61448 Federal Register / Vol. 62, No. 222 / Tuesday, November 18, 1997 / Rules and Regulations

1The term Ka-band generally refers to the spaceto-earth (downlink) frequencies at 17.7–20.2 GHz

and the corresponding earth-to-space (uplink)

frequencies at 27.5–30.0 GHz, or the ‘‘28 GHz

band.’’ This Report and Order pertains only to U.S.

commercial satellite systems in the Ka-band.

defining the criteria under which

certain stations are subject to

evaluation.

List of Subjects in 47 CFR Parts 1 and

97

Radio, Reporting and recordkeeping

requirements.

Accordingly, 47 CFR parts 1 and 97

are corrected by making the following

correcting amendments:

PART 1—PRACTICE AND

PROCEDURE

1. The authority citation for part 1

continues to read as follows:

Authority: 47 U.S.C. 151, 154, 303 and

309(j), unless otherwise noted, and Section

704 of the Telecommunications Act of 1996.

§ 1.1307 [Corrected]

2. Section 1.1307(b)(4) introductory

text is corrected to read as follows:

§ 1.1307 Actions which may have a

significant environmental effect, for which

Environmental Assessments (EAs) must be

prepared.

* * * * *

(b) * * *

(4) Transition Provisions.

Applications filed with the Commission

prior to October 15, 1997 (or January 1,

1998, for the Amateur Radio Service

only), for construction permits, licenses

to transmit or renewals thereof,

modifications in existing facilities or

other authorizations or renewals thereof

require the preparation of an

Environmental Assessment if the

particular facility, operation or

transmitter would cause human

exposure to levels of radiofrequency

radiation that are in excess of the

requirements contained in paragraphs

(b)(4)(i) through (b)(4)(iii) of this

section. In accordance with § 1.1312, if

no new application or Commission

action is required for a licensee to

construct a new facility or physically

modify an existing facility, e.g.,

geographic area licensees, and

construction begins on or after October

15, 1997, the licensee will be required

to prepare an Environmental

Assessment if construction or

modification of the facility would not

comply with the provisions of

paragraph (b)(1) of this section. These

transition provisions do not apply to

applications for equipment

authorization or use for mobile, portable

and unlicensed devices as specified in

paragraph (b)(2) of this section.

* * * * *

PART 97—AMATEUR RADIO SERVICE

1. The authority citation for part 97

continues to read as follows:

Authority: 48 Stat. 1066, 1082, as

amended; 47 U.S.C. §§ 154, 303. Interpret or

apply 48 Stat. 1064–1068, 1081–1105, as

amended; 47 U.S.C. §§ 151–155, 301–609,

unless otherwise noted.

§ 97.13 [Corrected]

2. Section 97.13(c)(1) and the table

contained therein are corrected to read

as follows:

§ 97.13 Restrictions on station location.

* * * * *

(c) * * *

(1) The licensee must perform the

routine RF environmental evaluation

prescribed by § 1.1307(b) of this chapter,

if the power of the licensee’s station

exceeds the limits given in the following

table:

Wavelength band

Evaluation required if

power 1 (watts) exceeds

MF

160 m ........................ 500

HF

80 m .......................... 500

75 m .......................... 500

40 m .......................... 500

30 m .......................... 425

20 m .......................... 225

17 m .......................... 125

15 m .......................... 100

12 m .......................... 75

10 m .......................... 50

VHF (all bands) ......... 50

UHF

70 cm ........................ 70

33 cm ........................ 150

23 cm ........................ 200

13 cm ........................ 250

SHF (all bands) ......... 250

EHF (all bands) ......... 250

Repeater stations (all

bands).

non-building-mounted

antennas: height

above ground level

to lowest point of

antenna <10 m and

power >500 W ERP

building-mounted

antennas: power

>500 W ERP

1Power = PEP input to antenna except, for

repeater stations only, power exclusion is

based on ERP (effective radiated power).

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97–30174 Filed 11–17–97; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 25

[CC Docket No. 92–297; FCC 97–378]

Ka-Band Satellite Application and

Licensing Procedures

AGENCY: Federal Communications

Commission.

ACTION: Final rule with request for

comments.

SUMMARY: With this Report and Order,

the Commission adopts licensing

qualification requirements and service

rules for a new generation of fixedsatellite service (‘‘FSS’’) systems in the

Ka-band.1 These systems have the

potential to provide a wide variety of

broadband interactive digital services in

the United States and around the world

including: voice, data, and video;

videoconferencing; facsimile; computer

access and telemedicine. The systems

can provide direct-to-home services,

potentially allowing customers to

participate in activities from distance

learning to interactive home shopping.

The rules established here provide

guidelines for the new Ka-band satellite

systems to commence operation.

DATES: The adopted rule changes will

become effective January 20, 1998,

except § 25.145(g), which will become

effective upon OMB approval. The

Commission will publish a document

announcing the effective date of

§ 25.145(g) following approval of the

information collection request by OMB.

Comments are requested on the

information collection concerning

Section 25.145(g) and may be filed on or

before January 20, 1998.

FOR FURTHER INFORMATION CONTACT:

Jennifer Gilsenan, International Bureau,

Satellite Policy Branch, (202) 418–0757;

Kathleen Campbell, International

Bureau, Satellite Policy Branch (202)

418–0753. For additional information

concerning the information collection

contained in this Report and Order

contact Judy Boley at (202) 418–0214, or

via the Internet at jboley@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Report

and Order in CC Docket No. 92–297;

FCC 97–378, adopted October 9, 1997,

and released October 15, 1997. The

complete text of this Report and Order

is available for inspection and copying

during normal business hours in the
Federal Register / Vol. 62, No. 222 / Tuesday, November 18, 1997 / Rules and Regulations 61449

2See 47 CFR 2.106. The 29.5–30.0 GHz band is

also allocated on a primary basis to the MobileSatellite Service (MSS); however, in accordance

with the International Telecommunication Union

(ITU) Radio Regulation S5.529, use of the 29.5–30.0

GHz band by the MSS in Region 2 is limited to

satellite networks which are both in the FSS and

MSS.

3See Rulemaking to Amend parts 1, 2, 21, and 25

of the Commission’s Rules to Redesignate the 27.5–

29.5 GHz Frequency Band, to Reallocate the 29.5–

30.0 GHz Frequency Band, to Establish Rules and

Policies for Local Multipoint Distribution Service

and for Fixed Satellite Services, Third Notice of

Proposed Rulemaking, 11 FCC Rcd 53 (1995), 60 FR

43470 (August 23, 1995) (Third NPRM).

4See 47 CFR 25.114, 124.140, and 25.210.

5See In the Matter of Rulemaking to Amend parts

1, 2, 21, and 25 of the Commission’s Rules to

Redesignate the 27.5–29.5 GHz Frequency Band, to

Reallocate the 29.5–30.0 GHz Frequency Band, to

Establish Rules and Policies for Local Multipoint

Distribution Service and for Fixed Satellite

Services, First Report and Order and Fourth Notice

of Proposed Rulemaking, 11 FCC Rcd 19005 (1996),

61 FR 39425 (July 29, 1996) (Fourth Notice), 61 FR

44177 (August 28, 1996) (Final Rule), (28 GHz First

Report and Order). This decision is subject to

petitions for reconsideration. The band plan is

depicted graphically and discussed in more detail

in ¶ ¶ 39–49, infra.

6See 28 GHz First Report and Order at ¶¶ 95–104.

7See, e.g., Radiodetermination Satellite Service,

104 FCC 2d 650 (1986), 51 FR 18444 (May 20,

1986), as corrected, 51 FR 20975 (June 10, 1986)

(Because all pending RDSS applicants could be

accommodated and future entry was possible, the

Commission required applicants to provide only a

detailed business plan). See generally Amendment

of the Commission’s Rules to Establish Rules and

Policies Pertaining to a Mobile Satellite Service in

the 1610–1626/2483.5–2500 MHz Frequency Bands,

Report and Order, at ¶ 26, 9 FCC Rcd 5936 (1994),

59 FR 53294 (October 21, 1994) (Big LEO Report

and Order).

FCC Reference Center (Room 239), 1919

M Street, N.W. Washington, D.C., and

also may be purchased from the

Commission’s copy contractor,

International Transcription Service,

(202) 857–3800, 2100 M Street, N.W.,

Suite 140, Washington, D.C. 20037.

Paperwork Reduction Act

Section 25.143(g) contains an

information collection which requires

OMB approval. In compliance with the

Paperwork Reduction Act (44 U.S.C.

3501 et seq. (PRA)), the Commission is

planning to submit an information

collection request to the Office of

Management and Budget for review and

approval and is soliciting comments on

the information collection. The PRA

requires the Commission to seek

comment on new or modified

information collections for a sixty day

period. Therefore, the Commission is

soliciting comment on the information

collection described below. Comments

should address: (a) whether the

collection of information is necessary

for the proper performance of the

functions of the Commission, including

whether the information shall have

practical utility; (b) the accuracy of the

Commission’s burden estimates; (c)

ways to enhance the quality, utility, and

clarity of the information collected; and

(d) ways to minimize the burden of the

collection of information on the

respondents, including the use of

automated collection techniques or

other forms of information technology.

OMB Approval No.: 3060–XXXX.

Title: Section 25.145(g)—Reporting

Requirements.

Form No.: N/A.

Type of Review: New.

Respondents: Businesses or other for

profit, including small businesses.

Number of Respondents: 20.

Estimated Time Per Response: The

Commission estimates all respondents

will hire an attorney or legal assistant to

complete the form. The time to retain

these services is 2 hours per respondent.

Total Annual Burden: 40 hours.

Estimated Costs Per Respondent:

$300. This includes the charges for

hiring an attorney, legal assistant, or

engineer at $150 an hour to complete

the submissions.

Needs and Uses: In accordance with

the Communications Act, the

information collected will be used by

the Commission to insure that licensees

are in compliance with the

Commission’s rules and policies and

will assist the Commission in

determining whether operations are in

the public interest.

Summary of Report and Order

1. The Ka-band is allocated for fixed

service, FSS, and mobile service.2 In

July 1995, the Commission adopted a

Third Notice of Proposed Rulemaking

proposing, among other things, a band

segmentation plan that was designed to

accommodate both terrestrial and

satellite communication systems.3

Specifically, we proposed discrete band

segments for the operation of terrestrial

Local Multipoint Distribution Service

(‘‘LMDS’’), GSO FSS, NGSO FSS, and

feeder links for certain ‘‘Big LEO’’

mobile-satellite service (‘‘MSS’’)

satellite systems. We also proposed to

apply the existing rules for GSO FSS

systems in part 25 of the Commission’s

rules 4 to GSO FSS systems that will use

the 28 GHz band. We requested

comment, however, on whether specific

rules, such as financial qualification

requirements, should be altered for Kaband satellite systems and whether any

additional rules should be created for

either GSO FSS systems or NGSO FSS

systems operating at Ka-band.

2. In July 1996, the Commission

issued a First Report and Order and

Fourth Notice of Proposed Rulemaking

adopting, among other things, a final

band plan for the Ka-band.5 This plan

was the culmination of months of

discussions with interested parties and

filings in the proceeding since the

release of the Third NPRM. The band

plan adopted provides a framework that

accommodates all commercial proposed

services in discrete band segments and

provides the opportunity to offer

innovative communications services to

the public. The plan designates 1000

MHz of primary and co-primary uplink

spectrum and 1600 MHz of primary and

co-primary downlink spectrum to GSO

FSS systems; 500 MHz of primary

uplink and 500 MHz of primary

downlink spectrum to NGSO FSS

systems; and 1000 MHz of primary and

co-primary spectrum to LMDS. The

Fourth NPRM proposing an additional

300 MHz for LMDS at 31.0–31.3 GHz

was also adopted.6

3. The provisions set forth in part 25

of the Commission’s rules, in general,

govern the licensing of the fixedsatellite service systems. This includes

commercial FSS systems in the Kaband. The rules impose fairly rigorous

financial and technical requirements on

commercial FSS applicants. In this

Report and Order, we modify these

rules to incorporate technical operations

at the Ka-band. Further, the part 25 FSS

rules were developed in an environment

where we regularly receive more

applications than we can accommodate.

Here the GSO FSS licensees have agreed

to an orbital assignment arrangement

that will support them all, and we were

able to accommodate one NGSO FSS

system with room for future entry.

Accordingly, as discussed below, we

believe it is in the public interest to

waive the financial qualification rule

sections in processing this round of Kaband applications in order to allow for

maximum entry.

Financial Qualifications

4. Historically, the Commission has

fashioned financial requirements for

satellite services on the basis of entry

opportunities in the particular service

being licensed. In cases where we can

accommodate all pending applications

and future entry is possible, we have not

looked to current financial ability as a

prerequisite to a license grant. This is

because the grant of an authorization to

one applicant will not prevent another

qualified applicant from advancing with

a proposal for the same service.7 We

ensure that licensees timely build their

systems by requiring them to meet

specified implementation milestones. In

contrast, where applications for

satellites exceed the number of satellites
61450 Federal Register / Vol. 62, No. 222 / Tuesday, November 18, 1997 / Rules and Regulations

8See 47 CFR 25.140(b)–(e).

9See, e.g., National Exchange Satellite, Inc., 7

FCC Rcd 1990 (Com. Car. Bur. 1992); Rainbow

Satellite, Inc., Mimeo No. 2584 (Com.Car. Bur.,

released Feb. 14, 1985); United States Satellite

Systems, Inc., Mimeo No. 2583 (Com.Car. Bur.,

released Feb. 14, 1985) (domestic satellite licenses

declared null and void for failure to begin

implementation as required by license). In addition,

Geostar Corporation, a start-up company licensed in

the radiodetermination satellite service, declared

bankruptcy nearly five years after its licenses were

issued. It had not built any of its dedicated

satellites.

10Licensing Space Stations in the Domestic

Fixed-Satellite Service, FCC 85–395, CC Docket No.

85–135 (released August 29, 1985), 50 FR 36071

(September 5, 1985).

11See, e.g., Comments of Hughes at 7.

12See, e.g., Comments of GE at 20–21 and Hughes

at 35–36.

13See, e.g., Comments of Hughes at 35–36; GE

Americom at 20.

14Comments of GE at 20.

15Reply Comments of NetSat28 at 2.

16See 47 CFR 25.140(f).

17See Licensing Space Stations in the Domestic

Fixed-Satellite Service, 50 FR 36071 (September 5,

1985).

we can accommodate, we have adopted

a standard that requires applicants to

demonstrate evidence of internal assets

or committed financing sufficient to

cover construction, launch, and first

year operating costs of its entire

system.8 This is based on our experience

that under-financed applicants have

significant difficulty in the capital

markets in raising hundreds of millions

of dollars needed to construct and

launch a satellite system, even with a

license in hand.9 Requiring evidence of

full financing therefore prevents a

licensee from holding spectrum while it

attempts to procure financing, to the

detriment of qualified applicants that

can immediately go forward with

systems and provide service to the

public. We require FSS operators to

meet this strict standard because the

number of applications we receive in

the traditional C- and Ku-band FSS

frequencies regularly exceeds the

number we can authorize.10

5. When we proposed to apply the

existing FSS financial requirement to 28

GHz FSS systems, the GSO applicants

had not yet agreed to an orbital

assignment arrangement that would

accommodate them all. In light of their

plan, we can grant all of the first round

GSO FSS applications, with other

‘‘clear’’ orbit locations remaining

available for additional GSO FSS

satellites. Further, granting Teledesic’s

NGSO FSS system application does not

preclude future Ka-band NGSO FSS

systems. Thus, authorizing all proposed

first-round systems does not preclude

use of this band by other applicants for

FSS systems. We therefore will waive

the FSS financial requirement for firstround applicants, as reflected in their

individual licenses. We intend to

enforce system milestone schedules

strictly to ensure that any licensees who

are not able to proceed do not continue

to hold valuable orbit and spectrum

resources. Further, we emphasize that

this waiver applies to this processing

group only, and that the application of

our financial requirements to any future

Ka-band processing round will be

addressed in the context of that

processing round.

Technical Qualifications

6. Applicants for satellite systems

must also meet certain technical

qualification standards. The Ka-band

offers several technical advantages that

allow for the implementation of

broadband, high capacity FSS

applications that otherwise could not be

provided in the C- or Ku-bands. For

example, the shorter wavelengths in this

higher frequency band support the use

of transmit-receive earth station

antennas significantly smaller than

those now in use. They also support

significantly smaller satellite spot beams

that facilitate frequency reuse, and

wider bandwidth and high data rate

services.11 However, operations at the

Ka-band frequencies are also very

susceptible to rain fade and other

atmospheric attenuations.

7. Many commenters urge the

Commission to confirm that the

Commission’s existing FSS technical

requirements and policies apply to

satellite systems in the Ka-band.12 As

indicated previously, we will, in

general, apply existing FSS rules,

including technical qualifications

requirements, to commercial satellite

systems in the Ka-band. In the following

text, we discuss modifications or

clarifications to several rules that we

adopt to accommodate efficient and

state-of-the art use of the Ka-band.

GSO Specific Requirements

8. The Commission’s rules currently

require that an applicant for a GSO FSS

space station authorization demonstrate

how the proposed space station

complies with 2 degree orbital spacing

requirements. 47 CFR 25.140. In the

Third NPRM, we proposed to apply 2

degree spacing to the Ka-band and

requested comment on this proposal.

This proposal was supported by several

commenters.13 GE, in fact, suggested

that the Commission explore the

possibility of 1 degree spacing in the Kaband.14 NetSat28, in contrast, argued

that the characteristics of this higher

frequency band and the innovative

technology proposed for this band

support a different approach to orbital

spacing, specifically, 8 degree spacing.15

However, the orbit assignment plan

submitted by the GSO applicants,

including NetSat28, spaces their

satellites at 2 degree intervals.

9. We believe it is in the public

interest, as we establish the Ka-band

satellite service, to continue our policy

of maximizing the number of satellites

that can be accommodated in orbit. If

we were to move to GSO orbital arc

spacing greater than 2 degrees at this

time, we would not be able to

accommodate all potential service

providers in this first processing round.

By submitting a plan using 2 degree

spacing, the GSO satellite applicants

suggest they can implement viable

systems with these spacings. Further,

there is nothing in the record to support

a finding that one degree spacing, with

its increased potential for interference,

is feasible at this time. Consequently,

we will apply the existing 2 degree

spacing policy to U.S. licensed nonGovernment Ka-band orbital

assignments.

10. To accommodate maximum entry

while facilitating efficient use of in-orbit

resources, we limit, in part 25, the

number of orbit locations a qualified

FSS applicant may be initially

assigned.16 Historically, this limitation

pertained to the provision of domestic

FSS in the United States, the objectives

being to avoid prematurely assigning an

excessive number of orbital locations to

an existing licensee for expansion of its

domestic system and to promote entry

opportunity in the bands.17 Many of the

systems proposed in the Ka-band

propose to serve geographic areas

around the world. In addition, the

applicants have also agreed to an

arrangement that accommodates all

proposed satellites. We also licensed

thirteen different GSO FSS system

providers in the band and expect that

there will be a mix of competitors for

services in the band. We believe it is in

the public interest to allow these

systems, especially those proposing to

serve different geographic areas, to

proceed as proposed at this point.

Therefore, we will waive, for this

processing round only, any rules that

limit the number of orbit locations that

may be assigned to any applicant.

11. We have long recognized the cost

benefits in implementing several service

bands on a single space platform.

Consequently, as we do with C- and Kuband satellites, we will permit Ka-band

licensees to build hybrid satellites

where they are assigned to

corresponding C- and Ka-band, or Kuband and Ka-band orbit locations,
Federal Register / Vol. 62, No. 222 / Tuesday, November 18, 1997 / Rules and Regulations 61451

18Comments of Teledesic at 28.

19See Big LEO Report and Order at ¶ 24; 47 CFR

25.143(b)(2)(ii); (b)(2)(iii).

20 Design constraints include limitations on the

number of orbital planes, orbital plane inclination,

orbit altitude, and earth station antenna patterns.

21 ‘‘In-line’’ interference occurs when satellites

from separate NGSO FSS systems operate in the

region where each system’s orbital planes cross.

22 ‘‘Secondary’’ generally refers to a category of

service with respect to other radio services. Stations

of a secondary service shall not cause harmful

interference to stations of primary or permitted

services; cannot claim protection from harmful

interference from stations of a primary or permitted

service, but can claim protection from harmful

interference from stations of the same or other

secondary service(s) to which frequencies may be

assigned at a later date. See 47 CFR 2.104(d); 47

CFR 2.105(c)(3). As a general matter, the

Commission does not coordinate secondary

operations with respect to primary or permitted

services.

provided all other technical and service

requirements for the particular band are

met. Any licensee that wishes to

consolidate co-located satellites into a

hybrid satellite must file an application

to modify its underlying licenses.

NGSO Specific Requirements

12. In the Third NPRM, we asked

whether spectrum efficiency or service

availability standards should be adopted

for NGSO FSS systems in the Ka-band.

Teledesic was the only party who filed

timely comments regarding NGSO FSS

service rule issues.

13. Teledesic suggests that the

Commission consider adopting some

minimum domestic and international

geographic coverage requirements to

ensure that NGSO FSS satellite systems,

which are inherently global in nature,

provide universal access throughout the

U.S. and the world.18 We agree that

NGSO FSS systems are capable of

fostering a seamless global

communications network and we

believe that it serves the public interest

to adopt a coverage area requirement for

these systems. Consequently, we are

adopting the same coverage

requirements for 28 GHz systems that

we apply to ‘‘Big LEO’’ systems

operating in the 1610–1626.5 / 2483.5–

2500 MHz bands.19 Specifically, we will

require 28 GHz NGSO FSS systems to be

capable of serving locations as far north

as 70 degrees latitude and as far south

as 55 degrees latitude for at least 75%

of every 24-hour period. We will also

require 28 GHz NGSO FSS systems to be

capable of providing FSS on a

continuous basis throughout the fifty

states, Puerto Rico, and the U.S. Virgin

Islands.

14. As always, we seek to foster a

climate that maximizes competition and

promotes multiple entry of systems.

Resolution 118 (WRC–95) requests that

the ITU–R study, among other things,

the sharing between NGSO FSS

networks in the Ka-band. ITU–R

Working party-4A studies have

identified, and the Commission

recognizes, two sharing scenarios: (1)

sharing between or among

‘‘homogeneous’’ NGSO FSS systems,

and (2) sharing between or among ‘‘nonhomogeneous’’ NGSO FSS systems.

‘‘Homogeneous’’ NGSO FSS systems are

assumed to have orbits with

approximately the same altitude and

high inclination angle. Similar technical

parameters are not assumed for ‘‘nonhomogeneous’’ NGSO FSS systems.

Under scenario (1), sharing between

multiple ‘‘homogeneous’’ NGSO FSS

systems is feasible by interleaving the

orbital planes of different NGSO FSS

constellations. It may also be possible to

interleave satellites from different

constellations within the same orbital

plane. Because each constellation’s

satellites are separated spatially under

scenario (1), there is no ‘‘in-line’’

interference between NGSO FSS

systems, except near the polar regions.

This particular sharing scenario requires

minimum interaction between the

different NGSO FSS systems. ITU–R

studies assert that multiple

‘‘homogeneous’’ NGSO FSS systems can

be accommodated using these methods.

However, it is important to note that

sharing between or among

‘‘homogeneous’’ systems imposes

similar uniform design constraints on

subsequent NGSO FSS systems

implemented in the same frequency

bands.20

15. A second sharing scenario exists

between or among ‘‘non-homogeneous’’

NGSO FSS systems. Because of the

inherently large number of orbital plane

crossings, it is not possible to maintain

spatial separation between satellites in

multiple NGSO FSS constellations.21

Consequently, other types of mitigation

techniques (e.g., exclusion zones,

satellite diversity, or high gain

antennas) would need to be employed

by each NGSO FSS system. The

Commission also recognizes that further

division of the spectrum, which would

result in a reduction of each system’s

capacity, is also a feasible alternative if

sharing proves to be unacceptable to any

particular NGSO FSS system.

16. We are not now in a position to

determine exactly how many nonGovernment NGSO FSS systems, and in

particular, how many ‘‘nonhomogeneous’’ type systems, will be

able to operate in the 18.8–19.3/28.6–

29.1 GHz bands. Further, we note that

many satellites undergo design changes

during implementation that could

facilitate sharing among systems.

Additionally, second generation systems

usually become more efficient, further

facilitating the operation of multiple

systems. Consequently, we will not now

mandate any specific sharing principles

or mitigation techniques to be used in

coordination between or among nonGovernment NGSO FSS systems.

However, we expect all nonGovernment NGSO FSS systems to be

responsible for some portion of the

burden-sharing. Specifically, we expect

all NGSO FSS licensees to bear some

portion of the technical and operational

constraints necessary to accommodate

multiple ‘‘non-homogeneous’’ NGSO

FSS systems. In apportioning burden, it

may be appropriate to consider factors

such as whether a particular NGSO FSS

satellite is already in-orbit and

operational. If NGSO FSS nonGovernment systems are unable to share

spectrum, another feasible alternative is

to further divide the spectrum

designated in the United States for nonGovernment NGSO FSS systems,

between or among licensed operators.

We will evaluate all applications for

NGSO FSS systems on a case-by-case

basis, revisiting the multiple entry issue,

as necessary, as we gain more

experience with NGSO FSS systems.

Implementing the Band Plan

Domestically

17. The 28 GHz band plan designates

domestic licensing priority for certain

non-Government services or systems in

specific band segments. We designated

co-frequency sharing between services

or systems only in band segments where

the Commission and the parties

concluded it is technically feasible. In

the 28 GHz Band First Report and Order

we further designated domestic

licensing priority for certain types of

fixed-satellite services with respect to

other types of fixed-satellite services in

specific band segments. For example, in

the 28.35–28.60 GHz band segments,

GSO FSS systems have licensing

priority over NGSO FSS systems, and in

the 28.6–29.1 GHz segment, NGSO FSS

systems have licensing priority over

GSO FSS systems. This licensing

priority between systems in the same

service has a similar interpretation as a

‘‘secondary’’ service with respect to a

‘‘primary’’ service.22 Accordingly, we

will require any service provider

proposing to operate in a band segment

in which it does not have licensing

priority, to operate on an unprotected

non-interference basis to the priority

service. To ensure non-interfering

operations, we will require all

secondary operators to submit to the
61452 Federal Register / Vol. 62, No. 222 / Tuesday, November 18, 1997 / Rules and Regulations

23See 47 CFR 2.106 U.S. footnote 334.

24We note, however, that in a separate proceeding

we have relocated a fixed service, the Digital

Electronic Message Service (‘‘DEMS’’) from the

18.82–18.92 and 19.16–19.26 GHz bands to the

24.25–24.45 and 25.05–25.25 GHz bands. See

Amendment of the Commission’s Rules to Relocate

the Digital Electronic Message Service From the 18

GHz band to the 24 GHz band and To Allocate Band

For Fixed Service, 12 FCC Rcd 3471 (1997), 62 FR

24576 (May 6, 1997). This Order is subject to

petitions for reconsideration.

25See Routine Licensing of Large Numbers of

Small Antenna Earth Stations Operating in the KaBand, Petition for Rulemaking, RM–9005, submitted

December 20, 1996, by: GE, Loral, Lockheed Martin

and Hughes.

26See Comments of Teledesic at 3.

27See Applications of EchoStar, Ka-Star,

Lockheed Martin, Hughes, Loral, Comm. Inc., and

Teledesic.

28See ‘‘United States Proposals No. 209 and No.

210 for the Work of the Conference’’ (August 1997).

29See Streamlining the Commission’s Rules and

Regulations for Satellite Application and Licensing

Procedures, Report and Order, 11 FCC Rcd 21581

(1996), 62 FR 5924 (February 14, 1997) (Part 25

Streamlining).

30See In the Matter of Amendment to the

Commission’s Regulatory Policies Governing

Domestic Fixed Satellites and Separate

International Satellite Systems and DBSC Petition

for Declaratory Rulemaking Regarding the Use of

Transponders to provide international DBS Service,

11 FCC Rcd 2429, 2436 (1996), 61 FR 9946 (March

12, 1996) (DISCO I Order).

Commission a technical demonstration

that it can operate on a non-harmful

interference basis to the type of satellite

system with licensing priority. This

technical demonstration will be subject

to public comment before we authorize

any secondary operations in the bands.

In addition, we will require secondary

users to immediately cease operations

upon notification of harmful

interference into any service or system

that has superior status or licensing

priority in a particular band segment.

18. Further, all licensees must

coordinate with the U.S. Government

systems authorized in the 17.80–20.20

GHz band, in accordance with U.S.

footnote 334 in the Table of Frequency

Allocations. U.S. footnote 334 reads as

follows: ‘‘In the band 17.80–20.20 GHz,

Government space stations and

associated earth stations in the fixedsatellite (space-to-Earth) service may be

authorized on a primary basis. For a

Government geo-stationary satellite

network to operate on a primary basis,

the space station shall be located

outside the arc measured from East to

West, 70° W to 120° W. Coordination

between Government fixed-satellite

systems and non-Government systems

operating in accordance with the United

States Table of Frequency Allocations is

required.’’ 23

19. The 18.8–19.3 GHz band is

designated for non-Government NGSO

FSS use on a co-primary basis with the

fixed service and with Government

services. We require NGSO FSS systems

to coordinate with any existing and

future point-to-point fixed systems in

the band.24 We also designated NGSO

FSS on a secondary priority basis in the

17.7–18.8 and 19.7–20.2 GHz band

segments. As a secondary user, NGSO

FSS operators shall not cause harmful

interference to stations of a primary

service, or higher priority FSS system,

nor can they claim protection from

harmful interference from stations of a

primary service, or higher priority FSS

system. NGSO FSS systems must also

coordinate with the Government

systems operating in the band 18.8–19.3

GHz in accordance with U.S. footnote

334.

Earth Station Licensing

20. We anticipate making changes to

our existing part 25 requirements for

earth stations in the C- and Ku-bands to

take into account operations at Ka-band.

In fact, four GSO satellite applicants

have submitted a petition for

rulemaking to the Commission.25 The

Petitioners request that the Commission

institute a rulemaking proceeding to

revise part 25 of the Commission’s rules,

47 CFR § 25.101, in order to provide for

the routine licensing of large numbers of

small antenna earth stations operating

in the 19.7–20.2/29.5–30.0 GHz bands

for GSO FSS. Teledesic supports the

Petition and further suggests the scope

of the rulemaking be expanded to

include the entire available Ka-band

frequencies.26

Inter-Satellite Service

21. Many system proponents in the

Ka-band propose to use inter-satellite

service (ISS) frequencies to interconnect

satellites within their respective

networks.27 These proposed bands

include the 22.55–23.55 GHz/32.0–33.0

GHz/54.25–58.2 GHz and 59–64 GHz

bands.

22. One licensee, Hughes, proposes to

use the 22.55–23.55 GHz and 32.0–33.0

GHz bands for some of its inter-satellite

links. These bands are shared on a coequal basis with U.S. Government

operations. In addition, one of the ‘‘Big

LEO’’ systems is licensed to operate

inter-satellite links in the 22.55–23.55

GHz band. Any 28 GHz systems

licensed to operate inter-satellite links

in these bands would be required to

coordinate with U.S. Government

systems through the Frequency

Assignment Subcommittee (FAS) of the

Inter-Governmental Radio Advisory

Committee (IRAC) and with other nonGovernment licensees in the band. At

this time, we defer action on any

authorizations in the 22.55–23.55 and

32.0–33.0 GHz bands until we receive

more information on the specific

frequencies Hughes needs for its system

and we have coordinated with the

Government.

23. The Commission and the National

Telecommunications and Information

Administration (NTIA), which has

primary jurisdiction over Government

use of spectrum, have had discussions

regarding the potential for interference

that would be associated with nonGovernment GSO or NGSO FSS

operations in the 54.25–58.2 GHz and

59–64 GHz bands. The 54.25–58.25 GHz

band appears more promising for the

inter-satellite service to support nonGovernment GSO FSS operations. We

are also working with NTIA to develop

a U.S. proposal to WRC–97 for an

allocation in the 65–71 GHz band for

inter-satellite service links for both GSO

and NGSO FSS systems.28 We are

optimistic that we will obtain sufficient

spectrum internationally to support Kaband system inter-satellite link

operations. Nevertheless, we did not

delay issuing licenses pending the

allocation of suitable spectrum for intersatellite links. Once suitable spectrum is

available, we will require licensees to

apply for operating authority on specific

operating frequencies. Further, because

licensees will not be able to proceed

beyond the initial phases of

construction until the inter-satellite link

issues are resolved, we did not impose

any system implementation milestones

until we grant authority to launch and

operate individual systems using

specific inter-satellite link spectrum. We

will hold all licensees to the strict

milestone schedule discussed above,

once the respective inter-satellite

frequencies are authorized. In the

interim, all licensees are free to begin

construction at their own risk. We

recently waived the construction permit

requirement for space stations. This

decision, effective April 21, 1997,

means that applicants no longer need

Commission authorization in order to

build their proposed satellites. Any

construction prior to obtaining an

operating license is, however, solely at

the applicant’s own risk and will not

predispose the Commission to grant it

launch and operating authority.29

Service Rules

24. In our DISCO I Order, we

determined that all fixed-satellite

operators in the C-band and Ku-band

could elect to operate on a common

carrier or non-common carrier basis.30

We see no reason to treat satellite
Federal Register / Vol. 62, No. 222 / Tuesday, November 18, 1997 / Rules and Regulations 61453

31National Ass’n of Regulatory Utility

Commissioners v. FCC, 525 F.2d 630 (D.C. Cir.),

cert. denied, 425 U.S. 992 (1976); 47 U.S.C.

§ 153(44).

32But see EchoStar Satellite Corporation

Application for Authority to Construct, Launch, and

Operate a Ka-Band Satellite System in the FixedSatellite Service, Order and Authorization, DA 97–

969, (released May 9, 1997). EchoStar proposes to

operate its system on a common carrier basis.

33See DISCO I Order at ¶ 46.

34 ITU Regulations require that all satellites must

be brought into use no later than six years from the

date on which the Appendix 4 information for that

satellite was filed. However, a request for a threeyear extension of time may be granted. The

Appendix 4 information for 28 GHz GSO systems

was filed in November 1995. Therefore, all satellites

we have authorized to operate in the 28 GHz

spectrum must be launched by November 2004.

35See Big LEO Report and Order at ¶ 189.

36See Part 25 Streamlining, supra, n. 29.

37See 47 CFR § 25.210(j)(1)(2)(3).

38Because coordination procedures were not in

place for NGSO FSS satellite systems at the time the

Appendix 3 information was filed, it was possible

for certain NGSO FSS and NGSO MSS feeder link

systems to move from the advance publication (step

1) process to the notification (step 3) process.

39See Report and Order, ¶¶ 39–49.

operators in the Ka-band any differently.

The Commission traditionally has

evaluated requests to operate on a noncommon carrier basis using the analysis

set forth in National Association of

Regulatory Utility Commissioners v.

FCC,31 (NARUC I). Under NARUC I, we

may regulate an entity as a private

carrier unless: (1) there is or should be

any legal compulsion to serve the public

indifferently; or (2) there are reasons

implicit in the nature of the service to

expect that the entity will in fact hold

itself out indifferently to all eligible

users.

25. Several of the Ka-band FSS

applicants propose to operate all

services on a non-common carrier

basis.32 Regarding the first prong of

NARUC I, we do not see any legal

compulsion to require any space station

licensee in the Ka-band to operate on a

non-common carrier basis. We have

already determined there is sufficient

competitive capacity available in the Cand Ku-bands to assure the U.S. public

ample access to fixed-satellite

services.33 In addition, we have licensed

thirteen GSO FSS systems and one

NGSO FSS system in the Ka-band which

propose to offer a wide variety of

broadband voice, data and video

services to the U.S. domestic consumer.

26. Regarding the second prong of

NARUC I, we find there is little

likelihood that such Ka-band licensees

will hold themselves out indifferently to

serve the public. New Ka-band offerings

can be tailored to provide a broad array

of specialized communications services

ranging from videoconferencing to

telemedicine; and these services may be

styled to accommodate highly

individualized methods of operation

and demands of potential customers.

We believe permitting Ka-band

licensees to offer services on a noncommon carrier basis is in the public

interest.

Implementation Milestones

27. We will require each GSO FSS

licensee to begin construction of its first

satellite within one year of grant, to

begin construction of the remainder

within two years of grant, to launch at

least one satellite into each of its

assigned orbit locations within five

years of grant, and to launch the

remainder of its satellites by the date

required by the International

Telecommunication Union to assure

international recognition and protection

of these satellites.34 For NGSO FSS

systems, we adopt the same

implementation schedule as we did for

the Big LEOs.35 Specifically, we will

require NGSO FSS licensees to begin

construction of its first two satellites

within one year of the unconditional

grant of its authorization, and complete

construction of those first two satellites

within four years of that grant.

Construction for the remaining

authorized operating satellites in the

constellation must begin within three

years of the initial authorization, and

the entire authorized system must be

operational within six years.

Reporting Requirements

28. We will also follow the new part

25 rules for reporting requirements for

FSS systems.36 Specifically, a licensee

will be required to file an annual report

with the Commission describing: the

status of satellite construction and

anticipated launch dates, including any

major problems or delays encountered;

a listing of any non-scheduled

transponder (GSO FSS) or satellite

(NGSO FSS) outages for more than 30

minutes; and the cause(s) of such

outages; and a detailed description of

the utilization made of each transponder

(GSO FSS) or satellite (NGSO FSS) on

each of the in-orbit satellites.37

International Operations

29. The United States is under a treaty

obligation, in connection with its

membership in the ITU, to coordinate

all U.S. authorized services

internationally. The ITU’s coordination

procedures are intended to ensure that

the operations of one country’s satellites

do not cause or receive harmful

interference to or from the operations of

another country’s satellites. The

procedure for effecting coordination of a

satellite system is a three-step process

consisting of (1) advance publication,

where a country makes known its plans

to implement a satellite system at

particular frequencies and orbital

parameters (e.g., location), (2)

coordination, where technical

agreements are negotiated and reached

among countries to ensure interferencefree operations of the planned satellites,

and (3) notification, where the

frequency assignment is recorded in the

ITU’s Master International Frequency

Register. Once these processes have

been completed, a satellite system is

entitled to international recognition and

is protected against interference from all

existing and future satellites.

30. We have advance published GSO

and NGSO FSS systems and have

initiated coordination with the ITU. We

have also submitted notification

information for a NGSO FSS system.38

To facilitate these processes, we will

continue to require licensees to provide

us with all of the information required

to complete the coordination and

notification process.

31. The NTIA may authorize

Government GSO FSS and NGSO FSS

operations on a primary basis in the

band 17.8–20.2 GHz in accordance with

US footnote 334. Where international

coordination is required for these

Government systems, the NTIA will

separately coordinate the Government

GSO and NGSO operations in

accordance with the appropriate ITU

regulations.

32. Because the 28 GHz band is

allocated and used worldwide for a

variety of technically incompatible

terrestrial and satellite services, we

expect that international coordination of

our 28 GHz band non-Government

systems will be complex. Specifically,

the 27.5–30.0/17.7–20.2 GHz bands are

allocated domestically and

internationally to the fixed service,

which includes LMDS, and to the FSS,

which includes both GSO and NGSO

operations. MSS system feeder link

operations may also be provided under

FSS allocations. As we discussed

previously in paragraph 6, we have

determined the only way to address

these conflicting allocations and

proposed usage was to adopt a band

plan that, in essence, divides the 27.5–

30.0/17.7–20.2 GHz band into several

band segments, each of which is to be

used primarily for LMDS, GSO FSS,

NGSO FSS, or MSS feeder link

operations.39 As explained below, we

believe it is in the public interest to use

this plan as the basis for coordinating

U.S. licensed 28 GHz band satellite

systems internationally. We outline

herein the procedures we intend to
61454 Federal Register / Vol. 62, No. 222 / Tuesday, November 18, 1997 / Rules and Regulations

40This does not include the coordination of earth

stations accessing U.S.-licensed systems, since

these earth stations belong to the administration

where the earth station is located.

41However, satisfactory ways of co-frequency

sharing by NGSO FSS and GSO FSS networks can

be found where the burden is placed on either the

GSO or NGSO network. Mitigation techniques to

reduce interference can be evaluated through the

coordination process.

42See Big LEO Report and Order at ¶ 231.

43See ex parte filing of Lockheed Martin filed

(May 7, 1997) at 8, supporting this policy: ‘‘Now

that the 28 GHz band plan has been adopted in the

United States, the Commission staff is considering

applying the same frequency plan, including

specific licensing priorities (i.e., ‘‘primary’’ and

‘‘secondary’’ designation), to the operation of U.S.

licensed satellites abroad. Lockheed Martin

supports the adoption of such measures.’’

follow for coordinating U.S.-licensed

non-Government satellite systems with

each other in other parts of the world.

In addition, we outline the procedures

we will generally follow when

coordinating U.S.-licensed nonGovernment 28 GHz satellite systems

with both satellite and terrestrial

systems licensed by other countries. At

the same time, we recognize that other

countries are able to implement their

systems in accordance with their

domestic requirements and the

International Radio Regulations.

33. Because we have licensed

multiple non-Government 28 GHz

satellite systems and several of these

systems are designed to operate on a

global basis, we will likely be faced with

the responsibility of coordinating the

international operations of two or more

non-Government satellite systems with

each other.40 The record in this

proceeding does not support a finding

that sharing between ubiquitous nonGovernment GSO and NGSO FSS

systems is technically feasible at this

time without mitigation.41 This was the

impetus for adopting a band sharing

plan at 28 GHz that designated separate

band segments for primary GSO FSS,

NGSO FSS and feeder link operations.

Due to the potential coordination

difficulties that may lead to delay of

services, we believe it is in the public

interest to require U.S. non-Government

licensees to operate in accordance with

our 28 GHz band plan throughout the

world, with certain exceptions as

described below. Without such a

requirement, we believe we would

jeopardize the successful operation of

these systems outside of the United

States.

34. In the Big LEO proceeding, where

we also adopted service rules for U.S.

global satellite systems, we did not

require non-Government licensees to

operate in accordance with the domestic

band plan outside the United States.42

This approach resulted in significant

delay in the implementation of their

systems, however. Eventually, the Big

LEO licensees determined that in order

for each system to operate on a global

basis without coordination conflicts

amongst themselves, the best way was

to conform their international

operations to the domestic band plan set

out in the Big LEO Report and Order.

Our experience in the Big LEO

proceeding leads us to believe that it is

in the public interest to adopt a policy

now for coordination of these U.S.

licensed global non-Government

systems in the 28 GHz band to ensure

that coordination can proceed and

services can be provided to the public

in a timely manner.43

35. While we envision coordinating

U.S. licensed non-Government systems

in accordance with the 28 GHz band

segmentation plan throughout the

world, we recognize that there will be

some exceptions. For example, due to

the need to accommodate non-U.S.

satellite systems that had entered into

the ITU advance publication,

coordination and notification processes

before the U.S. systems, the United

States has negotiated agreements with

other administrations to permit

operation of specific satellite systems in

certain geographic areas in frequency

bands that are not entirely in

conformance with the U.S. 28 GHz band

plan. Accordingly, we will adhere to

any coordination or consultation

agreements that were initiated before

the 28 GHz band plan was adopted in

July 1996. In addition, these nonconforming arrangements could

potentially impact how we decide to

coordinate U.S. non-Government

satellite systems in other portions of the

28 GHz band. For example, we may seek

to make up for some of the spectrum

‘‘lost’’ to these systems in the agreement

in other portions of the band. We

anticipate that these deviations from our

band plan will be the rare exception for

the implementation of the U.S. band

plan by U.S. non-Government satellite

system licensees worldwide.

36. Last, the U.S. band plan does not

distinguish between GSO and NGSO

FSS systems as secondary users to

LMDS in the 27.5 to 28.35 GHz uplink

band. Rather, generic FSS is designated

as the secondary service in the U.S. We

envision only limited FSS uplink

operations, such as gateway operations,

will be able to operate on a noninterference basis to LMDS in the

United States. In those cases where

other countries use the 27.5–28.35 GHz

band segment for FSS, we intend to

provide U.S. non-Government GSO FSS

systems with coordination priority over

U.S. non-Government NGSO FSS

systems in this band. This is because the

U.S. band plan designates the

corresponding downlink frequency

band at 17.7–18.8 GHz on a priority

basis to the GSO FSS, with NGSO FSS

operations on a non-interference basis

only to any service or system that has

superior status or licensing priority. If

the uplink frequencies are not treated in

a similar manner, the downlink

designation would be meaningless. We

do not believe this to be the intended

result of the band plan. We will

therefore give priority to U.S. GSO

systems vis-a-vis U.S. NGSO systems at

27.5–28.35 GHz.

37. Therefore, as the coordinating

administration for these systems, we

will require any U.S. non-Government

satellite system operating inconsistently

with the U.S. 28 GHz band plan—and,

by definition, its coordinated

parameters—to cease operations if it

causes harmful interference to any U.S.

non-Government system operating in

conformance with the U.S. band plan

for non-Government systems, or to any

U.S. Government system operating in

accordance with US footnote 334. (The

non-Government band plan is not

applicable for GSO and NGSO

Government operations which are

authorized on a primary basis across the

17.8–20.2 GHz band.)

38. In coordinating U.S.-licensed nonGovernment systems with systems of

other Administrations, we will, as

always, follow the applicable

coordination procedures set out in the

ITU Radio Regulations for the particular

band segment being coordinated. For

example, satellite system coordination

may implicate ITU Radio Regulation No.

S22.2 (2613) for instances where NGSO

FSS systems and GSO FSS systems are

proposed. This regulation applies in

certain segments of the 28 GHz band

and requires, in those bands, that NGSO

FSS systems cease or reduce to a

negligible level their operations

whenever there is unacceptable

interference caused to a GSO FSS

system. Consequently, in coordinating

and consulting U.S. non-Government

FSS systems with other countries’ FSS

systems in bands where this provision

applies, we expect that consultations or

coordinations between administrations

will result in operational or technical

considerations which will prevent

unacceptable interference to GSO FSS

systems. In bands where there is a

primary allocation to the fixed service

and FSS, we will coordinate U.S.

satellite system operations on an equal

basis to the fixed stations, consistent

with established ITU Radio Regulations

and Recommendations.
Federal Register / Vol. 62, No. 222 / Tuesday, November 18, 1997 / Rules and Regulations 61455

44See Amendment of the Commission’s Rules to

Establish Rules and Policies Pertaining to a Mobile

Satellite Service in the 1610–1626.5/2483.5–2500

MHz frequency band, Memorandum Opinion and

Order, 11 FCC Rcd 12861 (1996) at ¶¶ 54–55, 61 FR

9944 (March 12, 1996); 47 CFR 25.143(h)

(prohibiting Big LEO licensees from entering into

exclusive arrangements to serve particular

countries).

45See Big Leo Report and Order at ¶ 203; 47 CFR

§ 25.143(h) (prohibits Big LEO licensees from

selling a bare license for profit).

46See 5 U.S.C. § 603. The RFA, see 5 U.S.C. § 601

et seq., has been amended by the Contract with

America Advancement Act of 1996, Pub. L. 104–

121, 110 Stat. 847 (1996) (CWAAA). Title II of the

CWAAA is The Small Business Regulatory

Enforcement Fairness Act of 1996 (SBREFA). 47See 5 U.S.C. § 604.

48 13 CFR 121.201, Standard Industrial

Classification (SIC) Code 4899.

49 1992 Economic Census Industry and Enterprise

Receipts Size Report, Table 2D, SIC 4899 (U.S.

Bureau of the Census data under contract to the

Office of Advocacy of the U.S. Small Business

Administration).

50See ‘‘Financing the Final Frontier: Funding

Commercial Space Activities’’ Bear Stearns, Global

Space & Satellite Finance Report.

51For example, American Mobile Satellite Corp is

reported to have 45 employees by the Satellite

Industry Association; 317 employees by Satellite

Industry Analyst ‘‘BZW.’’

39. The Commission can authorize

operations of satellite systems in the

United States only. Operation and use of

these systems in geographic areas

outside the United States requires

appropriate authorizations from other

countries in which the U.S. licensee

wishes to operate earth stations. In order

to ensure that Ka-band satellite service

is truly global, we adopt limitations on

Ka-band licensees’ ability to enter into

exclusive arrangements with other

countries concerning communications

to or from the United States similar to

those in place for Big LEO systems.44 An

exclusive agreement may foreclose other

FSS licensees from serving a foreign

market, preventing that licensee from

providing global service. Further, such

an arrangement may be inconsistent

with our band plan. We intend to

construe the restrictions on

exclusionary arrangements bearing in

mind that spectrum coordination and

availability in particular countries may

limit the number of systems that can

provide service to that country.

Nevertheless, our intent will be to

further the implementation and use of

multiple satellite systems in other

administrations.

Other Requirements

40. To discourage speculators and to

prevent unjust enrichment of those who

do not implement their proposed

systems, we adopt a rule that prohibits

any Ka-band licensee from selling a bare

license for a profit. This provision is not

intended to prevent the infusion of

capital by either debt or equity

financing. Nevertheless, any such

transaction will be monitored to ensure

that it does not constitute an evasion of

the anti-trafficking provision.45

Final Regulatory Flexibility Analysis

41. As required by the Regulatory

Flexibility Act, (RFA),46 an Initial

Regulatory Flexibility Analysis (IRFA)

was incorporated in the Third NPRM in

this proceeding. The Commission

sought written public comment on the

proposals in the Third NPRM, including

comment on the IRFA. This Final

Regulatory Flexibility Analysis (FRFA),

concerning the Third Report and Order,

conforms to the RFA.47

I. Need for and Objectives of the Third

Report and Order

42. In this decision, the Commission,

adopts licensing qualification rules and

service rules for fixed-satellite service

systems in the Ka-band. The purpose of

this action is to help launch a new

broadband satellite service well-suited

to compete in the domestic and global

marketplace. In order to ensure the

rapid and successful implementation of

new FSS systems in the Ka-band, the

Commission has used the existing FSS

system rules as a foundation and has

modified these rules to the extent

necessary to reflect the nature of

operations at Ka-band. The decision

promotes efficiency in licensing and use

of the electromagnetic spectrum. In

addition we expect that the licensing

framework we have set out for the Kaband will aid in the development of

competitive and innovative satellite

systems.

II. Summary of Significant Issues

Raised by Public Comments in

Response to the Initial Regulatory

Flexibility Analysis

43. No comments were received

specifically in response to the IRFA.

However, in order to minimize any

barriers for entry into this new satellite

market for small entities, Commission

staff spent months encouraging and

working with all of the commercial GSO

FSS applicants to reach agreement on an

orbital assignment plan to accommodate

all first-round applicants. As discussed

in the Third Report and Order, the

applicants did reach agreement

regarding orbit locations. Therefore we

are able to waive our financial

qualification requirement and not look

to current financial ability as a

prerequisite to a license grant. By

licensing all current commercial system

applicants, we enable small entities and

start-up companies the opportunity to

compete in the capital intensive satellite

industry.

III. Description and Estimate of the

Number of Small Entities to Which

Rules Will Apply

44. The Commission has not

developed a definition of small entities

applicable to satellite service licensees.

Therefore, the applicable definition of

small entity is the definition under the

Small Business Administration (SBA)

rules applicable to Communications

Services ‘‘Not Elsewhere Classified.’’

This definition provides that a small

entity is expressed as one with $11.0

million or less in annual receipts.48

According to the Census Bureau data,

there were a total of 848

communications services in operation

in 1992 that fall under the category of

Communications Services, Not

Elsewhere Classified. Of those,

approximately 775 reported annual

receipts of $9,999 million or less and

qualify as small entities.49 The census

report does not provide more precise

data.

45. Describing and estimating the

number of small entities these rules will

impact is made difficult by a number of

factors. First of all, information from the

Satellite Industry Association and

financial analysts who specialize in this

market indicate there are few firms that

could be traditionally thought of as

small businesses. They point to the fact

that this is a capital intensive industry

that requires ‘‘significant partner

funding and/or contract commitments

prior to approaching commercial

financing sources.’’ 50 In addition,

estimates of employment in the

commercial satellite service industry,

another measure of small business

status, can vary widely.51

46. Space Stations (Geostationary).

Commission records reveal that there

are 37 space station licensees. We do

not request nor collect annual revenue

information, and thus are unable to

estimate the number of geostationary

space stations that would constitute a

small business under the SBA

definition.

47. Space Stations (NonGeostationary). There are six NonGeostationary Space Station licensees,

of which only one system is operational.

We do not request nor collect annual

revenue information, and thus are

unable to estimate the number of nongeostationary space stations that would

constitute a small business under the

SBA definition.

48. We have also recently authorized

thirteen commercial GSO FSS satellite

systems in the Ka-band and one
61456 Federal Register / Vol. 62, No. 222 / Tuesday, November 18, 1997 / Rules and Regulations

52See Part 25 Streamlining, n. 29, supra.

commercial NGSO FSS system to

construct, launch, and operate in the

Ka-band, conditioned on compliance

with the licensing and service rules we

adopt in this Third Report and Order.

Therefore there are no small businesses

currently providing these types of

broadband interactive services in the

Ka-band.

IV. Description of Projected Reporting,

Recordkeeping and Other Compliance

Requirements

49. The Commission’s existing rules

in part 25 on FSS operations contain

reporting requirements for FSS systems.

In this Third Report and Order, we

adopt no new reporting requirements for

FSS operations in the Ka-band and state

that we will follow the new part 25

rules for reporting requirements for FSS

systems.52 These requirements are

specifically stated in paragraph 60 of the

Third Report and Order. It is likely that

the entities filing the reports will

require no professional skills for the

preparation of such requests.

V. Steps Taken To Minimize Significant

Economic Burden on Small Entities,

and Significant Alternatives Considered

50. As part of our licensing

qualifications standard for the FSS, the

Commission has in the past applied

rigorous financial qualification

standards when the authorization of one

applicant will not prevent another

qualified applicant from going forward

with a proposal in the same service. In

the Third NPRM we proposed to apply

the existing FSS rules to the Ka-band,

including this strict financial standard.

Several of the experienced and well

financed satellite service providers such

as Hughes Communications, GE

Americom and Loral supported this

proposal as a way to get service to the

public in an efficient manner.

51. In order to minimize any barriers

for entry into this new satellite market

for small entities, Commission staff

spent months encouraging and working

with all of the commercial GSO FSS

applicants to reach agreement on an

orbital assignment plan to accommodate

all first-round applicants. As discussed

in the Third Report and Order, the

applicants did reach agreement

regarding orbit locations. Therefore we

are able to waive our financial

qualification requirement and not look

to current financial ability as a

prerequisite to a license grant. By

licensing all current commercial system

applicants, we enable small entities and

start-up companies the opportunity to

compete in the capital intensive satellite

industry.

VI. Report to Congress

52. The Commission shall send a copy

of this Final Regulatory Flexibility

Analysis, along with this Third 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.

Ordering Clauses

53. Accordingly, It is ordered that part

25 of the Commission’s rules are

amended as set forth below and will

become effective January 20, 1998, with

the exception of § 25.145(g), which will

become effective upon OMB approval.

This action is taken pursuant to

Sections 4 and 303 (r) of the

Communications Act of 1934, as

amended 47 U.S.C. §§ 154, 303(r), and

Section 201(c) of the Communications

Satellite Act of 1962, 47 U.S.C. § 721(c).

List of Subjects in 47 CFR 25

Satellites.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Rule Changes

PART—25 SATELLITE

COMMUNICATIONS

1. The authority citation for part 25

continues to read as follows:

Authority: Secs. 25.101 to 25.601 issued

under Sec. 4, 48 Stat. 1066, as amended; 47

U.S.C. 154. Interpret or apply secs. 101–104,

76 Stat. 419–427; 47 U.S.C. 701–744; 47

U.S.C. 554.

2. Section 25.145 is added to read as

follows:

§ 25.145 Licensing conditions for the

Fixed-Satellite Service in the 20/30 GHz

bands.

(a) Except as provided in § 25.210(b),

in general all rules contained in this

part apply to Fixed-Satellite Service in

the 20/30 GHz bands.

(b) System License. Applicants

authorized to construct and launch a

system of technically identical nongeostationary satellite orbit satellites

will be awarded a single ‘‘blanket’’

license covering a specified number of

space stations to operate in a specified

number of orbital planes.

(c) In addition to providing the

information specified in § 25.114, each

non-geostationary satellite orbit

applicant shall demonstrate the

following:

(1) That the proposed system be

capable of providing fixed-satellite

services to all locations as far north as

70 deg. latitude and as far south as 55

deg. latitude for at least 75% of every

24-hour period; and

(2) That the proposed system is

capable of providing fixed-satellite

services on a continuous basis

throughout the fifty states, Puerto Rico

and the U.S. Virgin Islands, U.S.

(d) Considerations involving transfer

or assignment applications. (1)

‘‘Trafficking’’ in bare licenses issued

pursuant to paragraph (b) of this section

is prohibited, except with respect to

licenses obtained through a competitive

bidding procedure.

(2) The Commission will review a

proposed transaction to determine if the

circumstances indicate trafficking in

licenses whenever applications (except

those involving pro forma assignment or

transfer of control) for consent to

assignment of a license, or for transfer

of control of a licensee, involve facilities

licensed pursuant to paragraph (b) of

this section. At its discretion, the

Commission may require the

submission of an affirmative, factual

showing (supported by affidavits of a

person or persons with personal

knowledge thereof) to demonstrate that

no trafficking has occurred.

(3) If a proposed transfer of radio

facilities is incidental to a sale of other

facilities or merger of interests, any

showing requested under paragraph

(d)(2) of this section shall include an

additional exhibit which:

(i) Discloses complete details as to the

sale of facilities or merger of interests;

(ii) Segregates clearly by an itemized

accounting, the amount of consideration

involved in the sale of facilities or

merger of interest; and

(iii) Demonstrates that the amount of

consideration assignable to the facilities

or business interests involved represents

their fair market value at the time of the

transaction.

(e) Prohibition of certain agreements.

No license shall be granted to any

applicant for a space station in the

fixed-satellite service operating in the

20/30 GHz band if that applicant, or any

persons or companies controlling or

controlled by the applicant, shall

acquire or enjoy any right, for the

purpose of handling traffic to or from

the United States, its territories or

possession, to construct or operate space

segment or earth stations, or to

interchange traffic, which is denied to

any other United States company by

reason of any concession, contract,

understanding, or working arrangement

to which the Licensee or any persons or
Federal Register / Vol. 62, No. 222 / Tuesday, November 18, 1997 / Rules and Regulations 61457

companies controlling or controlled by

the Licensee are parties.

(f) Implementation milestone

schedule. Each GSO FSS licensee in the

20/30 GHz band will be required to

begin construction of its first satellite

within one year of grant, to begin

construction of the remainder within

two years of grant, to launch at least one

satellite into each of its assigned orbit

locations within five years of grant, and

to launch the remainder of its satellites

by the date required by the International

Telecommunications Union to assure

international recognition and protection

of those satellites. Each NGSO FSS

licensee in the 20/30 GHz band will be

required to begin construction of its first

two satellites within one year of the

unconditional grant of its authorization,

and complete construction of those first

two satellites within four years of that

grant. Construction of the remaining

authorized operating satellites in the

constellation must begin within three

years of the initial authorization, and

the entire authorized system must be

operational within six years.

(g) Reporting Requirements. All

licensees in the 20/30 GHz band shall,

on June 30 of each year, file a report

with the International Bureau and the

Commission’s Columbia Operations

Center, 9200 Farm House Lane,

Columbia, MD 21046 containing the

following information:

(1) Status of space station

construction and anticipated launch

date, including any major problems or

delay encountered;

(2) A listing of any non-scheduled

space station outages for more than

thirty minutes and the cause(s) of such

outages; and

(3) Identification of any space

station(s) not available for service or

otherwise not performing to

specifications, the cause(s) of these

difficulties, and the date any space

station was taken out of service or the

malfunction identified.

3. Section 25.210 is amended by

redesignating paragraphs (c) through (j)

as paragraphs (e) through (l);

redesignating paragraph (b) as paragraph

(c); and adding new paragraphs (b) and

(d) to read as follows:

§ 25.210 Technical requirements for space

stations in the Fixed-Satellite Service.

* * * * *

(b) All space stations in the FixedSatellite Service in the 20/30 GHz band

shall use either orthogonal linear or

orthogonal circular polarization. Those

space stations utilizing orthogonal

linear polarization shall also comply

with paragraph (a) of this section.

* * * * *

(d) All space stations in the Fixed

Satellite Service in the 20/30 GHz band

shall employ state-of-the-art full

frequency reuse either through the use

of orthogonal polarizations within the

same beam and/or through the use of

spatially independent beams.

* * * * *

4. Section 25.204(g) is added to read

as follows:

§ 25.204 Power limits.

* * * * *

(g) All earth stations in the Fixed

Satellite Service in the 20/30 GHz band

shall employ uplink adaptive power

control or other methods of fade

compensation such that the earth station

transmissions shall be conducted at the

power level required to meet the desired

link performance while reducing the

level of mutual interference between

networks.

[FR Doc. 97–30205 Filed 11–17–97; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[I.D. 092297C]

Fisheries of the Exclusive Economic

Zone Off Alaska; Pacific Cod in the

Central Regulatory Area of the Gulf of

Alaska Modification of a Closure;

Correction

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Correction to a modification of

a closure.

SUMMARY: This document contains a

correction to a cross reference

incorrectly stated in a closure

notification (I.D. 092297C), which was

published September 29, 1997.

DATES: Effective 1200 hrs, Alaska local

time (A.l.t.), October 1, 1997, until 2400

hrs, A.l.t., December 31, 1997.

FOR FURTHER INFORMATION CONTACT:

Thomas Pearson, 907–486–6919.

SUPPLEMENTARY INFORMATION:

Background

On September 29, 1997, NMFS

published a notification in the Federal

Register that opened directed fishing for

Pacific cod, by vessels catching Pacific

cod for processing by the offshore

component, in the Central Regulatory

Area of the Gulf of Alaska (GOA)

effective on October 1, 1997, A.l.t. This

action was necessary to fully utilize the

total allowable catch (TAC) of Pacific

cod in the GOA Central Regulatory

Area.

Need for Correction

This action corrects an erroneous

cross reference that gives the authority

that establishes the inshore/offshore

apportionments (applicable through

December 31, 1998) of Pacific cod in all

GOA regulatory areas.

Correction of Publication

Accordingly, the publication on

September 29, 1997, of the modification

of a closure (I.D. 092297C), which was

the subject of FR Doc. 97–25777, is

corrected as follows:

On page 50888, in the third column,

the second paragraph, the first sentence,

the cross reference ‘‘679.20(d)(1)(iii)(A)’’

is corrected to read ‘‘679.20(a)(6)(iii).’’

Authority: 16 U.S.C. 1801 et seq.

Dated: November 12, 1997.

Bruce C. Morehead,

Acting Director, Office of Sustainable

Fisheries, National Marine Fisheries Service.

[FR Doc. 97–30256 Filed 11–17–97; 8:45 am]

BILLING CODE 3510–22–F