Use of Spectrum Bands Above 24 GHz for Mobile Radio Services

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 2, 15, 25, 30, and 101

[GN Docket No. 14-177, IB Docket Nos. 15-256 and 97-95, RM-11664, WT Docket No. 10-112; FCC 16-89]

Use of Spectrum Bands Above 24 GHz for Mobile Radio Services

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document, the Federal Communications Commission (Commission or FCC) adopts rules for specific millimeter wave (mmW) bands above 24 GHz. This action is undertaken to establish a regulatory framework for the use of these bands for the development of the next generational evolution of wireless technology. Once effective, these rules will promote the development of highly beneficial technologies, in particular the so-called 5G technology.

DATES:

Effective December 14, 2016, except for §§ 25.136 and 30.8 which contain information collection requirements that are not effective until approved by the Office of Management and Budget. The FCC will publish a document in the

Federal Register

announcing the effective date for those sections.

FOR FURTHER INFORMATION CONTACT:

John Schauble of the Wireless Telecommunications Bureau, Broadband Division, at 202-418-0797 or

John.Schauble@fcc.gov,

Michael Ha of the Office of Engineering and Technology, Policy and Rules Division, at 202-418-2099 or

Michael.Ha@fcc.gov,

or Jose Albuquerque of the International Bureau, Satellite Division, at 202-418-2288 or

Jose.Albuquerque@fcc.gov.

For information regarding the PRA information collection requirements contained in this PRA, contact Cathy Williams, Office of Managing Director, at (202) 418-2918, or via email at

Cathy.Williams@fcc.gov.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's

Report and Order

GN Docket No. 14-177, FCC 16-89, adopted and released on July 14, 2016. The complete text of this document is available for public inspection and copying from 8 a.m. to 4:30 p.m. Eastern Time (ET) Monday through Thursday or from 8 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554. The complete text is available on the Commission's Web site at

http://wireless.fcc.gov,

or by using the search function on the ECFS Web page at

http://www.fcc.gov/cgb/ecfs/.

Alternative formats are available to persons with disabilities by sending an email to

fcc504@fcc.gov

or by calling the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

Ex Parte Presentations

This proceeding shall continue to be treated as a “permit-but-disclose” proceeding in accordance with the Commission's

ex parte

rules. Persons making

ex parte

presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral

ex parte

presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the

ex parte

presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during

ex parte

meetings are deemed to be written

ex parte

presentations and must be filed consistent with § 1.1206(b). In proceedings governed by § 1.49(f) or for which the Commission has made available a method of electronic filing, written

ex parte

presentations and memoranda summarizing oral

ex parte

presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (

e.g.,

.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's

ex parte

rules.

Paperwork Reduction Act

The

Report and Order

contains new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under § 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new information collection requirements contained in this proceeding.

Comment Filing Procedures

Pursuant to §§ 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 the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

•

Electronic Filers:

Comments may be filed electronically using the Internet by accessing the ECFS:

http://fjallfoss.fcc.gov/ecfs2/

or the Federal eRulemaking Portal:

http://www.regulations.gov.

Filers should follow the instructions provided on the Web site for submitting comments and transmit one electronic copy of the filing to GN Docket No. 14-177. For ECFS filers, in completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket number.

•

Paper Filers:

Parties who choose to file by paper must file an original and one copy 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. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

• 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.

• U.S. Postal Service first-class, Express, and Priority mail must 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 email to

fcc504@fcc.gov

or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

Congressional Review Act

The Commission will send a copy of this

Report and Order

in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act (CRA), see 5 U.S.C. 801(a)(1)(A).

Synopsis

I. Introduction

1. In this

Report and Order,

the Commission adopts new licensing, service, and technical rules for three bands. In so doing, the Commission attempts to follow a consistent framework across all of the bands that can serve as a template for additional bands in the future. The Commission adopted 10 year license terms and performance requirements that are flexible to allow multiple use cases to evolve over time. These basic building blocks are modified in order to meet the specific characteristics of a particular band.

2. The Commission also took significant steps forward on solutions to spectrum sharing in the millimeter wave (mmW) bands. The Commission adopted rules that will allow both satellite and terrestrial networks to continue to expand in a flexible manner. The Commission continues to facilitate co-primary shared access to the 39.5-40 GHz band for Federal and non-Federal users, and building off of recent policy developments in spectrum sharing, it also created a new approach to Federal sharing in the 37 GHz band. Specifically, instead of relying on static exclusion zones, the Commission created a space for both Federal and non-Federal users to share on a coequal basis and set out a process for defining how that sharing will be implemented. Finally, the Commission substantially increases the amount of unlicensed spectrum available by adding another seven gigahertz to the existing 57-64 GHz band, and adopting flexible technical rules.

A. 28 GHz Band

1. Suitability for Mobile Use

3. Some satellite operators, satellite equipment suppliers and satellite-focused trade associations urge the Commission not to authorize terrestrial mobile services in the 28 GHz band. This perspective is by no means unanimous or unqualified even among that group, however. SES, for example, says that it expects to support terrestrial mobile services in bands above 24 GHz by providing video distribution, providing backhaul services, and by extending terrestrial network coverage to sea, air, and remote land masses. EchoStar says that satellite operators could coexist with mobile services in the band by avoiding deployment of gateway earth stations in large urban centers. ViaSat estimates that the compatibility distance between satellite earth stations and terrestrial mobile in the 28 GHz band would be in the range of 160 meters, and could be further reduced by additional mitigation techniques. Nearly all other commenters who address the topic emphatically support mobile service authorization in the 28 GHz band.

4. Perhaps more so than other mmW bands, the 28 GHz band has been the focus of academic research and industry prototyping efforts to develop mobile service technologies. The 28 GHz band is attractive for research on enabling mobility in mmW bands because, with 850 megahertz of contiguous bandwidth, it has ample capacity to accommodate a wide range of high data-rate applications, and it has global co-primary allocations for fixed and mobile services. There are no Federal allocations in the band. Further, because this is an active service with Local Multipoint Distribution Service (LMDS) licenses covering about 75 percent of the U.S. population, it can be quickly repurposed for new flexible uses, including mobile. The ready availability of the spectrum will also help drive the development of a robust ecosystem at a large scale.

5. Opponents of authorizing new flexible and mobile use in the 28 GHz band raise three basic objections: (1) That there is no international consensus to authorize mobile services in the band; (2) that LMDS operators do not have an equitable expectation of mobile rights in the band; and (3) that mobile services in the 28 GHz band would impair vital satellite services. The Commission discusses the first of those issues below, reserving discussion of the second and third issues for Section I.4.c (Aggregate Interference to Satellite Receivers).

6. Regarding the alleged absence of international consensus expressed by some of the commenting parties, the Commission notes that the 28 GHz band already has a primary worldwide mobile service allocation, which embodies a previously agreed consensus among International Telecommunication Union (ITU) members. Although World Radiocommunication Conference (WRC) 2015 (WRC-15) omitted 27.5-28.35 GHz from a list of mmW bands that it invited ITU-Radiocommunication (ITU-R) to study for mobile service, the record in this proceeding makes it abundantly clear that there are significant benefits to authorizing mobile use in the 28 GHz band regardless of that international decision.

7. Administrations and wireless industry representatives that have been major leaders in the mobile industry support authorization of mobile services in the 27.5-28.35 GHz band. Verizon notes that countries supporting mobile use in the band include South Korea, Japan, Sweden, Finland, and Singapore—“technology powerhouses with their sights set on 5G”—and argues that this Commission should not delay repurposing the 28 GHz band while its counterparts in those countries support their industries' efforts to develop mobile technologies for the band. Intel says that major markets like the U.S., Japan, and Korea are moving expeditiously, “blazing the trail for mobile 5G services in the 28 GHz band, in spite of the WRC-15 decision not to study the 28 GHz band leading up to WRC-19.” Ericsson contends that, regardless of the outcome of WRC-15, spectrum from this general range very likely will be used for 5G around the world, as evidenced by the fact that Japan and Korea appear to be pressing ahead to use frequencies in this range for their Olympic Game deployments. Nokia expresses disappointment with the outcome of WRC-15, sees “great potential” for the 28 GHz band and urges the Commission to “unlock the promise of that band for mobile use.” Internationally, Huawei and Alcatel-Lucent are also focusing on the 28 GHz band as key spectrum for mobile use. T-Mobile USA, whose majority owner is the flagship German telecommunications company, Deutsche Telekom, filed comments in this proceeding expressing its support for mobile services in the 28 GHz band. Other comments reflect near-unanimous support among carriers, equipment suppliers, and associations that represent them.

8. The Commission acknowledges the comments of parties that emphasize the importance of international harmonization, but in this case, it appears there is sufficient international interest (including from Japan and South Korea) for using the 28 GHz band and adjacent bands to justify making the 28 GHz band available for mobile use. Intel and Ericsson both state that the

mobile industry could readily create integrated circuits with tuning ranges for various bands in that part of the spectrum, and the Republic of Korea submitted a proposal to WRC-15 stating that the “frequency range from 24.25 GHz to 29.5 GHz proposed from regional groups could be implemented by one single device to facilitate global roaming around the year 2020.” These kinds of capabilities are already being reflected in standards development. Microsoft explains that 3GPP release 13 will allow for carrier aggregation of multiple bands of spectrum, both licensed and unlicensed, in the 5 GHz band, and it says that, once 5G service is defined, the committee will likely extend its standards to encompass the millimeter wave bands. Microsoft argues that carriers should ultimately be able to aggregate low-, medium-, and high-band spectrum. The significant domestic and international interest in making the 28 GHz band available for new mobile uses clearly supports taking action in this

Report and Order

to create new flexible use licenses.

2. Licensing the 28 GHz Band

a. Use of Geographic Area Licensing

9. The Commission adopted its proposal to implement geographic area licensing throughout the 28 GHz band because geographic area licensing will expedite deployment, provide licensees with the flexibility to provide a variety of services, and is consistent with the existing licensing scheme. One significant advantage to this approach is that the Commission can expedite use of the band for advanced services because it is consistent with the existing framework in this band.

10. In contrast, if the Commission adopted a separate framework for mobile use of the band, the Commission needs to develop a Spectrum Access System (SAS), define the specific rights held by the existing licensees, and work out rules for coordination with the existing licensees. Adopting geographic area licensing for this band is also consistent with the Commission's goal of adopting a balanced licensing approach that includes licensed, unlicensed, and innovative sharing approaches across a variety of bands. For these reasons, the Commission is not adopting a 3.5 GHz-style SAS framework for this band.

11. Similarly, the Commission declines to adopt Microsoft's proposal to create an unlicensed portion of the band. The Commission believes splitting the band into unlicensed and licensed segments would potentially hinder deployment by making it more difficult for licensees to use the full 850 megahertz of spectrum. The Commission nonetheless agrees that a balance between licensed and unlicensed usage is important, and as described below, the Commission is also making seven gigahertz of spectrum available for use by unlicensed devices in the 64-71 GHz band, and create an opportunity for shared access in the 37-37.6 GHz band segment.

b. License Area Size

12. The Commission adopted counties as the license area size for Upper Microwave Flexible Use Service (UMFUS) licenses in the 28 GHz band. The Commission also adopted its proposal to subdivide existing LMDS licenses on a county basis. As the Commission explained in the

Notice of Proposed Rulemaking (NPRM),

a county-based license affords a licensee the flexibility to develop localized services, allows for targeted deployments based on market forces and customer demand, and facilitates access by both smaller and larger carriers. In the Commission views, the claims of certain commenters that larger license areas will better fit the services contemplated for these bands lack specificity and do not take into account the potential need for targeted deployment. It is unclear that providers need to—or will want to—aggregate nationwide licenses, as mobile operations in the band may initially be deployed. On a mobile basis, this band is envisioned for mobile operations in denser population centers or around highway corridors. While it is true that county-sized licenses will result in more borders, the Commission adopted a power flux density (PFD) limit at the border that will facilitate coordination between licensees. Furthermore, no party offered evidence that there have been problems providing service near existing Basic Trading Area (BTA) borders. The Commission notes that licensees in other services regularly coordinate their operations along shared borders and have well established procedures for conducting this coordination. The Commission expects that licensees will be able to apply these same procedures in this band without any undue burden. To the extent existing BTA licensees do not believe it is economically viable to build within certain counties of a BTA, the Commission believes it would be appropriate to give other interested parties an opportunity to license and to make use of the spectrum. Finally, establishing smaller license areas is fair to existing licensees because those licensees are also obtaining valuable new rights and they are keeping the same bundle of rights they had previously. Overall, the Commission believes the benefits of smaller license areas for this specific band outweigh any administrative burden on licensees and the Commission.

13. In this proceeding, the Commission is endeavoring to create a regulatory scheme that will suit the development of innovative wireless services for years to come. The Commission in recent years has sought greater consistency in its approach to geographic license area sizes to help providers aggregate licenses in a more targeted and efficient manner, gravitating toward license areas that are derived from Economic Area (EA) units. BTAs have only been used as the license area for a few commercial wireless services. Counties, however, are the base unit that make up common commercial wireless license sizes, including EAs and the new Partial Economic Area (PEA) license areas. There is also a practical advantage to issuing county-based licenses. Specifically, the Commission would be required to negotiate a new licensing agreement with Rand McNally to use BTAs in UMFUS. In recent years, the Commission has avoided using license areas controlled by third parties in order to eliminate the time and expense involved in negotiating such agreements.

3. Mobile Rights for Incumbents

14. The Commission adopted its proposal to grant mobile operating rights to existing active LMDS licensees. This grant is in fulfillment of the Commission's original mobile allocation for 28 GHz and its stated expectation of allowing mobile use in the band in “providing LMDS licensees with maximum flexibility in designing their systems.” The Commission adopted the rules; therefore, licensees are able to provide mobile services consistent with part 30 licensing and technical rules. Granting mobile operating rights to existing licensees will expedite the deployment of service, minimize the difficulties involved in coordinating fixed and mobile deployments, and provide a uniform licensing scheme throughout the United States. The Commission remains concerned that awarding fixed and mobile rights separately would lead to disputes between fixed and mobile licensees that could make it more difficult for both licensees to provide service.

15. The Commission recognizes that awarding mobile rights to incumbent licensees could be viewed as a windfall to those licensees, although the

Commission contemplated granting mobile rights when it first created LMDS. Here, the benefits of expediting service and ease of coordinating fixed and mobile service outweigh any foreseeable disadvantages of granting mobile rights to incumbents. In this instance, the Commission finds that expedition is particularly important because of the need to make mmW spectrum available for innovative and novel issues.

4. Satellite Terrestrial Sharing

a. Sharing With FSS (Fixed Satellite Service) Earth Stations

16. The record demonstrates that FSS earth stations in the 28 GHz band can share the band with minimal impact on terrestrial operations. For example, EchoStar argues that 28 GHz Earth-to-space stations would not curtail the deployment of 5G systems outside a few very small non-urban areas. EchoStar and ViaSat both estimate that terrestrial mobile stations could be deployed as close as 170 meters to their Earth-to-space transmitters in the 28 GHz band. SES Americom suggests “carving out some rural areas where future gateway earth stations can be licensed for use in the 28 GHz band.” With respect to terrestrial operations, AT&T, Nokia, Samsung, T-Mobile, and Verizon estimate that the necessary separation distances between FSS earth stations and terrestrial deployments are between 50 and 400 meters depending on the type of earth stations. Therefore, the Commission finds that it is in the public interest to create rules that allow for continued and expanded sharing between terrestrial operations and FSS earth stations in the 28 GHz band.

17. The Commission recognizes that sharing may be more difficult for non-geostationary satellite systems, such as the system operated by O3b. While O3b argues that it needs multiple sites in a county in order to serve customer locations, it ignores the Commission's decision that it was allowing FSS to access the 28 GHz band solely for the purpose of providing limited Earth-to-space gateway-type services. O3b had no reasonable expectation that the Commission would grant earth stations designed to serve customer locations priority over fixed LMDS services and mobile services that the Commission contemplated would become part of LMDS. O3b estimates that the preclusive distance for its gateway earth stations with respect to mmW mobile stations is between 1.2 and 13.8 kilometers. Nonetheless, the Commission believes that sharing is feasible for O3b. First, as discussed below, the Commission is grandfathering O3b's existing earth stations in Texas and Hawaii. Second, O3b has the option of locating future earth stations in relatively remote areas. Third, O3b can obtain protection by purchasing an exclusive use terrestrial license at auction or by working with a licensee in the secondary market to partition a license area with sufficient size to allow it to deploy additional earth stations without impacting terrestrial operations, or enter into a different type of negotiated sharing arrangement. Fourth, O3b can take advantage of shielding or other mitigation techniques. Comsearch characterizes satellite operators' use of naturally occurring terrain features as follows:

Before the great explosion of satellite communications for all types of uses, earth station sites were carefully selected with protection from interference the primary consideration. Most locations were many miles from the cities that they were serving, with the ideal earth station site being naturally shielded by terrain at a spot, which was calculated to be virtually free of interfering signals. For most types of communication, this type of isolation is not required, although it is still true that the most important aspect of a site is its shielding.

There are many naturally occurring terrain features that are capable of providing terrain shielding for NGSO gateway stations and shielding can also be provided by creating berms or other man-made barriers.

18. In short, while allowing new earth stations in the 28 GHz band is not without cost to terrestrial licensees, the Commission believes that the small area encumbered by a new earth station (with the limits noted below) will minimize such costs and will allow both satellite and terrestrial services to expand and coexist. Furthermore, satellite operators deployed in this band knowing that they were secondary licensees with respect to LMDS, that the Commission had chosen to allow only limited satellite use, and that the Commission had long envisioned allowing mobile use in the band. Despite these facts, below the Commission creates a path to further expand satellite gateways that could add thousands of new sites because the Commission believes the relatively small protection zones will have little impact on terrestrial use.

b. Licensing of FSS Earth Stations

19. The Commission maintains the current status of FSS, and as described below, creates new opportunities for continued expansion of FSS earth stations on a protected basis. Upgrading the FSS designation to co-primary status, even if limited to individually licensed earth stations, would be inconsistent with terrestrial use of this band and the Commission's decision to facilitate expanded terrestrial use, and would not effectively facilitate sharing in the band. The Commission believes the 28 GHz band will play a vital role in the deployment of advanced mmW services, and fully upgrading FSS under the Commission's service rules to co-primary status would be inconsistent with this goal and would be unnecessary to meet the FSS community's needs.

20. The Commission recognizes, however, that FSS operators rely on this band for gateway connectivity and have invested significant capital in the band and will continue to do so in the future. The Commission believes there is value in creating meaningful, targeted opportunities to deploy additional FSS earth stations in the band without harming terrestrial operations. The

NPRM'

s proposals encouraging satellite operators to participate in county-sized (or smaller) market transactions were predicated in part on the vast protection zones that satellite operators have traditionally claimed were necessary, either to protect their operations or to protect others from them. Here, there is a consensus that much smaller protection zones are needed. EchoStar and ViaSat have both estimated that terrestrial mobile stations could be deployed as close as 170 meters to their Earth-to-space transmitters in the 28 GHz band. Most other satellite operators either support those specific calculations, agree in general terms that the necessary preclusive zones can be very small, or state that gateway earth stations can be located in rural areas far away from the urban cores where mmW mobile operations will be most viable.

21. The ability of satellite earth stations and terrestrial operations to coexist in close proximity to each other has two significant ramifications. First, it should be possible for satellite and terrestrial services to share the 28 GHz band with

de minimis

impairment of each other's operations. Second, the disparity between the county-sized license areas the Commission has established for 28 GHz UMFUS licensees and the extremely small areas required for FSS earth stations makes it inappropriate for the Commission to rely exclusively on a market-based mechanism for assigning rights to FSS earth stations, although the Commission retains this option as one means through which FSS operators may expand.

22. In addition to acquiring the terrestrial license rights, the

Commission also concludes that it would be efficient to continue to authorize gateway satellite earth stations under the existing part 25 first-come, first-served basis. The Commission adopts a mechanism under which FSS earth stations will, so long as they comply with conditions noted below, be able to deploy new gateways in limited circumstances without being required to take any additional actions to provide interference protection to UMFUS licensees. The Commission builds this upon record support for several different approaches to sharing in the 28 GHz band.

23. The authorization of FSS earth stations in the 27.5-28.35 GHz band that will not be required to take any additional actions to provide interference protection to UMFUS licenses is subject to the following conditions. First, the Commission will authorize no more than three locations in each county where FSS may deploy earth stations on a protected basis. Second, an FSS applicant must demonstrate in its license application that the permitted interference zone around its earth station, which the Commission will define as the contour within which FSS licensees generate a PFD, at 10 meters above ground level, of no more than −77.6 dBm/m

2

/MHz, together with any preexisting earth stations located in the same county on a protected basis, will, in the aggregate, cover no more than 0.1 percent of the population of the county license area where the earth station is located.

1

Third, the applicant must show that the permitted interference zone does not infringe upon any major event venue, arterial street, interstate or U.S. highway, urban mass transit route, passenger railroad, or cruise ship port. The Commission notes that Verizon supports prohibiting siting earth stations near athletic and/or entertainment venues, interstate and U.S. highways, and port facilities. The Commission believes the other locations the Commission has identified are similarly areas where the Commission could expect to have high demand for wireless services. Fourth, prior to filing its application, if there is an existing 28 GHz UMFUS licensee in the county where it is proposing to locate its earth station, the earth station applicant must coordinate its operation with the existing UMFUS licensees using the coordination procedures contained in § 101.103(d) of the Commission's rules. The purpose of the coordination is to ensure that the earth station will not interfere with existing facilities operating under the UMFUS license. The Commission expects that UMFUS licensees will cooperate in good faith in the coordination process and only raise objections if there is a legitimate concern about interference to existing UMFUS facilities or failure to comply with the criteria listed above.

1

The International Bureau will issue a public notice seeking comment on the appropriate methodology to calculate the 0.1 percent population limit and further details regarding earth station interference zone calculation (including propagation models,

e.g.

free space versus probabilistic), and will also seek comment on best practices for earth station siting to minimize the impact on UMFU services, colocation of earth stations, and accommodating multiple earth station interference zones without exceeding 0.1 percent of population in a given county.

24. These conditions are designed to provide FSS licensees with substantial opportunities to expand their limited use of the 28 GHz band to deploy earth stations that do not have to protect terrestrial services, while minimizing the impact on terrestrial operations. Since there are over 3,000 counties in the United States, with a potential for up to three locations in each county, FSS licensees would have many choices for earth station locations. Furthermore, even with the conditions the Commission has imposed, FSS operators will have great flexibility in selecting earth station locations that meet their needs. Taking ViaSat's 160-meter radius estimate as a point of departure, the typical interference zone for terrestrial operations around a gateway earth station would cover about 0.08 square kilometers. As ViaSat notes, this zone could be reduced further by reducing the preclusive distance around the earth station, using mitigation techniques such as shielding. Even without such reductions, the interference zone would represent only about 0.0033 percent of the area of an average U.S. county. If one were to assume an even population distribution throughout every county, ViaSat's interference zone would cover no more than 0.1 percent of the population of any county that covers more than 80 square kilometers. There are only four counties in the United States that cover less than 80 square kilometers. In addition, any interference zone will be allowed to accommodate multiple FSS earth stations that could, for instance, be serving different satellites in the geostationary orbit, as long as these earth stations, in the aggregate, do not cause the interference zone to exceed the limits the Commission adopted in this

Report and Order.

25. Conversely, the Commission believes that allowing FSS earth stations to share the 28 GHz band under these conditions will not unduly hinder terrestrial deployment in the band. The Commission notes that existing LMDS licensees are obtaining valuable mobile rights, and the value of those rights far outweighs any impairment imposed by this sharing mechanism. In addition, under the rules the Commission adopted, the Commission believes that FSS operations will encumber only a small geographic area and a small portion of the population of the license area. While the Commission maintains flexibility for FSS operators to choose the areas that fit within these conditions, current and future licensees will have some ability to predict the potential impact on the license area.

26. Other than applying those conditions, the Commission does not propose to designate the locations of any county's satellite permitted interference zones in advance—

i.e.,

the Commission will leave the choices of locations to the discretion of the satellite operators, conditional upon the licensees constructing and activating their earth stations within 12 months, pursuant to § 25.133 of the Commission's rules.

27. The Commission also notes that FSS operators will have other mechanisms available to deploy earth stations that do not have to protect terrestrial services. The Commission will adopt its proposal to grant such rights to any FSS earth stations for which the FSS operator also holds the UMFUS license that covers the earth station's permitted interference zone. To the extent FSS operators and UMFUS licensees enter into private agreements, their relationship will be governed by those agreements. Finally, FSS earth stations may continue to be authorized without the benefit of an interference zone. In this respect, taking into account the small size of the area around an earth station where terrestrial operations would not be protected, the Commission encourages UMFUS licensees to be flexible in providing certainty to the operation of FSS earth stations in areas where they do not intend to deploy terrestrial services. The Commission emphasizes that these FSS earth stations will have no expectation of interfering rights and will have to cease operation if requested by UMFUS licensees at any time on the basis of harmful interference to their services.

28. The Commission also modifies its proposal in the

NPRM

for treatment of existing FSS gateway earth stations. Since the Commission is no longer requiring FSS operators to obtain an UMFUS license in order to obtain the right to interfere, the Commission will not grant UMFUS licenses to existing FSS earth station holders. Instead, the Commission will grandfather all

existing 28 GHz FSS earth stations authorized as of the adoption date (July 14, 2016) of this

Report and Order

and grant them the right to operate under the terms of their existing authorizations without taking into account possible interference to UMFUS operations. The Commission will also grandfather pending applications for 28 GHz earth stations filed prior to the adoption date of this

Report and Order

if such applications are subsequently granted pursuant to the existing part 25 rules (

i.e.,

without regard to the criteria the Commission adopted). The Commission notes that in many instances, these earth stations are used to provide valuable services to customers. In areas where there is no existing LMDS licensee, a new UMFUS licensee will have the ability to take the existing FSS earth station into account before it acquires the license or plans deployment. Even in areas where there is an existing LMDS licensee, Samsung's analysis demonstrates that existing earth stations will have a small impact on the terrestrial licensee. Finally, the Commission notes that AT&T and Verizon support grandfathering existing earth stations.

29. In adopting these rules, the Commission acknowledges with appreciation the efforts that AT&T and EchoStar have made to forge a compromise proposal that would be acceptable to other parties. The Commission declines to adopt their compromise proposal because it would have provided less predictability regarding the locations of future earth stations, and it would have limited the ability of FSS to deploy near population centers even if the deployment affected a small percentage (or even none) of the population. By contrast, the sharing mechanism that the Commission adopted will provide predictability to terrestrial licensees while giving FSS the opportunity to greatly expand their operations to over 9,500 locations. The Commission believes the rules that the Commission adopted will encourage intensive use of the band by both UMFUS and FSS licensees.

c. Aggregate Interference to Satellite Receivers

30. The second issue that must be considered with respect to satellite-terrestrial system coexistence is aggregate skyward interference to satellite receivers. There is a concern on the record that upward transmissions from large numbers of terrestrial stations will, in the aggregate, generate enough power to be received at the satellite's receiver, thus degrading the satellite's performance. The most detailed concerns about aggregate interference are raised in

ex parte

presentations by O3b, SES, ViaSat, and a group referring to themselves as Satellite Operators. For the reasons noted below, the Commission concludes that the potential for aggregate interference rising to the level of harmful interference is unlikely and thus is not a basis for refusing to authorize mobile service in the 28 GHz band, and the Commission declines to establish any regulatory limit on aggregate power levels.

31. Under the Commission's rules, FSS is secondary to LMDS fixed and mobile operations in the 28 GHz band. The Commission's rules specifically state, “FSS is secondary to LMDS in [the 27.5-28.35 GHz] band.” Internationally, this band is allocated to the FSS and the fixed and mobile services on a co-primary basis. The Commission recognizes that there are non-U.S. licensed FSS networks in this band, and that the United States needs to protect those systems consistent with its relevant international obligations. This framework exists in other bands where FSS shares spectrum with terrestrial services internationally, such as the C-band. Contrary to Lockheed Martin's assertions, the Commission is not violating U.S. international treaty obligations by adopting rules that will enable the provision of UMFUS in the 28 GHz band without first resolving potential aggregate interference issues. As discussed below, the Commission concludes that the risk of aggregate interference is low. In the event, however, that there is an instance where a non-U.S.-licensed FSS network receives harmful interference, the Commission intends to address such interference in accordance with applicable U.S. international treaties, and will monitor industry developments to that end. The Commission rejects ViaSat's argument that the Commission granted FSS primary status over mobile operations. ViaSat relies in part on the following passage from the

LMDS First

Report and Order:

We are designating discrete spectrum bands for specific types of systems. Services designated for domestic licensing priority are specified in capital letters in the graphic depiction of the band plan. These services have licensing priority vis-à-vis any other type of service allocated domestically or internationally in the band. Lower-case letters indicate services in a particular band segment which also have licensing priority vis-à-vis any third service allocated domestically or internationally in the band, but have no licensing priority over the service in capital letters in the band segment and must operate on a non-interference basis and must accept interference vis-à-vis that service.

Contrary to ViaSat's view, the Commission can, and in fact did, establish priority for mobile services through its service rules. ViaSat claims that FSS retains primary status over any new mobile service, because the Commission established priority only for LMDS. This argument fails because mobile service is part of LMDS, and is not a “third service” or a “new service.” The mobile allocation already existed at the time of the

LMDS First Report and Order,

but the Commission made no distinction between fixed and mobile service in terms of priority—it established priority for a terrestrial service over a satellite service. The Commission contemplated that LMDS, the designated primary service, could eventually obtain mobile rights. Indeed, it “kn[e]w of no reason why we would not allow mobile operations if they are proposed and we obtain a record in support” thereof. It declined to authorize mobile operations “for now,” not because of concerns about coexistence with FSS (which it had already designated as secondary due to the infeasibility of sharing at that time), but because it was unclear that the technology existed to facilitate mobile operations and whether mobile operations could share with fixed operations. The actions, the Commission is taking, are precisely the actions the Commission contemplated when it established service rules for LMDS—adding mobile rights to existing LMDS licenses.

32. The Commission also notes that if the Commission had intended to make mobile operations secondary to FSS, it could have very clearly done so by explicitly stating that FSS had priority over the mobile allocation. In the

LMDS First Report and Order,

when the Commission intended to discuss the mobile allocation, it specifically referred to the mobile allocation. If the Commission intended to make mobile secondary to FSS, it could have specifically referred to mobile instead of a “third service.” Indeed, when the Commission talked of mobile services in the 28 GHz band, it said that authorizing such services “would be consistent with the Commission's goal of providing LMDS licensees with maximum flexibility in designing their systems.” If the Commission intended to treat mobile services independently of LMDS, it would not have referred to providing flexibility to LMDS licensees.

33. FSS operators received multiple notices of their secondary status. Indeed, in the

LMDS First Report and

Order,

the Commission specifically rejected a request from GE Americom to provide some protection to FSS gateways as “inconsistent with the designation of FSS for secondary licensing priority in the 27.5-28.35 GHz band.” As ViaSat recognizes, FSS license conditions in the 28 GHz band explicitly state that FSS operations in the 28 GHz band are on an “unprotected, non-harmful interference basis relative to LMDS.” The

NPRM

in this proceeding noted, “Twenty stations are licensed for Earth-to-space transmissions on a secondary basis in the 28 GHz band. . . .” That much being said, the Commission recognizes that FSS operators use the 28 GHz band to provide services and intend to provide additional services in the future.

34. However, the record in this proceeding does not demonstrate that the rules that the Commission adopted would significantly risk harmful interference to satellite operations because of aggregate interference received at the satellite receiver. Under the existing rules, LMDS stations have a maximum authorized transmit power of 55 dBW (85 dBm), versus the 75 dBm the Commission adopted. Furthermore, LMDS can operate in either point-to-point or point-to-multipoint mode, and there are no existing limits on upward emissions. In contrast, the Commission adopted lower power limits for base-station and mobile operations in UMFUS. Furthermore, the systems contemplated for these bands have several characteristics that will tend to limit transmissions towards satellite receivers. As noted in the

NPRM,

most industry evaluations of potential mmW mobile base station deployments appear to assume that such stations' antennas will be tilted downward at a slight angle, typically from a street lamp pole or a location on a building at a similar height. Intel explains that this configuration is necessary not only to direct transmissions toward user equipment but also to limit interference between adjacent cellular base stations. In fact, says Intel, failure to adopt this downtilt configuration would impair throughput to users at cell edges by about 60 percent. Although ViaSat expresses concern that in some limited locations mobile base stations might be directed skyward to provide coverage to users in the upper floors of tall buildings, because of this need for downward coverage such mobile providers can rely on wired in-building facilities where necessary. Mobile base stations in this band will probably use antenna systems that employ dynamic beamforming techniques to produce beams as narrow as 1.0 degree, which will substantially reduce the likelihood that such beams will point directly at satellite receivers. User equipment will also employ antenna arrays to generate dynamic beamforming, varying both azimuth and elevation in order to maintain signal connections with their base stations. Again, terrestrial operators are likely to deploy this technology of their own accord: By Intel's analysis, choosing not to use dynamic beamforming technology would reduce throughput at cell edges by about 70 percent. Base stations and user equipment will also likely employ dynamic power control, both to avoid draining batteries and to limit intersystem interference. In fact, both base stations and user equipment could be entirely silent much of the time; terrestrial operators report that, in current deployments, network loading rarely exceeds 30 percent. All of these features will limit the extent of skyward transmissions from terrestrial mobile systems.

35. In addition, it is important to recognize that most mmW transmissions will likely not occur in environments that have line of sight to satellites. By some estimates, as much as 80 percent of smartphone use occurs indoors, with much of the remainder occurring in vehicles. Because mmW signals are heavily attenuated by exterior walls, roofs and windows, signals originating from handheld smartphones will be largely confined within any buildings or vehicles where they are used, and would need to be relayed to mobile base stations by other devices with exterior antennas that will likely have sufficient beamforming ability to limit skyward transmissions. In principle, spilling signal power uselessly into outer space would represent a source of inefficiency, so it is likely that dynamically beamformed signals will be aimed at receivers on the ground or not far above it. The most vulnerable satellites—those situated at elevations close to the horizon—will be protected further by the path losses that terrestrial signals will encounter in the cluttered environments of street canyons, suburban foliage, and other obstacles.

36. The Commission has reviewed the studies submitted by the various parties, including the satellite operators. As discussed in the Technical Rules section,

infra,

the Commission concludes that the various studies submitted by the parties do not support establishment of an aggregate interference limit. From the satellite operators' perspective, part of the challenge is that mmW mobile is a new, rapidly evolving technology, and the terrestrial mobile industry is still developing system designs and propagation models. Even so, there has been substantial progress in that regard, and the interference models submitted by satellite operators in this proceeding do not take into account prospective features of mmW mobile systems that are readily accessible on the public record. O3b, for example, assumes that mmW mobile user equipment will employ no beamforming at all, and will generate omnidirectional signals. Interference models submitted by other parties do not adequately account for, and in some cases do not take into account at all, antenna beamwidths, downtilts, beamforming, power control, traffic patterns, number of simultaneously transmitting stations, the obstruction losses that terrestrial signals are likely to encounter before reaching satellites at low elevations, and the fact that the majority of transmissions will occur indoors. Terrestrial operators have every incentive to design networks that direct the signals they are transmitting to the locations of the receivers—either another fixed point on a vertical structure, or a mobile unit within a couple of meters of the ground—especially given the propagation characteristics of these frequencies. Furthermore, mobile units, which are likely to be transmitting at angles more skyward, are operating at powers significantly lower than base stations. These are both true regardless of the types of systems that are ultimately deployed in these bands. Nonetheless, given the wide variety of deployments and uses the Commission expects to see in these bands, it would be inappropriate to universally mandate these design features in every deployment, in the absence of more credible support for the proposition that satellite systems will receive harmful interference from mmW mobile systems.

37. The Commission's decision not to set specific limits on aggregate interference is consistent with the Commission's treatment of that issue in other bands. In AWS-3, the Commission declined to establish aggregate power limits to protect Federal satellites in the 1761-1780 MHz band because it was unlikely that aggregate interference was likely to occur. Similarly, in the 10.7-11.7 GHz band, which is shared between FSS and Fixed Service (FS), the Commission held with respect to concerns regarding a different type of aggregate interference: “[W]e view rule changes that would allow greater FS use of the 11 GHz band as beneficial to the

public interest, so long as existing users would not be harmed.” Similarly, the Commission sees great public benefit to more intensive terrestrial use of the 28 GHz band where terrestrial use is the primary designated service in the band.

38. The Commission has concluded that the satellite industry has not shown that it has a legal right to protection from aggregate interference or that harmful aggregate interference is likely to occur from the mobile operations now being authorized for LMDS. The Commission also recognizes that SES, EchoStar, and ViaSat believe that satellite and mobile operations can coexist. Nonetheless, the Commission is sensitive to the concerns raised. The Commission notes that the satellite and wireless industries have begun the process of modeling the terrestrial systems under consideration for this band to provide further information concerning their potential impact on satellites. The Commission encourages both industries to continue working cooperatively on this issue, including by submitting any relevant data demonstrating changes in the amount of aggregate interference on record as UMFUS services are deployed. The Commission directs the International Bureau (IB), the Office of Engineering and Technology (OET), and the Wireless Telecommunications Bureau (WTB) to jointly establish a separate docket that parties can use to file the relevant data and analyses, and the Commission reserves the right to revisit this issue should additional information or other circumstances warrant further Commission review or action.

2

2

In the

NPRM,

the Commission also sought comment on the possibility of repealing the prohibition on FSS user equipment in the 28 GHz band. While there has been considerable comment on this issue, in light of the evolving nature of technology and deployment in the band, the Commission does not believe the issue is ripe for action at this time. Accordingly, the Commission will consider this issue in the future, either in this proceeding or in a separate proceeding.

5. Band Plan

39. The Commission will license the 28 GHz band as two 425 megahertz blocks. The Commission believes 425 megahertz channels will be sufficient for a licensee to provide the type of high data rate services and other innovative uses and applications contemplated for this spectrum. The fact that several carriers support dividing the bands into multiple blocks supports that conclusion. The Commission also agrees with T-Mobile that there are benefits to competition in allowing multiple licensees to provide service in the 28 GHz band.

40. The Commission emphasizes that existing LMDS Channel A1 licensees will receive licenses for both channels, so they will maintain their existing license rights. To the extent licensees are interested in having a contiguous block of 850 megahertz of spectrum, they are free to acquire both licenses, subject to compliance with the Commission's spectrum aggregation policies.

B. 39 GHz Band (38.6-40 GHz)

41. In the

NPRM,

the Commission proposed to develop service rules for mobile operations in the 38.6-40 GHz band (the “39 GHz Band”). This band is currently allocated to the fixed, fixed satellite (space-to-Earth), and mobile services on a primary basis for non-Federal use. There are Federal FSS (space-to-earth) and Mobile Satellite Service (MSS) (space-to-Earth) allocations in the 39.5-40 GHz band, limited to military systems.

42. The 39 GHz band is licensed by EA and consists of 14 blocks of 50 by 50 megahertz channels. Out of the 2,464 possible terrestrial fixed service EA licenses available in this band (14 channel pairs for each of 176 EAs) only 870 licenses currently exist. Other licenses were voluntarily cancelled or terminated for failure to meet substantial service requirements. In addition, there are currently 229 active Rectangular Service Area (RSA) licenses that predate the creation of the EA licenses in which the licensees self-defined their service area, and where they retain the exclusive right to operate. The populations in licensed areas (both EA and RSA licenses) vary by channel, but in aggregate they cover about 49 percent of the U.S. population. The Commission has previously indicated that licensees of the band could have the flexibility to provide mobile service and stated the belief that “the issue of technical compatibility of fixed and mobile operations within a service area is one that can and should be resolved by the licensee.” The Commission declined, however, to permit mobile operations until it conducted a separate proceeding to resolve any inter-service and inter-licensee interference issues. As a result, no mobile operations currently exist in the 39 GHz band. To accommodate high-density fixed terrestrial systems under a “soft segmentation” band plan, the Commission has established lower PFD limits for satellite transmissions in the 37.5-40 GHz band than in other satellite bands. The Commission notes that there are no commercial satellite operations in the band.

1. Suitability for Mobile Service

43. The Commission will authorize mobile operation in the 39 GHz band (38.6-40 GHz), and the Commission will issue new licenses granting existing and new 39 GHz licensees both fixed and mobile rights. The Commission believes that the significant bandwidth available in this band will help to accommodate the expected continued rise in demand for mobile data. Commenters, including incumbent terrestrial licensees, overwhelmingly support opening the band for mobile use and expanding their reach to mobile. The Commission agrees and believes the band can be used by both mobile and satellite because satellite use can be accommodated with minimal impact on terrestrial service. The Commission created the service rules to enable such mobile use, and the Commission detailed the means by which satellite must cooperate with new mobile services in these bands to reduce interference and improve service.

2. Licensing the 39 GHz Band

a. Use of Geographic Area Licensing

44. The Commission adopted geographic area licenses that will grant licensees the flexibility to provide fixed and mobile services. As with the 28 GHz band, the Commission finds that in this band, geographic area licensing will expedite deployment, provide licensees with the flexibility to provide a variety of services, and is consistent with the existing licensing scheme in the band. The Commission will maintain the current co-primary Federal FSS and MSS allocations and associated regulations in this band. The Commission also finds that the presence of incumbent geographic area licenses in a large part of the country renders the 39 GHz band a poor candidate for implementing an SAS-based sharing model.

b. License Area Size

45. The Commission will license the 39 GHz band using PEAs, because the Commission finds that use of this license area size will facilitate access to spectrum and the rapid deployment of service in the band. PEAs are smaller than BTAs or EAs, and therefore are more realistically obtainable by smaller bidders, yet are larger than counties which various commenters deem too small. Licensing the 39 GHz band on a PEA basis strikes the appropriate balance between facilitating access to spectrum by both large and small providers and simplifying frequency coordination while incentivizing investment in, and rapid deployment of, new technologies. PEAs also nest into

EAs but can also be broken down into counties, allowing operators to combine or partition their PEAs into the license areas of their choice. The Commission believes that the size and ability to combine/partition will aid in the rapid deployment of these licenses. The Commission's decision to license the 39 GHz band on a PEA basis is distinguishable from the Commission's decision to use counties as the license area in the 28 GHz band, because, as previously discussed, the latter band is currently licensed by BTAs and cannot readily be reformed into either EAs or PEAs.

3. Mobile Rights for Incumbents

46. The Commission adopted its proposal to grant mobile operating rights to existing active 39 GHz licensees for the same reasons the Commission granted mobile operating rights to LMDS incumbent licensees. Granting mobile operating rights to existing licensees will expedite the deployment of service, minimize the difficulties involved in coordinating fixed and mobile deployments, and provide a uniform licensing scheme throughout the United States. In contrast, separating fixed and mobile rights through assignment of overlay licenses would delay the implementation of mobile service. The Commission remains concerned that awarding fixed and mobile rights separately would lead to disputes between fixed and mobile licensees that could make it more difficult for both licensees to provide service.

47. The Commission recognizes that awarding mobile rights to incumbent licensees could be viewed as a windfall to those licensees, although the Commission contemplated granting mobile rights when it first created LMDS. Here, the benefits of expediting service and facilitating the coordination of fixed and mobile service outweigh any potential disadvantages of granting mobile rights to incumbents.

4. Non-Federal Satellite Terrestrial Sharing—Licensing of Gateway Earth Stations

48. The

NPRM

invited comments on three issues relating to FSS use of the radiofrequency spectrum from 37.5 GHz to 40 GHz, encompassing both the 38.6-40 GHz (39 GHz) band and the 37-38.6 GHz (37 GHz) band. The first question was whether the Commission should make any changes to its treatment of gateway earth station applications; the second, whether it would be reasonable to eliminate the prohibition against ubiquitous deployment of user equipment; and the third question, whether it would be feasible to allow satellite operators to increase their PFDs above existing limits during heavy rain storms. In none of those cases did the Commission foresee any reason to differentiate between the 37 GHz and 39 GHz bands with respect to satellite sharing issues.

49. The U.S. Table of Frequency Allocations accords co-primary status to FSS earth stations in the 37.5-40 GHz frequencies, but Commission rules provide that gateway earth stations in the 39 GHz band may be deployed only if the FSS licensee obtains a 39 GHz license for the area where the earth station will be located, or if it enters into an agreement with the corresponding 39 GHz licensee. The Commission mentioned the changes that the

NPRM

was proposing for the licensing of satellite operations in the 28 GHz band and sought comment on whether similar changes should be adopted for the 37.5-40 GHz channel groups. The

NPRM

asked whether the Commission should establish a waiver process by which non-Federal FSS earth stations in the 37.5-40 GHz bands could acquire co-primary status in areas where there is no geographic service area licensee, if they can demonstrate that doing so would not have a negative impact on future terrestrial service. The Commission asked if the fact that 37.5-40 GHz FSS operations are space-to-Earth, rather than Earth-to-space as in the 28 GHz band, should lead to different answers to these questions. The Commission also sought comment on any other changes it should make to the existing rules.

50. Commenters acknowledge that the space-to-Earth nature of satellite operations in the 37.5-40 GHz bands means that it is earth stations that need protection against interfering signals from terrestrial operations rather than the opposite situation that applies for Earth-to-space operations in the 28 GHz band. EchoStar calculates that satellite earth stations in the 37.5-40 GHz band will need exclusion zones with radii extending no more than about two kilometers. EchoStar states this radius in the 37.5-40 GHz bands is about 12 times the radius (170 meters) circumscribing the exclusion zone that EchoStar says is required for earth stations in the 28 GHz band. The areas required for the resulting exclusion zones would be about 138 times as large—12.6 square kilometers (4.9 square miles) for the 37.5-40 GHz bands versus 0.09 square kilometers (0.03 square miles) for the 28 GHz band. By comparison with the 28 GHz band, therefore, accommodating satellite earth stations in the 39 GHz band is approximately two orders of magnitude more difficult.

51. The smallest counties mentioned in the Commission's discussion of satellite interference zones for the 28 GHz band each cover about 80 square kilometers. The exclusion area that EchoStar says is required for the 37.5-40 GHz frequencies would cover about 16 percent of such a county—a proportion that could seriously impair the growth prospects for mmW mobile. The challenge is less daunting when the Commission considers the possibility of authorizing earth station sites on a PEA basis rather than a county basis. The average PEA in the 48 contiguous U.S. states covers about 18,692 square kilometers (7,217 square miles). Therefore, the requisite exclusion zone would cover about 0.0674 percent of the average PEA's land mass in the contiguous U.S. If people were evenly distributed across this hypothetical average PEA, substantially less than 0.1 percent of its population would fall in the earth station's exclusion zone.

52. These calculations show that some PEAs should be able to host a 39 GHz earth station without placing more than 0.1 percent of the PEA's population in the earth station's exclusion zone. Most PEAs cover substantially less territory than the average PEA does;

i.e.,

even for some PEAs, a five square-mile exclusion zone might affect an unacceptably high proportion of their populations. But satellite operators will not necessarily need to deploy 39 GHz earth stations in the smaller, more densely populated PEAs. For satellite gateway earth stations in particular, the

sine qua non

is not proximity to population centers,

per se,

but access to long-haul, high data-rate Internet facilities. Direct access to long-haul Internet nodes is available not just in major population centers but also in some of the more remote parts of the U.S. Many of those nodes are in places with comparatively low population densities—

i.e.,

near areas where it should be possible to deploy earth stations without creating exclusion zones that affect unacceptably high proportions of the population. In addition, as the Commission suggested for the 28 GHz band, satellite operators can substantially reduce the sizes of the exclusion zones that they require by constructing artificial site shields or by taking advantage of naturally occurring terrain features. Spatial analysis software can process digital elevation data to identify geographic depressions, which are capable of providing natural site-shielding in all directions. For earth stations that communicate only with geosynchronous satellites, more limited site shielding would typically suffice. In

addition, satellite operators may continue to protect their earth stations from interference using any of four market-oriented mechanisms: Purchasing geographic area licenses at auction, acquiring licenses from existing licensees, obtaining partitioned segments of existing geographic area licenses from existing licensees, or obtaining contractual agreements from nearby licensees not to interfere into their earth station operations.

53. Based on those considerations, the Commission will authorize non-Federal satellite earth stations in the 39 GHz band on a first-come, first-served basis that will entitle them to protection from terrestrial transmissions subject to the following conditions.

3

First, the earth station applicant must define a protection zone in its application around its earth station where no terrestrial operations may be located. The FSS applicant may self-define this protection zone, but it must demonstrate using reasonable engineering methods that the designated protection zone is no larger than necessary to protect its earth station. Second, the Commission will authorize a maximum of three protection zones in each PEA, so the applicant must demonstrate that there are no more than two existing protection zones in the PEA or demonstrate that its protection zone will be contiguous to any preexisting satellite protection zone. Third, the applicant must demonstrate the existing and proposed protection zones, in the aggregate, will not cover more than 0.1 percent of the PEA's population.

4

Fourth, the applicant must show that the protection zone does not infringe upon any major event venue, arterial street, interstate or U.S. highway, urban mass transit route, passenger railroad, or cruise ship port. Finally, the earth station applicant must coordinate with terrestrial fixed and mobile licensees whose license areas overlap with the protection zone, in order to ensure that the protection zone does not encompass existing terrestrial operations. The coordination requirements will be based on the Commission's existing requirements contained in § 101.103(d) of the Commission's rules. If the earth station is authorized, UMFUS licensees will be prohibited from placing facilities within the protection zone absent consent from the FSS operator, and the FSS operator must respond in good faith to requests to place facilities within a protection zone.

3

The Commission adopted a new footnote, NG63, to the Allocation Table that reflects the existing limitation to gateway earth stations.

See

47 CFR 25.202(a)(1) n.3.

4

The IB will issue a public notice seeking comment on the appropriate methodology to calculate the 0.1 percent population limit and will also seek comment on best practices for earth station siting to minimize impact on UMFU services, colocation of earth stations, and accommodating multiple earth station interference zones without exceeding 0.1 percent of population in a given PEA.

5. Band Plan

54. The Commission will create seven 200 megahertz bands out of the 39 GHz band (38.6-40 GHz). The Commission finds that this channel size is large enough to take advantage of the data throughput capacity of these bands yet yields a sufficient quantity of channels in the band to provide access to multiple operators simultaneously. The Commission agrees with the comment that next generation 5G networks are expected to depend in part on higher frequencies, increased spectral efficiency and greater density of cell deployments and that these factors alone may be insufficient to meet the expected tenfold increases in peak data rates and user throughput without using ultra-wide channel bandwidths of at least 200 MHz. These wider channels available at higher frequencies could allow for higher data rates in environments constrained by power or signal-to-noise ratios. By facilitating higher throughput, wideband channels will thereby permit more users to simultaneously use the band.

55. The Commission also modified the current band plan that is based on paired spectrum blocks in favor of larger, unpaired channels to enable Time Division Duplexing (TDD) which commenters believe will best enable a 5G mobile service environment. Straight Path asserts that TDD is preferable in these frequencies given the current lack of adequate frequency duplexers capable of meeting the performance, cost or form factor requirements necessary to facilitate Frequency Division Duplexing (FDD) at these higher wavelengths. TDD does not require a frequency duplexer and allows flexible downlink-uplink ratios that depend on traffic and result in efficient utilization of spectrum. While these and other commenters note the benefits of TDD in the context of 5G, commenters overwhelmingly support rules that allow for flexible duplexing schemes, and the rules the Commission adopted will allow any type of duplexing. Licensees may also continue to offer FDD service by acquiring and pairing multiple spectrum blocks. Because the existing channel plan favors FDD operation and limits flexibility to accommodate other duplexing schemes, reconfiguring the channel plan will remove obstacles to TDD schemes while still allowing for flexibility to accommodate FDD. Furthermore, larger bandwidths may optimize traffic management and improve system performance because a single, wide carrier permits centralized spectrum management whereas aggregation and use of various narrow bandwidth channels requires greater power consumption and equipment complexity. Finally, 200 megahertz channels will potentially create several empty channels for new entrants after incumbent licensees swap or repack their existing systems into consecutive or adjacent channels. Given all of the considerations above, the Commission finds that 200 MHz channels are the best band size for 39 GHz.

6. Pre-Auction License Reconfiguration

56. Straight Path's proposal contains the clearest delineation of rules and steps necessary to align adjacent spectrum tranches to create contiguous bands—the goal advocated by commenters. The Commission agrees with Straight Path that in EAs where only it holds licenses, the Commission should accept any exchange application in which Straight Path or others propose to acquire the same amount of spectrum in the market that it proposes to relinquish as long as it meets the end goal of creating a contiguous block or blocks of spectrum. In instances where there are multiple geographic area licensees, Straight Path advocates that the Commission should first accept any band plan mutually acceptable to the various licensees as long as it also increases the amount of contiguous spectrum for at least one of the licensees. If licensees do not agree on a band plan, Straight Path argues the Commission should accept applications in which an incumbent geographic area licensee seeks to acquire any contiguous spectrum blocks adjacent to spectrum blocks it already holds subject to two limitations (i) the target spectrum block is not already occupied by another incumbent geographic area licensee; and (ii) the target spectrum block could not be requested by another incumbent geographic area licensee on the grounds that it is adjacent to a block it holds or that it could hold. A licensee should be able to continue to add contiguous unused blocks in a row until it reaches a prohibited block—

i.e.,

a spectrum block that could also be claimed by another incumbent licensee. Straight Path suggests that in this way, contiguous occupied bands could be aligned starting at the lower edge of the band—at 38.6 GHz—and moving up toward 40 GHz. Because the Commission adopted a band plan for the

37 GHz band that provides for continuity of commercial operations across the 37 GHz and 39 GHz bands, when the bands are viewed together, Straight Path's swapping plan results in occupied spectrum in the middle of the combined bands. One alternative might be to push incumbents to the upper end of the band near 39.5 GHz, in order to create larger available swathes of spectrum by combining the lower frequencies with the open bands in the 37 GHz band. However, in the interest of addressing mobile data demand as quickly as possible, 39 GHz licensees at the bottom of the band will provide the first market for mmW mobile equipment as soon as it becomes available, and this will further the goal of interoperability by allowing fixed licensees to more rapidly foster the development of mobile in their bands.

57. Some of the 200 MHz spectrum blocks offered at auction will also contain at least one incumbent RSA licensee occupying some portion of the spectrum. Straight Path argues that where the incumbent geographic license holder is also the RSA licensee, the RSA license will be deemed not to exist and will be cancelled upon an exchange. Otherwise, incumbent licensees will only be permitted to elect to add contiguous channels with greater encumbrances than

vice versa;

accordingly, a geographic area licensee can always opt to exchange a block without an RSA for an adjacent block with an RSA whose operations it will have to protect, and similarly it can always opt to take a license area with a more encumbered RSA over a block it holds with a less encumbered RSA, but it cannot “upgrade” to an RSA-free block or a license with an embedded RSA that is less encumbered. Overall, although Intel and Straight Path have argued that EAs are the appropriate geographic area for new licenses given their historical use and the complexity of the swap process, as discussed above, the Commission's preferred license area size for the 39 GHz band are PEAs, and such PEAs neatly fit into the EAs they comprise. Accordingly, once incumbents' spectrum swapping has run its course at the EA level, the resulting license area/band combinations should be further broken down into PEAs, which `nest' into EAs.

58. The Commission believes this reconfiguration process will yield a band, and licenses, that are more useable by incumbents as well as new entrants for the new flexible use services, including mobile broadband that the Commission is authorizing in this

Report and Order.

Straight Path currently holds 931 licenses out of 1,098. If Straight Path voluntarily reconfigures its rights as it has advocated, this will substantially reduce encumbrances (

i.e.,

remaining RSAs or blocks within EAs that have not been reconfigured) that might exist in new license areas before a future auction. While the Commission adopted a voluntary reconfiguration approach, it is its hope and expectation that all licensees will take advantage of this opportunity to convert their licenses to the new flexible use licensing scheme and band plan. Furthermore, while the Commission adopted a voluntary approach, the Commission notes that under Section 316 of the Act the Commission retains the right to modify any license consistent with the public interest.

C. 37 GHz Band (37-38.6 GHz)

59. The 37 GHz band presents a number of opportunities because, other than a limited number of existing Federal uses that need protection, the band is a greenfield—there are no existing non-federal operations, terrestrial or mobile. In addition, it is adjacent to the 39 GHz band, which presents an opportunity to create a larger, contiguous 37/39 GHz band, subject to similar technical and operational rules. Also, the Federal fixed and mobile service allocations are lightly used. The approach the Commission adopted takes full advantage of these opportunities.

60. Specifically, the Commission can meet the twin goals of expanding commercial access in this band while facilitating continued and expanded Federal use. Because there are both Federal and non-Federal fixed and mobile rights and there are minimal incumbency issues (or an installed base of equipment), the approach the Commission adopted in this band can significantly further the regulatory, policy, and technical approaches to Federal and non-Federal sharing. As discussed in greater detail below, the Commission adopted a band plan that allows for continuity of commercial operations between the 37 and 39 GHz bands, the Commission protects a limited number of Federal military sites across the full 37 GHz band, and the Commission identifies 600 megahertz of spectrum that will be available for coordinated coequal shared access between Federal and non-Federal users. Through this structure, additional proposals in the

Further Notice of Proposed Rulemaking

(

FNPRM

), and the collaborative industry/government process that will take place to further define the sharing process and paradigm, the Commission will take substantial strides forward on Federal and non-Federal sharing in the mmW bands while also making a significant amount of spectrum available for wireless broadband.

1. Suitability for Mobile Use

61. The Commission adopted rules to permit fixed and mobile terrestrial operation in the 37 GHz band to enable as wide a range of services as possible. The Commission finds that there are several important characteristics of the 37 GHz band that make the provision of fixed and mobile terrestrial operations especially promising: It contains 1.6 gigahertz of contiguous spectrum, which could support ultra-high data rates; it is contiguous with the 39 GHz band, which will permit operators to aggregate spectrum across both bands; and it has global co-primary fixed and mobile allocations, which could enable operators to achieve economies of scale. Cisco urges us to proceed cautiously, and Boeing urges the Commission to wait until the studies called for by the WRC-15 are completed, the Commission is persuaded that fixed and mobile terrestrial services can be provided in the 37 GHz band. In this regard, in analyzing the suitability of the 37 GHz band for mobile service, the band is very similar to the 39 GHz band. It has an existing mobile allocation, the propagation characteristics are very similar to the 39 GHz band, and the Commission does not see any inconsistency with other allocations that would make the band unsuitable for mobile service. In terms of timing of the Commission's action, considering the potential benefit for 5G services and the significant lead time that will be necessary to develop the services in this band, the Commission believes that the Commission should move forward and develop fixed and mobile terrestrial services rules for the 37 GHz band. Moreover, as discussed more fully below, the rules the Commission adopted accommodate the needs of National Aeronautics and Space Administration (NASA), National Science Foundation (NSF), the military, and FSS operations in the 37 GHz band as well as Earth Exploration Satellite Service (EESS) (passive) and Space Research Service (SRS) (passive) operations in the adjacent 36-37 GHz band.

2. Licensing the 37 GHz Band

62. The Commission adopted a licensing approach that makes five 200 megahertz blocks available on a geographic area-licensed basis in the 37.6-38.6 GHz portion of the band (upper band segment). The Commission

will make the 37-37.6 GHz block (lower band segment) available for coordinated co-primary sharing between Federal and non-Federal users, where non-Federal rights are granted by rule. The Commission notes that the entire band is subject to Federal co-primary fixed and mobile allocations. The Commission declines to adopt the hybrid authorization licensing scheme because it is unsupported by the record. Specifically, commenters oppose it because they do not believe that the 37 GHz band is appropriate for this particular scheme, though it could be used for other bands. In addition, the satellite industry expresses concern that the hybrid licensing approach does not provide satellite operators with any meaningful certainty that they will be able to expand into the 37 GHz band.

63. Of the three licensing options that the Commission sought comment on in the

NPRM,

the Commission finds that a variation of the Commission's alternative proposal best enables the band to be used for new commercial uses while simultaneously allowing fixed and mobile Federal use to expand. Although there is support in the record to license the entire 37 GHz band by geographic area, the Commission finds that it is in the public interest to license a portion of this band on a non-exclusive shared basis, and to license the remainder of the band by geographic area to give potential licensees additional opportunity to access large blocks of spectrum or to use 37 GHz spectrum in combination with, and similarly to, 39 GHz spectrum. Allowing part of the band to be made available on a non-exclusive, shared basis will promote access to spectrum by a wide variety of entities, support innovative uses of the band, and help ensure that spectrum is widely utilized. Adopting geographic area licensing for the other portion of the band will expeditiously make spectrum available and allow common development of the 37 GHz and 39 GHz bands. Furthermore, users in the shared portion of the band will benefit from efforts by equipment manufacturers and licensees to develop equipment for the portion of the band licensed on a geographic area basis. Thus, the Commission finds that adopting the alternative proposal, as modified below, should promote investment and deployment in both bands. As explained below, the Commission agrees that there are benefits to adopting the same geographic area licensing framework for the 37 GHz and 39 GHz spectrum bands. Also, the Commission finds that adopting the alternative proposal, in addition to other decisions made by the Commission, provides satellite operators the certainty they need to be able to expand their operations into the 37 GHz band in the future.

64. The Commission adopted a modified version of the alternative proposal as follows: The Commission will create a band plan with a 600 megahertz shared block in 37-37.6 GHz and a geographically-licensed portion in 37.6-38.6 GHz. The lower band segment will be fully available for use by both Federal and non-Federal users on a coordinated co-equal basis. Non-Federal users, which the Commission will identify as Shared Access License (SAL), will be authorized by rule. Federal and non-Federal users will access the band through a coordination mechanism, including exploration of potential dynamic sharing through technology in the lower 600 megahertz, which the Commission will more fully develop through the

FNPRM

and through government/industry collaboration. The Commission envisions this segment serving as a proving ground for Federal and non-Federal sharing in the mmW bands, as a way to facilitate expanded Federal use in the band, an opportunity to facilitate lower-cost access to mmW bands, and a means for all providers to gain additional capacity where and when it is needed.

65. As described below, the Commission adopted the same technical rules for the shared band segment as the Commission does for the rest of the 37 GHz band. These technical rules are also consistent with the 39 GHz band. The Commission also adopted an operability requirement that will ensure equipment developed for the 37 and 39 GHz bands is able to operate across the entire 37-40 GHz band. This will help drive scale in the development and access to the equipment, and allow users in the shared portion of the band, including Federal users, to benefit. In order to ensure a sharing environment in 37-37.6 GHz that is predictable, manageable, and efficient, the Commission strongly encourages Federal users to comply with the same technical rules, and will work with National Telecommunications and Information Administration (NTIA) to explore establishment of guidance in its regulations.

66. Following the adoption of this

Report and Order,

the WTB and OET will, in collaboration with NTIA and Federal stakeholders, work with industry stakeholders and other interested parties to further define the sharing framework. The Commission will hold one or more public meetings to examine the state of innovative sharing techniques and technologies and to have an open dialogue about how sharing can best be implemented and achieved in the 37-37.6 GHz band. The Commission strongly encourages both industry and Federal stakeholders to use new and existing experimental testbeds to develop sharing approaches and technologies. Based on stakeholder feedback, the WTB and OET may, jointly with NTIA, issue a public notice seeking comment on a refined and detailed 37 GHz sharing framework. In response to the record developed, the Commission, jointly with NTIA, will establish the 37 GHz sharing mechanism. The Commission believes this inclusive and collaborative process ensures that all parties' needs are met and that an effective and robust sharing mechanism will be developed.

67. In the upper band segment (37.6-38.6 GHz), the Commission will use geographic area licensing with PEAs as the licensing unit, which is consistent with the licenses in the 39 GHz band. In this band, there will be Federal co-primary use coordination zones around 14 military sites where the military will have the right to operate fixed and mobile operations, and the three SRS sites as described below. Non-Federal users will be able to access these locations through a coordination mechanism that will be developed and established by WTB and OET in conjunction with NTIA and announced via Public Notice. The Commission also recognizes that there are existing Federal and non-Federal fixed and mobile allocations in the upper band segment, and in the

FNPRM,

the Commission seeks comment on developing additional criteria under which Federal users can obtain access to the upper band segment.

68. The Commission believes licensing the 37 GHz band in this manner has many benefits. In the lower band segment, the Commission is creating an innovative shared space that can be used by a wide variety of Federal and non-Federal users. SALs will be widely available to provide easy access to spectrum, including for new innovative uses and for targeted access where and when providers need additional capacity. It will help further efforts to facilitate sharing between Federal and non-Federal users, and will give Federal users and consumers an opportunity to take advantage of speed-to-market and lower cost of broadly deployed commercial technologies, and provide Federal users opportunities for current use and future growth. In the upper band segment, the Commission notes that the 37 GHz band and the 39

GHz band will be licensed under the same framework, with identical technical and licensing rules. They will both be licensed by PEAs, which will allow licensees in the 37 GHz and 39 GHz bands to aggregate blocks of spectrum or to pair blocks of spectrum.

69. Below, the Commission discusses in further detail some of the decisions the Commission has made concerning the 37 GHz band. In the

FNPRM,

the Commission seeks comment on refining the sharing framework the Commission adopted.

3. License Area Size

70. The Commission is presented with a unique opportunity to adopt a licensing scheme that will apply to 2,400 megahertz of contiguous spectrum, the upper segment from 37.6-38.6 GHz together with the 38.6-40 GHz band. In the shared band segment, the Commission will authorize fixed and mobile users on a site-based coordinated basis. The Commission believes this approach will allow users to access spectrum where and when it is needed, which will help maximize spectrum by providing opportunities for each user to target just the areas it needs. The Commission is licensing the 39 GHz band by PEA. The Commission's reasons for adopting PEAs as the geographic area for the 39 GHz band apply here as well. Specifically, as the Commission noted with respect to the 39 GHz band, after reviewing the record, the Commission now believes that PEAs strike the appropriate balance between facilitating access to spectrum by both large and small providers and simplifying frequency coordination while incentivizing investment in, and rapid deployment of, new technologies. Thus, the Commission adopts the same geographic license structure for both the upper band segment of the 37 GHz band and the 39 GHz band. This decision will give licensees the flexibility that they need and will encourage investment in a wide variety of services and technologies.

4. Band Plan for Upper Band Segment

71. The Commission will divide the upper band segment into five blocks of 200 megahertz each for non-Federal users. As explained in this

Report and Order,

the Commission is attempting to create a consistent and coherent licensing framework that can be applied throughout the mmW bands, with modifications based on the characteristics of a particular band. The Commission's decision to choose 200 megahertz channels rather than 533 megahertz channels also stems, in part, from the Commission's previous decision to create two licensing segments for the 37 GHz band: A 600 megahertz lower band segment licensed by rule, and a 1,000 megahertz upper segment, which will be licensed geographically by PEA. Adopting 200 megahertz channel sizes for the upper band segment is consistent with the 200 megahertz channels the Commission adopted for the 39 GHz band. Because the Commission licenses the upper band segment of the 37 GHz band and the 39 GHz band by PEA, licensees will have the flexibility to pair their 37 GHz license with a 39 GHz license.

72. In addition, the provision of fixed and mobile terrestrial operations at this frequency will depend upon large blocks of spectrum and a single 200 megahertz block provides a sufficient amount of spectrum for the provision of high-capacity wireless broadband. Those licensees needing more spectrum than a 200 megahertz channel can combine channels to create contiguous blocks of 200 megahertz channels, either within the 37 GHz band or by combining 37 GHz spectrum with 39 GHz spectrum. Licensees also have the option of acquiring 425 megahertz channels in the 28 GHz band.

D. 64-71 GHz Band

73. The Commission is making available the 64-71 GHz frequency band for use by unlicensed devices pursuant to the same technical standards as in the 57-64 GHz frequency band under § 15.255 of the Commission's rules, with slight modifications. As the Commission has consistently stated, it is optimal to include a balance of licensed rights and opportunities to operate on an unlicensed basis in order to meet the country's wireless broadband needs. The Commission's action here creates a 14-gigahertz segment of contiguous spectrum in these frequency bands to encourage the development of new and innovative unlicensed applications, and promote next-generation high-speed wireless links with higher connectivity and throughput, while alleviating spectrum congestion from carrier networks by enabling mobile data off-loading through Wi-Fi and other unlicensed connections.

74. The Commission is adopting rules to allow for unlicensed operations in the 64-71 GHz band, subject to the technical standards in § 15.255, thus creating a contiguous spectrum segment with the 57-64 GHz band. The Commission observes that unlicensed WiGig devices using the 57-64 GHz band are just beginning to be marketed and these products are standardized pursuant to an internationally harmonized channelization scheme, which should promote their growth and usage. Making available additional spectrum contiguous to the existing 57-64 GHz band may enable higher throughputs and enhanced use of present spectrum, as well as to permit an increase in the number of simultaneous high-bandwidth users. The Commission agrees with Intel that a lesser amount of spectrum would limit the growth potential of 60 GHz applications. The Commission also agrees with the WISPA that “because ITU may study a band is an insufficient reason for the Commission to delay making a valuable spectrum resource available for unlicensed use.” The Commission acknowledges that eventual harmonization with international requirements will benefit consumers by promoting a global marketplace and enhancing the international competitiveness of U.S. manufacturers. However, notwithstanding a desire for harmonization with international standards, the Commission determines to make these frequencies available for unlicensed use based on the Commission's analysis of U.S.-specific factors. Here, the Commission determines that the Commission should not wait for the outcome of the ITU study of this band, contrary to what T-Mobile advocates, because that could take years, leaving 5 gigahertz of spectrum to lie fallow in the meantime, when unlicensed applications are ready in the very near future to make use of this spectrum, given current planned deployments of WiGig products in the adjacent 57-64 GHz band.

5

In addition, note that spectrum characteristics vary at different frequencies, due to different propagation losses and other atmospheric and sharing conditions, thus a strict linear comparison per frequency unit of the Commission amounts in different frequency bands as “gigahertz parity” (

e.g.,

3.85 gigahertz of spectrum in lower bands vs. 14 gigahertz of spectrum in upper bands) is not a valid comparison. Based on the above, the Commission is permitting use of the 57-71 GHz band by unlicensed devices pursuant to the technical rules in § 15.255.

5

The Commission also notes that the “study” of a frequency band by the ITU does not mean necessarily that the band will be automatically designated for licensed use, because licensing of spectrum is deferred to “the sovereign right of each State to regulate its telecommunication”.

See

International Telecommunication Union,

Constitution and Convention

(

http://www.itu.int/en/history/Pages/ConstitutionAndConvention.aspx).

75. With respect to the additional requests from Microsoft

et al

to extend

the band up to 72.5 GHz, and to allow indoor use of the 72.5-76 GHz band by unlicensed devices, the Commission does not find that additional spectrum above and beyond the very large 14-gigahertz of contiguous spectrum in the 57-71 GHz band that the Commission is providing for unlicensed operations herein is warranted at this time, due to the presence of the numerous existing fixed links in the 71-76/81-86 GHz bands. When the Commission adopted rules for licensed operations in these bands in 2003, it did not permit unlicensed sharing of these bands because “an underlay of unlicensed devices in the bands could detrimentally affect the quality and buildout of service.” In addition, the fixed point-to-point equipment that has been developed for deployment in the 71-76 GHz and 81-86 GHz bands were not engineered to operate in a part 15 unlicensed environment. Subsequently, in 2014, the Commission adopted part 15 rules to permit a special type of unlicensed device, level probing radars (LPR), to share the 75-85 GHz band; these devices, however, must be operated in a vertically downward position at fixed locations with severe limitations on antenna beamwidth. In contrast, the 5G unlicensed transmitters envisioned here would be both mobile and fixed and would not have such limitations. The Commission finds that parties requesting to extend the band beyond 71 GHz for unlicensed operation did not submit any persuasive technical arguments to prove that unlicensed sharing with the 71-76/81-86 GHz licensed services is feasible at this time. Accordingly, the Commission denies these requests at this time.

E. Federal Sharing Issues

76. Many bands above 24 GHz have Federal allocations on a primary basis. As the Commission continues to increase flexibility in the non-Federal use of these bands, the Commission must consider appropriate mechanisms and tools to share these bands that recognize the co-primary rights in these bands. In this

Report and Order,

the Commission facilitates sharing in the 39.5-40 GHz band and 37-38.6 GHz band, including through new sharing schemes that promote dynamic and flexible access in the 37-37.6 GHz band. In order to continue to evolve spectrum access and sharing regimes that meet both Federal and non-Federal needs, it will be imperative for all stakeholders, including wireless and satellite industries, to engage proactively to help shape these solutions.

1. 39.5-40 GHz

77. The 39.5-40 GHz portion of the 39 GHz band is allocated to the Federal FSS and MSS a primary basis, limited to space-to-Earth (downlink) operations. However, Federal MSS earth stations in this band may not claim protection from non-Federal fixed and mobile stations in this band.

78. In the

NPRM,

the Commission explained that when the

39 GHz Report and Order

was adopted, Federal use of the band was limited to military systems in the 39.5-40 GHz band segment, that the Department of Defense (DoD) stated that it had plans to implement satellite downlinks at 39.5-40 GHz in the future, and that the NASA identified 39.5-40 GHz as a possible space research band to accommodate future Earth-to-space wideband data requirements. The

39 GHz Report and Order

expressed optimism that such plans would not affect the continued development of the 39 GHz band for non-Federal use, but the Commission said that it intended to address those interference issues in a future, separate proceeding that would focus on developing inter-licensee and inter-service standards and criteria. At present, the U.S. Table of Frequency Allocations provides that Federal satellite services in the 39.5-40 GHz band are limited to military systems.

79. Although only four commenters responded to the Commission's questions on these issues, all four agreed that it is possible for Federal and non-Federal operations to share the 39 GHz band. They also agreed that the Commission should adopt coordination zones to mitigate interference between Federal and non-Federal operations. For instance, AT&T argues that the Commission should adopt coordination zones rather than novel spectrum sharing techniques because coordination zones balance the twin goals of efficient spectrum utilization and the prevention of harmful interference to incumbents. Intel argues that portions of the band that are strictly Federal use could be separated from those for commercial use. Cisco states that while coordination will have to be done by the Commission staff and their counterparts at NTIA, co-existence is achievable. Finally, Nokia argues that the Commission should continue work with NTIA and other Federal agencies to minimize Federal coordination zones, which would maximize the value of the spectrum.

80. In 2016, NTIA sent a letter to the Commission addressing issues raised in the

NPRM,

regarding, in part, military operations in the 39.5-40 GHz portion of the 38.6-40 GHz band. NTIA explained that the 39.5-40 GHz band is allocated to military MSS and FSS earth stations. Federal MSS earth stations cannot claim protection from non-Federal fixed and mobile stations as specified in footnote US382 of the table of frequency allocations. However, Federal earth stations in the MSS are not required to protect non-Federal fixed and mobile services. NTIA stated that given the existing regulatory constraints in the 39.5-40 GHz band, the

NPRM's

proposed non-Federal fixed and mobile operations will not impact Federal satellite operations in the 39.5-40 GHz band.

81. The Commission concludes that it is possible for Federal operations to share the band with non-Federal fixed and mobile terrestrial operations because the protections offered by footnote US382 are sufficient to protect both Federal and non-Federal operations in this band. Thus, no changes to the Commission's rules are necessary.

2. 37-38.6 GHz

82. The Commission concludes that non-Federal fixed and mobile operations can share the 37-38 GHz band with SRS downlink operations under certain conditions. First, as a result of discussions between NTIA and the Commission, NTIA indicated that it would request protection for only three SRS earth station sites: Goldstone, California; White Sands, New Mexico; and Socorro, New Mexico. Second, to address NTIA's recommendations, the Commission will establish coordination zones for these three sites by adding a footnote to the US Table of Allocations listing the locations to be protected and their respective coordination zones. Third, with respect to operations, at Green Bank, West Virginia, NTIA indicated that since Green Bank, West Virginia is located in an existing quiet zone, any new or modified stations including in the fixed and mobile services, within the zone are required by § 1.924(a) of the Commission's rules to notify the National Radio Astronomy Observatory (NRAO), and thus Green Bank would not be included in the footnote. Therefore, the Commission adopted footnote US151, which requires that, in the 37-38 GHz band, fixed and mobile stations not cause harmful interference to Federal SRS earth station at three sites and that non-Federal applications for such use be coordinated with NTIA in accordance with new § 30.205 of the Commission's rules.

83. The Commission concludes that non-Federal fixed and mobile operations can share the 37-38.6 GHz band with DoD operations. With regard

to Federal co-primary access to the 37 GHz band, the Commission will adopt rules that entail the coordination zones recommended by NTIA for the 14 military sites, and the ability for Federal agencies to add future sites on a coordinated basis. The Commission will make the 37-37.6 GHz block (lower band segment) available for coordinated co-primary sharing between Federal and non-Federal users, where non-Federal rights are granted by rule. This framework will facilitate access by DoD and other Federal users. In the

FNPRM,

the Commission seeks comment on defining the sharing framework in greater detail. In the upper band segment, the Commission seeks comment on facilitating Federal coordination with licensees for access to licensed areas.

84. The Commission also does not believe that it is necessary to take action to protect the weather satellites, which according to Committee on Radio Frequency (CORF), will operate above 37 GHz until at least 2020 because it will take a significant amount of time for mmW devices to be developed and deployed in the 37 GHz band. Therefore, the Commission expects that relatively few mmW devices will be operating in the band while the weather satellites are still in use.

85. Under the plan the Commission adopted, the Commission enables the deployment of new commercial services while protecting Federal agency missions. This balances the needs of commercial operators with the needs of Federal agencies for protection and future growth by creating an environment where Federal and non-Federal users can share the band on a co-primary basis and providing enough certainty to future commercial users to stimulate investment in the spectrum.

3. Passive Services Below 37 GHz

86. The Commission believes that the out-of-band emission (OOBE) limit that the Commission adopts in this

Report and Order

will provide adequate protection to the passive sensors in the adjacent 36-37 GHz band. The OOBE limit will keep emissions from an UMFUS device into the 36-37 GHz band well below the −10 dBW level specified by footnote US550A. The Commission notes that the −10dBW power limit was adopted to protect passive sensors in the 36-37 GHz band in accordance with ITU Resolution 752 (WRC-07). Because this limit was adopted by the ITU to protect passive sensors from harmful interference from fixed and mobile transmitters in the 36-37 GHz band, the Commission concludes that it will provide appropriate protection to the passive sensors from transmitters in the adjacent band.

87. The Commission will not adopt a guard band at 37 GHz to protect the EESS and SRS in the 36-37 GHz band as suggested by CORF and IEEE Frequency Allocations in Remote Sensing (FARS). Neither CORF nor IEEE FARS make a specific recommendation on the necessary size of the guard band, although CORF requests a guard band of at least 100 MHz. Because a guard band will reduce the spectrum available for mmW devices, the Commission does not want to take this step without compelling evidence that it is necessary. No one has provided information on the specific benefits and necessity of adopting a guard band of at least 100 MHz to protect EESS and SRS. Given the lack of data supporting adoption of a guard band, the Commission believes that the out-of-band emission limit that the Commission has adopted will provide adequate protection to the EESS and SRS without the need for a guard band at 37 GHz.

88. With regard to protecting radio astronomy at the three locations specified by CORF, the Commission is not convinced that additional measures are needed to protect radio astronomy. The radio astronomy observations that CORF is concerned about will be conducted in the 36.43-36.5 GHz band, which is 500 megahertz from the 37 GHz band, so the emission limits that the Commission is adopting for mmW devices should sufficiently protect radio astronomy.

F. Licensing, Operating, and Regulatory Issues

1. Creation of New Rule Service and Part

89. The Commission adopted in its proposal to create a new service, the UMFUS under a new part 30 of the Commission's rules to include the 28 GHz, 39 GHz, and 37 GHz bands. Licensing the millimeter wave bands under part 27, as CTIA suggests, would produce a less flexible regime than the Commission intend while the rules the Commission adopted in part 30 will provide much of the flexibility present in the part 27 rules. Part 27 would be a poor fit for the point-to-point services currently operating in the 28 and 39 GHz bands, and for the backhaul uses other licensees may wish to include in their services. Part 96, which Google suggests, is designed for a specific regime of intensive, three-tier sharing. As the Commission is not adopting this type of sharing regime for these bands at this time, using this rule part would be inappropriate. The Commission concludes that establishing a new rule part will allow us to have one unified set of rules governing the various types of operations the Commission contemplates licensees will offer, which will provide more clarity to licensees and more accurately reflect the nature of these licenses.

2. Regulatory Status

90. The Commission adopted in its proposal from the

NPRM

to implement a flexible regulatory framework for the UMFUS. As the Commission proposed, UMFUS licensees in the 28, 39, and 37 GHz bands will be able to choose the regulatory status (common carrier, non-common carrier, or both) that best fits their business models and the services they seek to provide. This approach will maintain an open and flexible framework that will allow the business judgments of individual applicants and licensees in these bands to shape the nature of the services offered pursuant to their licenses.

91. The Commission also adopts its proposal to rely on the applicant's designation of its common carrier or non-common carrier status, to enable us to fulfill our obligations to enforce the common carrier requirements contained in statutes and the Commission's regulations. An election to provide service on a common carrier basis requires that the elements of common carriage be present, and the applicant is in the best position to ascertain the presence of these elements. This approach is consistent with the Commission's past decisions regarding the classification of mobile services.

3. Foreign Ownership Reporting

92. Certain foreign ownership and citizenship requirements are imposed by subsections (a) and (b) of Section 310 of the Act, as modified by the 1996 Act. These provisions prohibit the issuance of licenses to certain applicants. For current LMDS, 37 GHz, and 39 GHz licensees, these statutory provisions are adopted in part 101 of the Commission's rules at § 101.7 of the Commission's rules. Specifically, § 101.7(a) prohibits the granting of any license to be held by a foreign government or its representative. Section 101.7(b) prohibits the granting of any common carrier license to be held by individuals that fail any of the four citizenship requirements listed.

93. In the

NPRM,

the Commission tentatively concluded that the Section 310 requirements would apply to any applicants in the UMFUS. Based on this interpretation of the requirements of Section 310, the Commission proposed

in the

NPRM

to include a provision in the new part 30 that would mirror the current § 101.7 of the Commission's rules. In addition, the Commission proposed that all applicants for part 30 licenses be required to report the same foreign ownership information, regardless of the specific type of service they sought to provide. An applicant requesting authorization for broadcast, common carrier, aeronautical en route, or aeronautical Fixed Services, alone or in combination with other services, would be prohibited from holding a license if it met any of the criteria in Section 310(b). If the applicant requested authorization for services other than for broadcast, common carrier, aeronautical en route, or aeronautical Fixed Services, it could hold a license if it met the single alien ownership requirement in Section 310(a), regardless of whether it would otherwise be disqualified for a common carrier authorization. No commenters addressed the issue of foreign ownership reporting requirements, or opposed the Commission's proposals.

94. The Commission adopted in its proposals from the

NPRM

to require the same foreign ownership reporting from all applicants for part 30 licenses, regardless of the specific type of service they seek to provide, and to implement this requirement by including a provision in part 30 that mirrors § 101.7 of the Commission's current rules. This approach will properly implement the restrictions contained in Sections 310(a) and (b) of the Act, and is consistent with the Commission's treatment of flexible use services regulated under part 27 of the Commission's rules.

4. Eligibility

95. In the

NPRM,

the Commission adopted an open eligibility standard for the UMFUS. The Commission noted that an open eligibility approach would not affect citizenship, character, or other generally applicable qualifications that may apply under the Commission's rules. Cisco and CTA support this proposal, citing uncertainty as to how the UMFUS bands will develop, and the need to allow innovation from all parties. No commenters opposed the Commission's proposal.

96. The Commission adopted its proposal to implement an open eligibility standard for the UMFUS. This approach is in keeping with the flexibility of the other licensing rules the Commission adopted in this

Report and Order,

as well as the Commission's treatment of other flexible use services, and will encourage innovation and efficient use of spectrum in these bands.

5. License Term

97. The Commission adopted its proposal to establish a 10-year license term for all UMFUS licenses, and the Commission's proposal to award a renewal expectancy for subsequent license terms if the licensee continues to provide at least the initially-required level of service. While the Commission has pursued shorter license terms and non-renewable licenses in other bands, and continue to believe there are circumstances where those structures are appropriate, here the Commission adopted a 10 year license term that can be renewed. The Commission believes a 10-year license term will give licensees sufficient certainty to invest in their systems, particularly as the new technology is still nascent and will require time to fully develop. If the standards for mobile service in the mmW bands are established by, at the latest, 2020, new licensees would still have the majority of the license term after that point to plan and to deploy service. Neither XO nor any other commenter has presented facts that would justify a longer license term. A 10-year license term is also consistent with existing license terms in a wide variety of services.

98. The Commission also adopted in its proposal to award a renewal expectancy for subsequent license terms if the licensee continues to provide at least the initially-required level of service through the end of any subsequent license terms. That treatment is consistent with the Commission's treatment of many other licensed services and will provide incentives for licensees to continue to provide service.

6. Mobile Spectrum Holdings Policies

99. The Commission found it essential to establish clear and transparent mobile spectrum holdings policies that will promote competition in the future, including competition in the development of 5G services, as well as promote the efficient use of mmW spectrum, and avoid an excessive concentration of licenses. As mentioned in the

NPRM,

demand for mobile service that mmW spectrum is expected to enhance and improve has been increasing, and the Commission's predictive judgment is that interest in the spectrum will be high. Thus, the Commission finds that it would provide regulatory certainty, flexibility in planning, and expedited deployment if the Commission supplies guidance on application of these policies at this stage when the Commission authorizes mobile service in these bands and adopt related rules governing the terms of service, rather than at some later stage. In the Commission's consideration of whether to adopt a mobile spectrum holdings limit for the licensing spectrum through competitive bidding and, if so, what type of limit to apply, the Commission's evaluation includes, among other things, the promotion of competition in relevant markets, the acceleration of private sector deployment of advanced services, and generally managing the spectrum in the public interest. The Commission evaluates how a limit would likely affect the quality of communications services or result in the provision of new or additional services to consumers, as well as any other statutory goals and directives applicable to a particular spectrum band being licensed by competitive bidding.

100. As the Commission noted in the Mobile Spectrum Holdings Report and Order, the mobile wireless marketplace is highly concentrated, and with continually increasing consumer demand for mobile broadband, “in order for there to be robust competition, multiple competing service providers must have access to or hold sufficient spectrum to be able to enter a marketplace or expand output rapidly in response to any price increase or reduction in quality, or other change that would harm consumer welfare.” In addition, the Commission has found that holding a mix of spectrum bands is advantageous to providers and that consumers' benefit when multiple providers have access to a mix of spectrum bands. The Commission concludes here that with, the rapid rate of technological advance, mmW spectrum is likely to be a critical component in the development of 5G, and the Commission must take steps to ensure its optimal use to the benefit of all American consumers. For these reasons, the Commission adopted an

ex ante

spectrum aggregation limit of 1250 megahertz that will apply to licensees acquiring spectrum in the 28 GHz, 37 GHz, and/or 39 GHz bands, through competitive bidding in auction. The Commission adopted for these same reasons a spectrum threshold of 1250 megahertz for proposed secondary market transactions in these three bands.

6

6

The Commission notes that this 1250 megahertz spectrum threshold helps to identify those markets that provide particular reason for further competitive analysis, but that the Commission's consideration of potential competitive harms would not be limited solely to those markets identified by the threshold.

101. Historically, mmW frequencies have been considered unsuitable for

mobile applications because of propagation losses at such high frequencies and the inability of mmW signals to propagate around obstacles. As noted in the

NPRM,

bands above 24 GHz were not typically considered for stand-alone mobile services but rather as supplementary channels to deliver ultra-high speed data in specific places. Due to technological advances, the mmW bands could potentially be used for mobile broadband and are likely to serve as an important supplement to lower-band spectrum. Specifically, the mmW bands potentially will be used for supporting very high capacity networks in areas that require such capacity, as well as for machine-to-machine communications, and in the development of various Internet of Things (IoT) applications including wearables, fitness and healthcare devices, autonomous driving cars, and home and office automation.

102. The Commission finds that grouping the 28 GHz, 37 GHz, and 39 GHz bands together for purposes of applying these spectrum holdings policies, either at auction or in the secondary market, is appropriate in view of the interchangeability of the spectrum in these bands,

i.e.,

similar technical characteristics and potential uses of this spectrum that are unique to the mmW bands. While certain differences across the mmW bands exist, the Commission finds these technical differences are not sufficient to significantly affect how these spectrum bands might be used and to require separate band-specific limits. This approach mirrors the Commission's existing Commercial Mobile Radio Service (CMRS) spectrum screen, which applies across a number of bands that do not have the same technical characteristics and not on a band-specific basis. Even assuming that more 37 GHz to 39 GHz spectrum would be needed to provide the same performance, there will be 2400 megahertz of 37 GHz and 39 GHz spectrum available for service providers' use, almost three times as much as in the 28 GHz band. And, in any event, all the particular facts of any proposed secondary market transaction will be carefully evaluated on a case-by-case basis to ensure that the public interest is served. For these reasons, the Commission does not find that adopting a band-specific spectrum aggregation limit is necessary, and the Commission finds that the spectrum holdings policies adopted in the

Report and Order

will best support its objective of ensuring that multiple providers have access to this high band spectrum that is likely to be critically important in the development of 5G services moving forward. The Commission anticipates that applying these spectrum holdings policies to spectrum with similar technical characteristics that may become available in the future is also likely to be appropriate.

103.

Competitive Bidding.

The Commission concludes that an approach based on limiting an entity's holding to approximately one-third of the relevant spectrum will help to ensure that multiple providers are able to access a sufficient amount of spectrum to the benefit of consumers. In the Commission's consideration of the appropriate limit to set at auction, the Commission notes that as a result of the various license sizes in these bands, setting a limit at approximately one-third would as a practical matter result in a limit notably lower than a one-third limit.

7

Given the varied license sizes of spectrum blocks in each band, as well as the total amount of mmW spectrum available, the Commission finds that permitting licensees to acquire somewhat more than one-third of the spectrum available in these bands at auction is appropriate. The Commission therefore will not permit licensees to acquire more than 1250 megahertz across the three bands at auction.

8

The Commission finds that the spectrum aggregation limit the Commission adopted will help ensure that multiple providers will be able to access a sufficient amount of mmW spectrum to facilitate the deployment of new services and innovation that will benefit consumers, while guarding against the excessive concentration of licenses. The Commission asks for comment below on how this limit might be implemented.

7

The total available amount of the mmW spectrum in the 28 GHz, 37 GHz, and 39 GHz bands today is equal to 3250 megahertz, approximately one-third of which is 1100 megahertz. Given the sizes of the spectrum blocks in these bands, however, no entity could hold more than 1050 megahertz, and an entity interested in holding only licenses in the 37 and 39 MHz bands could hold no more than 1000 megahertz. More specifically, the latter entity would be able to hold no more than five licenses of 200 megahertz each across the 37 GHz and 39 GHz bands for a total of 1000 megahertz. An entity interested in holding some 28 GHz spectrum could hold either two 28 GHz licenses and one license of 200 megahertz for a total of 1050 megahertz, or one 425 megahertz license in the 28 GHz band and three licenses of 200 megahertz for a total of 1025 megahertz.

8

The Commission recognizes that there are incumbent licensees in the 28 GHz and 39 GHz bands that currently hold varying amounts of spectrum. These licensees would be able to bid in the auction to an amount that would be no more than 1250 megahertz in total, taking existing spectrum holdings into account. Service providers' existing spectrum holdings across the 28 GHz, 37 GHz, and 39 GHz bands therefore will be counted for purposes of the Commission's application of the 1250 megahertz limit.

104.

Secondary Market.

The Commission adopted its proposal to exclude mmW spectrum from the current spectrum screen that includes those spectrum bands that the Commission has determined are suitable and available for the provision of mobile telephony/broadband services. As the Commission has previously explained, spectrum is considered “available” if it is “fairly certain that it will meet the criteria for suitable spectrum in the near term, an assessment that can be made at the time the spectrum is licensed or at later times after changes in technology or regulation that affect the consideration.” The Commission does not find that the mmW bands are suitable and available for the provision of mobile telephony/broadband services in the same manner as other spectrum bands that are currently included in the Commission's spectrum screen as applied to secondary market transactions. The Commission makes this finding based on the unique characteristics of these bands as described above. Accordingly, the Commission does not include the mmW bands in the spectrum screen.

105. However, the Commission recognizes that this frontier spectrum is likely to become increasingly valuable to the advent of 5G services. In its competitive analysis of wireless transactions, the spectrum screen applicable to lower-band spectrum has been one tool used to help identify particular markets for further competitive analysis; it is applied on a county-by-county basis and identifies local markets where an entity would hold approximately one-third or more of the total spectrum suitable and available for the provision of mobile telephony/broadband services, post-transaction. Similarly, for proposed secondary market transactions that would result in an entity holding 1250 megahertz or more of the total spectrum in the 28 GHz, 37 GHz, and 39 GHz bands, the Commission will apply its threshold on a county-by-county basis, and subject such transactions to the Commission's case-by-case review in order to ensure that the public interest is served. As noted above, while this 1250 megahertz spectrum threshold helps to identify those markets that provide particular reason for further competitive analysis, the Commission's consideration of potential competitive harms will not be limited solely to those markets identified by the threshold. Establishing this spectrum aggregation threshold in the secondary market context recognizes the specific characteristics of the

spectrum while helping to ensure that multiple entities have an opportunity to obtain mmW spectrum for deployment of innovative mobile technologies.

106.

Summary.

The Commission finds, on balance, that the potential public interest benefits of adopting a 1250 megahertz limit for auctions of this spectrum, and a 1250 megahertz threshold for secondary market transactions for these unique spectrum bands outweigh any potential public interest harms. Further, adopting these spectrum holdings policies is consistent with the Commission's previous determination that an “approximately one-third threshold for total spectrum that the Commission uses to identify those holdings in local markets that may raise particular competitive concerns” is an effective analytical tool in the secondary market context. The Commission anticipates that the potential costs of adopting such spectrum holdings policies will be low. The Commission disagrees with commenters who argue that it is premature for the Commission to establish any spectrum aggregation policies in these bands and that such policies will undermine the potential use of this spectrum. On the contrary, the Commission finds that establishing such policies that will apply as mmW spectrum is introduced into the marketplace will help promote competition from the outset. The Commission has explained that mmW spectrum holds the potential for a range of uses from supporting high capacity networks to use with various IoT applications. While the Commission cannot be certain at this time how this spectrum will be used, the Commission finds that its anticipated value to the future of 5G makes it critical that multiple providers have access to it. The spectrum holdings policies the Commission adopted will guard against consolidation of this spectrum by one or two providers and will encourage the development of innovative services to the benefit of the American consumer.

7. Performance Requirements

a. Performance Metrics and Milestones

107. The Commission declines to adopt a unified performance metric at this time. Based on the criticisms and alternative suggestions in the record, the Commission concludes that such an approach would not provide the flexibility necessary to support innovative uses of the spectrum, as it would favor one deployment approach over another. A unified approach might also deter investment and deployment in these bands. The Commission also declines to adopt a “substantial service” standard of performance for the UMFUS. The Commission determines that such a standard, with no firm minimum requirements, would not adequately safeguard effective use of spectrum in these bands. The Commission also declines to adopt a usage-based metric for performance requirements because it is not clear that there is a workable method of measuring or enforcing such a requirement. Instead, the Commission adopted a series of metrics, tailored for each type of service a licensee might choose to offer. Licensees may fulfill their performance requirements by showing that they meet their choice of any one of the below standards, or a combination of several. This framework is intended to provide enough certainty to licensees to encourage investment and deployment in these bands as soon as possible, while retaining enough flexibility to accommodate both traditional services and new or innovative services or deployment patterns. Its increased level of firmness over a substantial service metric is also consistent with the Commission's recent approach in other services.

108. The Commission notes that this list of metrics is not intended to be exhaustive. The Commission recognizes that the metrics the Commission adopted does not cover all possible types of service that licensees may seek to offer in these bands, and that new, innovative services may be developed with different characteristics that the Commission cannot foresee at this time. The Commission therefore seeks further comment in the

FNPRM

on additional metrics that should be applied to these innovative services.

109. The Commission adopted these performance requirements only in relation to the end of the initial license terms in these bands. Because the Commission believes it is taking action with significant lead time before the full development of the technology, the Commission believes an interim benchmark might be difficult to meet and may result in a substantial number of waiver and extension requests. While the Commission does not adopt any ongoing or subsequent performance requirements at this time, the Commission strongly encourages licensees to deploy networks and services in a timely manner consistent with the development of the technology for these bands. The Commission emphasizes, however, that the Renewal and Service Continuity proceeding (WT Docket No. 10-112), which addresses this issue, remains open, and that licensees may be subject to any requirements adopted as part of that proceeding at some later date.

110.

Mobile and point-to-multipoint.

For mobile and point-to-multipoint services in the 28 GHz, 37 GHz (geographic area licenses only), and 39 GHz bands, the Commission adopted a modified version of the Commission's proposal in the

NPRM.

In order to meet the standards for license renewal, a licensee providing mobile service must provide coverage to 40 percent of the population of the license area and must be using the facilities to provide service. This is a lower portion of the population than is the standard for lower frequency bands because this level of coverage strikes the appropriate balance between ensuring sufficient use of the spectrum and allowing licensees flexibility to deploy an emerging technology which may be more suitable for smaller coverage areas. The Commission views the current safe harbor of 20 percent population coverage as inappropriate going forward because the new technologies being developed will dramatically increase the opportunities to use these bands. Since the Commission is not requiring service demonstrations until the end of the license term, the Commission believes licensees will have more than adequate time to meet this benchmark. Similarly, the Commission does not believe CTIA's suggestions of 10 “connections” per 10,000 population, or 50 connections per county, will result in robust build out in these bands. Under CTIA's proposed definition of a “connection,” these 10 connections could represent as little as one subscriber accessing the network 10 times in one month. This is a particularly low benchmark for mobile operations, which is one of the primary target use cases for this new service. The Commission does not believe this standard represents a sufficient level of service to justify renewal.

111. The Commission declines to adopt the measurement method the Commission proposed in the

NPRM

and concludes that requiring a specific methodology is unnecessary. Instead, the Commission will provide licensees with flexibility in terms of how they make their service showings, but Commission staff will continue to review showings to ensure that they accurately reflect coverage.

112.

Fixed.

The Commission does not adopt its proposed method of “keyhole contours” for assigning fixed links a population equivalent. Instead, the Commission adopted a more traditional method of demonstrating fixed service: the number of links per population in the license area. Specifically, the Commission adopted a requirement that

geographic area licensees providing Fixed Service in the 28 GHz, 39 GHz, or 37 GHz bands must construct and operate at least four links in license areas with less than 268,000 population, and at least one link per 67,000 population in license areas with greater population. This standard is similar to the standard the Commission established for fixed point-to-point services in the 2.3 GHz band. While links in mmW bands will presumably be shorter because of the propagation characteristics, the higher frequencies will allow more reuse of spectrum in a given area. These links must be part of a network that is actually providing service, whether to unaffiliated customers or private, internal uses, and all links must be present and operational at the end of the license term. As with the mobile performance milestone, for bands licensed by areas larger than counties the number of links and the size of the population will be calculated over the entire license area, not county by county.

113.

Satellite.

The Commission adopted it proposal from the

NPRM.

A licensee who purchases a 28 GHz UMFUS license may fulfill build-out requirements for the license by deploying an earth station in the license area that is operational and providing service. The Commission notes that a licensee may not fulfill this requirement by leasing a portion of its license area to a satellite operator that builds and operates an earth station within the leased area. In 37 and 39 GHz, because the Commission adopted significantly larger geographic license areas than counties, constructing and operating an earth station will fulfill the performance requirement only for the county in which it is constructed, and not for the entire license area. Satellite operators who develop earth stations under the satellite sharing mechanisms the Commission adopted for the 28 GHz and 39 GHz bands will continue to be subject to the applicable part 25 build-out requirements.

114.

Combination.

Licensees whose deployments contain a mix of services, for example mobile service combined with fixed backhaul may meet the relevant fixed or mobile/point-to-multipoint standard separately. The Commission declines to establish a specific formula for evaluating such buildouts on a combined basis. Instead, the Commission will evaluate such showings on a case-by-case basis, as the Commission has done for LMDS.

b. Failure To Meet Buildout Requirements

115. The Commission adopted a modified version of its proposal, tailored to the different license area sizes the Commission adopted for each band. For all bands, the Commission adopted its proposal to terminate licenses (or portions of licenses, as appropriate) automatically if a licensee fails to meet the applicable performance requirements, which is widely applied in many wireless services. The band-specific approaches to license renewal and termination are explained in more detail below. In the accompanying

FNPRM,

the Commission seeks to further develop the record on use-or-share obligations.

116.

28 GHz.

The 28 GHz band will be licensed by county because partitioning licenses in these bands into license areas smaller than counties would be administratively burdensome without providing any off-setting benefits to licensees or service providers. Accordingly, if a licensee in the 28 GHz band fails to meet the applicable performance requirements at the end of its license term, the license for that county will terminate immediately in its entirety. As the Commission is reissuing the licenses in these band by county rather than by BTA, the Commission declines to implement EchoStar's proposal to continue to evaluate incumbent licensees' performance on a BTA-wide basis.

117.

37 and 39 GHz.

The 39 GHz band, as well as the 37.6-38.6 GHz band, will be licensed by PEAs, rather than counties. In order to balance the need to ensure productive use of spectrum with the need to encourage investment and deployment, the Commission adopted a modified approach to performance requirements in this band.

118. A licensee who meets the applicable performance requirements for the entire PEA, taken as a whole, will be eligible to renew the entire license. A licensee who does not meet the requirements for the entire license area will have two options: (1) automatic termination of the entire license, or (2) partition the license at the county level, and return a portion of the license to the Commission such that the applicable performance requirements are met for the remaining non-forfeited area. For example, a licensee of a PEA containing five counties of 100,000 people each, who deployed mobile service covering 60 percent of the population in each of two counties, and made no deployments in the other three counties, would be covering only 24 percent of the total population of the license area. This would not be enough to meet performance requirements across the entire license. However, the licensee could forfeit the portion of the license covering the three un-deployed counties, and retain and renew the portion of the license covering the remaining two counties. Similarly, a licensee of the same hypothetical PEA who deployed mobile service covering 80 percent of one county, and 30 percent of another, could retain and renew the portion of the license for those two counties because the resulting two-county license area would have coverage of 55 percent of its population, which exceeds the 40 percent requirement.

c. Treatment of Incumbents

119. The Commission declines to adopt its proposal from the

NPRM.

For license terms concluding before 2020, licensees may be unable as a practical matter to meet the new, more rigorous requirements the Commission adopted for these bands at the end of their current license terms because of the nascent state of technology. Moreover, providing for additional time will provide more effective opportunities for licensees to use the spectrum in ways that maximize the flexibility now afforded by the Commission's new rules. For example, the transition toward providing innovative mobile services is likely to require complex business decisions and changes in plans. In short, it is the Commission's intent to encourage deployment of new and innovative services—particularly mobile service—as efficiently and effectively as possible.

120. Thus, the Commission slightly modifies and extends the deadline for meeting the performance requirements pertaining to licensees' current licenses for licenses expiring after the adoption date of the rules in this proceeding. Specifically, current licensees in the 28 GHz and 39 GHz bands who, under the current rules, face a deadline for demonstrating substantial service after the adoption date of this

Report and Order

will not be required to demonstrate substantial service at renewal. Instead, those licensees will be required to fulfill the performance requirements the Commission adopted for their respective licenses by June 1, 2024. This approach will allow current licensees to focus on growing and transitioning their networks in line with new and developing industry standards, which will support earlier and more robust deployment of next-generation services in these bands.

d. Alternatives to Performance Requirements

121. The Commission declines to adopt either of these alternatives for these bands. The Communications Act contemplates that the Commission will take measures “to prevent stockpiling or warehousing of spectrum by licensees.” The Commission believes the foregoing performance requirements are feasible in these bands, and the best method to prevent warehousing in this context. O3b argues that such “consecutive license terms with recurring payments” would simply change the financial calculation underpinning warehousing: while the initial bid would be smaller and discounted less, the lower price of entry could encourage warehousing by reducing the amount initially needed to hold on to the spectrum. In the absence of any discussion of the “option payment” concept, the Commission will not adopt the proposal at this time.

8. Permanent Discontinuance of Operations

122. Under § 1.955(a)(3) of the Commission's rules, an authorization will automatically terminate, without specific Commission action, if service is “permanently discontinued.” In the

NPRM,

the Commission proposed that for UMFUS licensees that identify their regulatory status as common carrier or non-common carrier, “permanently discontinued” should be defined as a period of 180 consecutive days during which the licensee does not provide service to at least one subscriber that is not affiliated with, controlled by, or related to, the provider in the service area of its license (or smaller service area in the case of a partitioned license).

123. The Commission proposed a different approach for licensees that use their licenses for private, internal communications. For these services, the Commission proposes to define “permanent discontinuance” as a period of 180 consecutive days during which the licensee does not operate any facilities under the license. The Commission proposed that licensees not be subject to this requirement until one year after their initial license period ends, to allow them adequate time to construct their networks.

124. The Commission also proposed that when 28 GHz, 37 GHz, or 39 GHz licensees permanently discontinue service, the licensee must notify the Commission of the discontinuance within 10 days, by filing FCC Form 601 and requesting license cancellation. The Commission further proposed that an authorization automatically terminates without specific Commission action if service is permanently discontinued, even if a licensee fails to file the required form. No commenters discuss the permanent discontinuance of service proposals.

125. The Commission adopted its proposals from the

NPRM

related to permanent discontinuance of operations. Specifically, the Commission adopted the two separate proposed definitions of “permanent discontinuance,” for common carrier and non-common carrier service, and for private communications services. The Commission also adopted its proposal to wait to implement this requirement until one year after the initial license period ends. This approach is consistent with the definitions the Commission has adopted for other spectrum bands that are licensed for mobile use, including the H Block, AWS-3, and AWS-4 bands.

126. The Commission also adopted its proposal that a licensee who permanently discontinues service must notify the Commission within 10 days, and the Commission's proposal that such licenses terminate automatically even if a licensee fails to appropriately notify the Commission. This approach to permanent discontinuance is consistent with § 1.955(a)(3) of the Commission's rules. The permanent discontinuance rule is intended to provide operational flexibility while ensuring that spectrum does not lie idle for extended periods, and the rules the Commission adopted support those goals.

9. Secondary Markets Policies

a. Partitioning and Disaggregation

127. The Commission's part 101 rules generally allow for geographic partitioning and spectrum disaggregation in the LMDS and 39 GHz service. Geographic partitioning refers to the assignment of geographic portions of a license to another licensee along geopolitical or other boundaries. Spectrum disaggregation refers to the assignment of discrete amounts of spectrum under the license to another entity. Disaggregation allows for multiple transmitters in the same geographic area operated by different companies on adjacent frequencies in the same band.

128. In 1997, the Commission determined that all LMDS licensees would generally be permitted to disaggregate and partition their licenses. The Commission later adopted specific procedural, administrative, and operational rules to govern the disaggregation and partitioning of LMDS licenses. Similarly, in the same year, the Commission concluded that partitioning and disaggregation would be permitted in the 39 GHz band and adopted partitioning and disaggregation rules in this band as well. The rules require the spectrum to be disaggregated by FDD pair in the 39 GHz band.

129. In the

NPRM,

the Commission proposed to continue to allow partitioning and disaggregation in the 28 and 39 GHz bands, and to permit 37 GHz licensees to partition and disaggregate their licenses as well. The Commission also proposed to require all parties to a partitioning or disaggregation agreement to independently fulfill the applicable performance and renewal requirements, which is consistent with the current requirements.

130. Commenters overwhelmingly support allowing secondary market transactions in general, and partitioning and disaggregation in particular. Intel supports expanding disaggregation in the 39 GHz band by also permitting pair-splitting. No commenters oppose allowing secondary market transactions generally, or partitioning or disaggregation specifically. No commenters discuss performance requirements for parties to a partition or disaggregation.

131. The Commission adopted its proposal in the

NPRM

to allow partitioning and disaggregation of licenses in the 28, 37, and 39 GHz bands. As the Commission noted when first establishing partitioning and disaggregation rules, allowing such flexibility could facilitate the efficient use of spectrum by enabling licensees to make offerings directly responsive to market demands for particular types of services, increasing competition by allowing new entrants to enter markets, and expediting provision of services that might not otherwise be provided in the near term. This policy would leave the decision of determining the correct size of licenses to the licensees and the marketplace. Allowing this flexibility is consistent with the record, and with the flexible approach to licensing these bands that the Commission adopted in this

Report and Order.

Because the band plan the Commission adopted for the 39 GHz band does not use paired spectrum blocks, the current rule that licenses in that band must be disaggregated in pairs will no longer apply.

132. The Commission also adopted its proposal to require all parties to a partitioning or disaggregation agreement to independently fulfill applicable performance and renewal requirements. According to the performance requirements framework the Commission adopted, individual

licensees may choose which metric they fulfill (

e.g.,

fixed, mobile, or satellite), but each licensee must make a showing that independently satisfies the requirements. This requirement will facilitate efficient spectrum use, while enabling service providers to configure geographic area licenses and spectrum blocks to meet their operational needs.

b. Spectrum Leasing

133. In 2003, in order to promote more efficient use of terrestrial wireless spectrum through secondary market transactions and in order to eliminate regulatory uncertainty, the Commission adopted the

Secondary Markets First Report and Order,

which contained a comprehensive set of policies and rules to govern spectrum leasing arrangements between terrestrial licensees and spectrum lessees. These policies and rules enabled terrestrially-based Wireless Radio Service licensees holding “exclusive use” spectrum rights to lease some or all of the spectrum usage rights associated with their licenses to third party spectrum lessees. Those third party lessees were then permitted to provide wireless services consistent with the underlying license authorization.

134. This 2003 Order excluded a number of wireless radio services from the spectrum leasing rules and policies, including part 101 services. A year later, the Commission extended the spectrum leasing policies to a number of additional wireless services, including part 101 services. At that time, the Commission also built upon the spectrum leasing framework by establishing immediate approval procedures for certain categories of terrestrial spectrum leasing arrangements.

135. In the

NPRM,

the Commission proposed to apply these spectrum leasing policies to the new part 30 radio service governing UMFUS's, including all 28 GHz, 37 GHz, and 39 GHz terrestrial licenses. The Commission proposed to apply these policies in the same manner that they apply to part 101 services.

136. Many commenters support allowing secondary market transactions generally and spectrum leasing specifically. Commenters cite the additional flexibility afforded by leasing spectrum, and the market certainty granted by using established rules. Several commenters also mention that spectrum leasing allows a broader range of entities to access licensed spectrum and provides additional competition in the marketplace. No commenters oppose allowing spectrum leasing arrangements.

137. The Commission adopted its proposal to allow spectrum leasing in the 28 and 39 GHz bands, as well as the portion of the 37 GHz band licensed on a geographic area basis. Allowing spectrum leasing in these bands will promote more efficient, innovative, and dynamic use of the spectrum, expand the scope of available wireless services and devices, enhance economic opportunities for accessing spectrum, and promote competition among providers. In addition, spectrum leasing policies in a particular band generally follow the same approach as the partitioning and disaggregation policies for that band. Thus, the Commission's adoption of spectrum leasing rules for the 28 GHz, 39 GHz, and 37 GHz bands is consistent with the Commission's decision above to allow partitioning and disaggregation in these bands as well.

10. Other Operating Requirements

138. The Commission adopted its proposal in the

NPRM

to require UMFUS licensees to comply with other rule parts that pertain generally to wireless communications services, and with any applicable service-specific rules. This approach will maintain general consistency among various wireless communications services. Consistent with the Commission's proposal, the Commission will add UMFUS to the definitions of Wireless Radio Service and Wireless Telecommunications Service in § 1.907 of the Commission's rules. The Commission refrains from modifying other existing rules in other rule parts at this time, as no commenter has identified any incompatibilities or inconsistencies between the UMFUS Service and the existing service-specific or generally applicable rules. To consolidate the technical rules for all of the types of flexible uses that might be deployed by UMFUS licensees under a single rule part, and to maintain consistency between the rules that the Commission adopted and the current technical requirements that existing LMDS and 39 GHz licensees are subject to, the Commission will move the existing part 101 technical rules for traditional point-to-point and point-to-multipoint operations into part 30.

11. Competitive Bidding Procedures

a. Applicability of Part 1 Competitive Bidding Rules

139. The Commission proposed in the

NPRM

to conduct any spectrum auction of UMFUS licenses in conformity with the general competitive bidding procedures set forth in part 1 subpart Q of the Commission's rules. No commenters proposed any alternative or objected. Given the Commission's experience in successfully conducting auctions using these procedures, the Commission adopted its proposed approach. The Commission will employ the part 1 rules governing competitive bidding design, designated entity preferences, unjust enrichment, application and payment procedures, reporting requirements and the prohibition on certain communications between auction applicants—including those updates made in the

Competitive Bidding Update Report and Order.

The Commission notes however, that the Commission could modify these procedures at a later time.

140. In discussing the competitive bidding rules, one commenter urges that if the Commission adopts county-level licenses, it would be critical to permit `package bidding' so that operators could assemble larger footprints by bidding on multiple counties at one time. In response, two commenters argue that the Commission should not permit any form of package bidding because such bidding procedures may make it more difficult for small bidders to acquire specific licenses that are included in larger packages. Issues involving such bidding procedures are more appropriately addressed in a pre-auction proceeding that will seek public input on the competitive bidding procedures to be used for a particular auction of UMFUS licenses. Accordingly, the Commissions defer consideration of such matters to such proceeding(s) where interested parties are likely to have a more informed context for such input.

b. Small Business Provisions for Geographic Area Licenses

141. In authorizing the Commission to use competitive bidding, Congress mandated that the Commission “ensure that small businesses, rural telephone companies, and businesses owned by members of minority groups and women are given the opportunity to participate in the provision of spectrum-based services.” One of the principal means by which the Commission fulfills this mandate is through the award of bidding credits to small businesses. In the

Competitive Bidding Second Memorandum Opinion and Order,

the Commission stated that it would define eligibility requirements for small businesses on a service-specific basis, taking into account the capital requirements and other characteristics of each particular service in establishing the appropriate threshold. Further, in the

Part 1 Third Report and Order

and the more recent

Competitive Bidding

Update Report and Order,

the Commission, while standardizing many auction rules, determined that it would continue a service-by-service approach to defining small businesses. The Commission recently updated its standardized schedule of small business definitions to reflect the capital challenges small businesses face in the current wireless industry, and in the

NPRM

the Commission sought comment on whether to apply those updated definitions for auctions of spectrum in the UMFUS bands.

9

9

Under the new standardized schedule, businesses with average annual gross revenues for the preceding three years not exceeding $4 million would be eligible for a 35 percent bidding credit, businesses with average annual gross revenues for the preceding three years not exceeding $20 million would be eligible for a 25 percent bidding credit, and businesses with average annual gross revenues for the preceding three years not exceeding $55 million would be eligible for a 15 percent bidding credit. The Commission also adopted a monetary cap on the total amount of bidding credits that an eligible small business or rural service provider may be awarded in any particular auction. Specifically, the amount of the bidding credit cap for a small business in any particular auction will not be less than $25 million and the bidding credit cap for the total amount of bidding credits that a rural service provider may be awarded will not be less than $10 million.

142. Based on the Commission's prior experience with the use of bidding credits in spectrum auctions, the Commission believes that the using bidding credits is an effective tool to achieve the statutory objective of promoting participation of designated entities in the provision of spectrum-based service.

143. In adopting competitive bidding rules for the 39 GHz band, the Commission included provisions for designated entities to promote opportunities for small businesses, rural telephone companies, and businesses owned by members of minority groups and women to participate in the provision of spectrum-based services. Specifically, the Commission adopted bidding credits for applicants qualifying as small businesses. For auction of licenses in the 39 GHz band, the Commission adopted two small business definitions. These two small business definitions were later adopted as the highest two of three thresholds in the Commission's standardized schedule of bidding credits. In the

NPRM,

the Commission proposed to adopt for the UMFUS the two small business definitions with higher gross revenues thresholds reflecting the recently adopted updates to the part 1 schedule of small business definitions in the

Competitive Bidding Update Report and Order.

The Commission adopted its proposal to apply the two small business definitions with higher gross revenues thresholds to auctions of UMFUS licenses in the 28, 37, and 39 GHz bands and any other spectrum bands that the Commission may subsequently designate for inclusion in the UMFUS. Accordingly, an entity with average annual gross revenues for the preceding three years not exceeding $55 million will qualify as a “small business,” while an entity with average annual gross revenues for the preceding three yea

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