[Federal Register: October 27, 2004 (Volume 69, Number 207)]
[Rules and Regulations]
[Page 62615-62622]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27oc04-17]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 15, 74, 78, and 101
[ET Docket Nos. 00-258, 95-18; FCC 04-219]
Advanced Wireless Services
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission found that the bands 1915-
1920 MHz paired with 1995-2000 MHz and 2020-2025 MHz paired with 2175-
2180 MHz were well suited to provide additional spectrum for AWS use
and designated these paired bands for such use. The Commission also
modified the rules pertaining to unlicensed PCS service in the 1920-
1930 MHz band in order to provide additional flexibility to users of
the band to offer both voice and data services using a variety of
technologies. The Third Memorandum Opinion and Order denies petitions
for rulemaking related to the reallocation to AWS in previous
rulemakings and the Fifth Memorandum Opinion and Order clarifies rules
governing relocation of FS licensees.
DATES: Effective November 26, 2004.
FOR FURTHER INFORMATION CONTACT: Shameeka Hunt or Priya Shrinivasan,
Office of Engineering and Technology, (202) 418-2472.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Sixth
Report and Order, Third Memorandum Opinion and Order, and Fifth
Memorandum Opinion and Order, ET Docket Nos. 00-258 and 95-18, FCC 04-
219, adopted September 9, 2004, and released September 22, 2004. 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 20554. The
complete text of this document also may be purchased from the
Commission's copy contractor, Best Copy and Printing, Inc., Room CY-
B402, 445 12th Street, SW., Washington, DC 20554. Alternate formats are
available to persons with disabilities by contacting Brian Millin at
(202) 418-7426 or TTY (202) 418-7365.
Summary of the Report and Order
1. In the Sixth Report and Order (Sixth R&O and Third MO&O) in ET
Docket No. 00-258, the Commission continues its ongoing efforts to
promote spectrum utilization and efficiency by evaluating spectrum that
may be suitable for the provision of new services, including Advanced
Wireless Services (AWS). In the Sixth R&O, we find that the bands 1915-
1920 MHz paired with 1995-2000 MHz and 2020-2025 MHz paired with 2175-
2180 MHz--which were all previously reallocated for Fixed and Mobile
services--are well suited to provide additional spectrum for AWS use
and we designate these paired bands for such use. This action will
provide an additional twenty megahertz of spectrum for the introduction
of new services and technology. We also modified the rules pertaining
to unlicensed PCS services in the 1920-1930 MHz band in order to
provide additional flexibility to users of the band to offer both voice
and data services using a variety of technologies.
2. The Sixth R&O identifies two five + five megahertz spectrum
blocks that are especially well suited for AWS use, and find that such
a designation will maximize the potential use of the spectrum and
promote the deployment of high value service offerings. Specifically,
we redesignate the 1915-1920 MHz and 1995-2000 MHz, as well as the
2020-2025 MHz and 2175-2180 MHz spectrum blocks as paired bands
suitable for the introduction of new technologies.
A. 1915-1920 MHz and 1995-2000 MHz Bands
3. The Commission concludes that AWS operations in the 1915-1920
MHz band are technically feasible with a ten megahertz frequency
separation between Broadband PCS mobile and base operations. We
recognize, that additional technical constraints may need to be placed
on AWS to avoid impairing incumbent PCS operations. Although we
conclude here that this band will be designated for AWS, one goal of
the AWS 2 GHZ Service Rules NPRM is to adopt technical rules that will
protect existing PCS operations from interference.
4. The Commission also concluded that AWS operations can be
deployed in the 1995-2000 MHz band. Several parties contend that
technical constraints will need to be placed on new AWS operations in
the 1995-2000 MHz band in order to avoid interference to adjacent MSS
operations in the 2020-2025 MHz band. However, we note that prior to
the reallocation of MSS spectrum in the 1990-2000 MHz band to fixed and
mobile services, existing Broadband PCS was immediately adjacent to the
MSS. Thus, by redesignating the 1995-2000 MHz band
[[Page 62616]]
for AWS, fixed and mobile services will remain adjacent to MSS. Because
we previously determined that PCS can exist adjacent to MSS, we
likewise find that the 1995-2000 MHz band is suitable for an AWS
designation. As with the 1915-1920 MHz band, we will consider specific
technical requirements that are necessary for new AWS entrants as part
of the AWS 2 GHZ Service Rules NPRM.
Redesignation
5. Based on the Commission's determination that additional spectrum
is needed for AWS use, and because of the characteristics of the 1915-
1920 MHz band that make it well suited for such use, we conclude that
such a designation will promote efficient use of the spectrum, allow
for the rapid introduction of high-value services, and is otherwise
preferable to the other option that has been put forth--introduction of
isochronous UPCS rules into the band. Based on the discussions, the
Commission found that it is technically feasible to introduce AWS in
the band without impairing incumbent PCS with a separation distance
between the Broadband PCS mobile and base transmit bands of ten
megahertz, and we intend to develop technical rules to ensure that AWS
in this band will not interfere with existing PCS operations. Further,
the Commission concludes that, given the opportunity, licensees and
manufacturers will develop equipment and business plans that put this
spectrum to use that will benefit the public. For these reasons, and
given the lack of unlicensed use of the 1915-1920 MHz band under the
existing rules, the Commission finds that the public interest is best
served by redesignating five megahertz of spectrum in the 1915-1920 MHz
band for AWS on a primary basis to support the types of high powered
mobile applications associated with AWS and Broadband PCS expansion and
pairing it with the five megahertz of spectrum at 1995-2000 MHz that we
previously designated for AWS. Accordingly, we modify the Table of
Allocations to reflect the applicable rule parts for these services,
and update Part 15 rules to remove the 1915-1920 MHz band from
asynchronous UPCS use. Because their pleadings are inconsistent with
the AWS designation for the 1915-1920 MHz band we adopted, we deny the
waiver petitions from Lucent, Ascom, Alaska Power, RBM, and UTStarcom &
Drew University. We likewise deny the petitions for rulemaking from
WINForum and UTStarcom.
B. 2020-2025 MHz and 2175-2180 MHz Bands
6. The Commission recognizes that many of the comments have been
outdated by more recent developments in this proceeding. For example,
some of the bands identified by commenters are no longer available to
be paired. We also reject those comments that would have us make the
2020-2025 MHz band available for Federal Government operations because
we have already proposed relocation procedures that would not require
Federal Government relocation into the band. Moreover, such a
designation would limit use of this spectrum by the public and would
require us to re-evaluate our BAS relocation procedures to accommodate
the entry of Federal Government users in the band. We also disagree
with those commenters that support relocating displaced UPCS to the
2020-2025 MHz band, given our previous analysis of asynchronous UPCS
operations, the conclusion that there are no current operations to be
displaced, and our findings that additional AWS spectrum will promote
new technologies and services, make efficient use of the spectrum, and
use the spectrum to its highest potential.
7. As part of our decision to redesignate the 2020-2025 MHz and
2155-2180 MHz bands in the AWS Third R&O, we also proposed options for
pairing the 2020-2025 MHz band with spectrum in the 2155-2180 MHz band
for new Fixed and Mobile services, including AWS. Because these bands
have been redesignated for AWS, we find the 2020-2025 MHz band suitable
for pairing with the 2175-2180 MHz band. We also note that AWS entrants
may also benefit from the introduction of terrestrial services in the
adjacent MSS band under MSS/ATC authority. Pairing 2020-2025 MHz with
2175-2180 MHz could benefit from the design of equipment in the
adjacent MSS spectrum--in particular, equipment deployed to provide
MSS/ATC service--which in turn could allow for potential economies of
scale and generally promote the more rapid deployment of new service
offerings.
C. Relocation and Reimbursement
Relocation and Reimbursement in the 1915-1920 MHz Band
8. In conjunction with our redesignation of the 1915-1920 MHz band
for AWS, the Commission finds that UTAM must be fully and fairly
reimbursed for relocating incumbent microwave users in this band. We
agree with commenters that UTAM should be made whole for the
investments it has made in clearing the UPCS bands. Accordingly, UTAM
is entitled to reimbursement of twenty-five percent--on a pro-rata
basis--of the total costs it has incurred, including its future payment
obligations for links it has relocated, as of the date that a new
entrant gains access to the 1915-1920 MHz spectrum band. A new AWS
licensee in the 1915-1920 MHz band must pay this amount before it
begins operations in the band, and under any specific terms or
conditions that we adopt in the AWS 2 GHz Service Rules NPRM.
9. The Commission's decision to require new entrants in the 1915-
1920 MHz band to reimburse UTAM a pro rata share of costs, in addition
to being consistent with the comments supporting a reimbursement
mechanism for UTAM, offers a fair and easy procedure to implement.
Because UTAM has already cleared most of the incumbent microwave links
deployed across the entire 1910-1930 MHz band, this reimbursement plan
represents the most reasonable and easiest approach to address the
relocation costs that UTAM has already incurred. We believe that such a
course is superior to the difficult and complex prospect of making
retroactive calculations for apportionment and represents an equitable
and administratively efficient means of compensating UTAM.
Relocation and Reimbursement in the 1995-2000 MHz and 2020-2025 MHz
Bands
10. We first conclude that AWS licensees that do not begin
operations in the 1990-2025 MHz band until after this spectrum has been
cleared will not have to participate in the relocation process of
incumbent BAS licensees. These AWS licensees will receive unencumbered
spectrum, the value of which will be reflected in the auction price.
Further, these late-entering AWS licensees will not have any
reimbursement obligation to Nextel, if Nextel has received credit for
BAS relocation costs in the 800 MHz true-up. These AWS licensees may,
under certain circumstances, have reimbursement obligations to MSS
entrants, otherwise, these AWS licensees would not have a reimbursement
obligation to MSS entrants.
11. The Commission will require an AWS licensee that enters the
band prior to the milestones established for Nextel and MSS licensees
to participate in the BAS relocation process. AWS licensees shall
generally follow a relocation plan modeled on the policies set forth in
our earlier Emerging Technologies
[[Page 62617]]
proceeding and, in particular, follow the requirement that new entrants
provide comparable facilities to incumbents that are relocated.
Accordingly, AWS licensees must provide comparable facilities to BAS
incumbents that are relocated. Further, AWS licensees, Nextel and MSS
licensees, each of which individually is authorized to operate on a
fraction of the band, will mutually benefit from the clearance of all
BAS licensees in the band. An AWS licensee will be responsible, similar
to other new entrants, to relocate all BAS operations from 1990-2025
MHz, even if it ultimately does not build its own facilities in some
geographic areas. As we determined in the MSS Third R&O and affirmed in
the 800 MHz R&O, a one-phase relocation plan avoids the possibility of
BAS operations on three different band plans, and eliminates the
potential disruption and down time to BAS associated with being
relocated under two different phases in a short period of time. We also
note that our decision to accommodate AWS entrants into the band does
not alter our need to minimize the disruption to incumbent BAS
operations during the transition. Therefore, we believe that, in the
event BAS relocation has not been completed, including AWS licensees as
participants in the relocation of all BAS operations from the 1990-2025
MHz band strikes an appropriate balance that is not unduly burdensome
on AWS entrants, while also fair to the BAS incumbents and the other
entrants in the band.
12. All entrants must clear the entire 1990-2025 MHz band (a total
of thirty-five megahertz of spectrum) while only operating in 1990-1995
MHz (a total of five megahertz of spectrum for Nextel), in 2000-2020
MHz (a total of twenty megahertz of spectrum for MSS), and in 1995-2000
MHz and 2020-2025 MHz (a total of ten megahertz of spectrum for AWS).
Therefore, the pro rata share for AWS licensees, collectively,
represents the costs to relocate two-sevenths of the spectrum (one-
seventh for each five megahertz block).
Relocation in the 2175-2180 MHz Band
13. Given the Commission's decision in the AWS Second R&O to apply
the modified procedures to AWS licensee relocation of FS in the 2110-
2150 MHz band, we conclude that it is appropriate to apply the same
procedures to the relocation of FS by AWS licensees in the 2175-2180
MHz band. Specifically, Sec. Sec. 101.69 through 101.82 of the rules
set forth the provisions governing the transition from FS to ET
services, including both the more generic ET relocation procedures for
PCS and AWS and the MSS modifications. For example, these rules set
forth, among other matters, provisions regarding voluntary and
mandatory periods, sunset provisions, involuntary relocation
procedures, and the allocation of reimbursement expenses by
subsequently entering ET licensees. By making the modified MSS
provisions applicable in the 2175-2180 MHz band, new AWS entrants will
be governed by the same relocation rules that apply to AWS entrants in
the other bands subject to part 101 relocation. In short, we believe
that relocation procedures for AWS in the 2175-2180 MHz band that are
consistent with the relocation procedures discussed in this and related
proceedings will foster a more efficient roll-out of AWS, will minimize
confusion among the parties, and will thereby serve the public
interest.
D. Additional Flexibility in the 1920-1930 MHz Band
14. We are modifying the rules for UPCS in the 1920-1930 MHz band
to provide additional flexibility for the use of other types of voice
based systems. Specifically, we will remove the requirement to use
specified channels, allow devices to transmit with a maximum bandwidth
of 2.5 megahertz, and we will delete the packing rule. In addition, we
will allow asynchronous operation in this band. We believe that these
changes will promote the introduction of spectrally efficient equipment
that will be widely supported by the public.
Summary of the Third Memorandum Opinion and Order
15. In the Third Memorandum Opinion and Order in ET Docket No. 00-
258, the Commission denies a petition for reconsideration jointly filed
by XM and Sirius that claims that the Commission failed to consider
their comments regarding use of the 2360-2395 MHz band as replacement
spectrum for users relocated from the 1710-1755 MHz and 2110-2155 MHz
bands, and the effect that such use would have on adjacent satellite
systems.
16. Also, the Commission denies petitions for reconsideration filed
by Sprint and WCA that sought comparable replacement spectrum and full
compensation for relocation costs for displaced Multipoint Distribution
Service (MDS) licensees in the 2150-2162 MHz band.
17. Additionally, the Commission dismisses a petition for
reconsideration filed by PCIA that sought modification of Sec. 101.99
of the rules to establish a clearinghouse to oversee cost-sharing
procedures associated with incumbent relocation in the 2110-2150 MHz
band.
18. Finally, the Commission denies petitions for reconsideration
filed by Celsat, CTIA, ICO, SIA, and TMI and TerreStar that oppose the
decision to reallocate portions of the 2 GHz MSS spectrum.
Summary of the Fifth Memorandum Opinion and Order
19. In the Fifth Memorandum Opinion and Order in ET Docket No. 95-
18, the Commission grants in part, by clarifying certain rules, and
otherwise denies a petition for clarification and reconsideration
jointly filed by the American Petroleum Institute and the United
Telecom Council concerning the negotiation and relocation procedures
for incumbent Fixed service licensees in the 2110-2150 MHz and 2180-
2200 MHz bands.
Final Regulatory Flexibility Analysis
20. As required by the Regulatory Flexibility Act (RFA) \1\ an
Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the
Third Notice of Proposed Rulemaking (Third NPRM).\2\ The Commission
sought written public comments on the proposals in the Third NPRM,
including comment on the IRFA. This present Final Regulatory
Flexibility Analysis (FRFA) conforms to the RFA.\3\
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\1\ See 5 U.S.C. 603. The RFA (codified at 5 U.S.C. 601-612) has
been amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (SBREFA), Public Law 104-121, title II, 110 Stat. 857
(1996).
\2\ Amendment of Part 2 of the Commission's Rules to Allocate
Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
Introduction of New Advanced Wireless Services, including Third
Generation Wireless Systems, ET Docket No. 00-258, IB Docket No. 99-
81, Third Report and Order, Third Notice of Proposed Rulemaking and
Second Memorandum Opinion and Order, 18 FCC Rcd 2223 (2003).
\3\ See 5 U.S.C. 604.
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Need for, and Objectives of, the Sixth Report and Order
21. The Sixth Report and Order (Sixth R&O) continues our efforts to
allocate spectrum that can be used for the provision of advanced
wireless services (AWS) to the public, which in turn supports our
obligations under section 706 of the 1996 Telecommunications Act \4\
and, more generally, serves the public interest by promoting rapid and
efficient radio communications facilities.
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\4\ Section 706 of the Communications Act of 1934, as amended,
codified at 47 U.S.C. 157.
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22. The Sixth R&O discusses the need for spectrum allocations to
allow for the provision of AWS. Specifically, it:
Refutes argument that Broadband PCS mobile and base
transmit bands
[[Page 62618]]
must have separation of fifteen megahertz, and found that a ten
megahertz separation is suitable without causing interference between
services in these bands.
Redesignated the 1915-1920 MHz and 2020-2025 MHz bands for
AWS use.
Redesignated the 2020-2025 MHz and 2175-2180 MHz bands for
AWS use.
Paired the 1915-1920 and 1995-2000 MHz bands and 2020-2025
and 2175-2180 MHz bands for the provision of AWS use.
Adopts the UTAM reimbursement plan for the 1915-1920
MHz band, allowing relocation efforts of microwave links to
continue in the 1910-1930 MHz band without disruption, while
making the band available for other spectrum efficient services.
Denies all petitions for rulemaking and petitions for
waivers filed in this proceeding regarding the 1910-1920 MHz
band.
Provided additional flexibility for UPCS operations in the
1920-1930 MHz band.
Summary of Significant Issues Raised by Public Comments in Response to
the IRFA
23. There were no comments filed that specifically addressed the
rules and policies proposed in the IRFA.
Description and Estimate of the Number of Small Entities to Which the
Rules Will Apply
24. 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 rules adopted herein.\5\ The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business '' ``small organization,'' and ``small governmental
jurisdiction.'' \6\ In addition, the term ``small business'' has the
same meaning as the term ``small business concern'' under the Small
Business Act.\7\ Nationwide, there are a total of 22.4 million small
businesses, according to SBA data.\8\ 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 Small Business Administration (SBA).\9\ A small
organization is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
\10\ Nationwide, there are approximately 1.6 million small
organizations.\11\ The term ``small governmental jurisdiction'' is
defined as ``governments of cities, towns, townships, villages, school
districts, or special districts, with a population of less than fifty
thousand.'' \12\ As of 1997, there were approximately 87,453
governmental jurisdictions in the United States.\13\ This number
includes 39,044 county governments, municipalities, and townships, of
which 37,546 (approximately 96.2%) have populations of fewer than
50,000, and of which 1,498 have populations of 50,000 or more. Thus, we
estimate the number of small governmental jurisdictions overall to be
84,098 or fewer.
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\5\ 5 U.S.C. 604(a)(3).
\6\ 5 U.S.C. 601(6).
\7\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small business concern'' in the Small Business act, 15 U.S.C.
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a
small business applies ``unless an agency, after consultation with
the Office of Advocacy of the Small Business Administration and
after opportunity for public comment, establishes one or more
definitions of such term which are appropriate to the activities of
the agency and publishes such definition(s) in the Federal
Register.''
\8\ See SBA, Programs and Services, SBA Pamphlet No. CO-0028, at
page 40 (July 2002).
\9\ 15 U.S.C. 632.
\10\ 5 U.S.C. 601(4).
\11\ Independent Sector, The New Nonprofit Almanac & Desk
Reference (2002).
\12\ 5 U.S.C. 601(5).
\13\ U.S. Census Bureau, Statistical Abstract of the United
States: 2000, Section 9, pages 299-300, Tables 490 and 492.
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25. Broadcast Auxiliary Service (BAS). BAS involves a variety of
transmitters, generally used to relay broadcast programming to the
public (through translator and booster stations) or within the program
distribution chain (from a remote news gathering unit back to the
stations). The Commission has not developed a definition of small
entities specific to broadcast auxiliary licensees. The U.S. Small
Business Administration (SBA) has developed small business size
standards, as follows: (1) For TV BAS, we will use the size standard
for Television Broadcasting, which consists of all such companies
having annual receipts of no more than $12.0 million; \14\ (2) For
Aural BAS, we will use the size standard for Radio Stations, which
consists of all such companies having annual receipts of no more than
$6 million; \15\ (3) For Remote Pickup BAS we will use the small
business size standard for Television Broadcasting when used by a TV
station and that for Radio Stations when used by such a station.
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\14\ 13 CFR 121.201, NAICS code 515120.
\15\ Id. NAICS code 515112.
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26. According to Commission staff review of BIA Publications, Inc.
Master Access Television Analyzer Database as of May 16, 2003, about
814 of the 1,220 commercial television stations in the United States
had revenues of $12 million or less. We note, however, that, in
assessing whether a business concern qualifies as small under the above
definition, business (control) affiliations \16\ must be included.\17\
Our estimate, therefore, likely overstates the number of small entities
that might be affected by our action, because the revenue figure on
which it is based does not include or aggregate revenues from
affiliated companies. There are also 2,127 low power television
stations (LPTV).\18\ Given the nature of this service, we will presume
that all LPTV licensees qualify as small entities under the SBA size
standard. According to Commission staff review of BIA Publications,
Inc., Master Access Radio Analyzer Database, as of May 16, 2003, about
10,427 of the 10,945 commercial radio stations in the United States had
revenue of $6 million or less. We note, however, that many radio
stations are affiliated with much larger corporations with much higher
revenue, and, that in assessing whether a business concern qualifies as
small under the above definition, such business (control) affiliations
\19\ are included.\20\ Our estimate, therefore, likely overstates the
number of small businesses that might be affected by our action.
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\16\ ``Concerns are affiliates of each other when one concern
controls or has the power to control the other or a third party or
parties controls or has to power to control both.'' 13 CFR
121.103(a)(1).
\17\ ``SBA counts the receipts or employees of the concern whose
size is at issue and those of all its domestic concern's size.'' 13
CFR 121.103(a)(4).
\18\ FCC News Release, ``Broadcast Station Totals as of
September 30, 2002'' (Nov. 6, 2002).
\19\ ``Concerns are affiliates of each other when one concern
controls or has the power to control the other, or a third party or
parties controls or has the power to control both.'' 13 CFR
121.103(a)(1).
\20\ ``SBA counts the receipts or employees of the concern whose
size is at issue and those of all its domestic and foreign
affiliates, regardless of whether the affiliates are organized for
profit, in determining the concern's size.'' 13 CFR 121.103(a)(4).
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27. Cable Antenna Relay Service (CARS). CARS includes transmitters
generally used to relay cable programming within cable television
system distribution systems. The SBA has developed a small business
size standard for Cable and other Program Distribution, which consists
of all such companies having annual receipts of no more than $12.5
million. According to Census Bureau data for 1997, there were 1,311
firms within the industry category Cable and Other Program
Distribution, total, that operated for the entire year.\21\ Of this
total, 1,180 firms had annual receipts of under $10 million, and an
[[Page 62619]]
additional fifty-two firms had receipts of $10 million to
$24,999,999.00.\22\ Thus, under this standard, the majority of firms
can be considered small.
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\21\ 13 CFR 121.201, NAICS code 517510 (changed from 513220 in
October 2002).
\22\ Id.
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28. Fixed Microwave Services. Microwave services include common
carrier,\23\ private-operational fixed,\24\ and broadcast auxiliary
radio services.\25\ 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 FRFA, we will use the SBA's
definition applicable to wireless and other telecommunications
companies--i.e., an entity with no more than 1,500 persons.\26\
According to Census Bureau data for 1997, there were 977 firms in this
category, total, that operated for the entire year.\27\ Of this total,
965 firms had employment of 999 or fewer employees, and an additional
twelve firms had employment of 1,000 employees or more.\28\ Thus, under
this size standard, majority of firms can be considered small.
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\23\ 47 CFR part 101 et seq. (formerly, part 21 of the
Commission's Rules).
\24\ Persons eligible under parts 80 and 90 of the Commission's
rules can use Private-Operational Fixed Microwave services. See 47
CFR parts 80 and 90. Stations in this service are called
operational-fixed to distinguish them from common carrier and public
fixed stations. Only the licensee may use the operational-fixed
station, and only for communications related to the licensee's
commercial, industrial, or safety operations.
\25\ Auxiliary Microwave Service is governed by part 74 of title
47 of the Commission's rules. See 47 CFR part 74 et seq. Available
to licensees of broadcast stations and to broadcast and cable
network entities, broadcast auxiliary microwave stations are used
for relaying broadcast television signals from the studio to the
transmitter, or between two points such as a main studio and an
auxiliary studio. The service also includes mobile TV pickups, which
relay signals from a remote location back to the studio.
\26\ 13 CFR 121.201, NAICS code 517212 (formerly 213322).
\27\ U.S. Census Bureau, 1997 Economic Census, Subject Series:
Information, ``Employment Size of Firms Subject to Federal Income
Tax: 1997,'' Table 5, NAICS code 217212 (issues Oct. 2000).
\28\ Id. The census data do not provide a more precise estimate
of the number of firms that have employment of 1,500 or fewer
employees; the largest category provided is ``Firms with 1,000
employees or more.''
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29. 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. Of these licenses,
approximately fourteen are issued for frequencies in the Emerging
Technology bands affected by this proceeding. This, assuming that these
entities also qualify as small businesses, as many as fourteen small
business licensees could be affected by the rules we adopt. We note
that these entities have been subject to relocation by UTAM under rules
originally adopted in the Commission's Emerging Technologies
proceeding. UTAM is the Commission's frequency coordinator for UPCS
devices in the 1910-1930 MHz band. The Sixth R&O anticipates
that these general relocation rules will continue to apply to FS
microwave licensees and does not propose to modify the class of
licensees that are subject to these relocation provisions.
30. Mobile Satellite Service. Neither the Commission nor the U.S.
Small Business Administration has developed a small business size
standard specifically for mobile satellite service licensees. The
appropriate size standard is therefore the SBA standard for Satellite
Telecommunications, which provides that such entities are small if they
have $12.5 million or less in annual revenues.\29\ Currently, nearly a
dozen entities are authorized to provide voice MSS in the United
States. We have ascertained from published data that four of those
companies are not small entities according to the SBA's definition,\30\
but we do not have sufficient information to determine which, if any,
of the others are small entities. We anticipate issuing several
licenses for 2 GHz mobile earth stations that would be
subject to the requirements we are adopting here. We do not know how
many of those licenses will be held by small entities, however, as we
do not yet know exactly how many 2 GHz mobile-earth-station
licenses will be issued or who will receive them.\31\ The Commission
notes that small businesses are not likely to have the financial
ability to become MSS system operators because of high implementation
costs, including construction of satellite space stations and rocket
launch, associated with satellite systems and services.
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\29\ 13 CFR 121.201, North American Industry Classification
System (``NAICS'') code 51740, formerly NAICS code 513340.
\30\ Comsat Corporation, Globalstar USA, Honeywell
International, Inc., and Mobile Satellite Ventures Subsidiary LLC
(``MSVS'') each holds one of the current licenses for 1.6
GHz mobile satellite stations. Comsat Corporation
reported annual revenue of $618 million in its most recent annual
report to the U.S. Securities and Exchange Commission (``SEC'').
Globalstar USA (formerly AirTouch Satellite Services) is a
indirectly majority-owned by Thermo Satellite LP, a Colorado limited
partnership. (See International Authorizations Granted, Public
Notice, 19 FCC Rcd 4079 (2004)). In another annual report filed with
the SEC, Honeywell International Inc. reported receiving sales
revenue of $23.7 billion in 2001. MSVS is wholly owned by a limited
partnership that is 48.1% owned by Motient Corporation and 39.9%
owned by a limited partnership controlled by a wholly-owned
subsidiary of BCE, Inc. In an annual report filed with the SEC,
Motient reported revenue of $93.3 billion for calendar year 2001.
BCE, Inc. reports in its corporate Web site, http://www.bce.ca/en/investors/reports/annual/bce/2002annual/bce_ar02_04_e.html
, that
it received $19.8 billion of revenue in 2002.
\31\ There are currently four space-station authorizations for
Mobile Satellite Service systems that would operate with 2
GHz mobile earth stations. Although we know the number
and identity of the space-station operators, neither the number nor
the identity of future 2 GHz mobile-earth-station licensees can be
determined from that data.
---------------------------------------------------------------------------
31. Unlicensed Personal Communications Services. As its name
indicates, UPCS is not a licensed service. UPCS consists of intentional
radiators operating in the frequency bands 1920-1930 MHz and
2390-2400 MHz, that provide a wide array of mobile and
ancillary fixed communication services to individuals and businesses.
The Sixth R&O affects UPCS operations in the 1920-1930 MHz
band; operations in those frequencies are given flexibility to deploy
both voice and data-based services. There is no accurate source for the
number of operators in the UPCS. The Commission has not developed a
definition of small entities applicable to UPCS equipment
manufacturers. However, the SBA has developed a small business size
standard, Cellular and Other Wireless Carriers, which consists of all
such companies having 1500 or fewer employees.\32\ According to the
Census Bureau data for 1997, there were 977 firms in this category,
total, that operated for the entire year.\33\ Of this total, 965 firms
had employment of 999 or fewer employees, and an additional 12 firms
had employment of 1,000 employees or more.\34\ Thus, under this size
standard, the great majority of firms can be considered small.
---------------------------------------------------------------------------
\32\ 13 CFR 121.201, North American Industry Classification
System (NAICS) code 517212.
\33\ U.S. Census Bureau, 1997 Economic Census, Subject Series:
Information, ``Employment Size of Firms Subject to Federal Income
Tax: 1997,'' Table 5, NAICS code 517212 (issued Oct. 2000).
\34\ Id. The census data do not provide a more precise estimate
of the number of firms that have employment of 1,500 or fewer
employees; the largest category provided is ``Firms with 1,000
employees or more.''
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Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
32. The Sixth R&O addresses the possible use of the bands 1915-1920
MHz and 1995-2000 MHz to support the introduction of new AWS, but does
not propose service rules. Thus, the item contains no new reporting
requirements. The Sixth R&O modifies
[[Page 62620]]
the procedures by which incumbent licensees in the 1915-1920 MHz and
1995-2000 MHz band are to be relocated by new entrants. The relocation
procedures set forth in the Sixth R&O are based on relocation
procedures that had been previously adopted for larger blocks of
spectrum that include the bands 1915-1920 MHz and 1995-2000 MHz, but
that did not account for new AWS entrants in these bands. For example,
the Sixth R&O determines that the principle that new licensees must
reimburse UTAM, Inc., for a proportional share of the band-clearing
costs UTAM has incurred in relocating the 1910-1930 MHz band should
apply to new AWS entrants in the 1915-1920 MHz band. The Sixth R&O
modifies previously established recordkeeping and other compliance
requirements but does not substantively add to those requirements.
Licensees that were previously subject to relocation requirements will
still be subject to relocation requirements, but now may be involved in
relocation discussions with additional entities--i.e. AWS licensees.
Similarly, new entrants that were required to share relocation costs
now may share those costs with new AWS licensees.
Steps Taken To Minimize Significant Economic Impact on Small Entities,
and Significant Alternatives Considered
33. The RFA requires an agency to describe any significant
alternatives that it has considered in developing its 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 and reporting requirements under the rule for such 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
such small entities.'' \35\
---------------------------------------------------------------------------
\35\ U.S.C. 603(c)(1)-(c)(4).
---------------------------------------------------------------------------
34. The Commission considered and rejected proposals to not
redesignate the 1915-1920 MHz band for AWS. One alternative proposed by
Ascom, Siemens, Verizon and others would have had us retain this band
for unlicensed PCS use and modify the pre-existing UPCS rules to allow
for a greater variety of applications in the band. To the extent that
small entities are UPCS users, and users of unlicensed bands are
typically exempt from the reporting requirements that are necessary to
secure, maintain, and renew a license that is a necessary requirement
for operation under our licensed service rules, the retention of the
1915-1920 MHz band for UPCS might have minimized the economic impact on
small entities. We rejected this approach because we concluded that it
is feasible to introduce high powered licensed services into the band,
there is a need for additional spectrum for AWS applications, and there
are no current users of the 1915-1920 MHz band. Even if we were to
modify the rules to allow greater UPCS use of the band, the types of
applications that could be deployed under the UPCS rules would not
provide the public benefits associated with AWS applications.
Ordering Clauses
35. Pursuant to Sections 1, 4(i), 303(f) and (r), 309, 316, 332 of
the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i),
303(f) and (r), 309, 316, and 332, the Report and Order and the rules
specified in Appendix A will become effective November 26, 2004.
36. The Petitions for Rulemaking filed by the Wireless Information
Networks Forum and UTStarcom Inc., and the Petitions for Waiver filed
by Lucent Technologies Inc., UTStarcom Inc. and Drew University, Ascom
Wireless Solutions Inc., Alaska Power & Telephone Company Inc., and RBM
Communications Are denied.
37. Pursuant to sections 4(i), 302, 303(e) 303(f), 303(g), 303(r)
and 405 of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), 302, 303(e), 303(f), 303(g) and 405, the joint petition for
clarification and reconsideration filed by the American Petroleum
Institute and the United Telecom Council (API/UTC), in ET Docket No.
95-18, Is granted IN PART to the extent discussed in the NPRM, and
otherwise Is denied.
38. The Petitions for Reconsideration filed by Sirius and XM,
Sprint, and WCA Are denied.
39. The Petition for Partial Reconsideration filed by PCIA--The
Wireless Infrastructure Association Is dismissed.
40. The Petitions for Reconsideration filed by Celsat, CTIA, ICO,
SIA, and TMI and TerreStar Are denied.
41. The Commission's Consumer and Governmental Affairs Bureau,
Reference Information Center, Shall send a copy of this Report and
Order, including the Final Regulatory Flexibility Analysis, to the
Chief Counsel for Advocacy of the Small Business Administration.
Congressional Review Act
42. The Commission will send a copy of the Sixth Report and Order
including FRFA, in a report to be sent to Congress and the Government
Accountability Office (GAO) pursuant to the Congressional Review Act,
see 5 U.S.C. 801(a)(1)(A).
List of Subjects in 47 CFR Parts 15, 74, 78, and 101
Radio.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
0
For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR parts 15, 74, 78, and 101 as follows:
PART 15--RADIO FREQUENCY DEVICES
0
1. The authority citation for part 15 continues to read as follows:
Authority: 47 U.S.C. 154, 302a, 303, 304, 307, 336, and 544A.
0
2. Section 15.301 is revised to read as follows:
Sec. 15.301 Scope.
This subpart sets out the regulations for unlicensed personal
communications services (PCS) devices operating in the 1920-1930 MHz
and 2390-2400 MHz frequency bands.
0
3. Section 15.303 is amended by revising paragraph (g) to read as
follows:
Sec. 15.303 Definitions.
* * * * *
(g) Personal Communications Services (PCS) Devices [Unlicensed].
International radiators operating in the frequency bands 1920-1930 MHz
and 2390-2400 MHz that provide a wide array of mobile and ancillary
fixed communication services to individuals and businesses.
* * * * *
0
4. Section 15.311 is revised to read as follows:
Sec. 15.311 Labeling requirements.
In addition to the labeling requirements of Sec. 15.19(a)(3), all
devices operating in the frequency band 1920-1930 MHz authorized under
this subpart must bear a prominently located label with the following
statement:
Installation of this equipment is subject to notification and
coordination with UTAM, Inc. Any relocation of this equipment must be
coordinated through, and approved by UTAM.
[[Page 62621]]
UTAM may be contacted at 1-800-429-8826.
0
5. Section 15.319 is amended by revising paragraph (a) to read as
follows:
Sec. 15.319 General technical requirements.
(a) The 2390-2400 MHz band is limited to use by asynchronous
devices under the requirements of Sec. 15.321. The 1920-1930 MHz sub-
band is limited to use by devices under the requirements of Sec.
15.323.
* * * * *
0
6. Section 15.321 is amended by revising the section heading and
paragraphs (a) and (b) to read as follows:
Sec. 15.321 Specific requirements for asynchronous devices operating
in the 2390-2400 MHz band.
(a) Operation shall be contained within the 2390-2400 MHz band. The
emission bandwidth of any intentional radiator operating in these bands
shall be no less than 500 kHz.
(b) All systems of less than 2.5 MHz emission bandwidth shall start
searching for an available spectrum window within 3 MHz of the band
edge at 2390 or 2400 MHz while systems of more than 2.5 MHz emission
bandwidth will first occupy the center half of the band. Devices with
an emission bandwidth of less than 1.0 MHz may not occupy the center
half of the band if other spectrum is available.
* * * * *
0
7. Section 15.323 is amended by revising the heading, removing and
reserving paragraph (b), and revising paragraphs (a), (c) introductory
text, (c)(5), (c)(11), and (d) to read as follows:
Sec. 15.323 Specific requirements for devices operating in the 1920-
1930 MHz sub-band.
(a) Operation shall be contained within the 1920-1930 MHz band. The
emission bandwidth shall be less then 2.5 MHz. The power level shall be
as specified in Sec. 15.319(c), but in no event shall the emission
bandwidth be less than 50 kHz.
* * * * *
(c) Devices must incorporate a mechanism for monitoring the time
and spectrum windows that its transmission is intended to occupy. The
following criteria must be met:
* * * * *
(5) If access to spectrum is not available as determined by the
above, and a minimum of 40 duplex system access channels are defined
for the system, the time and spectrum windows with the lowest power
level below a monitoring threshold of 50 dB above the thermal noise
power determined for the emission bandwidth may be accessed. A device
utilizing the provisions of this paragraph must have monitored all
access channels defined for its system within the last 10 seconds and
must verify, within the 20 milliseconds (40 milliseconds for devices
designed to use a 20 milliseconds frame period) immediately preceding
actual channel access that the detected power of the selected time and
spectrum windows is no higher than the previously detected value. The
power measurement resolution for this comparison must be accurate to
within 6 dB. No device or group of co-operating devices located within
1 meter of each other shall during any frame period occupy more than 6
MHz of aggregate bandwidth, or alternatively, more than one third of
the time and spectrum windows defined by the system.
* * * * *
(11) An initiating device that is prevented from monitoring during
its intended transmit window due to monitoring system blocking from the
transmissions of a co-located (within one meter) transmitter of the
same system, may monitor the portions of the time and spectrum windows
in which they intend to receive over a period of at least 10
milliseconds. The monitored time and spectrum window must total at
least 50 percent of the 10 millisecond frame interval and the monitored
spectrum must be within 1.25 MHz of the center frequency of channel(s)
already occupied by that device or co-located co-operating devices. If
the access criteria is met for the intended receive time and spectrum
window under the above conditions, then transmission in the intended
transmit window by the initiating device may commence.
* * * * *
(d) Emissions outside the sub-band shall be attenuated below a
reference power of 112 milliwatts as follows: 30 dB between the sub-
band and 1.25 MHz above or below the sub-band; 50 dB between 1.25 and
2.5 MHz above or below the sub-band; and 60 dB at 2.5 MHz or greater
above or below the sub-band. Emissions inside the sub-band must comply
with the following emission mask: In the bands between 1B and 2B
measured from the center of the emission bandwidth the total power
emitted by the device shall be at least 30 dB below the transmit power
permitted for that device; in the bands between 2B and 3B measured from
the center of the emission bandwidth the total power emitted by an
intentional radiator shall be at least 50 dB below the transmit power
permitted for that radiator; in the bands between 3B and the sub-band
edge the total power emitted by an intentional radiator in the
measurement bandwidth shall be at least 60 dB below the transmit power
permitted for that radiator. ``B'' is defined as the emission bandwidth
of the device in hertz. Compliance with the emission limits is based on
the use of measurement instrumentation employing peak detector function
with an instrument resolution bandwidth approximately equal to 1.0
percent of the emission bandwidth of the device under measurement.
* * * * *
PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCASTING AND
OTHER PROGRAM DISTRIBUTIONAL SERVICES
0
The authority citation for part 74 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 307, 336(f), 336(h) and 554.
0
8. Section 74.690 is amended by revising paragraph (a) to read as
follows:
Sec. 74.690 Transition of the 1990-2025 MHz band from the Broadcast
Auxiliary Service to emerging technologies.
(a) New Entrants are collectively defined as those licensees
proposing to use emerging technologies to implement Mobile Satellite
Services in the 2000-2020 MHz band (MSS licensees), those licensees
authorized after July 1, 2004 to implement new Fixed and Mobile
services in the 1990-1995 MHz band, and those licensees authorized
after September 9, 2004 in the 1995-2000 MHz and 2020-2025 MHz bands.
New entrants may negotiate with Broadcast Auxiliary Service licensees
operating on a primary basis and fixed service licensees operating on a
primary basis in the 1990-2025 MHz band (Existing Licensees) for the
purpose of agreeing to terms under which the Existing Licensees would
relocate their operations to the 2025-2110 MHz band, to other
authorized bands, or to other media; or, alternatively, would
discontinue use of the 1990-2025 MHz band. New licensees in the 1995-
2000 MHz and 2020-2025 MHz bands are subject to the specific relocation
procedures adopted in WT Docket 04-356.
* * * * *
PART 78--CABLE TELEVISION RELAY SERVICE
0
9. The authority citation for part 78 continues to read as follows:
Authority: Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat., as
amended, 1064, 1065, 1066,
[[Page 62622]]
1081, 1082, 1083, 1084, 1085; 47 U.S.C. 152, 153, 154, 301, 303,
307, 308, 309.
0
10. Section 78.40 is amended by revising paragraph (a) to read as
follows:
Sec. 78.40 Transition of the 1990-2025 MHz band from the Cable
Television Relay Service to emerging technologies.
(a) New Entrants are collectively defined as those licensees
proposing to use emerging technologies to implement Mobile Satellite
Services in the 2000-2020 MHz band (MSS licensees), those licensees
authorized after July 1, 2004 to implement new Fixed and Mobile
services in the 1990-1995 MHz band, and those licensees authorized
after September 9, 2004 in the 1995-2000 MHz and 2020-2025 MHz bands.
New entrants may negotiate with Cable Television Relay Service
licensees operating on a primary basis and fixed service licensees
operating on a primary basis in the 1990-2025 MHz band (Existing
Licensees) for the purpose of agreeing to terms under which the
Existing Licensees would relocate their operations to the 2025-2110 MHz
band, to other authorized bands, or to other media; or, alternatively,
would accept a sharing arrangement with the New Entrants that may
result in an otherwise impermissible level of interference to the
Existing Licensee's operations. New licensees in the 1995-2000 MHz and
2020-2025 MHz bands are subject to the specific relocation procedures
adopted in WT Docket 04-356.
* * * * *
PART 101--FIXED MICROWAVE SERVICES
0
11. The authority citation for part 101 continues to read as follows:
Authority: 47 U.S.C. 154, 303.
0
12. Section 101.69 is amended by revising the introductory text,
paragraphs (b) and (d) and by adding new paragraphs (e) and (f) to read
as follows:
Sec. 101.69 Transition of the 1850-1990 MHz, 2110-2150 MHz, and 2160-
2200 MHz bands from the fixed microwave services to personal
communications services, emerging technologies, and other related
services.
Fixed Microwave Services (FMS) in the 1850-1990 MHz, 2110-2150 MHz,
and 2160-2200 MHz bands have been allocated for use by emerging
technology (ET) services, including Personal Communications Services
(PCS), Advanced Wireless Services (AWS), and Mobile Satellite Services
(MSS). The rules in this section provide for a transition period during
which ET licensees may relocate existing FMS licensees using these
frequencies to other media or other fixed channels, including those in
other microwave bands.
* * * * *
(b) Except as provided in paragraph (c) and (f) of this section,
FMS operations in the 1850-1990 MHz, 2110-2150 MHz, and 2160-2200 MHz
bands, with the exception of public safety facilities defined in Sec.
101.77, will continue to be co-primary with other users of this
spectrum until two years after the FCC commences acceptance of
applications for ET service (voluntary negotiation period), and until
one year after an ET licensee initiates negotiations for relocation of
the fixed microwave licensee's operations (mandatory negotiation
period). In the 1920-1930 MHz band allocated for unlicensed PCS, FMS
operations will continue to be co-primary until one year after UTAM,
Inc. initiates negotiations for relocation of the fixed microwave
licensee's operations. Except as provided in paragraph (c) of this
section, public safety facilities defined in Sec. 101.77 will continue
to be co-primary in these bands until three years after the Commission
commences acceptance of applications for an emerging technology service
(voluntary negotiation period), and until two years after an emerging
technology service licensee or an emerging technology unlicensed
equipment supplier or representative initiates negotiations for
relocation of the fixed microwave licensee's operations (mandatory
negotiation period). If no agreement is reached during either the
voluntary or mandatory negotiation periods, an ET licensee may initiate
involuntary relocation procedures. Under involuntary relocation, the
incumbent is required to relocate, provided that the ET licensee meets
the conditions of Sec. 101.75.
* * * * *
(d) Relocation of FMS licensees in the 2110-2150 and 2160-2200 MHz
band will be subject to mandatory negotiations only. Except as provided
in paragraph (e) of this section, mandatory negotiation periods are
defined as follows:
(1) Non-public safety incumbents will have a two-year mandatory
negotiation period; and
(2) Public safety incumbents will have a three-year mandatory
negotiation period.
(e) Relocation of FMS licensees by Mobile-Satellite Service (MSS)
licensees, including MSS licensees providing Ancillary Terrestrial
Component (ATC) service, will be subject to mandatory negotiations
only. Mandatory negotiation periods that are triggered in the first
instance by MSS/ATC licensees are defined as follows:
(1) The mandatory negotiation period for non-public safety
incumbents will end December 8, 2004.
(2) The mandatory negotiation period for public safety incumbents
will end December 8, 2005.
(f) AWS licensees operating in the 1910-1920 MHz and 2175-2180 MHz
bands will follow the requirements and procedures set forth in ET
Docket No. 00-258 and WT Docket No. 04-356.
0
13. Section 101.73 is amended by revising paragraphs (a) and (d)
introductory text to read as follows:
Sec. 101.73 Mandatory negotiations.
(a) If a relocation agreement is not reached during the voluntary
period, the ET licensee may initiate a mandatory negotiation period.
This mandatory period is triggered at the option of the ET licensee,
but ET licensees may not invoke their right to mandatory negotiation
until the voluntary negotiation period has expired. Relocation of FMS
licensees by Mobile-Satellite Service (MSS) licensees, including MSS
licensees providing Ancillary Terrestrial Component (ATC) service, will
be subject to mandatory negotiations only.
* * * * *
(d) Provisions for Relocation of Fixed Microwave Licensees in the
2110-2150 and 2160-2200 MHz bands. Except as otherwise provided in
Sec. 101.69(e) pertaining to FMS relocations by MSS/ATC licensees,
mandatory negotiations will commence when the ET licensee informs the
fixed microwave licensee in writing of its desire to negotiate.
Mandatory negotiations will be conducted with the goal of providing the
fixed microwave licensee with comparable facilities, defined as
facilities possessing the following characteristics:
* * * * *
[FR Doc. 04-23835 Filed 10-26-04; 8:45 am]
BILLING CODE 6712-01-P