[Federal Register Volume 62, Number 21 (Friday, January 31, 1997)]
[Rules and Regulations]
[Pages 4649-4657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2007]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 2 and 15

[ET Docket No. 96-102; FCC 97-5]


Unlicensed NII Devices in the 5 GHz Frequency Range

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: By this action, the Commission amends its radio frequency 
devices rules to make available 300 megahertz of spectrum at 5.15-5.35 
GHz and 5.725-5.825 GHz for use by a new category of unlicensed 
equipment, called Unlicensed National Information Infrastructure (``U-
NII'') devices. These devices will provide short-range, high speed 
wireless digital communications on an unlicensed basis. We anticipate 
that U-NII devices will support the creation of new wireless local area 
networks (``LANs'') and will facilitate wireless access to the National 
Information Infrastructure (``NII''). In order to permit significant 
flexibility in the design and operation of these devices, we are 
adopting the minimum technical rules necessary to prevent interference 
to other services and to ensure that the spectrum is used efficiently. 
We believe that the rules set forth herein will foster the development 
of a broad range of new devices and communications options that will 
stimulate economic development and the growth of new industries. We 
also expect that this action will promote the ability of U.S. 
manufacturers, including small businesses, to compete globally by 
enabling them to develop unlicensed digital communications products for 
the world market.


[[Page 4650]]


EFFECTIVE DATE: April 1, 1997.

FOR FURTHER INFORMATION CONTACT: Tom Derenge 418-2451 or Fred Thomas 
418-2449.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Report and Order, ET Docket 96-102, FCC 97-5, adopted January 9, 
1997, and released January 9, 1997. The full text of this 
Commission decision is available for inspection and copying during 
normal business hours in the FCC Reference Center (Room 239), 1919 
M Street, N.W., Washington, D.C., and also may be purchased from 
the Commission's duplication contractor, International 
Transcription Service, (202) 857-3800, 2100 M Street, N.W., Suite 
140, Washington, D.C. 20037.

Summary of the Report and Order

    1. On April 25, 1996, the Commission adopted a Notice of Proposed 
Rule Making (``NPRM''), 61 FR 24749, May 16, 1996; this proceeding 
proposed to make available 350 megahertz of spectrum at 5.15-5.35 GHz 
and 5.725-5.875 GHz for Unlicensed National Information Infrastructure 
(``U-NII'') devices.<SUP>1 The NPRM proposed that such devices be 
subject to minimum technical standards, including power limits, out-of-
band emission limits, and spectrum etiquette. We tentatively concluded 
that these standards would be necessary to ensure that licensed 
services in the bands would be protected from harmful interference, 
that the spectrum would be used efficiently, and that all U-NII devices 
would have equal access to the spectrum. The NPRM also solicited 
comments whether we should adopt a channeling plan, a minimum 
modulation efficiency, and whether we should regulate any U-NII 
operations as a licensed service, particularly those intended for long-
range community network applications. Further, the NPRM also proposed 
to establish ``safe-harbor'' rules setting forth conditions under which 
unlicensed devices could operate without risk of being considered 
sources of harmful interference.
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    \1\ We note that in the Notice of Proposed Rule Making in this 
proceeding, we referred to these devices as NII/SUPERNet devices. 
However, on July 2, 1996, we received a letter from Smart & 
Thevenet, P.C. on behalf of its client, SuperNet, Inc., which 
requests that the Commission refrain from using the word 
``SUPERNet'' because it would infringe upon its trademark 
registration of the name ``Colorado Supernet.'' Accordingly, we have 
adopted the term ``Unlicensed National Information Infrastructure or 
U-NII'' to refer to the devices in this proceeding.
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    2. The Commission's proposal to provide spectrum to accommodate U-
NII devices is strongly supported by the majority of the commenters 
(``U-NII proponents''). U-NII proponents argue that U-NII devices would 
facilitate connections among computers, televisions, appliance 
automation products, and on-premises network cable or telephone company 
access points within homes, schools and health care facilities. 
Further, they submit that unlicensed devices could potentially satisfy 
a collection of communications needs that otherwise would probably 
remain unmet if free and open consumer access to spectrum were not 
available. In particular, U-NII proponents argue that existing wireless 
allocations and wireline alternatives are not capable of providing the 
types of services that are envisioned for U-NII devices. However, 
parties with incumbent operations on this spectrum argue that the 
record does not sufficiently demonstrate a need for this new unlicensed 
spectrum.
    3. The Commission finds that there is a need for unlicensed 
wireless devices that will be capable of providing data rates as high 
as 20 Mbits/sec to meet the multimedia communication requirements 
envisioned by the U-NII proponents. To achieve these high data rates at 
a reasonable cost, we believe that these devices must use broad 
bandwidths of up to 20 megahertz each and therefore these devices must 
have access to a substantial amount of spectrum to accommodate a number 
of devices within the same area. Further, we believe that accessibility 
to a substantial amount of spectrum is necessary for these devices to 
develop and mature to their full potential. The record in this 
proceeding supports the conclusion that recent developments in digital 
technologies have greatly increased the requirements for transferring 
large amounts of information and data in relatively short time frames 
from one network or system to another. Specifically, we note that 
computers have much faster central processing units and substantially 
increased memory capabilities, which have increased the demand for 
devices that can more quickly transfer larger amounts of data. Further, 
digital equipment is capable of switching and directing large amounts 
of information within networks. In addition to these technical advances 
in hardware capability, there has been substantial growth in the use, 
size, and complexity of digital networks as well. Many of these 
networks are not only growing internally in the amount and types of 
data they contain, but are also increasingly being used in combination 
and interaction with other such networks.
    4. The Commission finds that it is appropriate to provide spectrum 
for wireless unlicensed digital network communications devices to meet 
the growing communications demands of multimedia network systems 
resulting from developments of new digital technologies. We believe 
that this will facilitate rapid and inexpensive wireless access to 
information resources by educational institutions, business, industry, 
and consumers. We also believe that making this spectrum available for 
U-NII devices will further the Commission's mandate, in Section 257(b) 
of the Communications Act, to promote vigorous competition and 
technological advancement.<SUP>2 For example, allowing unlicensed 
devices access to the 5.15-5.35 GHz and 5.725-5.825 GHz bands will 
permit educational institutions to form inexpensive broadband wireless 
computer networks between classrooms, thereby facilitating cost-
effective access to an array of multimedia services on the Internet. In 
addition, unlicensed wireless networks could help improve the quality 
and reduce the cost of medical care by allowing medical staff to obtain 
on-the-spot patient data, X-rays, and medical charts.
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    \2\ See 47 U.S.C. Sec. 257(b) (``the Commission shall promote 
the policies and purposes of this Act promoting * * * vigorous 
economic competition, technological advancement, and promotion of 
the public interest, convenience, and necessity.'').
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    5. The U-NII proponents support providing 350 megahertz of spectrum 
in the 5 GHz range for these devices. They argue that 350 megahertz of 
spectrum is needed to realize the full potential of today's broadband 
information technologies and to encourage further innovation in the 
delivery of new broadband digital communications. They claim that 
providing unlicensed broadband devices access to this amount of 
spectrum will meet the needs of multiple users at a common location and 
should be sufficient to provide for open entry and equal access by all 
unlicensed devices. Further, they claim that this amount of spectrum is 
needed to provide an environment for robust development and growth, and 
to permit the communications infrastructure to keep pace with future 
computer advancements. U-NII proponents further argue that 350 
megahertz is necessary for wide bandwidth U-NII networks because these 
devices will have to share the spectrum with other users, such as 
Mobile Satellite Service (``MSS''), Amateur, and Industrial, 
Scientific, and Medical (``ISM''). Finally, U-NII proponents note that 
the

[[Page 4651]]

proposed bands would align the spectrum available domestically for U-
NII devices with the spectrum available for European HIPERLAN systems.
    6. The Commission continues to believe that it is appropriate to 
provide unlicensed devices with access to a substantial amount of 
spectrum at 5 GHz to accommodate the demand by educational, medical, 
business, industrial and consumer users for broadband multimedia 
communications. We are also cognizant, however, of the need for U-NII 
devices to share the spectrum with primary services without causing 
radio interference to those services. We believe that both of these 
concerns can be accommodated by adopting appropriate technical 
restrictions for U-NII devices, particularly transmit power and out-of-
band emission limits, and by avoiding portions of the spectrum where 
sharing would be particularly difficult. Accordingly, we will make 300 
megahertz of spectrum available for U-NII devices. Specifically, we are 
providing U-NII devices access to three 100 megahertz bands at 5.15-
5.25 GHz, 5.25-5.35 GHz and 5.725-5.825 GHz. We recognize that this is 
less than the 350 megahertz that was proposed, but we believe that this 
amount of spectrum provides an appropriate balance between spectrum 
sharing concerns and providing sufficient spectrum to satisfy the needs 
of U-NII devices.
    7. The Commission believes that 300 megahertz of spectrum will 
provide sufficient spectrum to allow the full potential of broadband 
multimedia technologies to be realized. This spectrum should provide 
for open entry and equal access by all such devices and to allow access 
to the spectrum by multiple users at a common location using a variety 
of different devices. In this regard, we note that these broadband 
devices each may require 20 to 25 megahertz channel bandwidth to 
provide the high data rates envisioned by the petitioners. The 
Commission also believes that the 300 megahertz of spectrum being 
provided for U-NII devices avoids the use of spectrum that would be 
particularly difficult to share with primary operations. It believes 
that U-NII devices can share with proposed and existing services in 
these bands including the MSS feeder link operations that may use the 
5.15-5.25 GHz band. However, U-NII devices will not have access to 
spectrum used by microwave landing systems (``MLS'') operated by the 
Federal Aviation Administration in the 5.0-5.15 GHz band. Additionally, 
U-NII devices will not have access to the 5.825-5.875 GHz band. This 
will avoid potential interference with low power Part 15 hearing aid 
devices and potential Intelligent Transportation Service operations in 
the 5.850-5.875 GHz band, Fixed Satellite Service operations in the 
5.850-5.925 GHz band, and amateur operations in the 5.650-5.725 and 
5.825-5.925 GHz bands.
    8. The 300 megahertz will be available to U-NII devices into three 
bands of 100 megahertz each and will establish the following maximum U-
NII device power limits for each band: a) in the 5.15-5.25 GHz band, 
the maximum peak transmitter output power limit will be 50 milliwatts 
(``mW'') with up to 6 dBi antenna gain permitted, which equates to 200 
m Equivalent Isotropically Radiated Power (``EIRP''); b) in the 5.25-
5.35 GHz band, the maximum peak transmitter output power limit will be 
250 m with up to 6 db antenna gain permitted, which equates to 1 W 
EIRP; and c) in the 5.725-5.825 GHz band, the maximum peak transmitter 
output power limit will be 1 W with up to 6 db directional antenna gain 
permitted, which equates to 4 W EIRP. To permit manufacturers 
flexibility in designing U-NII equipment, we will permit the use of 
higher directional antenna gain provided there is a corresponding 
reduction in transmitter output power of one dB for every dB that the 
directional antenna gain exceeds 6 db.
    9. Additionally, in all three bands we are adopting peak power 
spectral density limits to ensure that the power transmitted by U-NII 
devices is evenly spread over the emission bandwidth. Specifically, we 
will require U-NII devices to decrease transmitter output power 
proportionally to any decrease in emission bandwidth below 20 MHz. For 
U-NII devices operating with less than 20 megahertz of emission 
bandwidth, we will limit power spectral density as follows: a) in the 
5.15-5.25 GHz band, the transmitter peak power spectral density will be 
2.5 m/MHz for an antenna gain of 6 db; b) in the 5.25-5.35 GHz band, 
the transmitter peak power spectral density will be 12.5 m/MHz for an 
antenna gain of 6 db; and c) in the 5.725-5.825 GHz band, the 
transmitter peak power spectral density will be 50 m/MHz for an antenna 
gain of 6 db.<SUP>3 Further, we are adopting out-of-band emission 
limits to protect operations outside the frequency bands of operation.
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    \3\ These power spectral density requirements shall be measured 
with a spectrum analyzer having a resolution bandwidth of 1 
megahertz.
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    10. Another goal in this proceeding is to provide rules which 
permit maximum technical flexibility in the design and development of 
U-NII devices capable of providing high data rate communications for a 
variety of multimedia applications in a shared spectrum environment. 
Therefore, the Commission declined to adopt specific channelization 
requirements or a minimum modulation efficiency requirement. 
Additionally, the Commission declined to adopt a spectrum sharing 
etiquette for U-NII devices, nor will access to the 5 GHz bands by U-
NII devices be delayed until industry develops an etiquette. We believe 
the minimal technical rules we are adopting, particularly the maximum 
power limits discussed above, will generally allow for equal access and 
sharing of these bands by U-NII devices and thereby accomplish the 
intent of our proposed spectrum etiquette. Finally, our course of 
action will not preclude industry from developing any voluntary 
standards that it deems appropriate in the future.
    11. Nevertheless, we are adopting a definition for the type of 
devices that will be approved for this band and regulated under the 
Part 15 rules. Specifically, the Part 15 rules will state that 
unlicensed U-NII operations in the 5.15-5.35 GHz and 5.725-5.825 GHz 
bands will be limited to wide bandwidth, high data rate digital 
operations. Unlicensed devices accessing the 5.725-5.825 GHz band under 
other Part 15 rules would not be subject to this definition. This will 
give equipment manufacturers the flexibility to design and manufacture 
a variety of broadband devices using different technologies and 
modulation techniques, while ensuring that this spectrum is used for 
its intended purpose. This definition will be enforced through the 
Commission's equipment certification process.
    12. The Commission also stated that the low power U-NII devices and 
associated operations are more amenable to an unlicensed structure and 
should be regulated under the Part 15 rules. Specifically, the rules 
governing U-NII devices are similar in their low power and flexible 
regulatory nature to those governing Part 15 devices. While some U-NII 
devices in the upper band could have ranges of several kilometers, we 
believe that most devices will have typical communication ranges of a 
few meters to a few hundred meters. We also are unpersuaded by the 
arguments that U-NII devices and associated operations need to be 
licensed in order to provide regulatory parity with licensed services. 
With regard to unlicensed U-NII devices that are used for community 
networks in the upper band, we note that these will also be of very 
limited range in comparison to the distances of

[[Page 4652]]

fixed point-to-point operations, will have to operate in a Part 15 
sufferance mode and may not always be able to provide the same grade of 
service as the licensed operations. That is, they will receive no 
protection from other users of the spectrum. Finally, we believe that 
the vast majority of U-NII devices will provide communications that are 
complementary to, rather than competitive with, the licensed services.
    13. We recognize that it is likely that two new uses of the 5.15-
5.25 GHz band, MSS feeder link operations and U-NII devices, will be 
developing at the same time. In view of this fact, as indicated above, 
we are adopting relatively conservative operating parameters for U-NII 
devices utilizing this band. While we believe that this approach for U-
NII devices is technically conservative and will fully protect MSS 
operations, we note that MSS interests have also suggested that we 
limit the aggregate EIRP density of emissions from unlicensed devices 
on the Earth's surface to the MSS satellite to 10 dBW/MHz.<SUP>4 They 
argue that MSS operations could begin to be affected when emissions 
from unlicensed devices approach such a level. Alternatively, they 
suggest that the Commission should review the technical parameters for 
U-NII operations in a future rule making as such a limit is approached. 
They state this would allow the Commission to review, for example, 
whether some future reduction in permitted power of U-NII devices in 
this band should be imposed. They state that all existing U-NII devices 
would be grandfathered. We concur that such an approach would provide 
further assurance that future potential conflicts between U-NII devices 
and MSS operations are taken into account and that MSS operations are 
protected appropriately. Accordingly, we invite MSS parties to monitor 
the emissions from U-NII devices in the 5.15-5.25 GHz band and, if 
emissions approach the 10 dBW/MHz level, to request that we initiate a 
rule making to reassess the use of this band. At that time the 
Commission could determine if future U-NII devices should be required 
to operate at different technical standards. In this regard, we note 
that it may also be appropriate to reassess the technical parameters 
governing U-NII devices in light of second generation MSS systems. For 
example, second generation MSS systems may be more sensitive and 
therefore more susceptible to interference from U-NII devices. On the 
other hand, if European HIPERLAN systems proliferate and operate at 
more power than U-NII devices, second generation MSS systems may of 
necessity be designed to be more robust and immune to interference from 
such devices.
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    \4\ This equates to a power flux density of -124 dBW/MHz/m\2\ at 
a satellite with a slant range of 1414 km. See ex parte filing of 
Airtouch, December 5, 1996; see also, Draft New Recommendation--
Power Flux Density Limits for Wireless Data Networks In The 5150-
5250 MHz Band Sharing Frequencies With Systems In The Fixed 
Satellite Service, to ITU-R Working Party 4-9S, David E. Weinreich 
of Globalstar, November 27, 1996.
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    14. Finally, all U-NII devices will be required to be authorized 
under the Commission's certification procedure. The Commission will 
also require U-NII devices to comply with the RF Hazard requirements 
set forth in Sections 1.1307(b), 1.1310, 2.1091, and 2.1093 of our 
rules. For purposes of these rules, all U-NII equipment will be deemed 
to operate in an ``uncontrolled'' environment. Any application for 
equipment certification for these devices must contain a statement 
confirming compliance with these requirements. Technical information 
showing the basis for this statement must be submitted to the 
Commission upon request.

Final Regulatory Flexibility Analysis

    15. As required by Section 603 of the Regulatory Flexibility Act, 5 
U.S.C. 603 (``RFA''), an Initial Regulatory Flexibility Analysis 
(``IRFA'') was incorporated in the Notice of Proposed Rule Making 
(``NPRM''), ET Docket No. 96-102.<SUP>5 The Commission sought written 
public comment on the proposals in the NPRM, including the IRFA. The 
Commission's Final Regulatory Flexibility Analysis (``FRFA'') in this 
Report and Order conforms to the RFA, as amended by the Contract With 
America Advancement Act of 1996 (``CWAAA''), Public Law No. 104-121, 
110 Stat. 847 (1996).<SUP>6
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    \5\ See Notice of Proposed Rule Making, ET Docket No. 96-102, 11 
FCC Rcd 7205 (1996).
    \6\ See Subtitle II of the CWAAA is ``The Small Business 
Regulatory Enforcement Fairness Act of 1996'' (``SBREFA''), codified 
at 5 U.S.C. 603.
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16. Need for and Objectives of the Rule

    By this action, the Commission provides 300 megahertz of spectrum 
for a new category of unlicensed equipment called ``Unlicensed National 
Information Infrastructure'' (``U-NII'') devices. These devices are 
needed to provide high speed wireless digital communications on an 
unlicensed basis. The Commission anticipates that these U-NII devices 
will support the creation of new wireless LANs, campus networks, 
community networks, and will facilitate wireless access to the National 
Information Infrastructure. Additionally, the rules set forth herein 
will foster the development of a broad range of new devices and 
services that will stimulate economic development and the growth of new 
industries. Finally, this action will promote the ability of U.S. 
manufacturers to compete globally by enabling them to develop 
unlicensed digital communications products for the world market.

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

    Five parties directly address the IRFA. In general, comments 
support the provision of U-NII devices and argue that these operations 
will benefit small entities. Several comments addressing the IRFA argue 
that longer range U-NII devices will be needed to permit schools and 
libraries to access information on the NII without having to pay 
expensive monthly charges, such as long distance fees, to 
telecommunications service providers. Further, these parties state that 
longer range U-NII devices will not only benefit equipment 
manufacturers, but also will benefit Internet service providers, small 
entities in rural communities, and the up to 5 million small businesses 
that offer products and services over the Internet.<SUP>7 However, 
regarding the manufacturers of U-NII devices, the Northern Amateur 
Relay Council of California, Inc. (``NARCC'') argues that only 
established major players in the microwave radio community will have 
the talent and resources to bring U-NII devices to the market in a 
timely manner. Therefore, NARCC contends that affording small companies 
preferential treatment will not produce anything significant in the way 
of a lower cost, more innovative product.<SUP>8 Finally, Cylink, Inc. 
opposes the adoption of an interim spectrum etiquette because small 
entities would not have the resources to develop interim equipment and 
to later redesign that equipment to comply with any formally adopted 
spectrum etiquette.<SUP>9
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    \7\ See Wireless Field Test for Education Project; Fundamental 
Research Corporation; Crystal Wind Communications, Inc.; and Jean 
Armour Polly.
    \8\ See Northern Amateur Relay Council of California, Inc. 
Comments at 7.
    \9\ See Cylink Reply at 17.
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18. Description and Estimate of the Number of Small Entities to Which 
the Rules Will Apply

    The RFA generally defines the term ``small business'' as having the 
same meaning as the term ``small business concern'' under the Small 
Business Act, 15 U.S.C. 632. Based on that statutory

[[Page 4653]]

provision, we will consider a small business concern one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
Small Business Administration (SBA). The RFA SBREFA provisions also 
apply to nonprofit organizations and to governmental organizations. 
Since the Regulatory Flexibility Act amendments were not in effect 
until the record in this proceeding was closed, the Commission was 
unable to request information regarding the number of small business 
that might use this service and is unable at this time to determine the 
number of small businesses that would be affected by this action. The 
rules adopted in this Report and Order will apply to any entities 
manufacturing U-NII devices to operate in the 5 GHz range which could 
include computer manufacturers and unlicensed RF equipment 
manufacturers. Although the rules do not directly affect entities that 
purchase this equipment, comments contend that several million 
entities, including consumers, schools, libraries, and small 
businesses, could benefit from the use of these devices.
    19. The rules adopted in this Report and Order will apply to 
entities engaged in the manufacturing of U-NII devices. The Commission 
has not developed a definition of small entities applicable to 
unlicensed device manufacturers. Therefore, the applicable definition 
of small entity is the definition under the Small Business 
Administration (``SBA'') rules applicable to manufacturers of ``Radio 
and Television Broadcasting and Communications Equipment'' and 
``Computer Manufacturers.'' According to the SBA's regulations, an RF 
manufacturer must have 750 or fewer employees in order to qualify as a 
small business.<SUP>10 Census Bureau data indicates that there are 858 
companies in the United States that manufacture radio and television 
broadcasting and communications equipment, and that 778 of these firms 
have fewer than 750 employees and would be classified as small 
entities.<SUP>11 Further, according to SBA regulations, a computer 
manufacturer must have 1,000 or fewer employees in order to qualify as 
a small entity.<SUP>12 Census Bureau data indicates that there are 716 
firms that manufacture electronic computers and of those, 659 have 
fewer than 500 employees and qualify as small entities.<SUP>13 The 
remaining 57 firms have 500 or more employees; however, we are unable 
to determine how many of those have fewer than 1,000 employees and 
therefore also qualify as small entities under the SBA definition. The 
Census Bureau categories are very broad and specific figures are not 
available on the number of these firms that will manufacture U-NII 
devices; however, we acknowledge the likelihood that many of them will 
be small businesses.
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    \10\ See 13 CFR 121.201, Standard Industrial Classification 
(SIC) Code 3663.
    \11\ See U.S. Department of Commerce, 1992 Census of 
Transportation, Communications and Utilities (issued May 1995), SIC 
category 3663.
    \12\ See 13 CFR 121.201 (SIC) Code 3571.
    \13\ See U.S. Small Business Administration 1995 Economic Census 
Industry and Enterprise Report, Table 3, SIC Code 3571, (Bureau of 
the Census data adapted by the Office of Advocacy of the U.S. Small 
Business Administration).
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20. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements

    The rules adopted in this Report and Order will require U-NII 
manufacturers to comply with the Commission's equipment certification 
requirements set forth in Section 15.210(b), prior to marketing, and 
the radio frequency hazard requirements set forth in Sections 
1.1307(b), 1.1310, 2.1091, and 2.1093 of the rules. All equipment will 
be deemed to operate in an ``uncontrolled'' environment. Any 
application for equipment certification for these devices must contain 
a statement confirming compliance with these requirements. Technical 
information showing the basis for this statement must be submitted to 
the Commission upon request. The equipment certification requirement is 
necessary to ensure compliance with the Commission's rules and promote 
electromagnetic compatibility. Further, compliance with the radio 
frequency hazard requirements is necessary to protect the health of 
individuals using the equipment. These requirements are typically 
required for all unlicensed equipment. No further reporting or 
recordkeeping requirements will be imposed. Therefore, the only 
compliance costs likely to be incurred are costs necessary to ensure 
that prototype devices comply with our equipment certification 
requirements and radio frequency hazard requirements.
    21. Skills of an application examiner, radio technician or engineer 
will be needed to meet the requirements. If a device is not 
categorically excluded, the manufacturer of the device must make a 
determination of whether the device will comply with the RF radiation 
limits. This study can be done by calculation or measurement, depending 
upon the situation. In many cases the studies can be done by a radio 
technician or engineer. Certification applications are usually done by 
application examiners.

22. Significant Alternatives and Steps Taken By Agency To Minimize 
Significant Economic Impact on a Substantial Number of Small Entities 
Consistent With Stated Objectives

    Based on comments received in response to the NPRM, the Commission 
considered several significant alternatives. For example, although the 
NPRM proposed to make 350 megahertz available for U-NII devices, 
parties with incumbent or future operations request that less spectrum 
be made available in order to protect their interests. Specifically, 
parties with mobile satellite service (``MSS'') interests argue that U-
NII devices should not be permitted in the 5.15-5.25 GHz band because 
of potential use of this band by MSS feeder links.<SUP>14 Further, 
amateur radio parties oppose U-NII operations in the 5.725-5.875 GHz 
band because of amateur operations in this spectrum.<SUP>15 Resound 
Corporation (``Resound'') and the Federal Highway Administration 
(``FHWA'') oppose U-NII operations in the 5.850-5.875 GHz band because 
of future plans to use this spectrum.<SUP>16 After considering these 
alternatives, the Commission concluded that 300 megahertz of U-NII 
spectrum at 5.15-5.35 GHz and 5.725-5.825 GHz is appropriate for these 
devices to operate without interfering with incumbent and potential 
operations. This reduction from the proposed U-NII spectrum is 
necessary to protect Part 15 hearing assistance devices, potential 
intelligent transportation system operations, and amateur operations in 
the 5.825-5.875 GHz band from interference. This action should not have 
a negative impact on small U-NII businesses and will protect incumbent 
and proposed spectrum users which may be small businesses.
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    \14\ See e.g., Loral/Qualcomm Licensee, Inc. Comments at 4.
    \15\ See e.g., Amateur Radio Relay League, Inc. Comments at 5.
    \16\ See Resound Comments at 7 and FHWA Comments at 2.
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    23. Additionally, various parties recommend different technical 
standards for U-NII devices. For example, some U-NII proponents support 
increasing the proposed power limit and permitting unrestricted antenna 
gain for U-NII devices in order to accomplish longer range 
communications.<SUP>17 However, AT&T and point-to-point microwave 
parties oppose longer range use of U-NII devices and support short 
range, low

[[Page 4654]]

power operations.<SUP>18 The Commission has determined that U-NII 
devices should be governed by minimal technical rules which permit 
maximum flexibility in the way these devices are implemented. 
Specifically, the Commission has concluded that an increase in the 
power limits proposed in the NPRM is supported by new material in the 
record in this proceeding, but does not believe unrestricted antenna 
gain should be permitted due to interference concerns. The Commission 
has determined that the public interest is best serviced by increasing 
the maximum peak power limit as follows: 50 mW peak transmitter output 
power with up to 6 dBi antenna gain (equates to 200 mW EIRP) permitted 
in the 5.15-5.25 GHz band; 250 mW peak transmitter output power with up 
to 6 dBi antenna gain (equates to 1 W EIRP) permitted in the 5.25-5.35 
GHz band; and 1 W peak transmitter output power with up to 6 dBi 
antenna gain (equates to 4 W EIRP) permitted in the 5.725-5.825 GHz 
band. In addition, to permit manufacturers flexibility in designing U-
NII equipment, the Commission will permit the use of higher directional 
antenna gain provided there is a corresponding reduction in transmitter 
output power of one dB for every dB that the directional antenna gain 
exceeds 6 dBi. Also, U-NII use of the 5.15-5.25 GHz band is restricted 
to indoor operations only. Further, this action adopts a power spectral 
density (``PSD'') requirement for U-NII devices that would require that 
the maximum power be spread across a bandwidth of at least 20 
megahertz. This PSD requirement will ensure that U-NII devices spread 
its signal energy evenly across the band and encourages the use of this 
spectrum by wideband high data rate applications, but permits non-
wideband operations at reduced powers. These increased power limits 
will permit U-NII equipment manufacturers, many of which may be small 
businesses, more flexibility to develop products to meet market 
demands.
---------------------------------------------------------------------------

    \17\ See e.g., Apple Computer, Inc. Comments at 8.
    \18\ See e.g., AT&T Comments at 3; Pacific Telesis Group 
Comments at 4; and Telecommunications Industry Association, Fixed 
Point-to-Point Communications Section Comments at 4.
---------------------------------------------------------------------------

    24. Further, the Commission considered several alternatives from 
the comments regarding a spectrum etiquette for U-NII devices. Although 
some parties support the proposed interim ``listen-before-talk'' 
(``LBT'') spectrum etiquette until industry can develop a formal 
spectrum etiquette,<SUP>19 others oppose the interim etiquette because 
it would limit the flexibility of U-NII devices to use different 
technologies.<SUP>20 Further, several U-NII proponents support the 
adoption of an industry developed spectrum etiquette to govern 
unlicensed use of this spectrum.<SUP>21 Metricom, however, suggests 
that rather than adopting a complex spectrum etiquette, U-NII devices 
should be required to use spread spectrum techniques.<SUP>22 The 
Commission has now concluded that the proposed LBT spectrum etiquette 
could delay deployment of U-NII devices and hinder innovation in the 
development of these devices. Rather, the Commission has concluded that 
simple technical rules, such as PSD limits and out-of-band emission 
requirements, should be sufficient to ensure spectrum sharing between 
incumbent operations and new U-NII devices. The Commission declined to 
adopt a spectrum etiquette, any channelization plan, or a minimum 
modulation efficiency requirement because such requirements may 
preclude certain technologies or some of the many different concepts 
envisioned by U-NII proponents. We believe this action will benefit 
small entities by permitting these entities to develop innovative 
equipment to meet market demands without having to follow protocols 
governing use of the spectrum.
---------------------------------------------------------------------------

    \19\ See e.g., Consumer Electronics Manufacturers' Association 
Comments at 4.
    \20\ See e.g., Hewlett-Packard Comments at 3.
    \21\ See e.g., WINForum comments at 21.
    \22\ See Metricom Reply at 10.
---------------------------------------------------------------------------

    25. Finally, we proposed to establish parameters in the rules 
(``safe harbor''), under which U-NII devices complying with these 
parameters could operate without being considered sources of harmful 
interference. Incumbent parties oppose ``safe harbor'' rules or any 
action that would provide unlicensed devices addition spectrum 
rights.<SUP>23 However, U-NII proponents request that these devices be 
protected either by ``safe harbor'' rules or by providing a primary 
allocation status for the unlicensed operations.<SUP>24 After 
considering the alternatives, the Commission concluded that ``safe 
harbor'' rules are not necessary at this time to provide assurances to 
assurance to U-NII operators that their communications will not be 
prohibited. Rather, the Commission invited MSS parties to monitor the 
emissions from U-NII devices in the 5.15-5.25 GHz band and if emissions 
approach the 10 dBW/MHz level to request that we reassess the use of 
this band through future rule making.<SUP>25 At that time the 
Commission could determine if future U-NII devices should be required 
to operate at different technical standards. This approach will provide 
both MSS feeder link and U-NII operations with an appropriate level of 
protection and assurance for the continuation of their operations. 
While, the Commission is confident that an interference situation will 
not arise, this approach will permit it to develop regulatory solutions 
that will adequately protect the investments of both services, if such 
a situation were to develop.
---------------------------------------------------------------------------

    \23\ See e.g., Loral/Qualcomm Licensee, Inc. Comments at 15; 
Metricom Reply at 7; and San Bernardino Microwave Society Reply at 
3.
    \24\ See e.g., Apple Computer Comments at 27, WINForum Reply at 
23, and Consumer Electronics Manufacturers' Association Comments at 
7.
    \25\ We also note that it may also be appropriate to reassess 
the technical parameters governing U-NII devices in light of second 
generation MSS systems. For example, second generation MSS systems 
may be more sensitive and therefore more susceptible to interference 
from U-NII devices. On the other hand, if European HIPERLAN systems 
proliferate and operate at more power than U-NII devices, second 
generation MSS systems may be required to more robust and immune to 
interference from such devices.
---------------------------------------------------------------------------

26. Report to Congress

    The Commission shall send a copy of this Final Regulatory 
Flexibility Analysis, along with this Report and Order, in a report to 
Congress pursuant to the Small Business Regulatory Enforcement Fairness 
Act of 1996, 5 U.S.C. 801(a)(1)(A). A copy of this FRFA will also be 
published in the Federal Register.

List of Subjects

47 CFR Part 1

    Administrative practice and procedure.

47 CFR Part 2

    Communications equipment, Radio.

47 CFR Part 15

    Radio.

Federal Communications Commission.
William F. Caton,
Acting Secretary.

Rules Changes

    Parts 1, 2 and 15 of title 47 of the Code of Federal Regulations 
are amended as follows:

PART 1--PRACTICE AND PROCEDURE

    1. The authority citation for part 1 continues to read as follows:

    Authority: 15 U.S.C. 79 et seq., and 47 U.S.C. 151, 154(i), 
154(j), and 303(r).

    2. Section 1.1307 is amended by revising paragraph (b)(2) to read 
as follows:

[[Page 4655]]

Sec. 1.1307  Actions which may have a significant environmental effect, 
for which Environmental Assessments (EAs) must be prepared.

* * * * *
    (b) * * *
    (2) Mobile and portable transmitting devices that operate in the 
Cellular Radiotelephone Service, the Personal Communications Services 
(PCS), the Satellite Communications Services, the Maritime Services 
(ship earth stations only) and covered Specialized Mobile Radio Service 
providers authorized under subpart H of part 22, part 24, part 25, part 
80, and part 90 of this chapter are subject to routine environmental 
evaluation for RF exposure prior to equipment authorization or use, as 
specified in Secs. 2.1091 and 2.1093 of this chapter. All unlicensed 
PCS, unlicensed NII and millimeter wave devices are also subject to 
routine environmental evaluation for RF exposure prior to equipment 
authorization or use, as specified in Secs. 15.253(f), 15.255(g), 
15.319(i), and 15.407(f) of this chapter. All other mobile, portable, 
and unlicensed transmitting devices are categorically excluded from 
routine environmental evaluation for RF exposure under Secs. 2.1091 and 
2.1093 of this chapter except as specified in paragraphs (c) and (d) of 
this section.
* * * * *

PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL 
RULES AND REGULATIONS

    1. The authority citation for Part 2 continues to read as follows:

    Authority: Sec. 4, 302, 303 and 307 of the Communications Act of 
1934, as amended, 47 U.S.C. 154, 302, 303 and 307, unless otherwise 
noted.

    2. Section 2.1091 is amended by revising paragraphs (c) and (d) 
introductory text to read as follows:


Sec. 2.1091  Radiofrequency radiation exposure evaluation: mobile and 
unlicensed devices.

* * * * *
    (c) Mobile devices that operate in the Cellular Radiotelephone 
Service, the Personal Communications Services, the Satellite 
Communications Services, the Maritime Services and the Specialized 
Mobile Radio Service authorized under subpart H of part 22 of this 
chapter, part 24 of this chapter, part 25 of this chapter, part 80 of 
this chapter (ship earth station devices only) and part 90 of this 
chapter (``covered'' SMR devices only, as defined in the note to Table 
1 of Sec. 1.1307(b)(1) of this chapter), are subject to routine 
environmental evaluation for RF exposure prior to equipment 
authorization or use if their effective radiated power (ERP) is 1.5 
watts or more. Unlicensed personal communications service, unlicensed 
millimeter wave devices and unlicensed NII devices authorized under 
Sec. 15.253, Sec. 15.255 and subparts D and E of part 15 of this 
chapter are also subject to routine environmental evaluation for RF 
exposure prior to equipment authorization or use, regardless of their 
power used, unless they meet the definition of a portable device as 
specified in Sec. 2.1093(b). All other mobile and unlicensed 
transmitting devices are categorically excluded from routine 
environmental evaluation for RF exposure prior to equipment 
authorization, except as specified in Secs. 1.1307(c) and 1.1307(d) of 
this chapter. Applications for equipment authorization of mobile and 
unlicensed transmitting devices subject to routine environmental 
evaluation must contain a statement confirming compliance with the 
limits specified in paragraph (d) of this section as part of their 
application. Technical information showing the basis for this statement 
must be submitted to the Commission upon request.
    (d) The limits to be used for evaluation are specified in 
Sec. 1.1310 of this chapter. All unlicensed personal communications 
service (PCS) devices and unlicensed NII devices shall be subject to 
the limits for general population/uncontrolled exposure.
* * * * *
    3. Section 2.1093(c) is revised to read as follows:


Sec. 2.1093  Radiofrequency radiation exposure evaluation: portable 
devices.

* * * * *
    (c) Portable devices that operate in the Cellular Radiotelephone 
Service, the Personal Communications Services, the Satellite 
Communications services, the Maritime Services and the Specialized 
Mobile Radio Service authorized under subpart H of part 22 of this 
chapter, part 24 of this chapter, part 25 of this chapter, part 80 of 
this chapter (ship earth station devices only), part 90 of this chapter 
(``covered'' SMR devices only, as defined in the note to Table 1 of 
Sec. 1.1307(b)(1) of this chapter), and portable unlicensed personal 
communication service, unlicensed NII devices and millimeter wave 
devices authorized under Sec. 15.253, Sec. 15.255 or subparts D and E 
of part 15 of this chapter are subject to routine environmental 
evaluation for RF exposure prior to equipment authorization or use. All 
other portable transmitting devices are categorically excluded from 
routine environmental evaluation for RF exposure prior to equipment 
authorization, except as specified in Secs. 1.1307(c) and 1.1307(d) of 
this chapter. Applications for equipment authorization of portable 
transmitting devices subject to routine environmental evaluation must 
contain a statement confirming compliance with the limits specified in 
paragraph (d) of this section as part of their application. Technical 
information showing the basis for this statement must be submitted to 
the Commission upon request.
* * * * *

PART 15--RADIO FREQUENCY DEVICES

    1. The authority citation for Part 15 continues to read as follows:

    Authority: 47 U.S.C. 154, 302, 303, 304, 307 and 544A.

    2. Section 15.17(a) is revised to read as follows:


Sec. 15.17  Susceptibility to interference.

    (a) Parties responsible for equipment compliance are advised to 
consider the proximity and the high power of non-Government licensed 
radio stations, such as broadcast, amateur, land mobile, and non-
geostationary mobile satellite feeder link earth stations, and of U.S. 
Government radio stations, which could include high-powered radar 
systems, when choosing operating frequencies during the design of their 
equipment so as to reduce the susceptibility for receiving harmful 
interference. Information on non-Government use of the spectrum can be 
obtained by consulting the Table of Frequency Allocations in Sec. 2.106 
of this chapter.
* * * * *
    3. Section 15.205(a) is amended in the table by removing the entry 
for 4.5-5.25 in the GHz column and adding a new entry for 4.5-5.15 in 
its place to read as follows:


Sec. 15.205  Restricted bands of operation.

    (a) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                 MHz                                    MHz                                    MHz                                   GHz                
--------------------------------------------------------------------------------------------------------------------------------------------------------
*    *    *    *    *................             *    *    *    *    *                  *    *    *    *    *                              4.5-5.15    

[[Page 4656]]

                                                                                                                                                        
*    *    *    *    *                             *    *    *    *    *                  *    *    *    *    *                 *    *    *    *    *    
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
    4. A new Subpart E is added to Part 15 to read as follows:

Subpart E--Unlicensed National Information Infrastructure Devices

Sec.
15.401  Scope.
15.403  Definitions.
15.405  Cross reference.
15.407  General technical requirements.

Subpart E--Unlicensed National Information Infrastructure Devices


Sec. 15.401  Scope.

    This subpart sets out the regulations for unlicensed National 
Information Infrastructure (U-NII) devices operating in the 5.15--5.35 
GHz and 5.725--5.825 GHz bands.


Sec. 15.403  Definitions.

    (a) U-NII devices (Unlicensed). Intentional radiators operating in 
the frequency bands 5.15--5.35 GHz and 5.725--5.825 GHz that provide a 
wide array of wideband, high data rate, digital, mobile and fixed 
communications for individuals, businesses, and institutions.
    (b) Peak transmit power. The peak power output as measured over an 
interval of time equal to the frame rate or transmission burst of the 
device under all conditions of modulation. Usually this parameter is 
measured as a conducted emission by direct connection of a calibrated 
test instrument to the equipment under test. If the device cannot be 
connected directly, alternative techniques acceptable to the Commission 
may be used.


Sec. 15.405  Cross reference.

    (a) The provisions of subparts A, B, and C of this part apply to 
unlicensed U-NII devices, except where specific provisions are 
contained in this subpart E. Manufacturers should note that this 
includes the provisions of Secs. 15.203 and 15.205.
    (b) The requirements of this subpart E apply only to the radio 
transmitter contained in the U-NII device. Other aspects of the 
operation of a U-NII device may be subject to requirements contained 
elsewhere in this chapter. In particular, a U-NII device that includes 
digital circuitry not directly associated with the radio transmitter 
also is subject to the requirements for unintentional radiators in 
subpart B of this part.


Sec. 15.407  General technical requirements.

    (a) Power limits:
    (1) For the band 5.15-5.25 GHz, the peak transmit power over the 
frequency band of operation shall not exceed 50 mW. In addition, the 
peak power spectral density shall not exceed 2.5 mW/MHz. If 
transmitting antennas of directional gain greater than 6 dBi are used, 
both the peak transmit power and the peak power spectral density shall 
be reduced by the amount in dB that the directional gain of the antenna 
exceeds 6 dBi.
    (2) For the band 5.25-5.35 GHz, the peak transmit power over the 
frequency band of operation shall not exceed 250 mW. In addition, the 
peak power spectral density shall not exceed 12.5 mW/MHz. If 
transmitting antennas of directional gain greater than 6 dBi are used, 
both the peak transmit power and the peak power spectral density shall 
be reduced by the amount in dB that the directional gain of the antenna 
exceeds 6 dBi.
    (3) For the band 5.725-5.825 GHz, the peak transmit power over the 
frequency band of operation shall not exceed 1 W. In addition, the peak 
power spectral density shall not exceed 50 mW/MHz. If transmitting 
antennas of directional gain greater than 6 dBi are used, both the peak 
transmit power and the peak power spectral density shall be reduced by 
the amount in dB that the directional gain of the antenna exceeds 6 
dBi.
    (4) The peak transmit power must be measured over any interval of 
continuous transmission using instrumentation calibrated in terms of an 
rms-equivalent voltage. The measurement results shall be properly 
adjusted for any instrument limitations, such as detector response 
times, limited resolution bandwidth capability when compared to the 
emission bandwidth, sensitivity, etc., so as to obtain a true peak 
measurement for the emission in question over the full bandwidth of the 
channel.
    (5) The peak power spectral density is measured as a conducted 
emission by direct connection of a calibrated test instrument to the 
equipment under test. Measurements are made using a resolution 
bandwidth of 1 MHz. If the device can not be connected directly, 
alternative techniques acceptable to the Commission may be used.
    (b) The peak levels of emissions outside of the frequency band of 
operation shall be attenuated below the maximum peak power spectral 
density contained within the band of operation in accordance with the 
following limits:
    (1) For transmitters operating in the band 5.15-5.25 GHz: all 
emissions within the frequency range 5.14-5.15 GHz and 5.35-5.36 GHz 
must be attenuated by a factor of at least 27 dB; within the frequency 
range outside these bands by a factor of at least 37 dB.
    (2) For transmitters operating in the 5.25-5.35 GHz band: all 
emissions within the frequency range from the band edge to 10 MHz above 
or below the band edge must be attenuated by a factor of at least 34 
dB; for frequencies 10 MHz or greater above or below the band edge by a 
factor of at least 44 dB.
    (3) For transmitters operating in the 5.725-5.825 GHz band: all 
emissions within the frequency range from the band edge to 10 MHz above 
or below the band edge must be attenuated by a factor of at least 40 
dB; for frequencies 10 MHz or greater above or below the band edge by a 
factor of at least 50 dB.
    (4) The above emission measurements shall be performed using a 
minimum resolution bandwidth of 1 MHz. A lower resolution bandwidth may 
be employed near the band edge, when necessary, provided the measured 
energy is integrated to show the total power over 1 MHz. Regardless of 
the attenuation levels shown above, emissions outside the frequency 
range of operation do not need to be attenuated below the general 
radiated emission limits in Sec. 15.209.
    (5) Unwanted emissions must comply with the general field strength 
limits set forth in Sec. 15.209. Further, any U-NII devices using an AC 
power line are required to comply also with the conducted limits set 
forth in Sec. 15.207.
    (6) The provisions of Sec. 15.205 of this part apply to intentional 
radiators operating under this section.
    (7) When measuring the emission limits, the nominal carrier 
frequency shall be adjusted as close to the upper and lower frequency 
block edges as the design of the equipment permits.
    (c) The device shall automatically discontinue transmission in case 
of either absence of information to transmit or operational failure. 
These provisions are not intended to preclude the transmission of 
control or signalling information or the use of repetitive codes used 
by certain digital technologies to complete frame or burst intervals.
    (d) Any U-NII device that operates in the 5.15-5.25 GHz band shall 
use a

[[Page 4657]]

transmitting antenna that is an integral part of the device.
    (e) Within the 5.15-5.25 GHz band, U-NII devices will be restricted 
to indoor operations to reduce any potential for harmful interference 
to co-channel MSS operations.
    (f) U-NII devices are subject to the radio frequency radiation 
exposure requirements specified in Secs. 1.1307(b), 2.1091 and 2.1093 
of this chapter, as appropriate. All equipment shall be considered to 
operate in a ``general population/uncontrolled'' environment. 
Applications for equipment authorization of devices operating under 
this section must contain a statement confirming compliance with these 
requirements for both fundamental emissions and unwanted emissions. 
Technical information showing the basis for this statement must be 
submitted to the Commission upon request.
    (g) The frequency stability of the carrier frequency of an 
intentional radiator operating under this section shall be 
<plus-minus>10 ppm over 10 milliseconds. The frequency stability shall 
be maintained over a temperature variation of -20 degrees to +50 
degrees Celsius at normal supply voltage, and over a variation in the 
primary supply voltage of 85 percent to 115 percent of the rated supply 
voltage at a temperature of +20 degrees Celsius. For equipment that is 
capable of operating only from a battery, the frequency stability tests 
shall be performed using a new battery without any further requirement 
to vary supply voltage.

[FR Doc. 97-2007 Filed 1-30-97; 8:45 am]
BILLING CODE 6712-01-P