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###### Federal Communications Commission

          - 47 CFR Part 2 
          - [FCC 01-30] 

# AGENCY:

Federal Communications Commission. 

# ACTION:

Final rule. 

# SUMMARY:

The document amends the Table of Frequency Allocations, by adding a new footnote, US360, to permit use of the band 33-36 GHz by the Federal Government fixed-satellite service (FSS), space-to-Earth. An existing footnote, G117, also was revised to denote that the Federal Government's use of this band is limited to military systems. This action was taken in response to a request filed by the Administrator, National Telecommunications and Information Administration (“NTIA”) for the purpose of advancing, supporting, and accommodating the national defense. 

# DATES:

Effective February 22, 2001. 

# FOR FURTHER INFORMATION CONTACT:

Kathryn Hosford, Office of Engineering and Technology, (202) 418-0652. 

# SUPPLEMENTARY INFORMATION:

                    This is a summary of the Commission's                     *Memorandum Opinion and Order,*                     FCC 01-30, adopted January 19, 2001, and released January 26, 2001. The full text of this Commission decision is available on the Commission's Internet site at                     *http://www.fcc.gov.*                     It is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC, and also may be purchased from the Commission's duplication contractor, International Transcription Service, (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.                 

## Summary of the Memorandum Opinion and Order 

1. On January 12, 2001, the Administrator, NTIA, requested that the Commission add a United States footnote to the United States Table of Frequency Allocations, 47 CFR 2.106, that would allocate the band 33-36 GHz on a primary basis to the Federal Government fixed-satellite service (space-to-Earth). NTIA stated that this matter involves military functions, as well as specific national security interests of the United States, that the reallocation is essential to fulfill requirements for Federal Government space systems to perform satisfactorily, and that these Department of Defense (“DoD”) requirements cannot be accommodated in frequency bands currently allocated for Federal Government fixed-satellite service (space-to-Earth). NTIA indicated that the Federal Government footnote G117 will be modified to limit Federal Government fixed-satellite use of this band to military systems. NTIA also requested expedited consideration, and that the rules be amended without public notice or comment due to the near-term national security interests. 

2. Nationally, the band 33-33.4 GHz is shared Federal Government and non-Federal Government spectrum that is allocated to the radionavigation service on a primary basis. In the sub-band 31.8-33.4 GHz, ground based radionavigation aids are permitted only where they are used in cooperation with airborne or shipborne radionavigation devices. Non-Federal Government airborne radionavigation devices are licensed under Part 87 of the Commission's Rules. This allocation, however, is currently unused by non-Federal Government licensees. 

                    3. The band 33.4-36 GHz is allocated to the radiolocation service on a primary basis for the Federal Government and on a secondary basis for non-Federal Government use. However, all non-military radiolocation devices operating in this band are secondary to the military services, except for the sub-band 34.4-34.5 GHz, where weather radars on board meteorological satellites for cloud detection are authorized to operate on an equal basis with military radiolocation devices. In the sub-band 34.2-34.7 GHz, an additional allocation is made for space research service (deep space, Earth-to-space) at Goldstone, California. In the band 33.4-36 GHz, non-Federal Government radiolocation is permitted under part 90 of the Commission's Rules. There is currently only limited non-Federal Government use of the band 33.4-36 GHz. The                           ( print page 11114)                        majority of these uses are limited to speed control and testing and development purposes.                 

4. Based on the representations of NTIA that the reallocation is essential to fulfill requirements for Federal Government space systems to perform satisfactorily and that these DoD requirements cannot be accommodated in frequency bands currently allocated for Federal Government fixed-satellite service (space-to-Earth) use, the Commission found that the public interest would best served by accommodating NTIA's request and adding United States footnote US360 to, and amending Federal Government footnote G117 of, the Table of Frequency Allocations. Upon review of the Commission's records, there appeared to be little, if any, impact on non-Federal Government services. 

                    5. Further, the Commission took this action without notice and comment procedures. Section 553 of the Administrative Procedure Act (APA) states that rulemaking proceedings are required “except to the extent that there is involved” (1) a military or foreign affairs function of the United States.” 5 U.S.C. 553(a)(1). The Commission's Rules, moreover, state that rule changes including any military, naval, or foreign affairs functions of the United States “will ordinarily be adopted without prior notice.” 47 CFR 1.412(b)(1). The APA also includes a good cause exception to rulemaking requirements when such procedures are “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(3)(B). The Commission noted that, as a general matter, public notice requirements are an essential component of its legal authority. In this instance, however, the Commission found it appropriate to take this action without public notice because this matter involved the exercise of military functions of the United States based on specific national security needs and that good cause exists that notice and public procedures are unnecessary and contrary to the public interest.                     *See*5 U.S.C. 553 (a)(1), (b)(3)(B); 47 CFR 1.412(b)(1), (c);                     *Bendix Aviation Corp.*                     v.                     *F.C.C.*, 272 F.2d 533 (D.C. Cir. 1959),                     *cert. denied sub nom. Aeronautical Radio, Inc.*                     v.                     *U.S.*, 361 U.S. 965 (1960). Additionally, due to the near term national security requirements noted by NTIA, the Commission found good cause to expedite this request and make the amendments effective immediately upon publication in the                     **Federal Register**                    . 5 U.S.C. 553(d)(3).                 

# List of Subjects in 47 CFR Part 2

      - Radio
      - Telecommunications

Federal Communications Commission. 

Magalie Roman Salas, 

Secretary.

## Rule Changes 

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 2 as follows: 

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

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

Authority:47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted. 

2. Section 2.106, the Table of Frequency Allocations, is amended as follows: 

a. Revise pages 75 and 76. 

b. Revise United States footnote US252 and add footnote US360. 

c. Revise Federal Government footnote G117. 

The addition and revisions read as follows: 

§ 2.106 

* * * * *
      ( print page 11115)          ( print page 11116)          ( print page 11117)    
* * * * *

## United States (US) Footnotes

* * * * *

US252 The bands 2110-2120 MHz, 7145-7190 MHz, and 34.2-34.7 GHz are also allocated for Earth-to-space transmissions in the space research service, limited to deep space communications at Goldstone, California. 

* * * * *

US360 In the band 33-36 GHz, the Government fixed-satellite service (space-to-Earth) is also allocated on a primary basis. Coordination between Government fixed-satellite service systems and non-Government systems operating in accordance with the United States Table of Frequency Allocations is required. 

* * * * *

## Federal Government (G) Footnotes 

* * * * *

G117 In the bands 7.25-7.75 GHz, 7.9-8.4 GHz, 17.8-21.2 GHz, 30-31 GHz, 33-36 GHz, 39.5-40.5 GHz, 43.5-45.5 GHz, and 50.4-51.4 GHz, the Government fixed-satellite and mobile-satellite services are limited to military systems. 

* * * * *

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[FR Doc. 01-4215 Filed 4-21-01; 8:45 am] 

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