must remediate all complaints of 
interference to DBS customers of record for one year after it begins 
operating the transmitter.\18\ Going forward, the burden shifts to DBS 
licensees for new customers (and after one year for the customers of 
record) to take into account the presence of the MVDDS operations and 
ensure that DBS subscribers do not suffer interference from previously 
coordinated MVDDS stations.\19\ The Commission found that these and the 
other technical requirements would ensure that any interference caused 
to DBS customers

[[Page 13269]]

will not exceed a level that is considered permissible.\20\
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    \14\ The EPFD is the power flux density produced at a DBS 
receive earth station, taking into account shielding effects and the 
off-axis discrimination of the receiving antenna assumed to be 
pointing at the appropriate DBS satellite(s) from the transmitting 
antenna of a MVDDS transmit station. 47 CFR 101.105(a)(4)(ii)(A).
    \15\ The Commission established different EPFD limits in four 
regions of the U.S., see 47 CFR 101.105(a)(4)(ii)(B), mainly due to 
differences in rainfall in each region. See, e.g., MVDDS Second 
Report & Order, 17 FCC Rcd at 9691, para. 197.
    \16\ See 47 CFR 101.1440(a).
    \17\ See 47 CFR 101.1440(b).
    \18\ See 47 CFR 101.1440(g).
    \19\ See 47 CFR 101.1440(e) & (g).
    \20\ See, e.g., MVDDS Second Report & Order, 17 FCC Rcd at 9640-
9663 paras. 67-125, 9691-92, 198; see also 47 CFR 2.1 (defining 
harmful interference).
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    7. The Commission also enabled sharing between co-primary NGSO FSS 
and MVDDS using a combination of technical limitations, information 
sharing, and first-in-time procedures.\21\ Specifically, these two 
services gain priority based on a first-in-time, first-in-right 
approach, under which NGSO FSS receivers and MVDDS transmitting systems 
are afforded priority in the 12 GHz band portion of spectrum vis-
[agrave]-vis each other based on which deployed earlier.\22\
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    \21\ See 47 CFR 101.113(a) n.11; 101.147(p).
    \22\ See 47 CFR 101.103(f)(1); see also 47 CFR 101.105(a)(4)(i) 
(limiting the PFD level beyond 3 km from an MVDDS station to -135 
dBW/m\2\ in any 4 kHz measured and/or calculated at the surface of 
the earth), 101.129(b) (prohibiting location of MVDDS transmitting 
antennas within 10 km of any qualifying NGSO FSS receiver absent 
mutual agreement of the licensees).
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    8. Most recently, in 2016 and 2017, proponents of a new generation 
of NGSO FSS systems sought Commission authority for planned 
constellations of hundreds or thousands of small satellites using 
several frequency bands, including the 12 GHz band, and in 2017, the 
Commission updated its rules to enable the deployment of these emerging 
systems.\23\
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    \23\ See Update to Parts 2 and 25 Concerning Non-Geostationary, 
Fixed-Satellite Service Systems and Related Matters, Report and 
Order and Further Notice of Proposed Rulemaking, 32 FCC Rcd 7809 
(2017) (recon. pending).
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    9. Two U.S.-licensed DBS providers, DISH Network L.L.C. (DISH) and 
DIRECTV \24\ use the band throughout the US to provide DBS directly 
from geostationary-orbit (GSO) satellites to relatively small dish 
antennas at tens of millions of individual homes and businesses. 
DIRECTV and DISH Network had over 22 million combined subscribers as of 
the third quarter of 2020.\25\ Meanwhile, eight companies (10 legal 
entities) currently hold 191 of 214 MVDDS licenses.\26\
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    \24\ DIRECTV became a subsidiary of AT&T in July 2015. See, 
e.g., Applications of AT&T, Inc. and DIRECTV for Consent to Assign 
or Transfer Control of Licenses and Authorizations, MB Docket No. 
14-90, Memorandum Opinion and Order, 30 FCC Rcd 9131 (2015). Herein 
the Commission refers to AT&T and DIRECTV interchangeably.
    \25\ See S&P Market Intelligence, Multichannel Operators by DMA 
(Q3 2020).
    \26\ The remaining 23 licenses automatically terminated for 
failure to meet the buildout requirement. See Requests of Three 
Licensees of 22 Licenses in the Multichannel Video and Data 
Distribution Service for Extension of Time to Meet the Final 
Buildout Requirement for Providing Substantial Service under Sec.  
101.1413 of the Commission's Rules, Applications of Three Licensees 
for Renewal of 22 Licenses in the Multichannel Video and Data 
Distribution Service, Order, 33 FCC Rcd 10757 (WTB BD Oct. 29, 
2018). See also Blumenthal DTV LLC, Call Sign WQAR709 (Terminated 
July 26, 2014).
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    10. In April 2016, the MVDDS 5G Coalition, which included eleven of 
the twelve MVDDS licensees at that time, filed a Petition for 
Rulemaking requesting reforms to the rules for the 12 GHz band.\27\ The 
Petition seeks commencement of a rulemaking proceeding to: (i) Add a 
Mobile allocation at 12.2-12.7 GHz to the Non-Federal Table of 
Frequency Allocations, (ii) delete or demote to secondary the 
``unused'' NGSO FSS allocation in this band from the Non-Federal Table 
of Frequency Allocations, (iii) allow MVDDS licensees to provide two-
way, point-to-point or mobile broadband service, (iv) eliminate the 
MVDDS effective isotropic radiated power (EIRP) limit, and (v) seek 
comment on easing the four regional equivalent power flux density 
(EPFD) limits.
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    \27\ Petition of MVDDS 5G Coalition Petition for Rulemaking, RM-
11768, filed Apr. 26, 2016 (MVDDS 5G Coalition Petition). See also 
Petition for Rulemakings Filed, Public Notice, Report No. 3042 (May 
9, 2016) (Petition Public Notice). In its most recent filing, the 
Coalition's members were reported to be: Cass Cable TV, Inc. (Cass 
Cable), DISH Network L.L.C., Go Long Wireless, LTD. (Go Long 
Wireless), MDS Operations, Inc., MVD Number 53 Partners, Satellite 
Receivers, Ltd., SOUTH.COM LLC, Story Communications, LLC, and 
Vision Broadband, LLC (Vision Broadband). See Letter from Chad 
Winters, Cass Cable, to Marlene H. Dortch, Secretary, FCC, Docket 
No. RM-11768, at 1 (filed May. 28, 2019) (MVDDS 5G Coalition May 28, 
2019 Ex Parte). The Commission notes that MDS Operations 
subsequently assigned its remaining 60 MVDDS licenses to RS Access.
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    11. The Coalition contended that the (then) 15-year-old MVDDS rules 
did not account for the ``urgent national priority'' to make additional 
spectrum available for 5G mobile services or the intervening 
technological developments that would now make it feasible to provide 
two-way mobile broadband services in the band while simultaneously 
protecting DBS from harmful interference.\28\ The Coalition stated that 
``5G services have unique attributes that facilitate sharing in high 
frequency bands, such as the MVDDS band, since they can be used in a 
localized way to provide capacity relief in urban canyons and 
indoors.'' \29\ In conjunction with its Petition, the Coalition 
provided two Coexistence Studies that it claimed illustrate that the 
new rules it was proposing would protect DBS operators in the band but 
that they would be incompatible with NGSO FSS.\30\
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    \28\ See MVDDS 5G Coalition Petition at 17-18; MVDDS 5G 
Coalition Reply at 3.
    \29\ MVDDS 5G Coalition Reply at 3. The Coalition notes that, 
``with the emergence of 5G, higher spectrum bands can be used to 
provide much needed broadband capacity relief using targeted, small 
cell deployments (such as in buildings and at urban street level 
locations) that present a lower interference potential than 
traditional wide-area macrocell deployments in lower frequency 
bands. Additionally, advanced antenna techniques like 
``beamforming'' and ``beamsteering'' allow better control of 
transmitter energy, enabling transmissions to be more narrowly 
focused to desired locations (and away from receivers with which 
they might interfere) dynamically.'' MVDDS 5G Coalition Petition at 
18.
    \30\ MVDDDS 5G Coalition Comments, Attach. 1, MVDDS 12.2-12.7 
GHz Co-Primary Service Coexistence (Coexistence 1) and MVDDS 5G 
Coalition Reply, Appx. A, MVDDS 12.2-12.7 GHZ Co-Primary Service 
Coexistence II (Coexistence 2) (collectively, Coexistence Studies).
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    12. In the intervening four years, the Commission has taken action 
to make additional spectrum available for 5G services.\31\ In 2020, the 
Commission initiated a proceeding to consider rule changes to allow the 
provision of 5G backhaul and broadband to ships and aircraft in motion 
in the 70/80/90 GHz bands. Additionally in 2020, the Commission took 
action to make available 280 megahertz of 3.7-4.2 GHz band spectrum 
while relocating existing satellite operations to the upper part of the 
band. Also in 2020 the Commission modernized certain rules governing 
the 800 MHz and took action to expand unlicensed broadband 
opportunities in the 6 GHz band. In 2019 the Commission completed 
Auction 101, licensing 850 megahertz of spectrum for flexible use in 
the 28 GHz band. In

[[Page 13270]]

Auction 102, the Commission licensed 700 megahertz of spectrum for 
flexible use in the 24 GHz band. In Auction 103 the Commission licensed 
3,400 megahertz of spectrum for flexible use in the upper 37 GHz band, 
the 39 GHz band, and the 47 GHz band. Also in 2019, the Commission 
proposed to reconfigure the 900 MHz band to facilitate the development 
of broadband technologies and services.\32\ The Commission has also 
taken steps to provide new opportunities for innovators and 
experimenters between 95 GHz and 3 THz.\33\ In 2018, the Commission 
proposed providing greater flexibility to current EBS licensees and new 
opportunities to obtain unused spectrum in the 2.5 GHz band \34\ and 
changed the rules governing Priority Access Licenses (PALs) to spur 5G 
investment and deployment in the 3.5 GHz band. In 2017, the Commission 
completed Auction 1002, licensing 70 megahertz of spectrum for flexible 
use in the 600 MHz band.
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    \31\ Since the Petition was filed in 2016, the Commission has 
taken action in several proceedings to make more than six gigahertz 
of spectrum available for 5G service, including 4,950 megahertz of 
high-band spectrum, over 500 megahertz of mid-band spectrum, and 
several swaths of low-band spectrum. See e.g., Modernizing and 
Expanding Access to the 70/80/90 GHz Bands, et al, Notice of 
Proposed Rulemaking and Order, 35 FCC Rcd 6039 (2020); Unlicensed 
Use of the 6 GHz Band; Expanding Flexible Use in Mid-Band Spectrum 
Between 3.7 and 24 GHz, Report and Order, 35 FCC Rcd 3852 (2020); 
Review of the Commission's Rules Governing the 896-901/935-940 MHz 
Band, Report and Order, 35 FCC Rcd 5183 (2020); Improving Public 
Safety Communications in the 800 MHz Band, Report and Order, 35 FCC 
Rcd 4935 (2020); Incentive Auction of Upper Microwave Flexible Use 
Service Licenses in the Upper 37 GHz, 39 GHz, and 47 GHz Bands for 
Next-Generation Wireless Services Closes; Winning Bidders Announced 
for Auction 103, Public Notice, 35 FCC Rcd 2015 (2020); Winning 
Bidders Announced for Auction of 28 GHz Upper Microwave Flexible Use 
Service Licenses (Auction 101), Public Notice, 34 FCC Rcd 4279 
(2019); Auction of 24 GHz Upper Microwave Flexible Use Service 
Licenses Closes; Winning Bidders Announced for Auction 102, Public 
Notice, 34 FCC Rcd 4296 (2019); Transforming the 2.5 GHz Band, 
Notice of Proposed Rulemaking, 33 FCC Rcd 4687 (2018); Promoting 
Investment in the 3550-3700 MHz Band, Report and Order, 33 FCC Rcd 
10598 (2018); Expanding Flexible Use of the 3.7 to 4.2 GHz Band, 
Order and Notice of Proposed Rulemaking, 33 FCC Rcd 6915 (2018); 
Incentive Auction Task Force and Wireless Telecommunications Bureau 
Grant 600 MHz Licenses, Public Notice, 33 FCC Rcd 869 (2018). See 
also Federal Communications Commission, The FCC's 5G FAST Plan, 
https://www.fcc.gov/5G (last visited Jan. 7, 2021).
    \32\ Review of the Commission's Rules Governing the 896-901/935-
940 MHz Band, Report and Order, 35 FCC Rcd 5183 (2020).
    \33\ FCC Opens Spectrum Horizons for New Services & 
Technologies, Report and Order, 34 FCC Rcd 1605 (2019).
    \34\ Transforming the 2.5 GHz Band, Notice of Proposed 
Rulemaking, 33 FCC Rcd 4687 (2018).
---------------------------------------------------------------------------

    13. The MVDDS 5G Coalition Petition also preceded a 2016 processing 
round to accept NGSO FSS applications and petitions for market access 
in several frequency bands and the Commission's reforms to its NGSO FSS 
rules.\35\ In 2017, the Commission granted the first of the new 
generation requests--a petition for market access by WorldVu Satellites 
Limited (OneWeb) for a planned Low Earth Orbit (LEO) NGSO satellite 
system of 720 satellites authorized by the United Kingdom in the 10.7-
12.7 GHz Band (in addition to several other bands).\36\ The Commission 
concluded that ``the pendency of the MVDDS 5G Coalition's Petition for 
Rulemaking was not a sufficient reason to delay or deny these requests 
to use the band under the existing NGSO FSS allocation and service 
rules.'' \37\ In granting this request, however, the Commission 
conditioned access to the 12 GHz band on the outcome of the MVDDS 5G 
Coalition's Petition and any other rulemaking initiated on the 
Commission's own motion.\38\ The Commission also agreed with comments 
of the MVDDS 5G Coalition that MVDDS should not have to protect any 
non-fixed NGSO-FSS operations in the band, if authorized in the future, 
because such operations had not been contemplated under the 
longstanding first-in-time MVDDS/NGSO FSS sharing approach.\39\
---------------------------------------------------------------------------

    \35\ See Satellite Policy Branch Information; OneWeb Petition 
Accepted for Filing (IBFS File No. SAT-LOI-20160428-00041), Cut-Off 
Established for Additional NGSO-Like Satellite Applications or 
Petitions for Operations in the 10.7-12.7 GHz, 14.0-14.5 GHz, 17.8-
18.6 GHz, 18.8-19.3 GHz, 27.5-28.35 GHz, 28.35-29.1 GHz, and 29.5-
30.0 GHz Bands, Public Notice, 31 FCC Rcd 7666 (IB July 15, 2016).
    \36\ See WorldVu Satellites Limited, Petition for Declaratory 
Ruling Granting Access to the U.S. Market for the OneWeb NGSO FSS 
System, Order and Declaratory Ruling, 32 FCC Rcd 5366 (2017) (OneWeb 
Order).
    \37\ Id. at 5369 para. 6.
    \38\ Id. at 5378, para. 26 (``This grant of U.S. market access 
and any earth station licenses granted in the future are subject to 
modification to bring them into conformance with any rules or 
policies adopted by the Commission in the future.''). See also id. 
at 5369, para. 6 (``Accordingly, any investment made toward 
operations in this band by OneWeb in the United States assume the 
risk that operations may be subject to additional conditions or 
requirements as a result of such Commission actions.'').
    \39\ Id. at 5370 para. 8.
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    14. The Commission subsequently granted five additional NGSO FSS 
requests to use bands that include 12 GHz band (among others).\40\ Each 
grant is subject to modification to bring it into conformance with any 
rules or policies adopted by the Commission in the future; the market-
access grants to Space Norway, Kepler, and Theia also state that this 
condition includes any earth station licenses granted in the future. In 
all but the Space Norway Order, the Commission expressly stated that 
the any investments made toward operations in the bands authorized in 
the United States assume the risk that operations may be subject to 
additional conditions or requirements as a result of any future 
Commission actions, and all of the orders directly or indirectly 
referenced the MVDDS 5G Coalition Petition.\41\ Parties disagree about 
the scope and applicability of these conditions.\42\
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    \40\ Space Norway AS, Petition for a Declaratory Ruling Granting 
Access to the U.S. Market for the Arctic Satellite Broadband 
Mission, Order and Declaratory Ruling, 32 FCC Rcd 9649 (2018) (Space 
Norway Order); Karousel Satellite LLC, Application for Authority to 
Launch and Operate a Non-Geostationary Earth Orbit Satellite System 
in the Fixed Satellite Service, Memorandum Opinion, Order and 
Authorization, 33 FCC Rcd 8485 (2018) (Karousel Order), Space 
Exploration Holdings, LLC Application For Approval for Orbital 
Deployment and Operating Authority for the SpaceX NGSO Satellite 
System, Memorandum Opinion Order and Authorization, 33 FCC Rcd 3391 
(2018) (SpaceX Order), Kepler Communications Inc. Petition for 
Declaratory Ruling to Grant Access to the U.S. Market for Kepler's 
NGSO FSS System, Order, 33 FCC Rcd 11453, (2018) (Kepler Order), 
Theia Holdings A, Inc. Request for Authority to Launch and Operate a 
Non-Geostationary Satellite Orbit System in the Fixed-Satellite 
Service, Mobile-Satellite Service, and Earth-Exploration Satellite 
Service, Memorandum, Opinion and Authorization, 34 FCC Rcd 3526 
(2019) (Theia Order).
    \41\ See Space Norway Order, 32 FCC Rcd at 9655, 9611, paras. 
13, 27 (2017); Karousel Order, 33 FCC Rcd at 8486-87, paras. 3, 
n.14, 25(v) (2018); SpaceX Order, 33 FCC Rcd at 3399, 3401-02, 3407, 
paras. 19, 26, 40(r) (2018); Kepler Order, 33 FCC Rcd at 11455, 
11462-63, paras. 4-5, 29 (2018), Theia Order, 34 FCC Rcd at 3539-40, 
3548, paras. 36, 58 (2019).
    \42\ Space Exploration Technologies Corp. (SpaceX) argues that 
its authorizations are not conditional in 12 GHz band. See, e.g., 
Letter from David Goldman, Director of Satellite Policy, SpaceX, to 
Marlene H. Dortch, Secretary, FCC, Docket No. RM-11768, at 2 (filed 
Nov. 5, 2020) (SpaceX Nov. 5, 2020 Ex Parte). DISH argues that 
``every . . . Ku-band authorization is conditioned on the outcome of 
the 12 GHz petition.'' Letter from Jeffrey H. Blum, Executive Vice 
President, External and Legislative Affairs, DISH, to Marlene H. 
Dortch, Secretary, FCC, Docket No. RM-11768, at 2 (filed Nov. 12, 
2020) (DISH Nov. 12, 2020 Ex Parte); see also id. at 1-2 citing 
SpaceX Order, 33 FCC Rcd 3391, n.88.
---------------------------------------------------------------------------

    15. Since the Commission granted these requests, OneWeb, Kepler 
Communications (Kepler) and SpaceX have launched the first satellites 
of their authorized constellations and additional launches are 
scheduled in 2021. To date, OneWeb has launched 110 satellites and 
Kepler has launched 2 satellites. SpaceX has deployed more than 900 
satellites that use the 12 GHz band among other bands, which now makes 
it the largest satellite constellation in the world.\43\ In addition, 
through the Commission's Rural Digital Opportunity Fund reverse 
auction, SpaceX received $88.5 million in annual support for ten years 
(or $885 million total) to provide broadband service to 642,925 
locations.\44\ SpaceX claims that its service is capable of providing 
downlink/uplink speeds of 103/42 megabits-per-second and a consistently 
observed median latency of 30 milliseconds.
---------------------------------------------------------------------------

    \43\ In a March 2020 NGSO FSS processing round, these four 
companies filed additional applications to use the 12 GHz band. See 
SpaceX, SAT-LOA-20200526-00055; OneWeb, SAT-MPL-20200526-00062; New 
Spectrum Satellite, SAT-LOA-20200526-00060; Kepler, SAT-PDR-
20200526-00059. These companies have also filed several applications 
for earth stations. See, e.g., SpaceX Application File No. SES-LIC-
20190211-00151; SpaceX File Nos. SES-LIC-20190402-00425, SES-LIC-
20190402-00426, SES-LIC-20190402-00427, SES-LIC-20190402-00450, SES-
LIC-20190402-00451, SES-LIC-20190405-00453; OneWeb Application File 
No. SES-LIC-20190930-01217; OneWeb Application File No. SES-LIC-
20190930-01237.
    \44\ Rural Digital Opportunity Fund Phase I Auction (Auction 
904) Closes: Winning Bidders Announced, Public Notice, 35 FCC Rcd 
13888, Appx. A. (2020).
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    16. In its most recent filing, the MVDDS 5G Coalition continues to 
ask the Commission to consider modernizing MVDDS rules and to protect 
MVDDS interests in the band. While the MVDDS 5G Coalition originally 
contended that 5G terrestrial use and NGSO FSS use are incompatible, 
other proponents of flexible use (such as two-way mobile)--including 
some of the members of the MVDDS 5G Coalition--recently have

[[Page 13271]]

suggested the possibility of sharing in the band.\45\ Meanwhile, 
OneWeb, AT&T Services, Inc. (AT&T), SpaceX, Intelsat License LLC 
(Intelsat), SES S.A. (SES), Kepler, and others contend that sharing 
remains impossible between NGSO FSS and terrestrial two-way mobile 
operations.
---------------------------------------------------------------------------

    \45\ See e.g., Letter from Martha Suarez, President, Dynamic 
Spectrum Alliance (DSA), to Marlene H. Dortch, Secretary, FCC, 
Docket No. RM-11768, at 2 (filed Aug. 21, 2020) (DSA Aug. 21, 2020 
Ex Parte); Letter from Trey Hanbury, Counsel, RS Access, to Marlene 
H. Dortch, Secretary, FCC, Docket No. RM-11768, at 2-3 (filed Sept. 
21, 2020) (RS Access Sept. 21, 2020 Ex Parte); DISH Nov. 12, 2020 Ex 
Parte at 4 (stating that ``since the 2016 studies, developments in 
the satellite industry indicate that NGSO FSS constellations possess 
geostationary-like functions and properties that could prove more 
compatible with 5G services in the 12 GHz Band than the last-
generation NGSO earth stations.'').
---------------------------------------------------------------------------

II. Discussion

    17. The Commission has long been committed to ensuring that 
spectrum is put to its highest and best use. As such, the Commission 
commence this rulemaking proceeding to consider whether the current 
rules for the use of 12 GHz best serve the public interest. As a 
threshold matter, therefore, the Commission seeks comment on how to 
weigh the spectrum the Commission has already made available for 5G 
over the past four years and the hundreds of satellites that have been 
launched by the NGSO FSS operators in considering whether it is 
technically feasible to add additional or expanded spectrum rights in 
the 12 GHz band without causing harmful interference to incumbent 
licensees (and, if so, whether a balancing of public interest benefits 
would support taking that step). In the sections below, the Commission 
seeks comment on two potential approaches to future use of the 12 GHz 
band: Increasing terrestrial use of the shared band or continuing with 
the current framework. The Commission seeks comment on each approach, 
including the costs and benefits, in order to pursue the Commission's 
goals of putting spectrum to its highest-value and most efficient use 
while protecting incumbent operations in the band from harmful 
interference.

A. Enhanced Opportunities for Shared Use of the Band

    18. First, the Commission seeks comment on whether it can increase 
opportunities for shared use of the band while protecting incumbents 
from harmful interference. The MVDDS 5G Coalition argues that 
technological advances since the creation of MVDDS in 2000 justify 
revisiting the rules for terrestrial use of the band. Specifically, the 
MVDDS 5G Coalition asserts that terrestrial flexible use service is 
compatible with DBS service due to technological advances, such as 
targeted small-cell deployments and advanced antenna techniques like 
beamforming and beamsteering, which allow better control of transmitter 
energy and therefore can protect DBS. Other proponents of terrestrial, 
flexible use of the band similarly argue that developments since the 
MVDDS Petition was submitted in 2016 open up the possibility of 
coexistence between DBS, terrestrial flexible use, and NGSO FSS 
operations, and they maintain that the complex technical issues this 
raises warrant a new Commission rulemaking. As such, the Commission 
seeks comment on adding a mobile service allocation throughout the 12 
GHz band, whether coexistence between and among these competing 
services is technically achievable and, if so, what mechanisms the 
Commission might consider in facilitating such coexistence.
    19. The Commission notes that section 303(y) provides the 
Commission with authority to provide for flexible use operations only 
if: ``(1) such use is consistent with international agreements to which 
the United States is a party; and (2) the Commission finds, after 
notice and opportunity for public comment, that (A) such an allocation 
would be in the public interest; (B) such use would not deter 
investment in communications services and systems, or technology 
development; and (C) such use would not result in harmful interference 
among users.'' \46\ The Commission seeks comment on whether adding a 
mobile allocation to the 12 GHz band to allow flexible, terrestrial use 
is consistent with this provision.\47\ In particular, the Commission 
seeks information on the status of technologies that have been 
developed or are currently in development that would allow for two-way 
mobile communications in the 12 GHz band, whether standards have been 
set related to such technologies, whether there are any international 
agreements on a band plan or air interface for the 12 GHz band, and the 
impact (if any) on international rights for U.S.-licensed systems that 
might be affected as a result of its providing for expanded shared use 
of the band.\48\
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    \46\ Balanced Budget Act of 1997, Public Law 105-33, 111 Stat 
251, 268-69 sec. 3005 Flexible Use of Electromagnetic Spectrum 
(codified at 47 U.S.C. 303(y)). See also 47 CFR 2.106, 27.2, 27.3.
    \47\ The Commission notes the 12 GHz band has not been proposed 
at the International Telecommunication Union (ITU) for 5G or 
International Mobile Telecommunications (IMT) use at this time. 
Intelsat Opposition at 3; MVDDS 5G Coalition Reply at 6; Letter From 
Grover G. Norquist, President, Americans for Tax Reform, et al., to 
Marlene H. Dortch, Secretary, FCC, Docket No. RM-11768, at 3 (filed 
Oct. 16, 2020) (ATR Oct. 16, 2020 Ex Parte); Letter from Thomas A. 
Schatz, President, Citizens Against Government Waste, to Marlene H. 
Dortch, Secretary, FCC, Docket No. RM-11768, at 3 (filed Oct. 22, 
2020) (CAGW Oct. 22, 2020 Ex Parte). The Commission seeks comment on 
the pertinence of this observation.
    \48\ See Letter from David Goldman, Director of Satellite 
Policy, SpaceX, to Marlene H. Dortch, Secretary, FCC, Docket No. RM-
11768, Attach. A, Questions Necessary to Balance the 12 GHz NPRM, at 
3-4 (filed Jan. 6, 2021) (SpaceX Jan. 6, 2021 Ex Parte).
---------------------------------------------------------------------------

1. Protecting Satellite Incumbents From Harmful Interference
    20. The Commission seeks comment on the technical parameters that 
could allow additional terrestrial use of the band without causing 
harmful interference to incumbent operators. Among other things, the 
Commission seeks comment on whether it should allow two-way 
communications and flexible use of the band as well as what technical 
parameters would be appropriate for such new terrestrial operations. 
For example, assuming existing MVDDS service rules as the baseline, 
should the Commission eliminate or modify the EIRP restriction for 
terrestrial operators of 14.0 dBm per 24 megahertz (-16.0 dBW per 24 
megahertz)?
    21. Protecting DBS Operations. The MVDDS 5G Coalition and others 
assert that coexistence is feasible between those conducting two-way 
mobile operations and existing and future DBS receivers. They maintain 
that terrestrial operators could apply existing technology profiles and 
newly available ultra-high resolution imagery, neither of which was 
available in 2002, with modest adjustments to terrestrial site 
locations and radio frequency design parameters. The Commission seeks 
comment on whether, and to what extent, the MVDDS 5G Coalition's 
proposed licensing of two-way, mobile operations in the band, and its 
proposed elimination of the EIRP limit, would substantially redefine 
the scope of DBS operators' obligations and potential burdens under the 
current regime. If flexible use is authorized in the band, should the 
burden of avoiding or correcting for interference to existing or future 
DBS subscribers be revised? Or should two-way and/or mobile licensees 
be subject to the same requirements for protecting DBS subscribers that 
currently apply to other services in the band? How could other 
factors--such as geographic separation, transmitter power constraints 
on terrestrial operations, and other siting parameters

[[Page 13272]]

for flexible-use base stations--minimize the risk of interference to 
DBS users?
    22. The MVDDS 5G Coalition asserts that sharing between two-way, 
higher EIRP mobile operations and DBS, is possible through careful 
selection of areas to deploy mobile broadband, modest adjustments to 
radiofrequency design parameters, elimination of interference through 
geographic separation, absorption in the clutter, transmitter power 
constraints on terrestrial operations, and other mechanisms. The 
Commission seeks comment on whether such an approach is feasible, both 
as a technical and a practical manner. The Commission seeks comment on 
the costs and benefits of such an approach.
    23. The MVDDS 5G Coalition also suggests that keeping terrestrial 
signals below the applicable EPFD limit at all DBS antenna locations 
generally could avoid harmful interference to existing DBS subscribers 
regardless of the EIRP or whether the operations are fixed or mobile, 
or one- or two-way.\49\ Do commenters agree? AT&T notes that DBS 
customers can install dishes anywhere on their premises and sometimes 
even on moving vehicles, and that DBS operators do not have access to 
granular location data for their receive terminal installations. Does 
the Coalition's proposed solution resolve that concern? Can cell-site 
EIRP or location be engineered to mitigate any potential interference? 
What are appropriate EIRP considerations for base and mobile stations? 
Given that all DBS earth stations look toward the southern sky for 
communication with GSO space stations orbiting at the equatorial plane, 
and given that high-gain antennas are necessary for base stations, can 
base station location and/or antenna orientation be situated to provide 
greater protection to DBS earth stations? What is the impact of base 
station height with respect to interference? Will lower base station 
height reduce the potential for interference to both DBS and NGSO? What 
are the potential costs associated with this solution?
---------------------------------------------------------------------------

    \49\ See MVDDS 5G Coalition Petition at 19; MVDDS 5G Coalition 
Comments at 6 & n.21 (citing Coexistence 1 at 4). AT&T had argued 
that there may be potential statutory issues including whether 
proposed two-way, mobile use of the band would require an 
independent technical analysis showing that DBS would be protected. 
AT&T Opposition at 2 & n.4 (citing section 1012 of the LOCAL TV 
Act). In December 2018, however, this provision the LOCAL TV Act was 
stricken. Public Law 106-553, 114 Stat. 2762, 265-66 sec. 1012 
Prevention of Interference to Direct Broadcast Satellite Services, 
stricken by Public Law 115-334, 132 Stat. 4490, 4777-78 sec. 6603 
Amendments to Local TV Act.
---------------------------------------------------------------------------

    24. AT&T counters that although one-way services currently 
permitted under MVDDS licenses may coexist with DBS, two-way mobile 
service would create an untenable interference environment for DBS 
subscribers. Specifically, AT&T contends that enabling two-way, mobile 
use--which would include transient signals from unpredictable locations 
and angles--would make it impossible to model and avoid interference to 
DBS receivers, and that it would be ``exceptionally difficult for the 
DBS operator to trace or identify'' the cause of interference as the 
signal moved. The Commission seeks comment on this view.
    25. Protecting NGSO FSS Operations. SpaceX asserts the technical 
studies submitted by the MVDDS 5G Coalition demonstrate that ``while 
coexistence between DBS and 5G MVDDS would prove feasible within 
limits, coexistence between NGSO FSS and 5G MVDDS would not prove 
feasible, without substantial constraints on one or both services,'' 
and that ``MVDDS licensees cannot deploy two way 5G services in the 
12.2-12.7 GHz band without overwhelming NGSO FSS operations, even under 
the current rules, notwithstanding new 5G deployment architectures and 
newly available high-resolution ground-obstacle data.'' SpaceX also 
points out that one such 2016 study assumes ``an overly optimistic 30dB 
of NGSO user antenna discrimination toward the horizon and still 
determines that extreme interference (C/I = 0dB) into the NGSO receiver 
will occur from a single 5G mobile device that is 1,000 meters away 
operating at EIRP of 23dBm per 24MHz in free space conditions.'' SpaceX 
argues that ``[e]xtending this analysis to a more relevant threshold of 
I/N of -6 to -12dB yields the conclusion that a single 5G mobile device 
could cause interference at a distance of greater than 10km in free 
space conditions,'' and that ``[m]ore than one 5G mobile device in the 
vicinity would increase this distance.'' Accordingly, SpaceX asks how 
DISH would ensure that its 5G mobile users are always tens of 
kilometers from the nearest NGSO user antenna on the ground, or 
approximately 10 kilometers away for single 5G mobile devices, with 
larger separation distances necessary for multiple 5G devices? 
Furthermore, it asks if such separation distances are really a 
practical solution as NGSO FSS users become ubiquitously deployed in 
the near future? Finally, it inquires if under this scheme, 5G 
operations in an area would cease operations if notified by an NGSO 
operator of observed interference?
    26. DISH asserts that technological developments in the satellite 
industry may have increased the degree to which NGSO FSS constellations 
and flexible use, including two-way mobile service, may coexist. 
Specifically, DISH maintains that current-generation NGSO FSS 
constellations possess geostationary-like functions and properties that 
could prove more compatible with flexible use than last-generation NGSO 
earth stations. DISH asserts that to the extent NGSO FSS satellites 
maintain a highly elliptical orbit and time their active operations to 
align with the perigee of their orbit in a manner intended to simulate 
the operation of a GSO system,\50\ such operations presumably would be 
in a better position to coexist with flexible use operations than a 
standard NGSO FSS system. DISH further contends that, given the large 
number of satellites contemplated by these systems, an NGSO FSS antenna 
should be expected to operate with a much narrower field of view as 
opposed to one encompassing all realistic azimuths and elevation 
angles. Thus, DISH asserts that, at some level of concentration, large 
numbers of NGSO FSS satellites could operate for interference purposes 
like fixed DBS licensees, because the receiving earth stations would be 
directed at a limited number of proximate points in low-Earth orbit 
instead of at a nearly limitless array of different points throughout 
the sky.
---------------------------------------------------------------------------

    \50\ A highly elliptical orbit is a highly eccentrical orbit 
with a low perigee and a high apogee. Perigee is the point in a 
satellite's orbit closest to the earth, while apogee is the point in 
orbit farthest from the earth. The orbital pattern follows the curve 
on an ellipse.
---------------------------------------------------------------------------

    27. The Commission seeks comment on the technical analyses 
submitted to date, as well as further information and studies related 
to the feasibility, costs, and benefits of sharing among these 
services. To what extent does NGSO satellite systems operate in a 
manner described by DISH? In other words, do all NGSO systems operate 
in highly elliptical orbits or with earth stations pointed toward fixed 
locations in the sky? If not, are there plans for NGSO system operators 
to modify their systems in this manner? What would be the implication 
on latency for end users if NGSO FSS systems were modified to highly 
elliptical orbits? What is the practical range of azimuth and elevation 
angles over which NGSO earth stations are expected to operate? SpaceX 
notes that existing NGSO FSS systems are authorized to operate down to 
10-degree elevation angles in the U.S. and questions whether 
terrestrial uses could be added to the band while still protecting NGSO 
licensees that use these elevation angles. What level of

[[Page 13273]]

NGSO FSS satellite concentration would ensure that NGSO receiving earth 
stations would be directed at a limited number of proximate points in 
low-Earth orbit? How many earth stations do NGSO operators expect to 
deploy? What methods can base and mobile stations use to avoid causing 
harmful interference to NGSO receive stations? Commenters that contend 
that coexistence is feasible should address whether, given the existing 
technical rules, sufficient spectrum will be available to support new 
terrestrial service and describe the potential costs associated with 
any solution.
    28. The Commission notes that NGSO interests and various other 
parties argue that expanding terrestrial rights to include flexible 
use, including two-way, mobile service in the 12 GHz band, could create 
harmful interference that would jeopardize their offerings, and 
undermine the investments that they have made in the band. The 
Commission seeks comment on the appropriate technical criteria that 
would be necessary to protect NGSO FSS from harmful interference from 
higher-power, two-way mobile operations. Would the existing 
interference criteria in the MVDDS rules be sufficient? \51\ How would 
an NGSO FSS operator or subscriber identify the source of any 
interference received in the event that mobile operations are 
authorized in the band? SpaceX argues that, because the Commission has 
permitted blanket authorizations for earth stations in the band 
(enabling millions of consumer earth stations to ubiquitously 
proliferate), it would be impossible to track these consumer 
deployments in real-time, much less prevent harmful interference to 
them by transient and unpredictable mobile operations. SpaceX also 
points out that the sharing studies submitted by the MVDDS Coalition 
confirm that 5G use would clearly overwhelm NGSO FSS operations. Given 
the potential for NGSO FSS operations to provide much needed service in 
rural and other underserved areas, The Commission seeks comment on the 
costs and benefits of adding terrestrial two-way mobile services to the 
band.
---------------------------------------------------------------------------

    \51\ See 47 CFR 101.113(a) n.11, (f)(1); 101.147(p). See also 47 
CFR 101.105(a)(4)(i) (limiting the PFD level beyond 3 km from an 
MVDDS station to -135 dBW/m\2\ in any 4 kHz measured and/or 
calculated at the surface of the earth), 101.129(b) (prohibiting 
location of MVDDS transmitting antennas within 10 km of any 
qualifying NGSO FSS receiver absent mutual agreement of the 
licensees).
---------------------------------------------------------------------------

    29. In response to the assertions from SpaceX and other NGSO 
operators about the potential for harmful interference, DISH argues 
that NGSO FSS service is not dependent on the 12 GHz band; it contends 
that, ``[i]f the FCC were to repurpose the 12 GHz band for terrestrial 
5G services, SpaceX would retain nearly 97% of all spectrum and nearly 
94% of all space-to-earth spectrum made available for its proposed NGSO 
FSS system.'' In response, several NGSO operators argue that the 
entirety of the two gigahertz of spectrum from 10.7 GHz to 12.7 GHz 
currently licensed to several NGSO FSS operators for downlink 
operations is necessary for NGSO FSS deployment. SpaceX argues there 
are additional constraints in the other portions of 10.95-12.2; for 
example, 10.95-11.7 has further non-harmful interference protections 
due to terrestrial being primary, which could affect consumer earth 
stations in this portion of the band. Others argue that harmful 
interference to NGSO operators in the 500 megahertz of the 12 GHz band 
would negatively affect NGSO operators' ability to split equally the 
remaining 1.5 gigahertz of spectrum during in-line interference events. 
The Commission seeks comment on these views, but reiterate that it is 
focused on protecting incumbent licensees, including incumbent NGSO 
operators, from harmful interference in this proceeding.
    30. Other Technical Means of Protecting Satellite Incumbents. One 
additional approach to protecting incumbents would be to restrict new 
terrestrial operations to indoor use. The Commission has adopted this 
approach to permit unlicensed devices to share spectrum with licensed 
services in several bands.\52\ Such indoor devices could be used for 
providing internet connectivity as well as connecting internet-of-
things devices in both consumer and industrial applications. The 
Commission's Technological Advisory Council 5G/IoT/O-RAN working group 
recommended that the Commission consider private spectrum for 
enterprise internet-of-things devices in locations such as confined 
geographic areas, buildings, and campuses. Could indoor 12 GHz 
unlicensed devices meet this need? Would restricting new terrestrial 
devices to indoor uses enable them to co-exist with satellite services? 
What power level would the indoor devices need to be limited to avoid 
causing harmful interference to satellite services (and would it be 
materially higher than if the Commission assumes outdoor use for the 
new terrestrial operations)? What would be the costs and benefits of 
this approach?
---------------------------------------------------------------------------

    \52\ 47 CFR 15.407(d)(3); Unlicensed Use of the 6 GHz Band, 
Report and Order and Further Notice of Proposed Rulemaking, 35 FCC 
Rcd 3852, 3888-89, paras. 98-103(2020); Use of the 5.850-5.925 GHz 
Band, First Report and Order, Further Notice of Proposed Rulemaking, 
and Order of Proposed Modification, ET Docket No. 19-138, FCC 20-
164, para. 61 (adopted Nov. 18, 2020).
---------------------------------------------------------------------------

2. Assigning New Terrestrial Use Rights
    31. The Commission next seeks comment on how it should assign any 
new terrestrial service rights. Given that MVDDS licensees themselves 
have terrestrial usage rights in large geographic areas across the 
United States, the Commission seeks comment on three approaches to 
authorize any new terrestrial rights in the band: (1) Modifying the 
licenses of existing licensees under section 316 of the Communications 
Act, (2) auctioning off overlay licenses in the band, and (3) 
authorizing underlay use of the band.
    32. First, should the Commission consider modifying existing 
incumbent licenses using its section 316 authority to allow increased 
terrestrial operational flexibility? In this band, because there are 
several types of existing incumbents--DBS, MVDDS, and NGSO--there are 
several potential options for expanding terrestrial rights. One option 
would be to expand the rights of existing terrestrial licensees to 
allow them to provide 5G terrestrial services. For instance, when the 
Commission authorized mobile use in the 28 GHz band, it granted mobile 
rights to existing fixed licensees, after finding that such an approach 
would expedite service, and that separating ``fixed'' and ``mobile'' 
rights into different bundles could create unnecessary complexity and 
potential for interference. Similarly, the Commission has modified 
other licenses in the past to increase the flexibility afforded to 
incumbents to put spectrum to its highest and best use.\53\ Do similar 
reasons support modifying the MVDDS licenses to incorporate greater 
flexibility? Or are there distinctions that suggest the Commission 
should adopt a different approach here?
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    \53\ See, e.g., Service Rules for Advanced Wireless Services in 
the 2000-2020 MHz and 2180-2200 MHz Bands (2 GHz bands), WT Docket 
Nos. 12-70 and 04-356, ET Docket No. 10-142, Report and Order and 
Order of Proposed Modification, 27 FCC Rcd 16102, 16220-22, 16224, 
paras. 319-21, 331-32, (2012) (modifying incumbent MSS licensees to 
allow widespread terrestrial authorizations); Amendment of Part 27 
of the Commission's Rules to Govern the Operation of Wireless 
Communications Services in the 2.3 GHz Band, WT Docket No. 07-293, 
Report and Order and Second Report and Order, 25 FCC Rcd 11710, 
11712, 11723, paras. 2, 29 (2010) (modifying rules to enable the 
deployment of mobile broadband services by incumbent terrestrial 
licensees).
---------------------------------------------------------------------------

    33. Another option would be to grant flexible terrestrial use 
rights to the incumbent satellite operators. As

[[Page 13274]]

SpaceX notes, the Commission granted terrestrial rights to the AWS-4 
band to existing satellite licensees based on an assumption that 
closely coordinated satellite and terrestrial operations would be 
necessary to overcome interference issues. Would affording flexible use 
rights to incumbent satellite operators best ensure that these services 
do not experience harmful interference?
    34. Under the current regulatory regime in the band, DBS operators 
have priority over the other services, including both MVDDS and NGSO 
licensees. Should the Commission grant flexible terrestrial use rights 
to DBS licensees based on their priority status? One of the potential 
challenges to such an approach, however, involves the different ways in 
which DBS rights and terrestrial rights are generally assigned. While 
the DBS operators have exclusive rights to transmit from each of their 
orbital slots, they have non-exclusive rights in terms of geographic 
coverage (i.e., they jointly share the right to transmit across the 
United States using the 12.2-12.7 GHz band). In contrast, in order to 
encourage investment and innovation by terrestrial licensees, the 
Commission generally assigns new terrestrial use licenses on an 
exclusive geographic basis. Given that each DBS operator in the band 
uses the full 12 GHz band on a shared basis with the other DBS 
operator, if the Commission awarded flexible terrestrial use rights to 
both incumbents, how should the flexible terrestrial use rights be 
awarded? Could the Commission leave this matter to commercial 
negotiations between the parties? If so, would such an approach lead to 
an efficient outcome? If the Commission cannot rely solely on 
negotiation between the DBS operators, how would it reconcile conflicts 
between the DBS operators over how to apportion terrestrial rights? The 
Commission notes that, under section 309(j) of the Communications Act 
of 1934, as amended, if mutually exclusive applications for initial 
licenses are received, it must use competitive bidding to resolve the 
mutual exclusivity. The Commission seeks comment on whether, and how, 
the process of negotiating and assigning terrestrial rights to DBS 
operators could occur without triggering this requirement.
    35. Alternatively, the Commission could grant flexible terrestrial 
use rights to NGSO operators in addition to DBS operators. The 
Commission notes that this option would create at least two 
complications. First, there would need to be negotiations between a 
significantly larger number of operators--there are currently only two 
DBS operators, while there have been six NGSO authorizations granted 
for use of the 12 GHz band. Second, the apportionment of terrestrial 
rights would be further complicated by the fact that one set of 
operators (DBS) currently has superior rights to the other set of 
operators (NGSO). Could the Commission rely on commercial negotiations 
to achieve an efficient outcome between these operators, and if not, 
would it be possible to resolve differences in a manner that both 
comports with section 309(j) and achieves an efficient and expeditious 
outcome?
    36. Second, should the Commission auction overlay licenses for the 
band? Some commenters argue that this approach would ensure that the 
new flexible-use licenses are assigned to entities that are capable of 
rapidly deploying in the band. If the Commission was to adopt this 
overlay license approach, it expects that new licensees would not be 
able to deploy operations that would cause harmful interference to 
incumbent operations absent an agreement to the contrary. What rights, 
if any, should overlay licensees have to relocate incumbent operations? 
Specifically, should the Commission authorize only voluntary relocation 
of incumbent operations, either for a limited period or in perpetuity? 
\54\ Or should the Commission allow mandatory relocation of such 
operations, either immediately or after some period of time to allow 
negotiations? If the Commission was to authorize mandatory relocation, 
should the new licensees be responsible for finding or consolidating 
incumbent operations (while ensuring such operators can continue with 
substantially similar operations and are held harmless financially)? Or 
should the Commission designate some portion of the 12 GHz band or 
another spectrum band for such relocation? What parameters would the 
Commission need to put down to ensure efficient use of new overlay 
licenses while protecting incumbents? Would a transition mechanism like 
the one used in 3.7-4.2 GHz, including accelerated relocation payments 
for incumbents to encourage them to voluntarily make the spectrum 
available for two-way mobile flexible use in an expeditious manner, be 
appropriate for some or all incumbents in this band? \55\
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    \54\ In the 900 MHz Report and Order, the Commission realigned 
the band and established a transition mechanism based primarily on 
negotiations between prospective broadband licensees and existing 
narrowband incumbent licensees. Review of the Commission's Rules 
Governing the 896-901/935-940 MHz Band, Report and Order, Order of 
Proposed Modification, and Orders, WT Docket No. 17-200, FCC 20-67, 
(May 14, 2020).
    \55\ See 47 CFR 27.1411-27.1424, Expanding Flexible Use of the 
3.7 to 4.2 GHz Band, GN Docket No. 18-122, Report and Order and 
Order of Proposed Modification, 35 FCC Rcd 2343 (2020). See also 
AT&T Aug. 6, 2020 Ex Parte at 6.
---------------------------------------------------------------------------

    37. Third, should new terrestrial operations come in the form of an 
underlay? Under this type of approach, any additional terrestrial 
operations likely would need to be authorized at low power and would 
need to operate on an opportunistic basis, not causing harmful 
interference to--nor seeking protection from harmful interference by--
the incumbent primary services in the band. For example, if the 
technical analysis were to show only that low-power, two-way operations 
were feasible, would a low-power, unlicensed underlay make the most 
sense, as advocated by Public Knowledge? Specifically, Public Knowledge 
argues that making 500 megahertz of spectrum available on an unlicensed 
or licensed-by-rule basis could allow for new Wi-Fi 6 uses which the 
Commission has previously supported in the 6 GHz proceeding. If the 
Commission adopts such an approach, could it rely on its traditional 
part 15 rules for such an underlay? Alternatively, should the 
Commission consider the auctioning of underlay licenses or licensing 
underlay use by rule? The Commission notes that any users of such an 
underlay would be required to fully protect all DBS, NGSO FSS, and 
MVDDS operations. Given this requirement, the Commission seeks comment 
on the costs and benefits of an underlay approach.
    38. In deciding how to assign new terrestrial rights, the 
Commission notes that several commenters contend that MVDDS licensees 
have failed to provide meaningful commercial service in the band. As a 
construction requirement, MVDDS licensees must make a showing of 
substantial service at the end of five years into the license period 
and ten years into the license period.\56\ The Commission established a 
safe harbor for MVDDS of actual delivery of service to customers via 
four separate transmitting locations per million

[[Page 13275]]

population in their license area.\57\ The Commission is aware of only 
one current wide-area commercial MVDDS deployment, in Albuquerque, New 
Mexico.\58\ Apart from the showing for the Albuquerque license, other 
licensees report meeting the Commission's substantial service 
construction requirement for each license based on the safe harbor for 
MVDDS. Although MVDDS licensees point out that they met the required 
construction benchmarks and claim that they have plans for future 
service, these licensees also contend that the current technical rules 
for MVDDS are prohibitively restrictive. Should the Commission delay 
expanding flexible-use rights in the 12 GHz band until such time as the 
Bureau resolves any issues associated with MVDDS licensee's substantial 
showing filings, as suggested by SpaceX? While the Commission expects 
that the Bureau will carefully examine the licensees' filings for 
compliance with the applicable rules, it also seeks comment on the 
current status of MVDDS network construction. In what areas are MVDDS 
licensees currently providing services and in what areas do licensees 
anticipate offering services in the near term?
---------------------------------------------------------------------------

    \56\ 47 CFR 101.1413(b) (``The substantial service requirement 
is defined as a service that is sound, favorable, and substantially 
above a level of mediocre service which might minimally warrant 
renewal.''). At the end of each period, ``the Commission will 
consider factors such as: (1) whether the licensee's operations 
service niche markets or focus on serving populations outside of 
areas serviced by other MVDDS licensees; (2) whether the licensee's 
operations serve populations with limited access to 
telecommunications services; and (3) a demonstration of service to a 
significant portion of the population or land area of the licensed 
area.'' Id.
    \57\ See Amendment of Parts 2 and 25 of the Commission's 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 and Second Report and Order, ET Docket No. 98-206, 
17 FCC Rcd 9612, para. 177 (2002).
    \58\ The MVDDS licensee in Albuquerque, New Mexico, reports that 
it has deployed a large-scale broadband internet service offering 
that reaches more than 900,000 people (or approximately 50 percent 
of the population) in the Albuquerque geographic license area. See 
RS Access, LLC, ULS File No. 0008742312, Required Notification for 
Call Sign WQAR 561, Substantial Service Showing Supplement at 43-49. 
``To build a high-speed, high-power broadband network, RSA/MDS 
required a waiver from the FCC of certain MVDDS operating 
constraints--namely, the EIRP levels.'' Id. at 43 (note omitted). RS 
Access states that the waiver allows a single transmitter to 
replicate the service quality of multiple MVDDS transmitters 
operating elsewhere without a waiver. Id. at 43.
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3. Approaches to Sharing
    39. If coexistence among the co-primary services, i.e., DBS, NGSO 
FSS, MVDDS incumbents, and the proposed flexible-use service (i.e., 
two-way, mobile service) is technically feasible without resulting in 
harmful interference to any incumbent service, the Commission next 
seeks comment on the appropriate means to facilitate such shared use. 
The Commission recognizes that its technical analysis as well as public 
interest considerations will guide its approach to sharing, and it 
seeks comment on whether particular approaches to sharing depend on 
certain results of its technical analysis (for example, is one approach 
more appropriate than another if it kept a maximum EIRP for terrestrial 
operations?).
    40. Service-Rule Sharing. The Commission first seeks comment on 
whether the operating parameters proposed by the MVDDS 5G Coalition--
specifically modifying the power levels available to terrestrial 
operations and modifying some of the coordination requirements--are 
sufficient to enable new terrestrial operations. What are the maximum 
power levels and the most flexibility that could be granted to new 
terrestrial operations with simple service-rule sharing while still 
protecting incumbents from harmful interference? Commenters should 
discuss the potential benefits and value of terrestrial operations 
under these conditions.
    41. Geographic Sharing. Would geographic sharing protect and 
facilitate use of DBS and NGSO FSS in some areas without precluding new 
flexible-use deployment elsewhere? Would geographic sharing allow 
higher-power terrestrial operations in certain areas rather than 
others? How should such geographic sharing be structured? Do 
subscribers of satellite services typically receive these services in 
more rural areas? What are the propagation characteristics of this band 
with respect to mobile system coverage? What is the cell size? Like 
other, higher-frequency 5G bands, will cell size be limited to a few 
hundred meters based on line-of-site conditions? Can smaller sized 
cells provide the flexibility necessary to mitigate any potential 
interference with respect to DBS (or NGSO) satellite service operations 
either before or after deployment of the network? What are the 
potential costs and benefits of geographic sharing?
    42. According to AT&T, the MVDDS 5G Coalition's proposal would 
result in ``some fixed, low-power base stations in `unique geographic 
conditions' away from the millions of DBS users sprinkled through 
virtually every community, perhaps in `urban canyons' or other places 
where satellites might not reach.'' The Commission seeks comment on 
this view.
    43. Dynamic Sharing Between Full Power Terrestrial and Satellite. 
Federated Wireless claims that ``industry [has] confidence in the 
ability of dynamic spectrum sharing technologies to enable new and 
innovative uses in [ ] spectrum, while protecting incumbent 
operations.'' Parties such as DISH, DSA, Federated Wireless, Public 
Knowledge, RS Access, and WeLink argue that new dynamic spectrum 
sharing techniques, such as spectrum access systems (SASs) that were 
developed for the Citizens Broadband Radio Service and the automated 
frequency coordination (AFC) approach established for unlicensed access 
in the 6 GHz band, could facilitate increased terrestrial use of the 12 
GHz band. How could dynamic sharing mechanisms facilitate continued use 
by DBS, NGSO FSS, and MVDDS incumbents, while also accommodating 
potential new uses such as two-way mobile service?
    44. What improvements have there been in dynamic spectrum 
technology that might enable flexible use and sharing among these 
services? For example, are database-based coordination systems 
sophisticated enough to account for earth stations' receiving data from 
both thousands of NGSO satellites as well as DBS receivers, thus 
permitting mobile terrestrial use while preventing harmful interference 
to all incumbent users? How would such a system work? Is there any 
history of successful dynamic spectrum sharing involving widely 
deployed satellites and ubiquitous terrestrial services?
    45. How long would it take to develop an automated frequency 
coordination mechanism for the services in this band? To what extent 
could the Commission leverage existing technologies (either the SASs 
created for the 3.5 GHz band or the AFC being developed for the 6 GHz 
band) to perform these functions? Would an entirely new system need to 
be developed? To the extent the Commission could repurpose an existing 
system, what benefits or trade-offs would there be between using an 
existing system versus creating an entirely new dynamic-use system 
specifically tailored to the 12 GHz band? Would such a spectrum sharing 
system be able to satisfy the spectrum access needs for all the current 
and potential future satellite and terrestrial operators? If so, would 
it be worth the cost and burden of such a system to the respective 
services?
    46. If the Commission choose a dynamic sharing approach, it would 
propose to follow the existing prioritization of services for 
protection, with DBS continuing to receive the highest protection, 
followed by NGSO FSS and MVDDS. How should the Commission assign 
priority under this approach to new terrestrial operations? And should 
the Commission assign priority between NGSO FSS and MVDDS uses? Should 
the Commission continue to apply a ``first-in-time''

[[Page 13276]]

approach in the context of a more dynamic sharing environment?
    47. The Commission seeks comment on how a dynamic sharing mechanism 
would incorporate legacy DBS consumer equipment? AT&T has expressed 
concern that DBS is unlike a fixed service because DBS receivers are 
deployed ubiquitously, with some installed on vehicles and thus 
effectively mobile, and because exact geographic coordinates are not 
known.\59\ Could these conditions be remedied and could the Commission 
seek information to obtain greater granularity of location, information 
on DBS end-user equipment, the height of such equipment at the 
installation location and any technical aspects relevant for 
coordination? How would a dynamic frequency sharing coordination 
mechanism determine the presence and potential for interference from 
terrestrial services to DBS? How would such a mechanism incorporate 
legacy NGSO FSS consumer terminals? If current DBS or NGSO FSS end-user 
equipment or databases are not able to support some type of 
coordination mechanism, should the Commission adopt a requirement to 
incorporate such equipment going forward? Should legacy equipment be 
grandfathered and allowed to operate until a specified end date? The 
Commission notes that to receive protection from new proposed MVDDS 
transmitters, NGSO FSS licensees must already maintain a database of 
fixed subscriber earth stations, in a format that can be readily shared 
with MVDDS licensees.\60\ Would such a database similarly facilitate 
protection from new terrestrial mobile two-way services? How should the 
Commission address any consumer privacy concerns, or protection of 
proprietary and confidential business information, that might arise 
from the use of one or more databases to facilitate shared use among 
competing services? \61\
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    \59\ AT&T Oct. 16, 2020 Ex Parte at 2. According to AT&T, DBS 
receivers are tied to subscriber addresses, not specific 
coordinates, and subscribers have the right to move their dish from 
one location to another on their property without no notification 
requirement. Id.
    \60\ See, e.g., 47 CFR 25.139(a) (requiring NGSO FSS licensees 
to maintain a subscriber database in a format that can be readily 
shared with MVDDS licensees for the purpose of determining 
compliance with the MVDDS transmitting antenna spacing requirement 
relating to qualifying existing NGSO FSS subscriber receivers set 
forth in Sec.  101.129); 101.103(f)(1) (prior to the construction or 
addition of an MVDDS transmitting antenna, the MVDDS licensee shall 
provide notice of intent to construct the proposed antenna site to 
NGSO FSS licensees operating in the 12 GHz band and maintain an 
internet website of all existing transmitting sites and transmitting 
antennas that are scheduled for operation within one year, including 
the ``in-service'' dates); 101.129(b) (MVDDS licensees must not 
locate transmitting antennas within 10 km of any qualifying NGSO FSS 
receiver); 101.1440(b) (for each proposed transmitter, MVDDS 
licensees must conduct a survey to determine the location of all DBS 
customers of record that may potentially be affected by the 
introduction of its MVDDS service).
    \61\ SpaceX Jan. 6, 2021 Ex Parte, Attach. A at 2-3.
---------------------------------------------------------------------------

    48. If the Commission decides to give priority to new terrestrial 
flexible-use services, vis-[agrave]-vis NGSO FSS or MVDDS, should it 
consider an approach similar to that taken in the 3.5 GHz band, in 
which it auctioned Priority Access Licenses (PALs) to promote 
innovative use while protecting incumbents? Federated Wireless argues 
that the auction of PALs in 3.5 GHz band could serve as a model for how 
to facilitate shared use in the 12 GHz band. SpaceX, however, argues 
that there are important distinctions between the 3.5 GHz band and the 
12 GHz band that make it infeasible to auction PALs in this band. For 
example, SpaceX asserts that there are far fewer earth stations in the 
3.5 GHz band than the 12 GHz band because FSS use in the former is 
limited to international inter-continental systems and is subject to 
case-by-case electromagnetic compatibility analysis. In addition, 
according to SpaceX, blanket earth station licensing in 12 GHz means 
that there are many more receivers in the band that cannot be 
adequately tracked (including DBS receivers). The Commission seeks 
comment on these views.
    49. More broadly, how would dynamic spectrum sharing affect 
existing services? Would it reduce the incentives of existing operators 
to invest in deployment? During the period in which a sharing 
technology was developed, would it prevent the band from being put to 
its most productive use? Or would it facilitate new investment and 
innovation in this band?
    50. Opportunistic Use of the Band. Are there other approaches the 
Commission could adopt to enable operation of opportunistic use of the 
12 GHz band? What technical and operational rules would be needed to 
ensure such systems do not cause harmful interference to incumbent 
systems? Considering the spectral needs of DBS, MVDDS, NGSO FSS, would 
there be usable spectrum in enough geographic areas to allow for more 
than de minimis opportunistic use? Would there be enough interest in 
such use to spur equipment manufacturing? Commenters that believe there 
is a potential approach should specifically address the potential value 
created through sharing and costs of the proposed solution.
    51. DSA argues that the Commission could promote far more intensive 
use of the band by authorizing coordinated access to vacant 12 GHz 
spectrum on a secondary basis. It contends that such an approach would 
``provide spectrum-as-infrastructure to fixed wireless ISPs and other 
broadband network providers [that operate] in underserved'' areas, 
including rural and tribal communities. DSA argues that the Commission 
could adopt rules for opportunistic access to locally vacant spectrum 
in the 12 GHz band that operate in much the same way as the 3.5 GHz 
band rules authorize General Authorized Access (GAA) to unused PAL 
spectrum. Should coordinated, shared use of the band for high-capacity 
fixed wireless services be authorized on an opportunistic, unlicensed, 
or licensed-by-rule basis?
    52. Could the 12 GHz band support opportunistic use of unused 
spectrum on a localized basis, such as for high-capacity fixed wireless 
in rural and less densely populated areas? What technical and 
operational rules would be needed for such usage to ensure that 
incumbent services are protected from harmful interference? Would the 
benefits of opportunistic use outweigh the costs, such as the 
complexity it would create and the coordination burden it would place 
on incumbents?
    53. Could such operation be permitted based on sensing technology 
or a database (such as a SAS)? What provisions would be needed under 
either type of regime to prevent harmful interference to other 
services?

B. Maintaining the Current Framework

    54. Next, the Commission seeks comment on whether the costs of 
accommodating new services in the band, including the potential for 
adverse impact or additional burden on existing services, exceed the 
benefits. Several commenters argue that the existing rules and services 
in the band allow for intense and efficient use of this spectrum, and 
that changes to the band are therefore unnecessary. For example, 
SpaceX's Starlink system has commenced testing of its service in 
multiple states, and SpaceX asserts it will begin commercial broadband 
service to rural users by the end of 2020. SpaceX cites support from 
several organizations for its Starlink system, such as the Hoh Indian 
Tribe in Washington who has stated that ``because of NGSO service, the 
tribe `finally has broadband, distributed to its community in only a 
matter of weeks' and that the Commission should `maintain the careful 
and successful balance that allows the 12 GHz frequency band to provide 
this

[[Page 13277]]

service.' '' SpaceX was a winning bidder in the Rural Digital 
Opportunity Fund Phase I auction, where it won $888.5 million to deploy 
high-speed broadband to unserved homes and businesses over a ten-year 
period. SpaceX claims that its service is capable of providing 
downlink/uplink speeds of 103/42 megabits-per-second and a consistently 
observed median latency of 30 milliseconds. According to SpaceX, making 
changes to the band potentially could threaten its planned operations 
while doing little to close the digital divide. How might this 
uncertainty affect future investment in new systems, whether in 12 GHz 
or in other frequency bands? What actions can the Commission take in 
this proceeding to ensure that the locations successfully bid for 
through the RDOF process get access to the broadband internet access 
service committed to through that program? SpaceX further claims that 
NGSO systems have the potential to provide low latency 5G backhaul 
using 12 GHz band spectrum. Could maintaining the current framework 
allow NGSO-provided backhaul to proliferate? Alternatively, would 
allowing terrestrial mobile service in the band harm NGSOs' ability to 
provide backhaul? If terrestrial mobile and satellite-based backhaul 
services cannot both be provided in the band, then which service would 
best serve the public interest?
    55. AT&T has repeatedly argued that adopting the proposals of the 
MVDDS 5G Coalition would not adequately protect DBS operations in the 
12 GHz band, which potentially could result in ``an untenable 
interference environment'' for the tens of millions of DBS subscribers 
receiving programming via the 12 GHz Band. DISH, which is the other DBS 
provider in the band, disagrees and contends that MVDDS 5G Coalition's 
two technical studies have demonstrated that geographic separation, 
transmitter power constraints on MVDDS operations, and other siting 
parameters, as well as absorption due to clutter, can ensure that 
interference from terrestrial base stations to DBS users would rarely, 
if ever, occur. If the Commission maintains the current framework, then 
NGSO FSS and Fixed Service would continue to operate on a co-primary, 
non-harmful interference basis to DBS.\62\ In that case, neither DBS 
nor NGSO FSS would be subjected to the uncertainty of new rules adopted 
for the band. Are the potential benefits of further action to 
facilitate flexible use for terrestrial services in the 12 GHz band 
outweighed by the potential uncertainty and the costs caused by 
granting terrestrial, flexible-use rights in this band? Should the 
Commission conclude that the appropriate balance between satellite and 
terrestrial use has already been struck by the framework currently in 
place, such that few or no revisions to the service rules are required?
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    \62\ Under the approach that the Commission adopted for NGSO FSS 
and MVDDS sharing, first in-time NGSO FSS receivers and first in-
time MVDDS transmitting systems are afforded more and easier use of 
the shared 12 GHz band than subsequent deployments. The Commission 
concluded that such a result is equitable and consistent with the 
co-primary status of NGSO FSS and MVDDS. See MVDDS Second Report & 
Order, 17 FCC Rcd at 9659, para. 111; see also OneWeb Order, 32 FCC 
Rcd at 5370 para. 8.
---------------------------------------------------------------------------

    56. As noted above, the Commission has made a substantial amount of 
spectrum available for 5G services in the period since the 5G MVDDS 
Coalition filed its Petition. In particular, since that time, the 
Commission completed the post-auction transition of the 600 MHz band, 
making 70 megahertz of low-band spectrum available for 5G. The 
Commission completed three auctions of millimeter-wave spectrum, 
putting nearly five gigahertz of high-band spectrum into the market. At 
least one nationwide service provider has characterized this spectrum 
as instrumental to its 5G deployment plans. As for mid-band spectrum, 
the Commission has repurposed 480 megahertz between 3550 and 3980 MHz 
and is on track to potentially repurpose an additional adjacent 100 
megahertz in the 3.45 GHz band.\63\ Have intervening developments over 
the past four years, including the Commission's work to make additional 
spectrum resources available for 5G and the number of NGSO systems that 
have been authorized to operate using 12 GHz band spectrum, counsel 
against making changes to the current framework for the 12 GHz band? 
The Commission values the public interest benefits that could flow from 
NGSOs offering an affordable solution for delivering high-speed 
internet services to communities that might be more expensive to serve 
through other technologies. How should the potential public interest 
benefits of those services be balanced by the Commission as it proceeds 
with this rulemaking?
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    \63\ Auction of Priority Access Licenses in the 3550-3650 MHz 
Band Closes; Winning Bidders Announced for Auction 105, Public 
Notice, 35 FCC Rcd 9287 (2020); Expanding Flexible Use in the 3.7-
4.2 GHz Band, Report and Order, Order Proposing Modification, 35 FCC 
Rcd 2343 (2020), Facilitating Shared Use in the 3100-3550 MHz Band, 
Report and Order and Further Notice of Proposed Rulemaking, 35 FCC 
Rcd 11078 (2020).
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    57. The Commission noted in the OneWeb Order, 32 FCC Rcd 5366 
(2017), that NGSO FSS operators have access to other frequency bands, 
``such that even if NGSO FSS systems were precluded entirely from the 
12.2-12.7 GHz band,'' OneWeb would still retain a measure of 
flexibility to provide its proposed services. Given the proliferation 
of NGSO authorizations and ongoing deployments, the Commission seeks 
comment on whether this remains the case, as well as the costs and 
benefits of maintaining the current framework. Additionally, the 
Commission adopted similar, though not identical, conditions in the 
various NGSO authorizations for use of the 12 GHz band. The Commission 
seeks comment on the various conditions included in the NGSO 
authorizations and what effect (if any) these variations should have on 
its analysis.
    58. If the Commission maintains the current framework, should it 
make any revisions to the MVDDS technical rules within the existing 
regulatory framework so as to facilitate more robust terrestrial 
operations without causing harmful interference to satellite operations 
in the band? \64\ The Commission notes that it contemplated that MVDDS 
service providers might petition for waivers of the technical rules and 
that, in denying a petition for reconsideration to increase the power 
limit for all MVDDS licenses, it was not prejudging whether a rationale 
for higher EIRP and EPFD limits in rural areas might have some 
technical merit in certain very specific circumstances. The Commission 
also stated that after it gained experience with MVDDS operations, it 
would entertain requests to modify the general EPFD and EIRP limits, if 
such experience provided sufficient justification for such action. The 
Commission invites comment on whether there are any other changes it 
could adopt in revising its existing rules that would improve the 
efficiency of incumbent use of the band.
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    \64\ See, e.g., Wireless Telecommunications Bureau Seeks Comment 
on Petitions of Seven Licensees for Waiver of Multichannel Video 
Distribution and Data Service Technical Rules, WT Docket No. 15-218, 
Public Notice, 30 FCC Rcd 9953 (WTB BD 2015) (petitioners seek 
waivers of 47 CFR 101.113 note 11, 101.147(p), 101.1407, and 
101.1411(a), to use the 12 GHz band for two-way, point-to-point 
operation at an EIRP up to 55 dBm).
---------------------------------------------------------------------------

III. Ordering Clauses

    59. It is ordered, pursuant to the authority found in sections 1, 
2, 3, 4, 5, 7, 301, 302, 303, 304, 307, 309, 310, and 316 of the 
Communications Act of 1934, 47 U.S.C. 151, 152, 153, 154, 155, 157, 
301, 302, 303, 304, 307, 309, 310, and

[[Page 13278]]

316, and Sec. Sec.  1.407 and 1.411 of the Commission's rules, 47 CFR 
1.407, 1.411, the petition for rulemaking filed by the MVDDS 5G 
Coalition, RM-11768, is granted to the extent discussed herein and 
otherwise terminated, and this NPRM in the captioned docket(s) is 
adopted.
    60. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this NPRM, including the IRAF, to the Chief Counsel for 
Advocacy of the Small Business Administration.

Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2021-04115 Filed 3-5-21; 8:45 am]
BILLING CODE 6712-01-P


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