*Pages 1--78 from Microsoft Word - 14691.doc* Federal Communications Commission FCC 02- 15 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Reallocation of 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 - 08 RM- 9267 RM- 9692 RM- 9797 RM- 9854 RM- 9882 NOTICE OF PROPOSED RULE MAKING Adopted: January 22, 2002 Released: February 6, 2002 Comment Date: 15 days after Federal Register publication Reply Comment Date: 30 days after Federal Register publication By the Commission: Commissioner Abernathy issuing a statement. TABLE OF CONTENTS Heading Paragraph # I. INTRODUCTION AND EXECUTIVE SUMMARY ......................................................................... 1 II. BACKGROUND ............................................................................................................................. 11 III. DISCUSSION ................................................................................................................................. 15 A. Licensing Plan ........................................................................................................................... 15 1. Table of Allocations ............................................................................................................ 22 2. Geographic Wide- Area Licensing ......................................................................................... 29 3. Spectrum Blocks .................................................................................................................. 34 4. Band Managers ................................................................................................................... 36 5. Treatment of Incumbents ..................................................................................................... 43 6. Assignment of Licenses ........................................................................................................ 70 B. Application, Licensing and Processing Rules for New Services ................................................... 77 1. Regulatory Status ................................................................................................................ 78 2. Eligibility ............................................................................................................................ 81 3. Foreign Ownership Restrictions ........................................................................................... 83 4. License Term and Renewal Expectancy ................................................................................ 86 5. Partitioning and Disaggregation ........................................................................................... 89 6. Individual Station Licenses .................................................................................................. 91 C. Operating Rules ......................................................................................................................... 94 1. Performance Requirements ................................................................................................... 94 2. Application of Title II Requirements to Common Carriers .................................................... 96 D. Technical Rules ......................................................................................................................... 97 E. Coordination ............................................................................................................................ 115 1. Incumbent Government Operations .................................................................................... 115 2. FAS Coordination of LPRS and WMTS ............................................................................ 124 1 Federal Communications Commission FCC 02- 15 2 3. FAS Coordination of Fixed and Mobile Sites ...................................................................... 126 4. Coordination with METSAT Station Located at Greenbelt, MD. ........................................ 130 5. Non- Government Incumbents ............................................................................................. 136 5. Canadian and Mexican Coordination .................................................................................. 139 F. Competitive Bidding Procedures ............................................................................................... 140 1. Incorporation by Reference of the Part 1 Standardized Auction Rules ................................. 141 2. Provisions for Designated Entities ...................................................................................... 142 IV. PROCEDURAL MATTERS ......................................................................................................... 152 A. Initial Regulatory Flexibility Analysis ...................................................................................... 152 B. Paperwork Reduction Analysis ................................................................................................. 153 C. Ex Parte Presentations ............................................................................................................. 155 D. Pleading Dates ......................................................................................................................... 156 E. Further Information .................................................................................................................. 159 V. ORDERING CLAUSES ................................................................................................................ 160 Appendices Page A. Initial Regulatory Flexibility Analysis……………………………………………………………. 57 B. List of Incumbent Licensees in 1429.5- 1432 MHz Band………………………………………… 64 C. Proposed Definitions and Rules…………………………………………………………………... 65 2 Federal Communications Commission FCC 02- 15 3 I. INTRODUCTION AND EXECUTIVE SUMMARY 1. In this Notice of Proposed Rulemaking (Notice), we propose new service rules for licensing a total of 27 megahertz of spectrum from 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. This spectrum was transferred from Government to non- Government use pursuant to the provisions of the Omnibus Budget Reconciliation Act of 1993 (OBRA- 93) 1 and the Balanced Budget Act of 1997 (BBA- 97). 2 2. The service rules proposed in this Notice include provisions for licensing, technical (and operating) rules, competitive bidding, and interference standards. We note that portions of this spectrum are currently available and utilized by existing non- government licensees. 3 We solicit public comment on the flexibility that should be afforded new or incumbent licensees, and the technical and other service rules that should govern the range of existing and proposed services. We also anticipate authorizing new primary services in the paired 1392- 1395 MHz and 1432- 1435 MHz bands and the unpaired 1390- 1392 MHz, 1670- 1675 MHz, and 2385- 2390 MHz bands. 3. We generally seek comment on the following issues under consideration for all of these bands: x whether to authorize new services under either Part 27 or Part 101 of our Rules; x whether to license new services by geographic service areas; x whether to license band managers in these bands; x whether to provide for partitioning and disaggregation of licensed spectrum; and x whether to adopt technical rules in order to prevent in- band and out- of- band interference. 4. We also address several issues relating to existing services currently operating in these bands. We seek comment on the following issues: 1 Pub. L. 103- 66, 107 Stat. 312 (1993). The National Telecommunications and Information Administration (NTIA) submitted a report to the President, the Congress, and the Federal Communications Commission (FCC) outlining a transition timetable for the reallocation of this spectrum. National Telecommunications and Information Administration, U. S. Department of Commerce, Special Publication 95- 32, Spectrum Reallocation Final Report (Feb. 1995) (1995 NTIA Spectrum Reallocation Report). Under the transition timetable proposed in that report, the 1390- 1400 MHz, 1427- 1432 MHz, and 1670- 1675 MHz bands were scheduled for reallocation in January 1999. Id. at v. 2 Pub. L. 105- 33, 111 Stat. 251 (1997). The National Telecommunications and Information Administration (NTIA) submitted a report to the President, the Congress, and the Federal Communications Commission (FCC) outlining a transition timetable for the reallocation of this spectrum through the process of competitive bidding. National Telecommunications and Information Administration, U. S. Department of Commerce, Special Publication 98- 36, Spectrum Allocation Report (Feb. 1998) (1998 NTIA Spectrum Reallocation Report). Under that transition timetable proposed under this report, the 1385- 1390 MHz and 1432- 1435 MHz bands were scheduled for reallocation in January 1999. Id. at iv. The 216- 220 MHz band was scheduled for reallocation in January 2002. Id. 3 Prior to transfer from the Government, non- Government operations were operating in the 216- 220 MHz and the 1427- 1435 MHz bands. See 47 C. F. R. §§ 80.475, 90.248, 90.259, 95.801, 95.1001 and 95.1101. 3 Federal Communications Commission FCC 02- 15 4 x whether secondary telemetry in the 217- 220 MHz and 1427- 1429.5 MHz bands should be licensed on a site- by- site basis; x whether primary telemetry in the 1429.5- 1432 MHz band should be licensed on a site-by- site basis; x whether to add technical specifications to Part 90 of our Rules for telemetry operations; 4 x whether to apply the frequency coordination procedures of Section 90.175 to authorization of future telemetry operations. 5. Additionally, we propose service rules to augment the framework established in the Reallocation Report and Order that requires non- Federal Government users to coordinate with co- primary Federal Government incumbents. In this regard, we seek comment on the following issues: x blanket coordination for LPRS; x coordination of site- by- site and geographic area licensees with Federal Government incumbents; x coordination procedures for licensees operating in the 1670- 1675 MHz band near the METSAT station located at Greenbelt, MD. 6. With respect to non- Government incumbents who will remain in these bands, we seek comment on the following issues: x coordination procedures for licensees in the 2385- 2390 MHz band operating near non-Government aeronautical flight test telemetry sites; x interim coordination procedures for terrestrial licenses along the Canadian and Mexican borders. 7. In accordance with Section 309( j) of the Communication Act, if we adopt a licensing scheme under which mutually exclusive applications are accepted for filing, we must resolve such mutually exclusive applications by competitive bidding. 5 We propose to conduct the auction of such licenses in 4 Prior to the release of the Reallocation Report and Order, Section 90.259 of our Rules permitted telemetry operations throughout the entire 216- 220 MHz band and in the 1427- 1435 MHz band. See 47 C. F. R. § 90.259 (2000). We note that in the Reallocation Report and Order, telemetry is limited to the 216- 220 MHz band (secondary), the 1427- 1429.5 MHz band (secondary) and the 1429.5- 1432 MHz band (primary). New telemetry operations in the 216- 217 MHz portion of the 216- 220 MHz band will no longer be authorized after January 1, 2002. See Reallocation of 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, Report and Order and Memorandum Opinion and Order, ET Docket No. 00- 221, FCC 01- 382 at ¶ 26 (rel. January 2, 2002) (Reallocation Report and Order) 5 47 U. S. C. § 309( j). 4 Federal Communications Commission FCC 02- 15 5 conformity with the general competitive bidding rules set forth in Part 1, Subpart Q, of the Commission’s Rules. 6 8. Additionally, we seek comment on a petition for rulemaking filed on March 6, 2000, by Data Flow Systems, Inc., (Data Flow), requesting that the Commission amend Sections 90. 35 and 90. 259 of the Commission’s Rules to allow the use of fixed telemetry in the 216- 220 MHz band. 7 We also seek comment on a proposal filed by Securicor Wireless Holdings, Inc. (Securicor) in response to the Reallocation Notice. 8 Securicor seeks to license “white- space” in the 216- 220 MHz band similar to the paradigm established for land mobile use of the 220- 222 MHz band. Lastly, we request comment on a proposal submitted by Warren Havens (Havens) in response to the Reallocation Notice that seeks the creation of a new "Advanced Technologies 220 MHz" Service in the 216- 225 MHz band. 9 9. In a companion proceeding in ET Docket 00- 221, the Commission recently reallocated the spectrum that is the subject of this Notice. 10 In response to that rulemaking, various parties recommended proposals on how best to utilize these bands to provide valuable services to the public. 11 Because we now consider service rules regarding this spectrum, we hereby incorporate by reference the record previously developed in the proceeding leading to the Reallocation Report and Order. 12 10. The following chart summarizes the band plan consistent with the Reallocation Report and Order and the proposals in this Notice: 6 47 C. F. R. § Part 1, Subpart Q. 7 Petition for Rulemaking filed by Data Flow Systems, Inc. on March 6, 2000, RM- 9882 (Data Flow Petition for Rulemaking). The Commission’s Rules currently do not permit this use. See 47 C. F. R. §§ 90.35 and 90.259. 8 See Securicor Comments filed on March 8, 2001 (Securicor Comments). 9 See Warren Havens Comments filed on March 8, 2001 (Havens Comments). 10 Reallocation Report and Order, supra note 4; Reallocation of 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, Notice of Proposed Rulemaking, ET Docket 00- 221, 15 FCC Rcd 22657 (2000) (Reallocation Notice). 11 Id. 12 Id. 5 Federal Communications Commission FCC 02- 15 6 Review of Band Plan 216- 220 MHz Band 216 MHz 217 MHz 218 MHz 219 MHz 220 MHz Low Power Radio Service (Primary) (licensed by rule) AMTS (Base) (Primary) (geographic area licensing proposed in PR Docket No. 92- 257) “218- 219 MHz” Service (Primary) (geographic area licensing) AMTS (Mobile) (Primary) (geographic area licensing proposed in PR Docket No. 92- 257) Amateur (Secondary) Telemetry Incumbents Grandfathered (Secondary) (site- by- site licensing) Telemetry (Secondary) (site- by- site licensing) 6 Federal Communications Commission FCC 02- 15 7 1.4 GHz Bands 1390 MHz 1392 MHz 1395 MHz 1427 MHz 1429.5 MHz 1432 MHz 1435 MHz Telemetry (Primary) (site- by- site licensing) Grandfathered Telemetry (Secondary) (site- by- site licensing) FS & MS† Commercial or Private (geographic area licensing) MSS Feeder Uplinks* FS & MS† Commercial or Private (geographic area licensing) (paired with 1432- 1435 MHz) WMTS (Primary) (blanket licensing) Non- Medical Telemetry (Secondary) (site- by- site licensing) MSS Feeder Downlinks* FS & MS† Commercial or Private (geographic area licensing) (paired with 1392- 1395 MHz) 1430 MHz 1432 MHz *MSS Feeder Uplinks and Downlinks are contingent on international allocation and other constraints. 13 † Indicates Mobile Service except Aeronautical Mobile. 1670- 1675 MHz Band and 2385- 2390 MHz Band 1670 MHz 1675 MHz 2385 MHz 2390 MHz FS & MS† Commercial or Private (geographic area licensing) FS & MS Commercial or Private (geographic area licensing) † Indicates Mobile Service except Aeronautical Mobile. II. BACKGROUND 11. In OBRA- 93, Congress directed the Secretary of Commerce to identify at least 200 megahertz of spectrum used by the Federal Government for transfer to non- Government services. Accordingly, NTIA identified 235 megahertz of Government spectrum for transfer to non- Government use, including the 1390- 1395 MHz, 1427- 1432 MHz, and 1670- 1675 MHz bands. 14 OBRA- 93 also gave the Commission the authority to resolve mutually exclusive license applications by auctioning spectrum licenses in certain radio services. 15 13 47 C. F. R. § 2.106, footnote US368. See Reallocation Report and Order at ¶ 52. 14 See 1995 NTIA Spectrum Reallocation Report. 15 See § 6002( a) (codified at 47 U. S. C. § 309( j)). 7 Federal Communications Commission FCC 02- 15 8 12. In BBA- 97, Congress directed the Secretary of Commerce to identify an additional twenty (20) megahertz of spectrum for transfer to non- Government use to be assigned in compliance with Section 309( j) of the Communications Act of 1934, as amended (Communications Act or the Act). 16 The National Telecommunications and Information Administration (NTIA) identified 20 megahertz 17 of spectrum for transfer, including the 216- 220 MHz, 1432- 1435 MHz, and 2385- 2390 MHz bands. 18 BBA- 97 expanded the Commission's auction authority by amending Section 309( j) of the Communications Act. 19 Specifically, BBA- 97, as amended, requires the Commission to use competitive bidding to resolve mutually exclusive initial license or permit applications without regard to whether the spectrum is principally used for subscription- based services. 20 BBA- 97 "gives the Commission discretion to evaluate which licensing mechanism is most appropriate for the services being offered.” 21 Thus, the Commission is not foreclosed from implementing licensing schemes that are likely to result in mutual exclusivity if, in the exercise of its public interest analysis, the Commission determines that the potential benefits outweigh the potential costs of such a policy. 22 13. On October 17, 1998, the President signed into law the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (NDAA- 99). 23 NDAA- 99 amended BBA- 97 and the NTIA Organization Act 24 to require, inter alia, new non- Government licensees to reimburse incumbent Federal 16 See § 3002( e) (codified at 47 U. S. C. § 923( b)( 3)). See also 47 U. S. C. § 309( j). 17 Congress later amended the total amount of spectrum that NTIA was required to identify from not less than 20 to 12 megahertz. See National Defense Authorization Act for Fiscal Year 2000, Pub. L. 106- 65, 113 Stat. 512 (1999), § 1062( c)( 2) (codified as amended at 47 U. S. C. § 923(( b)( 3)( A)). 18 In response to the requirements of BBA- 97, NTIA also identified the 139- 140.5 MHz, 141.5- 143 MHz, and 1385- 1390 MHz bands. See 1998 NTIA Spectrum Reallocation Report. The Federal Government pursuant to the National Defense Authorization Act of Fiscal Year 2000 subsequently reclaimed these bands. See Pub. L. No. 106- 65, 113 Stat. 512 (1999). We also note that NTIA’s Report on Identification of Alternate Bands identifies portions of the 1.4 GHz band and the 1670- 1675 MHz band as candidates for substitution under the Balanced Budget Act of 1997. See Identification of Alternate Bands In Response to Title III of the Balanced Budget Act of 1997, NTIA Special Publication 98- 39 (rel. November 1998). 19 See § 3002( a) (codified at 47 U. S. C. §§ 309( j)). 20 Implementation of Section 309( j) and 337 of the Communications Act of 1934 as Amended, Report and Order and Further Notice of Proposed Rulemaking, WT Docket 99- 87, 15 FCC Rcd 22709, 22721 (2000) (BBA Report and Order), citing Amendment of the Commission’s Rules Regarding Multiple Address Systems, WT Docket 97- 81, Report and Order, 15 FCC Rcd 11956, 11962- 63 ¶¶ 12, 13- 15 (2000). 21 Id. 22 Id. at ¶ 27. See also DIRECTV, Inc. v. FCC, 110 F. 3d 816, 828 (D. C. Cir. 1997) (recognizing that the Commission is not required to forego a policy scheme that furthers the public interest merely to avoid mutual exclusivity). 23 See NDAA- 99, Pub. L. 105- 261, 112 Stat. 1920, § 1064( c)( 3) (codified at 47 U. S. C. § 923( c)( 3)( B)). 24 47 U. S. C. § 901 (1992). NDAA- 99 specifically amended Section 113( g)( 1) of the NTIA Organization Act. See NDAA- 99, § 1064( c)( 1)-( 3) (codified as amended at 47 U. S. C. § 923( c)( 1)-( 3)). 8 Federal Communications Commission FCC 02- 15 9 entities in advance for the relocation costs incurred as a result of frequency spectrum reallocations. 25 Specifically, the statutory reimbursement provisions apply to any Federal entity only, “if before August 5, 1997, the Commission has not identified that spectrum for service or assigned licenses or otherwise authorized service for that spectrum.” 26 Thus, the bands of spectrum previously identified for reallocation pursuant to BBA- 97; namely, the 216- 220 MHz, 1432- 1435 MHz, and 2385- 2390 MHz bands, are also now eligible for statutory reimbursement pursuant to NDAA- 99. 27 14. In the Reallocation Notice leading up to the companion Reallocation Report and Order, the Commission proposed general rules and guidelines to implement NDAA- 99. 28 Concurrently, as part of a separate but related proceeding, NTIA also sought and received comment on its proposed rules governing reimbursement to Federal Government stations that are currently operating on bands identified for reallocation pursuant to BBA- 97, as amended by NDAA- 99. 29 We note that the Commission's implementation of NDAA- 99 is substantially dependent on the procedures to be promulgated by NTIA, which have not yet been released. To the extent that we find it necessary to adopt rules or procedures to implement NDAA- 99, we will do so in a separate proceeding. III. DISCUSSION A. Licensing Plan 15. The licensing plan we propose in the instant proceeding, in conjunction with the companion Reallocation Report and Order, is pursuant to our statutory obligation to reallocate and provide service rules for this spectrum for non- Government users. 30 This action continues the implementation of the framework articulated in the Commission’s November 1999 Spectrum Policy Statement. 31 With increasing demand for radio services, our spectrum management activities must focus on promoting more efficient use 25 Id. BBA- 97 authorized Federal Government entities to accept payment in cash or kind for vacating spectrum transferred from Government to non- Government use through the use of a relocation regime. See § 3002( d) (codified at 47 U. S. C. § 923( g)). 26 NDAA- 99, § 1064( d). 27 Conversely, services that the Commission allocated prior to August 5, 1997 in bands subject to reimbursement would not be required to compensate Government entities for relocation. For example, services that would not be subject to reimbursement obligations would include those services allocated spectrum in the 216- 220 MHz band prior to August 5, 1997 such as the low power radio service (LPRS), telemetry, automated maritime telecommunications (AMTS), and services in the 218- 219 MHz band, formerly known as Interactive Video Data Service (" 218- 219 MHz” Service). 28 Reallocation Notice, supra note 4. 29 See Mandatory Reimbursement Rules for Frequency Band or Geographic Relocations of Federal Spectrum Dependent Systems, Department of Commerce, National Telecommunications and Information Administration, 66 Fed. Reg. 4771 (January 18, 2001) (to be codified at 47 C. F. R. § 301). 30 See Omnibus Budget Reconciliation Act of 1993, Pub. L. 103- 66, 107 Stat. 312 (1993); Balanced Budget Act of 1997, Pub. L. 105- 33, 111 Stat. 251 (1997). 31 Principles for Reallocation of Spectrum to Encourage the Development of Telecommunications Technologies for the New Millennium, Policy Statement, 14 FCC Rcd 19868 (1999) (Spectrum Policy Statement). 9 Federal Communications Commission FCC 02- 15 10 of the spectrum as well as increasing the amount of spectrum available for new services while continuing to ensure access to adequate spectrum for essential incumbent services. As indicated in the Spectrum Policy Statement, we believe that a flexible allocation approach can allow licensees freedom to determine the services to be offered and the technologies to be used in providing those services. 32 This flexibility can allow licensees to make the most efficient use of their assigned frequencies in response to market forces. We also believe that this approach can facilitate a robust and competitive market in the provision of current and future wireless services. 16. We recognize that new technologies may be developed to utilize these frequency bands. Future technologies may blur both technical and regulatory distinctions resulting in technical and operational regulations that could inadvertently impinge on efficient spectrum use. Consequently, we seek to develop service rules that are not based on a Commission prediction of how these bands may ultimately be used, but instead reflect a record that enables us to establish maximum practicable flexibility. In light of these considerations, we seek comment on the following issues. Should new terrestrial services be governed by Part 27 of the Commission's Rules? 33 Would the application of the Part 27 Rules to these bands be in the public interest by contributing to technological and service innovation and improving the national telecommunications infrastructure? 34 Further, we seek comment on the benefits and costs, including potential interference, of such flexibility, and whether application of the Part 27 Rules is in the public interest. 17. New service rules in Part 27 should be able to accommodate a wide variety of potential fixed and mobile service uses, such as voice, video and data transmission. 35 For example, with regard to the unpaired 1670- 1675 MHz band in particular, certain commenters in response to the Reallocation Notice suggested a variety of services such as satellite- enabled notification service, personal location and monitoring service, and broadband data services. We also recognize that we do not know precisely the type of services that licensees may seek to provide in the bands subject to this proceeding. Accordingly, we seek comment on whether potential licensees in the 1390- 1392 MHz, 1392- 1395 MHz, 1432- 1435 MHz, 1670- 1675 MHz and 2385- 2390 MHz bands would benefit from the regulatory construct and additional flexibility of Part 27. 36 18. Considering flexible use for fixed and mobile services in these bands is consistent with Section 303( y)( 2) of the Communications Act, 37 as amended by the Balanced Budget Act of 1997. 38 32 Id. at 9. 33 47 C. F. R. Part 27. 34 The Commission has recognized that, where appropriate, "[ f] lexible allocations may result in more efficient spectrum markets." Spectrum Policy Statement, 14 FCC Rcd at 19870- 71 ¶ 9 (1999). As the Commission observed when it adopted service rules for the 39 GHz bands: "It is in the public interest to afford [ ] licensees flexibility in the design of their systems to respond readily to consumer demand for their services, thus allowing the marketplace to dictate the best uses for this band." Amendment of the Commission's Rules Regarding the 37.0- 38.6 GHz and 38.6- 40 GHz Bands, Report and Order and Second Notice of Proposed Rulemaking, 12 FCC Rcd 18600, 18616 ¶ 26 (1997). 35 See Amendment of the Commission's Rules to Establish Part 27, the Wireless Communications Service (WCS), Report and Order, GN Docket No. 96- 228, 12 FCC Rcd 10785 (1997) (Part 27 Report and Order). 36 Id. 37 See 47 U. S. C. § 303( y)( 2). 10 Federal Communications Commission FCC 02- 15 11 Section 303( y)( 2) grants the Commission authority to permit flexible use of this spectrum if the Commission finds that such use: (1) is in the public interest; (2) would not deter investment in communications services and systems, or technology development; and (3) would not result in harmful interference among users. 39 19. To determine, pursuant to Section 303( y)( 2) of the Act, whether flexible use is appropriate for the spectrum under consideration herein, we seek comment on whether permitting flexible use of this spectrum would (1) be in the public interest; (2) would deter investment in communications services and systems, or technology development; or (3) would result in harmful interference among users. 40 To the extent commenters believe such flexibility will deter investment, they should also suggest specific restrictions on how spectrum should be used by a licensee, and detailed analysis of the economic tradeoffs between flexibility and investment that justify any particular recommended use restriction. We seek to develop a record to help quantify any trade- offs between flexibility and investment in technology and new services. Such a record will assist us in structuring these rules so as to avoid deterring investment in new technology and communications services. We also seek comment regarding the extent to which significant flexibility in service rules may encourage such investments. We also specifically seek public comment on types of uses that pose the greatest risk of interference to uses planned by parties interested in using this spectrum. 20. As discussed below, consistent with our approach, we note that licensees may be required to comply with rules contained in other Parts of the Commission's Rules. For example, to the extent a licensee provides a Commercial Mobile Radio Service (CMRS), such service would also be subject to the provisions of Part 20 of the Commission's Rules. 41 Part 20 applies to all CMRS providers, even though the stations may be licensed under other Parts of the Rules. We seek comment generally on any provisions in existing, service- specific rules that may require specific recognition or adjustment to comport with the supervening application of Part 27, as well as any provisions that may be necessary in Part 27 to fully describe the scope of covered services and technologies. For instance, if a licensee provides a fixed service, we seek comment on whether there are any specific provisions in Part 101 of the Commission’s Rules 42 to which a licensee should be subject, even though the licensee’s stations would be licensed under Part 27. Further, we seek comment on whether it is most appropriate to apply Part 90 licensing and service rules to telemetry operations in the 1429.5- 1432 MHz frequency band. We also seek comment on whether Part 90 has applicability to other telemetry and land mobile operations in these bands. (Continued from previous page) 38 See BBA- 97. 39 See 47 U. S. C. § 303( y)( 2). 40 See 47 U. S. C. § 303( y)( 2)( B). 41 47 C. F. R. Part 20; see also 47 C. F. R. § 27.3( g), as amended by Service Rules for the 746- 764 and 776- 794 MHz Bands and Revision to Part 27 of the Commission’s Rules, First Report and Order, 15 FCC Rcd 476 (2000) (746- 764 and 776- 794 MHz First Report and Order). 42 47 C. F. R. Part 101. 11 Federal Communications Commission FCC 02- 15 12 21. We also note that applications in these services will be filed using the Universal Licensing System (ULS). 43 ULS is the Commission's automated licensing system and integrated database for wireless services. ULS includes consolidated applications forms, which will enable licensees and applicants to file applications electronically, thus increasing the speed and efficiency of the application process. All licensees filing applications and other filings using FCC Forms 601 through 605 or associated schedules must make these filings in accordance with ULS. 44 Use of ULS will permit Commission staff to process filings more efficiently and will enhance the availability of pertinent licensing information to the public. 1. Table of Allocations 22. In the recently adopted Reallocation Report and Order, we established new frequency allocations for the spectrum bands that are the subject of this proceeding. A brief overview of the bands involved and the conclusions of that proceeding follow. 23. 216- 220 MHz Band. Non- Government incumbents operating in this band include (1) the Automated Maritime Telecommunications System (AMTS); 45 (2) the “218- 219 MHz” Service (formerly the Interactive Video Data System Service); 46 (3) the Low Power Radio Service (LPRS); 47 (4) Telemetry 48 and wildlife/ ocean buoy tracking; 49 and (5) the Amateur Radio Service. 50 We also note that TV Channel 13 at 210- 216 MHz also affects certain operations in this band. 51 Government incumbent operations which 43 Biennial Regulatory Review -- Amendment of Parts 0, 1, 13, 22, 24, 26, 27, 80, 87, 90, 95, 97, and 101 of the Commission's Rules to Facilitate the Development and Use of the Universal Licensing System in the Wireless Telecommunications Services, WT Docket No. 98- 20, Amendment of the Amateur Service Rules to Authorize Visiting Foreign Amateur Operators to Operate Stations in the United States, WT Docket No. 96- 188, RM- 8677, Report and Order, 13 FCC Rcd 21027 (1998) (ULS Report and Order). 44 47 C. F. R. § 1.913( b). 45 See 47 C. F. R. § 80.475. AMTS is an integrated and interconnected maritime communications system operating in the 217- 218 MHz and 219- 220 MHz portions of the band. 46 See 47 C. F. R. § 95.801. The “218- 219 MHz” Service is a two- way radio service that allows licensees to provide communications services to subscribers in specific areas. 47 47 C. F. R. § 95.1001. LPRS is a private, short- distance communication service operating in the 216- 217 MHz portion of the band. LPRS provides auditory assistance to persons with disabilities, health care assistance for the ill, law enforcement tracking services in cooperation with law enforcement and point- to- point network control for AMTS coast stations. 48 47 C. F. R. § 90.259. 49 47 C. F. R. § 90.248. 50 47 C. F. R § 97.303. The Amateur Radio Service is authorized to operate in the 219- 220 MHz segment of the band secondary to AMTS. Amateur use of the 219- 220 MHz segment is limited to stations participating as forwarding stations in point- to- point fixed digital message forwarding systems. 51 47 C. F. R. §§ 80.475( a)( 1) and 95.861. 12 Federal Communications Commission FCC 02- 15 13 will remain in the 216- 220 MHz band include the U. S. Navy’s Space Surveillance (SPASUR) Radar system. 52 In addition, the U. S. Coast Guard will continue to operate approximately 30 airsearch radars on a secondary basis in the 216- 225 MHz band. 53 Finally, the Government will continue to operate fixed, aeronautical mobile and land mobile services on a secondary basis, limited to telemetering and telecommand operations, in the 216- 220 MHz band. 54 24. In the Reallocation Report and Order, we modified the allocation of the 216- 220 MHz band to fixed and mobile, except aeronautical mobile, and retained the secondary status of telemetry operations, amateur operations, as well as wildlife/ ocean buoy tracking operations. 55 Because of the large number of non- Government incumbents in this band, we concluded that it would be inappropriate to authorize new co- primary services in this band. 56 But we also recognized the important public services that the Low Power Radio Service (LPRS) provides and the technical difficulties and costly impact to consumers if forced to relocate. Accordingly, we elevated LPRS to primary status in the 216- 217 MHz portion of the band. 57 In order to protect LPRS operations, however, we prohibit new Government and non- Government secondary telemetry assignments in the 216- 217 MHz portion of the band after January 1, 2002. 58 25. 1.4 GHz Band. A total of 13 megahertz of spectrum located at the 1390- 1392 MHz, 1392- 1395 MHz, 1427- 1429.5 MHz, 1429.5- 1432 MHz and 1432- 1435 MHz bands comprise what we will refer to throughout this document as the "1. 4 GHz band." Prior to the Reallocation Report and Order, non- government incumbents in these bands included secondary telemetry 59 in the 1427- 1435 MHz bands and wireless medical telemetry (WMTS) 60 in the 1429- 1432 MHz band. Several companies operate secondary telemetry in these bands including, for example, utility telemetry that conducts automated meter-reading functions. Health care facilities plan to use WMTS to monitor physiological parameters of patients. Government incumbents remaining in the 1. 4 GHz band include military sites in the 1390- 1395 MHz band, 61 military airborne operations in the 1427- 1432 MHz 62 and 1432- 1435 MHz bands 63 and 52 See 1995 NTIA Spectrum Reallocation Report at 3- 14, Table 3- 2. The SPASUR sites operate on frequency 216.98 MHz with a 1 kHz bandwidth. 53 See Reallocation Report and Order at ¶15. 54 47 C. F. R. § 2.106, footnote US210. 55 See Reallocation Report and Order at ¶ 19. 56 Id. at ¶ 27. 57 Id. at ¶ 25. 58 Id. at ¶ 26. 59 See 47 C. F. R. § 90.259. 60 See Subpart H of Part 95 of the Commission’s Rules and Regulations. 61 See 1995 NTIA Spectrum Reallocation Report, † 4, p. 3 and Table 4- 1. 62 See 1995 NTIA Spectrum Reallocation Report, § 4, p. 5 and Table 4- 2. 63 See 1998 NTIA Spectrum Reallocation Report at § 3, at 3- 37 and Table 3- 4. 13 Federal Communications Commission FCC 02- 15 14 unprotected radioastronomy (can include non- Government as well as Federal Government) throughout the 1350- 1400 MHz bands. 64 26. In the Reallocation Report and Order, we reallocated six megahertz of spectrum for fixed and mobile services, except aeronautical mobile, by pairing the 1432- 1435 MHz band with the 1392- 1395 MHz band. 65 In addition, we made two megahertz of unpaired spectrum, 1390- 1392 MHz, available for fixed and mobile services, except aeronautical mobile. 66 We reallocated WMTS in the 1. 4 GHz band from 1429- 1432 MHz to 1427- 1429.5 MHz. 67 We also retained a secondary allocation for telemetry in the 1427- 1429.5 MHz band. 68 We upgraded the telemetry in the 1429.5- 1432 MHz band to primary status 69 but retained the secondary status of all incumbent licensees pending the adoption of final rules in this proceeding. 70 Finally, we conditionally allocated low earth orbiting satellite (Little LEO) feeder uplinks in the 1390- 1392 MHz band and feeder downlinks in the 1430- 1432 MHz band. 71 The Little LEO operations 72 in the 1. 4 GHz band are contingent on international allocation and other constraints applied to the bands for such operations. 73 27. 1670- 1675 MHz Band. Up to this point, this band has been used strictly for Government operations. No non- Government operations are currently performed in this band. The Government Meteorological- Satellite Service (Space- to- Earth) will remain in this band. 74 In addition, radioastronomy operations are performed in the lower- adjacent band (1660- 1670 MHz). In the Reallocation Report and Order, the Commission allocated the 1670- 1675 MHz band for fixed and mobile services, except aeronautical mobile. 75 64 47 C. F. R. § 2.106, footnote US311. 65 We restricted the mobile allocation to not permit airborne operations to protect sensitive adjacent channel operations. Reallocation Report and Order at Table 2 and ¶ 65. 66 We restricted the 1390- 1392 MHz band to no airborne operations because such operations in this band are incompatible with co- channel satellite uplinks and adjacent band radio astronomy operations. Id. at Table 2 and ¶ 50. 67 Id. at Table 2 and ¶ 54. 68 Id. 69 Id. 70 Id. at n. 181. 71 Id. at Table 2 and ¶¶ 52, 55. Feeder links are typically the RF links between the satellite and large earth stations. They complete the path from the mobile earth station to a large fixed earth station that connects to the Public Switched Telephone Network. They are also used to control the satellite transponder. 72 The Little LEO licensees are E- SAT, Inc., LEO One USA Corporation, Volunteers in Technical Assistance, Final Analysis Communications Services, Inc. and Orbital Communications Corporation. 73 Reallocation Report and Order at Table 2 and ¶¶ 52, 55. 74 See 1995 NTIA Spectrum Reallocation Report, § 4, p. 6. 75 Reallocation Report and Order at ¶ 64. 14 Federal Communications Commission FCC 02- 15 15 28. 2385- 2390 MHz Band. The 2385- 2390 MHz band is currently used for Government and non- Government operations. Government incumbents which will remain in this band include aeronautical flight test telemetry. 76 Non- Government incumbents include aeronautical flight test telemetry. In the Reallocation Report and Order, the Commission allocated the 2385- 2390 MHz band for fixed and mobile services. 77 2. Geographic Wide- Area Licensing 29. Geographic Area Licensing. We propose geographic area licensing in those bands where we anticipate establishing new services. These bands include the paired 1392- 1395 MHz and 1432- 1435 MHz bands and the unpaired 1390- 1392 MHz, 1670- 1675 MHz and 2385- 2390 MHz bands. 30. Our experience has been that wide- area licensing (as opposed to site- by- site licensing) affords licensees substantial flexibility to respond to market demand and may result in significant improvements in spectrum utilization. 78 In particular, geographic area licensing allows licensees to coordinate usage across an entire geographic area to maximize the use of spectrum in areas of highest demand. Geographic area licenses also provide licensees the flexibility to adjust spectrum usage depending upon market demands. Such adjustments may be significantly more difficult under a site- by- site licensing regime where prior Commission approval is needed before a licensee can address growth or changes in demand. Moreover, to the extent that geographic area licensing results in the conduct of auctions, it can also serve our public interest goals to promote “economic opportunity and competition . . . by avoiding excessive concentration of licenses and by disseminating licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women.” 79 We seek comment on our proposal to use geographic areas to license new services in these bands. 31. We seek comment on the appropriate geographic area to be used should we adopt a geographic area licensing approach for new services in these bands. When establishing geographic service areas, we must balance the competing need to provide large enough service areas and the need to choose geographic licensing areas that will permit the dissemination of licenses among a wide variety of applicants. 80 We also wish to ensure service to rural areas 81 and to promote investment in and rapid 76 See 1998 NTIA Spectrum Reallocation Report, § 3, at 3- 47 and Table 3- 6. 77 See Reallocation Report and Order at ¶ 71. 78 See, e. g., Amendment of Part 90 of the Commission's Rules to Facilitate Future Development of SMR Systems in the 800 MHz Frequency Band, PR Docket No. 93- 144, First Report and Order, Eighth Report and Order, and Second Further Notice of Proposed Rule Making, 11 FCC Rcd 1463 (1995) (restructuring licensing framework for 800 MHz Specialized Mobile Radio Service and adopting wide- area licensing). See also Gregory L. Rosston & Jeffrey S. Steinberg, Using Market- Based Spectrum Policy to Promote the Public Interest, 50 Fed. Comm. L. J. 87, 94 (1997). 79 See 47 U. S. C. § 309( j)( 3)( B). 80 See 47 U. S. C. §§ 309( j)( 3)( B), (4)( C). 81 See 47 U. S. C. § 309( j)( 3)( A). 15 Federal Communications Commission FCC 02- 15 16 deployment of new technologies and services. 82 The Commission licenses spectrum using a wide variety of geographic areas. The Commission licenses the 800 MHz cellular radiotelephone services using Metropolitan and Rural Service Areas (MSAs and RSAs). 83 The Commission licenses the 24 GHz band by Economic Areas (EAs). 84 The Commission licenses the 2. 3 GHz band using the twelve Regional Economic Area Groupings (REAs) and the 52 Major Economic Areas (MEAs) which are derived from EAs. 85 The Commission licenses the 746- 764 MHz and 776- 794 MHz bands by six Economic Area Groupings (EAGs), which it also derived from EAs. 86 32. In addition, in response to the Reallocation Notice, three commenters propose very different services for the 1670- 1675 MHz band 87 -- all three, however, support licensing this band on a nationwide basis. 88 AeroAstro states that a nationwide license is a requisite part of the national roll- out it believes is necessary to justify the cost of developing a satellite- based version of the technology it proposes to implement. 89 ArrayComm states that entrants who offer new specialized wireless services must establish a national footprint in order to overcome the advantages of incumbent wireless providers. 90 MicroTrax states that without a national license their proposed personal location and monitoring system will be restricted to the “artificial fences” of a regional licensing plan. 91 82 See 47 U. S. C. § 309( j)( 4)( C)( iii). 83 See Public Notice Report No. Cl- 92- 40 “Common Carrier Public Mobile Services Information, Cellular MSA/ RSA Markets and Counties,” dated January 24, 1992, DA 92- 109, 7 FCC Rcd 742 (1992). See also 47 C. F. R. § 22.909. There are 734 MSAs and RSAs. 84 See Amendments to Parts 1, 2, 87, and 101 of the Commission's Rules to License Fixed Services at 24 GHz, Report and Order, WT Docket No. 99- 327, 15 FCC Rcd 16934, 16942- 16944 (2000) (24 GHz Report and Order). There are 172 EAs, as defined by the U. S. Department of Commerce, and three additional Commission-defined EA- like areas. The three additional EA- like services areas are: (1) Guam and the Northern Mariana Islands (combined as one service area); (2) Puerto Rico and the United States Virgin Islands (combined as one service area); and (3) American Samoa. 85 See 47 C. F. R. § 27.6. See also Part 27 Report and Order, 12 FCC Rcd at 10814- 16 ¶¶ 54- 60. At the time of the 2. 3 GHz auction, REAs were defined as Regional Economic Area Groupings (REAGs). 86 See 700 MHz First Report and Order, 15 FCC Rcd at 500 ¶ 56. 87 AeroAstro proposes a satellite- enabled notification system capable of transmitting short data messages, from any location on the globe, for receipt via the Internet in near- real- time. MicroTrax proposes a personal location and monitoring service. ArrayComm proposes to provide broadband data service to portable devices moving at pedestrian, or slower, speeds. See AeroAstro, Inc. comments filed March 8, 2001 (AeroAstro Comments); ArrayComm, Inc. comments filed March 8, 2001 (ArrayComm Comments) and MicroTrax comments filed March 8, 2001( MicroTrax Comments). 88 AeroAstro Comments at 7; ArrayComm Comments at 48; and MicroTrax Reply Comments at 11. 89 AeroAstro Comments at 7. 90 ArrayComm Comments at 50- 51. 91 MicroTrax Reply Comments at 12. 16 Federal Communications Commission FCC 02- 15 17 33. In light of these comments, we tentatively conclude to license the 1670- 1675 MHz band on a nationwide basis. We seek comment on this tentative conclusion. We also inquire whether similar reasoning used to support licensing on a nationwide basis for the 1670- 1675 MHz band may be appropriate for licensing the paired 1392- 1395 MHz and 1432- 1435 MHz bands or the unpaired 1390- 1392 MHz and 2385- 2390 MHz bands. We also seek comment from any party who believes that smaller geographic areas should be established for these bands. Commenters who support licensing based on service areas other than those discussed above should explain why other types of service areas are more appropriate. 92 3. Spectrum Blocks 34. Having proposed to license new services on a geographic area basis, we now seek comment on the appropriate amount of spectrum to be provided for each licensee in each band. The paired 1392- 1395 MHz and 1432- 1435 MHz bands offer a total of six megahertz of spectrum. The unpaired 1390- 1392 MHz band offers a total of two megahertz of spectrum while the unpaired 1670- 1675 MHz and 2385- 2390 MHz bands offer a total of five megahertz of spectrum each. We seek comment on whether the spectrum in each of these bands should be licensed as one block, or broken down into two or more bandwidths, and whether there should be a mixture of spectrum blocks, depending on the service areas used for licensing. 35. In comments to the Reallocation Notice, ArrayComm states that dividing the 1670- 1675 MHz band among the three commercial parties interested in the band would not be technically feasible. 93 ArrayComm states that their proposed mass market broadband wireless data service cannot be provided in less than 5 MHz of spectrum. 94 ArrayComm states that even if the Commission were to subdivide the band into two 2. 5 MHz blocks, the probable necessity of internal guard bands would further reduce the usable spectrum below 2.5 MHz. 95 With respect to the 1670- 1675 MHz band, we tentatively agree with ArrayComm’s assessment. With respect to the balance of the spectrum available to new services in these bands, we also believe that licensing each band as a single block of spectrum per service area would maximize the value of the spectrum while reducing the number of technical and interference problems. For example the paired 1392- 1395 MHz and 1432- 1435 MHz bands could be licensed as one six megahertz block of paired spectrum per service area while the unpaired 1390- 1392 MHz band could be licensed as one two megahertz block of unpaired spectrum per service area. We seek comment on our proposal. 4. Band Managers 36. In response to the Reallocation Notice, the Industrial Telecommunications Association, 92 One such approach might be the use of Component Economic Areas (CEAs) which are a subset of EAs. CEAs were developed by the Commerce Department and there are 348 CEAs. Commenters may wish to address whether the use of CEAs would be appropriate in these bands. 93 See ArrayComm Comments at 51- 54. 94 Id. at 48. 95 Id. at 49. 17 Federal Communications Commission FCC 02- 15 18 Inc. (ITA) stated support for licensing the paired 1392- 1395 MHz and 1432- 1435 MHz bands to band managers exclusively. 96 In a separate proceeding, we defined band managers as "a class of licensees that are specifically authorized to lease their licensed spectrum usage rights for use by third parties through private, contractual agreements, without having to secure prior approval by the Commission." 97 ITA indicates that a licensing framework utilizing the concept of band managers would optimize the use of available spectrum by providing continued protection for incumbents as well as maximum flexibility for potential licensees and new services. 98 37. In the BBA Report and Order, the Commission recognized band manager licensing as an option for future licensing of private radio services 99 and, consequently, in the Reallocation Report and Order, we briefly discussed the prospects of licensing the paired 1392- 1395 MHz and 1432- 1435 MHz bands to band managers. 100 As part of the instant proceeding, we now seek comment on approaches by which we may permit more flexible use of the spectrum reallocated for licensees subject to this proceeding. 101 38. As an initial matter, we seek comment on the feasibility of allowing licensees to operate as band managers for the newly reallocated spectrum in this proceeding. More specifically, unlike a previous band manager construct, where we designated an entire frequency band as a "band manager" band, we propose that for the spectrum specified herein, licensees would have the option of electing to operate either as a band manager or as a regular, non- band manager- type licensee. 102 We seek comment on how we can license both band managers and other types of spectrum users in one band. 39. Under our proposal, band managers could be seen as "spectrum brokers" and would continue to have the ability to lease spectrum usage rights to third parties through private, contractual agreements, without having to secure prior approval by the Commission. We propose, however, that band managers would be restricted to any service rules we adopt for them. We seek comment on whether this type of mixed- use licensing (band managers and non- band managers) would be appropriate for the paired 1392- 1395 MHz and 1432- 1435 MHz bands. We also seek comment on whether we should allow this type of mixed- use licensing for any or all of the unpaired 1390- 1392 MHz, 1670- 1675 MHz, and 2385- 2390 MHz bands. We also seek comment on any potential disadvantages of a band manager approach here, especially related to the interference risks of any particular features of the spectrum in question. 96 See ITA Comments filed on March 8, 2001. 97 Promoting Efficient Use of Spectrum Through Eliminating Barriers to the Development of Secondary Markets, Notice of Proposed Rulemaking, WT Docket No. 00- 230, 15 FCC Rcd 24203, 24209 at ¶ 17 (2000) (Secondary Markets Notice). 98 Id. at 3. 99 BBA Report and Order, 15 FCC Rcd at 22727- 22735. 100 See Reallocation Report and Order at ¶ 49. 101 BBA Report and Order, 15 FCC Rcd at 22727. 102 See Service Rules for the 746- 764 and 776- 794 MHz Bands and Revisions to Part 27 of the Commission’s Rules, Second Report and Order, WT Docket No. 99- 168, 15 FCC Rcd 5299 (2000) (Guard Band Second Report and Order). 18 Federal Communications Commission FCC 02- 15 19 40. We seek comment on whether our spectrum management policies would be enhanced by permitting band managers the expanded flexibility to use their spectrum internally or provide telecommunications services, in addition to leasing it. If we were to permit such flexibility, should we also implement safeguards to ensure that a band manager's core function remains focused on leasing; and if so, how? 103 Additionally, we note that for licensees in existing private radio services, we historically have adopted eligibility restrictions. 104 Would similar provisions be necessary or feasible where the anticipated or potential use of the bands is both commercial and private? Also, should band managers in the subject bands be permitted to use the spectrum directly and construct their own facilities? 105 In other words, should we limit the concept of a band manager operating in the subject band to non- facilities- based operations so they are engaged only in the business of leasing spectrum? We also seek comment on whether it is necessary to provide additional safeguards to prevent a band manager from discriminating among spectrum users. 41. We also request comment on the type of information to be included in agreements between band managers and spectrum users should we permit band managers in any of these bands. We seek comment on whether the requirements the Commission established for agreements between Guard Band Managers and spectrum users in Part 27 of our Rules would be appropriate. For example, under Part 27 of our Rules, agreements between the Guard Band Manager and spectrum user( s) in the 700 MHz band must specify in detail the operating parameters of the proposed systems including power, antenna height, frequency( s) of operation, base station locations and area of operations. 106 42. We also seek comment on whether we should require band managers to file annual reports on their spectrum usage with the Commission. 107 We seek comment on whether such agreements should ensure that band managers are responsible for violations of rules by users of the spectrum assigned to them, and whether band managers must provide the Commission with information on users to allow the Commission to limit interference and enforce our rules. 108 103 See, e. g., Guard Band Second Report and Order, supra, note 102, (limiting band managers and affiliated entity spectrum use). 104 See, e. g., 47 C. F. R. § 90.35( a) (requiring eligibility for Part 90 licenses on Industrial/ Business Pool frequencies). 105 In the BBA Report and Order, we consider this issue in the context of whether to permit a band manager in a particular service to act as a spectrum broker that leases spectrum and as a user of its licensed spectrum, with respect to future allocations, such as the instant proceeding. BBA Report and Order, 15 FCC Rcd at 22734. 106 See 47 C. F. R. Part 27, Subpart G. 107 See 47 C. F. R. § 27.607. 108 See, e. g., Implementation of Sections 309( J) and 337 of the Communications Act of 1934 as Amended, WT Docket No. 99- 87, Report and Order and Further Notice of Proposed Rulemaking, 16 FCC Rcd 6803 (2000) (reviewing some of the considerations that the Commission might take into account in defining a band manager's rights and responsibilities in the context of particular services). 19 Federal Communications Commission FCC 02- 15 20 5. Treatment of Incumbents 43. As discussed in Section III. A. 1., supra, several non- Government entities will continue to operate throughout the spectrum bands subject to this proceeding. Although we reallocated the 216- 220 MHz band for fixed or mobile services, AMTS 109 and “218- 219 MHz” Services will continue to operate in the 217- 220 MHz portion of the band. Further, in the 216- 217 MHz portion of the 216- 220 MHz band we upgraded LPRS to primary status. Although we retained the allocation for secondary telemetry throughout the 216- 220 MHz band, we also stated that we would no longer accept new applications in the 216- 217 MHz band, and that after January 1, 2002, we would no longer permit new assignments for Government and non- Government operations in the 216- 217 MHz band. 110 Similarly, in the 1.4 GHz bands, we reallocated WMTS from the 1429- 1432 MHz band to the 1427- 1429.5 MHz band. 111 In addition, we upgraded telemetry in the 1429.5- 1432 MHz band to primary status, but retained the secondary status of non- medical telemetry in the 1427- 1429.5 MHz band. 112 a. AMTS / 218- 219 MHz / LPRS Services 44. The decisions we made in the Reallocation Report and Order accommodate the continued existence and licensing of AMTS, the “218- 219 MHz” Service and LPRS in the 216- 220 MHz band. Thus, we propose no service rule changes in this proceeding with regard to AMTS, 113 LPRS 114 or the "218- 219 MHz” service. 115 We note that in the 216- 220 MHz band, we already assign licenses in the "218- 109 The Commission adopted rules allowing AMTS licensees to serve fixed and mobile (including hand-held) units operating on land in areas around their stations so long as they give priority to communications from stations operating on the water. See Amendment of the Commission's Rules Concerning Maritime Communications, Second Report and Order and Second Further Notice of Proposed Rule Making, PR Docket No. 92- 257, 12 FCC Rcd 16949, 16969 (1997). 110 See Reallocation Report and Order at ¶¶ 26, 33. Consistent with this decision, beginning January 1, 2002, we are no longer accepting new applications for telemetry licenses in the 216- 217 MHz frequency band, including applications for major modifications of existing licenses. See 47 C. F. R. § 1.929. New and major applications received after January 1, 2002, in the 216- 217 MHz frequency band, will be returned as not accepted for filing. 111 Reallocation Report and Order at Table 2 and ¶ 54. 112 Id. 113 AMTS base stations are currently licensed on a site- by- site basis along U. S. coastlines and inland waterways. Service rules for AMTS are being updated in the AMTS Fourth R& O and Third NPRM. Amendment of the Commission's Rules Concerning Maritime Communications; Petition for Rule Making filed by RegioNet Wireless License, LLC, PR Docket 92- 257, Fourth Report and Order and Third Further Notice of Proposed Rule Making, PR 92- 257, 15 FCC Rcd 22,585 (2000) (proposing to transition the AMTS from site- by- site licensing to geographic service area licensing) (AMTS Fourth R& O and Third NPRM). 114 47 C. F. R. § 95.1009. The Low Power Radio Service operates on frequencies between 216- 217 MHz. LPRS is a private, short- distance communication service providing auditory assistance to persons with disabilities, health care assistance for the ill, law enforcement tracking services in cooperation with law enforcement and point- to- point network control for AMTS coast stations. LPRS is licensed by rule under Part 95 of our Rules, therefore, no individual station license is needed for LPRS operations. 115 The service rules for the “218- 219 MHz” Service were updated in the “218- 219 MHz” Order. Amendment of Part 95 of the Commission’s Rules to Provide Regulatory Flexibility in the 218- 219 MHz Service, (continued….) 20 Federal Communications Commission FCC 02- 15 21 219 MHz" service by competitive bidding, and we have proposed a geographic area licensing scheme for AMTS in the 217- 218 MHz and 219- 220 MHz sub- bands. 116 b. Other Proposals 45. Data Flow. Data Flow requests that the Commission amend Sections 90.35 and 90.259 of the Commission’s Rules. 117 Specifically, Data Flow requests that the “Class of Stations” column for frequency band 216- 220 of the Industrial/ Business Pool Frequency Table in Section 90.35, be amended from “Base or mobile” to “Fixed, base, or mobile.” 118 Data Flow Systems also requests that Section 90.259 be amended to substitute the word “shall” for “may” to read as follows: “Base stations authorized in these bands may be used to perform telecommand functions with associated mobile telemetering stations.” 119 46. Data Flow states that water utility companies utilize fixed telemetry to ensure safe drinking water for the public and to protect the environment from contaminated runoff. 120 Data Flow contends that because of the dearth of satisfactory channels available in the 150- 174 MHz or the 450- 470 MHz bands, water utility companies have needed to use the 216- 220 MHz band for fixed telemetry purposes. 121 Data Flow cites to previous grant waivers allowing water utility companies to operate fixed telemetry in the 216- 220 MHz band. 122 We seek comment on Data Flow System’s petition as it relates to future secondary telemetry operations in the 217- 220 MHz band. 123 47. Securicor. In its comments to the Reallocation Notice, Securicor sought to license "white space" in the 216- 220 MHz band under a paradigm similar to the 220- 222 MHz band (220 MHz Service). 124 Securicor states that expansion of the spectrally- efficient technology of the 220 MHz service to the 216- 220 MHz band would allow greater use of the limited amount of unencumbered spectrum. 125 (Continued from previous page) Report and Order and Memorandum Opinion and Order, WT Docket No. 98- 169, RM- 8951, 15 FCC Rcd 1497, 1499 ¶ 2 (1999) (218- 219 MHz Order) (Recons. pending) 116 See AMTS Fourth R& O and Third NPRM, supra note 113. 117 Data Flow Petition at 3. Data Flow is a Florida corporation that manufactures and sells Supervisory Control and Data Acquisition (SCADA) telemetry systems to public and private water utility companies throughout the United States. Id. 118 Id. See 47 C. F. R. § 90.35. 119 47 C. F. R. § 90.259 (emphasis added). 120 Data Flow Petition at 1, 3. 121 Id. at 3. 122 Id. at 3- 4. 123 As we are no longer permitting new secondary telemetry operations at 216- 217 MHz, Data Flow's petition is now limited to the 217- 220 MHz sub- band. 124 See Securicor Comments at 5. Securicor is a service provider in the 220 MHz Service. 125 Id. at 5. 21 Federal Communications Commission FCC 02- 15 22 Securicor suggests that we establish 5 kHz channels but allow aggregations, partitioning, disaggregation and spectrum leasing to provide flexibility. 126 Securicor states that incumbent operations could be protected under current rules and that incumbents should be allowed to acquire licenses during auctions to expand their operations. 127 48. In the Reallocation Report and Order, we declined Securicor’s request with respect to the 216- 217 MHz portion of the band because of the need to protect LPRS operations. 128 Nonetheless, in the Reallocation Report and Order, we deferred action on Securicor’s request as it relates to the remaining portion of the 216- 220 MHz band. 129 In this regard, we note that the heavy incumbent use of the 217- 220 MHz band would make it difficult to create a new band plan to accommodate Securicor’s request. The balance of the band is either already subject to competitive bidding (218- 219 MHz) or proposed to be assigned by competitive bidding (AMTS). Nonetheless, we ask whether there are efficiencies to be gained by implementing Securicor’s proposal because of the adjacent 220- 222 MHz Service. 49. Warren Havens. In comments filed in response to the Reallocation Notice, Warren Havens requests the Commission authorize “advanced technologies services” in the 216- 225 MHz band which would be governed under a corollary set of service rules. 130 Havens suggests that new “advanced technologies services” could include a National Environmental Wireless Service (NEWS) for environmental and wildlife monitoring, or 4 th generation wireless technologies. 131 In the Reallocation Report and Order, we declined to make changes to the 216- 217 MHz portion of the band in order to protect LPRS operations. 132 Nonetheless, in the Reallocation Report and Order, we deferred action on Havens’ request as it relates to the remaining portion of the 216- 220 MHz band. 133 We believe that Havens’ proposal would not be feasible due to the heavy incumbent use of the 217- 220 MHz band. Nonetheless, we take this opportunity to solicit public comment on Havens’ proposal with respect to the 217- 220 MHz band. c. Itron- AHA Joint Agreement 50. In the Reallocation Report and Order, we noted that we would consider a band swap 126 Id. at 6. 127 Id. at 7. 128 See Reallocation Report and Order at ¶ 35. 129 Id. 130 See Havens Comments at 3. Havens holds AMTS authorizations to serve five inland navigable waterways and also holds licenses in the 220- 222 MHz service. 131 Id. at 4- 8. 132 See Reallocation Report and Order at ¶ 35. 133 Id. 22 Federal Communications Commission FCC 02- 15 23 proposal from AHA and Itron in this proceeding. 134 In general, the AHA/ Itron proposal would in effect switch the primary allocation between Medical Telemetry and Telemetry in seven defined geographic areas, 135 so that WMTS would be primary at 1429.5- 1432 MHz in these areas, and Telemetry would be primary at 1427- 1429.5 MHz. 136 AHA and Itron propose to further subdivide the band into smaller segments. 51. To support their proposal, AHA/ Itron point out that Itron has invested in building out infrastructure in these seven areas under the current secondary allocation. If the incumbent were forced to remain secondary vis- à- vis WMTS, it would not be able to operate and that investment would be sacrificed. If we were to grandfather incumbent operation in those seven areas on a primary basis and not provide WMTS with the corresponding sites in the 1429.5- 1432 MHz band, then WMTS would not be able to operate on a nationwide basis. 52. We tentatively conclude that it is in the public interest to support AHA and Itron’s proposal in broad terms, and that a footnote should be added to the Table of Frequency Allocations that would elevate the telemetry allocation to primary status in the 1427- 1429.5 MHz band in the seven geographic areas, and specify WMTS as primary in the corresponding seven areas in the 1429.5- 1432 MHz band. We seek comment on this tentative conclusion. We decline to propose the further segmentation. Under our proposal, non- medical telemetry licensees will have access to the full 2. 5 MHz at 1427- 1429.5 MHz in the seven geographic areas and Medical Telemetry will have access to the full 2. 5 MHz at 1429.5- 1432 MHz in the seven geographic areas. Accordingly, it appears that interested parties can choose to implement more detailed band segmentation on a contractual basis. d. Limiting Telemetry in the 1.4 GHz Band 53. Prior to the release of the Reallocation Report and Order, telemetry was authorized on a secondary basis in the 1427- 1435 MHz band pursuant to Section 90.259 of our Rules. 137 In the Reallocation Report and Order, we upgraded telemetry in the 1429.5- 1432 MHz band to primary status, eliminated all secondary telemetry operations from the 1432- 1435 MHz band, and retained the secondary allocation for telemetry operation in the 1427- 1429.5 MHz band. 138 Thus, in the Reallocation Report and Order, we provided WMTS with 2.5 MHz of spectrum at 1427- 1429.5 MHz and allocated the upper-adjacent allocation at 1429.5- 1432 MHz to fixed and mobile telemetry, excluding aeronautical mobile. 139 134 Id. at ¶ 58. 135 AHA/ Itron propose switching the primary allocation between medical telemetry and telemetry in the following locations: Pittsburgh, PA, Washington, DC metropolitan area, Richmond/ Norfolk, VA, Austin/ Georgetown, TX, Battle Creek, MI, Detroit, MI and Spokane, WA. 136 See attachment to Itron comments filed March 8, 2001. Attachment is entitled Joint Statement of Position by the American Medical Hospital Association Task Force on Medical Telemetry and Itron, Inc. (Joint Statement). 137 47 C. F. R. § 90.259. 138 See Reallocation Report and Order at Table 2 and ¶ 54. 139 Id. 23 Federal Communications Commission FCC 02- 15 24 54. In comments to the Reallocation Notice, the AHA states that WMTS can function in 2. 5 MHz of spectrum at 1427- 1429.5 MHz if the lower- adjacent spectrum is occupied by passive radioastronomy and the upper- adjacent spectrum is occupied by a few easily identifiable "fixed utility telemetry systems." 140 AHA indicates, however, that if WMTS is surrounded by higher power land mobile operations, then additional spectrum will be needed to deploy a “guard band.” 141 55. In the Reallocation Report and Order, we indicated that we would consider, in this service rules proceeding, whether it would be necessary to restrict the service uses of the telemetry allocation to telemetry operations used by utility companies or to otherwise adopt technical restrictions to protect adjacent WMTS operations, in light of AHA's concerns. 142 56. Consequently, we now seek comment on what, if any, restrictions on secondary telemetry at 1427- 1429.5 MHz and primary telemetry at 1429.5- 1432 MHz are necessary to protect WMTS from harmful interference. AHA provides several suggestions for restricting telemetry in these bands. AHA proposes 1) restricting telemetry operations to utility telemetry; 2) restricting telemetry operations to fixed telemetry; and/ or 3) limiting the power levels of telemetry operations from 100 watts to 10 watts to 1 watt as frequencies approach the WMTS- primary band (1427- 1429.5 MHz). 143 We seek comment on AHA’s proposals as they relate to protecting WMTS from harmful interference. Parties should comment on the merits of each of the three major points, taking into consideration the importance of reliable medical telemetry operations to the public and the need for particularly conservative interference analyses. For example, commenters who support limiting telemetry in these bands to utility- specific operations should explain whether other forms of (non- utility) telemetry operations would cause harmful interference to WMTS. 57. Finally, we note that there are several non- utility, non- fixed licensees operating telemetry systems in the 1427- 1429.5 MHz and 1429.5- 1432 MHz bands. 144 Consequently, if we were to limit the telemetry in these bands to utility telemetry and/ or fixed telemetry, we seek comment on what approach would best account for the existence of these entities, including whether we should relocate or grandfather incumbent non- utility entities or "non- fixed" users of telemetry operations. Commenters supporting relocation should identify viable alternative frequency band( s) for these operations. e. Site- by- Site Licensing for Telemetry 58. The Commission has historically licensed telemetry operations in the 216- 220 MHz and 1427- 1432 MHz band on a site- by- site basis. 145 We are, however, not bound to retain this licensing scheme either by default or as an alternative to geographic areas. Indeed, we have flexibility to continue to make determinations “on a service- by- service basis of whether to adopt geographic area licensing, site- by- 140 AHA Ex Parte comments, filed on August 29, 2001, at 2. 141 AHA Ex Parte comments, filed on June 12, 2001, at 3. 142 See Reallocation Report and Order at ¶ 57. 143 See AHA Ex Parte comments, filed on August 29, 2001, at 5. 144 A database search of the Commission’s Universal Licensing System reveals seven licensees between 1427- 1432 MHz who operate non- utility and/ or non- fixed telemetry. 145 47 C. F. R. § 90.259. To date, these operations have not been coordinated. See infra ¶ 64. 24 Federal Communications Commission FCC 02- 15 25 site licensing, or any other licensing scheme” based upon our statutory public interest obligations. 146 In making such a determination, we also recognize that, as part of our public interest analysis, we should “give significant consideration to the effectiveness of the existing licensing mechanism that avoids mutual exclusivity, and should weigh the potential costs of changing such mechanisms against the potential benefits.” 147 We now consider how to license telemetry. (i) Secondary Telemetry (217- 220 MHz and 1427- 1429.5 MHz). 59. In the Reallocation Report and Order, we retained the secondary status of telemetry in the 216- 220 MHz band, although we prohibited new secondary telemetry assignments in 216- 217 MHz portion of the band after January 1, 2002. 148 We also retained the secondary status of non- medical telemetry in the 1427- 1429.5 MHz band. 149 We believe that we should continue to license secondary telemetry operations in the 217- 220 MHz and 1427- 1429.5 MHz bands on a site- by- site basis. While we generally favor geographic area licensing for new services, we also recognize that this type of licensing scheme is not appropriate for every licensing situation. In this instance, we note that the secondary status of telemetry operators in the 217- 220 MHz band means that they must not cause harmful interference to the primary operations of AMTS and the “218- 219 MHz” Service. Similarly, the secondary status of non- medical telemetry operators in the 1427- 1429.5 MHz band means that they must not cause harmful interference to the primary operations of WMTS. Secondary operations must always defer to primary incumbents in an environment where these primary incumbents may increase operations and have preference. Consequently, it appears that geographic area licensing for secondary telemetry in these bands would be neither workable nor efficient. Thus, we tentatively conclude that it would not serve the public interest goals of Section 309( j)( 3) to license secondary telemetry on a geographic area basis. We seek comment on this tentative conclusion. (ii) Primary Telemetry (1427- 1432 MHz band) 60. In the Reallocation Report and Order, we upgraded telemetry in the 1429.5- 1432 MHz band to primary status and reallocated WMTS from the 1429- 1432 MHz band to the 1427- 1429.5 MHz band. Under this revised band plan primary telemetry occupies the upper- adjacent band to WMTS’s new allocation. As we previously indicated, AHA states that WMTS would prefer if the upper- adjacent band were limited to a few easily identifiable fixed sites. 150 We also note that AHA is requesting primary status over non- medical telemetry in the 1429.5- 1432 MHz band throughout seven distinct geographic “carve-out” areas. 151 In light of these considerations, we believe that a site- by- site licensing method – as opposed to a geographic area licensing method – will provide greater assurance for protection of WMTS. 146 BBA Report and Order at 22725; see also 47 U. S. C. § 309( j). 147 BBA Report and Order at 22725. 148 See Reallocation Report and Order at ¶¶ 26, 33. 149 Id. at ¶ 54. 150 AHA Ex Parte comments, filed August 29, 2000, at 2. 151 Id. See also supra ¶¶ 50- 52 where we tentatively conclude that it is in the public interest to elevate the telemetry allocation to primary status in the 1427- 1429.5 MHz band in the seven geographic areas, and specify WMTS as primary in the corresponding seven areas in the 1429.5- 1432 MHz band. 25 Federal Communications Commission FCC 02- 15 26 Consequently, we tentatively conclude to retain our current method of licensing telemetry on a site- by- site basis in the 1429.5- 1432 MHz band as well as in the seven distinct geographic "carve- out" areas in the 1427- 1429.5 MHz band. We seek comment on this tentative conclusion. 61. While we propose to license primary telemetry in the 1427- 1432 MHz band on a site- by-site basis, this proposal does not necessarily foreclose the possibility that mutually exclusive applications may be filed. Accordingly, any such mutually exclusive applications would be resolved through competitive bidding. With respect to standards for determining whether specific telemetry systems in this band can coexist (i. e., whether two applications are grantable), we request comment on whether mileage or other factor( s) should be used. If a mileage standard is appropriate, we initially propose that the separation distance between co- channel systems be 112 km. (70 mi.). We also request comment regarding exceptions to any proposed separation distance, such as exceptions based on particular geographic topography issues, technology/ power issues, etc. Further, we seek comment on what procedures for filing site- by- site applications would be appropriate. In some site- by- site contexts, such as Mass Media AM broadcast licensing, we open a window with a filing deadline for applications, after which those applications that are determined to be mutually exclusive proceed to auction under our competitive bidding procedures. 152 In other site- by- site contexts, such as Part 90 land mobile radio licensing, we utilize a first- come first- served construct without windows or “gates.” 153 We seek comment on these procedures and alternative methods that might be used. Notwithstanding the potential and relative difficulty of coordinating WMTS operations with fixed primary telemetry throughout a geographic area, we do not foreclose consideration of geographic area licensing as an alternative to licensing on a site- by- site basis. Given these considerations, we seek comment on whether it would be preferable to license primary telemetry based on geographic areas. f. Incumbent Telemetry Operations 62. In the Reallocation Report and Order, we upgraded the allocation for telemetry in the 1429.5- 1432 MHz band to primary status. Nonetheless, we retained the secondary status of all incumbent telemetry operations licensed prior to adoption of final rules in this proceeding. 154 Should we eventually grandfather incumbents in this band, 155 we seek comment on whether these licensees should have the option to request primary status prior to the licensing of new entrants to this band. This option would be available only to facilities grandfathered and operating in the 1429.5- 1432 MHz band as of the release date of this item. Incumbents would not be allowed to expand their grandfathered operations and request primary status before new entrants are allowed into the band. A list of licensees operating in the 1429.5- 1432 MHz band – as of the release date of this item – is provided in Appendix B. 152 See Implementation of Section 309( j) of the Communications Act – Competitive Bidding for Commercial Broadcast and Instructional Television Fixed Service Licenses, MM Docket No. 97- 234, First Report and Order, 13 FCC Rcd 15920, 15972- 15980 ¶¶ 136- 154 (1998). 153 See Implementation of Sections 309( j) and 337 of the Communications Act of 1934 as Amended, WT Docket No. 99- 87, Notice of Proposed Rule Making, 14 FCC Rcd 5206, 5216 ¶ 13 (1999). 154 See Reallocation Report and Order at note 181. 155 Earlier in this Notice, we sought comment on whether to grandfather these incumbents or remove them from the band in order to protect WMTS from harmful interference. See supra ¶¶ 50- 52. 26 Federal Communications Commission FCC 02- 15 27 63. We propose to require all grandfathered licensees who desire primary status to file an application on the Universal Licensing System. The licensee would submit all technical information about each grandfathered facility. We note that there is one incumbent in this band who is licensed for a wide geographic area as opposed to a specific site with a radius. 156 Therefore, we propose to require applicants requesting primary status, for grandfathered facilities, to identify their area of operation by county or by using a radius centered on a point. We seek comment on our proposal. g. Frequency Coordination for Telemetry 64. To date, we have not required frequency coordination for telemetry systems in the 216- 220 MHz and 1427- 1432 MHz bands, 157 because these systems have operated under secondary status. All telemetry applications have, however, been referred to the Frequency Advisory Subcommittee (FAS) of the Interdepartment Radio Advisory Committee (IRAC). Applications were granted if they received FAS approval. The procedure existed because the Commission had concluded that a private coordinator cannot provide coordination for frequencies that must be shared with and require the concurrence of the Federal Government. 158 65. In accordance with our decision in the Reallocation Order, most telemetry applications will no longer require FAS approval. 159 Thus, assuming secondary telemetry at 217- 220 MHz and 1427- 1429.5 MHz continues to be licensed on a site- by- site basis, we propose, in lieu of the former requirement for FAS approval, a new requirement for traditional land mobile frequency coordination for telemetry applicants in these bands. Under these procedures, each application proposing a new telemetry operation or modifying an existing telemetry operation would be required to include a showing of frequency coordination. Coordination would be conducted pursuant to Section 90. 175 of the Commission’s Rules. 160 We seek comment on our proposal. h. Part 90 Technical Rules for Telemetry 66. We note that telemetry operations in 216- 220 MHz band and the 1427- 1432 MHz band are currently authorized under Part 90 of our Rules. 161 Part 90 provides no technical specifications or channel plan for telemetry operations in these bands. Rather, power and authorized bandwidth are specified on the station authorizations on a case- by- case basis. 162 We believe that technical specifications 156 See Appendix B. Station WPCG645 is licensed to Itron, Inc. for temporary fixed and mobile operations throughout continental U. S. 157 See 47 C. F. R. § 90.175( i)( 13). 158 In the Matter of Frequency Coordination in the Private Land Mobile Radio Services, PR Docket No. 83- 737, Report and Order, 103 FCC 2d 1093, 1149- 1150 ¶ 114 (1986). 159 Only certain fixed and mobile telemetry applications will need FAS referral. See infra ¶¶ 124- 127. 160 47 C. F. R. § 90.175. 161 47 C. F. R. § 90.259. 162 In the Matter of Amendment of Parts 2, 87 and 91 of the Rules to Delete Provisions for Aeronautical Telemetering and to Make Provisions for Land Mobile Telemetering in the Industrial Radio Services in the Frequency Band 216- 220 MHz, Report and Order, Docket No. 18924, 29 FCC 2d 360, 363 ¶ 11 (1971). 27 Federal Communications Commission FCC 02- 15 28 and a channel plan are now necessary because most telemetry applications in these bands will no longer require FAS approval. 67. Specifically, we seek comment on what power limits and antenna height limits are necessary for secondary telemetry in the 216- 220 MHz and 1427- 1429.5 MHz bands and for primary telemetry in the 1429.5- 1432 MHz band. To maximize spectrum efficiency, we also seek comment on whether minimum antenna directionality requirements would be necessary. We also request comment on the feasibility of defining certain technical frequency stability limits, bandwidth limits, or limits on emissions appearing outside the authorized bandwidth. 68. Commenters who propose technical limits should consider that: (1) secondary telemetry in the 216- 220 MHz band must protect SPASUR sites, 163 adjacent TV Channel 13, 164 LPRS, AMTS and “218- 219 MHz” service from harmful interference; (2) non- medical telemetry in the 1427- 1429.5 MHz band must protect primary WMTS; 165 and (3) primary telemetry in the 1429.5- 1432 MHz band and WMTS in the lower- adjacent should not cause harmful interference to one another. 69. We also seek comment on a channel plan for telemetry in the 216- 220 MHz, 1427- 1429.5 MHz and 1429.5- 1432 MHz bands. Part 90 services generally employ a variety of channel bandwidths. For example, a channel spacing of 7.5 kHz is employed in the 150- 174 MHz band, a channel spacing of 12.5 kHz is employed in the paired 821- 824 MHz and 866- 869 MHz bands while a channels spacing of 25 kHz is employed in the paired 806- 821 MHz and 851- 866 MHz bands. 166 Finally, once a channel plan is established, we seek comment on whether to allow telemetry licensees to aggregate i. e. combine their channels. 6. Assignment of Licenses 70. The Balanced Budget Act of 1997 revised the Commission’s auction authority. 167 Specifically, it amended Section 309( j) of the Act to require the Commission to grant licenses through the use of competitive bidding when mutually exclusive applications for initial licenses are filed, unless certain specific statutory exemptions apply. 168 The BBA- 97 also added to Section 309( j)( 1) a reference to the 163 Footnote US229 in §2.106 of the FCC Rules contains the locations and protection radii of co- primary SPASUR sites. 164 TV Channel 13 broadcasts in the frequency band 210- 216 MHz. 165 See supra ¶¶ 55- 56. 166 47 C. F. R. § 90.209. 167 See 47 U. S. C. § 309( j)( 1), (2) (as amended by Balanced Budget Act, § 3002). As explained above, in BBA- 97 Congress also directed the Secretary of Commerce to identify spectrum for transfer to non- Government use to be assigned in compliance with Section 309( j). NTIA identified the 216- 220 MHz, 1432- 1435 MHz, and 2385- 2390 MHz bands. See supra ¶ 12. 168 Id. 47 U. S. C. § 309( j)( 2) exempts from auctions licenses and construction permits for public safety radio services, digital television service licenses and permits given to existing terrestrial broadcast licensees to replace their analog television service licenses, and licenses and construction permits for noncommercial educational broadcast stations and public broadcast stations described in 47 U. S. C. § 397( 6) of the Communications Act. 28 Federal Communications Commission FCC 02- 15 29 Commission’s obligation under Section 309( j)( 6)( E) to use engineering solutions, negotiation, threshold qualifications, service regulations, or other means to avoid mutual exclusivity where it is in the public interest to do so. 169 BBA- 97 did not amend Section 309( j)( 3) ’s directive to consider certain public interest objectives in identifying classes of licenses and permits to be issued by competitive bidding. 170 71. In the BBA Report and Order, the Commission established a framework for exercise of its auction authority, as amended by the Balanced Budget Act. 171 The BBA Report and Order affirmed that, in identifying which classes of licenses should be subject to competitive bidding, the Commission is required to pursue the public interest objectives set forth in Section 309( j)( 3). 172 The BBA Report and Order also affirmed that, as part of this public interest analysis, the Commission must continue to consider alternative procedures that avoid or reduce the likelihood of mutual exclusivity. 173 The Commission concluded, however, that its obligation to avoid mutual exclusivity does not preclude it from adopting licensing processes in the non- exempt services that result in the filing of mutually exclusive applications where it determines that such an approach would serve the public interest. 174 72. In determining whether to assign licenses through competitive bidding in this proceeding, we intend to follow the approach set forth in the Balanced Budget Act proceeding regarding the exercise of our auction authority. We note, too, that subsequent to the adoption of the Balanced Budget Act, the U. S. Court of Appeals for the D. C. Circuit concluded that the Section 309( j)( 6)( E) obligation does not foreclose new licensing schemes that are likely to result in mutual exclusivity. 175 The court stated that if the Commission finds such schemes to be in the public interest, it may implement them “without regard to [S] ection 309( j)( 6)( E) which imposes an obligation only to minimize mutual exclusivity ‘in the public interest, ’ and ‘within the framework of existing policies. ’” 176 73. We note that the 217- 218 MHz portion of the 216- 220 MHz band will be paired with 219- 220 MHz portion for licenses in the AMTS service and the rules for assigning licenses will be addressed in a separate rulemaking proceeding. 177 The 218- 219 MHz portion of the band is licensed as the “218- 219 MHz” Service and the competitive bidding rules were established in a prior proceeding. 178 In addition, 169 See 47 U. S. C. §§ 309( j)( 1), 309( j)( 6)( E). 170 See 47 U. S. C. § 309( j)( 3). 171 See BBA Report and Order, 15 FCC Rcd 22708. 172 Id. at 22718- 22723. 173 Id. 174 Id. 175 See Benkelman Telephone Co., et al. v. FCC, 220 F. 3d 601, 606 (D. C. Cir. 2000), petition for rehearing on other grounds pending. 176 Id. (citations omitted) (citing DIRECTV, Inc. v. FCC, 110 F. 3d 816, 828 (D. C. Cir. 1997)). 177 See Amendment of the Commission's Rules Concerning Maritime Communications, Second Report and Order and Second Further Notice of Proposed Rule Making, PR Docket No. 92- 257, 12 FCC Rcd 16949 (1997) and AMTS Fourth R& O and Third NPRM, 15 FCC Rcd 22585 (2000). 178 See 218- 219 MHz Order, 15 FCC Rcd at 1558- 1560 ¶¶ 116- 121. See also 47 C. F. R. § 95.816. 29 Federal Communications Commission FCC 02- 15 30 because we found that it is in the public interest to allocate the remaining one megahertz 216- 217 MHz portion of the band for LPRS, which is licensed by rule under Part 95 of our Rules, our obligation to use competitive bidding under Section 309( j) does not appear to be implicated for the 216- 217 MHz portion of the band. 179 74. In this Notice, we propose to adopt a geographic area licensing scheme for the paired 1392- 1395 MHz and 1432- 1435 MHz bands, the unpaired 1670- 1675 MHz band and the unpaired 2385- 2390 MHz band. We seek comment on appropriate geographic licensing areas for these bands and whether such licensing scheme would promote the objectives of Section 309( j)( 3) including promoting economic opportunities and competition by disseminating licenses among a wide variety of applicants. 180 If we find that it would serve the public interest to implement a geographic area licensing scheme, under which mutual exclusivity is possible, then we must resolve mutually exclusive applications for initial licenses in the paired 1392- 1395 MHz and 1432- 1435 MHz bands, the unpaired 1670- 1675 MHz band and the unpaired 2385- 2390 MHz band through competitive bidding. 75. We also propose to license the unpaired 1390- 1392 MHz band for terrestrial use based on geographic areas and seek comment on appropriate licensing areas that would promote economic opportunities for a wide variety of applicants, including small businesses, rural telephone companies, and minority- and women- owned applicants. 181 Although we have allocated the 1390- 1392 MHz band for fixed and mobile, except aeronautical mobile, services, we have only allocated this band conditionally for satellite (uplink) service. Because the satellite allocation in this band will not become effective until interested parties first secure a similar international allocation, licensing of such satellite services will be addressed in a separate rulemaking proceeding. 182 We note that the Open- Market Reorganization for the Betterment of International Telecommunications Act (ORBIT Act) contains an exemption from competitive bidding for spectrum used for the provision of international or global satellite communications services. 183 This exemption from competitive bidding does not apply to terrestrial services that operate on the same frequencies as satellite services. 184 Thus, if we find that it would serve the public interest to adopt a 179 See Reallocation Report and Order at ¶¶ 22- 26. See also supra note 27. 180 See supra ¶¶ 29- 33; 47 U. S. C. § 309( j)( 3). 181 See supra ¶ 31. 182 See Reallocation Report and Order at ¶¶ 46- 58. See also supra ¶ 26. 183 See Pub. L. 106- 180, 114 Stat. 48 § 647 (codified at 47 U. S. C. § 647) (ORBIT Act). Section 647 provides: “Notwithstanding any other provision of law, the Commission shall not have the authority to assign by competitive bidding … spectrum used for the provision of international or global satellite communications services.” ORBIT Act § 647. 184 See Amendment of Parts 2 and 25 of the Commission's Rules to Permit Operation of NGSO FSS Systems Co- Frequency with GSO and Terrestrial Systems in the Ku- Band Frequency Range; Amendment of the Commission's Rules to Authorize Subsidiary Terrestrial Use of the 12.2- 12.7 GHz Band by Direct Broadcast Satellite Licensees and Their Affiliates; and Applications of Broadwave USA, PDC Broadband Corporation, and Satellite Receivers, Ltd. to Provide A Fixed Service in the 12. 2- 12.7 GHz Band, ET Docket No. 98- 206, First Report and Order and Further Notice Of Proposed Rule Making, 16 FCC Rcd 4096, 4218 (2000) (stating that the ORBIT Act does not prohibit the Commission from auctioning licenses for terrestrial services merely because the terrestrial service operates on the same frequencies as a satellite service); Amendment of the Commission's Rules With Regard to the 3650- 3700 MHz Government Transfer Band, ET Docket No. 98- 237; The 4.9 GHz Band Transferred from Federal Government Use, First Report and Order and Second Notice of Proposed Rule (continued….) 30 Federal Communications Commission FCC 02- 15 31 geographic area licensing scheme that permits the filing of mutually exclusive applications for terrestrial services in this band, it would be consistent with our statutory mandate to resolve any such mutually exclusive applications accepted for filing by competitive bidding. 76. We will not receive mutually exclusive applications for WMTS licenses in the unpaired 1427- 1429.5 MHz band and in the seven geographic “carve- out” areas in the 1429.5- 1432 MHz band because WMTS is licensed by rule under Part 95. 185 Thus, our statutory obligation to use competitive bidding under Section 309( j) is not applicable to the assignment of WMTS licenses in these portions of the 1.4 GHz band. 186 With respect to the primary telemetry service licenses in the 1429.5- 1432 MHz band and seven geographic “carve- out” areas in the 1427- 1429.5 MHz band, in this Notice we tentatively conclude to retain our current licensing scheme (i. e., site- by- site), but also seek comment on whether we should assign licenses based on geographic areas for the primary telemetry services in these bands. 187 In the Reallocation Report and Order, we have also conditionally allocated the 1430- 1432 MHz portion of the 1.4 GHz band for Little LEO feeder downlinks, similar to the conditional allocation for uplinks in the 1390- 1392 MHz band, contingent on completion of ongoing studies and adoption of an international allocation for this spectrum. 188 As explained above, we believe that the ORBIT Act does not prohibit the use of auctions to assign licenses to provide terrestrial services. Thus if we ultimately adopt a licensing scheme under which mutually exclusive applications may be filed, any mutually exclusive initial applications to provide primary telemetry services in the unpaired 1429.5- 1432 MHz portion and seven geographic carved out areas in the 1427- 1429.5 MHz portion of the 1.4 GHz band will be resolved through competitive bidding. B. Application, Licensing and Processing Rules for New Services 77. The Reallocation Report and Order provides an opportunity to establish new services in portions of the 1.4 GHz band, the 1670- 1675 MHz band, and the 2385- 2390 MHz band. To summarize, these operations include fixed and mobile operations, except aeronautical mobile, in the paired 1392- 1395 MHz and 1432- 1435 MHz bands; 189 fixed and mobile operations, except aeronautical mobile in the unpaired 1390- 1392 MHz 190 and 1670- 1675 MHz 191 bands; and fixed and mobile operations, including (Continued from previous page) Making, WT Docket No. 00- 32, 15 FCC Rcd 20488, 20498 n. 64 (2000) (stating that the assignment of licenses for terrestrial services by competitive bidding is not prohibited by the ORBIT Act); 24 GHz Report and Order, 15 FCC Rcd 16934 (2000) (adopting rules to award licenses for terrestrial fixed service by competitive bidding in 24 GHz band, which is also allocated to satellite services); 39 GHz R& O, 12 FCC Rcd 18600 (1997); 39 GHz Band Auction Closes, Public Notice, DA 00- 1035, Report No. AUC- 30- E (rel. May 10, 2000) (assigning terrestrial fixed service licenses by auction in the 39 GHz band, which is also allocated to satellite services). See also TRW INC., Waiver of the Commission’s Rules to provide Fixed Satellite Service in the 39 GHz Band, Memorandum Opinion and Order, DA 01- 371, File No. 0000137436 (rel. March 12, 2001). 185 47 C. F. R. § 95.1101 et seq. 186 Id.; see also supra ¶ 57 (tentatively concluding that it would be in the public interest to retain the existing license assignment process for secondary telemetry operations in this band). 187 See supra ¶¶ 60- 61. 188 See Reallocation Report and Order at ¶¶ 46- 59. 189 Id. at ¶ 49. 190 Id. at ¶ 50. 31 Federal Communications Commission FCC 02- 15 32 aeronautical mobile, in the 2385- 2390 MHz band. 192 In addition, the Reallocation Report and Order provides conditional allocation for NGSO MSS Feeder Uplinks - conditioned on a similar international allocation - in the 1390- 1392 MHz band, and NGSO MSS Feeder downlinks -also conditioned on a similar international allocation- in the 1430- 1432 MHz band. To the extent necessary, we will address Little LEO licensing issues, including terrestrial and satellite sharing, in a separate proceeding once the ongoing sharing studies are completed and an international allocation of this spectrum is secured. 193 We now turn our attention to our proposed application, licensing, and processing rules pertinent for new terrestrial services. 1. Regulatory Status 78. The Commission's current mobile service license application requires an applicant for mobile services to indicate whether the service it intends to offer will be CMRS, Private Mobile Radio Service (PMRS), or both. 194 The Commission has adopted a similar licensing framework for Part 27 of our Rules. 195 Thus, under Part 27, the Commission permits applicants to request common carrier status as well as non- common carrier status for authorization in a single license, rather than to require the applicant to choose between common carrier and non- common services. 196 Accordingly, we propose to adopt the same procedure for licensing new services in the paired 1392- 1395 MHz and 1432- 1435 MHz bands and unpaired 1390- 1392 MHz, 1670- 1675 MHz and 2385- 2390 MHz bands. The licensee will be able to provide all allowable services anywhere within its licensed area at any time, consistent with its regulatory status. We tentatively conclude that, in the case of new services offered in these bands, this approach is likely to achieve efficiencies in the licensing and administrative process. 79. We further propose that applicants and licensees with respect to new services in the paired 1392- 1395 MHz and 1432- 1435 MHz bands and the unpaired 1390- 1392 MHz, 1670- 1675 MHz and 2385- 2390 MHz bands be required to indicate a regulatory status based on any services they choose to provide. As the Commission stated in adopting Part 27, apart from this designation of regulatory status, we would not require applicants to describe the services they seek to provide. 197 In providing guidance on this issue to applicants, the Commission pointed out that an election to provide service on a common carrier (Continued from previous page) 191 Id. at ¶ 64. 192 Id. at ¶ 71. 193 Id. at ¶¶ 52- 56 and 59. 194 In the LMDS Second Report and Order, the Commission required applicants for fixed services to indicate if they planned to offer services as a common carrier, a non- common carrier, or both, and to notify the Commission of any changes in status without prior authorization. LMDS Second Report and Order, Order on Reconsideration, and Fifth Notice of Proposed Rulemaking, 12 FCC Rcd 12545, 12636- 38, 12644- 45, 12652- 53 ¶¶ 205- 208, 225- 226, 245- 251 (1997) (LMDS Second Report and Order) (Fifth NPRM); aff'd, Melcher v. FCC, 134 F. 3d 1143 (D. C. Cir. 1998). 195 47 C. F. R. Part 27. 196 Part 27 Report and Order, 12 FCC Rcd at 10846, 10848 ¶¶ 119, 122. 197 See Part 27 Report and Order, 12 FCC Rcd at 10848 ¶ 121; see also LMDS Second Report and Order, 12 FCC Rcd at 12644 ¶ 223; 47 C. F. R. § 101.1013. 32 Federal Communications Commission FCC 02- 15 33 basis requires that the elements of common carriage be present; 198 otherwise, the applicant must choose non- common carrier status. 199 The Commission advised potential applicants that, if they are unsure of the nature of their services and their classification as common carrier services, they may submit a petition with their applications, or at any time, request clarification and including service descriptions for that purpose. 200 80. We also propose that if a licensee were to change the service or services it offers, such that its regulatory status would change, the licensee must notify the Commission. 201 Although a change in a licensee’s regulatory status would not require prior Commission authorization, we propose that a licensee be required to notify the Commission within 30 days of the change. 202 We note, however, that a different time period may apply, as determined by the Commission, where the change results in the discontinuance, reduction, or impairment of the existing service. 203 In summary, under our proposal, a licensee in the paired 1392- 1395 MHz and 1432- 1435 MHz bands, or the unpaired 1390- 1392 MHz, 1670- 1675 MHz and 2385- 2390 MHz bands would be authorized to provide a variety or combination of fixed, mobile, common carrier, and non- common carrier services. We seek comment on these proposals. 2. Eligibility 81. We believe that opening this spectrum to as wide a range of applicants as possible would encourage entrepreneurial efforts to develop new technologies and services, while helping to ensure efficient use of this spectrum. Accordingly, we propose that there be no restrictions on eligibility for a license, other than the foreign ownership restrictions set forth in Section 310 of the Communications Act. 204 We seek comment on this proposal. Commenters are requested to comment on whether open eligibility poses a significant likelihood of substantial competitive harm in specific markets, and, if so, whether eligibility restrictions are an effective method to address that harm. 82. We believe that this approach is consistent with our statutory guidance. Specifically, in granting the Commission authority in Section 309( j) of the Communications Act to auction wireless 198 See 47 U. S. C. § 153( 44) (" A telecommunications carrier shall be treated as a common carrier under this Act ..."); see also 47 U. S. C. § 332( C)( 1)( A) (" A person engaged in the provision of a service that is a commercial mobile service shall, insofar as such person is so engaged, be treated as a common carrier for purposes of this Act ..."). 199 Part 27 Report and Order, 12 FCC Rcd at 10790- 91 ¶ 121. The Commission examined services in the LMDS Second Report and Order and explained that any video programming service would be treated as a non- common carrier service. LMDS Second Report and Order, 12 FCC Rcd at 12639- 41 ¶¶ 213- 215. 200 Part 27 Report and Order, 12 FCC Rcd at 10848 ¶ 121. 201 See 47 C. F. R. §§ 27.66 (a)-( b). 202 A change in regulatory status would require Commission prior authorization, however, if the change raised issues concerning the benchmark contained in Section 310( b)( 4) of the Act. 203 See 47 C. F. R. §§ 27.66 (a)-( b). 204 See 47 U. S. C. §§ 310( a), 310( b), and 310( d). 33 Federal Communications Commission FCC 02- 15 34 spectrum and to impose eligibility requirements as appropriate, Congress also directed the Commission to exercise that authority so as to “promot[ e] . . . economic opportunity and competition.” 205 3. Foreign Ownership Restrictions 83. Sections 310( a) and 310( b) of the Communications Act, as modified by the Telecommunications Act of 1996, impose foreign ownership and citizenship requirements that restrict the issuance of licenses to certain applicants. 206 Section 27. 12 of the Commission's Rules, which implements Section 310 of the Act, 207 would by its terms apply to applicants for licenses in the bands subject to this proceeding. 208 An applicant requesting authorization only for non- common carrier or non- broadcast services would be subject to Section 310( a) but not to the additional prohibitions of Section 310( b). An applicant requesting authorization for broadcast or common carrier services would be subject to both Sections 310( a) and 310( b). 84. Further, we note that in response to the commitments under the World Trade Organization (WTO) Basic Telecommunications Agreement, the Commission recently liberalized its policy for applying its discretion with respect to foreign ownership of common carrier radio licensees under Section 310( b)( 4). 209 Under our new policy, the Commission now presumes that ownership by entities from countries that are WTO members serves the public interest. 210 Ownership by entities from countries that are not WTO members continues to be subject to the "effective competitive opportunities" test established earlier by the Commission. 211 85. In the filing of an application under the proposed service rules, we do not believe that common carriers and non- common carriers should be subject to varied reporting obligations. Rather, as a matter of fostering regulatory parity and transparency, we believe that all applicants should be required to file changes in foreign ownership information to the extent required by Part 27 of our Rules. In light of Part 27 licensees' potential ability to provide broadcast, common carrier, and non- common carrier services, Commission rules require all licensees, even non- common carriers, to report alien ownership on a consistent basis, to better enable the Commission to monitor compliance. 212 By establishing parity in 205 See 47 U. S. C. § 309( j)( 3). 206 47 U. S. C. §§ 310( a), 310( b). 207 47 C. F. R. § 27.12; see also Section 27.302 of the Commission’s Rules, 47 C. F. R. § 27.302. 208 See 47 C. F. R. § 27.12. 209 The commitments are incorporated into the General Agreement of Trade in Services (GATS) by the Fourth Protocol to the GATS. See Fourth Protocol to the General Agreement on Trade in Services (WTO 1997), 36 I. L. M. 366 (1997). 210 See Rules and Policies on Foreign Participation in the U. S. Telecommunications Market and Market Entry and Regulation of Foreign- Affiliated Entities, Report and Order and Order on Reconsideration, 12 FCC Rcd 23891, 23935- 47 ¶¶ 97- 132 (1997). 211 Id. 212 See Streamlining the Commission’s Rules and Regulations for Satellite Application and Licensing Procedures, Report and Order, IB Docket No. 95- 117, 11 FCC Rcd 21581, 21599 ¶ 43 (1996). 34 Federal Communications Commission FCC 02- 15 35 reporting obligations, however, we do not propose a single, substantive standard for compliance. Thus, by way of example, we do not and would not disqualify an applicant requesting authorization exclusively to provide non- common carrier and non- broadcast services from a license simply because its citizenship information would disqualify it from a common carrier or broadcast license. We request comment on this proposal. 4. License Term and Renewal Expectancy 86. We propose that the license term for new licensees in the paired 1392- 1395 MHz and 1432- 1435 MHz bands and unpaired 1390- 1392 MHz, 1670- 1675 MHz and 2385- 2390 MHz bands be 10 years, with a renewal expectancy similar to that afforded PCS and cellular licensees. In the case of either a cellular or PCS licensee, a renewal applicant shall receive a preference or renewal expectancy if the applicant has provided substantial service during its past license term and has complied with the Communications Act and applicable Commission rules and policies. 213 While preferring a substantial service requirement, we also invite comment on whether a build- out requirement is more appropriate for this service. 214 We believe that this 10- year license term, combined with renewal expectancy, will help to provide a stable regulatory environment that will be attractive to investors and, thereby, encourage development of this frequency band. We also seek comment on whether a license term longer than 10 years is appropriate to achieve these goals and better serve the public interest. Commenters who favor a license term in excess of ten years should specify a reasonable license term and include a basis for the period proposed. 87. We propose that the renewal application of a licensee in the paired 1392- 1395 MHz and 1432- 1435 MHz bands and unpaired 1390- 1392 MHz, 1670- 1675 MHz and 2385- 2390 MHz bands must include, at a minimum, the following showings in order to claim a renewal expectancy: 215  A description of current service in terms of geographic coverage and population served or links installed and a description of how the service complies with the substantial service requirement.  Copies of any Commission Orders finding the licensee to have violated the Communications Act or any Commission rule or policy, and a list of any pending proceedings that relate to any matter described by the requirements for the renewal expectancy. 216  If applicable, a description of how the licensee has complied with the build- out requirement. 213 See 47 U. S. C. § 151 et seq. Substantial service is service that is sound, favorable, and substantially above a level of mediocre service which might just minimally warrant renewal. See 47 C. F. R. § 22.940( a)( 1)( i). 214 See infra at Section III. C. 1., regarding performance requirements. 215 These proposed requirements are based on those we ordered for LMDS. See Sectnio101.1011 of the Commission’s Rules, 47 C. F. R. § 101.1011. 216 See Section 22.940( a)( 2)( i) through Section 22.940( a)( 2)( iv) of the Commission’s Rules, 47 C. F. R. §§ 22.940( a)( 2)( i)-( iv). 35 Federal Communications Commission FCC 02- 15 36 88. Under our proposal, in the event that a license in the subject bands is partitioned or disaggregated, any partitionee or disaggregatee would be authorized to hold its license for the remainde