WPC 2MBVRKZ3|j77jC:,3Xj\  P6G;XP"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDdDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddxHxxHvppDXd<"dxtldpxxdHP LaserJet 4MP (PCL)lpt1HPLA4MP0.PRSXj\  P6G;\e"8mXP2/  KK3|j7"i~'^#)C<)>F)))))))))<)C"VV5VYO5O5O5O5^<^<^<^>^<^C^F.".C.).CaC>>^CO"O6O)O0O"VCVVCVC^<^O=O)OFVCVCVCVCVCVCxVV>O5O5O5VCO)VCC.O)V<X<<( (WTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN+HH+@<)<<<<` ` ` a8DocumentDocument Style ?@` ` ` a1TechnicalTechnical Document Style!4A!B     a2TechnicalTechnical Document Style"*CD    2##y!$"%"&&#a3TechnicalTechnical Document Style#'EF    a4TechnicalTechnical Document Style$&GH    a5TechnicalTechnical Document Style%&IJ  . a6TechnicalTechnical Document Style&&KL  . 2:*'#(`$)$*'a7TechnicalTechnical Document Style'&MN  . a8TechnicalTechnical Document Style(&OP  . Res_titleRes_title)+QR+ e > <DL!#XP\  PQXP#UK   e > <DL!#XP\  PQXP#UKRes_#Res_#*(ST( e > <DL!#XP\  PQXP#UK e > <DL!#XP\  PQXP#UK2r2+l*,--/.<60callcall+(UV(4 <DL!#XP\  PQXP#UK4 <DL!#XP\  PQXP#UKNormal afterNormal after title,%WX% e > <DL!#XP\  PQXP#UK e > <DL!#XP\  PQXP#UK34-YZww.[\ ` !(#B` hp x (#2;/<20<41<72<X9:\mw3024.tmp:\mw3024.tmp/]^  !(# ` hp x (#330_` ` !(# ` hp x (#321ab ` !(#B` hp x (#:\DOCS\COMPW:\DOCS\COMPWHEN\2cd  p x (#` hp x (#2A3<;4>5>6A~~3ef  p x (#` hp x (#314gh:\mw3022.tmp:\mw3022.tmp5ij` hp x (## P7P# ` hp x (## P7P#306kl2J7<A8BD9BBF:FHT 2T 27mn X` hp x (#` hp x (#Technical 4Technical 48op X` hp x (# ` hp x (#299qr X` hp x (# ` hp x (#bly remains bly remains several years \softline \softlheight276 aw:st X` hp x (#` hp x (#2N;<J<8M=M>8N28;uv X` P hp x (#` hp x (#<wx27_Equation Caption1={|captioncaption>}~ 2W?<N@<:QA<vSB<Utoatoa? !(# ` hp x (#index 2index 2@ ` !(#B` hp x (#index 1index 1A ` !(# ` hp x (#toc 9toc 9B !(#B` hp x (#2h_C< XD\ZE<ZF<,]toc 8toc 8C !(#` hp x (#toc 7toc 7D toc 6toc 6E !(#` hp x (#toc 5toc 5F h!(# ` hp x (#2hG<_H<aI<dJ<Nftoc 4toc 4G  !(# ` hp x (#toc 3toc 3H ` !(# ` hp x (#toc 2toc 2I ` !(#B` hp x (#toc 1toc 1J !(#B` hp x (#2*kKhLiMjNjendnote refeendnote referenceK>>#Xx6X@QX@##Xv6X@CX@#_Equation Ca_Equation CaptionLDefault ParaDefault Paragraph FontM26N!!2TpO\kPkQlRhmfootnote refOFormat DownlFormat Downloaded DocumentP XX #P#  #C\  PQP# \ #d6X@7@#CitatorFormat Secretary's Citator Output FileQ#d6X@7@# XX  \X b#d6X@7@# XX *  bheader2R `    #FxX  P CXP# `   #FxX  P CXP#2tSpTsUsVRtitemizeS*  XF r#FxX  P CXP# FF r#FxX  P CXP#referenceT;'#FxX  P CXP##FxX  PCXP#25Technical Document StyleU&  . 24Technical Document StyleV&  . 2~wW uXuYMvZv23Technical Document StyleW4$     22Technical Document StyleX&   21Technical Document StyleY'   20Technical Document StyleZ*    2Ez[w\5x]x^ty19Technical Document Style[&  . 18Technical Document Style\&  . 17Document Style]F *  ׃  16Right-Aligned Paragraph Numbers^w@pp2 -ppp 2a}_wz`?{a{b|15Right-Aligned Paragraph Numbers_n@- ( 14Right-Aligned Paragraph Numbers`e@( hh# 13Right-Aligned Paragraph Numbersa\@hh# hhh 12Right-Aligned Paragraph NumbersbS@  2c}d7~e~fg11Right-Aligned Paragraph NumberscJ@  ` `  10Document Styled0    9Right-Aligned Paragraph NumberseA@` `  ` ` ` 8Right-Aligned Paragraph Numbersf8@   2gp+hie.je7Document Styleg` ` ` 6Document Styleh*   5Document Stylei  4Document Stylej  2Ckq*lpm n3Document Stylek  . 2Document Stylel` ` ` footnote texm''#&I\  PQ&P##&I\  PQ&P#Page TitlePage Titlen#  `  2ȆoupmPqrddWorks CitedWorks Cited Pageo9<   F       TrianglepTitleNotesTitle Page Notesq''#Z*f9 xX# #Z*f9 xX#A, B,Uppercase Lettersr .2Hsctq]u·v1, 2, 3,Numberss 1.Report BodyMain Text of Reportt  ChapterChapter Headingu9  ` CHAPTER 3  ENVELOPEStandard Business Envelope with Headervm V,    , 8'   ' `   2w[zx[Պy[0z[VERY LARGEVery Large TypestylewEXTRA LARGEExtra Large TypestylexLARGELarge TypestyleyFINEFine Typestylez2t{[|s}<~<8SMALLSmall Typestyle{INVOICE HEADHeading Portion of Math Invoice|"   X 9@ 1. 1. 1. a.(1)(a) i) a)#&I\  PQ&P# XX  *$  ӧ   XX @ 1. 1. 1. a.(1)(a) i) a)Ҳ#&I\  PQ&P# XX  *$INVOICE TOTTotals Invoice for Math Macro} Xp, $0INVOICE EXPExpense Subtotals for Math Invoice~ p,p, $02IjMEMORANDUMMemo Page Format  D* M E M O R A N D U M ă y<dddy INVOICE FEEFee Amount for Math Invoice p,, $0  LETTERHEADLetterhead - date/margins!  X  3'   * 3' II Ѓ    X HIGHLIGHT 3Large, Italicized and Underscored  2d/in}HIGHLIGHT 2Large and Bold HEADING 33rd Heading Level   BLOCK QUOTESmall, single-spaced, indented   TITLETitle of a Document * ă2ccccFLEGAL PORTLegal Portrait - 8.5 x 14  A' II   LETTER PORTLetter Portrait - 8.5 x 11  3' II   LEGAL LANDLegal Landscape - 14 x 8.5  'A II   LETTER LANDLetter Landscape - 11 x 8.5  '3 II   2۠]d^[DRAFT OFFTurn Draft Style off*  DRAFT ONHeader A Text = DRAFT and DateB X 8$@ 1. 1. 1. a.(1)(a) i) a)#&I\  PQ&P#` .DDRAFTă `.A 3 1, 4   $HIGHLIGHT 1Italics and Bold FOOTNOTEFootnote - Appearance2%sSubheadingSubheading.   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A. a.(1)(a) i) a)DocumentҲ2'k'n0_}KhTech InitInitialize Technical Style/0 1 .1 .1 .1 .1 .1 .1 .1 TechnicalBibliogrphyBibliography12 C\  PQP\  `*Times New Roman (TT)&I\  PQ&P\  `*Times New Roman (TT)&&I\  PQ&P\  `*Times New Roman (TT)&&I\  PQ&P\  `*Times New Roman (TT)&&I\  PQ&P\  `*Times New Roman (TT)&C\  PQP\  `*Times New Roman (TT)&I\  PQ&P\  `*Times New Roman (TT)&C\  PQP\  `*Times New Roman (TT)&I\  PQ&P\  `*Times New Roman (TT)&C\  P QP\  `*Times New Roman (TT)&I\  P Q&P\  `*Times New Roman (TT)&C\  P QP\  `*Times New Roman (TT)&I\  P Q&P\  `*Times New Roman (TT)&C\  P QP\  `*Times New Roman (TT)&I\  PQ&P\  `*Times New Roman (TT)&C\  PQP\  `*Times New Roman (TT)&I\  PQ&P\  `*Times New Roman (TT)&C\  PQP\  `*Times New Roman (TT)&I\  PQ&P\  `*Times New Roman (TT)&C\  PQP\  `*Times New Roman (TT)&I\  PQ&P\  `*Times New Roman (TT)&C\  PQP\  `*Times New Roman (TT)&I\  PQ&P\  `*Times New Roman (TT)&C\  PQP\  `*Times New Roman (TT)&I\  PQ&P\  `*Times New Roman (TT)&C\  PQP\  `*Times New Roman (TT)&I\  PQ&P\  `*Times New Roman (TT)&C\  PQP\  `*Times New Roman (TT)&I\  PQ&P\  `*Times New Roman (TT)&C\  PQP\  `*Times New Roman (TT)&I\  PQ&P\  `*Times New Roman (TT)&C\  PQP\  `*Times New Roman (TT)&I\  P Q&P\  `*Times New Roman (TT)&C\  P!QP\  `*Times New Roman (TT)&I\  P"Q&P\  `*Times New Roman (TT)&C\  P#QP\  `*Times New Roman (TT)&I\  P$Q&P\  `*Times New Roman (TT)&C\  P%QP\  `*Times New Roman (TT)&I\  P&Q&P\  `*Times New Roman (TT)&C\  P'QP\  `*Times New Roman (TT)&I\  P(Q&P\  `*Times New Roman (TT)&C\  P)QP\  `*Times New Roman (TT)&I\  P*Q&P\  `*Times New Roman (TT)&C\  P+QP\  `*Times New Roman (TT)&I\  P,Q&P\  `*Times New Roman (TT)&C\  P-QP\  `*Times New Roman (TT)&I\  P.Q&P\  `*Times New Roman (TT)&C\  P/QP\  `*Times New Roman (TT)&I\  P0Q&P\  `*Times New Roman (TT)&C\  P1QP\  `*Times New Roman (TT)&I\  P2Q&P\  `*Times New Roman (TT)&C\  P3QP\  `*Times New Roman (TT)&I\  P4Q&P\  `*Times New Roman (TT)&C\  P5QP\  `*Times New Roman (TT)&I\  P6Q&P\  `*Times New Roman (TT)&C\  P7QP\  `*Times New Roman (TT)&I\  P8Q&P\  `*Times New Roman (TT)&C\  P9QP\  `*Times New Roman (TT)&I\  P:Q&P\  `*Times New Roman (TT)&C\  P;QP\  `*Times New Roman (TT)&I\  P<Q&P\  `*Times New Roman (TT)&C\  P=QP\  `*Times New Roman (TT)&I\  P>Q&P\  `*Times New Roman (TT)&C\  P?QP\  `*Times New Roman (TT)&I\  P@Q&P\  `*Times New Roman (TT)&C\  PAQP\  `*Times New Roman (TT)&I\  PBQ&P\  `*Times New Roman (TT)&C\  PCQP\  `*Times New Roman (TT)&I\  PDQ&P\  `*Times New Roman (TT)&C\  PEQP\  `*Times New Roman (TT)&I\  PFQ&P\  `*Times New Roman (TT)&C\  PGQP\  `*Times New Roman (TT)&I\  PHQ&P\  `*Times New Roman (TT)&C\  PIQP\  `*Times New Roman (TT)&I\  PJQ&P\  `*Times New Roman (TT)&C\  PKQP\  `*Times New Roman (TT)&I\  PLQ&P\  `*Times New Roman (TT)&C\  PMQP\  `*Times New Roman (TT)&I\  PNQ&P\  `*Times New Roman (TT)&C\  POQP\  `*Times New Roman (TT)&I\  PPQ&P\  `*Times New Roman (TT)&C\  PQQP\  `*Times New Roman (TT)&I\  PRQ&P\  `*Times New Roman (TT)&C\  PSQP\  `*Times New Roman 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LL2 LL2L"",,2d""/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN<.<<<< <DL!#XP\  P6QXP#USUK<?xxx,?x6X@`7X@;y.X80,H;X\  P6G;P <7jC:,Xj\  P6G;XP =2a=5,&a\  P6G;&P&>2e=5,Ep&e4  pG;&&@7nC:,kXn4  pG;XAW!@(#,8h@\  P6G;hP BH5!,8,5\  P6G;,PC{,W80,-W*f9 xr G;X &Yy.\80, \4  pG;W5hC:,- Xh*f9 xr G;XXdXz-X80,DX9 xOG;X >(#,-3h>*f9 xr G;hX&W!B(#,}hB4  pG;herTimes New RomanTimes New Roman BoldTimes New Roman ItalicTimes New Roman Bolalic@@@@"i~'^#)0<ppaET Docket No. 9799 Relocate the Digital Electronic Message Servicef% ) From the 18 GHz Band to the 24 GHz Bandf% ) and to Allocate the 24 GHz Band for Fixedf% ) Servicef% )  X 3  MEMORANDUM OPINION AND ORDER Đ,G  Xy3 j Adopted: July 9, 1998 hh>ppaReleased: July 17, 1998 By the Commission:  X3 , ,  X3oI. INTRODUCTION Đ,G  X3 mp1.` ` In this Memorandum Opinion and Order, we deny Petitions for Reconsideration  W Ifiled by WebCel Communications, Inc. (WebCel), DirecTV Enterprises, Inc. (DirecTV), and  W &BellSouth Corporation (BellSouth) as well as a Petition for Partial Reconsideration filed by the  X|3 W Millimeter Wave Carrier Association, Inc. (MWCA) (collectively, Petitioners).|a yO"  ԍXjPetitions for reconsideration were filed on June 5, 1997. On July 8, 1997, Digital Services Corporation  8(DSC), Teligent, L.L.C. (Teligent, formerly Associated Communications, L.L.C.), and Microwave Services,  Inc. (MSI) filed a Joint Opposition to Petitions for Reconsideration, Partial Reconsideration, and  Clarification (collectively DEMS licensees' Opposition). On the same date Teledesic Corporation  I(Teledesic) filed a Consolidated Opposition to Petitions for Reconsideration (Teledesic Opposition). On July 23, 1997, WebCel, DirecTV, BellSouth and, MWCA filed individual replies. (# In doing so, we  W have conducted a de novo review of the decisions that gave rise to the petitions. Based on this comprehensive review, we affirm the decisions at issue.  X 3 mp2.` ` Petitioners request reconsideration of an order\ @a {O%"  }ԍXjSee Amendment of the Commission's Rules to Relocate the Digital Electronic Message Service from the 18  {O%"  GHz Band to the 24 GHz Band and to Allocate the 24 GHz Band for Fixed Service, 12 FCC Rcd. 3471 (1997), as corrected by Erratum, 12 FCC Rcd. 4990 (1997) (Relocation Order).(# in which the Commission, acting  W in response to a request by the National Telecommunications and Information Administration  W (NTIA), amended the U.S. Table of Frequency Allocations and Part 101 of the Commission's"d , * *,,!"  X3 W rules regarding Fixed Services (FS).܉ yOy"ԍXjThe term "Fixed Service" refers to terrestrial pointtopoint or pointtomultipoint microwave services.(#ơ The amended table permits FS use of the 24.2524.45  W gigahertz (GHz) and 25.0525.25 GHz bands (collectively, the 24 GHz band) and the relocation  W &of the Digital Electronic Message Service (DEMS) from the 18.8218.92 GHz and 19.1619.26 GHz bands (collectively, the 18 GHz band) to the 24 GHz band.  X3 mp3.` ` This Memorandum Opinion and Order addresses petitions for reconsideration of  Xv3 W [our decisions, including the decision to act without notice and comment procedures.vX܉ yO "  ԍXjThe DEMS licensees submitted a request to file a surreply, that WebCel opposed with an accompanying   motion for expedited resolution. In addition, Teledesic had previously filed a petition to deny and a request   for declaratory ruling to determine the underlying status of the DEMS licenses. However, Teledesic   }subsequently filed a request to withdraw that petition. WinStar Communications, Inc. also filed a petition   Kfor clarification on June 5, 1997, and a reply. However, on October 7, 1997 WinStar filed a request to   withdraw these pleadings. Additionally, MWCA filed a motion for expedited resolution. We grant the   DEMS licensees' request to file a surreply, Winstar's request to withdraw its petition for clarification, and   }Teledesic's request to withdraw its petition to deny. We also dismiss MWCA's and WebCel's motions for   expedited resolution as moot in light of our decision today, and deny WebCel's opposition to the DEMS licensees' motion to file a surreply. (#ƶ We  W jconclude that our action complies with all relevant procedural and substantive requirements and  W serves the public interest by facilitating the provision of DEMS on a nationwide basis, promoting  W competition in the pointtomultipoint telecommunications market and protecting national security  X 3interests. ܉ yO"  ԍXjWe also deny applications for review and petitions for reconsideration filed by WebCel, BellSouth, MWCA   and DirecTV of the Order dated June 24, 1997, issued by the Wireless Telecommunications Bureau's Public   JSafety and Private Wireless Division, modifying DEMS licenses to specify operation in the 24 GHz rather   than the 18 GHz band. The parties argue that the Modification Order should not have been issued, or   Lshould be stayed, pending resolution of their challenges to the Relocation Order. Our denial of the challenges to the Relocation Order moots the petitioners' challenges to the Modification Order.(#  X 3 II. BACKGROUND Đ>K  X 3 mp4.` ` By way of background, we briefly describe below the development of DEMS in  W the 18 GHz band, the history of Government requests for protection of military satellite systems  W in this band, and the Commission's responses to the Government's requests. We also describe  W the proposed use of the 18 GHz band by nongovernment Fixed Satellite Service (FSS) providers,  W which eventually led the satellite applicant in that service to agree to reimburse the DEMS  W 6licensees for certain costs associated with their relocation to the 24 GHz band in order to facilitate the relocation. p "h,[([(,,"Ԍ X3p  X3pA. ` ` Development of Digital Electronic Message Service   p  X3 mp5.` ` In 1983, the Commission adopted rules for DEMS, which was envisioned as a  X3 W highspeed, twoway, pointtomultipoint terrestrial microwave transmission system.܉ yO" pԍXpDEMS systems are pointtomultipoint microwave networks designed to communicate information between  pKa fixed main (nodal) station and a number of fixed user terminals. When the FCC originally identified  pspectrum in the 18 GHz band for DEMS in 1981, the primary use was expected to be by businesses  prequiring internal networks to distribute documents, share data, and hold teleconferences. Licensed for both  {O= " p9common carrier and private use, DEMS is now governed by Part 101 of the FCC's rules. See Amendment  pof Parts 2, 21, 74 and 94 of the Commission's Rules to Allocate Spectrum at 18 GHz for, and to Establish  plother Rules and Policies Pertaining to, the Use of Radio in Digital Termination Systems and in Pointto pPoint Microwave Radio Systems for the Provision of Digital Electronic Message Services, and for other  pCommon Carrier, Private Radio, and Broadcast Auxiliary Services; and to Establish Rules and Policies for  {O' "the Private Radio Use of Digital Termination Systems at 10.6 GHz, 54 R.R.2d 1091 (1983).(# The service  W was allocated spectrum in the 18.3618.46 GHz band paired with the 18.9419.04 GHz band.  W XSubsequently, the Commission modified the initial DEMS allocation, instead designating spectrum  X_3in the 18.8218.92 GHz and 19.1619.26 GHz bands._d ܉ {Ot" p}ԍXpSee Amendment of Parts 2, 21, 74 and 94 of the Commission's Rules to Allocate Spectrum at 18 GHz for,  pand to Establish other Rules and Policies Pertaining to, the Use of Radio in Digital Termination Systems  p}and in PointtoPoint Microwave Radio Systems for the Provision of Digital Electronic Message Services,  p[and for other Common Carrier, Private Radio, and Broadcast Auxiliary Services; and to Establish Rules  {O"and Policies for the Private Radio Use of Digital Termination Systems at 10.6 GHz, 56 R.R.2d 1171 (1984).(#ơ  X13 mp6.` ` The Commission began to grant DEMS licenses in the early 1980's, but the  W service was not initially commercially successful. Frequently, licensees had to return their  W Xlicenses because they had not met construction requirements. The high cost of equipment appears  W 7to have been one of the many issues involved in the service's lack of early success. In the early  W Z1990s, a small number of companies, including Associated, DSC, MSI and FirstMark, began  X 3 W acquiring licenses in approximately thirty of the country's largest markets. ܉ yO" pԍXpOn March 5, 1996, DSC and MSI entered into the "Teligent joint venture." As a result, DSC and MSI  {OO" pjointly own Teligent L.L.C. (formerly Associated Communications L.L.C.). See DSC's, MSI's and  p9Teligent's Joint Opposition at 1, 6. On March 10, 1997 Associated accepted the contribution of all of the  {O" pissued and outstanding stock of Firstmark. See Joint Notice of Settlement Agreement and Motion to Withdraw and/or Amend Pending Applications, (FCC File No. 9407441 and 9407423).(#Ƅ These are the licenses that are now at issue. p  Xb3 ",[([(,,"Ԍ X3p` ` B. NTIA Requests for Spectrum Reallocation.  X3p  V3 mXpX` ` 1. NTIA Request to Amend The Table of Allocations to Permit Government  X3Satellite System Operations in the 18 GHz Band. (#`  X3 mp7. ` ` Prior to 1995, the 17.719.7 GHz band, in which DEMS was located, was  Xx3 W allocated only for nongovernment fixed service (FS), mobile, and fixed satellite service (FSS).U x܉ yO"ԍXp47 C.F.R.  2.106 (1995).(#U  Xa3 W ZOn July 12, 1995, NTIA requested that the Commission add a footnote to the U.S. Table of  W Frequency Allocations to designate, on a coprimary basis, the 17.820.2 GHz band for  X33 W Government spacetoearth (downlink) FSS operations.) 3X܉ yO< " pIԍXpLetter from Larry Irving, Administrator, NTIA to Reed E. Hundt, Chairman, FCC, dated July 12, 1995 (July  pl1995 NTIA letter). Section 305(a) of the Communications Act as amended (the Act), 47 U.S.C.  305(a),  pmauthorizes the President to assign frequencies to Federal Government stations. This authority has been  pdelegated to the Assistant Secretary of Commerce for Communications and Information, who also serves  {O\" pkas the Administrator of NTIA. See Pub. Law 102538, 106 Stat. 3533 (1992). The Commission administers  {O&"nonGovernment spectrum and NTIA administers Government spectrum. See 47 C.F.R.  2.105 (a).(#) NTIA informed the Commission that  W Ythis matter involved "military functions, as well as specific sensitive national security interests,  W of the United States," and that adding the footnote was "essential to fulfill requirements for  X 3Government space systems to perform satisfactorily."\ ܉ yOs"ԍXpJuly 1995 NTIA letter at 1. (#\  X 3 mp8.` ` Relying on 5 U.S.C.  553 (a)(1), (b)(3)(B) and Bendix Aviation Corp. v. F.C.C.,  d ܉ {O" pԍXp272 F.2d 533 (D.C. Cir. 1959), cert. denied sub nom., Aeronautical Radio, Inc. v. U.S., 361 U.S. 965 (1960)  {O"(Bendix).(#  W NTIA asked the Commission to forego the usual notice and comment rulemaking procedures and  W |immediately amend the U.S. Table of Frequency Allocations because the matter involved the  W 6exercise of military functions of the United States. Based on NTIA's statements, the Commission  W added footnote US334 to the U.S. Table of Frequency Allocations and amended Government  XO3 W Footnote G117 without public notice and comment.S O ܉ {O" plԍXpSee Amendment of Part 2 of the Commission's Rule to Allocate Spectrum for the Fixed Satellite Service in  {O" pthe 17.8 20.2 GHz Band for Government Use, 10 FCC Rcd. 9931 (1995) (adding footnote US334 and  pG117 to the U.S. Table of Frequency Allocations without public notice and comment based upon the  pmilitary exemption to the APA). Footnote US334 reads: "In the Band 17.820.2 GHz, Government space  pstations and associated earth stations in the fixedsatellite (spacetoEarth) service may be authorized on a  pprimary basis. For a Government geostationary satellite network to operate on a primary basis, the space  yOt#" pstation shall be located outside the arc measured from East to West, 700 W to 1200 W. Coordination  p[between Government fixedsatellite systems and nongovernment systems operating in accordance with the  pUnited States Table of Frequency Allocations is required." Footnote G117 limits Government Fixed  pSatellite Service (FSS) use of specified frequency bands to military systems. The amendment added the 17.820.2 GHz band to the bands listed in G117.(#S This action gave Government military  X83 W satellite systems coprimary status in the 17.820.2 GHz band. Because of the potential for non"8$ ,[([(,,"ԫ W |government FS systems to cause harmful interference to Government FSS operations, NTIA  W requested that coordination procedures be established to protect two Government earth stations  W operating in accordance with footnote US334. Discussions between Commission and NTIA staff  X3 W Gwere initiated to determine appropriate coordination procedures. As a result of those discussions,  X3the Commission adopted interim coordination procedures.܉ {O" p)ԍXpSee Reorganization and Revision of Parts 1, 2, 21, and 94 of the Rules to Establish a New Part 101  {O"Governing Terrestrial Microwave Fixed Radio Services, 11 FCC Rcd. 13449, 13462 (1996).(#  Xv3  m^XpX` ` 2. NTIA Requests to Protect Military Satellite Systems Operating in the 18 GHz  Xa3Band from Interference. (#`  X53 mp 9.` ` In January 1997, and again in March 1997, NTIA, on behalf of DoD, formally  W jrequested that the Commission take action to protect military satellite system operations in the  X 3 W 18 GHz band." $܉ {O" pԍXpSee Letter from Richard Parlow, Associate Administrator, Office of Spectrum Management, NTIA to  pRichard Smith, Chief, Office of Engineering and Technology, FCC dated January 7, 1997 (January 1997  p9NTIA letter); and Letter from Richard Parlow to Richard Smith, dated March 5, 1997 (March 1997 NTIA letter).(#ƣ NTIA stated that DEMS use of frequencies in the 17.820.2 GHz bands within  X 3 W 40 kilometers of existing Government FSS earth stations "will not be possible."W ܉ yO"ԍXpJanuary 1997 NTIA letter at 2.(#W As a result  W 6NTIA asked the Commission to protect those Government satellite earth stations operating in the  W [18 GHz band in Washington, D.C. and Denver, and "[e]xpeditiously undertake any other  W 7necessary actions, such as amending the Commission's rules and modifying Commission issued  X3licenses."T܉ {O"ԍXpId. at 1.(#T Specifically, in its January 1997 letter, NTIA stated:  p\  We are asking that these actions be undertaken on an expedited basis. As we have  p\<previously indicated, this matter involves military functions, as well as specific  p\sensitive national security interests of the United States. These actions are  p\essential to fulfill requirements for Government space systems to perform satisfactorily.  p\The Commission is permitted to amend its Rules without complying with the  p\notice provisions of the Administrative Procedures Act (APA) in cases involving  p\any "military, naval of [sic] foreign affairs function of the United States" or where  p\the agency for good cause finds "notice and public procedure. . . are impracticable,  X3unnecessary, or contrary to the public interest."\0 B {Oa%"ԍXpId. at 2 (citations omitted).(#\   "i ,[([(,,"Ԍ X3 mp 10.` ` To protect the two Government earth stations from interference, NTIA proposed  W to make 400 MHz of spectrum available in the 24 GHz band so that the Commission could  W relocate DEMS licensees. Recognizing the Commission's objective of maintaining DEMS on a  W uniform, nationwide frequency band, NTIA stated that "[t]aking into account our common  W interests, [NTIA] could make available spectrum in the region of 24.2524.65 GHz" and  W jsuggested that "the Commission take such steps as may be necessary to license DEMS stations  Xv3in this spectrum. . . . "Bv܉ {O"ԍXpId.(#B  XH3 mp11.` ` On March 5, 1997, NTIA reiterated its request for protection of Government  X13 W systems using the 18 GHz band and further discussed the issues regarding use of that spectrum.Q1Z܉ yO< "ԍXpMarch 1997 NTIA letter. (#Q  X 3 W  NTIA stated again that it had "determined that both existing and anticipated FCC licensees could  X 3 W cause interference problems to the Federal Government use of the 18 GHz band."N ܉ {O"ԍXpId. at 1.(#N  W %Consequently, NTIA offered to withdraw Government coprimary allocations for radionavigation  X 3 W jservice in the 24.2524.45 and 25.0525.25 GHz bands to clear the way for DEMS relocation.  |܉ yO" p}ԍXpThese frequencies differed slightly from the 24.2524.65 GHz band originally proposed in the January 1997  pNTIA letter. The modified frequencies, 24.2524.45 GHz and 25.0525.25 GHz, maintain frequency  pseparation between paired FS channels afforded DEMS at 18 GHz. This frequency separation simplifies and lowers the cost of equipment design and construction.(#  X 3pC. ` ` The Relocation Order and The Modification Order  Xy3 m_p12.` ` On March 14, 1997, the Commission amended its rules to adopt the changes  Xb3 W requested by NTIA, without notice and comment. Specifically, it amended the U.S. Table of  XK3 W &Frequency Allocations and Part 101 of its rules regarding FS.aKd ܉ yO`"ԍXpRelocation Order at  13.(#a The amendments permitted FS  W Huse of the 24 GHz band, thus facilitating the relocation of DEMS from the 18 GHz band to the  W 24 GHz band. It also required incumbent DEMS licensees to cease operations in the 18 GHz  W band in the Washington, D.C. and Denver, Colorado areas immediately in order to protect  W Government operations. In all other areas, incumbent DEMS licensees were directed to cease  X3 W operations no later than January 1, 2001.N ܉ {O}""ԍXpId. at  14.(#N In order to effectuate the relocation, the Commission  W indicated that it would exercise its authority under section 316 of the Communications Act to  X3 W Hmodify licenses.Z ܉ {O%" pԍXpId. (Section 316 provides that any station license or construction permit may be modified by the  pCommission either for a limited time or the duration of its term if in the Commission's view such action  pwill promote the public interest, convenience, and necessity. Section 316(a)(1) of the Communications Act"s',[([(y'" as amended, 47 U.S.C. 316).(# Explaining the basis for its decision to relocate the entire DEMS service, the"X,[([(,,"  W YCommission stated that "moving the Washington, D.C. and Denver, Colorado operations only .  W {. . would effectively preclude these areas from getting DEMS service, since it is unlikely that 24  X3 W GHz equipment could be manufactured at economic prices solely for these two markets."UX܉ yO"ԍXpRelocation Order at  11.(#U In  W addition, the Commission believed that maintaining DEMS on a single frequency band nationwide  W 'served the public interest "by ensuring that services are deployed so that consumers are not  X3 W disadvantaged by greater complexity in providing service to their geographic location."C܉ {O& "ԍXpId. (#C  W v Accordingly, the Commission sought "to maintain the DEMS on a unified frequency band  X_3nationwide."e_z܉ {O "ЍXpId. We note that this is consistent with Commission policy with respect to other services. See e.g.  {OT"Amendment of Parts 2, 21, 74 and 94 of the Commission's Rules to Allocate Spectrum at 18 GHz, 54  {O"RR2d 1091, 1100 (1983);  Amendment of Parts 2 and 90 of the Commission's Rules to Provide for the Use of 200 Channels outside the Designated Filing Areas in the 896901 MHz and 935940 MHz Bands  {O"allotted to the Specialized Mobile Radio Pool,  8 FCC Rcd. 1469 (1993); Amendment of Part 90 of the Commission's Rules to Provide for the Use of the 220222 MHz band by the Private Land Mobile Radio  {OB"Services, 4 FCC Rcd. 8593 (1989); Establishment of Policies and Procedures for Consideration of Application to Provide Specialized Common Carrier Service in the Domestic Public PointtoPoint Microwave Radio Service and Proposed Amendments to Parts 21, 43, and 61 of the Commission's  {O"Rules, 29 FCC 2nd 870 (1971).(#ev   XH3p  X13 mp13.` ` The Commission also concluded that the 400 MHz of spectrum offered by NTIA  W in the 24 GHz band would adequately meet the needs of DEMS licensees. It determined that,  W Hbecause of differences in propagation characteristics between the 18 GHz and 24 GHz bands, a  W fourfold increase in spectrum was necessary to maintain DEMS system performance in the 24  X 3 W GHz band at a level equivalent to that at which it had operated in the 18 GHz band.Z ܉ yO"ԍXpRelocation Order at 11.(#Z Thus, the  W XCommission allocated to DEMS the 400 MHz of spectrum offered by NTIA in the 24 GHz band.  W |Subsequently, on June 25, 1997, the Wireless Telecommunications Bureau Public Safety and  W Private Wireless Division issued an Order (the Modification Order) modifying existing DEMS  W licenses pursuant to section 316 of the Act to provide for operation in the 24 GHz band instead  Xb3of the 18 GHz band.J\b܉ {O!" pԍXpSee In the Matter of Amendment of the Commission's Rules to Relocate the Digital Electronic Message  {O"" pService from the 18 GHz Band to the 24 GHz Band and to Allocate the 24 GHz Band for Fixed Service, 12 FCC Rcd. 8266 (1997).(#J p ",[([(,,"Ԍ X3pD.` ` Sharing Issues Between 18 GHz NonGovernment Satellite Services and DEMS  X3 mop14.` ` The Commission's Relocation Order also had an impact on other issues that had  W arisen concerning potential interference between DEMS licensees and domestic nongeostationary  W orbit fixed satellite service (NGSO/FSS) licensees. Because the Petitioners for reconsideration raise issues concerning these matters, they are described briefly below.  X_3 mp15.` ` In July 1996, the Commission designated 500 MHz of spectrum in the 18.819.3  W GHz band for NGSO/FSS downlinks to help meet increased demand for spectrum for these  X13 W Iservices in the Kaband.1܉ yO " pԍXpThe Kaband refers to the uplinks in the 27.5030.0 GHz frequency band, which is paired with downlinks in the 17.720.2 GHz band.(# In the order designating this spectrum (the 28 GHz Order),, 1 ܉ {O " p[ԍXpSee Rulemaking to Amend Parts 1, 2, 21, and 25 of the Commission's Rules to Redesignate the 27.529.5  p(GHz Frequency Band, to Reallocate the 29.530.0 GHz Frequency Band, to Establish Rules and Policies  {O" pfor Local Multipoint Distribution Service and for Fixed Satellite Services, 11 FCC Rcd. 19005 (1996) (28  pGHz Order). The corresponding NGSO/FSS uplinks were designated in the 28 GHz band by that same order.(#, the  W Commission observed that there was an overlap in the radio spectrum used by the NGSO/FSS  W downlinks and DEMS in the 18 GHz band that could possibly lead to harmful interference  W &between the systems. However, consistent with its practice of coordinating FS and FSS use in  W Gother bands, the Commission stated that "[w]hile there will be constraints imposed on NGSO/FSS  W subscriber terminals by fixed services in the 18.819.3 GHz band, there is no indication on the  W 6record that the single NGSO/FSS system proposed lacks sufficient flexibility to provide downlink  X3capacity to correspond with the designated 500 MHz of uplink spectrum."N!܉ {O"ԍXpId. at  79.(#N  Xb3  mp16.` ` At the time of the 28 GHz Order, Teledesic was the only applicant for an  W ZNGSO/FSS system in the 28 GHz band. Although it had previously taken the position that  W }spectrum sharing in the 18 GHz band between NGSO/FSS and FS was feasible, Teledesic  W indicated shortly after the 28 GHz Order was issued that coordination between the two services  W might present difficulties. On August 23, 1996, Teledesic filed a request to freeze new license  W applications, renewals, extensions, amendments, or modifications for FS at 18.8218.92 GHz and  W 19.1619.26 GHz and any applications for NGSO/FSS earth stations intending to use the 18.80 X3 W 19.3 GHz bands.X"Zf ܉ {O!" p^ԍXpSee Letter from Scott Blake Harris, counsel for Teledesic, to Michele Farquhar, Chief, Wireless  pTelecommunications Bureau dated, August 23, 1996 (requesting a freeze on acceptance of applications for new DEMS facilities and NGSO/FSS earth stations).(#X Teledesic suggested that, in light of a large number of applications filed at  W |that time for new DEMS licenses, a freeze on the 18 GHz band would allow NGSO/FSS and  W HDEMS licensees to discuss the potential for sharing in the 18 GHz band. On August 30, 1996,  W a joint order issued by the Commission's Wireless Telecommunications Bureau and the  W International Bureau (the Bureaus) froze new license applications, renewals, extensions,"e ",[([(,,"  W amendments, and modifications in these bands (18 GHz Freeze Order) for both DEMS and  X3NGSO/FSS.#$܉ {Ob" p9ԍXpSee Freeze on the Filing of Applications for New Licenses, Amendments, and Modifications in the 18.8  {O," p19.3 GHz Frequency Band, 11 FCC Rcd. 22363 (1996). The DEMS licensees filed a petition for  preconsideration of that order on September 30, 1996. Because the Relocation Order rescinded the Freeze Order, the DEMS licensees' petition is moot.(#  X3 mp17.` ` On September 6, 1996, Teledesic also filed another pleading alleging various  W violations by DEMS licensees of the Commission's construction and licensing rules and opposing  X3 W the grant of pending DEMS applications.~$X܉ yO " pԍXpTeledesic's Consolidated Petition to Deny and to Determine Status of Licenses (filed September 6, 1996)  p(asserting pending applications should be denied, grants of multiple channel pairs should be rescinded, and that the Commission determine if DEMS stations were properly constructed).(#~ On September 27, 1996, MSI and DSC filed a  W }petition for limited reconsideration of the 28 GHz Order, requesting that the Commission  X_3reconsider its designation of spectrum at 18.819.3 GHz band for NGSO/FSS downlinks.%_܉ {O"ԍXpSee Joint Petition for Limited Reconsideration (filed September 27, 1996).(#Ɖ  X13 mp18.` ` Meanwhile, Teledesic and the DEMS licensees were engaged in discussions  W &regarding possible technical solutions to resolve the sharing issues that gave rise to the 18 GHz  W &Freeze Order. On February 27, 1997, Teledesic and the DEMS licensees reached an agreement  W under which Teledesic agreed to reimburse the DEMS licensees for certain costs resulting from  W the relocation of DEMS licensees to the 24 GHz band. Teledesic supported this approach  W 9because it eliminated the potential for DEMS interference to Teledesic's planned satellite  X 3system.g&Z f ܉ {O" pԍXpSee Letter from Russell Daggatt, President, Teledesic Corporation and Laurence Harris, Counsel for  p[Association Communications, Inc. to Michelle Farquhar Chief, Wireless Telecommunications Bureau and Donald Gips, Chief, International Bureau dated February 27, 1997.(#g  Xy3 mp19.` ` On March 14, 1997, the same day the Commission adopted the Relocation Order,  W HTeledesic's pending applications to operate its NGSO/FSS satellite system in the 18 GHz band  XK3 W were granted.+'K ܉ {O" p'ԍXpSee Teledesic Corporation Application for Authority to Construct, Launch, and Operate a Low Earth Orbit  {ON "Satellite System in the Domestic and International Fixed Satellite Service, 12 FCC Rcd. 3154 (1997).(#+ The Commission concurrently rescinded the Bureaus' action in the 18 GHz  X43 W XFreeze Order and established procedures for addressing pending DEMS applications.(z4܉ {O"" pԍXpSee Relocation Order at  1617. We indicated that we would grant pending applications which had passed  pboth the 30day Public Notice period and the 60day cutoff period for competing applications and for  pwhich no mutually exclusive applications had been filed. We also indicated we would grant pending  papplications for nodal stations within markets for which a license had been granted. DEMS applications  pthat were pending at the time of the 18 GHz freeze but which had not passed the 60day cutoff period for  pcompeting applications because of the freeze on the filing of new applications were dismissed because we  p:could not predict if competing applications would have been filed and because of our decision to move"{'',[([('" DEMS operations to 24 GHz.(# On March"4 X(,[([(,,"  W 21, 1997, Teledesic, in conjunction with MSI and DSC, filed a motion to withdraw Teledesic's  W September 6, 1996 petition regarding the DEMS licenses. After receiving the Teledesic filing,  W 'staff of the Commission's Compliance and Information Bureau, at the request of the WTB's  W jEnforcement Division, conducted an investigation of the DEMS licensees's compliance with the  W [Commission's construction and operating requirements. Through onsite inspections and  W information provided by the licensees, CIB staff determined that the licensees were in compliance  W with the Commission's construction and licensing rules. On April 2 and 8, 1997, the WTB's  W Enforcement Division informed MSI and DSC that it had concluded the investigation it had been  W conducting into MSI and DSC's compliance with the Commission's DEMS rules and had decided  X13not to take any enforcement action.Y)X1X܉ yO: " plԍXpLetter from Howard C. Davenport, Chief, Enforcement Division, Wireless Telecommunications Bureau, to  p9Jay L. Birnbaum, Counsel for MSI, dated April 2, 1997, and Letter from Howard C. Davenport to Hal B. Perkins, Counsel for DSC, dated April 8, 1997. (#Y +  X 3  X 3III. DISCUSSION Đ>K  X 3 m>p20.` ` BellSouth, DirecTV and WebCel filed petitions for reconsideration of the  W Relocation Order, and MWCA filed a petition for partial reconsideration. The petitions allege  W the following infirmities in the Relocation Order: (1) improper application of the APA's military  W and good cause exemptions from notice and comment rulemaking; (2) failure to address the  W underlying validity of the DEMS licenses; (3) failure to specify sufficient reasons to increase the  W Iamount of spectrum allocated for DEMS in the 24 GHz band; and (4) failure to consider the  W public interest consequences of creating a "de facto DEMS monopoly." DirecTV also argues that  W our action failed to address the potential uses of the 24 GHz band for feeder links in conjunction  X3with the Broadcast Satellite Service (BSS).;*Xx܉ yOF" pԍXpConcurrently with the filing of its petition for reconsideration, DirecTV filed a petition for rulemaking  pseeking to implement an allocation at 24 GHz for BSS and an application for a BSS system to operate in that allocation. (#; We address these arguments below.  X3pA. Application of the APA's "Military Affairs" and "Good Cause" Exemptions  X3  X3 mMp21.` ` Petitioners argue that the Commission's action reallocating spectrum for DEMS  W at 24 GHz on a nationwide basis was beyond the scope of the military affairs exemption and  W should, therefore, have been taken only after notice and comment. BellSouth argues that military  W affairs are not directly involved with the operations in the 24 GHz band because the military was  W jusing the 18 GHz band, not the 24 GHz band, and the military exemption would therefore only  XN3 W allow the Commission to restrict nongovernment use of the 18 GHz band.Q+N܉ yO%"ԍXpBellSouth petition at 7.(#Q Similarly, WebCel  W Hstates that there is nothing involved in the nationwide relocation of DEMS from the 18 GHz to  W the 24 GHz band which directly involves national security or military affairs, and that if there"  ( +,[([(,,"  W is any legitimate national security issue, it applies only to DEMS licenses in the Washington,  X3 W D.C. and Denver, Colorado areas.O,܉ yOb"ԍXpWebCel petition at 10.(#O DirecTV likewise asserts that "[t]he Commission's desire to  W maintain DEMS on a unified frequency band nationwide may or may not be a rational policy  X3 W objective, but the Commission has not and cannot explain how the relocation of all DEMS  X3licensees from the 18 GHz band . . . falls within the 'military function' exception to the APA."}-X܉ yO"ԍXpDirecTV petition at 1516 (citation omitted) (emphasis in original).(#}  Xx3 mp22.` ` The Petitioners do not contest the fact that continued operation of DEMS facilities  W &posed a risk of interference to military satellite earth stations in Washington, D.C. and Denver,  W }Colorado. Rather, they argue, in essence, that the Commission was obliged to fashion the  W narrowest possible solution to the national security problem. We reject petitioner's argument.  W There is nothing in the APA or the case law interpreting the military affairs exemption that  W suggests that the Commission was not permitted to consider the impact on Commission licensees  W and the public of various possible solutions to the potentially harmful interference that might be caused to the military satellite systems.  X 3 m,p23.` ` Section 553(a) of the APA states that "this section applies, according to the  W |provisions thereof, except to the extent that there is involved (1) a military or foreign affairs  X{3 W Yfunction of the United States."Q.{܉ yO"ԍXp5 U.S.C.  553(a)(1).(#Q In interpreting this provision, the courts have established that  W the military function exemption applies to civilian agencies when a military function is involved,  W {and that the exemption applies when the activities being regulated directly impact that function.  W {Moreover, there is nothing in the express terms of the statute, its legislative history, or case law  W interpreting it that suggests that where a military function is "involved" the agency must  W disentangle and treat separately those matters or concerns that are logically connected to, tied up  W with, or that naturally flow from, consideration of the military function at issue. Indeed, a fair  W reading of the statute suggests that it would be inappropriate to limit a civilian agency's discretion  W to apply the exemption merely to situations where a military function would be the only interest  W affected. Use of the term "involved" suggests that Congress intended the exemption to cover a  W broader category of administrative decisions. Thus, Section 553(a) of the APA permits the  W Commission to forego the procedural requirements that typically apply in rulemakings in matters directly impacting a military function of the United States.  X93 mp24.` ` We believe the Commission's actions in the Relocation Order are consistent with  W [this standard. Contrary to Petitioner's suggestions, Section 553(a) does not constrain the  W Commission's authority to select the optimum solution to a problem involving a military function  W where matters and concerns logically connected to consideration of that function are also at issue.  W |Although the Commission considered, as one possible solution, relocating only those DEMS  W licensees in the Washington, D.C. and Denver, Colorado regions, it concluded that doing so  W "would effectively preclude these areas from getting DEMS service since it is unlikely that 24"! x.,[([(,,$"  X3 W HGHz equipment could be manufactured at economic prices solely for these two markets."V/܉ yOy"ԍXpRelocation Order at  11. (#V At  W the time the Commission reached that conclusion, there was no equipment commercially available  W to provide DEMS, or any other pointtomultipoint service at 24 GHz, nor had any company  X3 W {applied for type acceptance to manufacture such equipment. The nearest frequencies for which  W terrestrial fixed equipment was available was in the 23 GHz band, and that equipment was  W kdesigned to provide pointtopoint service and thus was not suitable for pointtomultipoint  Xv3 W jDEMS.0 vX܉ yO " pԍXpWe note that in order to maintain service in the Washington, D.C. and Denver, Colorado areas DSC and  p;MSI applied for temporary authority to operate nontype accepted, modified 23 GHz pointtopoint  pIequipment. PointtoPoint equipment is suitable to serve only a limited number of users and provides interim service while pointtomultipoint equipment is developed.(# Based on the Commission's experience, the Commission believed it was unlikely that  W there would be sufficient demand for DEMS service in just two market areas to give  W &manufacturers adequate incentives to develop and produce 24 GHz equipment to provide such  W }service. And if such equipment were manufactured, the Commission believed it would be  W prohibitively expensive. Thus, the Commission concluded that modification of only the  W Washington, D.C. and Denver, Colorado licenses to specify operations at 24 GHz would have  W been tantamount, as a practical matter, to revoking authority for DEMS operations in those two  X 3 W cities.T1 @܉ yO"ԍXpRelocation Order at 11.(#T It was entirely consistent with the APA exceptions for the Commission to take account of these concerns in the process of resolving the military function concerns at issue.  X3 mp25.` ` DEMS licensees are planning to use their licenses to provide wireless local phone  W and data services that will compete with local exchange services currently available only, or  W 8primarily, from local exchange carriers. Action resulting in the termination of DEMS in two  W major markets would have unnecessarily deprived the public of DEMS service in those markets.  W It also could have had a deleterious effect on competition in the pointtomultipoint  W Hcommunications market in those areas. Because NTIA's offer of 24 GHz spectrum enabled the  W Commission to avoid these potential adverse results, its decision was the most reasonable resolution of the interference problem and the one that best served the public interest.  X3 m=p26.` ` Although the Petitioners suggest that public comment on use of the 24 GHz  W spectrum would have been useful, we note that NTIA made spectrum in the 24 GHz band  W &available solely as a means to accommodate DEMS relocation. The spectrum was thus offered  W {solely to relocate DEMS and thereby remove the source of potential interference to the military  W {system. The spectrum was not available for any other purpose. Public rulemaking proceedings  W would not have altered these facts or enlarged the possible uses of that spectrum. DirecTV's  W argument that we should have held a rulemaking to determine "what impact the DEMS Order  W would have on other affected parties who had intended to use the 24 GHz band," and whether  W allocating a smaller amount of spectrum at 24 GHz "would have had a less preclusive effect on"  1,[([(,, "  X3 W other 24 GHz services," ignores this essential fact.d2܉ {Oy"ԍXpSee DirecTV petition at 13 and n. 37.(#d In fact, the Relocation Order eliminated a  W preclusive effect by removing the government allocation in the 24 GHz band, thus clearing the way for the Commission to make additional assignments in that band more easily.  X3 mp27.` ` Moreover, piecemeal resolution of the issues facing the DEMS licensees by  W relocating the Washington, D.C. and Denver, Colorado DEMS licensees first and then conducting  W a rulemaking to determine the fate of the rest of the DEMS nationwide was not in the public  W interest. Delaying the spectrum allocation decision would have subjected DEMS licensees to  W junnecessary and perhaps prolonged uncertainty (depending upon how long it took to conduct a  W rulemaking and resolve any challenges to the Commission's decision) and disrupted DEMS  W business plans just as the service was beginning. Our decision to relocate all DEMS licensees  W Ysimultaneously clearly enhanced the prospects that manufacturers would respond with suitable  X 3 W equipment, and that DEMS would be a viable service.$3 Z܉ yO" pԍXpFollowing release of the Relocation Order, we received the first application for type acceptance of 24 GHz  {O"equipment. See Type Acceptance of FCCID: JXB24XP404T granted May 20, 1997. (#$ Given the additional risks to the DEMS  W Gposed by piecemeal relocation, and the fact that allocating the 24 GHz spectrum offered by NTIA  W Yto DEMS did not deprive any nongovernment user of a legitimate expectation of access to that  W spectrum, we believe that the Commission properly exercised its discretion under the military affairs exemption to dispense with notice and comment.  Xb3 mp 28.` ` Further, there would have been no assurance that DEMS licensees in Washington,  W |D.C. and Denver, Colorado, faced with major questions concerning the continued viability of  W |their service in a new frequency band, would have effectuated a speedy transition to the new  W 6spectrum if they alone had been required to relocate. Their voluntary compliance and cooperation  W avoided legal challenges to modification of their licenses under Section 316 of the Act, thereby  W expediting their relocation to the 24 GHz band. In short, the bifurcated procedure advocated by  W HPetitioners would have created risks both to DEMS and to accomplishment of NTIA's military  W affairs objective, without any clear benefits. It was appropriate for the Commission to take these factors into account in its relocation decision.  X|3 mp 29.` ` BellSouth suggests that national security concerns were a mere pretext for the  W %Commission's decision to relocate DEMS licensees to the 24 GHz band, and that the Commission  W "appears to have been driven more by the desire to aid Teledesic and Associated than to address  X73 W Defense Department needs."O47܉ yO""ԍXpBell South Reply at 3.(#O BellSouth's assertion that the military requirements advanced by  W &NTIA were not urgent is belied by NTIA's January 7, 1997 and March 5, 1997 letters, both of  W (which stressed the need for expeditious action by the Commission. The January 7 letter specifically stated: Xp " D4,[([(,,""Ԍ p\XpWe are asking that these actions be undertaken on an expedited basis. As we have  p\<previously indicated, this matter involves military functions, as well as specific  p\sensitive national security interests of the United States and that these actions are  p\essential to fulfill requirements for Government space systems to perform satisfactorily.   p\XpThe Commission is permitted to amend its Rules without complying with the  p\notice provisions of the Administrative Procedures Act (APA) in cases involving  XH3 p\<any, "military, naval of [sic] foreign affairs function of the United States". . . .n5H܉ yO "ԍXpJanuary 7, 1997 NTIA letter at 2 (citations omitted).(#n   W IThus, we disagree with BellSouth's suggestion that there was no urgent military need and its suggestion that the Commission's Relocation Order was not motivated to fulfill that need.  X 3  mnp30.` ` The only concrete statement that BellSouth cites to support its claim is a footnote  X 3 W Gcontained in the Relocation Order that refers to the "consensual nature" of the DEMS relocation.R6 X܉ yO"ԍXpBellSouth Petition at 15.(#R  W 7 That footnote does not, as BellSouth asserts, demonstrate that the Commission's decision was  W "fundamentally intended to achieve the nonmilitary objective of resolving the Associated Xy3 W Teledesic dispute."B7y܉ {O"ԍXpId.(#B Rather, it stated the obvious fact that although the DEMS licensees would  W be afforded the 30day protest period set forth in Section 316 of the Communications Act for  W %license modifications, the Commission did not anticipate any protests because those licensees had  X43 W agreed to the relocation.i84z܉ {O_"ԍXpSee Relocation Order at  14 and n. 20.(#i The fact that DEMS licensees preferred having their licenses modified  W nationwide to specify the 24 GHz frequencies rather than being forced to operate in different  W frequency bands in different cities was not surprising because it appeared unlikely that affordable  W equipment would be manufactured for operation at 24 GHz in only two cities. In short, there is  W nothing in the Relocation Order to support BellSouth's allegation that the Commission's decision was not intended to resolve the military problem presented by NTIA.  X3 mp31.` ` The Commission's actions did have the additional, beneficial effect of avoiding  W Hinterference between DEMS facilities and proposed satellite systems in the 18 GHz band. But  W Ythat does not mean that solving the military's problem was a mere pretext for the Commission's  W action. The Relocation Order made it clear that the Commission was taking action there to  X73 W "advance, support and accommodate the national defense."x97 ܉ {O$"ԍXpId. at  1. See also Id. at  26.(#x The fact that the Commission was  W &able to accommodate the military without harming DEMS service, and that its action had other " 9,[([(,,"  W beneficial public interest consequences, does not invalidate the Commission's decision or remove it from the scope of the military affairs exemption.  X3 mMp32.` ` DirecTV and MWCA argue that the D.C. Circuit's decision in Bendix undercuts  W Zthe Commission's action relocating DEMS to the 24 GHz band without notice and comment  W mbecause the Commission conducted a notice and comment rulemaking before allocating  Xx3 W replacement spectrum in the Bendix case.g:x܉ {O"ԍXpSee DirecTV Reply at 8; MWCA Reply at 9.(#g We disagree with this interpretation. The Bendix  Xc3 W case involved a number of frequency bands;cZ܉ yOn " pԍ XpThese bands include: 13501400 MHz, 31003300 MHz, 35003700 MHz, 51005250 MHz, 84008500 MHz, 85009000 MHz, 92009300 MHz, 95009800 MHz and 1322513250 MHz.(# in which the Commission in fact modified  XL3 W frequency allocations without any notice or opportunity for comment.u<|L܉ {O " pԍXpSee Amendment of Parts 2, 4 7, 8, 9, 10, 11, 12, 16 and 21 of the Commission's Rules and Regulations to  preallocate certain frequency bands above 25 mc, now designated for exclusive Amateur or other non p'Government use, to Government services on a shared or exclusive basis, and conversely to reallocate to non {O " pGovernment use certain bands now designated for Government use, 17 Rad. Reg. 1505 (P & F) (1958)  p9(Amendment Order) (Reallocating nine frequency bands: six from shared Government/nongovernment use  pto exclusive Government use; two from exclusive Government use to exclusive nongovernment use and; one from shared Government/Nongovernment use to shared Government/amateur use).(#u The court held that,  W jconsidering national defense requirements, the Commission's action was justified and consistent  X 3with the military function exemption.M= ܉ {O"ԍXpBendix at 542.(#M  X 3 mp33.` ` Further, the Section 553(a) exemptions confer discretion on agencies to decide  W whether to conduct rulemaking proceedings when a matter involves a military or foreign affairs  X 3 W function of the United States.> ܉ {O"ԍXpSee 47 U.S.C.  553(a); H. Rep. No. 1980, 79th Cong., 2d Sess. 23 (1946).(#ƌ The fact that the Commission may have found it useful to  W conduct such proceedings in one case does not limit its discretion to dispense with such  X3 W proceedings in another case to which the exemption applies. For example, in the Bendix case,  W of the nine frequency bands reallocated by the Commission, two of which were reallocated from  Xh3 W {exclusive Government to exclusive nongovernment use as replacement bands,?h܉ {O3 " pԍXpSee Amendment Order at  3 (designating previously exclusive government bands as exclusive nongovernment bands as compensation for the loss of nongovernment bands).(# no opportunity  XQ3 W for comment was provided.V@Qt܉ yOv#"ԍXpAmendment Order at 15051506.(#V However, the public was afforded the opportunity to comment on  X:3 W a separate frequency band proposed as shared Government/nongovernment use.A:܉ {O%" pԍXpSee Frequency Allocations and Radio Treaty Matters; General Rules and Regulations, Docket No. 12404 (April 18, 1958).(# The":^A,[([(,,"  W |Commission sought comment on this band because it was concerned about the availability of  W equipment suitable for use in this "replacement" band proposed for displaced nongovernment  X3 W radionavigation services.;BZ܉ {OK" p(ԍXpBendix at 541; see also 17 R.R. 1587, 1597 (1958) (noting that the Commission will continue to license  p}nongovernment operations in the 8800 MHz band until it finds that equipment is available for the 13 GHz band).(#; In this proceeding, in contrast, the Commission's action alleviated  W concerns regarding the availability of appropriate equipment to be utilized in the replacement  X3 W spectrum rather than giving rise to such concerns, as in Bendix. Thus, there was no need to seek  W Xpublic comment on additional frequency bands and, as discussed above, the delays associated with rulemaking proceedings would have unnecessarily increased the risks to DEMS licensees.  XL3 mp34.` ` BellSouth and MWCA also assert that the Commission's actions exceed the scope  X53 W |of the military exemption, as interpreted by the Ninth Circuit in Independent Guard Ass'n v.  X 3 W O'Leary.eC ܉ {O"ԍXp57 F.3d 766 (9th Cir. 1995) (O'Leary).(#e They argue that the Commission's relocation of DEMS licensees to the 24 GHz band  W jwas not within the scope of the military exemption because "military affairs are not 'clearly and  W directly involved' with the operations on the 24 GHz band," and there was no nexus between  X 3military functions and use of the 24 GHz band.fD |܉ yO "ԍXpMWCA reply at 8, 13; BellSouth petition at 7.(#f  X 3 mp35.` ` Contrary to petitioners' suggestion, our actions in this case were consistent with  X3 W \O'Leary. In that case, the Ninth Circuit held that personnel rules, including employee  W Hqualifications requirements, adopted by the Department of Energy (DOE) could not be applied  W to civilian security guards employed by civilian contractors to guard DOE nuclear research,  W &production and testing facilities. Noting that the military affairs exemption applies only to the  W extent that a "military function" is involved, the court focused on the nature of the contractor  W support activities that were regulated by the challenged DOE regulations. Reasoning that the  W civilian guards were "no more performing a 'military function' than civilian contract guards  X3 W employed to guard judges are performing a 'judicial function,'"NE ܉ {O"ԍXpO'Leary at 770.(#N the court held that the personnel  X3rules did not fall within the military exemption.TF܉ yO1 " p(ԍXpAs the Court explained further: "If the Secretary's position were adopted, and contractor support activities  pheld to be within the scope of the military function exception, maintenance staff, custodial help, food service  pworkers and even window washers could find their undoubtedly necessary support tasks swept within the  pexception's ambit, and DOE's regulations affecting their employment exempt from notice and comment."  {OQ#"O'Leary at 770.(#T  X3 mp36.` ` The Commission relocated DEMS licensees to the 24 GHz band in order to prevent  W interference to military satellite systems, in response to a request made on behalf of DoD. Thus,  X3 W 7unlike the situation in O'Leary, the matter here directly and unquestionably involved a military"P F,[([(,,"  W function a direct threat to sensitive military satellite systems by licensed facilities that this  W Commission, and only this Commission, had jurisdiction to regulate. Thus, there is a clear nexus  W [between that military function and the need to relocate DEMS licensees, and the 24 GHz  W spectrum was made available by NTIA for the specific purpose of solving the military problem.  W Thus, the link between the military problem and the relocation of DEMS licensees to the 24 GHz  W spectrum is indisputable. To be sure, one option open to the Commission was to relocate the  W DEMS licensees only in the two regions that presented an immediate risk of interference to  W jmilitary satellite systems. But faced with a choice between that option, which the Commission  W considered harmful to the public interest in nationwide DEMS service, and another solution made  W Havailable by NTIA's offer of 24 GHz spectrum, the Commission chose the solution that solved  X 3the military's problem without harming the service that was causing the interference. p  X 3 mp37.` ` As discussed above, the military affairs exemption was the basis for the  W 'Commission's decision to forego notice and comment rulemaking in this case. Nevertheless,  W because the need to solve the problem of interference to military satellite systems required  W Jexpeditious action by the Commission, the "good cause" exemption, also relied on by the  W lCommission, provided an additional, independent basis for foregoing notice and comment  W Zrulemaking procedures. As discussed above, NTIA repeatedly asked the Commission to act  W Yexpeditiously to solve the problem of interference to the military satellite systems and, in order  W (to accomplish that objective, offered to withdraw Government coprimary allocations to  W radionavigation service to accommodate on a nationwide basis the relocated DEMS licensees.   W 7Good cause existed here for foregoing public notice and comment because of the military's need  X3for expedition, which made rulemaking procedures impracticable.G6 ܉ {O" p(ԍXp See Amendment of Parts 2, 4, 7, 8, 9, 10, 11, 12, 16 and 21 of the Commission's Rules and Regulations  pto reallocate certain frequency bands above 25 mc now designated for exclusive Amateur or other non p'Government use, to Government services on a shared or exclusive basis, and conversely to reallocate to non {O" pGovernment use certain bands now designated for Government use, 23 Fed. Reg. 2676, 2677 (April 23,  {O" p1958), on recon., 17 R.R. 1587, 1590 (1959) (relying in part on good cause exemption where vital national  pdefense considerations made compliance with APA rulemaking requirements "impracticable and contrary  {O7" pto the public interest"), aff'd, Bendix Aviation Corp., v. FCC, 272 F.2d 533 (D.C. Cir. 1959), cert. denied  {O" psub nom. Aeronautical Radio, Inc. v. United States, 361 U.S. 965 (1960). See also Hawaii Helicopter  {O" p[Operators Ass'n v. FAA, 51 F.3d 212 (9th Cir. 1995) (good cause existed for dispensing with APA notice  pand comment rulemaking where FAA adopted safety rules for airplane and helicopter tours of Hawaii  {O]" p}following increase in air tour accidents); Northern Arapahoe Tribe v. Hodel, 808 F.2d 741, 751 (10th Cir.  p]1987) (good cause existed to forego notice and comment in order to protect wildlife from becoming  yO"endangered or extinct). (#Ɩ  X3 mp38.` ` BellSouth and DirecTV contend, however, that good cause did not exist for  W foregoing rulemaking proceedings with respect to the relocation of DEMS licensees outside of  W Washington, D.C. and Denver, Colorado. They argue that the transition period established by  W ithe Commission for relocation of DEMS licensees outside those two cities indicates that there was  W &no urgency to relocate spectrum on a nationwide basis and undercuts the Commission's finding"~ G,[([(,,"  X3 W of good cause.qH܉ yOy"ԍXp BellSouth petition at 1112; DirecTV petition at 2122.(#q This argument is unpersuasive. As explained above and in the Relocation  W Order, the option of relocating DEMS licensees only in Washington, D.C. and Denver, Colorado  W was an inadequate solution because manufacturers would be unlikely to manufacture 24 GHz  W (equipment to serve just those markets, and if they did, such equipment would have been  W prohibitively expensive. Thus, in the Commission's view, DEMS service would have been  W Iessentially terminated in those two metropolitan areas, completely negating the rationale for  Xv3 W (moving them in the first place to preserve DEMS service in those areas.VIvX܉ yO "ԍXp Relocation Order at  11.(#V Further, as  W explained above, the bifurcated procedure advocated by the Petitioners could have delayed  W relocation of even the Washington, D.C. and Denver, Colorado DEMS licensees and disrupted  W business plans in the entire service while the licensees awaited the outcome of the rulemaking.  X 3 m+p39.` ` Just as good cause existed for the Commission to act expeditiously to solve the  W national security problem, as we believe is manifest here, good cause justified acting  W expeditiously to adopt a workable solution to that problem that did not harm the public interest.  W The fact that the solution to the military problem was to be implemented in phases, with DEMS  W Ylicensees outside the Washington, D.C. and Denver, Colorado areas given more time to relocate,  W does not undercut the urgency of adopting a comprehensive, workable solution to the problem  Xy3of interference to military satellite systems.J"y܉ {O" pԍXpSee Bendix, supra, 17 R.R. at 1591 (the fact that some licensed services were allowed to continue operating  pLfor the duration of their licenses did not lessen the urgency of Government military requirements or  pGovernment need to "plan and implement with certainty its utilization of these frequencies on an orderly basis").(#Ƶ  XK3 mp40.` ` For these reasons, we affirm the Commission's previous conclusion that, in  W addition to the military exemption, the Commission had good cause to forego notice and comment in the Relocation Order. p  X3pB.` ` Validity of the DEMS Licenses  X3 mOp41.` ` WebCel asserts that the Commission failed to address the issues raised in  X3 W 7Teledesic's now withdrawn pleading concerning the status of certain DEMS licenses.K܉ {O-!" pԍXpWebCel petition at 4; See Teledesic's Consolidated Petition to Deny and Petition to Determine Status of Licenses (filed September 6, 1996) (Teledesic petition); request to withdraw filed March 21, 1997.(# Webcel  W Gargues that the Commission must address these issues prior to relocating DEMS from the 18 GHz  W kband to the 24 GHz band. In its original pleading, Teledesic requested that the Commission:  W determine whether particular licenses of MSI and DSC had automatically lapsed for failure to"e, K,[([(,,"  X3 W meet construction requirements;L܉ yOy" pԍXpThe licensees at issue are: Tampa, FL, call sign WMT308; Phoenix, AZ, call sign WMT309; Minneapolis,  pMN, call sign WMT310; Milwaukee, WI, call sign WMT311; Washington, D.C, call sign WMT312;  pPhiladelphia, PA, call sign WMT313; Palmdale, CA, call sign WMT314; New York, New York, call sign  p}WMT315; Indianapolis, IN, call sign WMT316; Atlanta, GA, call sign WMT317; Chicago, IL, call sign  pWMT318; Pittsburgh PA, call sign WMT319; Sacramento, CA, call sign WMT320; Portland, OR, call sign  pWMT321; Houston, TX, call sign WMT322; Seattle, WA, call sign WMT323; St. Louis, MO, call sign  pWMT324; Kansas City, MO, call sign WMT325; San Antonio, TX, call sign WMT326; Miami, FL, call  psign WMT327; Boston, MA, call sign WMT328; Denver, CO, call sign WMT329; Dallas, TX, call sign WMT340; Cleveland, OH, call sign WMT341; Columbus, OH, call sign WMT342. (# rescind improper grants to MSI of multiple channel pairs;M܉ yOI " pԍXpSan Francisco, CA, call sign WMT336; Los Angeles, CA, call sign WMT337; Houston, TX, call sign  pIWMT330; Dallas TX, call sign WMT331; Chicago IL, WMT332; Miami, FL, call sign WMT334; Atlanta  pGA, call sign WMT335; Washington, D.C, call sign WMT338; Philadelphia PA, call sign WMT339;  pMilwaukee, WI, call sign WMF840, Indianapolis, IN, call sign WMF 841; Portland OR, call sign WMF842;  pZSacramento CA, WMF843; San Diego, CA, WMF844, Minneapolis, MN, WMF845; Saint Louis, MO, call  psign WMF846; Cincinnati, OH, WMF847; Kansas City, MO, WMF847; Clearwater, FL, call sign WMF849;  pBaltimore, MD, WMF850; Phoenix, AZ, WMF851; Pittsburgh, PA, call sign WMF852; Seattle, WA, call  psign WMF854; San Jose, CA, call sign WPJC396; San Antonio, TX, call sign WPJC397; Detroit, MI, WPJD304; Cleveland, OH, call sign WPJD353. (#  W deny MSI's then pending applications for new nodal stations that were based upon MSI's  X3 W multiple channel grants;N h܉ yO" pԍXpTeledesic challenged the applications for new nodal stations in seven specific market locations: Chicago,  pIL, call sign WMT332; Philadelphia, PA., call sign WMT339; Washington, D.C., call sign WMT338;  pDallas, TX., call sign WMT331; Atlanta, GA., call sign WMT335; Houston, TX., call sign WMT330 and Miami, FL., call sign WMT334.(#ƶ and immediately issue an interim order preventing MSI and DSC from  X3further expansion of DEMS systems.QOP܉ yO"ԍXpTeledesic petition at 2.(#Q  X3 mp42.` ` The DEMS licensees filed an opposition to Teledesic's petition, arguing that:  W Teledesic lacked standing to challenge MSI's 174 applications for additional nodal stations and  W MSI's and DSC's existing DEMS licenses; MSI's and DSC's system buildouts fully complied  W {with Commission rules and other DEMS precedents; and Teledesic's request to "rescind" MSI's  X13 W previously issued licenses was untimely.P1܉ {O" pJԍXpSee Joint Opposition to Consolidated Petition to Deny and Petition to Determine Status of Licenses (filed September 16, 1996) at 12.(# The DEMS licensees further asserted that they were  W established incumbents who have been licensed in the 18 GHz band for over two years and are  W providing service to the public. The DEMS licensees contended that complaints about the  W number of DEMS channels that the DEMS licensees had in certain markets were "stale"  W Ichallenges against applications that were filed as early as October 1993 and granted between  W January 1995 and January 1996. Thus, according to the DEMS licensees, the licenses were" :P,[([(,, "  W validly issued and no longer subject to administrative or judicial review at the time Teledesic's  X3petition was filed.LQ܉ {Ob"ԍXpId. at 3334.(#L  X3 mp43.` ` In response to Teledesic's initial request, the Commission's staff investigated the  W validity of the DEMS licenses issued to DSC and MSI. The staff's inspections focused on MSI's  W and DSC's compliance with DEMS construction and operating requirements and found no  Xv3violations of such requirements.rRXvZ܉ yO " plԍXpLetter from Howard C. Davenport, Chief, Enforcement Division, Wireless Telecommunications Bureau, to  pJay L. Birnbaum and Terri B. Natoli, Counsel for Associated, dated April 8, 1997, and Letter from Howard C. Davenport to Hal B. Perkins, Counsel for DSC, dated April 8, 1997.(#r WebCel provides no facts to contradict the staff's conclusions.  XH3 mp44.` ` In addition to Commission staff's conclusions that there were no violations of the  W applicable construction and operating requirements, we note, as asserted by the DEMS licensees,  W that Teledesic's challenges to MSI's multiple channel grants and the derivative applications for  W nodal stations were grossly untimely. Our fixed microwave services rules provide that petitions  W to deny must be filed within 30 days after the date of public notice of the challenged  X 3 W application.YS z܉ yO"ԍXp47 C.F.R.  101.43 (a)(4)(5).(#Y In its petition, Teledesic listed 27 DEMS authorizations which it claimed were  W "improvidently" granted multiple channel pairs to MSI. All of these licenses were granted on  X 3 W jeither January 10, 1995, January 18, 1996 or January 28, 1996.qT ܉ {Ob"ԍXpSee Public Notice Report Nos. 1118, 1172 and 1176.(#q Teledesic filed its petition on  W September 6, 1996, almost eight months after the last of the MSI licenses had been granted.  W Because these challenges to MSI's initial grants were raised, first by Teledesic and now by  W IWebCel, well beyond the authorized filing period, they are untimely. The assertion that the  W krelated nodal station applications should be dismissed is therefore also untimely. Moreover,  W jnothing in the petitioners' allegations persuades us that there is any legal or public interest basis  X3for rescinding these final grants.U܉ yOj" pԍXpWe note that for the Commission to set aside a final grant, especially pursuant to an untimely filed petition  pKto deny, the Commission requires that the petitioner demonstrate a very high public interest reason for  prevocation. At the very least, a timely filed petition must offer factual allegations sufficient to show that  {O" pgrant of the application was prima facie inconsistent with the public interest. See 47 C.F.R. 1.106 and 309(d) of the Communications Act of 1934, as amended.(# p  X3pC.` ` DEMS Channel Bandwidth  X3 p1.` ` Introduction  X3 m p 45.` ` When the Commission relocated DEMS from the 18 GHz band to the 24 GHz  W band, it designated channels that are four times wider at 24 GHz than the channels established"|N U,[([(,,"  W at 18 GHz. The Commission concluded that, based upon similar equipment, transmission rates,  W Yreliability and power requirements, the DEMS licensees require more spectrum at 24 GHz than  W &at 18 GHz to support equivalent operations. It therefore determined that the relocated DEMS  W licensees should be assigned more bandwidth per channel in the 24 GHz band than they had at 18 GHz.  Xv3 m*p46.` ` The Petitioners question the Commission's technical assumptions and analysis for  W increasing the DEMS bandwidth at 24 GHz but, for the most part, offer no factual analysis to  XH3 W support their allegations.VH܉ yO " pԍXpDespite Petitioners's generalized complaints, we note that the only party to provide any specific technical analysis regarding the allocation was WinStar in its now withdrawn petition.(# They generally challenge the Commission's analyses with respect to  W a number of technical aspects: cell size and cost; service reliability; equipment cost and system  W Ybuildout; effect of rain attenuation; modulation and coding; service resource allocation (dynamic  W vs. fixed bandwidth allocation); and assumptions regarding current and future DEMS equipment.  W As discussed in detail below, we have reviewed these arguments de novo and affirm the Commission's bandwidth allocation decision. p  X 3p2.` ` Discussion p  Xy3 mp47.` ` For the purposes of channel bandwidth designation for DEMS, the major relevant  W idifference between the 18 GHz and 24 GHz bands is the propagation properties in each frequency  XK3 W %band.W K ܉ yO" pԍXpAs radio waves travel, or "propagate" through the atmosphere, the strength of the signal is reduced as the  p:signal spreads out over a larger area. In addition, the signal is attenuated by obstacles in its path (e.g.  p(raindrops referred to as "rain attenuation"). These signal losses are a function of a signal's frequency. The higher the frequency the more susceptible a signal is to these losses. (# When the Commission analyzed the spectrum propagation properties at 24 GHz in order  W to determine the requirements for DEMS, it assumed DEMS would use the same cell size,  W minimally modified equipment, and provide the same service reliability as it did at 18 GHz. For  W Xthe reasons discussed below, the Commission determined that maintaining these parameters would  W allow as rapid a transition as possible from the 18 GHz band to the 24 GHz and would allow the  X3DEMS licensees to maintain equivalent service.X܉ yO" pԍXpFor a more detailed explanation of the channel bandwidth designation, see Appendix A to this Memorandum Opinion and Order.(#ƿ  X3pa.` ` Cell Size and Cost  X|3 mMp48.` ` The typical DEMS cell has a radius of approximately 5 km.Y|` ܉ {O$"ԍXpSee Document No. 7 of supplement to Public Record submitted June 3, 1997.(#ƈ Petitioners argue  W |that cell size can be varied to accommodate differences in performance and propagation, thus  W negating the need for additional channel bandwidth. However, to achieve the same service  W |reliability and system performance without increasing the bandwidth or power, a typical cell"7 Y,[([(,,"  W kradius would have to be reduced from 4.81 to 2.84 km. Thus, moving the licensees to the 24  X3 W GHz band from the 18 GHz band would require reducing the cell size by 2.8 times.\Zz܉ yOb" pԍXpThis calculation is based on using the same user terminal antenna and power amplifier in order to minimize  pthe cost and time of the transition. The antenna gain improvement at the higher band exactly offsets the  p;2.3 dB higher free space loss increase; however, the power amplifier has approximately 1 dB lower  pperformance at 24 GHz. Rain attenuation for a path reliability of 99.99% results in an additional 9.5 dB  p\of loss. Thus 10.5 dB (9.5 rain attenuation plus 1.0 for lower power) of performance would need to be  povercome. As a result, the average cell radius would have to be reduced from 4.81 to 2.84 km to achieve  {O"the same data throughput. See id.(#\ As a  W result, in order to maintain the same service the DEMS licensees would need to increase  X3significantly the number of cells to compensate for the reduced cell size.[ ܉ yOv " pԍXpFor example, seven cells of radius 4.81 km laid out in a hexagonal grid would cover approximately 160 square miles. Covering a similar area with cells of 2.84 km radius would require 20 cells.(#  X3pb.` ` Service Reliability  X_3 m;p49.` ` In determining the channel bandwidth needs of the DEMS licensees in the 24 GHz  W Yband, the Commission assumed a service reliability factor of 99.99%, and ITUR rain climate K  W was assumed as average for the United States. Using ITUR rain climate K, DEMS providers  W (could maintain the same channel bandwidth at 24 GHz as at 18 GHz and account for the  W increased rain attenuation by accepting a lower level of service reliability (i.e. less than 99.99%).  W &However, we note that the service reliability offered is a business decision made by the DEMS  W |licensees, and that 99.99% is the typical offering for a telephony service and was the level of  X 3 W reliability planned for by DEMS licensees in the 18 GHz band.N\Z b ܉ {O" plԍXpSee Letter from Dr. Rajendra Singh, Digital Services Corp., to Steve Sharkey, Chief, Satellite Engineering  pBranch, Federal Communications Commission dated January 14, 1997 (noting a 99.99% reliability  yOc"assumption). (#N Therefore, the Commission determined that it was appropriate to assume the same level of service reliability.  Xy3pc.` ` Equipment Cost and System BuildOut  XK3 m;p50.` ` Because the Commission's intention was to enable DEMS to be relocated from the  W 18 GHz band to the 24 GHz band as quickly as practicable, it based its analysis of their channel  X3 W bandwidth requirements on using the same or similar equipment.] ܉ {OR!"ԍXpSee January 1997 NTIA letter at 1 (noting the basis for our intentions).(#Ƈ Simply increasing the power  X3 W to overcome the additional rain attenuationX^܉ yO#"ԍXpSee discussion below at 51.(#X found at 24 GHz, as some Petitioners have  W suggested, would require more than 10 times as much power from the terminal equipment.  W [Achieving this level of power would entail significant redesign of the terminal equipment.  W &Moreover, redesigning the terminal equipment would cause schedule delays in system buildout  W 'at 24 GHz. Further, equipment which would operate at 10 times the power would be more"^,[([(,,"  W expensive than the equipment used at 18 GHz. Most significantly, this added expense would  W Hprevent a quick transition from the 18 GHz band to the 24 GHz band. Moreover, as discussed below, equipment meeting these requirements is not currently available.  X3pd.` ` Rain Attenuation, Modulation and Coding and Resource Allocation  Xv3  m^p51.` `  Moving DEMS from the 18 GHz band to the 24 GHz band requires four times  W the channel bandwidth at 24 GHz to account for the combined system performance losses due  W jto rain attenuation and diminished equipment performance. The combined system performance  X13 W losses can be overcome in part by: 1) changing modulation techniques;_1܉ yO "ԍXpThis change in modulation technique is possible with present equipment design.(#Ƈ and 2) eliminating the  X 3 W current DEMS system's "dynamic bandwidth allocation" (DBA) technique.` X܉ yO# " pԍXpDBA requires that the user terminal accommodate simultaneously two signals within the same power amplifier. This technique allows the bandwidth to be shared by users based on demand.(# As noted in the  W Relocation Order, maintaining the same cell coverage area, while using similar equipment to the  X 3 W &maximum extent possible, requires changes in modulation and system operation.ba ܉ {OM"ԍXpSee Relocation Order at Appendix B.(#b The DEMS  X 3 W 7licensees plan to convert from the current modulation technique of 16TCM to QPSK.b" B܉ yO" pԍXpCurrent DEMS systems use 16TCM modulation with "Rate 3/4" forward error correction (FEC) coding,  pbut are capable of switching to QPSK with Rate 1/2 FEC within the same equipment. This modulation  {OX" ptechnique assists in making up for performance losses. See Document No. 7 of supplement to Public Record submitted June 3, 1997 (delineating plan to use QPSK).(# Such  W a switch makes up for 7 dB of performance loss. However, there must be a threefold increase in bandwidth to account for the less bandwidthefficient modulation technique of QPSK.  Xy3 m=p52.` ` Despite recouping some performance loss by changing modulation, there are  W additional performance losses which must be overcome. These losses can be overcome by  W eliminating DBA. If DBA is eliminated, a single signal can be permanently assigned all the  W power available from the power amplifier. This fixed bandwidth allocation (FBA) approach nets  W an additional 4 dB of improvement in system performance, assuming that the cell size is the same  W as the DEMS licensees were using at 18 GHz. As in changing modulation techniques, sacrificing  W :DBA and using FBA also increases the bandwidth required, in this case by a factor of  X3 W approximately 2.6.c, ܉ yO!" pԍXpAssuming six 64kbps lines per user terminal, 0.2 Erlangs per line during the busy hour, and 0.1% blockage probability during the busy hour. (# The combined capacity loss requires a bandwidth factor of 7.8 if QPSK and  X3FBA are used throughout the cell.d ܉ yO$" p\ԍXpThis increased bandwidth requirement results from the threefold increase required to compensate for the modulation change multiplied by the 2.6 increase due to elimination of DBA.(# "d,[([(,,"Ԍ X3 m+p53.` ` However, we note that the DEMS licensees do not require a full 7.8 bandwidth  W jincrease within the entire cell. By using some of the more efficient bandwidth techniques closer  W &to the nodal station, the total amount of additional bandwidth required for equivalent service at  W &24 GHz can be reduced. Specifically, at a distance of less than 3.75 km from the nodal station,  W 16TCM can be implemented along with FBA, recovering the threefold bandwidth loss due to  W modulation change. Similarly, at a distance closer than 2.84 km, both 16TCM and DBA can  W again be used to achieve the same bandwidth efficiency as at 18 GHz. When the capacity loss  X_3 W levels are weighted according to cell area,7eX_܉ yO" plԍXpA 7.8 bandwidth loss factor is used for distances of between 3.75 and 4.81 km, a 2.6 bandwidth loss factor  pis used for distances of between 2.84 and 3.75 km, and no loss is assumed for distances of less than 2.84 km.(#7 the final capacity loss is a factor somewhat greater  W 8than four. Accordingly, achieving the same capacity and reliability within the same cell area  W using similar equipment would require slightly more than a fourfold increase in bandwidth. This  W conclusion grounded the Commission's decision in the Relocation Order to replace the former  W 8DEMS channels at 18 GHz with channels at 24 GHz having four times as much bandwidth. Petitioners arguments fail to persuade us that this technical analysis is incorrect.  X 3pe.` ` Assumptions Regarding Current and Future DEMS Equipment p  X3 mp54.` ` Petitioners argue that future technology or design improvements will allow the  W DEMS licensees to improve capacity in the 24 GHz band and thus licensees could provide  W {equivalent service at 24 GHz as at 18 GHz without the four fold increase in channel bandwidth.  W This may be true if sufficient time is available for the development of such future technology and  W design improvements. However, one of the Commission's objectives in the Relocation Order was  W }to allow the DEMS licensees to provide equivalent service at 24 GHz as at 18 GHz using  X3 W &equipment currently available or available with minimal modification._f܉ {O"ԍXpSee Relocation Order at  14.(#_ While, in the abstract,  W 7technology exists which could allow the DEMS licensees to provide equivalent service without  W the bandwidth increase, no DEMS equipment is currently available to do this. Petitioners  W lprovide no evidence to support their claims regarding future improvements in equipment.  W Without more information, we decline to curtail current operations pending theoretical future  W developments in DEMS equipment. Furthermore, it is likely that such improvements in DEMS equipment could also be used to improve capacity in the 18 GHz band by a similar amount.  XN3pD.` ` Broadcast Satellite Service Allocation  X 3 mop55.` ` DirecTV asserts that it has been planning a new satellite system designed to use  X 3 W Ypart of the 24 GHz band and that the Relocation Order adversely affects its plans.Sg z܉ yO4%"ԍXpDirecTV petition at 1012.(#S After the  W 9Commission adopted the Relocation Order, DirecTV submitted a petition for rulemaking" g,[([(,,!"  X3 W proposing operation of Broadcast Satellite Service (BSS)h܉ yOy" p(ԍXpBSS (Broadcast Satellite Service) is the term used in international allocations tables to refer to the service called DBS in the United States.(# feederlink stations in the 24.7525.25  W |GHz band and BSS downlinks at 17.317.8 GHz to expand and enhance its Direct Broadcast  W Satellite (DBS) service. DirecTV anticipates that its 24 GHz facilities will operate using multiple  X3 W feederlink earth stations located in or near major cities around the United States.xi ܉ {O"ԍXpSee DirecTV petition for rulemaking (filed June 5, 1997).(#x DirecTV's  jpreliminary analysis concludes that there will be zones around DirecTV's proposed feederlink  X3 jearth stations where DEMS receive antennas would likely receive unacceptable interference.Lj܉ {O "ԍXpId. at 1011.(#L  jHTeledesic counters that the 24 GHz band has not been allocated domestically for Fixed Satellite  X_3Services in order to accommodate BSS feederlinks.Tk_D܉ yOT"ԍXpTeledesic opposition at 15.(#T j  X13 ] j56.` ` There is not currently and never has been a U.S. allocation to accommodate  X 3 j(DBS feederlinks in the 24 GHz band.l ܉ yO" p(ԍXpIn a separate proceeding we will consider DirecTV's petition for rulemaking proposing feederlink stations using the 24.2524.75 GHz band and downlinks at 17.317.8 GHz.(# While the 24.7525.25 GHz band was allocated  jinternationally for fixed satellite service (Earthtospace), with priority given to feederlinks for  X 3 jthe BSS over other FSS users in Region 2 (the Americas) at WARC92,fm , ܉ yO"ԍXpWorld Administrative Radio Conference (WARC).(#f at the time of the  X 3 j%Relocation Order those frequencies were not allocated for DBS feederlinks in the United States.n ܉ yOB" pԍXpPrior to adoption of the Relocation Order, no party had expressed to the Commission any interest in implementation of the 1992 WARC allocation.(#  jIn addition, the international 24 GHz BSS feederlink allocation was intended to be used in  X 3 jconnection with implementation of the 17.317.8 GHz BSS downlink allocation,o ܉ {Ol"ԍXpSee International Telecommunication Union Radio Regulations RR 882G.(#ƃ but that  X3 j8downlink allocation is not effective until 2007.:pZ܉ {O" p:ԍXpSee International Telecommunication Union, Radio Regulations, RR 869A. DirecTV and other DBS  poperators currently use the 17.317.8 GHz band for feederlinks for their satellites and the 12.212.7 GHz band for downlinks.(#: Numerous changes in spectrum usage and  j8allocations can occur over the course of a decade and there was no certainty, even before the  jCommission's action in the Relocation Order, that the Commission would allocate 24 GHz  jspectrum for use by DBS feederlinks. Indeed, as discussed above, NTIA made this frequency  jband available only in order to facilitate relocation of the DEMS licensees and solve the problem  jof interference to military satellites. Had NTIA not voluntarily made this band available to solve"p,[([(,,"  jthe DEMS interference problem, DirecTV's prospects for being able to use the 24 GHz spectrum would have been highly speculative.  X3 ] _j57.` ` Because the Government allocation was deleted from this band following the  j%Relocation Order, the Commission now has flexibility to allocate and assign spectrum in this band  j|which it did not have before the Relocation Order. While that spectrum has been assigned to  j%relocated DEMS stations in approximately thirty markets, we can now make further assignments  j7to DEMS in the 24 GHz band throughout the rest of the country. Consequently, we expect to  XH3 jrelease a notice of proposed rulemaking later this year soliciting comment on service and  jlicensing rules for the 24 GHz band. Although DirecTV raises concerns that it will not be able  jJto share the 24 GHz spectrum with DEMS, the DEMS licensees and DirecTV have both  X 3 jsubmitted technical analyses indicating that sharing should be feasible.q" ܉ {O| " ԍXjSee DirecTV's "Technical Response to Teligent DEMS/BSS Interference Analysis and Proposed Solution,"   dated August 27, 1997, submitted with ex parte filing; letter dated from Antoinette Cook Bush and Jay L.   Birnbaum to John P. Janka and James H. Barker re "Analysis of DEMS/BSS Interference in the 25.0525.25 GHz Band" September 23, 1997.(# Sharing by licensees  j7of DEMS facilities and BSS "gateway" feederlinks of the kind proposed by DirecTV should be  jpossible. Because the gateway facilities are few, not ubiquitously deployed, and need not be  jlocated near major population centers, it should be possible to design the facilities to minimize  jinterference to fixed services operating on the same frequencies. Thus, the allocation of 24 GHz  j}spectrum to DEMS licensees does not necessarily foreclose implementation of DirecTV's  j{proposal. Although the DEMS licensees and DirecTV differ on the precise terms of the sharing  jand both FS and potential BSS operators may face system design constraints, these technical  XK3issues can be addressed in appropriate future proceedings.  X43 j  X3jE.` ` Auction Requirement  X3  X3 ] j58.` ` BellSouth argues that under Section 309 (j) of the Act, the Commission should  jhave assigned DEMS licensees the same amount of spectrum in the 24 GHz band that they were  jHassigned at 18 GHz, and conducted a competitive bidding procedure for the additional 24 GHz  X3 jspectrum.r܉ yO "  ԍXjBellSouth petition at 19. BellSouth does not indicate whether it believes that the 24 GHz spectrum should have been auctioned only for DEMS use or for other services as well.(# Similarly, WebCel asserts that if DEMS operations at 24 GHz require additional  jkspectrum, the Relocation Order should have addressed whether requiring DEMS licensees to  X|3 jcompete for that spectrum in an auction is "warranted or mandated under Section 309(j)."Os| ܉ yO7""ԍXjWebCel petition at 18.(#O The  jDEMS licensees respond that they are incumbent licensees and applicants, not new entrants who  XN3may be required to obtain spectrum in an auction.`tN܉ yO%"ԍXjDEMS Licensee's joint opposition at 27.(#` "7* t,[([(,,"Ԍ X3 ] j59.` ` The Commission modified the licenses previously granted to DEMS licensees  X3 jpursuant to Section 316 of the Act. As discussed above,_u܉ {Ob"ԍXj See Section III.C. supra.(#_ it assigned DEMS licensees only  jenough spectrum in the 24 GHz band to permit them to replicate their operations in that band  jusing similar facilities, transmission rates, and power to achieve the same capacity and reliability,  jgiven the different propagation characteristics in the two frequency bands. Because its actions  X3 jwere license modifications under authority of Section 316, and did not involve the grant of initial  jlicenses, the Commission was not authorized under Section 309(j) of the Act to use auction  j%procedures. Those auction procedures may only be used to select from among mutually exclusive  XH3 japplications for initial licenses.vzHZ܉ yOS "  ԍXjAt the time of the Relocation Order, Section 309 (j) of the Communications Act stated: "If mutually  {O "  exclusive applications are accepted for filing for any initial license or construction permit which will involve   [a use of the electromagnetic spectrum . . . then the Commission shall have the authority . . . to grant such   \license or permit to a qualified applicant through the use of a system of competitive bidding . . . ." 47   U.S.C.  309 (j) (emphasis added). Section 309 was recently amended to require, rather than authorize, the   use of competitive bidding for certain initial licenses. Because auction procedures still apply only to initial licenses, that change in the statute does not affect our decision.(#Ɩ Accordingly, petitioners' reliance on Section 309(j) of the Act is misplaced.  X 3jF.` ` De Facto Monopoly  X 3 ] j60.` ` MWCA asserts that the Relocation Order reduces the number of available DEMS  j}channels by 50 percent from 10 to five, resulting in a de facto monopoly over all available  X 3 jDEMS spectrum.Mw ܉ yO"ԍXjMWCA petition at 15.(#M MWCA argues that the Commission should have considered this impact on  jlcompetition in a rulemaking proceeding. The DEMS licensees counter that nothing in the  Xy3 W Relocation Order changes the fundamental character of DEMS.Zxy, ܉ yOV"ԍXjDEMS licensees' opposition at 34.(#Z We agree. MWCA's assertion  W that there were ten channels available for commercial DEMS in the 18 GHz band is incorrect.  W [In fact, there were only five transmit/receive DEMS channels available for assignment for  X43 W commercial pointtomultipoint transmission at 18 GHzgy4 ܉ {O"ԍXjSee 47 C.F.R.  101.505 (1996).(#g and there are five at 24 GHz. The  W ICommission's actions in the Relocation Order simply changed the frequency bands in which  W {DEMS operators operate. Thus, there is no basis for MWCA's claim that the Relocation Order altered the competitive status quo.  X3 IV. OTHER MATTERS Đ>K  X3  mMp61.` ` At the time of the Relocation Order, the only operations in the 24 GHz band in  W 'the United States were two radionavigation radar facilities operated by the Federal Aviation"|N y,[([(,,"  X3 W Administration.Uz܉ yOy"ԍXjRelocation Order at  15.(#U The facilities, located near Washington, D.C. and Newark, New Jersey, were  W }scheduled to be decommissioned January 1, 1998 and January 1, 2000, respectively. The  W iRelocation Order added U.S. Footnote US341 to the U.S. Table of Allocations to protect the FAA  X3 W operation in these two areas until decommissioning.w{X܉ {O"ԍXjSee Relocation Order at Appendix A: Final Rules, Part 2.(#w Consistent with this schedule, the facility  W in Washington, D.C. has been decommissioned and the decommissioning date for the Newark,  W New Jersey station has been advanced. In order to accurately reflect the current status we amend US341 to state: Xp   p\XpNonGovernment operations in the 24.2524.45 GHz band must provide protection  p\to the FAA radionavigation radar facility at the Newark International Airport, New  p\OJersey, until the facility is decommissioned. The Newark radar facility is  p\scheduled to be decommissioned by January 1, 1998. Protection will be afforded in accordance with criteria developed by the NTIA and FCC.   X 3>  X 3 V. CONCLUSION Đ>K  X3 mp62.` ` We have carefully and comprehensively considered the arguments presented by the  W Petitioners and find them to be unpersuasive. Consequently, we deny the petitions for  W reconsideration and partial reconsideration of the Relocation Order and the petitions for  W :reconsideration and applications for review of the Modification Order. We affirm the  W Commission's decision relocating DEMS from the 18 GHz band to the 24 GHz band based upon  W the requests made by NTIA on behalf of the Department of Defense and the Commission's  X3objective of maintaining DEMS on a uniform nationwide frequency band. >  X3WV. ORDERING CLAUSES Đ>K  X3 mp63.` ` Accordingly, IT IS ORDERED that the Petitions for Reconsideration of WebCel  W Communications, Inc., DirecTV Enterprises, Inc. and BellSouth Corporation of the March 14, 1997 Relocation Order ARE DENIED.  XN3 mLp64.` ` IT IS FURTHER ORDERED that the Petition for Partial Reconsideration filed by the Millimeter Wave Carrier Association, Inc. IS DENIED. p  X 3 mp65.` ` IT IS FURTHER ORDERED that the Petitions for Reconsideration of DirecTV  W Enterprises, Inc. and Bellsouth Corporation of the June 24, 1997 Modification Order ARE DENIED.  X!3 mp66.` ` IT IS FURTHER ORDERED that the Applications for Review of WebCel  W Communications, Inc., and Millimeter Wave Carrier Association, Inc., of the June 24, 1997 Modification Order ARE DENIED."#{,[([(,,&"Ԍ X3 m ęp67.` ` IT IS FURTHER ORDERED that the Joint Motion for Leave to File Surreply of  W jDigital Services Corporation, Microwave Services Inc. and Teligent, L.L.C., ET Docket No. 97 W G99, IS GRANTED and that WebCel Communications, Inc., Opposition to Joint Motion for Leave to File Surreply, ET Docket No. 9799, IS DENIED.  X3 mp68.` ` IT IS FURTHER ORDERED that the Motion of WinStar Communications, Inc. to withdraw its Petition for Clarification and its Reply IS GRANTED.  XH3 mnp69.` ` IT IS FURTHER ORDERED that Teledesic Corporation's request to withdraw its Petition to Deny and Determine Status of Licenses, File No. 9607682 et. al., IS GRANTED.  X 3 mp70.` ` IT IS FURTHER ORDERED that the Motions for Expedited Resolution filed by  W Millimeter Wave Carrier Association, Inc. and WebCel Communications, Inc., ET Docket No. 9799, ARE DISMISSED.  X 3 mp71.` ` IT IS FURTHER ORDERED that the U.S. Table of Allocations footnote US341 is amended as discussed above. p` `  FEDERAL COMMUNICATIONS COMMISSION p` `  Magalie Roman Salas  X3p` `  Secretary+Qppw "{,[([(,,"  X3 APPENDIX A Đ>K  X3>  X3t BANDWIDTH REQUIRED AT 24 GHz VERSUS REQUIREMENT AT 18 GHZlV In order to provide equivalent performance at 24 GHz as at 18 GHz without significant increase in equipment or system cost, a number of methods can be combined with presently available equipment to minimize equipment changes to those required only by the change in frequency. The need to overcome the additional signal degradation due to increased rain attenuation at 24 GHz leads to a different operational strategy than that used in the 18GHz band. The main operational differences in this strategy are twofold: 1) a change in modulation scheme to one which is more robust but consequently requires additional bandwidth; and 2) a change in channel sharing techniques which requires less total transmitter power but again requires additional bandwidth.  X 3A.` ` ADDITIONAL LOSSES AT THE HIGHER FREQUENCY BAND The main difference between the 18 and 24 GHz bands lies in the propagation effects. There are three main causes of reduced performance at the higher frequency band as summarized below:  X3X` hp x (#%'0*,.8135@8:1.0"F0.35q Z  ""  2.843.75 km " 18.8 "*825.9   FBA & 16TCM " 2.59 "F0.67Z    ""  3.754.81 km " 28.5 "*839.2  FBA & QPSK " 7.77 "F3.05    X 3 (#  X\ 3 Total: 4.07