Use of Radio Frequencies Above 40 GHz for New Radio Applications

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2, 15, and 97

[ET Docket No. 97-124; FCC 97-153]

Use of Radio Frequencies Above 40 GHz for New Radio Applications

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission adopts a Second Report and Order designating

the frequency spectrum band between 47.2 and 48.2 GHz for commercial

use on a licensed basis. The Commission decides to permit fixed, fixed-

satellite, and mobile uses consistent with the Table of Frequency

Allocations governing the band. The Commission also decides to define

service rules in a future rulemaking, based on the dominant use of the

spectrum, and finds that the most likely dominant use will be fixed,

point-to-multipoint services delivered through the deployment of fixed

platforms located in the stratosphere. The Commission adopts the

proposal to license operations on an area-wide basis and determines to

divide the spectrum into five pairs of license blocks of 200 megahertz

each pair, with each pair separated by 500 megahertz of spectrum. These

actions are taken to promote the commercial availability of millimeter

wave

[[Page 43117]]

technology in providing the potentially valuable uses of licensed

spectrum above 40 GHz.

EFFECTIVE DATE: October 14, 1997.

ADDRESSES: Room 7002, 2025 M Street, NW., Federal Communications

Commission, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Barbara Reideler, Policy Division,

Wireless Telecommunications Bureau, (202) 418-1310.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Second Report and

Order in ET Docket No. 94-124, FCC 97-153, adopted May 2, 1997, and

released July 21, 1997. The complete text of this decision 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 copy contractor,

International Transcription Service, (202) 857-3800, 1231 20th Street,

NW., Washington, DC 20036.

Synopsis of Second Report and Order

1. This action is part of an ongoing proceeding to open for

commercial development portions of the spectrum known as the millimeter

wave bands above 40 GHz.1 The Commission initiated this

proceeding by Notice of Proposed Rulemaking (First NPRM) in 1994 (59 FR

61304, March 1, 1995).

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\1\ The term ``millimeter wave'' refers to the fact that the

wavelength of radio signals for frequencies between 30 GHz and 300

GHz ranges from 10 millimeters down to 1 millimeter.

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2. In this Second Report and Order (Second R&O), the Commission

adopts the proposal contained in the First NPRM to designate for

commercial use on a licensed basis the 47.4-48.2 GHz band, together

with the 47.2-47.4 GHz band made available in the First Report and

Order (61 FR 14041, March 29, 1996) for a total of one gigahertz of

spectrum (47 GHz band). Further, the Commission adopts proposals to

establish a licensing framework that permit the full range of services

allowed under the Table of Frequency Allocations (Allocation Table) in

our rules 2 and to define service rules based on our best

judgment of what the dominant use of the spectrum is likely to be. The

Commission finds that the most likely dominant use will be fixed,

point-to-multipoint services delivered through the deployment of fixed

platforms located in the stratosphere, without foreclosing the other

uses under the Allocation Table. The Commission adopts the proposal to

license operations on an area-wide basis and we determine to divide the

spectrum into five pairs of license blocks of 100 megahertz each, with

each pair separated by 500 megahertz of spectrum.

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\2\ 47 CFR 2.106.

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3. The Commission concludes that opening this spectrum for

commercial licensed use under our licensing framework will stimulate

the development of millimeter wave technology to provide new wireless

communications services that are in demand by consumers. The broad

degree of flexibility regarding the permissible range of services will

ensure the ability of carriers to respond to the market, will promote

competition, and will provide for the most efficient and effective

services. The Commission will initiate a proceeding in the near future

to propose service rules in order to implement our determinations in

this Second R&O for the licensing of the 47 GHz band. The proposed

rules will include proposals relating to auctions. The Commission also

defers to future proceedings our consideration of the additional

frequency bands above 40 GHz that we proposed for licensed use in the

First NPRM, as well as the additional bands proposed for unlicensed use

that were not considered in the First Report and Order.

4. In this Second Report and Order, the Commission limits

consideration of the bands we proposed to designate for commercial,

licensed use in the First NPRM to the 47 GHz band. This band consists

of the 47.4-48.2 GHz segment originally set forth in the First NPRM and

the adjoining 47.2-47.4 GHz segment made available for such use in the

First Report and Order. The Commission did not propose any changes to

this band in the 36-51 GHz Band Plan NPRM in IB Docket No. 97-95 (62 FR

16129, April 4, 1997) where we designated the band for predominantly

wireless terrestrial services. The Commission found that comments had

already been received on this band segment in response to the First

NPRM on which we could proceed to take action without delay. Thus, the

Commission's proposals in the First NPRM as they apply to the 47 GHz

band are ripe for disposition at this time.

5. The comments filed in this docket consist of two sets, the

comments filed in direct response to the Commission's proposals in the

First NPRM (to the extent those comments are pertinent to the issues we

resolve in this Second Report Order), and the comments filed in

response to the respective public notices accepting the Request To

Establish New GSTS Service, Additional Comments, and Petition for

Rulemaking (hereinafter cited as Request and Petition) and the

Application, filed by Sky Station International, Inc. (Sky Station) on

March 20, 1996, in this docket. Both the filings by Sky Station and the

responsive pleadings concern the Commission's proposals to license the

47 GHz band, but were filed after the comment period to the First NPRM

closed and raise issues not addressed in our proposals. Because the Sky

Station filings and responsive pleadings are pertinent to the issues

before us, the Commission has decided to take these filings and

pleadings into account in connection with the decisions we make in this

Second Report and Order.

6. In the Request and Petition, Sky Station requests that the

Commission authorize use of the spectrum at 47.2-47.5 GHz and 47.9-48.2

GHz for a new commercial, licensed service described as the Global

Stratospheric Telecommunications Service (GSTS), and that the

Commission adopt service rules either in this proceeding or a separate

rulemaking to implement the service. Sky Station filed concurrently an

application (hereinafter cited as Application) for authorization to

construct and operate its proposed service to provide a global network

of wireless communications services, subject to amendment pending the

outcome of its Request and Petition. A public notice was issued

accepting the Application for filing and accepting petitions,

oppositions, and other pleadings filed in response to that public

notice. (FCC Public Notice, Sky Station International, Inc., File No.

96-SAT-P/LA-96, released April 22, 1996.) Comments to the request and

petition, and to the Application, are listed in Appendix A in the full

text of this decision.

7. Sky Station, in its Request and Petition, states that it has

developed a new technology for delivery of a new paradigm of wireless

telecommunications services that it identifies as GSTS, to compete with

existing satellite and terrestrial wireless services. Sky Station

explains that GSTS is based on the concept of using a network of

platforms in the stratosphere that are kept aloft in fixed positions by

hydrogen or helium elements at an altitude of 30 kilometers, or 18

miles, above 99 percent of the atmosphere. Unlike satellite services,

these platforms are not launched into orbit in space, but rather are

lifted by balloons similar to dirigibles to an area in the stratosphere

above flight patterns and below satellite orbits.

8. In the request and petition, Sky Station argues that opening up

a portion of the 47 GHz band for the proposed system will promote the

policy goals we established in the First NPRM and meet

[[Page 43118]]

numerous environmental, economic, and social public interest

objectives. It requests that the Commission adopt proposed technical,

financial, implementation, and licensing standards that encourage

commercial development of the unused 47 GHz band and promote

competition consistent with the flexible framework proposed in the

First NPRM. The service rules advocated by Sky Station in its Request

and Petition would enable all qualified applicants to construct and

operate their own systems as part of the entire GSTS, and the GSTS

would be designed to cover 80 percent of the world's population by a

certain date.

9. Sky Station requests that the Commission dedicate exclusively

for GSTS that portion at 47.2-47.5 GHz for earth-to-stratosphere

communications and 47.9-48.2 GHz for stratosphere-to-earth

communications. Sky Station argues that its service is covered by the

Allocation Table, which provides for fixed and mobile service. However,

it requests that the Commission modify the Table to permit only fixed

and mobile GSTS stations to operate in the two portions of the 47 GHz

band, inasmuch as it contends that the service cannot share co-channel

frequencies with conventional fixed, mobile, or fixed satellite

services. It also requests that International footnote 901 be modified,

as well as U.S. footnote 297, in order to eliminate sharing with

broadcasting-satellite service feeder links, which also could interfere

with GSTS and could operate elsewhere.

10. Sky Station requests authorization in the Application to

implement its proposed service. It argues that the Application

demonstrates that Sky Station is in compliance with the technical,

financial, licensing, and other regulations it has requested we adopt

in the Request and Petition. Sky Station reserves the right to amend

this application to comply with any future rules the Commission may

adopt for its proposed service. The Application includes a request for

a pioneer preference in the event that mutually-exclusive applications

are filed.

11. On December 24, 1996, Sky Station submitted further comments to

clarify its request and petition. Sky Station argues that the

Commission should grant its alternative request in the request and

petition to treat the filing as additional comments in response to the

First NPRM, and that a new rulemaking proceeding to adopt separate

service rules for its proposed stratospheric service is neither

necessary nor appropriate. It requests that the Commission hold the

Application in abeyance. Sky Station argues that the Commission's

proposal for the commercial, licensed use of the 47 GHz band has been

open for comment since the First NPRM and that its comments on the

pending issues together with the other comments in this docket provide

an adequate record on which to resolve the issues to be determined in

this Order.

12. In its further comments, Sky Station argues that its proposed

service is a fixed terrestrial service and that we need not allocate

the requested spectrum to a new global stratospheric service, apart

from other fixed service millimeter wave uses. It argues that a generic

terrestrial allocation for a flexible fixed (non-satellite) service

would suffice, so that it would compete with other aspiring fixed

service providers in auctions for this spectrum. Sky Station argues

that its proposed operations generally fit well within the service

rules the Commission proposed in the First NPRM to adopt for licensed

services above 40 GHz, including the 47 GHz band, which rules are now

contained in Part 101. (See Reorganization and Revision of Parts 1, 2,

21, and 94 of the Rules To Establish a New Part 101 Governing

Terrestrial Microwave Fixed Radio Services, WT Docket No. 94-148,

Amendment of Part 21 of the Commission's Rules for the Domestic Public

Fixed Radio Services, CC Docket No. 93-2, and McCaw Cellular

Communications, Inc., Petition for Rulemaking, RM-7681, Report and

Order, 61 FR 26670, May 28, 1996.) Sky Station submits modifications to

the proposed rules that it argues are minor but necessary to

accommodate its proposed service in the 47 GHz band, including

segmentation of the band to prevent sharing with other services,

license blocks of 100 megahertz paired blocks separated by 500

megahertz, and larger area-wide licensing, among other operating and

technical rules.

13. The Commission grants Sky Station's alternative request to

accept its request and petition as late-filed comments in this

proceeding. In addition, the Commission will also accept the

Application as part of the comments, inasmuch as Sky Station

acknowledges that the Application is filed preliminarily and is

intended to illustrate the service it could provide under its proposals

in the request and petition. As discussed more fully in the text of

this Second R&O, petitioners filing in response to request and petition

do not raise issues that prevent the Commission from including the Sky

Station filings for consideration together with other comments filed in

response to the First NPRM to open the 47 GHz band for commercial,

licensed use.

14. Fixed Point-to-Point Communications Section, Network Equipment

Division of the Telecommunications Industry Association (TIA), Motorola

Satellite Communications, Inc. (Motorola), and Harris Corporation-

Farinon Division (Harris) argue that the nature of Sky Station's

service proposal as terrestrial or satellite service is not clear, and

that it does not fit existing definitions. They request that the

Commission establish a separate allocation category for any airborne

terrestrial wireless communications service.

15. TIA argues that the nature of Sky Station's proposed service

must be identified to determine how to classify the service and find

the appropriate regulatory niche before we may adopt its proposals. TIA

contends that the filings are contradictory regarding whether the

service is terrestrial or satellite, fixed or mobile. It contends that

the service does not fit the international service definition that

defines Radio-Relay Systems to be fixed services operating via

terrestrial stations. TIA argues that the proposed service would be

similar to a satellite based system as an interference source, that the

platform qualifies as a Space Station under the definitions, and that

it should be considered to be a Mobile-Satellite System.

16. TIA proposes that the Commission and the 1997 World Radio

Conference (WRC-97) establish a new service category for any airborne

service operating in the stratosphere or below, apart from aviation

services, that would be defined as a Global Airborne Telecommunications

Service. The category would stimulate innovative airborne services and

would be consistent with allocation requirements. Harris agrees that

the nature of the service should be clarified and that the Global

Airborne category might be the solution to accommodating various

airborne services that will have characteristics similar to the Sky

Station proposal.

17. Motorola also argues that the proposed service requires a new

allocation. It contends that terrestrial fixed and mobile service

allocations do not contemplate stratosphere-to-earth and earth-to-

stratosphere communications provided by means of stratospheric balloon-

supported platforms. It asserts that the platforms should be

disqualified as fixed or mobile terrestrial services because of their

placement above the earth's atmosphere, and should instead be defined

as spacecraft. Motorola further argues that the platforms would lie

within sovereign airspace, and that

[[Page 43119]]

countries may view the proposed service as an infringement of their

rights. It contends that we should refrain from pursuing an

international allocation for the proposed service.

18. In the 36-51 GHz Band Plan NPRM, the Commission determined that

Sky Station's proposed use of spectrum in the 47 GHz band for its

stratospheric radio relay repeater system is considered to be a

terrestrial service. In its Further Comments, Sky Station has clarified

its previous filings, which TIA points out are contradictory, in order

to demonstrate that the proposed service is a terrestrial, fixed

operation. Users permanently mount their terminals or antennas, which

communicate with the repeaters located on the platforms. The Commission

disagrees with TIA and Motorola that the platform qualifies as a space

station and that the proposed service should be considered to be a

satellite service. The platforms proposed for use by Sky Station

clearly are not satellites and, unlike satellites, will not be in earth

orbit. Although the platforms will be located 30 kilometers above the

earth's surface, they still will be within the earth's atmosphere and

will rely on atmospheric lift to keep them at that fixed altitude,

which is far below the location of the lowest satellite orbit.

19. Motorola and TIA point out that there are international

definitions and other international concerns that require that Sky

Station's proposed service be considered in the appropriate

international forums. In that context, the Commission further points

out that world spectrum management experts recently participated in the

work of ITU-R WP4-9S and WP 9B and concluded that a radio-relay service

like Sky Station's proposed service that uses stratospheric-based

repeaters is in the fixed service. The groups developed two Proposed

Draft New Recommendations relating to platform-based stratospheric

radio relay repeaters in the fixed service.3 Moreover, in

the 36-51 GHz Band Plan NPRM the Commission noted that the Ad Hoc

Millimeter Wave group of the Commission's WRC-97 Advisory Committee had

discussed, among other things, the possibility of satellite and fixed

terrestrial services, as well as other terrestrial services operating

from alternative delivery platforms, sharing spectrum in the band.

Thus, the use of such stratospheric-based platforms for a global

service is being addressed in the appropriate forums, where issues of

sovereignty and other concerns will be examined. The Commission denies

the requests of Motorola, Harris, and TIA to establish a separate

allocation category for any airborne terrestrial wireless

communications service as unnecessary and inefficient, inasmuch as the

spectrum Sky Station seeks to use is the subject of this proceeding in

which rules can be proposed to accommodate its service, as well as

other terrestrial services in 47 GHz. The Commission finds these

requests unnecessary and inefficient, inasmuch as the spectrum Sky

Station seeks to use is the subject of this proceeding in which rules

can be proposed to accommodate its service, as well as other

terrestrial services in 47 GHz.

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\3\ Doc. 4-9S/TEMP/30(Rev.1) and Doc. 9B/TEMP/38(Rev.1).

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20. HCI and Motorola argue that the Application and the Request and

Petition leave open many technical, financial, and safety concerns that

must be addressed before the Commission can act on Sky Station's

request and allocate the spectrum it requests. The Commission intends

to solicit comment on the necessary technical and financial

requirements for platform-based stratospheric services at the time we

consider service rules, in a separate Notice of Proposed Rulemaking. At

the same time the Commission will seek comment on the safety concerns

that the platforms raise. These matters are important features of the

service rules that the Commission must adopt before any service in the

47 GHz band can be implemented. They need not be considered in this

Second R&O, however, which is limited to deciding whether to open the

band to commercial, licensed use under a flexible licensing framework.

The matters that HCI and Motorola ask the Commission to address now are

not factors in that decision.

21. HCI, Lockheed Martin Corporation, and Motorola express concern

that, as members of the satellite community, they will not be able to

share the 47 GHz band with Sky Station's proposed service. Since the

filings of these pleadings, the Commission has initiated a spectrum

plan in the 36-51 GHz Band Plan NPRM in order to address the competing

demands between satellite and terrestrial interests for spectrum

allocations for provision of commercial services. Although the

Commission maintained the 47 GHz band for predominantly wireless

services, we identified additional bands for predominantly satellite

services that include the adjacent 48.2-50.2 GHz bands, among others.

Thus, the spectrum management issues raised by petitioners here are

matters addressed in that proceeding and are not a basis for delaying

this proceeding. As for the additional matters the parties seek to

raise here concerning licensed uses of the band, the Commission will

include those comments in our consideration of licensing issues in the

full text of this Second R&O.

22. The Second R&O adopts the proposal to open the 47 GHz band for

commercial applications and technologies. As stated in the First NPRM,

the millimeter wave bands such as 47 GHz are a major resource that

essentially is undeveloped and unavailable today for commercial use.

The Commission finds that there is broad consensus that our proposal to

open frequency bands above 40 GHz to commercial development will

provide the public with access to new products and communications

services and provide new opportunities for business and economic

growth.

23. The Second R&O also adopts the proposal to license the 47 GHz

band for commercial service and finds that our proposal to allow any

use under the Allocation Table reflects the best approach to licensing

this band. As a ``frontier'' band located in the frequencies above 40

GHz that are yet to be opened for commercial development, the exact

nature of the services to emerge from the development of the 47 GHz

band cannot be predicted in the comments. The Commission concludes that

all identified uses of the 47 GHz band may be valuable and should be

permitted. The record also confirms that both the technology and

potential applications of millimeter wave spectrum will continue to

evolve rapidly. Since the Commission initiated this proceeding we have

seen important new technologies proposed for the millimeter wave

spectrum, and it is likely that other technologies also will be

developed. Under the circumstances, the Commission decides not to limit

the types of services that can be offered in the band.

24. Accordingly, the Commission will license the 47 GHz band based

on the services currently allowed under the Allocation Table. The

spectrum from 47.2 to 50.2 GHz is allocated domestically for Government

and non-Government Fixed, Fixed-Satellite, and Mobile uses, and

internationally for the same uses. The Commission finds that the range

of services covers all of the services identified as potential uses of

the 47 GHz band. The Commission confirms the view expressed in the

First NPRM that a broadly defined service allocation coupled with the

licensing, technical, and operating rules to be proposed in a

subsequent rulemaking will provide the best means of assuring that this

spectrum will be used to the greatest benefit of the public.

[[Page 43120]]

25. The Commission denies the requests of AT&T Corp, Hewlett-

Packard, Millimeter Wave Advisory Group, Alcatel Network Systems,

Harris, and TIA to expand the band to include spectrum up to 51 GHz in

order to provide for point-to-point services. That additional spectrum

in the adjacent bands will be addressed in response to the 36-51 GHz

Band Plan NPRM, in which the Commission proposes to designate the

portion 48.2-50.2 GHz for predominantly satellite use. The Commission

points out that point-to-point services may be provided in the 47 GHz

band under the allocations for that band.

26. The Commission disagrees with TIA's assertion that licensing on

such an ``open-market'' basis, which provides licensees with broad

flexibility to engage in any uses under the Allocation Table, evades

our statutory responsibilities under section 303(c) and, in light of

the Commission's proposal to auction the spectrum, is inconsistent with

Section 309(j) of the Communications Act. The Commission has broad

authority under the Communications Act to designate spectrum usage, as

well as the authority to perform any and all acts necessary in the

execution of our functions.4 In light of the range of

possible uses, the likelihood that new uses can be developed in the

future, and the lack of a record for specific service designations that

would better serve the public interest and the goals of the

Communications Act, our broad service designation comports with the

public interest and with our statutory authority. The Commission's

decision to designate this spectrum in this manner is unrelated to the

proposal in the First NPRM to award licenses through competitive

bidding.

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\4\ See Section 4(i) of the Communications Act, 47 U.S.C.

154(i).

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The designation is not entirely open-ended and will be subject to

technical rules we will adopt. Therefore, the Commission has not

delegated to private parties our responsibility to allocate spectrum

and adopt appropriate technical standards.

27. The Commission finds that, when we propose licensing and other

service rules for the 47 GHz band, we will follow the approach proposed

in the First NPRM to tailor the rules to reflect what we expect will

likely be the dominant use of this spectrum, while retaining the

flexibility allowed under the Allocation Table. Especially for

``frontier'' bands such as those above 40 GHz, this approach should set

allocation and licensing rules that promote rapid, efficient use of

this spectrum to meet all the communications needs advanced by

commenters, while allowing the market to adjust to changing needs and

technologies and providing scope for innovative uses. It will also

minimize regulatory barriers and requirements that might otherwise

hamper entrepreneurial efforts to develop effective commercial uses of

this spectrum.

28. However, the Commission does not find that the dominant use of

spectrum in the 47 GHz band is likely to be similar to LMDS in the 28

GHz band, as we proposed. As Avant-Garde Telecommunications, Inc.

requests, the Commission has reexamined our proposal, and we have taken

into account the anticipated uses and changed circumstances reflected

in the record for purposes of determining whether another licensing

methodology would better meet the needs posed by those anticipated

uses. The Commission finds that the dominant use of the 47 GHz band is

likely to be a fixed, point-to-multipoint service that employs

stratospheric platforms at fixed locations.

29. The Commission emphasizes, however, that we anticipate that

ongoing technological developments can be expected to generate other

types of delivery systems for fixed, point-to-multipoint services in

the band. Thus, while the Commission will seek to tailor our licensing

rules to accommodate the likely dominant use we have identified based

on the current record, we will not foreclose other uses permitted by

the Allocation Table, including new and innovative uses and

technologies.

30. The Commission denies Sky Station's request that we dedicate to

its exclusive use two portions of the 47 GHz band for its service and

modify the Allocation Table to that effect. Sky Station is concerned

about interference to its stratospheric signal when it is in the main

path of a conventional fixed co-channel signal of greater power. The

problems of interference do not necessarily require a change in the

service allocation, but rather are the subject of operational and

technical mitigation techniques that can be included in the

Commission's service rules to be used to reduce or eliminate these

types of interference problems. Accordingly, Sky Station should ensure

that its concerns are addressed when the Commission seeks to adopt

appropriate service rules in a subsequent proceeding to implement

services under the Allocation Table.

31. Similarly, the Commission defers the request of United States

Satellite Broadcasting Company (USSB) that we accept a service rule

requirement submitted by Sky Station to protect DBS-TV from

interference from Sky Station's service. USSB requested that the

Commission consider the impact of Sky Station's proposed platform-based

service on the operations of other telecommunications services and, in

particular, on the reception of DBS signals on the surface of the

earth. The Commission will consider the requested restriction when we

consider the need for other use restrictions to ensure the performance

of the authorized services under appropriate service rules.

32. The Commission also denies the request of TIA for a guardband

of 500 MHz to ensure adequate signal selectivity between the licensed

services in the 47 GHz band and the fixed point-to-point services that

TIA requests we designate for use in the adjacent band at 48.5-51.4

GHz. The adjacent band is under consideration in the 36-51 GHz Band

Plan NPRM and TIA's request can be addressed there. The Commission will

consider the need for protections of licensed users from interference

in developing service rules that govern the uses of 47 GHz.

33. The Second R&O adopts the Commission's proposal to issue area-

wide licenses for services in the 47 GHz band as a necessary component

of the flexible licensing framework we are adopting. The Commission has

found that the predominant use of the band is a fixed point-to-

multipoint service, which is a service provided on a point-radius basis

within an area and not on a fixed point-to-point basis. However, fixed

point-to-point service is not precluded and may be provided within the

area. Moreover, authorization of a geographic area is consistent with

the Allocation Table for the 47 GHz band, which also provides for

mobile services in addition to fixed services. The Commission does not

decide the size of the geographic area in this Second R&O, inasmuch as

that is a matter for the service rules.

34. The Second R&O also adopts the Commission's plan to divide the

spectrum into license blocks for exclusive assignment in each area.

However, we modify our proposal to divide the entire band into only one

contiguous pair and instead divide it into five separated pairs. Based

on the comments filed in response to the Commission's inquiry into

whether the licensed blocks should be contiguous or further subdivided

into paired blocks to facilitate two-way transmission, the Commission

finds that our original proposed division into one paired block would

not be appropriate and would inhibit the most efficient and effective

[[Page 43121]]

use of the 47 GHz band. The Commission believes that Sky Station's

proposal to divide the entire block into five pairs of 200 MHz channels

each pair, separated by 500 megahertz, effectively accommodates the

predominant use as well as the other likely uses of the band. The

Commission further believes that paired 100-MHz channels would provide

adequate bandwidth for the dominant use, while fostering competition

and diversity of uses among licensees.

35. Finally, in the First NPRM, the Commission proposed to impose a

spectrum cap and limit each licensee to a single spectrum block in each

band in the same area, so that the licensee would not be permitted to

own both licenses in the same band in any area. The Commission will

address any spectrum limitation in the proceeding to establish the

service rules to implement the framework we adopt here, which

proceeding we will initiate shortly.

36. It is the Commission intent to complete the licensing of the 47

GHz band as quickly as possible to achieve our goal as stated in the

First NPRM--to promote the commercial availability of millimeter wave

technologies in providing the potentially valuable uses of licensed

spectrum above 40 GHz.

Procedural Matters and Ordering Clauses

Final Regulatory Flexibility Analysis

37. As required by the Regulatory Flexibility Act, 5 U.S.C. 603

(RFA), an Initial Regulatory Flexibility Analysis (IRFA) was

incorporated in the First NPRM in this proceeding. The Commission

sought written public comments on the proposals in the First NPRM,

including on the IRFA. The Commission's Final Regulatory Flexibility

Analysis (FRFA) in this Second R&O conforms to the RFA, as amended by

the Contract with America Advancement Act of 1996 (CWAAA), Pub. L. 104-

121, 110 Stat. 846 (1996).

I. Need for and Objectives of Action

38. We proposed in the First NPRM to open spectrum in the 47.4-48.2

GHz band for commercial, licensed use on an area-wide basis in a paired

license block in order to promote the use of the millimeter wave region

of the spectrum above 40 GHz. We adopt our proposals, with modification

to the licensing blocks, for the entire 47.2-48.2 GHz band (47 GHz

band) in order to achieve our goal to expedite the commercial

development of this spectrum.

39. Advances in millimeter wave technology will enable new

commercial uses to be achieved and will help meet consumer demand for a

wide range of potential commercial services, which would stimulate

research and the growth of technology. We adopt a licensing framework

that allows the full range of services in the Table of Frequency

Allocations to provide licensees the flexibility to provide the most

efficient and effective services. We identify the potential dominant

use of the 47 GHz band to ensure that the service rules we will propose

in a future proceeding are adequate and appropriate. Licensing on the

basis of a geographic area will ensure that licensees have the

flexibility to provide new services in the most rapid and efficient

manner. Dividing the spectrum into five separated pairs of spectrum

blocks for licensing ensures that licensees in the 47 GHz bands are

able to offer the predominant service, as well as other potential

services, in the most efficient manner.

II. Summary of Significant Issues Raised by the Public Comments in

Response to Initial Regulatory Flexibility Statement

40. Avant-Garde and M/A-Com, Inc. (MACOM) are small entities that

generally support opening the bands above 40 GHz for commercial use to

take advantage of the developments in millimeter wave technology. They

argue that the technology is available for commercial uses and that we

should designate any of the bands for commercial use in order to

stimulate market demand for their products. Sky Station argues that its

proposal to provide a fixed, terrestrial, global service in the 47 GHz

band using stratospheric-based platforms will meet many commercial uses

and promote the growth of a new stratospheric-based technology, rather

than traditional tower-based technology, for delivery of service.

41. Metricom, Inc. (Metricom) requests that we adopt a flexible

regulatory approach for licensed operations that includes very broad

and general rules to encourage the development of equipment and

services. Avant-Garde argues that the spectrum to be made available for

licensing should not be artificially constrained in the manner in which

it is licensed or used. It requests that we reexamine our proposal to

use the LMDS service rules to govern the predominant uses of the bands

above 40 GHz in light of the anticipated uses and changed circumstances

reflected in the filings. It questions whether the licensing scheme we

proposed remains appropriate or whether some other methodology would

better meet the needs of commercial service providers.

42. Sky Station argues that its stratospheric-based platforms would

deliver point-to-multipoint services that can be licensed under the

terrestrial, flexible rules we proposed to adopt for 47 GHz. It argues

that its technology is uniquely suited to take advantage of the

characteristics of the 47 GHz band and will promote the maximum use of

that spectrum. Sky Station argues that the service cannot share co-

channel frequencies with other services and requests we dedicate the

segments of the band at 47.2-47.5 Ghz and 47.9-48.2 GHz to its

exclusive use and modify the Table of Frequency Allocations

accordingly.

43. Sky Station supports the use of area-wide licensing and

requests that we adopt large service areas that are super-regional in

size. Sky Station opposes our proposal to adopt a single pair of

contiguous license blocks, and argues that the spectrum should be

divided into five pairs of 100 MHz each that are separated by 500 MHz

to ensure flexibility. P-Com, Inc. argues that we should be careful to

divide the spectrum to reflect the proposed use, and that paired blocks

with maximum frequency separation are required for fixed service, two-

way links such as point-to-multipoint operations.

III. Description and Estimate of the Number of Small Entities to Which

Rules Will Apply

44. The determinations we adopt to open 47 GHZ for commercial use

under a flexible licensing framework authorizing any service under the

Table of Frequency Allocations on an area-wide basis would apply to all

entities that apply for a license, including small entities.

45. The definition that SBA has developed that approximates most

closely the services that may be provided by the licensees would be the

definition applicable to radiotelephone companies. The definition of

radiotelephone companies provides that a small entity is a

radiotelephone company employing 1,500 or fewer persons.5

The size data provided by SBA do not enable us to make an accurate

estimate of the number of telecommunications providers which are small

entities because it combines all radiotelephone companies with 500 or

more employees.6 We therefore use the 1992 Census of

Transportation,

[[Page 43122]]

Communications, and Utilities, conducted by the Bureau of the Census,

which is the most recent information available. This document shows

that only 12 radiotelephone firms out of a total of 1,178 such firms

which operated during 1992 had 1,000 or more employees.7

Therefore, the majority of entities to provide telecommunications

services in the 47 GHz band may be small businesses under SBA's

definition.

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\5\ 13 CFR 121.201, Standard Industrial Classification (SIC)

4812.

\6\ U.S. Small Business Administration 1992 Economic Census

Employment Report, Bureau of the Census, U.S. Department of

Commerce, Table 3, SIC 4812 (radiotelephone communications industry

data adopted by the SBA Office of Advocacy).

\7\ U.S. Bureau of the Census, U.S. Department of Commerce, 1992

Census of Transportation, Communications, and Utilities, UC92-S-1,

Subject Series, Establishment and Firm Size, Table 5, Employment

Size of Firms: 1992, SIC 4812 (issued May 1995).

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46. The Commission has not developed a definition of small entities

applicable to licensees in the 47 GHz band, because the band is being

opened for the first time for commercial, licensed use in this Second

R&O and has not been subject to licensing. The RFA amendments were not

in effect when the First NPRM was released, and no data has been

received establishing the number of small businesses to be associated

with services in the band. Although we proposed to auction the spectrum

for assignment, we did not request information regarding the potential

number of small businesses interested in obtaining licenses. We do not

adopt in the Second R&O our proposal to auction the spectrum, and

instead will seek additional comment in a future Notice of Proposed

Rulemaking in which we will also propose the service rules to implement

services in the 47 GHz band. Thus, we are unable to estimate the

potential number of entities that may apply for a license that may be

small businesses.

IV. Description of Projected Reporting, Recordkeeping, and Other

Compliance Requirements

47. We do not adopt any rules that entail reporting, recordkeeping,

and third party consultation. Until we adopt service rules to govern

the licensing, operating, and technical aspects of our decision, there

are no requirements to impose on any entities.

V. Significant Alternatives to Proposed Rules Which Minimize

Significant Economic Impact on Small Entities and Accomplish Stated

Objectives

48. We agree with many small entities that opening up the 47 GHz

band for commercial uses is timely and feasible, and would be in the

public interest. Small entities, such as Avant-Garde and MACOM, see

many future market opportunities and have developed equipment, or

expect to readily modify equipment, to meet consumer demand for the

kinds of services to be provided. Sky Station has developed an

innovative technology that uses platforms fixed in the stratosphere to

deliver services in an efficient and effective manner. They and other

small or new entities will benefit from the demand for commercial

applications of their technologies.

49. We agree with commenters, such as Avant-Garde and Metricom, to

adopt the flexible licensing framework we proposed that authorizes any

service allowed under the Table of Frequency Allocations. We find that

a broadly defined service allocation assures that the 47 GHz band will

be used to the greatest benefit of the public by giving licensees,

including small entities, the flexibility to meet demands. We also

adopt our proposal to prescribe service rules for the licensing of the

band based on what the dominant use is likely to be, as demonstrated by

the comments. We agree with Avant-Garde to reexamine the likely uses

and find that, while the predominant uses are the fixed point-to-

multipoint uses we predicted, they would not be based on LMDS-type

technology but rather on millimeter wave technology based on

stratospheric platforms for delivery of service as proposed for the 47

GHz band by Sky Station. We deny Sky Station's request to modify the

Table of Frequency Allocations to protect its service, and find that

its need for protection from interference is properly addressed in the

future proceeding in which we will establish the technical and

operational service rules to govern the authorized services in the

band.

50. We decide to adopt our proposal to license on the basis of

geographic areas in order to enable the broadest range of uses for the

band and ensure efficient and effective operations. Area-based

licensing provides greater operational flexibility and ease of

administration that is particularly beneficial to small entities. We

defer questions about the appropriate size of the area as raised by Sky

Station to our consideration of service rules in a future proceeding.

51. Because of the change in the potential predominant use for the

band, we do not adopt our proposed channelization plan and instead

revise the subdivision of the spectrum to reflect the proposed uses, as

P-Com requests. We agree with Sky Station to divide the bands into five

pairs of 100 megahertz channels, with each pair separated by 500

megahertz. This provides adequate bandwidth to accommodate the

predominant uses.

VI. Report to Congress

52. We will submit a copy of this Final Regulatory Flexibility

Analysis, along with the Order, in a report to Congress pursuant to 5

U.S.C. 801(a)(1)(A).

53. It is ordered that the actions of the Commission herein are

taken pursuant to sections 4(i), 257, 303(r), and 309(j) of the

Communications Act of 1934, 47 U.S.C. 154(i), 257, 303(r), 309(j).

54. It is further ordered that these actions shall take effect

October 14, 1997.

55. It is further ordered that the Request and Petition and

Application filed by Sky Station, the Further Comments filed by Sky

Station, and the comments and reply comments filed in response thereto,

are accepted in this record as late-filed comments.

56. It is further ordered that the spectrum 47.2-48.2 GHz (47 GHz

band) is designated for licensed, commercial use on the basis of area-

wide licenses in accordance with the terms of this Second R&O.

57. It is further ordered that a division of the spectrum for

license blocks is adopted for the 47 GHz band that divides the band

into five spectrum blocks of 200 megahertz each for licensing, with

each block consisting of a pair of 100 megahertz channels separated by

500 megahertz.

List of Subjects

47 CFR Part 2

Communications equipment.

47 CFR Part 15

Communications equipment, Radio.

47 CFR Part 97

Communications equipment, Radio.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97-21180 Filed 8-11-97; 8:45 am]

BILLING CODE 6712-01-P