[Federal Register Volume 74, Number 139 (Wednesday, July 22, 2009)]
[Proposed Rules]
[Pages 36134-36139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17412]



[[Page 36134]]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 101

[WT Docket No. 09-114; RM 11417; FCC 09-58]


Amendment of Part 101 of the Commission's Rules To Accommodate 30 
Megahertz Channels in the 6525-6875 MHz Band; Amendment of Part 101 of 
the Commission's Rules to Provide for Conditional Authorization on 
Additional Channels in the 21.8-22.0 GHz and 23.0-23.2 GHz Band; Fixed 
Wireless Communications Coalition Request for Waiver

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, we seek comment on modifying the 
Commission's rules to authorize channels with bandwidths of as much as 
30 MHz in the 6525-6875 MHz band. We also propose, on our own motion, 
to allow conditional authority on additional channels in the 21.8-22.0 
GHz and 23.0-23.2 GHz band (23 GHz band).

DATES: Comments must be filed on or before August 21, 2009, and reply 
comments must be filed on or before September 8, 2009.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW, 
Washington, DC 20554. You may submit comments, identified by WT Docket 
No. 09-114, by any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
    <bullet> People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: <a href="/cdn-cgi/l/email-protection#f5b3b6b6c0c5c1b5939696db929a83"><span class="__cf_email__" data-cfemail="3a7c79790f0a0e7a5c5959145d554c">[email protected]</span></a> or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Charles Oliver, Attorney, Wireless 
Telecommunications Bureau at 202-418-1325 or via the Internet to 
<a href="/cdn-cgi/l/email-protection#f2b19a93809e9781dcbd9e9b849780b2949191dc959d84"><span class="__cf_email__" data-cfemail="f6b59e97849a9385d8b99a9f809384b6909595d8919980">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rule Making (NPRM), FCC 09-58, released June 29, 2009. The 
complete text of this document, including attachments and related 
Commission documents, is available for inspection and copying during 
normal business hours in the FCC Reference Center (Room CY-A257), 445 
12th Street SW. Washington, DC 20554. The complete text of the NPRM and 
related Commission documents may be purchased from the Commission's 
copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., 
Room, CY-B402, Washington, DC 20554, telephone 202-488-5300, facsimile 
202-488-5563, or you may contact BCPI at its Web site http://www.BCPIWEB.com. When ordering documents from BCPI please provide the 
appropriate FCC document number, for example, FCC 09-58. The NPRM is 
available on the Commission's Web site at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-58A1.doc.
    Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415, 1.419, interested parties may file comments and reply 
comments on or before the dates indicated on the first page of this 
document. Comments may be filed using: (1) The Commission's Electronic 
Comment Filing System (ECFS), (2) the Federal Government's eRulemaking 
Portal, or (3) by filing paper copies. See Electronic Filing of 
Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998.
    <bullet> Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ 
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers 
should follow the instructions provided on the Web site for submitting 
comments.
    <bullet> For ECFS filers, if multiple docket or rulemaking numbers 
appear in the caption of this proceeding, filers must transmit one 
electronic copy of the comments for each docket or rulemaking number 
referenced in the caption. In completing the transmittal screen, filers 
should include their full name, U.S. Postal Service mailing address, 
and the applicable docket or rulemaking number. Parties may also submit 
an electronic comment by Internet e-mail. To get filing instructions, 
filers should send an e-mail to <a href="/cdn-cgi/l/email-protection#e782848194a7818484c9808891"><span class="__cf_email__" data-cfemail="6500060316250306064b020a13">[email protected]</span></a>, and include the following 
words in the body of the message, ``get form.'' A sample form and 
directions will be sent in response.
    <bullet> Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail (although we continue to experience delays in receiving U.S. 
Postal Service mail). All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
    <bullet> The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be 
held together with rubber bands or fasteners. Any envelopes must be 
disposed of before entering the building.
    <bullet> Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
    <bullet> U.S. Postal Service first-class, Express, and Priority 
mail should be addressed to 445 12th Street, SW., Washington DC 20554.

    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an e-mail to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="c7a1a4a4f2f7f387a1a4a4e9a0a8b1">[email protected]</a> or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).

I. Summary of Notice of Proposed Rulemaking

A. The 6 GHz Band

    1. Most of the part 101 Fixed Service 6 GHz Band is made up of two 
sub-bands, 5925-6425 MHz (Lower 6 GHz Band) and 6525-6875 MHz (Upper 6 
GHz Band). The Commission licenses terrestrial Fixed Services (FS) in 
both sub-bands, but there are several differences between them. The 
Commission issues licenses for satellite earth stations on a co-primary 
basis with FS in the Lower 6 GHz band but does not issue earth station 
licenses in the Upper 6 GHz Band. Lower 6 GHz channels are also 
available for television studio-to-transmitter links (STL) in the local 
television transmission service (LTTS); Upper 6 GHz channels are not. 
In addition, the maximum authorized bandwidth differs by sub-band: 30 
megahertz is the maximum bandwidth allowed in the Lower 6 GHz Band, and 
10 megahertz is the maximum allowed in the Upper 6 GHz Band. The Lower 
6

[[Page 36135]]

GHz Band was historically assigned for wideband common carrier fixed 
use with 29.65 megahertz channels, while the Upper 6 GHz Band was 
historically assigned for private use with narrower channels. FWCC 
explains that fixed service bands such as the Lower 6 GHz Band and 
Upper 6 GHz Band carry critical services such as public safety 
communications (including police and fire vehicle dispatch), 
coordinating the movement of railroad trains, controlling natural gas 
and oil pipelines, regulating the electric grid, and backhaul for 
wireless traffic.
    2. The Lower 6 GHz Band is increasingly congested. As of early May, 
2009, there were 15,264 active FS licenses in the Lower 6 GHz Band. 
Furthermore, the Lower 6 GHz Band also has 1,602 licensed satellite 
earth stations. Each earth station is routinely coordinated for the 
entire 5925-6425 MHz band and for the entire geosynchronous arc, even 
if the earth station actually communicates with only one transponder on 
one satellite. Thus, a satellite earth station will place far greater 
limits on the ability to coordinate stations in adjacent areas than a 
terrestrial FS station, which is typically coordinated for a single 
channel, or a limited set of channels, with a narrow beamwidth. As 
noted above, existing rules also allow Lower 6 GHz FS stations to 
operate at up to triple the bandwidth authorized under existing Upper 6 
GHz Band rules.
    3. The congestion in the Lower 6 GHz Band has led a number of 
applicants to seek licenses to operate in the Upper 6 GHz Band pursuant 
to waivers that permit them to operate FS stations with bandwidths that 
are greater than the authorized 10 megahertz. As of May 11, 2009, the 
Commission had issued waivers authorizing 880 FS frequency paths with 
bandwidths greater than 10 megahertz in the Upper 6 GHz Band, of which 
548 were authorized with 30 megahertz bandwidths. These waivers were 
granted upon showing that there were no channels available in the Lower 
6 GHz Band, that other higher frequency bands were not suitable for the 
proposed path, and that there were no other alternatives. While the 
waiver process has provided an alternative for applicants seeking wider 
bandwidths in the Upper 6 GHz, some licensees have argued that the 
waiver process has the disadvantages of delay and additional 
preparation costs.
    4. If certain conditions are met, the Commission's rules provide 
that applicants for FS licenses under part 101 may operate their 
proposed stations more quickly pursuant to conditional authority, 
although they do so at their own risk during the pendency of their 
applications. One of those conditions is that the applicant has 
successfully completed the frequency coordination procedures specified 
in Sec.  101.103 of the Commission's rules. Conditional authority is 
not available, however, to applicants that must request waivers of 
existing rules.
    5. On February 4, 2008, FWCC filed a petition proposing that the 
Commission change its rules to allow channels with 30 megahertz 
bandwidths in the Upper 6 GHz Band. Specifically, FWCC proposes that 
the Commission (1) amend Sec.  101.109(c) of its rules to permit 
coordination and licensing of 30 megahertz channels in the Upper 6 GHz 
Band, (2) amend Sec.  101.147(a) of the Commission's rules to state 
that coordination of a 30 megahertz link in the Upper 6 GHz Band should 
be attempted only if the link cannot be accommodated in the Lower 6 GHz 
Band, and (3) amend Sec.  101.147(l) to specify frequency pairs for 30 
megahertz channels, while retaining the present option of using 
narrowband channels and preserving frequencies that are presently 
allocated for emergency restoration.
    6. FWCC states that the 10 megahertz maximum on authorized 
bandwidths in the Upper 6 GHz Band prevents links in that sub-band from 
handling data rates of more than about 50 megabits per second (Mbits/
s). It asserts that larger bandwidths of up to 30 megahertz will allow 
the deployment of higher capacity broadband links and will enhance the 
delivery of critical infrastructure and business services when high-
speed links are required over long distances. FWCC acknowledges that 
the Commission has granted waivers for bandwidths greater than 10 
megahertz in the Upper 6 GHz Band, but argues that the unavailability 
of conditional authorizations represents a serious disadvantage. FWCC 
argues that FS facilities must often be installed on short notice to 
meet urgent public safety, infrastructure, and commercial needs, which 
makes conditional licensing important to industries and their 
customers. FWCC contends that applicants seeking to install high-speed 
links often have no alternative to the Upper 6 GHz Band.
    7. To ensure that assignments for 30 megahertz links in the Upper 6 
GHz will only be granted in cases of necessity, FWCC proposes that a 
new note be added to Sec.  101.147(a) stating that location of a new 30 
megahertz link in the Upper 6 GHz Band should be permitted only if it 
cannot be accommodated in the Lower 6 GHz Band. FWCC notes that 
existing rules already set minimum bits-per-second and loading 
requirements for the entire 6 GHz Band, and thereby discourage 
applicants from seeking wide-bandwidth assignments when narrower 
bandwidths would meet their needs.
    8. Finally, FWCC proposes that Sec.  101.147(l) be amended by 
adding a new paragraph to designate 30 megahertz bandwidth paired 
channels (for 60 megahertz total) at 6555 and 6725 MHz, 6595 and 6755 
MHz, 6625 and 6785 MHz, 6655 MHz and 6815 MHz, and 6685 MHz and 6845 
MHz. FWCC's proposed placement of those channels would avoid any 
overlap with the channels centered at 6535 and 6575 MHz, which are 
reserved for emergency restoration, maintenance bypass, and other 
temporary fixed uses.
    9. AT&T, Comsearch, Harris, Radio Dynamics Corp., and UTC support 
FWCC's proposal. Those parties agree that the necessity of seeking 
waivers, and consequent inability to obtain conditional authorizations 
before the Commission approves applications, cause delays that have a 
significant impact on deployment of new services. They agree that there 
is rapidly increasing demand among wireless service providers for long-
distance high-capacity links, and that there is limited space available 
in bands below the Upper 6 GHz Band, especially in major metropolitan 
areas. Commenters support FWCC's proposal that applicants for wide 
channels in the upper 6 GHz be required to demonstrate that the 
spectrum required is unavailable in the lower 6 GHz. Comsearch approves 
of FWCC's proposed channelization scheme and notes that the 30 
megahertz channel pairs that FWCC proposes are formed by an appropriate 
aggregation of underlying 10 megahertz channels and eliminate any 
overlap with the channels at 6535 MHz and 6575 MHz that are reserved 
for emergency restoration and maintenance purposes.
    10. API, however, argues that the Upper 6 GHz Band should be 
preserved for use by private operational fixed microwave licensees, 
including narrow bandwidth licensees that the Commission has required 
to vacate both the 1.9 GHz band and, more recently, the 2.1 GHz band. 
API contends that allowing 30 megahertz licenses in the Upper 6 GHz 
Band could cause congestion and encourage speculative licensing. API 
states that channel assignments for incumbent licensees in the 2.1 GHz 
band are generally limited to a maximum of 800 kHz, and that, as a 
consequence, those incumbents will not require 30 megahertz bandwidths 
when they are relocated. API contends that the availability of 30 
megahertz

[[Page 36136]]

bandwidth channels in the lower 6 GHz is one of the reasons why the 
Lower 6 GHz Band has become congested, and that making such wide 
channels available in the upper 6 GHz would lead to similar congestion 
in the upper 6 GHz. That, in turn, it argues, could frustrate efforts 
to relocate displaced licensees from the 2.1 GHz band, potentially 
requiring them to resort to bands that cannot support the long signal 
paths that are feasible at 6 GHz.
    11. FWCC and AT&T argue that API's concerns are misplaced. FWCC 
contends that the main source of congestion in the lower 6 GHz is 
satellite earth stations. FWCC contends that the Upper 6 GHz Band will 
probably not become seriously congested, whether or not 30 megahertz 
bandwidths are authorized, because satellite earth stations are not 
authorized in the Upper 6 GHz Band. FWCC also believes that the 
Commission's existing buildout and loading rules are sufficient to 
prevent speculative licensing. AT&T argues that the proposed rule 
changes would not frustrate the relocation plans of licensees that are 
forced to relocate from the 1.9 GHz and 2.1 GHz bands because, under 
existing rules, new licensees will be required to compensate displaced 
incumbents for the cost of relocations, regardless of whether the 
incumbent is relocated to a single link in the 6 GHz band or to 
multiple links in a higher band that requires shorter spacing between 
transmitters and receivers.
    12. We propose to modify the Commission's rules to authorize 30 
megahertz channels in the Upper 6 GHz Band. We find such action could 
serve the public interest by making more readily available an 
additional source of spectrum for high-speed microwave links. As FWCC 
states, such links support a variety of important commercial, public 
safety, and consumer uses, including backhaul for broadband systems. 
Furthermore, the high number of waiver requests we have received to 
allow licensing of channels greater than 10 megahertz in the Upper 6 
GHz Band is evidence of a notable demand for wider channels in this 
band. We have already approved waivers for many applicants based on 
their showings that the applicants had no available alternative to 
operating in the Upper 6 GHz Band. We seek comment on this proposal.
    13. We also seek comment on API's concerns that allowing 30 
megahertz channels in the Upper 6 MHz Band could lead to congestion and 
speculative licensing. In particular, we ask commenters to indicate 
whether waiver requests the Bureau has granted for 30 megahertz 
channels in the Upper 6 MHz Band have caused problems to relocating 
licensees. Further, we ask commenters to indicate whether the Upper 6 
GHz Band has any special characteristics that would cause it to be 
particularly susceptible to speculative licensing. We note that thirty 
megahertz channels in the 6 GHz band are already required to have a 
minimum payload capacity of 134.1 Mbits/s, and they must load at least 
50 percent of that capacity within 30 months after they are licensed. 
In addition, our rules require FS links in the 6 GHz band to have a 
minimum path length of 17 kilometers (km). We seek comment on whether 
these requirements provide assurance that spectrum in the Upper 6 GHz 
Band will be used efficiently.
    14. We also seek comment on whether additional requirements are 
necessary to ensure efficient usage, in the event that we allow 30 
megahertz channels in the Upper 6 MHz Band. In particular, we seek 
comment on FWCC's proposal that we require applicants for 30 megahertz 
channels in the Upper 6 GHz Band to demonstrate that the requisite 
paths are not available in the Lower 6 GHz Band, as well as Comsearch's 
suggestion that we require a showing that channels in the 10.7-11.7 GHz 
band would not be available or sufficiently reliable.
    15. In addition, we seek comment on whether authorizing 30 
megahertz channels in the Upper 6 GHz Band would adversely impact the 
relocation of narrow-bandwidth links from other bands. We note API's 
concerns that sufficient spectrum be preserved to accommodate 
relocation of narrow-bandwidth links from other bands. We also note 
AT&T's assertion that most of the cost of relocating such licensees to 
higher bands, if that proves necessary, will fall upon the providers of 
emerging technologies that are newly licensed to the reallocated bands, 
not upon the displaced incumbents.
    16. Further, we seek comment on the specific channel plan proposed 
by FWCC, which envisions 30 megahertz bandwidth paired channels (for 60 
megahertz total for each authorized path) at 6555 and 6725 MHz, 6595 
and 6755 MHz, 6625 and 6785 MHz, 6655 MHz and 6815 MHz, and 6685 MHz 
and 6845 MHz. We note that Comsearch and Harris support this proposal. 
We also seek comment on alternative band plans, in particular whether 
additional channel bandwidths besides 30 megahertz are needed.

B. 23 GHz Band

    17. The Commission's rules provide for conditional authorization of 
fixed microwave links, allowing the license applicant to begin 
operating a link as soon as the application is filed, if the link has 
been frequency coordinated and certain other conditions are met. The 
frequencies in the 23 GHz band are shared by federal and non-federal 
users. For this reason, conditional authority in the band is limited to 
frequencies for which the Commission has an agreement with the National 
Telecommunications and Information Administration (NTIA) to permit 
conditional authorization. Thus, in the 23 GHz band, conditional 
authority is currently limited to four channel pairs--21.825/23.025 
GHz, 21.875/23.075 GHz, 21.925/23.125 GHz, and 21.975/23.175 GHz--for 
non-federal applicants proposing to limit their equivalent 
isotropically radiated power (EIRP) to 55 dBm.
    18. On November 7, 2007, FWCC submitted a petition for rulemaking 
requesting that the Commission allow conditional licensing for non-
federal use, with NTIA's consent, in two additional channel pairs in 
the 23 GHz band--the 22.025/23.225 GHz and 22.075/23.275 GHz channel 
pairs--for applicants proposing to limit their EIRP to 55 dBm.
    19. In response to FWCC's petition, we seek comment on whether to 
allow conditional authority on the 22.025/23.225 GHz and 22.075/23.275 
GHz channel pairs for applicants proposing to limit their EIRP to 55 
dBm, as set forth in the proposed rules in Appendix A. Our decision to 
seek comment on this proposal is predicated on NTIA's lack of 
opposition, following our coordination with that agency, to our 
granting conditional authority with respect to these additional channel 
pairs. The Commission has previously recognized that permitting 
conditional operation pending the approval of an application provides 
greater flexibility to Part 101 licensees and enables them to operate 
more efficiently.

II. Initial Paperwork Reduction Analysis

    20. This document does not contain proposed information 
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. In addition, therefore, it does not contain any new 
or modified ``information collection burden for small business concerns 
with fewer than 25 employees,'' pursuant to the Small Business 
Paperwork Relief Act of 2002.

III. Initial Regulatory Flexibility Analysis

    21. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared

[[Page 36137]]

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

A. Need for, and Objectives of, the Proposed Rules

    22. In this NPRM, we seek comment on a petition for rulemaking 
filed by the Fixed Wireless Communications Coalition (FWCC) on February 
4, 2008, and on a rule change that we propose on our own motion.
    23. The FWCC 6 GHz Petition requests that the Commission initiate a 
rulemaking to change its rules to allow channels with bandwidths of as 
much as 30 megahertz in the 6525-6875 MHz band (Upper 6 GHz Band). 
Specifically, FWCC proposes to amend Sec.  101.109(c) of the 
Commission's rules to permit coordination and licensing of 30 megahertz 
channels in the Upper 6 GHz Band, amend Sec.  101.147(a) of the 
Commission's rules to clarify that coordination of a 30 megahertz link 
in the Upper 6 GHz Band should be attempted only if the link cannot be 
accommodated in the 5925-6425 MHz band, and amend Sec.  101.147(l) of 
the Commission's rules to specify frequency pairs for 30 megahertz 
channels, while retaining the present option of using narrowband 
channels and preserving frequencies that are presently allocated for 
emergency restoration.
    24. The Lower 6 GHz Band, where 30 megahertz channels are allowed, 
is increasingly congested. As of early May, 2009, there were 15,264 
active FS licenses in the Lower 6 GHz Band. Furthermore, the Lower 6 
GHz Band also has 1,602 licensed satellite earth stations. Each earth 
station is routinely coordinated for the entire 5925-6425 MHz band, and 
for the entire geosynchronous arc, even if the earth station actually 
communicates with only one transponder on one satellite. Thus, a 
satellite earth station will place far greater limits on the ability to 
coordinate stations in adjacent areas than a terrestrial FS station, 
which is typically coordinated for a single channel, or a limited set 
of channels, with a narrow beamwidth.
    25. The congestion in the Lower 6 GHz Band has led a number of 
applicants to seek licenses to operate in the Upper 6 GHz Band pursuant 
to waivers that permit them to operate FS stations with bandwidths that 
are greater than the authorized 10 megahertz. As of May 11, 2009, the 
Commission had issued waivers authorizing 880 FS frequency paths with 
bandwidths greater than 10 megahertz in the Upper 6 GHz Band, of which 
548 were authorized with 30 megahertz bandwidths. These waivers were 
granted upon showing that there were no channels available in the Lower 
6 GHz Band, that other higher frequency bands were not suitable for the 
proposed path, and that there were no other alternatives.
    26. Allowing channels with bandwidths of as much as 30 megahertz in 
the Upper 6 GHz Band by rule could meet a variety of needs. Such action 
could serve the public interest by making more readily available an 
additional source of spectrum for high-speed microwave links, which are 
used for a variety of important commercial, public safety, and consumer 
uses, including backhaul for broadband systems. Furthermore, the high 
number of waiver requests we have received to allow licensing of 
channels greater than 10 megahertz in the Upper 6 GHz Band is evidence 
of a notable demand for wider channels in this band. On the other hand, 
the American Petroleum Institute (API) has expressed concern that 
allowing 30 megahertz licenses in the Upper 6 GHz Band could cause 
congestion, encourage speculative licensing, and make it more difficult 
for licensees to relocate out of the 2 GHz Band that has been 
reallocated for advanced technologies. The objective of the proposed 
rule is to provide the benefits of wider channels while avoiding the 
potential problems noted by API. We believe that increasing congestion 
in the Lower 6 GHz Band could justify expanding the maximum allowable 
bandwidth in the Upper 6 GHz Band to 30 megahertz. We also seek comment 
on concerns raised by the American Petroleum Institute 
Telecommunications Subcommittee that adopting these rules might lead to 
additional congestion in the upper 6 GHz band, cause speculative 
applications to be filed, and make it more difficult for applicants 
proposing narrower bandwidth links to coordinate their proposals with 
licensees in the Upper 6 GHz Band.
    27. We also propose, on our own motion, to allow conditional 
licensing on two additional channel pairs for non-federal use in the 23 
GHz band, if the National Telecommunications and Information 
Administration (NTIA) approves, for applicants proposing to limit their 
effective isotropically radiated power (E.I.R.P.) to 55 dBm.
    28. If certain conditions are met, the Commission's rules provide 
that applicants for FS licenses under part 101 may operate their 
proposed stations more quickly pursuant to conditional authority, 
although they do so at their own risk during the pendency of their 
applications. Before exercising conditional authority, the applicant 
must successfully complete frequency coordination to ensure that the 
proposed facilities will not cause interference to other authorized 
facilities. Conditional authority ceases immediately if an application 
is returned as unacceptable for filing. The Commission's rules also 
provide that ``conditional authority may be modified or cancelled by 
the Commission at any time without hearing if, in the Commission's 
discretion, the need for such action arises.''
    29. Fixed service bands carry critical services such as public 
safety communications (including police and fire vehicle dispatch), 
coordinating the movement of railroad trains, controlling natural gas 
and oil pipelines, regulating the electric grid, and backhaul for 
wireless traffic. Conditional authority allows an applicant to provide 
those types of services expeditiously before the Commission acts on its 
application. Because the 23 GHz Band is shared between federal and non-
federal use, conditional authority in that band is limited to 
frequencies for which the Commission has an agreement with NTIA to 
permit conditional authorization. NTIA has not stated any objection to 
allowing conditional licensing on the additional two channel pairs. We 
therefore propose to add the 22.025/23.225 GHz and 22.075/23.275 GHz 
channel pairs to the list of frequencies on which we allow conditional 
authority. Such action would allow all licensees to provide service 
more rapidly (subject to the normal limitations on conditional 
authority noted above) while protecting existing licensees. We seek 
comment on allowing conditional authority on a permanent basis.

B. Legal Basis

    30. The proposed action is authorized pursuant to Sections 1, 2, 
4(i), 7, 10, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332 
and 333 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 
152, 154(i),

[[Page 36138]]

157, 160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 
and 333.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    31. The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules and policies, if adopted. The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act. A ``small business concern'' is one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
SBA.
    32. Nationwide, there are a total of approximately 22.4 million 
small businesses, according to SBA data. A ``small organization'' is 
generally ``any not-for-profit enterprise which is independently owned 
and operated and is not dominant in its field.'' Nationwide, as of 
2002, there were approximately 1.6 million small organizations. The 
term ``small governmental jurisdiction'' is defined generally as 
``governments of cities, towns, townships, villages, school districts, 
or special districts, with a population of less than fifty thousand.'' 
Census Bureau data for 2002 indicate that there were 87,525 local 
governmental jurisdictions in the United States. We estimate that, of 
this total, 84,377 entities were ``small governmental jurisdictions.'' 
Thus, we estimate that most governmental jurisdictions are small. 
Wireless Telecommunications Carriers (except satellite).
    33. Microwave services include common carrier, private-operational 
fixed, and broadcast auxiliary radio services. At present, there are 
approximately 36,708 common carrier fixed licensees and 59,291 private 
operational-fixed licensees and broadcast auxiliary radio licensees in 
the microwave services. The Commission has not yet defined a small 
business with respect to microwave services. For purposes of the IRFA, 
we will use the SBA's definition applicable to Wireless 
Telecommunications Carriers (except satellite)--i.e., an entity with no 
more than 1,500 persons. The Commission's most recent data were 
acquired when ``Cellular and Other Wireless Telecommunications 
Companies'' was the applicable industry category. Census Bureau data 
for 2002 show that there were 1,397 firms in this category that 
operated for the entire year. Of this total, 1,378 firms had employment 
of 999 or fewer employees, and 19 firms had employment of 1,000 
employees or more. Thus, under this size standard, the majority of 
firms can be considered small. We note that the number of firms does 
not necessarily track the number of licensees. We estimate that all of 
the Fixed Microwave licensees (excluding broadcast auxiliary licensees) 
would qualify as small entities under the SBA definition.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    34. This NPRM proposes no new reporting or recordkeeping 
requirements.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    35. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance rather than design standards; and (4) an 
exemption from coverage of the rule, or any part thereof for small 
entities.
    36. As noted above, this NPRM proposes rules to provide applicants 
with improved access to spectrum that is presently restricted with 
respect to bandwidth or that requires completion of frequency 
coordination with NTIA before the applicant can begin operations on a 
conditional basis. As noted above, virtually all microwave licensees 
under part 101 of the Commission's rules are considered small 
businesses. Under our rules, the opportunities to apply for 30 
megahertz channels in the Upper 6 GHz Band and to take advantage of 
conditional authority 22.025/23.225 GHz and 22.075/23.275 GHz channel 
pairs would be equally available to all applicants, including small 
businesses. Thus, this proposed action would provide additional options 
to all licensees, including small entity licensees. In this NPRM, we 
seek comment on these proposed actions. Such action could serve the 
public interest by facilitating the efficient use of the 6 GHz and 23 
GHz bands. The proposed rules could therefore open up economic 
opportunities to a variety of spectrum users, including small 
businesses.
    37. The alternative approach would be to maintain the existing 
rules. If the rules were not changed to provide for 30 megahertz 
channels in the Upper 6 GHz Band, applicants who wished to obtain such 
channels would have to take additional time and money to prepare a 
request for waiver of the Commission's rules. Such additional time and 
expense may be particularly disadvantageous to small businesses. 
Furthermore, because a waiver request would be required, applicants 
cannot commence operation until the Commission grants their waiver 
request and application. The resulting delay can make it more difficult 
for applicants to meet their communications needs or the needs of their 
customers. With respect to the 23 GHz Band, the alternative approach 
would be to deny conditional authority on the two additional channel 
pairs and require applicants to wait until the Commission grants their 
application before they can commence service. Again, the resulting 
delay can make it more difficult for applicants to meet their 
communications needs or the needs of their customers.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    None.
Ordering Clauses
    38. Pursuant to sections 1, 2, 4(i), 7, 10, 201, 214, 301, 302, 
303, 307, 308, 309, 310, 319, 324, 332 and 333 of the Communications 
Act of 1934, 47 U.S.C. 151, 152, 154(i), 157, 160, 201, 214, 301, 302, 
303, 307, 308, 309, 310, 319, 324, 332, 333, that this NPRM is hereby 
ADOPTED.
    39. Notice is given of the proposed regulatory changes described in 
this NPRM, and that comment is sought on these proposals.
    40. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this NPRM, including 
the Initial Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 101

    Communications equipment, Radio, Reporting and recordkeeping 
requirements.


[[Page 36139]]


Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 101 to read as 
follows:

PART 101--FIXED MICROWAVE SERVICES

    1. The authority citation for part 101 continues to read as 
follows:

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

    2. Amend Sec.  101.31 by revising paragraph (b)(1)(vii) to read as 
follows:


Sec.  101.31  Temporary and conditional authorizations.

* * * * *
    (b) * * *
    (1) * * *
    (vii) With respect to the 21.8-22.0 GHz and 23.0-23.2 GHz band, the 
filed application(s) does not propose to operate on a frequency pair 
centered on other than 21.825/23.025 GHz, 21.875/23.075 GHz, 21.925/
23.125 GHz, 21.975/23.175 GHz, 22.025/23.225 GHz or 22.075/23.275 GHz 
and does not propose to operate with an E.I.R.P. greater than 55 dBm. 
The center frequencies are shifted from the center frequencies listed 
above for certain bandwidths as follows: Add 0.005 GHz for 20 MHz 
bandwidth channels, add 0.010 GHz for 30 megahertz bandwidth channels, 
and subtract 0.005 GHz for 40 MHz bandwidth channels. See specific 
channel listings in Sec.  101.147(s).
* * * * *
    3. Amend Sec.  101.109(c) table by revising the entry for the 6,525 
to 6,875 Frequency band (MHz) to read as follows:


Sec.  101.109  Bandwidth.

* * * * *
    (c) * * *

------------------------------------------------------------------------
           Frequency band (MHz)             Maximun authorized bandwidth
------------------------------------------------------------------------
 
                                * * * * *
6,525 to 6,875...........................  30 MHz \1\
 
                                * * * * *
------------------------------------------------------------------------

    4. Amend Sec.  101.147 by revising entry 6,525-6,875 MHz (14) to 
entry 6,525-6,875 MHz (14)(33) in paragraph (a), by adding note (33) to 
paragraph (a) and by adding a new paragraph (l)(8) to read as follows:


Sec.  101.147  Frequency assignments.

    (a) * * *
* * * * *
    6,525-6,875 MHz (14)(33)
* * * * *
    (33) The coordination of a new 30 MHz link in the 6,525-6,825 MHz 
band should be attempted only if it cannot be accommodated in the 
5,925-6,425 MHz band.
* * * * *
    (l) * * *
    (8) 30 MHz bandwidth channels:

------------------------------------------------------------------------
                                                               Receive
                  Transmit (receive) (MHz)                    (transmit)
                                                                (MHz)
------------------------------------------------------------------------
6555.......................................................         6725
6595.......................................................         6755
6525.......................................................         6785
6655.......................................................         6815
6685.......................................................         6845
------------------------------------------------------------------------

* * * * *
[FR Doc. E9-17412 Filed 7-21-09; 8:45 am]
BILLING CODE 6712-01-P


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