Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of 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 RM-9147 RM-9245 FIRST REPORT AND ORDER AND FURTHER NOTICE OF PROPOSED RULE MAKING Adopted: November 29, 2000 Released: December 8, 2000 Comment Date: 45 days from date of publication in the Federal Register Reply Comment Date: 60 days from date of publication in the Federal Register By the Commission: Commissioner Furchtgott-Roth approving in part, dissenting in part, and issuing a statement; Commissioner Tristani issuing a statement. TABLE OF CONTENTS Paragraph I. INTRODUCTION 1 II. SUMMARY 2 III. BACKGROUND 3 IV. FIRST REPORT AND ORDER 19 A. NGSO FSS Gateway Bands 22 1. Gateway Definition 23 2. NGSO FSS Gateway Downlink Band: 10.7-11.7 GHz 32 a. NGSO FSS/FS Downlink Sharing 34 (i) Protection of FS receivers (PFD limits) 34 (ii) Coordination of NGSO FSS with FS stations 43 b. Gateway Siting Restrictions 57 c. Restrictions on GSO FSS Operations 68 d. NGSO/GSO FSS Downlink Sharing 72 (i) Single-Entry EPFDdown Limits 74 (ii) GSO FSS Reference Earth Station Antenna Pattern 81 (iii) Domestic Implementation of Single-Entry Limits 83 (iv) Domestic Implementation of Single-Entry Validation EPFDdown limits 86 (v) Domestic Implementation of Operational and Additional Operational EPFDdown Limits 91 (vi) Aggregate EPFDdown limits 103 e. Other Issues 109 (i) Provision of Ancillary Mobile Services in the Ku-Band 109 (ii) Protection of Very Large Earth Station Antennas 110 (iii) Protection of Inclined Orbit Operations 114 (iv) Protection of GSO FSS Telemetry, Tracking and Command 117 3. NGSO FSS Gateway Uplink Bands: 12.75-13.25 GHz 120 a. NGSO FSS Gateways Sharing with BAS Operations 123 b. NGSO FSS Gateway Coordination with Terrestrial Operations 127 c. NGSO FSS Gateways Sharing with GSO FSS Uplinks 129 d. OpTel Petition 132 4. NGSO FSS Gateway Uplink Bands: 13.75-14.0 GHz 135 5. GSO FSS Gateway Uplink Bands: 14.4-14.5 GHz 148 6. NGSO FSS Gateway Uplink Bands: 17.3-17.8 GHz 152 B. NGSO Service Link Bands 159 1. NGSO FSS Service Downlink Bands: 11.7-12.2 GHz 159 2. NGSO FSS Service Downlink Bands: 12.2-12.7 GHz 162 a. NGSO FSS sharing with BSS 170 (i) Single-Entry EPFDdown Limits 174 (ii) Domestic Implementation of Single-Entry EPFDdown Limits 188 (iii) Domestic Implementation of Single-Entry Validation and Latitude- Dependent Validation Limits 190 (iv) Domestic Implementation of EPFDdown Operational Limits 192 (v) Aggregate EPFDdown Limits 196 (vi) Protection of GSO BSS Telemetry, Tracking and Command 199 (vii)Other DBS Applications 202 b. MVDDS Sharing with DBS 205 c. MVDDS Sharing with NGSO FSS Downlinks 219 3. NGSO FSS Service Uplink Bands: 14.0-14.4 GHz 229 C. Other Technical Rules 232 1. GSO FSS Arc Avoidance 232 2. GSO FSS Earth Station Power Limits 235 3. NGSO FSS Earth Station Antenna Reference Pattern 238 a. NGSO FSS User Terminal Earth Station Antenna Reference Pattern 238 b. NGSO FSS Gateway Earth Station Antenna Reference Pattern 241 4. RF Safety 244 5. Emission Limits 253 V. FURTHER NOTICE OF PROPOSED RULE MAKING 259 VI. BACKGROUND 261 A. Technical Criteria for Sharing and Operations the 12.2-12.7 GHz Band 266 1. MVDDS/DBS Sharing 266 2. MVDDS/NGSO FSS Sharing 277 3. MVDDS and Adjacent CARS/BAS Band Considerations 282 B. Multichannel Video Distribution and Data Service Rules 283 1. Licensing Plan 284 a. Service Areas 284 b. Frequency Availability and Assignments 287 c. Channeling Plan 288 d. Permissible Operations for MVDDS 289 e. Must-Carry Rules 292 f. Treatment of Incumbent Licensees 293 2. Application, Licensing and Processing Rules 295 a. Regulatory Status 295 b. License Eligibility 296 c. Foreign Ownership Restrictions 300 d. License Term and Renewal Expectancy 302 e. Partitioning and Disaggregation 305 f. Annual Report 307 g. Licensing and Coordination of MVDDS Stations 308 h. Canadian and Mexican Coordination 309 3. Technical Rules 311 a. Transmitter Power 311 b. RF Safety 313 c. Quiet Zone Protection 314 d. Antennas 315 e. Transmitting Equipment 317 4. Pending Applications 318 5. Competitive Bidding Procedures 331 a. Statutory Requirements 331 b. Incorporation by Reference of the Part 1 Standardized Auction Rules 335 c. Provisions for Designated Entities 336 6. Issues Affecting Tribal Governments 340 VII. PROCEDURAL INFORMATION 341 A. Initial Regulatory Flexibility Analysis 341 B. Paperwork Reduction Analysis 343 C. Ex Parte Presentations 345 D. Comment Dates 346 E. Further Information 351 F. Final Regulatory Analysis 352 VIII. ORDERING CLAUSES 353 Appendix A: Final Rules Appendix B: Flexibility Analysis Appendix C: NGSO System Applications Appendix D: Commenting Parties Appendix E: Proposed Rules Appendix F: Initial Regulatory Flexibility Analysis Appendix G: Examples of DBS Service Outages for Different Percentages of Service Unavailability Appendix H: A Method of Converting Percentage of Unavailable Time into a Carrier-to-Interference Ratio Appendix I: Proposed MVDDS/DBS Sharing Arrangement and Computation of the MVDDS/DBS Remediation Zone Appendix J: Unavailability Statistics for Increases in DBS Outages of 2.86%, 60 Minutes, and 30 Minutes Annually I. INTRODUCTION 1. In this First Report and Order (“First R&O”), we permit non-geostationary satellite orbit (“NGSO”) fixed-satellite service (“FSS”) providers to operate in certain segments of the Ku-band, and adopt rules and policies to govern such operations. We also adopt technical criteria so that NGSO FSS operations can share spectrum with incumbent services without causing unacceptable interference to them and without unduly constraining future growth of incumbent services or NGSO FSS system flexibility. Finally, we conclude that a new terrestrial fixed Multichannel Video Distribution and Data Service (“MVDDS”) can operate in the 12.2-12.7 GHz band on a non-harmful interference basis with incumbent Broadcast Satellite Services (“BSS”), and on a co-primary basis with the NGSO FSS. We also adopt a Further Notice of Proposed Rule Making (“Further NPRM”) to address technical and service rules for the MVDDS. By these actions, we provide for the introduction of new advanced services to the public, consistent with our obligations under section 706 of the 1996 Telecommunications Act, and promote increased competition among satellite and terrestrial services. II. SUMMARY 2. In this First Report and Order/Further Notice of Proposed Rule Making we make the following major determinations and proposals regarding NGSO FSS at Ku-band and the fixed services (“FS”) in the 12.2-12.7 GHz band. ? We permit NGSO FSS gateway earth stations to provide, on a primary basis, space-to-Earth transmissions (“downlinks”) in the 10.7-11.7 GHz band and Earth-to-space transmissions (“uplinks”) in the 12.75-13.15 GHz, 13.2125-13.25 GHz, and 13.75-14.0 GHz bands, thereby providing 1000 megahertz of spectrum for gateway downlink and 687.5 megahertz of spectrum for gateway uplink operations. Further, we permit gateway earth stations to operate in the 11.7-12.7 GHz downlink and 14.0-14.5 GHz uplink bands that will be predominantly used by NGSO FSS service links. ? We permit NGSO FSS to operate service downlinks in the 11.7-12.2 GHz band on a primary basis, and we allocate the 12.2-12.7 GHz band for NGSO FSS service downlinks on a primary basis. We also permit NGSO FSS to operate service uplinks in the 14.0-14.5 GHz band. This provides 1000 megahertz of spectrum for service downlink and 500 megahertz of spectrum for service uplink operations. ? We adopt technical sharing criteria (power flux density (“PFD”) limits) for NGSO FSS and FS operations in the 10.7-11.7 GHz band, consistent with decisions taken at the 2000 World Radiocommunication Conference (“WRC-2000”). Although we tentatively conclude that we should identify geographic protection zones for incumbent FS operations in the 10.7-11.7 GHz and 12.75- 13.25 GHz bands, we defer until a separate future proceeding a decision on what procedures to use for determining the size and location of such zones. We also defer until a separate future proceeding a decision on coordination procedures between NGSO FSS and FS authorized under Parts 74 and 78 in the 12.75-13.25 GHz band. ? We adopt technical sharing criteria (equivalent power flux density (“EPFD”) uplink and downlink limits) for NGSO FSS and geostationary-satellite orbit (“GSO”) FSS operations in all bands, consistent with decisions taken at WRC-2000. ? We conclude in the First Report and Order that the new MVDDS can operate in the 12.2-12.7 GHz band under the existing allocation, i.e., on a non-harmful interference basis to incumbent BSS and on a co-primary basis to the new NGSO FSS. We also conclude that we can define MVDDS technical requirements that would avoid harmful interference to BSS and establish PFD limits for MVDDS/NGSO FSS sharing. ? We will permit MVDDS operations in the 12.2-12.7 GHz band, and seek comment on technical sharing criteria between the MVDDS and BSS and NGSO FSS, and on MVDDS service, technical, and licensing rules under Part 101 of the Commission's Rules. ? We seek comment on whether to license the 12.2-12.7 GHz band on the basis of geographic areas. ? We seek comment on whether to license MVDDS to one spectrum block of 500 megahertz per geographic area and to allow partitioning of MVDDS; we seek comment on whether to restrict disaggregation. ? We seek comment on the permitted services, eligibility requirements and regulatory status of MVDDS in the 12.2-12.7 GHz band, including whether licensees should be required to meet must- carry obligations and provide all local TV channels to every subscriber. ? We propose to require incumbent non-public safety Private Operational Fixed Service (“POFS”) licensees in the 12.2-12.7 GHz band to protect MVDDS and NGSO FSS operations from harmful interference. ? We seek comment on the disposition of pending 12.2-12.7 GHz applications filed by Broadwave USA, PDC Broadband Corporation, and Satellite Receivers, Ltd. ? If we auction MVDDS licenses in the 12.2-12.7 GHz band, we propose to do so in conformity with the general competitive bidding rules set forth in Part 1, Subpart Q, of the Commission's Rules. III. BACKGROUND 3. In November 1998, the Commission released a Notice of Proposed Rule Making (“NPRM”) in this proceeding, which proposed to permit NGSO FSS operations in certain segments of the Ku-band. NGSO FSS can provide a variety of new services to the public, such as high-speed Internet and on-line access, plus other types of high-speed data, video and telephony services. In the NPRM, the Commission proposed to allow NGSO FSS operations to use the 10.7-12.7 GHz band for NGSO downlinks on a co- primary basis and to use the 12.75-13.25 GHz and 13.8-14.5 GHz bands for NGSO uplinks on a co- primary basis. We took this action in response to a Petition for Rule Making (“Petition”) filed by SkyBridge L.L.C. (“SkyBridge”). The proposals advanced in the NPRM were also promoted by actions taken at the 1997 World Radiocommunication Conference (“WRC-97”), which modified the International Telecommunication Union’s Radio Regulations (“ITU RR”) to permit NGSO FSS operations in various segments of the Ku-band. WRC-97 also outlined provisional criteria for NGSO FSS operations to protect existing services in these band segments from unacceptable interference. 4. The NPRM also asked for comments on a Petition for Rule Making (“Petition”) filed by Northpoint Technology, Ltd. (“Northpoint”) that proposed to provide terrestrial retransmission of local television signals and data services on a secondary basis to the incumbent BSS in the 12.2-12.7 GHz band, which is one of the bands in which we proposed to authorize NGSO FSS operations. Finally, the NPRM proposed licensing and service rules for NGSO FSS systems. These proposals also will be addressed in a future proceeding. 5. The spectrum proposed in the NPRM for NGSO FSS downlink operations – 10.7-12.7 GHz – is exclusively non-Federal Government spectrum; i.e., there are no Federal Government operations in these bands. The bands that comprise 10.7-12.2 GHz are allocated to the fixed-satellite service (space-to- Earth) on a primary basis and the 12.2-12.7 GHz band is allocated to the BSS (also referred to as “Direct Broadcast Satellite” or “DBS”) on a primary basis. The FSS downlink segments at 10.7-10.95 GHz and 11.2-11.45 GHz are subject to Appendix 30B/S30B of the ITU RR. Similarly, the BSS downlink segment at 12.2-12.7 GHz is subject to Appendix S30 of the ITU RR. This means that these segments are internationally “planned bands” where each country is assigned frequencies at certain orbital locations in the geostationary orbital arc. The use of the FSS downlink band at 10.7-11.7 GHz is limited to international systems, i.e., other than domestic systems. Prior to WRC-2000, international regulations stipulated that use of the FSS downlink band at 11.7-12.2 GHz and the BSS band at 12.2-12.7 GHz was limited to national and subregional systems. 6. In addition to space radiocommunication services, the bands comprising 10.7-12.7 GHz are allocated to and used by terrestrial radiocommunication services. Specifically, the 10.7-11.7 GHz band is allocated to the FS on a primary basis and is available for use by both the POFS point-to-point microwave operations (Part 101, Subparts C and H) and the Local Television Transmission Service (“LTTS,” Part 101, Subpart J). LTTS use of the 10.7-11.7 GHz band is limited to television studio-to- transmitter links (“STLs”). The 11.7-12.1 GHz band is allocated to the FS on a secondary basis, and the 11.7-12.2 GHz band is allocated to mobile except aeronautical mobile service on a secondary basis; i.e., this band is available to the land mobile and maritime mobile services, but not to the aeronautical mobile service. Together, these two secondary services are used by television pickup and television non- broadcast pickup stations in the LTTS. The 12.2-12.7 GHz band is allocated to the FS on a primary basis; however, the service is prohibited from causing harmful interference to the BSS. The band is also available for POFS stations on a non-harmful interference basis. Further, POFS stations are required to make any and all adjustments necessary to prevent harmful interference to operating BSS systems. Table 1, below, summarizes incumbent operations in the proposed NGSO FSS downlink bands. Table 1: U. S. Incumbent Operations in the Bands Proposed for NGSO FSS Downlinks (Systems operate on a primary basis, except as noted) Band 10.7-11.7 GHz 11.7-12.2 Hz 12.2-12.7 GHz Incumbent Operations FSS (space-to-Earth) BSS International systems only; 10.7-10.95 GHz and 11.2- 11.45 GHz are planned bands POFS and LTTS STLs LTTS TV pickup and TV non- broadcast pickup stations (secondary) POFS (secondary to BSS) NPRM Proposal NGSO gateways NGSO service links 7. Most of the spectrum proposed in the NPRM for NGSO FSS uplinks -- 12.75-13.25 GHz, 13.8-14.2 GHz, and 14.4-14.5 GHz -- is shared between Federal and non-Federal Government uses either on a co-primary or a primary/secondary basis; however, the bands comprising 14.2-14.4 GHz are non- Federal Government exclusive spectrum. All of the spectrum proposed for NGSO FSS uplinks (12.75- 13.25 GHz and 13.8-14.5 GHz) is already allocated to the non-Federal Government fixed-satellite service (Earth-to-space) on a primary basis. The FSS uplink band at 12.75-13.25 GHz is limited to international systems and is subject to Appendix S30B of the ITU RR. The Commission has adopted special ITU developed requirements for FSS use of the 13.75-14 GHz band, such as minimum and maximum earth station equivalent isotropically radiated power (“e.i.r.p.”) and a minimum antenna diameter in order to ensure compatibility with Federal Government systems. The bands comprising 13.75-14.2 GHz are allocated to the Federal and non-Federal Government space research service on a secondary basis, except for those geostationary space stations in the space research service that were advanced published prior to January 31, 1992, which shall operate on an equal basis with stations in the fixed-satellite service. The bands comprising 13.8-14.2 GHz are also allocated to the Federal and non-Federal Government standard frequency and time signal-satellite service on a secondary basis. 8. Other space radiocommunication services in the proposed NGSO FSS uplink bands are as follows. The 12.75-13.25 GHz band is allocated to the Federal and non-Federal Government space research service (deep space, space-to-Earth) on a primary basis, but its use is limited to Goldstone, California. The bands comprising 14-14.5 GHz are allocated to the non-Federal Government land mobile-satellite service on a secondary basis. 9. In addition to space communication services, the bands proposed for NGSO FSS uplinks are allocated to and used by terrestrial radiocommunication services. The 12.75-13.25 GHz band is allocated to the non-Federal Government FS and mobile services on a co-primary basis. Frequencies throughout the 12.70-13.25 GHz band are available for use by POFS stations and by television broadcast auxiliary service (“BAS”) stations. Additionally, frequencies in the 13.2-13.25 GHz segment are available for assignment to LTTS television pickup stations, television non-broadcast pickup stations, and STLs. The 13.8-14 GHz band is allocated to the Federal Government radiolocation service on a primary basis and to the non-Federal Government radiolocation service on a secondary basis. The 14-14.2 GHz band is allocated to the Federal and non-Federal Government radionavigation service on a primary basis, with the caveat that radionavigation stations “shall operate on a secondary basis to the fixed-satellite service.” The 14.2-14.4 GHz band is allocated to the non-Federal Government mobile except aeronautical mobile service on a secondary basis and is available for use by LTTS television pickup and television non- broadcast pickup stations. The 14.4-14.5 GHz band is allocated to the Federal Government fixed and mobile services on a secondary basis. Finally, radio astronomy observations may be made in the 14.47- 14.5 GHz segment at Federal and non-Federal Government licensed facilities. 10. In making our proposals, we sought to ensure that NGSO FSS operations do not cause unacceptable interference to existing users and do not unduly constrain future growth of incumbent services. In this regard, we noted that sharing between NGSO FSS and incumbent services was not feasible in certain bands sought by SkyBridge for NGSO uplinks. Specifically, we noted that sharing between NGSO FSS uplinks and the National Aeronautics and Space Administration (“NASA”) tracking data and relay satellite system (“TDRSS”) in the 13.75-13.80 GHz band requested by SkyBridge, and between NGSO FSS uplinks and BSS downlinks and Federal Government radiolocation operations in the 17.3-17.8 GHz band would raise significant interference concerns. Accordingly, we did not propose to permit NGSO FSS uplink operations in those bands. However, at WRC-2000, ITU-RR footnote S5.503 was revised with the consent of the United States to establish e.i.r.p. density limits to protect TDRSS from NGSO FSS interference. Table 2, below, summarizes incumbent operations in the proposed NGSO FSS uplink bands. Table 2: U. S. Incumbent Operations in the Bands Proposed for NGSO FSS Uplinks (Systems operate on a primary basis, except as noted) Band 12.75-13.25 GHz 13.8-14 GHz 14-14.2 GHz 14.2-14.4 GHz 14.4-14.5 GHz Incumbent Operations Non-Govt. FSS uplinks International systems only and is a planned band Special FSS spectrum sharing requirements POFS Govt. radiolocation Govt. and non-Govt. radionavigation (secondary to FSS) LTTS TV pickup and TV non-broadcast pickup stations (secondary) Govt. fixed and mobile (secondary) TV BAS; LTTS may use only 13.2-13.4 GHz Non-Govt. radiolocation (secondary) Non-Govt. land mobile-satellite uplinks (secondary) NASA’s Goldstone deep space receive site Space research service and standard frequency and time signal- satellite service (secondary, except for some GSO space research space stations) Radio astronomy observations may be made in 14.47-14.5 GHz band NPRM Proposal NGSO gateways NGSO service links NGSO gateways 11. In addition to its Petition, SkyBridge also filed an application for authority to launch and operate an NGSO FSS system. Certain characteristics of the proposed SkyBridge network, such as gateway earth stations, were discussed in the NPRM to facilitate the development of a complete record. In November 1998, the Commission issued a Public Notice, which established a cut-off date for filing NGSO FSS system applications in portions of the Ku-band ("Ku Band Cut-Off Notice"). There are applications pending for eight different NGSO FSS systems requesting access to all or some portion of the proposed bands, including applications from the Boeing Company (“Boeing”) and Denali Telecom, LLC (“Denali”), that were filed in response to other previous cut-off notices. The applicants propose a variety of orbit constellations and network designs, and a wide range of services, including high-speed Internet and on-line access, video conferencing, telephony, and entertainment services. These proposals offer an opportunity for competition to both satellite and terrestrial services. A brief description of each system is provided in Appendix C. While this proceeding focuses on NGSO FSS systems in general and discusses certain characteristics of proposed systems as appropriate, the applications will be addressed in a separate proceeding. 12. WRC-97/2000. In the NPRM, we noted that WRC-97 adopted power limits for certain segments of the Ku and Ka frequency bands to promote spectrum sharing between NGSO FSS systems and other systems and services. Specifically, WRC-97 provisionally adopted EPFD and aggregate power flux density (“APFD”) limits in certain band segments to protect incumbent GSO FSS and BSS operations. EPFD is the sum of the PFD levels of all potential interfering satellites of a particular NGSO constellation into a particular GSO earth station receiver. EPFD limits are intended to control the level of signal energy on the earth’s surface. Because each EPFD limit applies to a particular GSO earth station receiver with a specific antenna diameter and sidelobe pattern, different sized GSO FSS earth station receivers may require different EPFD protection requirements. APFD is the sum of the PFD levels at a location on the GSO arc created by all potentially interfering earth station transmitters of an NGSO FSS system. Because the technical studies justifying these power limits had not been fully considered in the ITU Radiocommunication Sector (“ITU-R”) study group process, as is customary, they were deemed provisional until they could be analyzed by the relevant ITU-R study groups and reviewed at WRC-2000. Moreover, the provisional EPFD and APFD limits adopted by WRC-97 applied only to a single NGSO FSS system (“single-entry” limits) and did not consider the impact of multiple NGSO FSS systems for GSO BSS and FSS systems. 13. As we discuss in more detail below, the NPRM sought comment on WRC-97’s provisional EPFD and APFD limits and on alternative values for these limits. We note that since the NPRM was adopted, international working groups have recommended changes to the definition of APFD limits, including referring to them as “EPFDup” limits (see discussion below). Consequently, we will adopt that terminology in this First R&O, and we will refer to “EPFDdown” for power limits applicable to NGSO FSS space stations within an NGSO FSS system and EPFDup for power limits applicable to NGSO FSS earth stations within an NGSO FSS system or GSO BSS and FSS systems. 14. In addition, to protect terrestrial services and facilitate operation of co-primary satellite and terrestrial services, the ITU RR include PFD limits to control the level of satellite signal energy on the Earth’s surface. Although the PFD limits currently in use were developed to protect terrestrial services from GSO FSS downlinks, WRC-97 concluded that these limits should also apply to NGSO FSS downlinks. While the PFD limits to protect terrestrial services from NGSO FSS are not provisional, they were subject to review and possible modification at WRC-2000 based on the determination of whether they adequately protect terrestrial services from the aggregate of multiple NGSO FSS systems. As we discuss in more detail below, for protection of terrestrial services the NPRM proposed to adopt the WRC- 97 PFD limits. 15. As we noted in the NPRM, the U.S., with representation from the terrestrial, NGSO FSS and GSO FSS industries, was an active participant in the ITU-R technical study groups tasked with conducting analyses of these sharing issues in preparation for WRC-2000. ITU-R working groups made significant progress on NGSO FSS sharing issues. Additionally, a WRC-2000 Conference Preparatory Meeting (“CPM”) was held in November 1999. The final output of the CPM was a report containing information on technical, operational and regulatory/procedural issues relevant to items on the WRC-2000 agenda. This report reflected among other issues on the WRC-2000 Agenda, input from various ITU-R working parties and study groups, individual Administrations, and international organizations regarding NGSO FSS sharing issues, and provided the technical basis for decisions on these issues taken by WRC-2000. WRC-2000 affirmed the outcomes in the CPM report that are relevant to this proceeding. The CPM report, the ITU-R work, and the decisions taken at WRC-2000 are discussed in more detail below, and relevant documents have been included in the docket file. Nonetheless, as we noted in the NPRM, ITU-R deliberations are based on the technical input of many Administrations that often have different domestic spectrum uses than those in the United States. Thus, while the conclusions of the CPM, the ITU-R study groups, and WRC-2000 may have general technical applicability, based on each Administration’s input and the resultant compromise, they may not adequately address specific, domestic sharing conditions such as those prevalent in the U.S. Consequently, in the NPRM we sought comment on a variety of techniques that could be used to facilitate operation of both NGSO FSS and incumbent services in the U.S. where the Ku-band is extensively used. 16. Throughout this proceeding, we will discuss the impact of new satellite and terrestrial operations in the Ku Band. In some instances, these new operations may cause interference events, but it is our intention to minimize these interference events to an acceptable level for the services at issue. At present, the ITU-R recommends that the GSO FSS network should be designed to accept an aggregate interference equal to 20 percent of the total system noise power from all other GSO FSS networks and a further 10 percent for interference from co-primary terrestrial radio services. 17. The ITU-R further recommends that each adjacent GSO FSS network should not contribute more than 6 percent of the total system noise power. The makeup of the remaining 70 percent includes allocations for uplink and downlink thermal noise, intra-network self interference noise (such as intermodulation and cross-polarization) and earth station equipment noise. The allocation for each noise component depends on the specificity of each network and each type of transmission. 18. On November 29, 1999, the Satellite Home Viewer Improvement Act (“SHVIA”) was enacted. The SHVIA legislation generally seeks to place satellite carriers on equal footing with local cable operators concerning the availability of broadcast programming, and thus is intended to give consumers more and better choices in selecting a multichannel video programming distributor (“MVPD”). In conjunction with the 1999 SHVIA legislation, Congress passed a provision entitled “Rural Local Broadcast Signal Act.” Among other things, this law requires the Commission to make a determination by November 29, 2000, regarding licenses or other authorizations for facilities that will utilize, for delivering local broadcast television signals to satellite television subscribers in unserved and underserved local television markets, spectrum otherwise allocated to commercial use. After an exhaustive analysis and the time-consuming development on the international front of a consensus regarding critical technical issues, we have made a major threshold determination to authorize a new service, MVDDS, that will be capable of delivering local broadcast television station signals to satellite television subscribers in unserved and underserved local television markets. Moreover, we have identified a band for this service – 12.2-12.7 GHz – and have determined that MVDDS can co-exist with the incumbent services and with the newly authorized NGSO-FSS operations. Finally, with the Further NPRM, we have set in motion the final regulatory process for licensing MVDDS. In light of these determinations, we conclude that we have met the deadline for action set forth in the Rural Local Broadcast Signal Act. IV. FIRST REPORT AND ORDER 19. We conclude that the public interest will be served by permitting NGSO FSS use of the Ku- band. The implementation of NGSO FSS systems will allow new advanced services to be provided to the public, as well as provide increased competition to existing satellite and terrestrial services. Indeed, the NGSO FSS, because of its ability to serve large portions of the earth’s surface, can bring advanced services to rural areas. We also conclude that it is possible for the NGSO FSS to share spectrum with incumbent services without causing unacceptable interference to them and without unduly constraining their future growth. Accordingly, we are adopting technical criteria for NGSO FSS operations that will allow this new service to operate on a co-primary basis with incumbent services in the designated bands. 20. The ITU-R, including Joint Task Group (“JTG”) 4-9-11 and the CPM in preparation for WRC-2000, reached consensus agreements on a number of NGSO FSS sharing issues. Moreover, interested parties subsequently reached a compromise solution to the outstanding NGSO FSS/GSO FSS and NGSO FSS/BSS sharing issues at the CPM. These results were affirmed by WRC-2000. The numerous technical analyses undertaken by the ITU-R and CPM represent the most comprehensive and current studies on NGSO FSS protection of GSO FSS networks, FS operations and BSS systems available to date. Considering the agreements reached within the international arena and the record developed in response to these international agreements, we find that we have an adequate basis to adopt rules governing co-frequency operation of NGSO FSS systems in certain frequency bands. 21. We conclude that the new MVDDS can operate in the 12.2-12.7 GHz band on a non-harmful interference basis with the incumbent BSS service, and on a co-primary basis with the NGSO FSS. We note that extensive technical information and the results of experimental tests have been filed concerning sharing of the 12.2-12.7 GHz band by NGSO FSS, BSS, and MVDDS operations. We find that we have an adequate record to conclude that the MVDDS can operate in the band on a non-harmful interference basis to the BSS and on a co-primary basis with the NGSO FSS. The NPRM did not propose specific technical, service or licensing rules for the MVDDS. These proposed rules will be the subject of the Further NPRM. A. NGSO FSS Gateway Bands 22. In the NPRM, we proposed to allow NGSO FSS gateway downlink operations on a co-primary basis in the 10.7-11.7 GHz band; and to allow NGSO FSS gateway uplink operations on a co-primary basis in the 12.75-13.25 GHz, 13.8-14.0 GHz, and 14.4-14.5 GHz bands. In addition, the NPRM proposed to apply the WRC-97 PFD limits, existing coordination procedures and other techniques to facilitate sharing between NGSO operations and terrestrial services. The NPRM also sought comment on the WRC-97 provisional EPFD limits for NGSO sharing with GSO operations and requested thorough analysis concerning the adequacy of these limits. The 13.75-13.8 GHz band was not proposed for NGSO FSS gateway uplink operations due to potential interference with Federal Government operations, and the 17.3-17.8 GHz band was not proposed due to a conflict with use of the band for BSS and Federal Government radiolocation services. We will address each of these bands and any relevant issues below. 1. Gateway Definition 23. Proposal. In order to facilitate the coordination process between NGSO FSS earth stations and terrestrial operations, the NPRM proposed to permit only gateway operations in bands shared with terrestrial operations allocated on a co-primary basis. For the purpose of NGSO FSS in the Ku-band, the NPRM proposed to define gateway operations as earth station operations that are not intended to originate or terminate traffic but are primarily intended for interconnecting to other networks. The NPRM invited comment on whether the Commission should establish minimum antenna size requirements for gateway earth stations. The NPRM also asked whether it would be necessary to limit the number of NGSO FSS gateway stations in bands shared with terrestrial operations, and whether gateway operations should meet minimum antenna size requirements. 24. Comments. Although many commenters agree that only NGSO FSS gateway earth stations should be permitted to share Ku-band frequencies with terrestrial operations, some argue that there should not be a rigid distinction between gateway and service links. Teledesic LLC (“Teledesic”) states that service links should be allowed to share with FS operations as long as they meet certain technical requirements. Similarly, Virtual Geosatellite, L.L.C. (“Virgo”) argues that service links should be permitted in the 11.2-11.7 GHz portion as long as they switch to other spectrum if terrestrial interference occurs. FS interests and SkyBridge oppose allowing service links in the gateway bands. In its initial comments, SkyBridge suggests that the Commission clarify that gateways are not intended to handle traffic at user sites so that a gateway station does not act as an intermediary between the NGSO FSS satellite and a group of users connected terrestrially to that user earth station. Boeing and SkyBridge also oppose the proposal that, for coordination purposes, a single gateway must be contained within an area of one second longitude by one second latitude. They argue that this requirement would be overly restrictive and would not allow individual gateway antennas sufficient room to avoid blocking one another’s signals. 25. PanAmSat Corporation (“PanAmSat”) and Boeing support establishing a minimum antenna size requirement for NGSO FSS gateway stations in the Ku-band as a means of facilitating sharing, but in its initial comments SkyBridge opposes minimum antenna size requirements as arbitrary. Boeing and SkyBridge also advise against establishing limits on the number of satellite earth stations permitted to operate in the Ku-band, asserting that any limit would be arbitrary. 26. PanAmSat argues that the Commission should not subject GSO FSS systems in these frequency bands to the gateway station definition because it is designed as a particular component of an NGSO FSS system and is not relevant to GSO FSS systems. PanAmSat also contends that it would be inequitable to use the gateway definition to limit GSO FSS deployment in these bands. 27. In November 1999, SkyBridge and the Fixed Wireless Communications Council (“FWCC”) filed a joint ex parte letter indicating that they had negotiated an agreement on appropriate rules to govern the shared use of the 10.7-11.7 GHz band by the FS and NGSO FSS. In December 1999, SkyBridge and the FWCC submitted the agreement as a proposal in this proceeding. One of the areas addressed in the SkyBridge/FWCC proposal is the definition of an NGSO FSS gateway earth station. SkyBridge and FWCC propose the following definition: A Gateway operating in the 10.7-11.7 GHz band shall consist of an earth station complex providing radio frequency resources to NGSO FSS space stations which allow customer-premises earth stations to interconnect with long distance or other intercity networks or other non-collocated customer- premises earth stations; a Gateway shall not connect directly to customer-owned or customer- operated private distribution networks. Gateways shall have no less than three operational earth station antennas, each of which shall be no less than 2.5 meters in diameter; for non-parabolic antenna designs, the mainbeam beamwidth of the antenna shall not exceed the mainbeam beamwidth of a standard 2.5 meter parabolic antenna. 28. In comments regarding this proposed definition, Boeing states that a minimum Gateway antenna size of 4.5 meters would best enhance sharing among inhomogeneous NGSO FSS systems in the Ku-band. However, Boeing states that because sharing between NGSO systems is not at issue in this proceeding, it simply requests that the inclusion of the 2.5 meter minimum Gateway antenna size not foreclose the possibility that we may determine that the inclusion of a 4.5 meter minimum Gateway antenna size best serves sharing among co-frequency NGSO systems. 29. Decision. We find that we can permit deployment of NGSO FSS gateway earth stations in the proposed bands and also protect the continued use and growth of those bands by terrestrial operations. However, for reasons discussed in Section A3, we are limiting gateway use of the 12.75- 13.25 GHz band to the 12.75-13.15 GHz and 13.2125-13.25 GHz band segments. Further, as discussed in Section A4, we are permitting gateway use of the 13.75-13.8 GHz band. Finally, as discussed in Section A5, we will permit service link, as well as gateway, use of the 14.4-14.5 GHz band. We recognize, however, that deployment of service links in the 10.7-11.7 GHz, 12.75-13.15 GHz, 13.2125- 13.25 GHz, and 13.75-14.0 GHz bands could hinder future terrestrial service deployment in those bands. Therefore, we find it appropriate to allow only gateway earth station operations for NGSO FSS in those four bands. This will avoid the ubiquitous deployment of earth stations in those bands. Further, gateway earth stations will be located at sites readily identified to other users of the bands, thus increasing the potential for co-frequency operation. We define NGSO FSS gateway earth stations as those earth stations that do not originate or terminate traffic, but interconnect multiple non-collocated user earth stations operating in frequency bands other than designated gateway bands, through a satellite with other primary networks, such as the public switched telephone network and Internet networks. That is, gateway earth stations will be required to operate in a manner that supports the switching and routing functions of the NGSO FSS system as a whole, as do feeder links for mobile-satellite systems or hub operations for very small aperture terminal (“VSAT”) networks. 30. Thus, we are adopting a functional definition for earth station use of this band, which should provide for various NGSO FSS system designs, regardless of what terminology is used by an applicant to describe the facility. We note that this definition is similar to the one proposed by SkyBridge and the FWCC without establishing a limit on the number of earth stations per complex or on the size of the earth stations. Moreover, as discussed below, each NGSO gateway antenna will be required to meet an antenna performance standard of 29-25 log theta (?) dBi in all directions. We find that adopting this antenna performance standard will ensure that NGSO gateway antennas focus their signals in the desired direction without the need for minimum antenna size requirements, which could hinder innovation and flexibility. Additionally, to facilitate coordination with terrestrial facilities, we adopt our proposal requiring a single gateway complex to be located within an area of one second latitude by one second longitude. This requirement, which also applies to GSO FSS earth station sitings, facilitates earth station and terrestrial coordination in shared bands by specifying very limited areas for gateway antennas. Gateway antennas outside of these areas will be considered as separate gateway complexes for the purposes of coordination with terrestrial services and for licensing purposes. Nevertheless, these interconnected gateway antennas could be under multiple licenses, or considered as a single gateway complex. 31. We do not find it is necessary at this time to limit the number of NGSO FSS earth stations that should be allowed to use the 10.7-11.7 GHz, 12.75-13.15 GHz, 13.2125-13.25 GHz, and 13.75-14.0 GHz bands. The applications that have been filed for Ku-band NGSO FSS systems do not reflect a need for a significant number of gateway stations. Therefore, the gateway earth station definition adopted here should be sufficient to prevent ubiquitous deployment of NGSO FSS earth stations in those bands. Nevertheless, as the NGSO FSS service grows to meet increasing capacity demands, any NGSO FSS network architecture changes resulting in a significant increase in the number of gateway stations can be addressed at that time. Finally, we clarify that this gateway definition applies only to NGSO FSS earth stations and not to GSO FSS operations in these bands. Although GSO FSS systems may operate gateway or hub earth stations that have some of the same characteristics as NGSO FSS gateway earth stations, GSO FSS earth stations operating in these bands are subject to separate requirements, which are discussed further below. 2. NGSO FSS Gateway Downlink Band: 10.7-11.7 GHz 32. The 10.7-11.7 GHz band is currently allocated on a co-primary basis to the FS, licensed under Part 101 of the Commission's Rules; and to the FSS for international systems (downlinks), licensed under Part 25 of the Commission's Rules. The FS links in this band support a wide array of communication services used by utilities, railroads, telephone companies, state and local governments, public safety agencies, and others. Moreover, this band was identified in 1993 in the Emerging Technologies proceeding and in 1997 in the Mobile-Satellite Service (“MSS”) 2 GHz allocation proceeding as a future home for fixed point-to-point operations to be relocated from the 2 GHz band. There are also several GSO FSS earth stations for international systems in this band. Further, this band is also used for telemetry, tracking, and control (“TT&C”) functions for GSO FSS satellites. 33. The NPRM proposed to allow domestic/regional, as well as international, NGSO FSS gateway downlinks in the 10.7-11.7 GHz band, but to maintain the international systems only requirement for GSO FSS. The NPRM stated that NGSO FSS gateway downlink operations should be able to share the 10.7-11.7 GHz band with incumbent FS and GSO FSS operations provided the gateway stations are not extensively deployed and proper coordination is performed. To facilitate this spectrum sharing, the NPRM proposed PFD and EPFD limits for NGSO FSS satellites to protect FS and GSO FSS earth station operations, respectively. Additionally, coordination procedures between FS transmitters and NGSO FSS earth stations were proposed, as well as NGSO FSS gateway siting restrictions to protect FS growth in the 50 most populated metropolitan areas. The NPRM also proposed that any gateway siting restrictions have a sunset date. Further, the NPRM sought comment on the appropriate means to protect GSO FSS service and TT&C links from new NGSO FSS downlink operations. These issues and others that were raised by commenters in this proceeding are addressed below. a. NGSO FSS/FS Downlink Sharing (i) Protection of FS receivers (PFD limits) 34. Proposal. The NPRM indicated that long-term interference from NGSO FSS downlinks into terrestrial FS receivers could be controlled by requiring that satellite transmissions not exceed the PFD limits adopted at WRC-97. These limits are already in place for GSO FSS systems sharing with terrestrial FS and are included in Article S21 of the ITU Radio Regulations. Because NGSO FSS systems have different operating characteristics than GSO FSS systems and because WRC-97 recognized that further studies were needed to assess the impact of multiple NGSO FSS systems, the NPRM sought comment on the adequacy of these limits. Additionally, the NPRM sought comment regarding whether short-term interference limits are necessary, particularly for FS operations with high look angles. 35. Comments. Since the adoption of the NPRM, the ITU-R has determined that the PFD limits adopted at WRC-97 are adequate to protect terrestrial FS operations from the aggregate interference from both GSO FSS and NGSO FSS satellite systems. While many commenters generally defer to the decisions of the ITU-R regarding PFD limits, terrestrial FS interests argue that the interference potential from NGSO FSS satellites is greater than that from GSO FSS satellites, even under a common set of PFD limits. In particular, FS proponents are concerned that the proposed PFD limits are not adequate to protect terrestrial FS links operating with a higher elevation angle to the horizon from NGSO FSS interference due to potential mainbeam-to-mainbeam interference. FWCC argues that the mainbeam- to-mainbeam interference issue is complicated because the PFD limits do not adequately account for Automatic Transmitter Power Control (“ATPC”) in FS stations, a technique that allows FS stations to operate with minimal interference margins. 36. Boeing replies that FS links that use a high elevation angle will not be affected because these terrestrial link transmission paths are much shorter than those used on flat terrain and the terrestrial signal will be robust enough to overcome any NGSO FSS transmission. SkyBridge contends that mainbeam-to-mainbeam interference to FS links will not occur at less than 6 degrees elevation, which it claims protects 95.7% of all FS receivers. Further, SkyBridge argues that FS receivers at higher elevations will be protected by the short term protection criteria agreed to within the ITU-R, which will result in NGSO FSS transmissions that would never exceed a 20 dB interference to noise ratio. Regarding ATPC in terrestrial FS links, SkyBridge states that the ITU study groups have developed a protection criteria to account for an ATPC range of up to 13 dB and that terrestrial interests have not demonstrated that the PFD limits are not adequate to protect terrestrial operations. 37. FS proponents also argue that promises to protect FS operations will be difficult to enforce because an interfering signal can cause complete loss of synchronization and still not be visible on a spectrum analyzer. They also argue that it is not realistic to expect NGSO FSS licensees to willingly shut down if interference occurs. Therefore, regulations to protect FS operations must be established at the outset. SBC Communications, Inc. (“SBC”) claims that FS licensees should not bear any burden for correcting interference caused by NGSO FSS and should be reimbursed for the cost of investigating interference caused by NGSO FSS operations. SkyBridge replies that NGSO FSS licensees will have co-primary status in the bands and, therefore, they should not be solely responsible for fixing problems. 38. Decision. We note that the ITU-R studied the necessary criteria and PFD limits to allow NGSO FSS satellite downlinks to share spectrum with terrestrial FS operations. In particular, Working Party 4-9S reached agreement on a set of PFD limits in April 1999 that are adequate for the protection of the FS in the 10.7-12.75 GHz band from the aggregate of interference from GSO FSS systems and multiple NGSO FSS systems. The ITU-R studies considered various sharing issues between FS operations and NGSO FSS operations, including typical FS operation margins with ATPC, the aggregate effect of multiple NGSO satellites, and other factors leading to interference concerns. The PFD limits agreed upon within the ITU-R for the 10.7-11.7 GHz band have been affirmed by WRC-2000 and are listed below for various angles above the horizontal plane (?). Table 3: ITU-R Recommended PFD Limits for 10.7-11.7 GHz Band PFD Limit Angle of arrival above the horizontal plane -126 dB(W/m2/ MHz) 0? 2.5 and ? 4.5 From 31 December 2005: 10.7-11.7 in all Regions; 11.7-12.2 in Region 2; 12.2-12.5 in Region 3; and 12.5-12.75 in Regions 1 and 3 –161.25 –164 –165.5 –167.5 100 40 3 6 9 ? 18 ? 2.5 –158.25 –161 –162.5 –164.5 100 40 3 6 9 ? 18 > 2.5 and ? 4.5 1 The operational limits on the EPFDdown radiated by non-GSO FSS systems shall be the values given in note 1 to the table in paragraph (d) or this table, whichever are the more stringent. 2 For antenna diameters between the values given in this table, the limits are given by linear interpolation using a linear scale for EPFDdown in decibels and a logarithmic scale for antenna diameter in meters. Note to paragraph g: These limits relate to the operational equivalent power flux-density which would be obtained under free-space propagation conditions, for all conditions, for all methods of modulation and for the specified inclined GSO FSS operations. ( h) In the frequency bands 12.75-13.15 GHz, 13.2125-13.25 GHz and 13.75-14.5 GHz, the equivalent power flux-density, in the Earth-to-space direction, (EPFDup) produced at any point on the geostationary satellite orbit (GSO) by the emissions from all co-frequency earth stations in a non-geostationary satellite orbit fixed-satellite service (NGSO FSS) system, for all conditions and for all methods of modulation, shall not exceed the following limits for the specified percentages of time limits: Limits to the EPFDup radiated by NGSO FSS systems in certain frequency bands Frequency band (GHz) for International Allocations EPFDup dB(W/m2) Percentage of time during which EPFDup may not be exceeded Reference bandwidth (kHz) Reference antenna beamwidth and reference radiation pattern1 12.5-12.75 12.75-13.25 13.75-14.5 -160 100 40 4? ITU-R S.672-4, Ls = -20 1 For the case of Ls = -10, the values a = 1.83 and b = 6.32 should be used in the equations in the Annex of Recommendation ITU-R S.672-4 for single-feed circular beams. In all cases of Ls, the parabolic main beam equation should start at zero. Note to paragraph h: These limits relate to the uplink equivalent power flux density, which would be obtained under free-space propagation conditions, for all conditions and for all methods of modulation. (i) In the frequency bands 11.7-12.2 GHz and 12.5-12.75 GHz in Region 3, 11.7-12.5 GHz in Region 1 and 12.2-12.7 GHz in Region 2, the single-entry equivalent power-flux density, in the space-to-Earth direction, (EPFDdown), at any point on the Earth's surface, produced by emissions from all co-frequency space stations of a single non-geostationary-satellite orbit (NGSO) system operating in the fixed-satellite service (FSS) shall not exceed the following limits for the given percentages of time: Single-Entry EPFDdown limits for protection of 30, 45, 60, 90, 120, 180, 240 and 300 cm GSO BSS earth station antennas 1, 2, 3 Frequency band (GHz) for International Allocations EPDFdown dB(W/m2) Percentage of time during which EPFDdown level may not be exceeded Reference bandwidth (kHz) Reference antenna diameter and reference radiation pattern 4 11.7-12.5 in Region 1; 11.7-12.2 and 12.5-12.75 in Region 3; 12.2-12.7 in Region 2 –165.841 –165.541 –164.041 –158.6 –158.6 –158.33 –158.33 0 25 96 98.857 99.429 99.429 100 40 30 cm Recommendation ITU-R BO.1443 Annex 1 –175.441 –172.441 –169.441 –164 –160.75 –160 –160 0 66 97.75 99.357 99.809 99.986 100 40 45 cm Recommendation ITU-R BO.1443 Annex 1 –176.441 –173.191 –167.75 –162 –161 –160.2 –160 –160 0 97.8 99.371 99.886 99.943 99.971 99.997 100 40 60 cm Recommendation ITU-R BO.1443 Annex 1 –178.94 –178.44 –176.44 –171 –165.5 –163 –161 –160 –160 0 33 98 99.429 99.714 99.857 99.943 99.991 100 40 90 cm Recommendation ITU-R BO.1443 Annex 1 –182.44 –180.69 –179.19 –178.44 –174.94 –173.75 –173 –169.5 –167.8 –164 –161.9 –161 –160.4 –160 0 90 98.9 98.9 99.5 99.68 99.68 99.85 99.915 99.94 99.97 99.99 99.998 100 40 120 cm Recommendation ITU-R BO.1443 Annex 1 –184.941 –184.101 –181.691 –176.25 –163.25 –161.5 –160.35 –160 –160 0 33 98.5 99.571 99.946 99.974 99.993 99.999 100 40 180 cm 3 Recommendation ITU-R BO.1443 Annex 1 –187.441 –186.341 –183.441 –178 –164.4 –161.9 –160.5 –160 –160 0 33 99.25 99.786 99.957 99.983 99.994 99.999 100 40 240 cm 2 Recommendation ITU-R BO.1443 Annex 1 –191.941 –189.441 –185.941 –180.5 –173 –167 –162 –160 –160 0 33 99.5 99.857 99.914 99.951 99.983 99.991 100 40 300 cm Recommendation ITU-R BO.1443 Annex 1 1 For BSS antenna diameters 180 cm, 240 cm and 300 cm, in addition to the single-entry limits shown in this table, the following table for single-entry 100% of the time EPFDdown limits also applies in the frequency band listed: Single-Entry EPFDdown limits radiated by non-GSO FSS systems at certain latitudes 100% of the time EPFDdown dB(W/(m2/40 kHz)) Latitude (North or South in degrees) -160.0 0 ? ?latitude? ? 57.5 -160.0 + 3.4 * (57.5 – ?latitude?)/4 57.5 ? ?latitude? ? 63.75 -165.3 63.75 ? ?latitude? 2 For 240 cm GSO BSS earth station antennas located in Alaska, communicating with GSO BSS satellites at the 91° W.L., 101° W.L., 110° W.L., 119° W.L. and 148° W.L. nominal orbital locations with elevation angles greater than 5°, -167 dB(W/(m2/40 kHz)) single-entry 100% of the time operational EPFDdown limit also applies to receive antennas. 3 For 180 cm GSO BSS earth station antennas located in Hawaii communicating with GSO BSS satellites that are operational as of December 30, 1999 at the 110° W.L., 119° W.L. and 148° W.L. nominal orbital positions, -162.5 dB(W/(m2/40 kHz)) single-entry 100% of the time operational EPFDdown limit also applies. 4 Under the section reference pattern of Annex 1 to Recommendation ITU-R BO.1443 shall be used only for the calculation of interference from non-GSO FSS systems into BSS systems. Note to paragraph i: These limits relate to the equivalent power flux density, which would be obtained under free-space propagation conditions, for all conditions and for all methods of modulation. (j) In the frequency bands 11.7-12.2 GHz and 12.5-12.75 GHz in Region 3, 11.7-12.5 GHz in Region 1 and 12.2-12.7 GHz in Region 2, the aggregate equivalent power-flux density, in the space-to-Earth direction, (EPFDdown) at any point on the Earth's surface, produced by emissions from all co-frequency space stations of all non-geostationary-satellite orbit systems operating in the fixed-satellite service (FSS) shall not exceed the following limits for the given percentages of time: Aggregate EPFDdown limits for protection of 30, 45, 60, 90, 120, 180, 240 and 300 cm GSO BSS earth station antennas 1, 2, 3 Frequency band (GHz) for International Allocations EPFDdown dB(W/m2) Percentage of time during which EPFDdown level may not be exceeded Reference bandwidth (kHz) Reference antenna diameter, and reference radiation pattern 4 11.7- 12.5 GHz in Region 1; 11.7-12.2 GHz and 12.5-12.75 GHz in Region 3; 12.2-12.7 GHz in Region 2 –160.4 –160.1 –158.6 –158.6 –158.33 –158.33 0 25 96 98 98 100 40 30 cm Recommendation ITU-R BO.1443 Annex 1 11.7-12.5 GHz in Region 1; 11.7-12.2 GHz and 12.5-12.75 GHz in Region 3 12.2-12.7 GHz in Region 2 –170 –167 –164 –160.75 –160 –160 0 66 97.75 99.33 99.95 100 40 45 cm Recommendation ITU-R BO.1443 Annex 1 11.7-12.5 GHz in Region 1 11.7-12.2 GHz and 12.5-12.75 GHz in Region 3 12.2-12.7 GHz in Region 2 –171 –168.75 –167.75 –162 –161 –160.2 –160 –160 0 90 97.8 99.6 99.8 99.9 99.99 100 40 60 cm Recommendation ITU-R BO.1443 Annex 1 11.7-12.5 GHz in Region 1 11.7-12.2 GHz and 12.5-12.75 GHz in Region 3 12.2-12.7 GHz in Region 2 –173.75 –173 –171 –165.5 –163 –161 –160 –160 0 33 98 99.1 99.5 99.8 99.97 100 40 90 cm Recommendation ITU-R BO.1443 Annex 1 11.7-12.5 GHz in Region 1 11.7-12.2 GHz and 12.5-12.75 GHz in Region 3 12.2-12.7 GHz In Region 2 –177 –175.25 –173.75 –173 –169.5 –167.8 –164 –161.9 –161 –160.4 –160 0 90 98.9 98.9 99.5 99.7 99.82 99.9 99.965 99.993 100 40 120 cm Recommendation ITU-R BO.1443 Annex 1 Frequency band (GHz) EPFDdown dB(W/m2) Percentage of time during which EPFDdown level may not be exceeded Reference bandwidth (kHz) Reference antenna diameter, and reference radiation pattern1 11.7-12.5 GHz in Region 1; 11.7-12.2 GHz and 12.5-12.75 GHz in Region 3; 12.2-12.7 GHz in Region 2 –179.5 –178.66 –176.25 –163.25 –161.5 –160.35 –160 –160 0 33 98.5 99.81 99.91 99.975 99.995 100 40 180 cm Recommendation ITU-R BO.1443 Annex 1 11.7-12.5 GHz in Region 1; 11.7-12.2 GHz and 12.5-12.75 GHz in Region 3; 12.2-12.7 GHz in Region 2 –182 –180.9 –178 –164.4 –161.9 –160.5 –160 –160 0 33 99.25 99.85 99.94 99.98 99.995 100 40 240 cm Recommendation ITU-R BO.1443 Annex 1 11.7-12.5 GHz In Region 1; 11.7-12.2 GHz and 12.5-12.75 GHz In Region 3; 12.2-12.7 GHz In Region 2 –186.5 –184 –180.5 –173 –167 –162 –160 –160 0 33 99.5 99.7 99.83 99.94 99.97 100 40 300 cm Recommendation ITU-R BO.1443 Annex 1 1 For BSS antenna diameters 180 cm, 240 cm and 300 cm, in addition to the aggregate limit shown in this table, the following table of aggregate 100% of the time EPFDdown limit also applies: 100% of the time EPFDdown dB(W/(m2/40 kHz)) Latitude (North or South in degrees) -160.0 0 ? ?latitude? ? 57.5 -160.0 + 3.4 (57.5 – ?latitude?)/4 57.5 ? ?latitude? ? 63.75 -165.3 63.75 ? ?latitude? 2 For 240 cm GSO BSS earth station antennas located in Alaska, communicating with GSO BSS satellites at the 91° W.L., 101° W.L., 110° W.L., 119° W.L. and 148° W.L. nominal orbital locations with elevation angles greater than 5°, -167 dB(W/(m2/40 kHz)) aggregate 100% of the time operational EPFDdown limit also applies to receive antennas. 3 For 180 cm GSO BSS earth station antennas located in Hawaii communicating with GSO BSS satellites that are operational as of December 30, 1999 at the 110° W.L., 119° W.L. and 148° W.L. nominal orbital positions, -162.5 dB(W/(m2/40 kHz)) aggregate 100% of the time operational EPFDdown limit also applies. 4 Under the section reference pattern of Annex 1 to Recommendation ITU-R BO.1443 shall be used only for the calculation of interference from non-GSO FSS systems into GSO BSS systems. Note to paragraph j: These limits relate to the equivalent power flux density, which would be obtained under free-space propagation conditions, for all conditions and for all methods of modulation. 12. Section 25.209 is amended by revising paragraph (a) and adding new paragraph (h) to read as follows: § 25.209 Antenna performance standards. (a) The gain of any antenna to be employed in transmission from an earth station in the geostationary satellite orbit fixed-satellite service (GSO FSS) shall lie below the envelope defined below: * * * * * (h) The gain of any antennas to be employed in transmission from a gateway earth station antenna operating in the frequency bands 10.7-11.7 GHz, 12.75-13.15 GHz, 13.2125-13.25 GHz, 13.8-14.0 GHz, and 14.4-14.5 GHz and communicating with NGSO FSS satellites shall lie below the envelope defined below: 29 - 25log10 (?) dBi 1? < ? < 36? -10 dBi 36? < ? < 180? where ? is the angle in degrees from the axis of the main lobe, and dBi refers to dB relative to an isotropic radiator. For the purposes of this section, the peak gain of an individual sidelobe may not exceed the envelope defined above. 13. Section 25.212, the section heading is revised to read as follows: § 25.212 Narrowband transmissions in the 12/14 GHz GSO Fixed-Satellite Service. * * * * * 14. Section 25.251 is amended by revising paragraphs (a) and (b). § 25.251 Special requirements for coordination. (a) The administrative aspects of the coordination process are set forth in § 101.103 of this chapter in the case of coordination of terrestrial stations with earth stations, and in § 25.203 in the case of coordination of earth stations with terrestrial stations. (b) The technical aspects of coordination are based on Appendix S7 of the International Telecommunication Union Radio Regulations and certain recommendations of the ITU Radiocommunication Sector (available at the FCC’s Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554). 15. Section 25.271 is amended by adding new paragraph (e). § 25.271 Control of transmitting stations. * * * * * (e) The licensee of an NGSO FSS system operating in the 10.7-14.5 GHz bands shall maintain an electronic web site bulletin board to list the satellite ephemeris data, for each satellite in the constellation, using the North American Aerospace Defense Command (NORAD) two-line orbital element format. The orbital elements shall be updated at least once every three days. APPENDIX B: FINAL REGULATORY FLEXIBILITY ANALYSIS As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (”IRFA”) was incorporated in the Notice of Proposed Rule Making (“NPRM”) in ET Docket No. 98-206. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. This Final Regulatory Flexibility Analysis (“FRFA”) conforms to the RFA. In addition to the issues discussed below, the IRFA addressed Northpoint Technology Ltd.’s proposal to allow terrestrial operations to use the 12.2-12.7 GHz band for the provision of MVPD services and data services. A. Need for, and Objectives of, the Report and Order In this First Report and Order, we permit NGSO FSS operations in certain segments of the 10.7-14.5 GHz frequency band range, and adopt rules and policies to govern such operations. More specifically, we amend Parts 2 and 25 of our rules to permit NGSO FSS space-to-earth links ("downlinks") to operate in the 10.7-12.7 GHz band and for NGSO earth-to-space links ("uplinks") to operate in the 12.75-13.15 GHz, 13.2125-13.25 GHz and 13.8-14.5 GHz bands. These downlink bands are generally used by geostationary-satellite orbit ("GSO") FSS and fixed services. The uplink bands are used by GSO FSS operations, fixed services, mobile services, and Government operations. We also permit a new terrestrial Multichannel Video Distribution and Data Service (MVDDS) to operate in the 12.2-12.7 GHz band, but defer services and technical rules for the MVDDS to our companion Further Notice of Proposed Rule Making. These new satellite and terrestrial operations can increase competition and provide new advanced services to the public. Specifically, NGSO FSS systems can provide new high-speed data services and offer additional competition to other satellite services, and terrestrial wireless and wireline services. The MVDDS can provide local television and data services and provide additional competition to both cable and Direct Broadcast Satellite (DBS) systems. There is, however, extensive use of the requested frequency bands in the United States and these incumbent operations provide important and valuable services to the public that we must protect. By this action, we provide for the introduction of new advanced services to the public, while permitting incumbent services to operate without harmful interference. B. Summary of Significant Issues Raised by Public Comments In Response to the IRFA No comments were submitted in response to the IRFA. C. Description and Estimate of the Number of Small Entities To Which Rules Will Apply The RFA generally defines the term "small entity " as having the same meaning as the terms "small business," "small organization," and "small governmental jurisdiction." In addition, the term "small business" has the same meaning as the term "small business concern" under the Small Business Act. A small business concern is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration ("SBA"). A small organization is generally "any not-for-profit enterprise which is independently owned and operated and is not dominant in its field." Regarding incumbent cable television operations in the 12.75-13.25 GHz band, the SBA has developed a definition of small entities for cable and other pay television services, which includes all such companies generating $11 million or less in revenue annually. This definition includes cable systems operators, closed circuit television services, DBS services, multipoint distribution systems, satellite master antenna systems and subscription television services. According to the Census Bureau, there were 1,788 total cable and other pay television services and 1,423 had less than $11 million in revenue. The Communications Act also contains a definition of a small cable system operator, which is "a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000." The Commission has determined that there are 61,700,000 subscribers in the United States. Therefore, we found that an operator serving fewer than 617,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that the number of cable operators serving 617,000 subscribers or less totals 1,450. We did not request nor did we collect information concerning whether cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, and thus are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act. Regarding incumbent GSO FSS satellite use and the proposed NGSO FSS use in these requested bands, the Commission has not developed a definition of small entities applicable to geostationary or non- geostationary orbit fixed-satellite service applicants or licensees. Therefore, the applicable definition of small entity is the definition under the Small Business Administration (SBA) rules applicable to Communications Services, Not Elsewhere Classified. This definition provides that a small entity is one with $11.0 million or less in annual receipts. According to Census Bureau data, there are 848 firms that fall under the category of Communications Services, Not Elsewhere Classified, which could potentially fall into the geostationary or non-geostationary orbit fixed-satellite service category. Of those, approximately 775 reported annual receipts of $11 million or less and qualify as small entities. Generally, these NGSO and GSO FSS systems cost several millions of dollars to construct and operate. Therefore the NGSO and GSO FSS companies, or their parent companies, rarely qualify under this definition as a small entity. Regarding Auxiliary, Special Broadcast and other program distribution services in the Ku-band. This service involves a variety of transmitters, generally used to relay broadcast programming to the public (through translator and booster stations) or within the program distribution chain (from a remote news- gathering unit back to the station). The Commission has not developed a definition of small entities applicable to Broadcast Auxiliary Station (BAS) licensees. Therefore, the applicable definition of small entity is the definition under the Small Business Administration (SBA) rules applicable to radio broadcasting stations (SIC 4832) and television broadcasting stations (SIC 4833). These definitions provide, respectively, that a small entity is one with either $5.0 million or less in annual receipts or $10.5 million in annual receipts. 13 C.F.R. § 121.201, SIC Codes 4832 and 4833. There are currently 3,237 FM translators and boosters, and 2,964 TV translators. The FCC does not collect financial information on any broadcast facility and the Department of Commerce does not collect financial information on these auxiliary broadcast facilities. We believe, however, that most, if not all, of these auxiliary facilities could be classified as small businesses by themselves. We also recognize that most translators and boosters are owned by a parent station which, in some cases, would be covered by the revenue definition of small business entity discussed above. These stations would likely have annual revenues that exceed the SBA maximum to be designated as a small business (as noted, either $5 million for a radio station or $10.5 million for a TV station). Furthermore, they do not meet the Small Business Act's definition of a "small business concern" because they are not independently owned and operated. Incumbent microwave services in the 10.7-11.7 GHz and 12.75-13.25 GHz bands include common carrier, private operational fixed, and BAS services. At present, there are 22,015 common carrier licensees, approximately 61,670 private operational fixed licensees and broadcast auxiliary radio licensees in the microwave services. Inasmuch as the Commission has not yet defined a small business with respect to microwave services, we will utilize the SBA's definition applicable to radiotelephone companies; i.e., an entity with no more than 1,500 persons. 13 C.F.R. § 121.201, SIC Code 4812. We estimate, for this purpose, that all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition for radiotelephone companies. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements We will apply the Part 25 rules governing reporting requirements for NGSO FSS systems. Specifically, licensees are required to file an annual report with the Commission describing: the status of satellite construction and anticipated launch dates, including any major delays or problems encountered; a listing of any unscheduled satellite outages for more than 30 minutes including the cause(s) of any such outages; and a detailed description of the utilization made of each satellite on each of the in-orbit satellites. E. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered The Commission adopts technical rules to facilitate spectrum sharing between new NGSO FSS systems in the Ku band and existing services in this spectrum. These technical rules are intended to allow new entrants into the spectrum without causing unacceptable interference to existing and future operations of incumbent services. We acknowledge that as the radio spectrum is increasingly used, it becomes more difficult to accommodate all requests for access to the radio spectrum, however, this action applies existing frequency coordination procedures to NGSO FSS systems sharing spectrum with fixed services. Frequency coordination should ensure that new operations of either service will protect existing operations and have access to spectrum if it is technically possible. The Commission also considered a proposal from the Fixed Service (FS) community to set aside some portion of the spectrum in the 10.7-11.7 GHz band for future FS deployment. The Commission declined this set aside because NGSO FSS and fixed systems should be able to coordinate operations and such an action would not lead to the most effective use of the spectrum. Additionally, in its comments and in a Petition for Rule Making, the fixed community requested that we change some aspects of the coordination and licensing procedures of FSS operations that share spectrum with fixed services. Because the issues raised by the fixed community address several spectrum bands which are not under consideration in this proceeding, we deferred on these issues to another proceeding that will address all these issues before NGSO FSS systems are licensed for this band. Regarding sharing between NGSO FSS systems and broadcast auxiliary (“BAS”) operations, the Report and Order states that it will adopt some form of geographic protection areas for terrestrial operations in those bands used by NGSO FSS gateway stations. These protection areas will be defined in a future proceeding, but are intended to facilitate the growth of terrestrial operations, while not unnecessarily hindering the deployment of NGSO FSS systems. Further, to ensure BAS operations in all areas can continue to operate unencumbered by new NGSO FSS systems, the Report and Order set aside 4 BAS channels for exclusive use in all areas to ensure continued operations. Report to Congress: The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996, see 5 U.S.C. § 801(a)(1)(A). In addition, the Commission will send a copy of the Report and Order including FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register. See 5 U.S.C. § 604(b). APPENDIX C: NGSO FSS SYSTEM APPLICATIONS Boeing File No.: SAT-LOA-19990108-00006 Boeing has filed an application for authority to launch and operate a global constellation of NGSO FSS satellites. The proposed Boeing system consists of a twenty-satellite constellation operating at a medium earth orbit of 20,182 kilometers. The constellation consists of four orbital planes with five satellites per plane, inclined 57 degrees relative to the equator. Boeing request authority to operate its NGSO FSS system within the 12.75-13.25 GHz and 13.75-14.5 GHz bands for uplinks and within the 10.7-12.7 GHz band for downlinks. Specifically, Boeing proposes to use 326 MHz of service uplink spectrum and 1000 MHz of service downlink spectrum. Boeing also requests 600 MHz of spectrum for feeder uplinks and 1000 MHz for feeder downlinks. Boeing proposes to provide "bandwidth on demand" communication and data services. In addition, Boeing requests a waiver of Section 2.106 of the Commission's Rules in order to provide, on a secondary, non-interference basis, ancillary two-way data transmission services to user terminals affixed to mobile platforms. Hughes File No.: SAT-LOA-19990108-00002 Hughes has filed an application for authority to launch and operate a global Ku-band broadband satellite system called HughesLINK (H-LINK). The proposed system consists of twenty-two NGSO satellites, operating in medium-earth orbits at an altitude of 15,000 kilometers. Eight satellites are in an equatorial- plane and seven are each of two planes, inclined at 45 degrees. The proposed H-LINK system requests to operate in one gigahertz of spectrum within the 10.7-12.7 GHz band in Region 2 and the 10.7-12.75 GHz band in Regions 1 and 3 for downlinks and one gigahertz within the 12.75-13.25 GHz, 13.75-14.5, and 17.3- 17.8 GHz (Regions 1 and 3 only) bands for uplinks. Inter-satellite links are proposed in optical frequency bands. H-LINK proposes to offer a wide variety of two-way, broadband services at data rates from 1.54 Mbps up to 155 Mbps, backbone infrastructure and Virtual Private Network. Hughes File No.: SAT-LOA-19990108-00003 Hughes has filed an application for authority to launch and operate a global Ku-band broadband satellite system called HughesNET (H-Net). The proposed system consists of a seventy NGSO satellite constellation operating at an altitude of 1490 kilometers. The constellation consists of ten planes, with seven satellites each, inclined at 54.5 degrees. H-Net proposes to operate in one gigahertz of spectrum within the 10.7-12.7 GHz band in Region 2 and the 10.70-12.75 GHz band in Regions 1 & 3 for downlinks and one gigahertz within the 12.75-13.25 GHz, 13.75-14.5, and 17.3-17.8 GHz bands (Regions 1 & 3 only) for uplinks. Optical inter-satellite link terminals are proposed for inter-operation with other satellites in the H-Net constellation. H-Net proposes to offer Internet access and support to both packet-switched and circuit-switched operation. SkyBridge File Nos.: SAT-AMD-1998-0630-00056 SAT-AMD-19990108-00004 SkyBridge has filed amendments to its pending applications for authority to launch and operate a global network of NGSO satellites. (See Public Notice, Report No. SPB-98, August 28, 1997 (accepting for filing the SkyBridge application, as amended by the 1997 Amendment); Public Notice, Report No. SPB-133, July 20, 1998 (accepting for filing the 1998 Amendment.) SkyBridge proposes several changes and clarifications to the SkyBridge application, as amended by the 1997 Amendment. SkyBridge, among other things, proposes to change the number of satellites in its system from sixty-four to eighty, revises its link budgets, revises frequency usage requirements and states it requires at least 2 GHz of contiguous spectrum for downlinks and at least 1.65 GHz for uplinks. SkyBridge also submitted a series of simulations that SkyBridge claims demonstrates its amended system's ability to meet the relevant provisional power limits adopted at the WRC-97. Teledesic File No.: SAT-LOA-19990108-0005 Teledesic has filed an application for authority to construct, launch, and operate a global constellation of NGSO FSS satellites. Teledesic's proposed system, to be known as the Ku-Band Supplement (KuBS) system, will be comprised of thirty satellites, in six orbital planes with five satellites operating at an altitude of approximately 10,320 kilometers. Teledesic requests to operate its KuBS satellites in the 12.75-13.25 GHz, 13.75-14.5 GHz, and 17.3-17.8 GHz bands for uplinks and the 10.7-12.7 GHz bands for downlinks. Teledesic also proposes to operate a separate backup TT&C in standard C-band TT&C frequencies. Teledesic proposes to operate the KuBS constellation primarily as a high-bandwidth supplement to its Teledesic Network system authorized in the Ka-band (20/30GHz). Teledesic proposes to provide FSS on a primary basis but requests authority to provide MSS on an ancillary, non-interference basis. Virgo File No.: SAT-LOA-19990108-00007 Virgo has filed an application for authority to launch and operate a global constellation of non-geostationary satellites operating in the FSS. The proposed system, VIRGO, consists of fifteen NGSO satellites operating in highly elliptical orbits operating at an altitude of 27,300 kilometers at apogee. Virgo proposes to operate with user uplinks in 14.0-14.5 GHz band and user downlinks in the 11.2-12.7 GHz band. Gateway links are proposed in the 12.75-13.25 GHz, 13.8-14.0 GHz, 17.3-17.8 GHz, and 5.925-6.725 GHz bands for uplinks and the 10.7-11.2 GHz and 3.7-4.2 GHz bands for downlinks. Inter-satellite links are proposed in optical frequency bands. Virgo proposes to provide high speed Internet access and direct-to-home data and video services to small user terminals in most areas of the world. In addition, as noted in the Ku-Band Cut-Off Notice, the following two applications were filed in response to prior Bureau cut-off notices involving frequency bands different than those identified in the Ku-band Cut- Off Notice. One application was filed in response to the cut-off for applications to be considered in the 2 GHz band ; the other application was filed in response to the cut-off for applications above 40 GHz. Denali File Nos. 160-SAT-P/LA-97/13 SAT-AMEND-990108-00001 Denali filed an application in response to the Commission's cut-off for additional space station applications and letters of intent in the 36-51.4 GHz Frequency Band. (See Public Notice No. Report No. SPB-89 (rel. July 22, 1997)). Denali requests authority to launch and operate thirteen satellites in highly elliptical orbit to provide FSS and MSS for domestic, international and foreign communications. In its initial application, Denali requested, among other things, 200 MHz for downlinks in the band 11.7-12.2 GHz in North America and 12.5-12.7 GHz in Europe and Asia. In response to the Commission's Ku-Band Cut-Off Notice, however, Denali amended its application to change some of its spectrum requirements. Specifically, Denali now requests 1000 MHz of spectrum in the 10.7-12.7 GHz band (preferably the band 11.7-12.7 GHz) for downlinks and 750 MHz for uplinks in the 13.75-14.5 GHz band. APPENDIX D: COMMENTING PARTIES Comments Filed March 2, 1999: Association of American Railroads (“AAR”) Association of Local Television Stations, Inc Boeing Company (“Boeing”) Comsearch Denali Telecom, LLC (“Denali”) DIRECTV, Inc. (“DIRECTV”) EchoStar Communications Corporation (“EchoStar”) Fixed Point-to-Point Communications Section et al. Fixed Wireless Communications Council (“FWCC”) GE American Communications, Inc. (“GE”) Global VSAT Forum Home Box Office et al. Hughes Communications, Inc. (“Hughes”) Loral Space and Communications Ltd. (“Loral”) National Association of Broadcasters National Academy of Sciences’ Committee on Radio Frequencies (“CORF”) Northpoint Technology, Ltd. (“Northpoint”) OpTel, Inc. (“OpTel”) PanAmSat Corporation et al. (“PanAmSat”) Petroleum Communications, Inc. Qualcomm Incorporated (“Qualcomm”) Satellite Broadcasting and Communications Association SBC Communications, Inc. (“SBC”) SkyBridge L.L.C. (“SkyBridge”) Society of Broadcast Engineers, Inc. (“SBE”) Sullivan, Thomas M. Teledesic LLC (“Teledesic”) Telesat Canada Tonga - Government of the Kingdom of United States Satellite Broadcasting Company, Inc. Virtual Geosatellite, L.L.C. (“Virgo”) Reply Comments Filed April 14, 1999: Airtouch Communications, Inc. AAR Boeing DIRECTV Dominion Video Satellite, Inc. EchoStar EMS Technologies Fixed Point-to-Point Communications Section et al. FWCC GE Hughes LNR TrexCom Inc. Loral Northpoint OpTel PanAmSat Petroleum Communications, Inc. SkyBridge SBE Teledesic United States Satellite Broadcasting Company, Inc. Virgo APPENDIX E: PROPOSED RULES For the reasons discussed in the preamble, the FCC proposes to amend 47 C.F.R. Part 101 as follows: PART 101 - FIXED MICROWAVE SERVICES 1. The authority citation for Part 101 continues to read as follows: AUTHORITY: 47 U.S.C. 154, 303. 2. Section 101.3 is amended by adding a definition for MVDDS in alphabetical order to read as follows: § 101.3 Definitions. * * * * * Multichannel Video Distribution and Data Service (MVDDS). A microwave service licensed in the 12.2.-12.7 GHz band that provides various wireless services. 3. Section 101.101 is amended by revising the entry for 12,200-12,700 MHz table to read as follows: § 101.101 Frequency availability. Frequency band (MHz) Radio Service Common carrier (Part 101) Private radio (Part 101) Broadcast auxiliary (Part 74) Other (Parts 15, 21, 24, 25, 74, 78 & 100) Notes * * * * * * * 12,200-12,700…… MVDDS MVDDS, POFS DBS, NGSO * * * * * * * * * * * * 3. Section 101.103(f) is revised to read as follows: §101.103 Frequency coordination procedures. * * * * * (f) When the proposed facilities are to be operated in the band 12,200-12,700 MHz, licensees must follow the procedures, technical standards, and requirements of Section 101.105 in order to protect the stations authorized under Part 100. 4. Section 101.105 is amended by adding paragraph (a)(4) and (a)(5) and revising paragraph (d) by adding the phrase “for incumbent non-MVDDS stations” after the words “12,200-12,700 MHz band” to read as follows: §101.105 Interference protection criteria. * * * OPTION ONE: (a)(4) MVDDS stations must operate on a non-harmful interference basis to Direct Broadcast Satellite (DBS) receivers. Interference to DBS receivers shall not increase the total outage of any system by more than 2.86% per year. Except for public safety entities, harmful interference protection from MVDDS stations to incumbent point-to-point 12 GHz fixed stations is not required. Incumbent point-to-point private operational fixed 12 GHz stations, except for public safety entities, are required to protect MVDDS stations under the process described in Section 101.103(d) of this subpart. OPTION TWO: (a)(4) MVDDS stations must operate on a non-harmful interference basis to Direct Broadcast Satellite (DBS) receivers. Interference to DBS receivers shall not increase the total outage of any system by not more than 10 minutes in any given month. Except for public safety entities, harmful interference protection from MVDDS stations to incumbent point-to-point 12 GHz fixed stations is not required. Incumbent point-to-point private operational fixed 12 GHz stations, except for public safety entities, are required to protect MVDDS stations under the process described in Section 101.103(d) of this subpart. (a)(5) All stations operating under this part must protect the radio quiet zones as required by Section 1.924 of the rules. Stations authorized by competitive bidding are cautioned that they must receive the appropriate approvals directly from the relevant quiet zone prior to operating. * * * * * (a)(5) All stations operating under this part must protect the radio quiet zones as required by Section 1.924 of the rules. Stations authorized by competitive bidding are cautioned that they must receive the appropriate approvals directly from the relevant quiet zone prior to operating. * * * * * 5. Section 101.107 is amended by revising footnote 6 to the Table in paragraph (a) to read as follows: § 101.107 Frequency tolerance. (a) * * * (6) Applicable to private operations fixed point-to-point microwave stations and stations providing MVDDS service. * * * * * 6. Section 101.109 is amended by revising the entry for 12,200-12,700 MHz and by adding footnote 8 in the Table at the end of the section to read as follows: §101.109 Bandwidth. * * * * * (c) * * * Frequency band (MHz) Maximum authorized bandwidth * * * * * * * 12,200 to 12,700 8 500 MHz * * * * * * * * * * 8 For incumbent private operational fixed point-to-point stations in this band the maximum bandwidth shall be 20 MHz. * * * * * 7. Section 101.113 is amended by revising the entry for 12,200-12,700 MHz in the table and adding a new footnote 10 to the table in paragraph (a) to read as follows: § 101.113 Transmitter power limitations. (a) * * * Frequency Band (MHz) Maximum allowable EIRP 1, 2 Fixed (dBW) Mobile (dBW) * * * * * * * 12,200 to 12,700 10….……………. +50 …………… * * * * * * * * * * 10 The urban area eirp for MVDDS stations is limited to 12.5 dBm (-17.5 dBw) with two exceptions: (1) those MVDDS systems where the transmitter is mounted on a mountain ridge that is over one kilometer from populated subscriber areas may use a higher eirp up to +10 dBw, provided that the increase will not cause the system to exceed the “unavailability criteria” we develop and (2) MVDDS transmitting systems located on tall structures that are adjacent to bodies of water or other significant and clearly unpopulated areas, may use a higher eirp up to +10 dBw, provided that the increase will not cause the system to exceed the “unavailability criteria.” Incumbent point-to-point stations may use up to +50 dBW except for low power systems licensed under Section 101.147(q). * * * * * 8. Section 101.115 is amended by revising footnote 9 to the table in paragraph (c) to read as follows: §101.115 Directional antennas. * * * (c) * * * (9) Except for Temporary-fixed operations in the band 13200-13250 MHz with output powers less than 250 mW and as provided in Section 101.147(q), and except for receive antennas in the MVDDS service which shall only be required to have a minimum antenna gain of 34 dBi and may use circular or linear polarization. * * * * * 9. Section 101.139 is amended by revising the last sentence of paragraph (a) to read as follows: § 101.139 Authorization of transmitters. (a) * * * Transmitters designed for use in the 31.0-31.3 GHz band and transmitters designed for MVDDS use in the 12,200-12,700 MHz band will be authorized under the verification procedure. * * * * * 11. Section 101.141 is amended by revising the first sentence of paragraph (a) to read as follows: § 101.141 Microwave modulation. (a) Microwave transmitters employing digital modulation techniques and operating below 19.7 GHz must, with appropriate multiplex equipment, comply with the following additional requirements (except for MVDDS stations in the 12,200-12,700 MHz band): 12. Section 101.147 is amended by combining the entries in the frequency assignment table in paragraph (a) for 12,200-12,500 MHz and 12,500-12,700 MHz with a new footnote 28, adding a new sentence to the end of paragraph (p), and adding a new sentence to the beginning of paragraph (q) to read as follows: § 101.147 Frequency assignments. (a) * * * * * * 12,200-12,700 MHz (28) * * * (28) Frequencies in this band are shared with Direct Broadcast Satellites on a secondary non- harmful interference basis and on a co-primary basis with non-geostationary satellites and can be used only for incumbent private operational fixed point-to-point service on a site by site basis and MVDDS. Incumbent public safety licensees shall be afforded protection from MVDDS and NGSO licensees, however all other licensees shall be secondary to MVDDS and NGSO licensees. * * * (p) * * * The 12.2-12.7 GHz band is also authorized for MVDDS service on a non-harmful interference basis to DBS receivers in this band and on a co-primary basis with NGSO FSS stations. OPTION ONE: (q) Applications for low power stations in the 12.2-12.7 GHz band are accepted. Existing stations are grandfathered subject to the following: * * * OPTION TWO: (q) Applications for low power stations in the 12.2-12.7 GHz band are no longer accepted. Existing stations are grandfathered subject to the following: * * * 10. Section 101.601 is amended by adding a sentence at the end of the introductory paragraph to read as follows: § 101.601 Eligibility. * * * This subpart shall not apply to stations offering MVDDS in the 12.2-12.7 GHz band. * * * * * 11. A new proposed subpart of the rules under 101.1400 to read as follows: SUBPART P - MULTICHANNEL VIDEO DISTRIBUTION AND DATA SERVICE RULES FOR THE 12.2-12.7 GHZ BAND Note: Because the Commission is seeking comment on various proposals in some instances, alternative text is shown under the relevant proposed section headings. 101.1401 Service areas. 101.1403 Must carry rules. 101.1405 Channeling plan. 101.1407 Permissible operations for MVDDS. 101.1409 Treatment of incumbent licensees. 101.1411 Regulatory status and eligibility. 101.1413 License term and renewal expectancy. 101.1415 Partitioning and disaggregation. 101.1417 Annual report. 101.1421 Coordination of adjacent area MVDDS stations. 101.1423 Canadian and Mexican coordination. 101.1425 RF safety. 101.1427 Over-the-air reception devices rules (OTARD). 101.1437 MVDDS licenses subject to competitive bidding. 101.1438 Designated entities. § 101.1401 Service areas. OPTION ONE: Multichannel Video Distribution and Data Service (MVDDS) is licensed on the basis of geographic areas. Each geographic area shall be licensed to one licensee. OPTION TWO: Multichannel Video Distribution and Data Service (MVDDS) is licensed on a site- by-site basis. § 101.1403 Must carry rules. OPTION ONE: Licensees are required to provide all local television channels to subscribers within its area. If a license is partitioned, all relevant parties must provide every customer with all the local television channels in the entire area, not a portion thereof. MVDDS licensees are required to comply with the must-carry rules. See Multichannel Video and Cable Television Service Rules, Subpart D (Carriage of Television Broadcast Signals), 47 C.F.R. §§ 76.51-76.70. OPTION TWO: Licensees are not required to provide all local television channels to subscribers within its area. MVDDS licensees are not required to comply with the must-carry rules. See Multichannel Video and Cable Television Service Rules, Subpart D (Carriage of Television Broadcast Signals), 47 C.F.R. §§ 76.51-76.70. § 101.1405 Channeling plan. OPTION ONE: Each license shall have one spectrum block of 500 megahertz per geographic area that can be divided into any size channels and should provide various digital wireless services to subscribers. Disaggregation is not allowed. OPTION TWO: Each license shall have one spectrum block of 500 megahertz per geographic area that can be divided into any size channels and should provide various digital wireless services to subscribers. Disaggregation is allowed. § 101.1407 Permissible operations for MVDDS. MVDDS licensees must use spectrum in the 12.2-12.7 GHz band for digital fixed one-way direct-to- home/office wireless service. Mobile and aeronautical services are not authorized. Two-way services may be provided by using other spectrum or media for the return path. § 101.1409 Treatment of incumbent licensees. Terrestrial point-to-point licensees in the 12.2-12.7 GHz band which were licensed prior to MVDDS or NGSO satellite stations are incumbent point-to-point stations and are not entitled to protection from harmful interference caused by later MVDDS or NGSO FSS entrants in the 12.2-12.7 GHz band, except for public safety stations which must be protected. MVDDS and NGSO FSS operators have the responsibility of resolving any harmful interference problems that their operations may cause to these incumbent point-to-point operations in the 12.2-12.7 GHz band. Incumbent public safety terrestrial point-to-point licensees may only make minor changes to their stations without losing this protection. This does not relieve current point-to-point licensees of their obligation to protect BSS operations in the subject frequency band. Point-to-point applications for new licenses, major amendments, or major modifications for the 12.2-12.7 GHz band are no longer accepted, including low-power operations. § 101.1411 Regulatory status and eligibility. OPTION ONE: (a) MVDDS licensees are allowed to provide one-way video programming and data services on a non-common carrier basis. MVDDS is not treated as a common carrier service and is prohibited from providing switched voice and data services. OPTION TWO: (a) MVDDS licensees are allowed to provide one-way video programming and data services on a non-common carrier basis. MVDDS is treated as a common carrier service and is permitted to provide switched voice and data services. (b) MVDDS licensees in the 12.2-12.7 GHz band are subject to the requirements set forth in Section 101.7 of the Commission’s Rules. § 101.1413 License term and renewal expectancy. (a) The MVDDS license term is ten years, beginning on the date of the initial authorization grant. (b) Application of a renewal expectancy is based on the substantial service requirement which we define as a service that is sound, favorable, and substantially above a level of mediocre service which might minimally warrant renewal. At the end of the license term, the Commission will consider factors such as: (1) whether the licensee’s operations service niche markets or focus on serving populations outside of areas serviced by other licensees; (2) whether the licensee’s operations serve populations with limited access to telecommunications services; and (3) a demonstration of service to a significant portion of the population or land area of the licensed area. (c) The renewal application of a MVDDS licensee must include the following showings in order to claim a renewal expectancy: (1) a coverage map depicting the served and unserved areas; (2) a corresponding description of current service in terms of geographic coverage and population served or links installed in the served areas; and (3) 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. § 101.1415 Partitioning and disaggregation. OPTION ONE: MVDDS operators are allowed to partition licensed geographic areas. Disaggregation will be permitted by MVDDS licensees in the 12.2-12.7 GHz band. “Partitioning” is the assignment of geographic portions of a license along geopolitical or other boundaries. “Disaggregation” is the assignment of discrete portions or “blocks” of spectrum licensed to a geographic licensee or qualifying entity. OPTION TWO: MVDDS operators are allowed to partition licensed geographic areas. Disaggregation will not be permitted by MVDDS licensees in the 12.2-12.7 GHz band. “Partitioning” is the assignment of geographic portions of a license along geopolitical or other boundaries. “Disaggregation” is the assignment of discrete portions or “blocks” of spectrum licensed to a geographic licensee or qualifying entity. § 101.1417 Annual report. Each MVDDS licensee shall file with the Commission two copies of a report by March 1 of each year for the preceding calendar year. This report must include the following: (1) name and address of licensee; (2) station(s) call letters and primary geographic service area(s); and (3) the following statistical information for the licensee’s station (and each channel thereof): (i) the total number of separate subscribers served during the calendar year; (ii) the total hours of transmission service rendered during the calendar year to all subscribers; (iii) the total hours of transmission service rendered during the calendar year involving the transmission of local broadcast signals; and (iv) a list of each period of time during the calendar year in which the station rendered no service as authorized, if the time period was a consecutive period longer than 48 hours. § 101.1421 Coordination of adjacent area MVDDS stations. MVDDS licensees in the 12.2-12.7 GHz band are required to develop sharing and protection agreements based on the design and architecture of their systems, in order to ensure that no harmful interference occurs within the same geographic area or between adjacent licensees or between adjacent areas. § 101.1423 Canadian and Mexican coordination. Pursuant to Section 2.301 of this part, MVDDS systems in the United States within 56 km (35 miles) of the Canadian and Mexican border are granted conditional licenses, until final international agreements are approved. These systems may not cause harmful interference to stations in Canada or Mexico. § 101.1425 RF safety. Stations with output powers that equal or exceed 1640 watts eirp will be subject to the routine environmental evaluation rules for radiation hazards, as set forth in Section 1.1307 of this part. § 101.1427 Over-the-air reception devices rule (OTARD). The Over-the-Air Reception Devices Rule (OTARD) in Section 1.4000 of this part shall apply to the receive-only MVDDS antennas at subscribers’ homes or offices. § 101.1437 MVDDS licenses subject to competitive bidding. Mutually exclusive initial applications for MVDDS licenses in the 12.2-12.7 GHz band are subject to competitive bidding procedures. The procedures set forth in part 1, subpart Q, of this chapter will apply unless otherwise provided in this part. § 101.1438 Designated entities. (a) Eligibility for small business provisions. (1) A very small business is an entity that, together with its controlling interests and affiliates, has average annual gross revenues not exceeding $3 million for the preceding three years. (2) A small business is an entity that, together with its controlling interests and affiliates, has average annual gross revenues not exceeding $15 million for the preceding three years. (3) An entrepreneur is an entity that, together with its controlling interests and affiliates, has average annual gross revenues not exceeding $40 million for the preceding three years. (4) For purposes of determining whether an entity meets any of the definitions set forth in paragraphs (a)(1), (a)(2), or (a)(3) of this section, the gross revenues of the entity, its controlling interests and affiliates shall be considered in the manner set forth in § 1.2110(b) and (c) of this chapter. (5) A consortium of very small businesses is a conglomerate organization formed as a joint venture between or among mutually independent business firms, each of which individually satisfies the definition in paragraph (a)(1) of this section. A consortium of small businesses is a conglomerate organization formed as a joint venture between or among mutually independent business firms, each of which individually satisfies the definition in paragraph (a)(2) of this section. A consortium of entrepreneurs is a conglomerate organization formed as a joint venture between or among mutually independent business firms, each of which individually satisfies the definition in paragraph (a)(3) of this section. Where an applicant or licensee is a consortium of small businesses (or very small businesses or entrepreneurs), the gross revenues of each small business (or very small business or entrepreneur) shall not be aggregated. (b) Bidding credits. A winning bidder that qualifies as a very small business or a consortium of very small businesses as defined in this section may use the bidding credit specified in § 1.2110(f)(2)(i) of this chapter. A winning bidder that qualifies as a small business or a consortium of small businesses as defined in this section may use the bidding credit specified in § 1.2110(f)(2)(ii) of this chapter. A winning bidder that qualifies as an entrepreneur or a consortium of entrepreneurs as defined in this section may use the bidding credit specified in § 1.2110(f)(2)(iii) of this chapter. APPENDIX F – INITIAL REGULATORY FLEXIBILITY ANALYSIS As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this Further Notice of Proposed Rule Making (FNPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the FNPRM provided above in paragraph 346. The Commission will send a copy of the FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. See 5 U.S.C. §603(a). In addition, the FNPRM and IRFA (or summaries thereof) will be published in the Federal Register. See id. A. Need for, and Objectives of, the Proposed Rules This rule making is being initiated to adopt licensing, service and technical rules for the Multichannel Video Data and Distribution Service (MVDDS) at 12.2-12.7 GHz. Our objectives are: (1) to accommodate the introduction of innovative services; and (2) to facilitate the sharing and efficient use of spectrum. B. Legal Basis for Proposed Rules The proposed action is authorized under the Administrative Procedure Act, 5 U.S.C. § 553; and Sections 1, 4(i), 7, 301, 303, 308 and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i), 157, 301, 303, 308 and 309(j). C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The definition of small entity under the SBA rules for the radiotelephone industry provides that a small entity is a radiotelephone company employing fewer than 1,500 persons. The 1992 Census of Transportation, Communications, and Utilities, conducted by the Bureau of the Census, which is the most recent information available, shows that only 12 radiotelephone firms out of a total of 1,178 such firms that operated during 1992 had 1,000 or more employees. As of 1992, there were approximately 275,801 small organizations nationwide. The definition of “small governmental jurisdiction” is one with populations of fewer than 50,000. There are 85,006 governmental jurisdictions in the nation. This number includes such entities as states, counties, cities, utility districts and school districts. There are no figures available on what portion of this number has populations of fewer than 50,000. However, this number includes 38,978 counties, cities and towns, and of those, 37,556, or 96 percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all government entities. Thus, of the 85,006 governmental entities, we estimate that 96 percent, or about 81,600, are small entities that may be affected by our rules. The proposed rules will affect all entities that intend to provide terrestrial MVDDS operations in the 12.2-12.7 GHz band. In the FNPRM, the Commission seeks comment on whether to permit MVDDS licensees to use spectrum in the 12.2-12.7 GHz band for fixed one-way direct-to-home/business video and data services, as well as other types of services to which the spectrum may be used. The Commission states that it envisions the use of this spectrum for video service, but concedes that it does not know precisely the other types of services that licensees may seek to provide. If an auction is conducted for MVDDS, the Commission proposes to define three tiers of small businesses for the purpose of providing bidding credits to small entities. The Commission proposes to define the three tiers of small businesses as follows: an “entrepreneur” would be an entity with average annual gross revenues not exceeding $40 million for the preceding three years; a “small business” would be an entity with average annual gross revenues not exceeding $15 million for the preceding three years; and a “very small business” would be an entity with average annual gross revenues not exceeding $3 million for the preceding three years. The Commission will not know how many auction participants or licensees will qualify under these proposed definitions as entrepreneurs, small businesses, or very small businesses unless and until an auction is held. Even after that, the Commission will not know how many licensees will partition their license areas or disaggregate their spectrum blocks, if partitioning and disaggregation are allowed. In view of our lack of knowledge about the entities that will seek MVDDS licenses, we assume that, for purposes of our evaluations and conclusions in the IRFA, all prospective licensees are entrepreneurs, small businesses, or very small businesses under our proposed definitions. We invite comment on this analysis. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements Applicants for MVDDS licenses may be required to submit applications. If an auction is held, applicants will be required under our proposed rules to submit an FCC Form 175 short-form application prior to the auction, and auction winners will be required to file an FCC Form 601 license application. Additionally, the Commission proposes to require the filing of certain documents (e.g., coverage maps) to substantiate renewal expectancies with information demonstrating substantial service upon license renewal. We request comment on how these proposed requirements can and/or should be modified to reduce the burden on small entities and still meet the objectives of the proceeding. E. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. We have reduced burdens wherever possible. To provide opportunities for small entities to participate in any auction that is held, we propose to provide bidding credits for entrepreneurs, small businesses, and very small businesses as defined in Section C of this IRFA. The bidding credits proposed are 15 percent for entrepreneurs, 25 percent for small businesses, and 35 percent for very small businesses. In the FNPRM, the Commission seeks comment on its proposed small business definitions and bidding credits, thus providing interested parties with an opportunity to suggest alternatives. Our proposed partitioning and disaggregation rules are also intended to help small entities acquire licenses. The regulatory burdens we have retained are necessary in order to ensure that the public receives the benefits of innovative new services in a prompt and efficient manner. We will continue to examine alternatives in the future with the objectives of eliminating unnecessary regulations and minimizing any significant economic impact on small entities. We seek comment on significant alternatives commenters believe we should adopt. F. Federal Rules that May Duplicate, Overlap, or Conflict With the Proposed Rules None. APPENDIX G – EXAMPLES OF DBS SERVICE OUTAGES FOR DIFFERENT PERCENTAGES OF SERVICE UNAVAILABILITY (45 cm antenna) Table 1 EchoStar @ 119 WL DBS satellite orbital location degrees 119.0 119.0 119.0 119.0 Earth station location Denver, CO Washington, D.C. Seattle, WA Miami, FL DBS satellite e.i.r.p. towards the Earth station location dBW 48.8 52.6 46.7 52.6 Earth station elevation above mean sea level mm 1.58 0.01 0.01 0.0 Earth station elevation angle degrees 41.8 27.6 35.2 37.7 Free space loss dB 205.9 206.1 206.0 205.9 Earth station antenna miss-pointing error dB 0.5 0.5 0.5 0.5 Atmospheric absorption dB 0.2 0.2 0.2 0.2 Clear-sky receive system noise temperature Kelvin 85 85 85 85 Clear-sky earth station antenna G/T dB 14.5 14.5 14.5 14.5 C/I for other assignments in the BSS Plan dB 20.0 20.0 20.0 20.0 Clear-sky feeder link C/(N+I) dB 26.2 26.2 26.2 26.2 Clear-sky carrier-to-noise plus interference ratio dB 10.7 13.6 8.9 13.7 Required C/(N+I) for operating threshold dB 6.1 6.1 6.1 6.1 Link margin dB 4.6 7.5 2.8 7.7 Rain margin dB 1.82 4.1 0.93 4.22 Rain intensity exceeded for 0.01% of an average year mm/h 30.3 48.2 36.1 95.7 Satellite link availability for an average year % 99.98 99.92 99.71 99.59 Satellite link unavailability for an average year % 0.0207 0.0843 0.2873 0.4120 Total link unavailable time for an average year minutes 108.8 443.1 1510 2165.5 10% of the unavailable time in an average year minutes 10.9 44.3 151.0 216.6 5% of the unavailable time in an average year minutes 5.4 22.2 75.5 108.3 2.86% of the unavailable time in an average year minutes 3.1 12.7 43.2 61.9 Satellite link unavailability for the worst-month % 0.0978 0.3316 0.9361 1.3177 Total link unavailable time for the worst-month minutes 42.8 145.2 421.8 577.1 10% of the unavailable time in the worst-month minutes 4.3 14.5 42.2 57.7 5% of the unavailable time in the worst-month minutes 2.1 7.26 21.1 28.9 2.86% of the unavailable time in the worst-month minutes 1.2 4.2 12.1 16.5 Rainy sky C/I for a 2.86% increase in link unavailability dB 24.2 22.9 25.0 22.3 Table 2 DIRECTV @ 101 WL DBS satellite orbital location degrees 101.0 101.0 101.0 101.0 Earth station location Denver, CO Washington, D.C. Seattle, WA Miami, FL DBS satellite e.i.r.p. towards the Earth station location dBW 49.4 52.4 48.4 53.4 Earth station elevation above mean sea level km 1.58 0.01 0.01 0.0 Earth station elevation angle degrees 43.8 38.5 31.5 52.0 Free space loss dB 205.8 205.9 206.0 205.7 Earth station antenna miss-pointing error dB 0.5 0.5 0.5 0.5 Atmospheric absorption dB 0.2 0.2 0.2 0.2 Clear-sky receive system noise temperature Kelvin 125 125 125 125 Clear-sky earth station antenna G/T dB 12.9 12.9 12.9 12.9 C/I for other assignments in the BSS Plan dB 20.7 20.7 20.7 20.7 Clear-sky feeder link C/(N+I) dB 24.2 24.2 24.2 24.2 Clear-sky carrier-to-noise plus interference ratio dB 10.0 12.4 8.9 13.3 Required C/(N+I) for operating threshold dB 5.0 5.0 5.0 5.0 Link margin dB 5.0 7.4 3.9 8.3 Rain margin dB 2.47 4.47 1.76 5.42 Rain intensity exceeded for 0.01% of an average year mm/h 30.3 48.2 36.1 95.7 Satellite link availability for an average year % 99.99 99.96 99.88 99.82 Satellite link unavailability for an average year % 0.0104 0.0418 0.1186 0.1758 Total link unavailable time for an average year minutes 54.7 219.7 623.4 924.0 10% of the unavailable time in an average year minutes 5.5 22.0 62.3 92.4 5% of the unavailable time in an average year minutes 2.7 11.0 31.2 46.2 2.86% of the unavailable time in an average year minutes 1.6 6.3 17.8 26.4 Satellite link unavailability for the worst-month % 0.0537 0.1802 0.4462 0.6283 Total link unavailable time for the worst-month minutes 23.5 78.9 195.4 275.2 10% of the unavailable time in the worst-month minutes 2.4 7.9 19.5 27.5 5% of the unavailable time in the worst-month minutes 1.2 3.9 9.8 13.8 2.86% of the unavailable time in the worst-month minutes 0.7 2.3 5.6 7.9 Rainy sky C/I for a 2.86% increase in link unavailability dB 23.5 22.1 23.6 21.3 APPENDIX H -- A METHOD OF CONVERTING PERCENTAGE OF UNAVAILABLE TIME INTO A CARRIER-TO-INTERFERENCE RATIO This appendix presents a method for determining the relationship between DBS service outage time and a DBS system’s carrier-to-noise plus interference ratio (C/N+I). Specifically, this method can be used to determine the C/I that a terrestrial system needs to meet in relation to a DBS satellite system to keep service disruptions of the satellite system to a certain amount of outage time. In this case the terrestrial system represents the interference and the satellite system represents the desired carrier. The availability of a satellite space-to-Earth link is defined as the total amount of time that the satellite service is available to the user without disruption. Conversely, the unavailability of that same link is the total time during which the user is without service (outage). Generally, availability and unavailability are expressed in terms of percentage of time of an average year (8766 hours) or the worst month in an average year. These two variables are complementary and always sum to 100 percent. For example if a satellite system has an availability of 99.7%, its unavailability is 0.3% which equates to total outage time of 26.3 hours averaged over a year. In a shared environment (satellite and terrestrial service), the total unavailability can be attributed to two sources: natural propagation phenomenon such as precipitation (e.g., rain) in the space-to-earth path and external radio interference. In the frequency bands used by DBS for downlink (12.2-12.7 GHz), the predominant propagation impairment is rain attenuation in the space-to-earth slant path. The amount of service outage caused by rain can be estimated using the prediction procedures of ITU-R Recommendation P.618-6. This rain attenuation model predicts, for a given geographic area, the average service outage time over an average year for a specific level of precipitation attenuation along the space- to-earth slant path. To determine the portion of the total C/I that is attributable to a terrestrial system, we first establish the amount of outage time of the DBS space-to-earth link that is caused by precipitation only. This outage time is directly dependent on the link margin of the space-to-earth link, which is calculated from the system’s link power budget. Link margin is the amount of power received at the earth station receiver above its operating threshold that is designed into the satellite link to overcome the effects of rain and other impediments. During rain, the satellite link is affected in two ways: the carrier signal strength is attenuated due to rain and the rain causes an increase in the system’s noise temperature. If the rain attenuation and earth station G/T (gain / system noise temperature) degradation cause a reduction to the carrier-to-noise (C/N) power that exceeds the available link margin, the satellite link will experience an outage. The amount of attenuation due to rain that causes an outage is referred to as the rain margin. The satellite link budget (carrier-to-noise plus interference ratio) and the associated rain margin can be derived from the parameters identified in Table B-1. It is evident from the table that the rain margin depends on the DBS satellite E.I.R.P. in the direction of the receiving earth station, the free space path loss, the earth station antenna gain-to-system noise temperature (G/T) ratio and the operating threshold. Once the link margin is known, one can proceed to determine the rain margin. This is accomplished by adding a rain attenuation term to the equation used to find the clear-sky carrier-to-noise ratio to instead find a rainy-sky carrier-to-noise ratio. Additionally, the G/T must be recalculated to account for the increase in atmospheric noise due to the rain. Thus, the G/T will be reduced during a rain event and the rain margin will be less than the link margin. Once the rain margin is determined, the expected outage time of a satellite link in an average year or in the worst month can be computed using the prediction method contained in ITU-R Recommendation P.618-6. This recommendation entitled “Propagation Data and Prediction Method required for the Design of Earth-Space Telecommunication Systems” provides a procedure to estimate the long-term statistics of the space-to-earth path precipitation attenuation and the associated percentage of outage time. Now that the percentage of outage time due solely to rain is known, we can reverse the procedure to determine the minimum C/I that a terrestrial system must maintain to effect a specific amount of additional outage time on the satellite system. First, the additional outage time must be determined, either as a percentage of additional outage time or a number of minutes per time period. This additional outage time can then be added to the outage time due to rain only to find the ‘equivalent unavailability.’ For example, if a satellite space-to-earth link has an unavailability of 0.3% and the minimum C/I for the terrestrial system to cause no more than an additional 10% outage is to be determined, the equivalent unavailability would be 0.33% (0.3 * 1.1). Using the equivalent unavailability, the ITU rain model can be used to find the corresponding ‘equivalent rain margin.’ That is, the ITU model can be used to find the amount of attenuation associated with the increased outage time. This change in attenuation is attributed to interference from the terrestrial system. The C/I for the terrestrial system can now be found by modifying the methodology used to determine the satellite link budget (carrier-to-noise plus interference ratio). The terrestrial system is factored into the link budget by adding a term representing its C/I. By using the equivalent rain margin in the link budget, we find an ‘equivalent link margin.’ We can then find the C/I of the terrestrial system that causes the reduction of the equivalent link margin to zero. This is the minimum C/I that the terrestrial system must maintain to cause no more than the amount of additional outage time chosen. It is important to note that the above methodology results in the rainy-sky C/I for the terrestrial service interference, which would produce the additional outage time at the DBS earth station. The reason for calculating the rainy-sky C/I is based on the assumption that in a typical satellite path, rain cells in the space-to-earth slant path are generally to the south of the earth station location. Because the terrestrial interfering path generally emanates from the north of the DBS earth station location, it will usually not be in the rain cell. Thus, at the time when a rain cell in the space-to-earth path attenuates a DBS signal, the terrestrial signal will not similarly be attenuated. Therefore, the calculated C/I is performed by not fading the terrestrial signal with rain. Table B-2 provides an example of the process described above. Table B-1: Required Parameters for the Determination of DBS Link Rain Margin and Satellite Link Availability and Unavailability Input Parameters: 1. Satellite longitude; 2. Earth station location (latitude and longitude); 3. Earth station altitude above mean sea level (AMSL); 4. Satellite E.I.R.P. in the direction of the DBS earth station; 5. The operating frequency; 6. The required operating threshold for the DBS earth station receiver; 7. Receiver noise bandwidth; 8. Earth station antenna diameter; 9. Earth station antenna pointing loss towards the DBS satellite; 10. Clear-sky earth station system noise temperature; 11. Atmospheric absorption; 12. Carrier-to-interference ratio from other assignments in the BSS plan; 13. Clear-sky feeder link carrier-to-interference ratio; 14. Boltzman’s constant. Calculation method: (A) Calculate the distance and elevation angle between satellite and earth station using the satellite longitude (1) and the earth station location (2). (B) Calculate the free space transmission loss using the distance (A) and the operating frequency (5). (C) Calculate DBS antenna gain using the operating frequency (5) and the earth station antenna diameter (8). (D) Calculate the clear-sky G/T ratio using the antenna gain (C) and the clear-sky earth station system noise temperature (10). (E) Calculate the clear-sky carrier-to-noise ratio using the E.I.R.P. (4), free space transmission loss (B), earth station antenna pointing loss (9), clear-sky G/T (D), receiver noise bandwidth (7), Boltzman’s constant (14) and atmospheric absorption (11). (F) Calculate the clear-sky carrier-to-noise plus interference ratio using the clear-sky carrier-to-noise ratio (E), the carrier-to-interference ration from other assignments in the BSS plan (12), and the clear-sky feeder link carrier-to-interference ratio (13) (G) Calculate the link and rain margins using the clear-sky carrier-to-noise plus interference ratio (F) and the operating threshold (6). (H) Calculate the satellite link unavailability using ITU-R Recommendation P.618-6, the rain margin (G), earth station location (2), earth station elevation angle (A), AMSL (3), and operating frequency (5). (I) Determine the acceptable increase in unavailability due to terrestrial service interference and calculate equivalent unavailability of the satellite by adding the satellite link unavailability (H) and the increase in unavailability due to terrestrial interference. (J) Determine the equivalent rain margin using the equivalent unavailability (I) and ITU-R Recommendation P.618-6. (K) Determine the C/I for the terrestrial interference using the equivalent rain margin (J) in the step (G) calculation. Table B-2: An Example of A Satellite Downlink Power Budget, Rain Margin, Unavailability and Carrier-to-Interference Ratio A. Inputs Satellite longitude degrees 119.0 Earth station latitude and longitude (lat/long) degrees 38.90/77.01 Earth station altitude above mean sea level km 0.01 Satellite e.i.r.p. in the direction of the DBS earth station dBW 52.6 Operating frequency GHz 12.45 Required operating threshold dB 6.1 Receiver noise bandwidth MHz 24.0 Earth station antenna diameter m 0.45 Earth station antenna pointing loss towards the satellite dB 0.5 Clear-sky earth station antenna system noise temperature Kelvin 85.0 Atmospheric absorption dB 0.2 C/I for other assignments in the BSS Plan dB 20.0 Clear-sky feeder link C/(N+I) dB 26.2 Boltzman’s constant dB 228.6 B. Calculate Distance from GSO satellite to earth station km 38,825 Earth station antenna elevation angle degrees 27.6 Free space path loss dB 206.1 Earth station antenna gain dBi 33.83 Clear-sky earth station antenna G/T dB 14.5 Clear-sky carrier-to-thermal noise ratio dB 15.1 Clear-sky carrier-to-thermal noise plus interference ratio dB 13.6 Clear-sky link margin dB 7.5 Rain margin dB 4.08 Satellite link unavailability due to rain % 0.0843 Calculated satellite link availability % 99.9157 Acceptable increase in unavailability due to terrestrial service interference % 2.86 Equivalent unavailability due to rain and terrestrial interference % 0.0867 Equivalent rain margin dB 4.018 Rainy sky C/I for the terrestrial service interference dB 22.9 APPENDIX I – PROPOSED MVDDS/DBS SHARING ARRANGEMENT AND COMPUTATION OF THE MVDDS/DBS REMEDIATION ZONE We propose to define “mitigation zones” in each geographic area by describing an interference contour centered around a terrestrial transmitter beyond which rain outages to DBS subscribers in the presence of MVDDS operations do not exceed normal rain outages by more than a predetermined amount. This mitigation zone would be defined by an MVDDS carrier to interference (C/I) ratio, using each MVDDS transmitter site as the center of the plot, and the rain prediction procedures described in ITU-R Recommendation P.618-6. As discussed in the Further Notice, the criteria for determining the C/I and thus the size of the mitigation zone can be based on a percentage or minute increase in unavailability in an average year or in the worst-month. Inside each mitigation zone, the MVDDS provider would be responsible for fixing complaints of outages beyond the parameters defined in the First R&O and repeated above. Mitigation of complaints can be accomplished by, but are not limited to, the following techniques: shielding, relocating, or upgrading DBS receive antennas. As detailed in Appendix H, the acceptable C/I ratio is based on an increase of the unavailability of the DBS link in a rainy environment. This appendix provides an example of constructing the mitigation zone based on a given C/I ratio. The size and the shape of that zone depend on many elements, which are identified below. We note that the record in this proceeding indicates that interested parties have developed similar methods of calculating mitigation zones. In a static DBS-terrestrial environment, the carrier-to-interference ratio is generally described by: C/I = E.I.R.P.sat ? BTLsat ? ATM ? MIS ? RAIN + GMdbs ? (E.I.R.P.ts + Gts(?) ? BTLts + Gdbs(?) ? XPdbs) + 10 log(BWR) (1) where: E.I.R.P.sat = the DBS satellite E.I.R.P. in the direction of the desired earth station, dBW BTLsat = the basic transmission loss from the space craft to the desired earth station, dB ATM = the atmospheric gaseous absorption at 12.45 GHz, dB MIS = the DBS receiving antenna mispointing loss, dB RAIN = the rain margin of the DBS service at the desired earth station location, dB GMdbs = the maximum gain of the DBS receiving antenna, dBi E.I.R.P.ts = the terrestrial service maximum E.I.R.P., dBW Gts(?) = the terrestrial transmit antenna relative gain (normalized) in the direction of the DBS receiver, dBi BTLts = the basic transmission loss from the terrestrial transmitter to the DBS receiver, dB Gdbs(?) = the DBS receiving antenna gain in the direction of the terrestrial transmitter, dBi XPdbs = the DBS receiving antenna sidelobe polarization isolation, dB BWR = the ratio of the terrestrial emission bandwidth and the DBS emission bandwidth. The basic transmission loss (i.e., free space propagation loss) is given by the equation: 32.44 + 20 log(F) + 20 log(D) (2) where: F = the operating frequency (F) is expressed in megahertz; and D = the distance between the transmitter and the receiver expressed in kilometers For the purpose of this example, we assume the following values for parameters identified in equation (1): F = 12450 MHz, (i.e., the middle of the 12.2-12.7 GHz band); ATM = 0.2 dB (absorption due to atmospheric gases (oxygen and water vapor)); MIS = 0.5 dB (DBS antenna mispointing loss); BWR = 1 (bandwidth ratio); GMdbs = 33.83 dBi (for a typical 45-cm diameter antenna); and XPdbs = 0 dB (DBS antenna sidelobe polarization isolation). Therefore, from equations (1) and (2), the separation distance (Dts) between the terrestrial transmitter and the DBS receiver where the C/I equals the acceptable value can be derived: 20 log(Dts) = C/I – E.I.R.P.sat + Gdbs(?) + E.I.R.P.ts + Gts(?) + 20 log(Dsat) + RAIN – 33.13 (3) Equation (3) reflects the fact that the size and the shape of the mitigation zone are highly dependent on the DBS receiving antenna pattern and the MVDDS transmitter antenna pattern. Using equation 3 and the parameters contained in the following table, we show an example mitigation zone in Figure I-1. This mitigation zone is drawn for a DBS earth station located in Washington, DC receiving a signal from the DBS satellite located at 101o W.L. Earth station location Degrees 38.898 Latitude, 77.009 Longitude Height of the terrestrial antenna m 100 Carrier-to-interference ratio dB C/I 15.9 DBS satellite e.i.r.p. dBW E.I.R.P.sat 52.4 DBS earth station antenna pattern Gdbs(?) DIRECTV, April 11, 1994 Terrestrial antenna maximum e.i.r.p. dBW E.I.R.P.ts -17.5 Terrestrial transmitter antenna pattern Gts(?) Northpoint, March 17, 2000 Distance to the DBS satellite km Dsat 37900 Rain attenuation dB RAIN 4.47 Figure I-1 Example mitigation zone for Washington, DC from DBS satellite located at 101o WL. It should be noted that, in the detailed calculation, the DBS receiving antenna pattern should include the effect of frequency at 12.2 GHz, 12.45 GHz, and 12.7 GHz. Similarly, the terrestrial antenna relative gain should also include the effect of frequency in both the azimuth and elevation gains. APPENDIX J: UNAVAILABILITY STATISTICS FOR INCREASES IN DBS OUTAGES OF 2.86%, 60 MINUTES, AND 30 MINUTES ANNUALLY (45 cm antenna) Unavailability Statistics for DIRECTV Satellite at 101o W.L for Top Markets (Statistics computed using inputs as listed in Appendix G and the method described in Appendix H) Market Average Yearly Statistics Increased Outage = 2.86% Increased Minutes of Outage = 60 min. Increased Minutes of Outage = 30 Min. Percentage of Availability Minutes of Outage Percentage of Availability Minutes of Outage Increased Minutes of Outage Change in Percentage of Availability Change in Percentage of Availability = 0.0114 % Change in Percentage of Availability = 0.0057 % Percentage of Availability Minutes of Outage Percentage of Availability Minutes of Outage New York 99.9466 280.7 99.9451 288.6 7.9 0.0015 99.9352 340.7 99.9409 310.7 Los Angeles 99.9731 141.4 99.9723 145.6 4.2 0.0008 99.9617 201.4 99.9674 171.4 Chicago 99.9637 190.8 99.9627 196.2 5.4 0.0010 99.9523 250.8 99.9580 220.8 Philadelphia 99.9567 227.6 99.9555 234.1 6.5 0.0012 99.9453 287.6 99.9510 257.6 San Francisco 99.9364 334.3 99.9346 343.8 9.5 0.0018 99.9250 394.3 99.9307 364.3 Boston 99.9578 221.8 99.9566 228.1 6.3 0.0012 99.9464 281.8 99.9521 251.8 Washington, DC 99.9582 219.7 99.9570 226.0 6.3 0.0012 99.9468 279.7 99.9525 249.7 Dallas 99.8332 876.7 99.8284 901.8 25.1 0.0048 99.8218 936.7 99.8275 906.7 Detroit 99.9501 262.3 99.9487 269.8 7.5 0.0014 99.9387 322.3 99.9444 292.3 Atlanta 99.9475 275.9 99.9460 283.8 7.9 0.0015 99.9361 335.9 99.9418 305.9 Houston 99.7823 1144.2 99.7761 1177.0 32.8 0.0062 99.7709 1204.2 99.7766 1174.2 Seattle 99.8814 623.4 99.8780 641.2 17.8 0.0034 99.8700 683.4 99.8757 653.4 Cleveland 99.9352 340.6 99.9333 350.3 9.7 0.0019 99.9238 400.6 99.9295 370.6 Minneapolis 99.9506 259.6 99.9492 267.1 7.5 0.0014 99.9392 319.6 99.9449 289.6 Tampa 99.8644 712.7 99.8605 733.1 20.4 0.0039 99.8530 772.7 99.8587 742.7 Miami 99.8242 924.0 99.8192 950.4 26.4 0.0050 99.8128 984.0 99.8185 954.0 Phoenix 99.9385 323.2 99.9367 332.5 9.3 0.0018 99.9271 383.2 99.9328 353.2 Denver 99.9896 54.7 99.9893 56.2 1.5 0.0003 99.9782 114.7 99.9839 84.7 Pittsburgh 99.9576 222.9 99.9564 229.2 6.3 0.0012 99.9462 282.9 99.9519 252.9 Sacramento 99.9229 405.2 99.9207 416.8 11.6 0.0022 99.9115 465.2 99.9172 435.2 St. Louis 99.9570 226.0 99.9558 232.5 6.5 0.0012 99.9456 286.0 99.9513 256.0 Orlando 99.8543 765.8 99.8501 787.7 21.9 0.0042 99.8429 825.8 99.8486 795.8 Portland 99.9122 461.5 99.9097 474.7 13.2 0.0025 99.9008 521.5 99.9065 491.5 Indianapolis 99.9458 284.9 99.9442 293.0 8.1 0.0016 99.9344 344.9 99.9401 314.9 San Diego 99.9817 96.2 99.9812 98.9 2.7 0.0005 99.9703 156.2 99.9760 126.2 Charlotte 99.9577 222.3 99.9565 228.7 6.4 0.0012 99.9463 282.3 99.9520 252.3 Cincinnati 99.9410 310.1 99.9393 319.0 8.9 0.0017 99.9296 370.1 99.9353 340.1 Kansas City 99.9642 188.2 99.9632 193.5 5.3 0.0010 99.9528 248.2 99.9585 218.2 Milwaukee 99.9486 270.2 99.9471 277.9 7.7 0.0015 99.9372 330.2 99.9429 300.2 Nashville 99.9625 197.1 99.9614 202.7 5.6 0.0011 99.9511 257.1 99.9568 227.1 Columbus 99.9634 192.4 99.9624 197.9 5.5 0.0010 99.9520 252.4 99.9577 222.4 Greenville 99.9378 326.9 99.9360 336.3 9.4 0.0018 99.9264 386.9 99.9321 356.9 Unavailability Statistics for EchoStar Satellite at 119o W.L for Top Markets (Statistics computed using inputs as listed in Appendix G and the method described in Appendix H) Market Average Yearly Statistics Increased Outage = 2.86% Increased Minutes of Outage = 60 Min. Increased Minutes of Outage = 30 Min. Percentage of Availability Minutes of Outage Percentage of Availability Minutes of Outage Increased Minutes of Outage Change in Percentage of Availability Change in Percentage of Availability = 0.0114 % Change in Percentage of Availability = 0.0057 % Percentage of Availability Minutes of Outage Percentage of Availability Minutes of Outage New York 99.9406 312.2 99.9389 321.1 8.9 0.0017 99.9292 372.6 99.9349 342.2 Los Angeles 99.9293 371.6 99.9273 382.2 10.6 0.0020 99.9179 431.6 99.9236 401.6 Chicago 99.9243 397.9 99.9221 409.3 11.4 0.0022 99.9129 457.9 99.9186 427.9 Philadelphia 99.9328 353.2 99.9309 363.3 10.1 0.0019 99.9214 413.2 99.9271 383.2 San Francisco 99.8544 765.3 99.8502 787.2 21.9 0.0042 99.8430 825.3 99.8487 795.3 Boston 99.9301 367.4 99.9281 377.9 10.5 0.0020 99.9187 427.4 99.9244 397.4 Washington, DC 99.9157 443.1 99.9133 455.8 12.7 0.0024 99.9043 503.1 99.9100 473.1 Dallas 99.6790 1687.2 99.6698 1735.4 48.2 0.0092 99.6676 1747.2 99.6733 1717.2 Detroit 99.9407 311.7 99.9390 320.6 8.9 0.0017 99.9293 371.7 99.9350 341.7 Atlanta 99.8431 824.7 99.8386 848.3 23.6 0.0045 99.8317 884.7 99.8374 854.7 Houston 99.5827 2193.3 99.5708 2256.1 62.8 0.0119 99.5713 2253.3 99.5770 2223.3 Seattle 99.7127 1510.0 99.7045 1553.2 43.2 0.0082 99.7013 1570.0 99.7070 1540.0 Cleveland 99.9209 415.7 99.9186 427.6 11.9 0.0023 99.9095 475.7 99.9152 445.7 Minneapolis 99.9289 373.7 99.9269 384.4 10.7 0.0020 99.9175 433.7 99.9232 403.7 Tampa 99.6911 1623.6 99.6823 1670.0 46.4 0.0088 99.6797 1683.6 99.6854 1653.6 Miami 99.5880 2165.5 99.5762 2227.4 61.9 0.0118 99.5766 2225.5 99.5823 2195.5 Phoenix 99.8337 874.1 99.8289 899.1 25.0 0.0048 99.8223 934.1 99.8280 904.1 Denver 99.9793 108.8 99.9787 111.9 3.1 0.0006 99.9679 168.8 99.9736 138.8 Pittsburgh 99.9439 294.9 99.9423 303.3 8.4 0.0016 99.9325 354.9 99.9382 324.9 Sacramento 99.8231 929.8 99.8180 956.4 26.6 0.0051 99.8117 989.8 99.8174 959.8 St. Louis 99.8052 1023.9 99.7996 1053.2 29.3 0.0056 99.7938 1083.9 99.7995 1053.9 Orlando 99.6616 1778.6 99.6519 1829.5 50.9 0.0097 99.6502 1838.6 99.6559 1808.6 Portland 99.8769 647.0 99.8734 665.5 18.5 0.0035 99.8655 707.0 99.8712 677.0 Indianapolis 99.8722 671.7 99.8685 690.9 19.2 0.0037 99.8608 731.7 99.8665 701.7 San Diego 99.9490 268.1 99.9475 275.7 7.6 0.0015 99.9376 328.1 99.9433 298.1 Charlotte 99.8933 560.8 99.8902 576.9 16.1 0.0031 99.8819 620.8 99.8876 590.8 Cincinnati 99.9004 523.5 99.8976 538.5 15.0 0.0028 99.8890 583.5 99.8947 553.5 Kansas City 99.8965 544.0 99.8935 559.6 15.6 0.0030 99.8851 604.0 99.8908 574.0 Milwaukee 99.9190 425.7 99.9167 437.9 12.2 0.0023 99.9076 485.7 99.9133 455.7 Nashville 99.9157 443.1 99.9133 455.8 12.7 0.0024 99.9043 503.1 99.9100 473.1 Columbus 99.9091 477.8 99.9065 491.4 13.6 0.0026 99.8977 537.8 99.9034 507.8 Greenville 99.8513 781.6 99.8470 803.9 22.3 0.0043 99.8399 841.6 99.8456 811.6 SEPARATE STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT-ROTH, Approving in Part, Dissenting in Part Re: 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; et al, ET Docket No. 98-206 (Adopted November 29, 2000). Today’s item is an important milestone in what has been a very long road. Our Order paves the way for implementation of the historic sharing agreement reached between the incumbent geostationary orbit (“GSO”) satellite systems and the new non-geostationary orbit (“NGSO”) satellite providers. Extensive negotiations carried out over two World Radio Conferences and thousands of hours of public and private talks have paved the way for these new services. The Commission and the parties should take great pride in the final result. Similarly today’s Order concludes that sharing between these satellite providers and a terrestrial service is possible in the 12.2-12.7 GHz band. Here too potential licensees have worked for years for this day, and I am pleased that we can move forward to the next stage of our deliberations. This entire process, however, does raise significant spectrum management issues. Although my concerns in this area do not rise to the level of a dissent, this proceeding should provide a catalyst for an important dialog about the nature and extent of spectrum usage rights granted by FCC licenses. Finally, I do part ways with my fellow commissioners on some discrete issues related to the Further Notice. I am highly skeptical of any proposal to restrict the ownership of new licenses. Similarly any discussion of mandating a particular kind of service – or importing the regulatory burdens associated with particular services – is inconsistent with the FCC’s general policy direction and contrary to my own regulatory philosophy. Due to the majority’s decision to consider so actively these restrictive and highly regulatory options, I respectfully dissent in part. The Commission’s Licensing Approach The questions presented by this proceeding are complicated and difficult. Ultimately the staff has done a good job of balancing these interests. However, I believe it is important to look at some of the larger issues raised by this proceeding. First, what spectrum usage rights do FCC licensees have? As I noted in our recent secondary markets proceeding, often licensees do not know exactly what rights they have – making it difficult for licensees to sell some or all of those rights to third parties. Here GSO direct broadcast satellite (“DBS”) licensees were originally granted certain spectrum usage rights – some of which they paid for at auction – at a time when sharing was not contemplated. Parties sought these licenses, and paid for these licenses, with expectations of certain interference protection and with expectations on the range of technological options with which the spectrum might be developed . The amount these parties were willing to pay for licenses was based on these expectations. Thus GSO DBS licensees paid for one set of rights – exclusive use of space stations in these bands with expectations of certain interference protection – but are now only entitled to a diminished version of those rights. This change has come without compensation for the alterations in interference protection or the reduced range of technological possibilities or the expenses incurred by GSO DBS in acquiring and developing the licenses. By this Order, NGSO licensees will share these rights with GSO DBS. And not only will they share, DBS’s system-wide reliability will be diminished by these NGSO systems. Moreover, the FCC determines here that it is technically feasible for DBS to share with a terrestrial system, under parameters yet to be developed. Perhaps such unpredictability is the best we can do; licensees will inevitably not know how or when the Commission will alter their rights (even those they pay for). But to the extent the Commission maintains complete discretion to alter such core terms of a license, we cannot expect the primary and secondary spectrum markets to function well. Perhaps that is a trade off we should make, but the FCC has never tackled the hard questions that surround such a policy. Instead the Commission wants it both ways – complete discretion to change the terms of a license and a fully functioning primary and secondary market. I am convinced we cannot have both. Similarly changes in our licensing scheme affects both future auctions and commercial development of licenses. Going forward, we must also recognize that our licensing regime creates reasonable reliance interests that cannot and should not be tossed aside. For example, GSO DBS systems were built in order to maintain a certain degree of reliability for customer service. Thus American DBS providers determined that in order to be a successful commercial operation, their service must be highly reliable. That level of reliability was a commercial decision made by GSO DBS providers based on certain assumptions – I believe reasonably including the “exclusive” rights that were granted pursuant to their original licenses. By today’s Order we permit the NGSO systems to increase incrementally the GSO DBS systems’ unavailability rate. Our further notice contemplates increasing this outage rate. Perhaps these increased DBS outages are in the public interest. However, I believe it is licensees, not the FCC, that should be able to determine what availability rates are needed for them to compete effectively in the marketplace. Had DBS known that it would be sharing with two other systems, then excess interference “cushion” could have been added to the system – or not. That should be a business decision, not a government one. We owe it to our licensees to notify them as soon as practicable – preferably before an auction – of major sharing obligations that could be imposed that may impact their system design and spectrum valuation. Perhaps our failure to do so in some instances provides a basis for declining to introduce additional sharing into a band. The major spectrum issues raised by this proceeding are not limited to the GSO DBS providers. The proposed terrestrial Northpoint service has also traveled a difficult road at the Commission. There is no question that Northpoint has expended substantial resources in navigating the shoals of the U.S. regulators in order to make today’s order possible. Despite fighting most of those battles alone, today additional terrestrial licensees are understandably also interested in the 12.2-12.7 GHz band. This type of regulatory “free rider” problem is far from unique and certainly not improper – but it does significantly diminish the incentive for parties to “pave the way.” In this regard, I am intrigued by the logical consequences of a concept advanced by Northpoint regarding the Commission’s licensing process. Northpoint is understandably troubled by having a service-specific DBS licensing proceeding, followed years later by a NGSO “satellite” filing window, and then finally a possible terrestrial auction. Northpoint believes that its terrestrial application, filed in the NGSO satellite window, should have the same rights as its fellow applicants in that filing window. Northpoint’s approach ultimately suggests that the FCC should license all uses for a given band at once. Thus we would have a single integrated 12.2-12.7 GHz band proceeding. That proceeding would open a filing window for all uses of the band – and sort out the scope of each license all at once. But regardless of whom filed, all of the commercial rights in the band could be handed out in one proceeding. Thus, for example, if GSO DBS had been the only party to file in this band – they would have been granted exclusive and comprehensive rights to the band for all services subject only to our interference rules, etc. In this regime, if the NGSO systems or terrestrials subsequently wished to share this band, they would go to the GSO DBS providers and negotiate a commercial sharing arrangement with appropriate compensation. The Commission’s role would be limited largely to referee. This provides an intriguing alternative regulatory model. In the end, this proceeding has been a product of our current rules – not some conceivably more desirable future policies. In that context, the Commission has attempted to balance many interests and concerns – including those described above. However, our challenge rests not just in recognizing these issues, but in crafting prospective policies that will save the Commission from these troubling and countervailing interests in the future. Distressing Service Rules Proposals I am troubled by two aspects of today’s order: (1) the proposal to prevent GSO DBS operators and incumbent in-region cable operators from acquiring MVDDS licenses, and (2) any effort to require a particular service in a given band or to extend legacy regulations to new services. Barring certain parties from participating in an auction is a draconian measure that should not be pursued absent extraordinary circumstances. There is little basis for pursuing such a policy here. First we have no clear idea about the types of services that may be offered by multi-channel video distribution and data service (MVDDS) licensees. Perhaps they will offer video, perhaps only data. Therefore today it’s not clear whom these licensees will be competing against, making any auction bar purely speculative. Second, there are countless competitors in the video marketplace and several competitors in the niche multi-channel video programming distribution (MVPD) marketplace. It is difficult to imagine that these providers could collude to buy up this spectrum and allow it to remain fallow. Third, in some cases, the contemplated ownership prohibition may eliminate the exact type of competitive entry such restrictions are purportedly designed to foster. For example, barring incumbent cable prov