Subject: [NEXTEL-1] Amendments to Parts 1, 2, 27, and 90 of the Commission's Rules to License Services in the 216-220 MHz, 1390-1395 MHz...

From: [email-masked]
Date: Tue, 19 Aug 2003 18:55:30 -0400

Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of

Amendments to Parts 1, 2, 27, and 90 of the Commission's Rules to License Services
in the 216-220 MHz, 1390-1395 MHz, 1427-1429 MHz, 1429-1432 MHz, 1432-1435 MHz,
1670-1675 MHz, and 2385-2390 MHz Government Transfer Bands
WT Docket No. 02 - 8
RM-9267
RM-9692
RM-9797
RM-9854
RM-9882

MEMORANDUM OPINION AND ORDER

   Adopted:  August 7, 2003 Released:  August 19, 2003

By the Commission:

I. INTRODUCTION AND EXECUTIVE SUMMARY

1. In this Memorandum Opinion and Order, we address three petitions for
reconsideration  and two petitions for clarification  of the Report and Order,
released on May 24, 2002, in this proceeding.  The Report and Order adopted
service rules to govern the licensing of 27 MHz of electromagnetic spectrum in the
216-220 MHz, 1390-1395 MHz, 1427-1429 MHz, 1429-1432 MHz, 1670-1675 MHz, and
2385-2390 MHz bands, which were reallocated for non-Government use.   In addition,
on our own motion, we correct certain rules that were adopted in the Report and
Order, and adopt further rule amendments codifying decisions made by the
Commission in the Report and Order.   We believe that our decision will promote
the delivery of technologically innovative services to the public in a manner that
provides sufficient interference protection to both existing and future operations
entitled to such protection.

2. In this Memorandum Opinion and Order, we reach the following decisions:

 We decline to require that each 1392-1395 MHz band station register with the
American Society of Health Care Engineering of the American Hospital Association
(ASHE) upon initiating operations, as such a requirement would be contrary to the
regulatory flexibility that is inherent with a geographic area license.

 We instruct ASHE and LMCC to present a joint coordination plan for the 1427-1432
MHz band, which is used by both Wireless Medical Telemetry Service (WMTS) and
site-based non-medical telemetry, within one year of the release date of this
Memorandum Opinion and Order.

 We decline to impose coordination procedures on the 1432-1435 MHz band licensees
that operate within a hundred miles of 1435-1525 MHz flight test sites.

 We modify the channel plans that were adopted in the Report and Order for the
217-220 MHz and 1427-1432 MHz bands so that licensees can employ 25 kHz or 50 kHz
bandwidths with center frequencies that require no more than three decimal places
of accuracy (e.g., 217.025 MHz), rather than five to six decimal places of
accuracy (e.g., 217.015625 MHz).

II. BACKGROUND

3. On January 2, 2002, the Commission released a Reallocation Report and Order in
ET Docket 00-221.   Upon consideration of the record, it implemented a band plan
to reallocate the subject spectrum bands for non-Government use consistent with
the framework established in the Commission’s November 1999 Spectrum Policy
Statement.   Generally, the Commission allocated the 216-220 MHz band to the fixed
and mobile (except aeronautical telemetry) services on a co-primary basis and
elevated the Low Power Radio Services from secondary to primary status in the
216-217 MHz band.   In making this allocation, the Commission stated that the
reallocation of the 216-220 MHz band does not disturb the status of the Automated
Maritime Telecommunication Systems or 218-219 MHz Services.   The Commission
allocated the 1390-1392 MHz, 1392-1395 MHz, 1432-1435 MHz, and 1670-1675 MHz bands
to the fixed and mobile (except aeronautical mobile) services on a primary
basis.   The 2385-2390 MHz band was allocated to the fixed and mobile services on
a primary basis.   The Commission shifted the allocation of WMTS from the
1429-1432 MHz band to the 1427-1429.5 MHz band and maintained the secondary status
of non-medical telemetry systems in the band.   Telemetry in the 1429.5-1432 MHz
band was elevated to primary status.   Finally, the Commission conditionally
allocated the 1390-1392 MHz band for Non-Geosynchronous Satellite Orbit (NGSO)
Mobile Satellite Service (MSS) feeder uplinks and the 1430-1432 MHz band for NGSO
MSS feeder downlinks.

4. In the Report and Order in this proceeding, the Commission adopted licensing
and service rules for the subject spectrum bands, including technical
specifications and coordination procedures to minimize the potential of harmful
interference to co-channel or adjacent channel incumbent operations.  The Report
and Order was published in the Federal Register on June 20, 2002.   On July 22,
2002, Final Analysis Communication Services, Inc. (FACS) filed a petition for
clarification.  On that same date, Aerospace and Flight Test Radio Coordinating
Council (AFTRCC), ASHE, and Celtronix Telemetry, Inc. (Celtronix) filed petitions
for reconsideration.  On August 8, 2002, AFTRCC filed comments and a supplement to
its petition for reconsideration.  On November 5, 2002, the Ornithological Council
requested clarification.

III. DISCUSSION

 A. Petitions for Reconsideration

5. The 216-220 MHz Band.  In the Report and Order, the Commission adopted a
requirement that the transmit output power of secondary telemetry in the 217-220
MHz band be limited to two watts.   Previously, our rules contained no maximum
power for secondary telemetry operations in this band; authorized power was
specified on the authorization on a case-by-case basis.   The Commission adopted a
power limit because it believed that such a restriction was necessary to minimize
the possibility of harmful interference to primary users in the 217-220 MHz
band.   Celtronix, an incumbent secondary telemetry operator, requests rescission
of the new power limit requirement, at least to the extent that the limitation
applies to incumbents whose licenses authorize a higher power level.   We grant
Celtronix’s petition to the extent that we now clarify that the newly adopted
requirement to limit the transmit output power of secondary telemetry in the
217-220 MHz band to two watts does not apply to incumbent stations.  Instead,
incumbent stations will be grandfathered under their existing parameters.  Should
an incumbent choose to add stations to its system or modify its existing stations,
the new or modified stations will be required to comply with the two-watt power
limit.

6. Additionally, the Ornithological Council, which represents ten scientific
societies of biologists who engage in the scientific study of birds as a branch of
zoology, requested clarification  of the relation between Section 90.248(f) of the
Commission’s Rules, which permits 216-220 MHz airborne wildlife applications if
the transmitter does not exceed one milliwatt of power,  and Section 90.259(c)(3)
of the Commission’s Rules (as renumbered in the Report and Order), which states
that airborne telemetry  use of this band is prohibited.   We will revise Section
90.259(c)(3) to clarify that the general prohibition on airborne use for general
telemetry in Section 90.259(c)(3) does not preclude the airborne wildlife
applications permitted by Section 90.248(f).

7. The 1390-1392 MHz and 1430-1432 MHz Bands.  As noted above, the allocation in
the Reallocation Report and Order of the 1390-1392 MHz and 1430-1432 MHz bands to
NGSO MSS feeder uplinks and downlinks on a primary basis is contingent upon the
adoption of an international allocation at the 2003 International
Telecommunication Union World Radiocommunication Conference.   In the Notice of
Proposed Rule Making in this proceeding, the Commission concluded that the public
interest would be best served by addressing terrestrial and satellite sharing in
these bands in a separate proceeding once the ongoing sharing studies are
completed and the international allocation of this spectrum is secured.   FACS, a
non-voice NGSO MSS licensee, seeks clarification that, if and when the contingency
is met, we may need to modify the service rules adopted in this proceeding for the
1390-1392 MHz and 1430-1432 MHz bands, and place secondary status conditions on
the licenses granted to terrestrial operators pursuant to those service rules in
order to ensure that satellite operations will not suffer harmful interference.
Subsequently, however, WRC-03 adopted a secondary allocation for NGSO MSS feeder
uplinks and downlinks in the 1390-1392 MHz and 1430-1432 MHz bands.  The
international allocation is contingent on the completion of compatibility studies,
which will be reported at the next World Radiocommunication Conference, in 2007.
We grant the FACS request to the limited extent that we reiterate that we intend
to address terrestrial and satellite sharing rules and procedures in these bands
in a separate proceeding at the appropriate time.   We will not, however, at this
time, further address terrestrial and satellite sharing requirements for the
1390-1392 MHz and 1430-1432 MHz bands.

8. The 1392-1395 MHz and 1427-1432 MHz Bands.  In the Report and Order, the
Commission concluded that the paired 1392-1395 MHz and 1432-1435 MHz bands will be
licensed for flexible use in six geographic areas.   These bands will be
authorized to provide a variety or combination of fixed, mobile, common carrier,
and non-common carrier services.   It determined that in order to protect adjacent
band WMTS operations, 1392-1395 MHz facilities would be limited to a measured or
predicted field strength of 150 uV/m that may be radiated at the site of any WMTS
operation in the 1395-1400 MHz band.   The Commission did not believe, however,
that protection of WMTS also necessitated adoption of adjacent band frequency
coordination procedures.  Regarding the 1427-1429.5 MHz and 1429.5-1432 MHz bands,
which are used by WMTS and site-based non-medical telemetry,  it limited
non-medical telemetry licensees to a measured or predicted field strength of no
more than 150 uV/m into the WMTS portions of the band.   In addition, the
Commission provided that each Part 90 frequency coordinator must, within one
business day of making a frequency recommendation for non-medical telemetry
operations in the 1427-1432 MHz band, notify and provide technical information
regarding the proposed telemetry operations to ASHE, the WMTS frequency
coordinator.   The Commission also concluded that upon the initial deployment of
WMTS equipment in the 1427-1432 MHz band, ASHE must notify all non-medical
telemetry licensees potentially affected by such deployment (i.e., those telemetry
licensees that may have to modify their operations in order to avoid causing
harmful interference to WMTS facilities).

9. ASHE seeks reconsideration of the Commission’s decision to not impose adjacent
band frequency coordination procedures on 1392-1395 MHz licensees.  ASHE argues
that 1392-1395 MHz licensees should be required to register their stations with
ASHE upon initiating operations.   ASHE argues that, absent such a requirement, it
will have difficulty identifying the 1392-1395 MHz band stations that may cause
interference to adjacent channel WMTS operations and expediting the resolution of
such interference.   Based on the record currently before us, we are not persuaded
by ASHE’s argument.  Given the limited number of 1392-1395 MHz licensees
nationwide, and the availability of licensing information for these 1392-1395 MHz
band licensees on the Commission’s Universal Licensing System (ULS), we do not
believe that it will be difficult for adjacent channel WMTS licensees to identify
potential sources of interference.  Furthermore, we are concerned that requiring
the registration of each 1392-1395 MHz band station, as ASHE proposes, would
impair the regulatory flexibility that the Commission intended to grant with a
geographic area license.

10. Regarding the 1427-1432 MHz band, ASHE argues that insufficient interference
protection to WMTS operations is provided by the requirement that each Part 90
frequency coordinator notify and provide technical information regarding the
proposed telemetry operations to ASHE within one business day of making a
frequency recommendation for non-medical telemetry operations.   ASHE argues that
WMTS incumbents will have a greater assurance of interference protection if Part
90 frequency coordinators are also required to contact ASHE and examine its WMTS
database prior to making their recommendations.   We are not persuaded that we
should impose any further obligations upon the Part 90 frequency coordinators at
this time.   We nonetheless reiterate our continuing expectation that the Part 90
frequency coordinators, which are certified by the Commission and can be
de-certified for poor performance,  will make use of all relevant information,
such as ASHE’s WMTS database, before making a frequency recommendation in the
1427-1432 MHz band.  We, of course, have the discretion to revisit this issue in
the future, if we find that the coordination procedures are not providing
sufficient interference protection to WMTS operations.

11. ASHE also argues that it lacks the expertise and resources to comply with the
requirement that it identify and then notify all non-medical telemetry licensees
that are potentially affected by the deployment of WMTS equipment at a given
facility.   As an alternative, ASHE recommends that upon initial deployment of
WMTS equipment, it should be required to notify only the Part 90 frequency
coordinators who, ASHE suggests, are better equipped to identify and notify all
potentially affected telemetry licensees.   In light of ASHE’s concerns regarding
our recommended coordination procedures and in furtherance of our continuing
efforts to ensure protection of WMTS operations from harmful interference, we
believe that it would be in the public interest to provide ASHE and LMCC with the
opportunity to formulate a mutually agreeable coordination plan.  Therefore,
within one year of the release date of this Memorandum Opinion and Order, we
request that ASHE and LMCC file a joint coordination plan.

12. The 1432-1435 MHz Band.  In its comments to the Notice of Proposed Rule Making
in this proceeding, AFTRCC, an association of aerospace companies engaged in the
design, development, manufacture, and testing of commercial and military aircraft,
space vehicles, missiles, and weapons systems, argued that the Commission should
adopt frequency coordination procedures for licensees in the 1432-1435 MHz and
2385-2390 MHz bands in order to limit interference to flight test operations in
the 1435-1525 MHz and 2360-2385 MHz bands.   While recognizing the importance of
aeronautical flight test telemetry, the Commission concluded in the Report and
Order that imposing AFTRCC’s proposed coordination requirements would not be in
the public interest, because such requirements would be onerous and could
jeopardize the viability of operations in the 1432-1435 MHz and 2385-2390 MHz
bands.   The Commission also concluded that aeronautical flight test operations
would be afforded sufficient protection from adjacent band interference by
limiting out-of-band emissions.

13. In its petition for reconsideration of the Report and Order, AFTRCC again
requests that we adopt adjacent band coordination procedures for licensees in the
1432-1435 MHz band.   AFTRCC argues that there will be inadequate protection if
licensees of the 1432-1435 MHz band are required to provide adjacent band
interference protection only to the extent that such radiation exceeds the limits
on out-of-band emissions.   Because it contends that permitted out-of-band
emissions can travel great distances,  it recommends that coordination procedures
be imposed on the 1432-1435 MHz licensees that operate within a hundred miles of
each flight test site.   Noting that the Commission routinely imposes such
coordination procedures on other wireless services without any suggestion that
such procedures will be unusually burdensome, AFTRCC argues that the Commission’s
decision to reach a contrary conclusion in this instance is untenable.

14. We do not share AFTRCC’s concern that permitted out-of-band emissions from the
1432-1435 MHz band will jeopardize the integrity of flight test telemetry
operations.  We believe that 1432-1435 MHz signal attenuation, caused by distance
and terrain, reduces the risk of adjacent band interference.  Moreover, because
there are a limited number of cites where flight test operations currently exist
and may arise, we believe that such operations can be protected on a case-by-case
basis through the use of certain mitigation techniques, such as
boresight-to-boresight avoidance.   In view of the foregoing, we conclude that
coordination procedures in this instance are unnecessary, and whatever perceived
benefits they may provide would not be commensurate with the burden that they
would impose on the 1432-1435 MHz band licensees.  Therefore, as in the Report and
Order,  we decline to adopt AFTRCC’s recommendation.  We nonetheless encourage
1432-1435 MHz band licensees to utilize mitigation techniques, to the extent
practicable, in those areas where flight test operations exist.

 B. Channel Plans for 217-220 MHz and 1427-1432 MHz Telemetry Operations

15. In the Report and Order, the Commission adopted channel plans for telemetry
operations in the 217-220 MHz and 1427-1432 MHz bands.   For the 217-220 MHz band,
the Commission adopted a 6.25 kHz channel spacing requirement for narrowband
operations, starting at 217.00625 MHz.   For the 1427-1432 MHz band, the
Commission adopted a 12.5 kHz channel spacing requirement for narrowband
operations, starting at 1427.0125 MHz.    Licensees in both bands are permitted to
combine contiguous narrowband channels for operation up to 50 kHz, or more than 50
kHz upon a showing of adequate justification.

16. As Commission staff began to modify ULS to implement these channel plans, and
licensees prepared to conform to the new rules, it became clear that the channel
plans adopted in the Report and Order could create difficulty for licensees who
employ wider band operations.  The Report and Order allows licensees to
“construct” 25 kHz or 50 kHz channels by combining underlying contiguous
narrowband channels.  Building wider bandwidth channels from the narrowband
channels established in the Report and Order, however, will result in 25 kHz and
50 kHz channels with center frequencies that require five to six decimal places of
accuracy.   We are concerned that requiring such accuracy may greatly increase the
cost of transmitting equipment for these bands.  For instance, Data Flow, a
manufacturer of equipment in the 217-220 MHz band, states that their existing 25
kHz equipment is capable of transmitting only on frequencies that require – at
most – three decimal places of accuracy (i.e., 217.025 MHz).   Data Flow indicates
that modifying the circuitry in its equipment to meet six decimal places of
accuracy would be extremely costly.   Data Flow also notes that virtually every
licensee operating in the 217-220 MHz band currently transmits on frequencies
which require only three decimal places of accuracy (i.e., 217.025 MHz, 217.050
MHz, 217.075 MHz, etc.).

17. In view of the foregoing, we will amend the channel plans for the 217-220 MHz
and 1427-1432 MHz bands so as to allow licensees who employ wider band operations
to continue operating on channels with center frequencies that require fewer then
five decimal places of accuracy.  For the 217-220 MHz band, we retain the existing
channel plan for 6.25 kHz channels, but overlay new channel plans, with new center
frequencies, for 12.5 kHz, 25 kHz, and 50 kHz channels.  The amended 217-220 MHz
band channel plan will ensure that both 25 kHz and 50 kHz channels will require
only three decimal places of accuracy (i.e., 217.025 MHz, 217.075 MHz, 217.125
MHz, etc.).   As for the 1427-1432 MHz band, we will shift the channel plan
adopted in the Report and Order downward by 6.25 kHz.  As the LMCC notes, such a
shift will accommodate incumbents who employ 50 kHz bandwidth equipment.   After
the shift, 50 kHz channels will require only three decimal places of accuracy
(i.e., 1427.025 MHz, 1427.075 MHz, 1427.125 MHz, etc.).  Although the 25 kHz
channels will require four decimal places of accuracy after the shift (i.e.
1427.0125 MHz, 1427.0375 MHz, 1427.0625 MHz, etc.), we believe that this is less
of a problem for the 1427-1432 MHz band than the 217-220 MHz band because there
are fewer incumbents in the 1427-1432 MHz band who employ bandwidths that are less
than 50 kHz.  Moreover, we believe that 1427-1432 MHz band equipment can be
designed to operate with more accurate center frequencies, if, in the future,
there is an increase in the number of 1427-1432 MHz licensees who seek to employ
bandwidths that are less than 50 kHz.

IV. PROCEDURAL MATTERS

 A. Supplemental Final Regulatory Flexibility Analysis

18. A Supplemental Final Regulatory Flexibility Analysis has been prepared for
this Memorandum Opinion and Order and is included in Appendix A.

 B. Ordering Clauses

19. ACCORDINGLY, IT IS ORDERED that Parts 1, 27, 90, and 95 of the Commission's
Rules ARE AMENDED as specified in Appendix B, effective 60 days after publication
in the Federal Register.

20. IT IS FURTHER ORDERED pursuant to Sections 4(i), 303(r), and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r), 405, and
Section 1.429 of the Commission’s Rules, 47 C.F.R. § 1.429, that the petition for
reconsideration filed by Aerospace and Flight Test Radio Coordinating Council on
July 22, 2002 IS DENIED IN PART to the extent set forth above.

21. IT IS FURTHER ORDERED pursuant to Sections 4(i), 303(r), and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r), 405, and
Section 1.429 of the Commission’s Rules, 47 C.F.R. § 1.429, that the petition for
reconsideration filed by the American Society for Health Care Engineering of the
American Hospital Association on July 22, 2002 IS DENIED.

22. IT IS FURTHER ORDERED pursuant to Sections 4(i), 303(r), and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r), 405, and
Section 1.429 of the Commission’s Rules, 47 C.F.R. § 1.429, that the petition for
reconsideration filed by Celtronix Telemetry, Inc. on July 22, 2002 IS GRANTED to
the extent set forth above.

23. IT IS FURTHER ORDERED pursuant to Sections 4(i), 303(r), and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r), 405, that the
petition for clarification filed by Final Analysis Communication Services, Inc. on
July 22, 2002 IS PARTIALLY GRANTED and PARTIALLY DENIED to the extent set forth
above.

24. IT IS FURTHER ORDERED pursuant to Sections 4(i), 303(r), and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r), 405, and
Section 1.429 of the Commission’s Rules, 47 C.F.R. § 1.429, that the petition for
reconsideration filed by Itron, Inc. on July 22, 2002 IS DISMISSED.

25. IT IS FURTHER ORDERED pursuant to Sections 4(i), 303(r), and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r), 405, that the
petition for clarification filed by the Ornithological Council on November 5, 2002
IS GRANTED.

 C. Further Information

26.    For further information concerning the Memorandum Opinion and Order,
contact Keith Fickner regarding legal matters, and Brian Marenco or Tim Maguire
regarding engineering matters via phone at (202) 418-0680, TTY (202) 418-7233, or
via e-mail at [email-masked], [email-masked], or [email-masked],
respectively, Wireless Telecommunications Bureau, Federal Communications
Commission, Washington, D.C. 20554.

27. Alternative formats (computer diskette, large print, audio cassette, and
Braille) are available to persons with disabilities by contacting Brian Millen at
(202) 418-7426, TTY (202) 418-7365, or via e-mail to [email-masked].  This
Memorandum Opinion and Order can be downloaded at
http://www.fcc.gov/Wireless/Orders/2003/fcc03204.txt.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch
Secretary
 Appendix A – Supplemental Final Regulatory Flexibility Analysis

1. As required by the Regulatory Flexibility Act (RFA),  a Final Regulatory
Flexibility Analysis (FRFA) was incorporated in the Report and Order.   In view of
the fact that we have adopted further rule amendments in this Memorandum Opinion
and Order, we have included this Supplemental Final Regulatory Flexibility
Analysis (SFRFA).  This present SFRFA conforms to the RFA.
Need for, and Objectives of the Memorandum Opinion and Order:

2. In this Memorandum Opinion and Order, on our own motion, we correct certain
rules that were adopted in the Report and Order, and adopt further rule amendments
that the Commission inadvertently failed to adopt in the Report and Order.  In the
Report and Order, the Commission adopted rules for the licensing and operation of
fixed and mobile services in the 216-220 MHz, 1390-1395 MHz, 1427-1429.5 MHz,
1429.5-1432 MHz, 1432-1435 MHz, 1670-1675 MHz and 2385-2390 MHz bands pursuant to
the provisions of the Communications Act of 1934, as amended, the Omnibus Budget
Reconciliation Act of 1993 (OBRA-93), and the Balanced Budget Act of 1997
(BBA-97).  The transfer of these bands to non-Government use should enable the
development of new technologies and services, provide additional spectrum relief
for congested private land mobile frequencies, and fulfill our obligations as
mandated by Congress to assign this spectrum for non-Government use.

3. The Report and Order established competitive bidding rules and small business
definitions for the unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385-2390 MHz
bands, and the paired 1392-1395 MHz and 1432-1435 MHz bands similar to those
applied to the WCS 2.3 GHz band and the 700 MHz Guard Bands.   Consistent with the
Commission’s responsibility under Section 309(j) to promote opportunities for, and
disseminate licenses to, a wide variety of applicants,  the Report and Order
adopted small business size standards and bidding preferences for qualifying
bidders that will provide such bidders with opportunities to compete successfully
against large, well-financed entities.  Specifically, with respect to the
aforementioned bands, we define a “small business” as any entity with average
annual gross revenues for the three preceding years not exceeding $40 million, and
a “very small business” as any entity with average annual gross revenues for the
three preceding years not exceeding $15 million.   Correspondingly, the Commission
adopted a bidding credit of 15 percent for “small businesses” and a bidding credit
of 25 percent for “very small businesses.”   This bidding credit structure is
consistent with the Commission’s standard schedule of bidding credits, which may
be found at Section 1.2110(f)(2) of the Commission’s rules.

Summary of Significant Issues Raised by Public Comments in Response to the FRFA.

4. We received no comments in response to the FRFA in the Report and Order.  We
continue to believe that the policies and rules adopted in this Report and Order
will better enable small entities to compete for licenses in the unpaired
1390-1392 MHz, 1670-1675 MHz, and 2385-2390 MHz bands, and the paired 1392-1395
MHz and 1432-1435 MHz bands.
Description and Estimate of the Number of Small Entities To Which the Rules Will
Apply:

5. The RFA directs agencies to provide a description of, and, where feasible, an
estimate of the number of small entities that may be affected by the proposed
rules, if adopted.   The RFA defines the term “small entity” as having the same
meaning as the terms “small business,” “small organization,” and “small business
concern” under section 3 of the Small Business Act.   A small business concern is
one which: (1) is independently owned and operated; (2) is not dominant in its
field of operation; and (3) satisfies any additional criteria established by the
SBA.   Nationwide, as of 1992, there were approximately 275,801 small
organizations.   “Small governmental jurisdiction” generally means “governments of
cities, counties, towns, townships, villages, school districts, or special
districts, with a population of less than 50,000.”   As of 1992, there were
approximately 85,006 such jurisdictions in the United States.  This number
includes 38,978 counties, cities, and towns; of these, 37,566, or ninety-six
percent, have populations of fewer than 50,000.   The Census Bureau estimates that
this ratio is approximately accurate for all governmental entities.  Thus, of the
85,006 governmental entities, we estimate that 81,600 (ninety-one percent) are
small entities.

6. Wireless Service Providers.  The SBA has developed a definition for small
business within the two separate categories of Cellular and Other Wireless
Telecommunications or Paging.  Under that SBA definition , such a business is
small if it has 1,500 or fewer employees.   According to the Commission’s
Telephone Trends Report data, 1,495 companies reported that they were engaged in
the provision of wireless service.   Of these 1,495 companies, 989 reported that
they have 1,500 or fewer employees and 506 reported that, alone or in combination
with affiliates, they have more than 1,500 employees.  We do not have data
specifying the number of these carriers that are not independently owned and
operated, and thus are unable at this time to estimate with greater precision the
number of wireless service providers that would qualify as small business concerns
under the SBA’s definition.  Consequently, we estimate that there are 989 or fewer
small wireless service providers that may be affected by the rules adopted in this
proceeding.  Below, we further describe and estimate the number of small entity
licensees and regulatees that may be affected by the rules adopted in this
proceeding.  Except as noted, these services are associated with the above SBA
small business size standard.

7. With respect to the 1390-1392 MHz band, the Commission will award a single 2
MHz license in each of fifty-two Major Economic Areas (MEAs).  For the 1670-1675
MHz, and 2385-2390 MHz bands, the Commission will award a single nationwide
license in each band.  For the paired 1392-1395 MHz and 1432-1435 MHz bands, the
Commission will award a pair of 1.5 MHz licenses in each of six Economic Area
Groupings (EAGs).  For the 1432-1435 MHz band, the Commission will award licenses
on a site by-site basis.  The Commission does not yet know how many applicants or
licensees in any of these bands will be small entities.

8. Existing services in other bands include entities that might be affected by the
rules, either as existing licensees or potential applicants or licensees.
Incumbent services in the 1427-1429.5 MHz and 1429.5-1432 MHz bands include
wireless medical telemetry (WMTS) and general telemetry.

9. Telemetry.  Incumbent non-medical telemetry operators in the 1427-1429.5 MHz
and 1429.5-1432 MHz bands include Itron, Inc., Pueblo Service Company of Colorado
and E Prime, Inc., and large manufacturers such as Deere and Company, Caterpillar,
and General Dynamics. None of these licensees are likely to be small businesses.
Itron, Inc. is the primary user of the 1427-1429.5 MHz and 1429.5-1432 MHz bands.
Itron, Inc., with an investment of $100 million in equipment development, is not
likely to be a small business.  One licensee, Zytex, a manufacturer of high-speed
telemetry systems, may be a small business.  The Commission does not yet know how
many applicants or licensees in these bands will be small entities.

10. WMTS.  Users of medical telemetry are hospitals and medical care facilities,
some of which are likely to be small businesses.  The broad category of Hospitals
consists of the following categories and the following small business providers
with annual receipts of $29 million or less: General Medical and Surgical
Hospitals, Psychiatric and Substance Abuse Hospitals, and Specialty Hospitals.
For all these health care providers, census data indicate that there is a combined
total of 330 firms that operated in 1997, of which 237 or fewer had revenues of
less than $25 million.   An additional 45 firms had annual receipts of $25 million
to $49.99 million.   We therefore estimate that most Hospitals are small, given
SBA’s size categories.

11. The broad category of Nursing and Residential Care Facilities consists of the
following categories and the following small business size standards.   The
category of Nursing and Residential Care Facilities with annual receipts of $6
million or less consists of: Residential Mental Health and Substance Abuse
Facilities, Homes for the Elderly, and Other Residential Care Facilities.  The
category of Nursing and Residential Care Facilities with annual receipts of $8.5
million or less consists of Residential Mental Retardation Facilities.  The
category of Nursing and Residential Care Facilities with annual receipts of less
than $11.5 million consists of: Nursing Care Facilities and Continuing Care
Retirement Communities.  For all of these health care providers, census data
indicate that there is a combined total of 18,011 firms that operated in 1997.
Of these, 16,165 or fewer firms had annual receipts of below $5 million.   In
addition, 1,205 firms had annual receipts of $5 million to $9.99 million, and 450
firms had receipts of $10 million to $24.99 million.   We therefore estimate that
a great majority of  Nursing and Residential Care Facilities are small, given
SBA’s size categories.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements:

12. This Memorandum Opinion and Order imposes no new reporting, recordkeeping or
other compliance requirements not previously adopted in this proceeding.
Steps Taken to Minimize Significant Economic Impact on Small Entities, and
Significant Alternatives Considered:

13. The RFA requires an agency to describe any significant alternatives that it
has considered in reaching its proposed approach, which may include the following
four alternatives (among others):  (1) the establishment of differing compliance
or reporting requirements or timetables that take into account the resources
available to small entities; (2) the clarification, consolidation, or
simplification of compliance or reporting requirements under the rule for small
entities; (3) the use of performance, rather than design standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small entities.

14. Regarding our affirmation in the Memorandum Opinion and Order of the
Commission’s decision in the Report and Order to require frequency coordination
for primary and secondary telemetry operations in the 1427-1429.5 MHz and
1429.5-1432 MHz bands,  we do not anticipate any adverse impact on small
entities.  Although there are certain costs associated with filing an application
through an FCC-certified frequency coordinator, on balance, the benefits of
frequency coordination, especially the avoidance of harmful interference, outweigh
any costs. An alternative to this approach would have been to not require
frequency coordination, but this is unacceptable because of high congestion,
primary incumbent operations that must be protected, and the fact that licensees
in these bands must share frequencies.  Our amendment to the channel plans for
telemetry operations in the 217-220 MHz and 1427-1432 MHz bands will benefit small
entities by requiring less precise, and thus, less expensive equipment.
Report to Congress:

15. The Commission will send a copy of this Memorandum Opinion and Order,
including this SFRFA, in a report to be sent to Congress pursuant to the
Congressional Review Act.   In addition, the Commission will send a copy of this
Memorandum Opinion and Order, including this SFRFA, to the Chief Counsel for
Advocacy of the Small Business Administration.  A copy of this Memorandum Opinion
and Order and SFRFA (or summaries thereof) will also be published in the Federal
Register.

 Appendix B – Final Rules
Part 1 of Title 47 of the Code of Federal Regulations, is revised to read as
follows:
 I.   PART 1 – PRACTICE AND PROCEDURE

1.  The authority citation for Part 1 continues to read as follows:
 AUTHORITY:  47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), 309, and 325(e)
unless otherwise noted.
2. Section 1.1307 is corrected to add the 698-746 MHz band to the Wireless
Communications Service (Part 27) as follows:
§ 1.1307  Actions that may have a significant environmental effect, for which
Environmental Assignments (EAs) must be prepared.
* * * * *
 (b)  * * *
TABLE 1 - TRANSMITTERS, FACILITIES AND OPERATIONS SUBJECT TO ROUTINE ENVIRONMENTAL
EVALUATION
SERVICE (TITLE 47 CFR RULE PART) EVALUATION REQUIRED IF:
***** *****
Wireless Communications Service (Part 27)

 (1) for the 1390-1392 MHz, 1392-1395 MHz, 1432-1435 MHz 1670-1675 MHz and
2385-2390 MHz bands:

Non-building-mounted antennas: height above ground level to lowest point of
antenna < 10 m and total power of all channels > 2000 W ERP (3280 W EIRP)
Building-mounted antennas: total power of all channels > 2000 W ERP (3280 W EIRP)

(2) for the 698-746 MHz, 746-764 MHz, 776-794 MHz, 2305-2320 MHz, and 2345-2360
MHz bands

Total power of all channels > 1000 W ERP (1640 W EIRP)
***** *****

 Part 27 of title 47 of the Code of Federal Regulations is revised to read as
follows:
PART 27 – MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES

1. The authority citation for Part 27 continues to read as follows:
 AUTHORITY:  47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and 337, unless
otherwise noted.
2. The cross references in Section 27.11 are corrected to read as follows:
§ 27.11  Initial authorization.
* * * * *
 (e)  1390-1392 MHz band.  Initial authorizations for the 1390-1392 MHz band shall
be for 2 megahertz of spectrum in accordance with §27.5(d).  Authorizations will
be based on Major Economic Areas (MEAs), as specified in §27.6(d).
 (f)  The paired 1392-1395 MHz and 1432-1435 MHz bands.  Initial authorizations
for the paired 1392-1395 MHz and 1432-1435 MHz bands shall be for 3 megahertz of
paired spectrum in accordance with §27.5(e).  Authorization for Blocks A and B
will be based on Economic Areas Groupings (EAGs), as specified in §27.6(e).
 (g)  1670-1675 MHz band.  Initial authorizations for the 1670-1675 MHz band shall
be for 5 megahertz of spectrum in accordance with §27.5(f).  Authorizations will
be on a nationwide basis.
 (h)  2385-2390 MHz band.  Initial authorizations for the 2385-2390 MHz band shall
be for 5 megahertz of spectrum in accordance with §27.5(g).  Authorizations will
be on a nationwide basis.
 Part 90 of title 47 of the Code of Federal Regulations, is amended to read as
follows:
PART 90 – PRIVATE LAND MOBILE RADIO SERVICES
1. The authority citation for Part 90 continues to read as follows:
 AUTHORITY: Sections 4(i), 11, 303(g), 303(r), and 302(c)(7) of the Communications
Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7).
2. Section 90.175 is corrected to remove a reference to itinerant operation in the
217-220 MHz band:
 § 90.175 Frequency Coordinator Requirements.
* * * * *
 (j)  * * *
(13)  Except for applications for the frequencies set forth in §§ 90.719(c) and
90.720, applications for frequencies in the 220-222 MHz band.

(14)  Applications for a state license under § 90.529.

(15) Applications for narrowband low power channels listed for itinerant use in §
90.531(b)(4).

3. Section 90.209 is amended to read as follows:
§ 90.209  Bandwidth limitations.
* * * * *
 (b)  * * *
 (5)  * * *
STANDARD CHANNEL SPACING/BANDWIDTH
Frequency band (MHz) Channel spacing (kHz) Authorized bandwidth (kHz)
*****
216-220 .……………………….
***** *****
6.25
***** *****
320/11.25/6
*****

* * *
 5 Licensees will be allowed to combine contiguous channels up to 50 kHz, and more
than 50 kHz only upon a showing of adequate justification per §90.259(b)(10).

4. Sections 90.259(a)(7), (a)(8) and (b)(9) are adjusted to reflect the new
channel plans for the 217-220 MHz and 1427-1432 MHz bands.  Section (b)(7) is
changed to list the power limits in ERP, rather than EIRP.  Section (c)(3) is
modified to clarify that airborne operations are permitted pursuant to §90.248(f):

 § 90.259  Assignment and use of frequencies in the bands 216-220 MHz and
1427-1432 MHz.
 (a)  * * *

(7)  Frequencies will be assigned with a 6.25 kHz, 12.5 kHz, 25 kHz or 50 kHz
channel bandwidth.  Frequencies may be assigned with a channel bandwidth exceeding
50 kHz only upon a showing of adequate justification.

(8)  Assignable 6.25 kHz channels will occur in increments of 6.25 kHz from
217.00625 MHz to 219.99375 MHz.  Assignable 12.5 kHz channels will occur in
increments of 12.5 kHz from 217.0125 MHz to 219.9875 MHz.  Assignable 25 kHz
channels will occur in increments of 25 kHz from 217.025 MHz to 219.975 MHz.
Assignable 50 kHz channels will occur in increments of 50 kHz from 217.025 MHz to
219.975 MHz.

*  *  *  *  *

(b)  * * * * *

* * *

(7)  For primary operations base, mobile, operational fixed and temporary fixed
operations are permitted.

(i)  At the locations specified in (b)(4) of this section, primary operations are
performed in the 1427-1429 MHz and 1431.5-1432 MHz bands.  The maximum ERP
limitations are as follows:

Operation Frequency range (MHz)
 1427-1428  1428-1428.5 1428.5-1429 1431.5-1432
Fixed 61.1 watts 6.11 watts 0.611 watt 0.611 watt
Mobile 0.611 watt 0.611 watt 0.015 watts 0.015 watts
Temporary fixed 0.611  watt 0.611  watt 0.611  watt 0.611  watt

(ii)  For all other locations, primary operations are performed in the 1429.5-1432
MHz band. The maximum ERP limitations are as follows:

Operation Frequency range (MHz)
 1429.5-1430 1430-1430.5 1430.5-1431.5 1431.5-1432
Fixed 0.611 watt 0.611  watt 6.11 watts 61.1 watts
Mobile 0.015 watts 0.611  watt 0.611  watt 0.611  watt
Temporary fixed 0.611  watt 0.611  watt 0.611  watt 0.611  watt

* * *

(9)  Assignable frequencies occur in increments of 12.5 kHz from 1427.00625 MHz to
1431.99375 MHz.
* * *

(c) * * *
(3) Except for the transmissions that are permitted under § 90.248(f) of this
chapter, airborne use is prohibited.
 * * * * *
Part 95 of title 47 of the Code of Federal Regulations, is amended to read as
follows:
PART 95 – PERSONAL RADIO SERVICES
a. The authority citation for Part 95 continues to read as follows:
 AUTHORITY: Sections  4, 303, 48 Stat. 1066, 1082 as amended; 47 U.S.C. 154, 303.
b. Section 95.630 is amended to correct the reference to the 1427-1432 MHz band as
follows:
 §  95.630  WMTS Transmitter frequencies.

 WMTS transmitters may operate in the frequency bands specified as follows:
 608-614 MHz
 1395-1400 MHz
 1427-1429.5 MHz except at the locations listed in § 90.259(b)(4) where WMTS may
operate in the 1429-1431.5 MHz band.

 http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-204A1.doc

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