Fixed Point-to-Point Microwave Service

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 2, 21, and 94

[FCC 95-500]

Fixed Point-to-Point Microwave Service

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: By the Notice of Proposed Rule Making (NPRM) portion of this

NPRM and Order, the Commission proposes to provide a channeling plan

and licensing and technical rules for fixed point-to-point microwave

operations in the 37.0-38.6 GHz (37 GHz) band and proposes to amend the

licensing and technical rules for fixed point-to-point microwave

operations in the 38.6-40.0 GHz (39 GHz) band. This action would make

available additional channels in the 37 GHz band and would ensure more

efficient use of the 39 GHz band in the future. The objectives of this

proposal are to provide adequate point-to-point microwave spectrum,

including channels for the support of broadband personal communications

services (PCS) and other services, and to provide for technical

commonality across the bands.

DATES: Comments must be submitted on or before February 12, 1996 and

reply comments must be submitted on or before February 27, 1996.

Written comments by the public on the proposed and/or modified

information collections are due February 12, 1996. (The comment and

reply dates originally were set for January 16, 1996 and January 31,

1996, respectively. However, the Commission's Office of Engineering and

Technology, under delegated authority, extended the comment and reply

period due to the exigency caused by the closing of the government; see

Order Extending Time, DA 96-15, released January 16, 1996.)

Written comments must be submitted by OMB on the proposed and/or

modified information collections on or before March 26, 1996.

ADDRESSES: Comments and reply comments should be sent to Office of the

Secretary, Federal Communications Commission, Washington, DC 20554. In

addition to filing comments with the Secretary, a copy of any comments

on the information collections contained herein should be submitted to

Dorothy Conway, Federal Communications Commission, Room 234, 1919 M

Street NW., Washington, DC 20554, or via the Internet to

[email protected], and to Timothy Fain, OMB Desk Officer, 10236

[[Page 2466]]

NEOB, 725 17th Street NW., Washington, DC 20503 or via the Internet to

[email protected].

FOR FURTHER INFORMATION CONTACT: Tom Mooring, Office of Engineering and

Technology, 202-418-2450. For additional information concerning the

information collections contained in this NPRM contact Dorothy Conway

at 202-418-0217, or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's NPRM,

adopted and released on December 15, 1995. The complete NPRM and Order

is available for inspection and copying during normal business hours in

the FCC Reference Center (Room 239), 1919 M Street NW., Washington, DC,

and also may be purchased from the Commission's duplication contractor,

International Transcription Service, (202) 857-3800, 2100 M Street NW.,

Suite 140, Washington, DC 20037.

Paperwork Reduction Act

This NPRM contains either a proposed or modified information

collection. The Commission, as part of its continuing effort to reduce

paperwork burdens, invites the general public and OMB to comment on the

information collections contained in this NPRM, as required by the

Paperwork Reduction Act of 1995, Pub. L. No. 104-13. Public and agency

comments are due at the same time as other comments on this NPRM; OMB

comments are due 60 days from date of publication of this NPRM in the

Federal Register. Comments should address: (a) whether the proposed

collection of information is necessary for the proper performance of

the functions of the Commission, including whether the information

shall have practical utility; (b) the accuracy of the Commission's

burden estimates; (c) ways to enhance the quality, utility, and clarity

of the information collected; and (d) ways to minimize the burden of

the collection of information on the respondents, including the use of

automated collection techniques or other forms of information

technology.

OMB Approval Number: N/A.

Title: Proposed rule 21.711(b).

Form No.: N/A.

Type of Review: New collection.

Respondents: Businesses or other for-profit.

Number of Respondents: 300.

Estimated Time Per Response: 40 hours.

Total Annual Burden: 12,000 hours.

Needs and Uses: Rule requires that respondents certify that they

have constructed a minimum number of installed and operating microwave

links no later than 18 months from adoption of the Report and Order in

this docket. If the Commission does not require this certification then

it would not know whether the spectrum is being used effectively.

OMB Approval Number: N/A.

Title: Proposed rule 21.711(b)(2).

Form No.: N/A.

Type of Review: New collection.

Respondents: Businesses or other for-profit.

Number of Respondents: 200.

Estimated Time Per Response: 80 hours.

Total Annual Burden: 16,000 hours.

Needs and Uses: Rule requires that respondents not meeting the

construction threshold file a list of permanently installed or

operating microwave links that they wish to have grandfathered no later

than 18 months from adoption of the Report and Order in this docket. If

the Commission does not require this filing then it would not be able

to protect these incumbent operations from possible harmful

interference caused by new systems.

OMB Approval Number: N/A.

Title: Proposed rule 21.711(a)(4).

Form No.: N/A.

Type of Review: New collection.

Respondents: Businesses or other for-profit.

Number of Respondents: 500.

Estimated Time Per Response: 256 hours.

Total Annual Burden: 128,000 hours.

Needs and Uses: Rule requires that respondents maintain a computer-

readable database. This data would be used to facilitate coordination

with Government links that share the 37 GHz band with non-Government

licensees.

OMB Approval Number: 3060-0064 and 3060-0402.

Title: Application for a station authorization in the Private

Operational Fixed Microwave Radio Service; Application for a new or

modified microwave radio station license under Part 21.

Form No.: FCC 402 and FCC 494.

Type of Review: New collection.

Respondents: Businesses or other for-profit.

Number of Respondents: 100.

Estimated Time Per Response: 2 hours.

Total Annual Burden: 200 hours.

Needs and Uses: Forms are used by applicants to apply to provide

either a common carrier service (FCC 494) or to use the spectrum for

private purposes (FCC 402). If the Commission did not require that

applicants file one these two forms then it would not know how to

regulate the licensees.

Summary of MO&O

1. By this action, the Commission proposes to provide a channeling

plan and licensing and technical rules for fixed point-to-point

microwave operations in the 37 GHz band. Adoption of this proposal

would make the band available for point-to-point microwave operations

that would provide communications infrastructure such as ``backhaul''

and ``backbone'' communications links for services including broadband

PCS, cellular radio, and other commercial and private mobile radio

operations. The Commission observes that such infrastructure could also

facilitate the development of competitive wireless local telephone

service. Further, the Commission proposes a channeling plan based on

fourteen paired 50 megahertz channel blocks (with a 700 megahertz

separation between transmit and receive channel blocks) and four

unpaired 50 megahertz channel blocks, to allow licensees to subdivide

their channel blocks as they choose, service areas based on Basic

Trading Areas (BTAs), licensing by competitive bidding if mutually

exclusive applications are filed, and a minimal number of technical

rules designed to limit interference. Proposed technical rules include

specifications as to frequency tolerance, bandwidth, transmitter power,

directional antenna standards, digital modulation, and field strength

limitation at service area boundaries. The term of licenses in the 37

GHz band is proposed to be 10 years and comment is sought on the

appropriate buildout requirement.

2. With regard to sharing the 37 GHz band between Government fixed

and non-Government point-to-point operations, the Commission proposes

to share the band on a first-come, first-served basis as follows.

Commission licensees would be required to protect incumbent operations

when they build out their system. Any new Government fixed operations

would be coordinated on a link-by-link basis with the affected

Commission licensees through the existing Government/non-Government

coordination process. In order for the Commission to process a

coordination request, non-Government licensees would be required to

maintain a computer-readable database with the coordinates of their

sites, frequencies (occupied bandwidth) assigned to their sites, EIRP,

and other needed information for all of their links.

3. In addition, comment is requested on whether the 37 GHz band or

a portion of it should be made available for a wider array of fixed

services, such

[[Page 2467]]

as point-to-multipoint systems; whether there is a requirement for

mobile operations in the 37 GHz band and, if so, whether such

operations should be on a co-primary or secondary basis to the point-

to-point operations; and whether the Commission has overestimated

demand and, thus whether a portion of the band should be held in

reserve for future services. If the permissible use of the 37 GHz and

39 GHz bands (see para. 6, below) is broadened to include other fixed

and/or mobile uses, the Commission would not anticipate separately

licensing such uses but rather would include them within the uses

permitted under our proposed BTA licenses. In response to a request

from the National Telecommunications and Information Administration

(NTIA), the Commission solicits comment on additionally allocating the

37-38 GHz band to the space research (space-to-Earth) service.

4. If competitive bidding is not adopted for the 37 GHz band,

comment is solicited alternatively on licensing the 37 GHz band in the

same manner as the 39 GHz band is currently licensed with the following

modifications. Service areas would be based on BTAs. Eligibility for

Channel Blocks 15 through 20 would be limited to broadband PCS

licensees until three months after the last broadband PCS license is

issued. Eligibility for Channel Blocks 21 through 28 would be limited

to broadband PCS, cellular, and wide-area SMR licensees for three

years, commencing with the effective date of the rules adopted in this

proceeding. After the expiration of these restrictions, eligibility

would be open to all parties.

Eligibility for unpaired Channel Blocks 29 through 32 would be

unrestricted. Further, the Commission proposes to require that

applicants demonstrate a need for each channel requested, that

applicants initially be limited to one channel per designated service

area, that all licensees, except broadband PCS licensees, construct

their system within 18 months and that such construction be defined as

the ability to pass communications traffic significantly throughout the

service area, and that license transfers of unbuilt systems be

prohibited. Additionally, each licensee would be permitted to apply for

an additional channel in its service area only when it is operating its

previously authorized channel(s) at or near expected capacity. Comment

is solicited on whether licensees should be required at some time in

the future to provide the Commission with a report of their operations

so that a second licensing opportunity could be provided for parties

interested in those portions of licensed service areas that are unused.

Comment is specifically requested on what criteria should be applied in

determining whether a licensed service area is underused to the point

that other applicants should be permitted to propose service in that

area. If an additional party is allowed to obtain a license in an

existing licensee's BTA, the Commission proposes to require them to

coordinate informally on a link-to-link basis.

5. The Commission also proposes to amend the licensing and

technical rules for fixed point-to-point microwave operations in the 39

GHz band. Specifically, the Commission proposes that the unlicensed

areas be licensed using BTA service areas and that auctions be employed

should mutually exclusive applications be filed. In order to

accommodate incumbent operations, the Commission proposes that

licensees of rectangular service areas be given eighteen months from

the adoption of a Report and Order in this proceeding to file with the

Commission a certification that they have constructed a minimum average

of four permanently installed and operating links per hundred square

kilometers (approximately one link per ten square miles) of their

licensed service area for each licensed channel block. Further,

licensees with more than one channel block must certify that each

channel block contains at least four permanently installed and

operating links per hundred square kilometers that cannot be

reaccommodated in another channel block. If a licensee meets these

threshold construction and filing requirements, then the licensee would

retain its entire rectangular service area. However, if a licensee does

not meet these requirements, then the license would be automatically

canceled nineteen months from the adoption of a Report and Order in

this proceeding. Further, licensees of rectangular service areas not

meeting the above construction threshold must file a list of

permanently installed and operating links that they wish to have

grandfathered no later than eighteen months from the adoption of a

Report and Order in this proceeding. The Commission would then

relicense qualifying links individually. Failure to file timely a list

of installed and operating links would result in automatic cancellation

of the respective licenses. As an alternative to relicensing incumbent

facilities on their current frequency, comment is solicited on whether

incumbent links should be ``repacked'' into a portion of the band,

e.g., most grandfathered links would be switched to one designated

channel pair provided that mutual interference would not result. The

technical rules for the 39 GHz band would be modified to make them

consistent with the technical rules that are proposed for the 37 GHz

band. Licensees would be limited to six of the 28 paired channel blocks

and to two of the four unpaired channel blocks in each BTA in the

combined 37-40 GHz band.

6. The Commission notes that the lower portion of the 39 GHz band,

38.6-39.5 GHz, is allocated to the fixed, mobile, and fixed-satellite

(space-to-Earth) services and that the upper portion of the 39 GHz

band, 39.5-40 GHz, is allocated to these services and to the mobile-

satellite (space-to-Earth) service. Comment is solicited on whether the

proposed modifications for licensing the 39 GHz band would have any

affect on the sharing of this band among these services. Further,

comment is solicited on whether the Commission should provide for more

flexible use of the 39 GHz band, including whether permissible uses

should be broadened to include point-to-multipoint and/or mobile

services in this band, perhaps under a broader service category such as

GWCS or LMWS.

7. If competitive bidding is not adopted for the 39 GHz band,

comment is solicited alternatively on whether to license the 39 GHz

band under the current rules with certain modifications. Specifically,

the Commission proposes to strengthen and codify the policy guidance

given in the Commission's Common Carrier Bureau's Public Notice, Mimeo

No. 44787, released September, 1994, so that all applicants for

channels in the 39 GHz band would be required to make the following

showings:

(i) Consideration of non-radiofrequency (non-RF) solutions. That

the applicant has given detailed consideration to non-RF solutions for

satisfying its communications requirements, including but not limited

to fiber optic cable and wireline, and explaining why such alternatives

are technically unacceptable, as opposed to merely less economically

preferable.

(ii) Clear and present need. That the applicant has an immediate

and real need for the proposed communications. Neither speculation, nor

anticipated market development, nor a desire merely to hold a license

will be sufficient in this regard. Each narrative must include an

implementation schedule with six month benchmarks and will be required

to demonstrate system construction and operation within the

construction deadline imposed by Sec. 21.43 of the Rules.

[[Page 2468]]

(iii) Frequency and efficiency. Normally, only one channel block

will be authorized per applicant per geographic area. New assignments

will be licensed by BTAs. Current applicants must modify their

applications accordingly. A future request for an additional channel

block will be considered only if the applicant demonstrates that:

An immediate requirement exists for simultaneous

communications within the licensed service area;

Frequency re-use is impossible as demonstrated by an

engineering showing;

All previously authorized channel blocks within the

licensed service area are constructed, are operational, and are loaded

to 100% capacity;

All frequencies are loaded to a minimum equivalent digital

efficiency of 1 bps/Hz;

All transmitting equipment is operating with a frequency

tolerance of 0.001%; and

Only Category A antennas are employed.

(iv) Full disclosure. Applicants must fully disclose the real party

(or parties) in interest, including a complete disclosure of the

identity and relationship of those persons or entities directly or

indirectly owning and/or controlling the applicant. In addition,

licensees must construct their facilities and must be passing

communications traffic on all of assigned channel blocks throughout

their licensed service areas by the end of the eighteenth month since

initial license grant. An extension to the 18 month period of

construction will not generally be granted. If construction is not

timely completed, the licensee's authority to construct additional

links will be automatically cancelled and forfeited, and the licensee

must notify the Commission as to which links have been constructed so

that those links may be grandfathered.

8. For both the 37 GHz and 39 GHz bands, the Commission proposes

the following procedure for establishing eligibility to bid at auction.

The Commission proposes open eligibility and does not intend to require

that applicants prove that they are financially qualified. Applicants

must file a ``short form,'' i.e., FCC form 175, by a date specified in

the applicable initial public notice. The short forms would be reviewed

for compliance with the Commission's rules. Timely-filed applications

would be classified as either accepted for filing or incomplete and

this result would be announced by public notice. Ex parte rules would

be waived as they apply to the submission of amended short-form

applications. Applicants would not be permitted to make any major

modifications to their applications until after the auction. Applicants

could modify their short-form applications to reflect the formation of

consortia or changes in ownership at any time before or during the

auction, provided such changes would not result in a change in control

of the applicant, and provided that parties forming consortia or

entering into ownership agreements have not applied for licenses in any

of the same geographic license areas. Applications that are not signed

would be dismissed as unacceptable. Incomplete applications must be

resubmitted by the resubmission deadline to correct minor deficiencies.

Late-filed applications would be dismissed without the opportunity to

resubmit. If mutually exclusive applications are not filed for a

license, then the Commission would by public notice cancel the auction

for that license and establish a date for the filing of a ``long-form

application,'' i.e., FCC Form 600. Applicants whose application for

filing is ultimately approved will tender in advance to the Commission

an upfront payment of $2,500 or $0.02 per pop per MHz, whichever is

greater. Upfront payments generally will be due no later than 14 days

before the scheduled auction.

9. The design of the auction process for both the 37 GHz and the 39

GHz bands is proposed to be simultaneous multiple round auctions. The

minimum bid increments and stopping rules will be specified by public

notice prior to the auction. The Milgrom-Wilson activity rule is

tentatively proposed, but an alternative activity rule may be used

instead and, if so, would be announced by public notice prior to the

start of the auction. The duration of bidding rounds would either be

announced by public notice prior to the auction or by announcement

during the auction. A down payment of 20 percent must be submitted by a

date to be specified by public notice, generally within 5 business days

following the close of bidding. All auction winners generally would be

required to make full payment of the balance of their winning bids with

5 business days following public notice that the license is ready for

grant. Any bidder who withdraws a high bid during an auction before the

Commission declares the bidding closed, or defaults by failing to remit

the required down payment within the prescribed time, would be required

to reimburse the U.S. Treasury in the amount of the difference between

its high bid and the amount of the winning bid the next time the

license is offered by the Commission, if the subsequent winning bid is

lower. After bidding closes, a defaulting auction winner would be

assessed an additional payment of 3 percent of the subsequent winning

bid or 3 percent of the amount of the defaulting bid, whichever is

less. The Commission proposes to apply the transfer disclosure

requirements contained in Section 1.2111(a).

10. The Commission proposes the following provisions for designated

entities. A small business is defined as entities with less than $40

million in average annual gross revenues for the preceding 3 years.

Further, the same affiliation and attribution rules for calculating

revenues that were adopted in the broadband PCS and GWCS proceedings

are also proposed for this service. A 10 percent bidding credit for

small businesses is proposed and the bidding credit can be applied to

any and all of the 37 and 39 GHz licenses. Small business licensees may

elect to pay their winning bid amount (less upfront payments) in

installments over 10 years, with interest charges to be fixed at the

time of licensing at a rate equal to the rate for ten year U.S.

Treasury obligations plus 2.5 percent. Installment payments would be

due on the anniversary of the day the license was granted. Timely

payment of all installments would be a condition of the license grant

and failure to make such timely payments would be grounds for

revocation of the license. Small business licensees will be permitted

to make interest-only installment payments during the first two years

of the license. The down payment for small businesses is proposed to be

5 percent of the winning bid due five days after the auction and 5

percent due five days after the public notice that the license is ready

for grant. Comment is sought on the appropriate transfer restrictions

for small businesses and on the proposal not to adopt an entrepreneurs'

block.

11. In addition, the Commission proposes that rural telephone

companies be permitted to partition BTAs. Rural telephone companies are

defined as local exchange carriers having 100,000 or fewer access

lines, including all affiliates. Rural telephone companies would be

permitted to acquire partitioned licenses in either of two ways: (1)

they may form bidding consortia consisting entirely of rural telephone

companies to participate in the auctions, and then partition the

licenses won among consortia participants; and (2) they may acquire

partitioned licenses from other licenses through private negotiation

and agreement either before or after the

[[Page 2469]]

auction. The partitioned areas must conform to established geopolitical

boundaries and each area must include all portions of the wireline

service area of the rural telephone company applicant that lies within

the service area.

12. The application processing rules contained in Parts 21 and 94

would be used for the 37 GHz service (as well as the 39 GHz service).

Auction winners will be required to file a long form by a specific

date, generally within 10 business days after the close of the auction.

If the winning bidder intends to provide a common carrier service it

would file FCC Form 494, and if it intends to provide a private use it

would file FCC Form 402. After the Commission receives the winning

bidder's down payment and the long-form application, the long-form

application would be reviewed to determine if it is acceptable for

filing. Upon acceptance for filing of FCC Form 494, a Public Notice

announcing this fact would be released, triggering the filing window

for petitions to deny. If the Commission denies all petitions to deny,

and is otherwise satisfied that the applicant is qualified, a Public

Notice announcing the grants will be issued. Winning bidders would have

five business days after the issuance of the Public Notice to complete

payment of their licenses. The Commission would then have ten business

days to grant the licenses.

List of Subjects

47 CFR Part 1

Administrative practice and procedure, Radio.

47 CFR Part 2

Radio.

47 CFR Part 21

Communications common carriers, Communications equipment, Radio.

47 CFR Part 94

Communications equipment, Radio, Reporting and recordkeeping

requirements.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 96-1247 Filed 1-25-96; 8:45 am]

BILLING CODE 6712-01-P