43116 Federal Register / Vol. 62, No. 155 / Tuesday, August 12, 1997 / Rules and Regulations

the federal regulations, three of the nonauthorized state regulations mentioned

above.

C. Decision

The EPA concludes, subject to receipt

and evaluation of public comment, that

New York’s application for program

revision meets all of the statutory and

regulatory requirements established by

RCRA. Accordingly, New York is

granted final authorization to operate its

hazardous waste program as revised.

The version of the regulations being

authorized by EPA at this time are the

regulations which were in effect as of

January, 1995. The regulations so

authorized are available at the

repositories noted above and appear in

the revised version of Title 6 of the

Official Compilation of Codes, Rules

and Regulations of the State of New

York that the New York Secretary of

State has already published.

Compliance With Executive Order

12866

The Office of Management and Budget

has exempted this rule from the

requirements of Section 6 of Executive

Order 12866.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), P.L. 104–

4, establishes requirements for Federal

agencies to assess the effects of certain

regulatory actions on State, local, and

tribal governments and the private

sector. Under sections 202 and 205 of

the UMRA, EPA generally must prepare

a written statement of economic and

regulatory alternatives analyses for

proposed and final rules with Federal

mandates, as defined by the UMRA, that

may result in expenditures to State,

local, and tribal governments, in the

aggregate, or to the private sector, of

$100 million or more in any one year.

The section 202 and 205 requirements

do not apply to today’s action because

it is not a ‘‘Federal Mandate’’ and

because it does not impose annual costs

of $100 million or more.

Today’s rule contains no Federal

mandates for State, local or tribal

governments or the private sector for

two reasons. First, today’s action does

not impose new or additional

enforceable duties on any State, local or

tribal governments or the private sector

because the requirements of the New

York program are already imposed by

the State and subject to State law.

Second, the Act also generally excludes

from the definition of a ‘‘Federal

Mandate’’ duties that arise from

participation in a voluntary Federal

program. New York participation in an

authorized hazardous waste program is

voluntary.

Even if today’s rule did contain a

Federal mandate, this rule will not

result in annual expenditures of $100

million or more for State, local, and/or

tribal governments in the aggregate, or

the private sector. Costs to State, local

and/or tribal governments already exist

under the New York program, and

today’s action does not impose any

additional obligations on regulated

entities. In fact, EPA’s approval of State

programs generally may reduce, not

increase, compliance costs for the

private sector.

The requirements of section 203 of

UMRA also do not apply to today’s

action. Before EPA establishes any

regulatory requirements that may

significantly or uniquely affect small

governments, including tribal

governments, section 203 of the UMRA

requires EPA to develop a small

government agency plan. This rule

contains no regulatory requirements that

might significantly or uniquely affect

small governments. Although small

governments may be hazardous waste

generators, transporters, or own and/or

operate TSDFs, they are already subject

to the regulatory requirements under

existing State law which are being

authorized by EPA, and, thus, are not

subject to any additional significant or

unique requirements by virtue of this

program approval.

Certification Under the Regulatory

Flexibility Act

EPA has determined that this

authorization will not have a significant

economic impact on a substantial

number of small entities. Such small

entities which are hazardous waste

generators, transporters, or which own

and/or operate TSDF’s are already

subject to the regulatory requirements

under existing State law which are

being authorized by EPA. EPA’s

authorization does not impose any

additional burdens on these small

entities. This is because EPA’s

authorization would simply result in an

administrative change, rather than a

change in the substantive requirements

imposed on these small entities.

Therefore, EPA provides the following

certification under the Regulatory

Flexibility Act, as amended by the

Small Business Regulatory Enforcement

Fairness Act. Pursuant to the provision

at 5 U.S.C. 605(b), I hereby certify that

this authorization will not have a

significant economic impact on a

substantial number of small entities.

This authorization approves regulatory

requirements under existing State law to

which small entities are already subject.

It does not impose any new burdens on

small entities. This rule, therefore, does

not require a regulatory flexibility

analysis.

Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted a report containing this rule

and other required information to the

U.S. Senate, the U.S. House of

Representatives and the Comptroller

General of the General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2).

Authority: This Notice is issued under the

authority of Sections 2002(a), 3006 and

7004(b) of the Solid Waste Disposal Act, as

amended, 42 U.S.C. 6912(a), 6926, 6974(b).

Dated: July 16, 1997.

Jeanne M. Fox,

Regional Administrator.

[FR Doc. 97–20970 Filed 8–11–97; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 2, 15, and 97

[ET Docket No. 97–124; FCC 97–153]

Use of Radio Frequencies Above 40

GHz for New Radio Applications

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: The Commission adopts a

Second Report and Order designating

the frequency spectrum band between

47.2 and 48.2 GHz for commercial use

on a licensed basis. The Commission

decides to permit fixed, fixed-satellite,

and mobile uses consistent with the

Table of Frequency Allocations

governing the band. The Commission

also decides to define service rules in a

future rulemaking, based on the

dominant use of the spectrum, and finds

that the most likely dominant use will

be fixed, point-to-multipoint services

delivered through the deployment of

fixed platforms located in the

stratosphere. The Commission adopts

the proposal to license operations on an

area-wide basis and determines to

divide the spectrum into five pairs of

license blocks of 200 megahertz each

pair, with each pair separated by 500

megahertz of spectrum. These actions

are taken to promote the commercial

availability of millimeter wave
Federal Register / Vol. 62, No. 155 / Tuesday, August 12, 1997 / Rules and Regulations 43117

1The term ‘‘millimeter wave’’ refers to the fact

that the wavelength of radio signals for frequencies

between 30 GHz and 300 GHz ranges from 10

millimeters down to 1 millimeter.

2 47 CFR 2.106.

technology in providing the potentially

valuable uses of licensed spectrum

above 40 GHz.

EFFECTIVE DATE: October 14, 1997.

ADDRESSES: Room 7002, 2025 M Street,

NW., Federal Communications

Commission, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Barbara Reideler, Policy Division,

Wireless Telecommunications Bureau,

(202) 418–1310.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Second Report and

Order in ET Docket No. 94–124, FCC

97–153, adopted May 2, 1997, and

released July 21, 1997. The complete

text of this decision is available for

inspection and copying during normal

business hours in the FCC Reference

Center (Room 239), 1919 M Street, NW.,

Washington, DC, and also may be

purchased from the Commission’s copy

contractor, International Transcription

Service, (202) 857–3800, 1231 20th

Street, NW., Washington, DC 20036.

Synopsis of Second Report and Order

1. This action is part of an ongoing

proceeding to open for commercial

development portions of the spectrum

known as the millimeter wave bands

above 40 GHz.1 The Commission

initiated this proceeding by Notice of

Proposed Rulemaking (First NPRM) in

1994 (59 FR 61304, March 1, 1995).

2. In this Second Report and Order

(Second R&O), the Commission adopts

the proposal contained in the First

NPRM to designate for commercial use

on a licensed basis the 47.4–48.2 GHz

band, together with the 47.2–47.4 GHz

band made available in the First Report

and Order (61 FR 14041, March 29,

1996) for a total of one gigahertz of

spectrum (47 GHz band). Further, the

Commission adopts proposals to

establish a licensing framework that

permit the full range of services allowed

under the Table of Frequency

Allocations (Allocation Table) in our

rules 2 and to define service rules based

on our best judgment of what the

dominant use of the spectrum is likely

to be. The Commission finds that the

most likely dominant use will be fixed,

point-to-multipoint services delivered

through the deployment of fixed

platforms located in the stratosphere,

without foreclosing the other uses under

the Allocation Table. The Commission

adopts the proposal to license

operations on an area-wide basis and we

determine to divide the spectrum into

five pairs of license blocks of 100

megahertz each, with each pair

separated by 500 megahertz of

spectrum.

3. The Commission concludes that

opening this spectrum for commercial

licensed use under our licensing

framework will stimulate the

development of millimeter wave

technology to provide new wireless

communications services that are in

demand by consumers. The broad

degree of flexibility regarding the

permissible range of services will ensure

the ability of carriers to respond to the

market, will promote competition, and

will provide for the most efficient and

effective services. The Commission will

initiate a proceeding in the near future

to propose service rules in order to

implement our determinations in this

Second R&O for the licensing of the 47

GHz band. The proposed rules will

include proposals relating to auctions.

The Commission also defers to future

proceedings our consideration of the

additional frequency bands above 40

GHz that we proposed for licensed use

in the First NPRM, as well as the

additional bands proposed for

unlicensed use that were not considered

in the First Report and Order.

4. In this Second Report and Order,

the Commission limits consideration of

the bands we proposed to designate for

commercial, licensed use in the First

NPRM to the 47 GHz band. This band

consists of the 47.4–48.2 GHz segment

originally set forth in the First NPRM

and the adjoining 47.2–47.4 GHz

segment made available for such use in

the First Report and Order. The

Commission did not propose any

changes to this band in the 36–51 GHz

Band Plan NPRM in IB Docket No. 97–

95 (62 FR 16129, April 4, 1997) where

we designated the band for

predominantly wireless terrestrial

services. The Commission found that

comments had already been received on

this band segment in response to the

First NPRM on which we could proceed

to take action without delay. Thus, the

Commission’s proposals in the First

NPRM as they apply to the 47 GHz band

are ripe for disposition at this time.

5. The comments filed in this docket

consist of two sets, the comments filed

in direct response to the Commission’s

proposals in the First NPRM (to the

extent those comments are pertinent to

the issues we resolve in this Second

Report Order), and the comments filed

in response to the respective public

notices accepting the Request To

Establish New GSTS Service, Additional

Comments, and Petition for Rulemaking

(hereinafter cited as Request and

Petition) and the Application, filed by

Sky Station International, Inc. (Sky

Station) on March 20, 1996, in this

docket. Both the filings by Sky Station

and the responsive pleadings concern

the Commission’s proposals to license

the 47 GHz band, but were filed after the

comment period to the First NPRM

closed and raise issues not addressed in

our proposals. Because the Sky Station

filings and responsive pleadings are

pertinent to the issues before us, the

Commission has decided to take these

filings and pleadings into account in

connection with the decisions we make

in this Second Report and Order.

6. In the Request and Petition, Sky

Station requests that the Commission

authorize use of the spectrum at 47.2–

47.5 GHz and 47.9–48.2 GHz for a new

commercial, licensed service described

as the Global Stratospheric

Telecommunications Service (GSTS),

and that the Commission adopt service

rules either in this proceeding or a

separate rulemaking to implement the

service. Sky Station filed concurrently

an application (hereinafter cited as

Application) for authorization to

construct and operate its proposed

service to provide a global network of

wireless communications services,

subject to amendment pending the

outcome of its Request and Petition. A

public notice was issued accepting the

Application for filing and accepting

petitions, oppositions, and other

pleadings filed in response to that

public notice. (FCC Public Notice, Sky

Station International, Inc., File No. 96–

SAT–P/LA–96, released April 22, 1996.)

Comments to the request and petition,

and to the Application, are listed in

Appendix A in the full text of this

decision.

7. Sky Station, in its Request and

Petition, states that it has developed a

new technology for delivery of a new

paradigm of wireless

telecommunications services that it

identifies as GSTS, to compete with

existing satellite and terrestrial wireless

services. Sky Station explains that GSTS

is based on the concept of using a

network of platforms in the stratosphere

that are kept aloft in fixed positions by

hydrogen or helium elements at an

altitude of 30 kilometers, or 18 miles,

above 99 percent of the atmosphere.

Unlike satellite services, these platforms

are not launched into orbit in space, but

rather are lifted by balloons similar to

dirigibles to an area in the stratosphere

above flight patterns and below satellite

orbits.

8. In the request and petition, Sky

Station argues that opening up a portion

of the 47 GHz band for the proposed

system will promote the policy goals we

established in the First NPRM and meet
43118 Federal Register / Vol. 62, No. 155 / Tuesday, August 12, 1997 / Rules and Regulations

numerous environmental, economic,

and social public interest objectives. It

requests that the Commission adopt

proposed technical, financial,

implementation, and licensing

standards that encourage commercial

development of the unused 47 GHz

band and promote competition

consistent with the flexible framework

proposed in the First NPRM. The service

rules advocated by Sky Station in its

Request and Petition would enable all

qualified applicants to construct and

operate their own systems as part of the

entire GSTS, and the GSTS would be

designed to cover 80 percent of the

world’s population by a certain date.

9. Sky Station requests that the

Commission dedicate exclusively for

GSTS that portion at 47.2–47.5 GHz for

earth-to-stratosphere communications

and 47.9–48.2 GHz for stratosphere-toearth communications. Sky Station

argues that its service is covered by the

Allocation Table, which provides for

fixed and mobile service. However, it

requests that the Commission modify

the Table to permit only fixed and

mobile GSTS stations to operate in the

two portions of the 47 GHz band,

inasmuch as it contends that the service

cannot share co-channel frequencies

with conventional fixed, mobile, or

fixed satellite services. It also requests

that International footnote 901 be

modified, as well as U.S. footnote 297,

in order to eliminate sharing with

broadcasting-satellite service feeder

links, which also could interfere with

GSTS and could operate elsewhere.

10. Sky Station requests authorization

in the Application to implement its

proposed service. It argues that the

Application demonstrates that Sky

Station is in compliance with the

technical, financial, licensing, and other

regulations it has requested we adopt in

the Request and Petition. Sky Station

reserves the right to amend this

application to comply with any future

rules the Commission may adopt for its

proposed service. The Application

includes a request for a pioneer

preference in the event that mutuallyexclusive applications are filed.

11. On December 24, 1996, Sky

Station submitted further comments to

clarify its request and petition. Sky

Station argues that the Commission

should grant its alternative request in

the request and petition to treat the

filing as additional comments in

response to the First NPRM, and that a

new rulemaking proceeding to adopt

separate service rules for its proposed

stratospheric service is neither

necessary nor appropriate. It requests

that the Commission hold the

Application in abeyance. Sky Station

argues that the Commission’s proposal

for the commercial, licensed use of the

47 GHz band has been open for

comment since the First NPRM and that

its comments on the pending issues

together with the other comments in

this docket provide an adequate record

on which to resolve the issues to be

determined in this Order.

12. In its further comments, Sky

Station argues that its proposed service

is a fixed terrestrial service and that we

need not allocate the requested

spectrum to a new global stratospheric

service, apart from other fixed service

millimeter wave uses. It argues that a

generic terrestrial allocation for a

flexible fixed (non-satellite) service

would suffice, so that it would compete

with other aspiring fixed service

providers in auctions for this spectrum.

Sky Station argues that its proposed

operations generally fit well within the

service rules the Commission proposed

in the First NPRM to adopt for licensed

services above 40 GHz, including the 47

GHz band, which rules are now

contained in Part 101. (See

Reorganization and Revision of Parts 1,

2, 21, and 94 of the Rules To Establish

a New Part 101 Governing Terrestrial

Microwave Fixed Radio Services, WT

Docket No. 94–148, Amendment of Part

21 of the Commission’s Rules for the

Domestic Public Fixed Radio Services,

CC Docket No. 93–2, and McCaw

Cellular Communications, Inc., Petition

for Rulemaking, RM–7681, Report and

Order, 61 FR 26670, May 28, 1996.) Sky

Station submits modifications to the

proposed rules that it argues are minor

but necessary to accommodate its

proposed service in the 47 GHz band,

including segmentation of the band to

prevent sharing with other services,

license blocks of 100 megahertz paired

blocks separated by 500 megahertz, and

larger area-wide licensing, among other

operating and technical rules.

13. The Commission grants Sky

Station’s alternative request to accept its

request and petition as late-filed

comments in this proceeding. In

addition, the Commission will also

accept the Application as part of the

comments, inasmuch as Sky Station

acknowledges that the Application is

filed preliminarily and is intended to

illustrate the service it could provide

under its proposals in the request and

petition. As discussed more fully in the

text of this Second R&O, petitioners

filing in response to request and petition

do not raise issues that prevent the

Commission from including the Sky

Station filings for consideration together

with other comments filed in response

to the First NPRM to open the 47 GHz

band for commercial, licensed use.

14. Fixed Point-to-Point

Communications Section, Network

Equipment Division of the

Telecommunications Industry

Association (TIA), Motorola Satellite

Communications, Inc. (Motorola), and

Harris Corporation-Farinon Division

(Harris) argue that the nature of Sky

Station’s service proposal as terrestrial

or satellite service is not clear, and that

it does not fit existing definitions. They

request that the Commission establish a

separate allocation category for any

airborne terrestrial wireless

communications service.

15. TIA argues that the nature of Sky

Station’s proposed service must be

identified to determine how to classify

the service and find the appropriate

regulatory niche before we may adopt

its proposals. TIA contends that the

filings are contradictory regarding

whether the service is terrestrial or

satellite, fixed or mobile. It contends

that the service does not fit the

international service definition that

defines Radio-Relay Systems to be fixed

services operating via terrestrial

stations. TIA argues that the proposed

service would be similar to a satellite

based system as an interference source,

that the platform qualifies as a Space

Station under the definitions, and that

it should be considered to be a MobileSatellite System.

16. TIA proposes that the Commission

and the 1997 World Radio Conference

(WRC–97) establish a new service

category for any airborne service

operating in the stratosphere or below,

apart from aviation services, that would

be defined as a Global Airborne

Telecommunications Service. The

category would stimulate innovative

airborne services and would be

consistent with allocation requirements.

Harris agrees that the nature of the

service should be clarified and that the

Global Airborne category might be the

solution to accommodating various

airborne services that will have

characteristics similar to the Sky Station

proposal.

17. Motorola also argues that the

proposed service requires a new

allocation. It contends that terrestrial

fixed and mobile service allocations do

not contemplate stratosphere-to-earth

and earth-to-stratosphere

communications provided by means of

stratospheric balloon-supported

platforms. It asserts that the platforms

should be disqualified as fixed or

mobile terrestrial services because of

their placement above the earth’s

atmosphere, and should instead be

defined as spacecraft. Motorola further

argues that the platforms would lie

within sovereign airspace, and that
Federal Register / Vol. 62, No. 155 / Tuesday, August 12, 1997 / Rules and Regulations 43119

3 Doc. 4–9S/TEMP/30(Rev.1) and Doc. 9B/TEMP/

38(Rev.1).

countries may view the proposed

service as an infringement of their

rights. It contends that we should

refrain from pursuing an international

allocation for the proposed service.

18. In the 36–51 GHz Band Plan

NPRM, the Commission determined that

Sky Station’s proposed use of spectrum

in the 47 GHz band for its stratospheric

radio relay repeater system is

considered to be a terrestrial service. In

its Further Comments, Sky Station has

clarified its previous filings, which TIA

points out are contradictory, in order to

demonstrate that the proposed service is

a terrestrial, fixed operation. Users

permanently mount their terminals or

antennas, which communicate with the

repeaters located on the platforms. The

Commission disagrees with TIA and

Motorola that the platform qualifies as

a space station and that the proposed

service should be considered to be a

satellite service. The platforms proposed

for use by Sky Station clearly are not

satellites and, unlike satellites, will not

be in earth orbit. Although the platforms

will be located 30 kilometers above the

earth’s surface, they still will be within

the earth’s atmosphere and will rely on

atmospheric lift to keep them at that

fixed altitude, which is far below the

location of the lowest satellite orbit.

19. Motorola and TIA point out that

there are international definitions and

other international concerns that require

that Sky Station’s proposed service be

considered in the appropriate

international forums. In that context, the

Commission further points out that

world spectrum management experts

recently participated in the work of

ITU–R WP4–9S and WP 9B and

concluded that a radio-relay service like

Sky Station’s proposed service that uses

stratospheric-based repeaters is in the

fixed service. The groups developed two

Proposed Draft New Recommendations

relating to platform-based stratospheric

radio relay repeaters in the fixed

service.3 Moreover, in the 36–51 GHz

Band Plan NPRM the Commission noted

that the Ad Hoc Millimeter Wave group

of the Commission’s WRC–97 Advisory

Committee had discussed, among other

things, the possibility of satellite and

fixed terrestrial services, as well as other

terrestrial services operating from

alternative delivery platforms, sharing

spectrum in the band. Thus, the use of

such stratospheric-based platforms for a

global service is being addressed in the

appropriate forums, where issues of

sovereignty and other concerns will be

examined. The Commission denies the

requests of Motorola, Harris, and TIA to

establish a separate allocation category

for any airborne terrestrial wireless

communications service as unnecessary

and inefficient, inasmuch as the

spectrum Sky Station seeks to use is the

subject of this proceeding in which

rules can be proposed to accommodate

its service, as well as other terrestrial

services in 47 GHz. The Commission

finds these requests unnecessary and

inefficient, inasmuch as the spectrum

Sky Station seeks to use is the subject

of this proceeding in which rules can be

proposed to accommodate its service, as

well as other terrestrial services in 47

GHz.

20. HCI and Motorola argue that the

Application and the Request and

Petition leave open many technical,

financial, and safety concerns that must

be addressed before the Commission can

act on Sky Station’s request and allocate

the spectrum it requests. The

Commission intends to solicit comment

on the necessary technical and financial

requirements for platform-based

stratospheric services at the time we

consider service rules, in a separate

Notice of Proposed Rulemaking. At the

same time the Commission will seek

comment on the safety concerns that the

platforms raise. These matters are

important features of the service rules

that the Commission must adopt before

any service in the 47 GHz band can be

implemented. They need not be

considered in this Second R&O,

however, which is limited to deciding

whether to open the band to

commercial, licensed use under a

flexible licensing framework. The

matters that HCI and Motorola ask the

Commission to address now are not

factors in that decision.

21. HCI, Lockheed Martin

Corporation, and Motorola express

concern that, as members of the satellite

community, they will not be able to

share the 47 GHz band with Sky

Station’s proposed service. Since the

filings of these pleadings, the

Commission has initiated a spectrum

plan in the 36–51 GHz Band Plan NPRM

in order to address the competing

demands between satellite and

terrestrial interests for spectrum

allocations for provision of commercial

services. Although the Commission

maintained the 47 GHz band for

predominantly wireless services, we

identified additional bands for

predominantly satellite services that

include the adjacent 48.2–50.2 GHz

bands, among others. Thus, the

spectrum management issues raised by

petitioners here are matters addressed in

that proceeding and are not a basis for

delaying this proceeding. As for the

additional matters the parties seek to

raise here concerning licensed uses of

the band, the Commission will include

those comments in our consideration of

licensing issues in the full text of this

Second R&O.

22. The Second R&O adopts the

proposal to open the 47 GHz band for

commercial applications and

technologies. As stated in the First

NPRM, the millimeter wave bands such

as 47 GHz are a major resource that

essentially is undeveloped and

unavailable today for commercial use.

The Commission finds that there is

broad consensus that our proposal to

open frequency bands above 40 GHz to

commercial development will provide

the public with access to new products

and communications services and

provide new opportunities for business

and economic growth.

23. The Second R&O also adopts the

proposal to license the 47 GHz band for

commercial service and finds that our

proposal to allow any use under the

Allocation Table reflects the best

approach to licensing this band. As a

‘‘frontier’’ band located in the

frequencies above 40 GHz that are yet to

be opened for commercial development,

the exact nature of the services to

emerge from the development of the 47

GHz band cannot be predicted in the

comments. The Commission concludes

that all identified uses of the 47 GHz

band may be valuable and should be

permitted. The record also confirms that

both the technology and potential

applications of millimeter wave

spectrum will continue to evolve

rapidly. Since the Commission initiated

this proceeding we have seen important

new technologies proposed for the

millimeter wave spectrum, and it is

likely that other technologies also will

be developed. Under the circumstances,

the Commission decides not to limit the

types of services that can be offered in

the band.

24. Accordingly, the Commission will

license the 47 GHz band based on the

services currently allowed under the

Allocation Table. The spectrum from

47.2 to 50.2 GHz is allocated

domestically for Government and nonGovernment Fixed, Fixed-Satellite, and

Mobile uses, and internationally for the

same uses. The Commission finds that

the range of services covers all of the

services identified as potential uses of

the 47 GHz band. The Commission

confirms the view expressed in the First

NPRM that a broadly defined service

allocation coupled with the licensing,

technical, and operating rules to be

proposed in a subsequent rulemaking

will provide the best means of assuring

that this spectrum will be used to the

greatest benefit of the public.
43120 Federal Register / Vol. 62, No. 155 / Tuesday, August 12, 1997 / Rules and Regulations

4See Section 4(i) of the Communications Act, 47

U.S.C. 154(i).

25. The Commission denies the

requests of AT&T Corp, HewlettPackard, Millimeter Wave Advisory

Group, Alcatel Network Systems, Harris,

and TIA to expand the band to include

spectrum up to 51 GHz in order to

provide for point-to-point services. That

additional spectrum in the adjacent

bands will be addressed in response to

the 36–51 GHz Band Plan NPRM, in

which the Commission proposes to

designate the portion 48.2–50.2 GHz for

predominantly satellite use. The

Commission points out that point-topoint services may be provided in the

47 GHz band under the allocations for

that band.

26. The Commission disagrees with

TIA’s assertion that licensing on such an

‘‘open-market’’ basis, which provides

licensees with broad flexibility to

engage in any uses under the Allocation

Table, evades our statutory

responsibilities under section 303(c)

and, in light of the Commission’s

proposal to auction the spectrum, is

inconsistent with Section 309(j) of the

Communications Act. The Commission

has broad authority under the

Communications Act to designate

spectrum usage, as well as the authority

to perform any and all acts necessary in

the execution of our functions.4 In light

of the range of possible uses, the

likelihood that new uses can be

developed in the future, and the lack of

a record for specific service designations

that would better serve the public

interest and the goals of the

Communications Act, our broad service

designation comports with the public

interest and with our statutory

authority. The Commission’s decision to

designate this spectrum in this manner

is unrelated to the proposal in the First

NPRM to award licenses through

competitive bidding.

The designation is not entirely openended and will be subject to technical

rules we will adopt. Therefore, the

Commission has not delegated to private

parties our responsibility to allocate

spectrum and adopt appropriate

technical standards.

27. The Commission finds that, when

we propose licensing and other service

rules for the 47 GHz band, we will

follow the approach proposed in the

First NPRM to tailor the rules to reflect

what we expect will likely be the

dominant use of this spectrum, while

retaining the flexibility allowed under

the Allocation Table. Especially for

‘‘frontier’’ bands such as those above 40

GHz, this approach should set allocation

and licensing rules that promote rapid,

efficient use of this spectrum to meet all

the communications needs advanced by

commenters, while allowing the market

to adjust to changing needs and

technologies and providing scope for

innovative uses. It will also minimize

regulatory barriers and requirements

that might otherwise hamper

entrepreneurial efforts to develop

effective commercial uses of this

spectrum.

28. However, the Commission does

not find that the dominant use of

spectrum in the 47 GHz band is likely

to be similar to LMDS in the 28 GHz

band, as we proposed. As Avant-Garde

Telecommunications, Inc. requests, the

Commission has reexamined our

proposal, and we have taken into

account the anticipated uses and

changed circumstances reflected in the

record for purposes of determining

whether another licensing methodology

would better meet the needs posed by

those anticipated uses. The Commission

finds that the dominant use of the 47

GHz band is likely to be a fixed, pointto-multipoint service that employs

stratospheric platforms at fixed

locations.

29. The Commission emphasizes,

however, that we anticipate that

ongoing technological developments

can be expected to generate other types

of delivery systems for fixed, point-tomultipoint services in the band. Thus,

while the Commission will seek to tailor

our licensing rules to accommodate the

likely dominant use we have identified

based on the current record, we will not

foreclose other uses permitted by the

Allocation Table, including new and

innovative uses and technologies.

30. The Commission denies Sky

Station’s request that we dedicate to its

exclusive use two portions of the 47

GHz band for its service and modify the

Allocation Table to that effect. Sky

Station is concerned about interference

to its stratospheric signal when it is in

the main path of a conventional fixed

co-channel signal of greater power. The

problems of interference do not

necessarily require a change in the

service allocation, but rather are the

subject of operational and technical

mitigation techniques that can be

included in the Commission’s service

rules to be used to reduce or eliminate

these types of interference problems.

Accordingly, Sky Station should ensure

that its concerns are addressed when the

Commission seeks to adopt appropriate

service rules in a subsequent proceeding

to implement services under the

Allocation Table.

31. Similarly, the Commission defers

the request of United States Satellite

Broadcasting Company (USSB) that we

accept a service rule requirement

submitted by Sky Station to protect

DBS–TV from interference from Sky

Station’s service. USSB requested that

the Commission consider the impact of

Sky Station’s proposed platform-based

service on the operations of other

telecommunications services and, in

particular, on the reception of DBS

signals on the surface of the earth. The

Commission will consider the requested

restriction when we consider the need

for other use restrictions to ensure the

performance of the authorized services

under appropriate service rules.

32. The Commission also denies the

request of TIA for a guardband of 500

MHz to ensure adequate signal

selectivity between the licensed services

in the 47 GHz band and the fixed pointto-point services that TIA requests we

designate for use in the adjacent band at

48.5–51.4 GHz. The adjacent band is

under consideration in the 36–51 GHz

Band Plan NPRM and TIA’s request can

be addressed there. The Commission

will consider the need for protections of

licensed users from interference in

developing service rules that govern the

uses of 47 GHz.

33. The Second R&O adopts the

Commission’s proposal to issue areawide licenses for services in the 47 GHz

band as a necessary component of the

flexible licensing framework we are

adopting. The Commission has found

that the predominant use of the band is

a fixed point-to-multipoint service,

which is a service provided on a pointradius basis within an area and not on

a fixed point-to-point basis. However,

fixed point-to-point service is not

precluded and may be provided within

the area. Moreover, authorization of a

geographic area is consistent with the

Allocation Table for the 47 GHz band,

which also provides for mobile services

in addition to fixed services. The

Commission does not decide the size of

the geographic area in this Second R&O,

inasmuch as that is a matter for the

service rules.

34. The Second R&O also adopts the

Commission’s plan to divide the

spectrum into license blocks for

exclusive assignment in each area.

However, we modify our proposal to

divide the entire band into only one

contiguous pair and instead divide it

into five separated pairs. Based on the

comments filed in response to the

Commission’s inquiry into whether the

licensed blocks should be contiguous or

further subdivided into paired blocks to

facilitate two-way transmission, the

Commission finds that our original

proposed division into one paired block

would not be appropriate and would

inhibit the most efficient and effective
Federal Register / Vol. 62, No. 155 / Tuesday, August 12, 1997 / Rules and Regulations 43121

5 13 CFR 121.201, Standard Industrial

Classification (SIC) 4812.

6U.S. Small Business Administration 1992

Economic Census Employment Report, Bureau of

the Census, U.S. Department of Commerce, Table 3,

SIC 4812 (radiotelephone communications industry

data adopted by the SBA Office of Advocacy).

use of the 47 GHz band. The

Commission believes that Sky Station’s

proposal to divide the entire block into

five pairs of 200 MHz channels each

pair, separated by 500 megahertz,

effectively accommodates the

predominant use as well as the other

likely uses of the band. The Commission

further believes that paired 100-MHz

channels would provide adequate

bandwidth for the dominant use, while

fostering competition and diversity of

uses among licensees.

35. Finally, in the First NPRM, the

Commission proposed to impose a

spectrum cap and limit each licensee to

a single spectrum block in each band in

the same area, so that the licensee

would not be permitted to own both

licenses in the same band in any area.

The Commission will address any

spectrum limitation in the proceeding to

establish the service rules to implement

the framework we adopt here, which

proceeding we will initiate shortly.

36. It is the Commission intent to

complete the licensing of the 47 GHz

band as quickly as possible to achieve

our goal as stated in the First NPRM—

to promote the commercial availability

of millimeter wave technologies in

providing the potentially valuable uses

of licensed spectrum above 40 GHz.

Procedural Matters and Ordering

Clauses

Final Regulatory Flexibility Analysis

37. As required by the Regulatory

Flexibility Act, 5 U.S.C. 603 (RFA), an

Initial Regulatory Flexibility Analysis

(IRFA) was incorporated in the First

NPRM in this proceeding. The

Commission sought written public

comments on the proposals in the First

NPRM, including on the IRFA. The

Commission’s Final Regulatory

Flexibility Analysis (FRFA) in this

Second R&O conforms to the RFA, as

amended by the Contract with America

Advancement Act of 1996 (CWAAA),

Pub. L. 104–121, 110 Stat. 846 (1996).

I. Need for and Objectives of Action

38. We proposed in the First NPRM to

open spectrum in the 47.4–48.2 GHz

band for commercial, licensed use on an

area-wide basis in a paired license block

in order to promote the use of the

millimeter wave region of the spectrum

above 40 GHz. We adopt our proposals,

with modification to the licensing

blocks, for the entire 47.2–48.2 GHz

band (47 GHz band) in order to achieve

our goal to expedite the commercial

development of this spectrum.

39. Advances in millimeter wave

technology will enable new commercial

uses to be achieved and will help meet

consumer demand for a wide range of

potential commercial services, which

would stimulate research and the

growth of technology. We adopt a

licensing framework that allows the full

range of services in the Table of

Frequency Allocations to provide

licensees the flexibility to provide the

most efficient and effective services. We

identify the potential dominant use of

the 47 GHz band to ensure that the

service rules we will propose in a future

proceeding are adequate and

appropriate. Licensing on the basis of a

geographic area will ensure that

licensees have the flexibility to provide

new services in the most rapid and

efficient manner. Dividing the spectrum

into five separated pairs of spectrum

blocks for licensing ensures that

licensees in the 47 GHz bands are able

to offer the predominant service, as well

as other potential services, in the most

efficient manner.

II. Summary of Significant Issues Raised

by the Public Comments in Response to

Initial Regulatory Flexibility Statement

40. Avant-Garde and M/A-Com, Inc.

(MACOM) are small entities that

generally support opening the bands

above 40 GHz for commercial use to

take advantage of the developments in

millimeter wave technology. They argue

that the technology is available for

commercial uses and that we should

designate any of the bands for

commercial use in order to stimulate

market demand for their products. Sky

Station argues that its proposal to

provide a fixed, terrestrial, global

service in the 47 GHz band using

stratospheric-based platforms will meet

many commercial uses and promote the

growth of a new stratospheric-based

technology, rather than traditional

tower-based technology, for delivery of

service.

41. Metricom, Inc. (Metricom)

requests that we adopt a flexible

regulatory approach for licensed

operations that includes very broad and

general rules to encourage the

development of equipment and services.

Avant-Garde argues that the spectrum to

be made available for licensing should

not be artificially constrained in the

manner in which it is licensed or used.

It requests that we reexamine our

proposal to use the LMDS service rules

to govern the predominant uses of the

bands above 40 GHz in light of the

anticipated uses and changed

circumstances reflected in the filings. It

questions whether the licensing scheme

we proposed remains appropriate or

whether some other methodology would

better meet the needs of commercial

service providers.

42. Sky Station argues that its

stratospheric-based platforms would

deliver point-to-multipoint services that

can be licensed under the terrestrial,

flexible rules we proposed to adopt for

47 GHz. It argues that its technology is

uniquely suited to take advantage of the

characteristics of the 47 GHz band and

will promote the maximum use of that

spectrum. Sky Station argues that the

service cannot share co-channel

frequencies with other services and

requests we dedicate the segments of the

band at 47.2–47.5 Ghz and 47.9–48.2

GHz to its exclusive use and modify the

Table of Frequency Allocations

accordingly.

43. Sky Station supports the use of

area-wide licensing and requests that we

adopt large service areas that are superregional in size. Sky Station opposes our

proposal to adopt a single pair of

contiguous license blocks, and argues

that the spectrum should be divided

into five pairs of 100 MHz each that are

separated by 500 MHz to ensure

flexibility. P-Com, Inc. argues that we

should be careful to divide the spectrum

to reflect the proposed use, and that

paired blocks with maximum frequency

separation are required for fixed service,

two-way links such as point-tomultipoint operations.

III. Description and Estimate of the

Number of Small Entities to Which

Rules Will Apply

44. The determinations we adopt to

open 47 GHZ for commercial use under

a flexible licensing framework

authorizing any service under the Table

of Frequency Allocations on an areawide basis would apply to all entities

that apply for a license, including small

entities.

45. The definition that SBA has

developed that approximates most

closely the services that may be

provided by the licensees would be the

definition applicable to radiotelephone

companies. The definition of

radiotelephone companies provides that

a small entity is a radiotelephone

company employing 1,500 or fewer

persons.5 The size data provided by

SBA do not enable us to make an

accurate estimate of the number of

telecommunications providers which

are small entities because it combines

all radiotelephone companies with 500

or more employees.6 We therefore use

the 1992 Census of Transportation,
43122 Federal Register / Vol. 62, No. 155 / Tuesday, August 12, 1997 / Rules and Regulations

7U.S. Bureau of the Census, U.S. Department of

Commerce, 1992 Census of Transportation,

Communications, and Utilities, UC92–S–1, Subject

Series, Establishment and Firm Size, Table 5,

Employment Size of Firms: 1992, SIC 4812 (issued

May 1995).

Communications, and Utilities,

conducted by the Bureau of the Census,

which is the most recent information

available. This document shows that

only 12 radiotelephone firms out of a

total of 1,178 such firms which operated

during 1992 had 1,000 or more

employees.7 Therefore, the majority of

entities to provide telecommunications

services in the 47 GHz band may be

small businesses under SBA’s

definition.

46. The Commission has not

developed a definition of small entities

applicable to licensees in the 47 GHz

band, because the band is being opened

for the first time for commercial,

licensed use in this Second R&O and

has not been subject to licensing. The

RFA amendments were not in effect

when the First NPRM was released, and

no data has been received establishing

the number of small businesses to be

associated with services in the band.

Although we proposed to auction the

spectrum for assignment, we did not

request information regarding the

potential number of small businesses

interested in obtaining licenses. We do

not adopt in the Second R&O our

proposal to auction the spectrum, and

instead will seek additional comment in

a future Notice of Proposed Rulemaking

in which we will also propose the

service rules to implement services in

the 47 GHz band. Thus, we are unable

to estimate the potential number of

entities that may apply for a license that

may be small businesses.

IV. Description of Projected Reporting,

Recordkeeping, and Other Compliance

Requirements

47. We do not adopt any rules that

entail reporting, recordkeeping, and

third party consultation. Until we adopt

service rules to govern the licensing,

operating, and technical aspects of our

decision, there are no requirements to

impose on any entities.

V. Significant Alternatives to Proposed

Rules Which Minimize Significant

Economic Impact on Small Entities and

Accomplish Stated Objectives

48. We agree with many small entities

that opening up the 47 GHz band for

commercial uses is timely and feasible,

and would be in the public interest.

Small entities, such as Avant-Garde and

MACOM, see many future market

opportunities and have developed

equipment, or expect to readily modify

equipment, to meet consumer demand

for the kinds of services to be provided.

Sky Station has developed an

innovative technology that uses

platforms fixed in the stratosphere to

deliver services in an efficient and

effective manner. They and other small

or new entities will benefit from the

demand for commercial applications of

their technologies.

49. We agree with commenters, such

as Avant-Garde and Metricom, to adopt

the flexible licensing framework we

proposed that authorizes any service

allowed under the Table of Frequency

Allocations. We find that a broadly

defined service allocation assures that

the 47 GHz band will be used to the

greatest benefit of the public by giving

licensees, including small entities, the

flexibility to meet demands. We also

adopt our proposal to prescribe service

rules for the licensing of the band based

on what the dominant use is likely to

be, as demonstrated by the comments.

We agree with Avant-Garde to

reexamine the likely uses and find that,

while the predominant uses are the

fixed point-to-multipoint uses we

predicted, they would not be based on

LMDS-type technology but rather on

millimeter wave technology based on

stratospheric platforms for delivery of

service as proposed for the 47 GHz band

by Sky Station. We deny Sky Station’s

request to modify the Table of

Frequency Allocations to protect its

service, and find that its need for

protection from interference is properly

addressed in the future proceeding in

which we will establish the technical

and operational service rules to govern

the authorized services in the band.

50. We decide to adopt our proposal

to license on the basis of geographic

areas in order to enable the broadest

range of uses for the band and ensure

efficient and effective operations. Areabased licensing provides greater

operational flexibility and ease of

administration that is particularly

beneficial to small entities. We defer

questions about the appropriate size of

the area as raised by Sky Station to our

consideration of service rules in a future

proceeding.

51. Because of the change in the

potential predominant use for the band,

we do not adopt our proposed

channelization plan and instead revise

the subdivision of the spectrum to

reflect the proposed uses, as P-Com

requests. We agree with Sky Station to

divide the bands into five pairs of 100

megahertz channels, with each pair

separated by 500 megahertz. This

provides adequate bandwidth to

accommodate the predominant uses.

VI. Report to Congress

52. We will submit a copy of this

Final Regulatory Flexibility Analysis,

along with the Order, in a report to

Congress pursuant to 5 U.S.C.

801(a)(1)(A).

53. It is ordered that the actions of the

Commission herein are taken pursuant

to sections 4(i), 257, 303(r), and 309(j)

of the Communications Act of 1934, 47

U.S.C. 154(i), 257, 303(r), 309(j).

54. It is further ordered that these

actions shall take effect October 14,

1997.

55. It is further ordered that the

Request and Petition and Application

filed by Sky Station, the Further

Comments filed by Sky Station, and the

comments and reply comments filed in

response thereto, are accepted in this

record as late-filed comments.

56. It is further ordered that the

spectrum 47.2–48.2 GHz (47 GHz band)

is designated for licensed, commercial

use on the basis of area-wide licenses in

accordance with the terms of this

Second R&O.

57. It is further ordered that a division

of the spectrum for license blocks is

adopted for the 47 GHz band that

divides the band into five spectrum

blocks of 200 megahertz each for

licensing, with each block consisting of

a pair of 100 megahertz channels

separated by 500 megahertz.

List of Subjects

47 CFR Part 2

Communications equipment.

47 CFR Part 15

Communications equipment, Radio.

47 CFR Part 97

Communications equipment, Radio.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97–21180 Filed 8–11–97; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 32 and 53

[CC Docket No. 96–150; FCC 96–490]

Accounting Safeguards Under the

Telecommunications Act of 1996

AGENCY: Federal Communications

Commission.

ACTION: Final rule; establishment of

effective date.

SUMMARY: The requirements and

regulations established by the