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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of FWCC Request for Declaratory Ruling on Partial-Band Licensing of Earth Stations in the Fixed-Satellite Service That Share Terrestrial Spectrum FWCC Petition for Rulemaking to Set Loading Standards for Earth Stations In the Fixed-Satellite Service that Share Terrestrial Spectrum Onsat Petition for Declaratory Order that Blanket Licensing Pursuant to Rule 25.115 (c) is Available for Very Small Aperture Terminal Satellite Network Operations at C-Band Onsat Petition for Waiver of Rule 25.212(d) to the Extent Necessary to Permit Routine Licensing of 3.7 Meter Transmit and Receive Stations at C-Band Ex parte Letter Concerning Deployment of Geostationary Orbit FSS Earth Stations in the Shared Portion of the Ka-band ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) IB Docket No. 00-203 RM-9649 SAT-PDR-19990910-00091 NOTICE OF PROPOSED RULEMAKING Adopted: October 13, 2000 Released: October 24, 2000 Comment Date: [45 days following publication in the Federal Register] Reply Comment Date: [75 days following publication in the Federal Register] By the Commission: Commissioner Furchtgott-Roth issuing a statement TABLE OF CONTENTS Paragraph I. INTRODUCTION 1 II. EXECUTIVE SUMMARY 4 III. BACKGROUND OF FWCC AND ONSAT PETITIONS 16 A IV. DISCUSSION OF FWCC PROPOSALS 25 1. General Considerations 26 2. Demonstrating "Actual Need" 32 3. Demonstrating "Use" 45 4. Interference Coordination 62 V. DISCUSSION OF ONSAT PROPOSAL 81 1. General Considerations 84 2. Regulatory and Licensing Issues 87 3. Conclusion 97 VI. DISCUSSION OF HUGHES PROPOSAL 98 VII. PROCEDURAL MATTERS 100 VIII. ORDERING CLAUSES 108 Appendix A: Comments in FWCC Proceeding Appendix B: Comments in Onsat Proceeding Appendix C: Proposed Rules Appendix D: Initial Regulatory Flexibility Analysis I.INTRODUCTION 1. The Commission herein considers a series of filings concerning the application of our Part 25 rules to Fixed-Satellite Service (FSS) earth stations in bands shared on a primary basis with the terrestrial Fixed Service (FS). The filings of Onsat Network Communications, Inc. (Onsat) relate specifically to operations in the C-band. The Hughes filing relates specifically to operations in the Ka-band. The Fixed Wireless Communications Coalition (FWCC) petitions for a declaratory ruling regarding partial-band licensing of FSS earth stations and a rulemaking to amend Part 25 of the Commission's Rules to set loading requirements. Onsat petitions for a declaratory order that our Part 25 rules permit the licensing, under a single authorization, of small aperture terminal satellite earth station networks in the C-band. Hughes seeks consideration of its proposal to deploy geostationary orbit FSS earth stations in the shared portion of the Ka-band. We defer taking action on Onsat's petition for waiver of Section 25.212(d) regarding routine licensing of 3.7 meter transmit and receive earth stations at C-band. 2. In response to the FWCC filings, we hereby deny FWCC's request for a declaratory ruling requiring partial-band licensing of FSS earth stations. We propose, however, to adopt rules directed at addressing FWCC's concerns about effective and equitable use of spectrum in bands shared by the FS and FSS. In response to the Onsat filing, we deny Onsat's petition for declaratory order, but propose to amend our rules to permit the licensing, under a single authorization and with prior coordination, of a limited class of small aperture terminal earth station networks in the C-band to communicate with geostationary satellites. We will issue a separate licensing decision on the specific application for the Onsat system that Onsat filed several months after its Petition for Declaratory Order. We believe that these proposed rules will promote more efficient and equitable use of spectrum in bands shared by the FS and FSS. We also believe the proposal contemplated by this Notice, to permit the licensing of small aperture terminal earth station networks in the C-band, under a single authorization and with prior coordination, will provide for rapid delivery of earth station services, including broadband access, to rural Americans. 3. We seek comment on the recent ex parte pleading filed by Hughes in the 18 GHz Proceeding, concerning the proposed deployment of earth stations for geostationary satellite orbit (GSO) FSS systems in the shared portion of the Ka-band without individual site-by-site licensing. . We also invite alternative proposals to achieve the objectives of the Hughes proposal, within the scope and overall objectives of this proceeding. IV.EXECUTIVE SUMMARY 5. The FWCC Petitions. On May 5, 1999, FWCC filed a Request for Declaratory Ruling and Petition for Rulemaking (together, "FWCC Petitions") asking the Commission to impose various conditions on FSS earth stations in bands that are shared on a co-primary basis with FS operations. FWCC states that its proposals seek to maximize efficient use of the radio spectrum for both satellite and point-to-point terrestrial fixed operations. 6. FWCC avers that, while Parts 25 and 101 of the Commission's Rules provide for sharing on a co-primary basis in certain radio spectrum bands by the FSS and FS, in reality sharing has not occurred on an equitable basis. Rather, FWCC contends that, in actual practice, band sharing has been on terms disadvantageous to the FS. Thus, FWCC requests a declaratory ruling that would require FSS operators to demonstrate "actual need" for the spectrum requested at the time of licensing. Specifically, FWCC proposes that the Commission change its policy of authorizing earth stations to use the entire pertinent frequency bands and instead require that an FSS earth station using spectrum shared with point-to-point terrestrial services be licensed to use no more than twice the amount of spectrum for which it is able to demonstrate "actual need." FWCC also petitions, pursuant to Section 1.401 of the Commission's Rules, for amendments to Part 25 of the Commission's Rules that would require FSS earth stations licensed for more than minimal amounts of spectrum shared with FS operators to meet minimum loading standards. Further, FWCC proposes to require all FSS earth stations to accept interference from new terrestrial facilities on the same basis as they accept any interference in the initial coordination. FWCC states that the objective of these rule changes would be the adoption of spectrum management standards that would achieve in practice the "co-equal" sharing specified in Parts 25 and 101 of the Commission's Rules. 7. Numerous satellite and earth station licensees, users of these services, and industry associations representing the satellite industry oppose the FWCC Petitions. The Fixed Point-to- Point Section of the Wireless Communications Division of the Telecommunications Industry Association (TIA FS/WCD) filed reply comments supporting FWCC's requests. Appendix A lists the entities commenting in this proceeding. 8. Upon review of the record, we conclude that FWCC raises issues meriting further consideration. We propose specific rules to address the concerns of the Fixed Service community, and we seek comment as to whether the evolving requirements of both satellite and terrestrial systems necessitate a further revision of our current policies and rules to ensure efficient and equitable use of the radio spectrum in bands shared on a co-primary basis by the FSS and FS. We seek comment on the extent of the FS and FSS sharing problem and propose rules on the issues of loading and interference coordination. On the issue of demonstrating actual need, we deny FWCC's request for a declaratory ruling and its parallel request to amend Section 25.130 to limit the amount of spectrum the Commission would license to FSS earth stations to no more than twice the amount of spectrum for which the licensee has demonstrated "actual need." We do, however, incorporate into the proposed rules the related concept of a "demonstrated use" requirement triggered by the denial by an FSS operator of an FS applicant's request to coordinate spectrum. We believe that this proposal is a more effective and equitable approach for addressing the concerns FWCC has raised in its pleadings. 9. In particular, we propose to amend Section 25.203 to require an FSS earth station that has been licensed to operate in C- or Ku-band shared frequencies for 24 months or longer to demonstrate, in response to the denial of a request of an FS applicant to coordinate spectrum, that the FSS earth station denying coordination is using, has recently used, or has imminent plans to use the requested spectrum. If the FSS earth station licensee cannot make such a demonstration during the coordination, then the FS station may be successfully coordinated and the FSS earth station must not cause unacceptable interference to, nor is it protected from interference from, the FS station on that spectrum in the future. We propose to exempt from the rule those FSS earth stations that are licensed for 40 MHz or less of bandwidth in each direction. At the same time, we propose to amend Section 101.141 to shorten the loading period for FS licensees in the C- and Ku-bands from 30 to 24 months. Modification of the Part 25 and 101 rules in this manner would give both the FSS and FS licensees a comparable period of time in which to put their spectrum to use before it is susceptible to re-licensing to others. We ask for comment as to whether these Part 25 and 101 rules should apply in other bands where the FSS and FS share spectrum on a co- primary basis. 10. We also propose to amend Parts 25 and 101 to require that an FSS earth station or FS licensee accepting a particular interference analysis model in order to coordinate successfully the location of its station must accept use of the same model in subsequent coordinations. We propose that these rule changes to Parts 25 and 101 would apply across all frequency bands where the services share a primary service allocation. Further, we propose to amend Part 25 such that, if a C- or Ku-band FSS earth station licensee, during coordination, accepts a level of interference along a set of azimuths recognized to be below normally permissible interference objectives, the licensee may not subsequently claim protection from interference from future FS applicants on those same frequencies within that same set of azimuths. We ask for comment as to whether this Part 25 rule should apply at other bands where the FS and FSS share frequencies on a co-primary basis. See infra Appendix C and Section IV. We further propose that these amended rules would apply to all FSS earth stations and FS stations upon the effective date of the Report and Order in this proceeding. 11. The Onsat Petition. On September 10, 1999, Onsat filed a Petition for Declaratory Order that Section 25.115(c) of the Commission's Rules permits the licensing of Very Small Aperture Terminal (VSAT) satellite earth station networks, under a single authorization and with prior coordination, in the C-band. In the same filing, Onsat petitioned for a waiver to permit routine licensing of its proposed earth stations, which would have an antenna diameter smaller than those allowed to be routinely licensed under our existing rules. Onsat advocates such licensing of technically identical remote earth station terminals to permit operators to configure their C-band systems quickly without the expense and administrative effort involved in licensing individual earth stations. In support of its petition, Onsat contends that its proposal would further Commission objectives with regard to universal service and deregulation. 12. In its petition Onsat argues that small aperture terminal earth station technology is less expensive and more flexible than are other types of satellite technology, and that these types of earth stations can be coordinated easily to prevent interference with terrestrial and satellite operations in the C-band. Onsat proposes that, if granted a license for an earth station system consisting of a hub station and a specified number of technically identical remote earth stations, it would submit to the Commission a frequency coordination report for each station before placing it into operation. 13. FWCC initially opposed Onsat's petition on the ground that Onsat's proposed service would further exacerbate FS/FSS frequency coordination difficulties in the C-band, incorporating by reference a copy of its Petitions and arguing that the Commission should not act on Onsat's requests unless and until we acted favorably on FWCC's Petitions. FWCC later withdrew its opposition after Onsat agreed to modify its petition to limit both the amount of C-band spectrum its proposed system would use and the number of geostationary orbital positions toward which its remote earth stations would be directed. 14. We deny Onsat's petition for a declaratory order, but hereby propose rules that include the elements of the Onsat proposal. One of the Commission's chief goals is to foster wide access to electronic commerce and data through the Internet and other networks, particularly in underserved rural areas. We have sought to ensure that multiple service providers bring broadband access to all Americans. The service proposed by Onsat is an innovative means for bringing high-speed data services to rural Americans much more rapidly than might be accomplished by wireline or terrestrial wireless service. We propose to amend Part 25 of the Commission's Rules to allow the licensing, under a single authorization and with prior coordination, of C-band small aperture terminal earth station networks, which we will term "CSATs" to distinguish these small aperture terminal earth stations from the VSAT operations in the Ku-band. 15. At the same time, we note the concerns of the fixed wireless community that the C-band is congested and that authorization of CSATs could add to coordination difficulties between the FS and FSS. We therefore seek comment on those aspects of CSAT service that affect the concerns and issues raised by FWCC. We tentatively conclude that the limitations proposed by Onsat in its modified petition are appropriate limitations that can be applied generally to other prospective CSAT applicants. Thus, we propose to limit CSAT networks to operations using no more than 20 MHz of C-band spectrum, and to limit their flexibility to three satellite locations within the visible geostationary satellite arc. We further request comment on whether our rules should limit this C-band service to rural areas, or, alternatively, whether our rules should permit CSAT network service wherever frequency coordination allows the installation of earth stations. Although certain characteristics of the proposed Onsat system are discussed in this NPRM, our focus is on generally-applicable policies, procedures and rules for the operation of this type of small aperture terminal system in the C-band. Because Onsat only recently filed an application to provide this service, we will decide the issue of whether to grant the request for the proposed Onsat system in a separate licensing order. 16. The Hughes Ex Parte Letter. We invite specific comment on a recent ex parte pleading filed by Hughes Network Systems (Hughes) in the 18 GHz Proceeding proposing the deployment, without individual site-by-site licensing, of geostationary satellite orbit FSS earth stations in the shared portion of the Ka-band. XVII.BACKGROUND 18. The terrestrial fixed service (FS) and fixed-satellite service (FSS) share frequencies on a co-primary basis in the C-, Ku- and Ka-bands. These are important bands for both services. The spectrum above 2 GHz is fertile ground for advanced telecommunications applications. As Onsat's petition demonstrates, new service providers propose to use this spectrum to advance Commission policies like the deployment of communications services to tribal lands and other unserved areas. The instant FWCC and Onsat petitions, and the comments filed in response to them, concern the use of this shared spectrum by FSS earth stations and the impact of this use on the terrestrial FS. 19. Current Policies. In these shared bands, the Commission requires FS and FSS applicants to coordinate their proposed frequency use prior to filing their license applications with the Commission. In the FSS, this obligation is reflected in Section 25.203. In frequency bands shared with equal rights between terrestrial and space services, earth station applicants, to the extent practicable, must select sites and frequencies in areas where the surrounding terrain and existing frequency use are such as to minimize the possibility of harmful interference between the sharing services. An earth station applicant, prior to filing with the Commission, must coordinate its proposed frequency usage with existing terrestrial users and with applicants that have filed for terrestrial station authorizations. The FSS earth station applicant must perform an interference analysis for each terrestrial station for which the Commission has granted a license or construction permit or for which the Commission has accepted an application for filing, which is, or is to be, operated in a shared frequency band to be used by the proposed earth station and which is located within the great circle coordination distance contour(s) of the proposed earth station. 20. Part 101 has similar coordination requirements for the FS. In those bands shared with the satellite service, an FS applicant must ascertain in advance whether the station(s) involved lie within the great circle coordination distance contours of an existing earth station or one for which an application has been accepted for filing. The FS applicant must coordinate its proposal with each earth station operator or applicant and FS operator or applicant. For each potential interference path, the FS applicant must perform the computations required to determine that the expected level of interference to or from the terrestrial station does not exceed the maximum permissible interference power level. 21. The two services differ, however, in their approach to licensing. Part 25 provides for full-band licensing of FSS earth stations. In the C-band, for example, an earth station applicant may apply to operate within the entire allocated 1000 MHz of C-band spectrum. This full-band policy is intended to provide earth stations the flexibility to change the communication paths to other satellite locations and transponder use assignments to meet operational requirements. Not all frequencies on each satellite are available for the specific earth station application because: 1) the geostationary satellites must also complete coordination with adjacent satellite networks and usually must accept constraints on the use of frequencies; and 2) the frequencies for that particular application may already be used by another earth station network. Part 101, however, does not contemplate full-band licensing for terrestrial FS facilities. Rather, the Commission has established maximum bandwidth channel plans that are set out in the rules (for example, 20 MHz at 3700-4200 MHz, 30 MHz at 5925-6425 MHz, 220 MHz at 17.7-18.14 GHz, 850 MHz at 27.5-28.35 GHz). Applicants may apply for channels of maximum bandwidth, although the Commission reserves the right to issue a license for less than the maximum bandwidth if it determines that less bandwidth would be sufficient to support an applicant's intended communications. During the coordination process that precedes the filing of an FS application, the FS applicant also may seek to coordinate channels for future growth. The private-sector frequency search companies performing frequency studies for FS applicants will "reserve," or protect, these coordinated growth channels in the databases of existing systems for the applicable geographic area. At some future date, when the FS operator needs these reserved channels, it will file applications with the Commission to be licensed on those channels. 22. Thus, FSS earth station and FS facility operators are not similarly situated with regard to the amount of frequency they coordinate prior to filing their license applications with the Commission. Moreover, Part 101 requires that any frequency reserved for future use must be released for use by another licensee, permittee or applicant upon a showing by the latter that it requires an additional frequency and cannot coordinate one that is not reserved for future use. Thus, a new full-band FSS earth station may coordinate with an existing FS operator and agree to accept interference on the active channels licensed to the FS operator in order to successfully coordinate the location of the earth station, and at the same time notify the FS operator that it requires use of the reserved growth channels for its FSS operations. Because the FS operator is not licensed to operate on the reserved channels, it has no recourse but to accept the use of these channels by the FSS earth station. 23. Growing Demand for Above-2 GHz Spectrum. Spectrum above 2 GHz, particularly below 20 GHz, is becoming increasingly encumbered, most significantly in urban areas. For example, the FSS and FS share spectrum at 3700-4200 MHz, one of the replacement bands for terrestrial fixed services vacating the 2 GHz band to make way for emerging technologies. The relocation of 2 GHz microwave licensees into the 6 GHz and 11 GHz bands has further burdened this spectrum. 24. Although spectrum above 2 GHz is becoming scarcer, demand for it is growing. The growing scarcity of spectrum and the respective growth in demand for both the FSS and FS have heightened questions about FSS/FS systems coordination in various shared bands and have led incumbent users in one service to oppose allocating and adding new spectrum bands to the list of frequency bands currently available to the other service. For example, in the C-band, incumbent users at 6700-7075 MHz have opposed allocating the band for NGSO MSS feeder downlinks, voicing concern that this will constrain future growth of terrestrial services. FS users ask the Commission to adopt specific coordination criteria prohibiting NGSO MSS feeder link systems from interfering with existing or coordinated FS systems. 25. Similarly, in the Ku-band, terrestrial fixed service operators have suggested limitations on NGSO FSS operators like those proposed by FWCC in its instant petition. These operators propose that FS operators be required to coordinate only over the azimuths actually used by the NGSO FSS gateway, permitting subsequent coordinations to benefit from prior coordination agreements with higher-than-desired interference objectives. Likewise, in the Ka-band, FS operators have suggested that terrestrial fixed service and FSS are not compatible services and should not be required to share the same frequency block. 26. FS/FSS Negotiated Agreements. In some instances, FS and FSS operators have reached negotiated agreements to resolve their differences over coordination and use of spectrum for specific facilities in shared bands. For example, FWCC withdrew its opposition to the grant of Onsat's instant petition after Onsat agreed to coordinate and limit its system use to only 20 MHz of spectrum at three different geostationary orbital locations. As discussed, infra Section V, this Notice proposes to adopt the parameters of the Onsat/FWCC agreement as a limit on spectrum use for CSAT networks. XXVII.discussion of fwcc proposals 28. FWCC's petitions raise the issue of whether the FCC's current policies, as set out in Parts 25 and 101 of the Commission's Rules, ensure efficient and equitable use of spectrum in bands shared on a co-primary basis by the terrestrial FS and the FSS. The services provided by the FS and FSS are important to U.S. consumers and businesses, and consumers will benefit if these providers thrive and grow in innovative ways. In the past, FS and FSS operators have experienced some difficulties in coordinating the siting or modification of facilities. Additionally, FS operators have expressed concern about the future course of coordination and whether existing coordination methods will be sufficient to satisfy point-to-point microwave requirements given the growth in demand for above-2 GHz spectrum. At the same time, individual FS and FSS operators have achieved satisfactory coordination results through negotiated agreements, and these agreements may prove instructive as we assess whether to amend our current policies. In this Notice, we propose rule changes designed to further efficient and equitable use of spectrum in these shared FS/FSS frequency bands. 1. General Considerations 29. Because the radio spectrum is a limited resource, as a general principle, all Commission licensees should use spectrum in the most efficient manner possible. This is particularly true where different services share the same radio spectrum resource and inefficient use by one service could foreclose or severely limit use by another service. In this regard, Parts 25 and 101 recognize the importance of cooperation between the FSS and FS in the coordination of their respective facilities in shared bands. 30. FWCC asserts that, notwithstanding these rules, in practice satellite-terrestrial sharing of the spectrum has not been accomplished on an equitable or equivalent basis. FWCC argues that satellite earth station operators have a preference in access to spectrum because of a combination of two factors: 1) the Commission routinely licenses an earth station for the entire allocated satellite band while terrestrial operators generally are both limited to frequencies "actually needed" and subject to stringent spectrum efficiency and loading requirements; and 2) earth stations routinely are licensed for all azimuths at all elevations and can deny coordination to terrestrial operators on that basis. Thus, FWCC contends that earth stations are permitted to "warehouse" huge amounts of unused bandwidth over unlimited azimuths, even if the spectrum is needed by terrestrial operators. 31. Opposing parties disagree with FWCC's allegation that satellite earth station operators are warehousing spectrum and have no incentive to operate efficiently. SIA, for example, observes that the Commission has placed technical limitations on both services to ensure efficient inter-service sharing, noting that the fixed service has a traffic loading requirement while the geostationary FSS has a two degree spacing standard. GE Americom adds that because transponder rates must be set to recover the huge sunk costs of a spacecraft, users of satellite service have a strong incentive to use bandwidth efficiently. 32. After weighing the arguments raised by Petitioner and commenters, we propose specific rules, see infra, to address the concerns of the Fixed Service community. We also seek comment as to whether evolving requirements of both satellite and terrestrial systems necessitate a further revision of our current policies and rules. For example, has the proliferation of ubiquitously- deployed satellite user terminals and point-to-multipoint fixed stations in certain frequency bands as well as the implementation of NGSO satellite systems affected the conduct of inter-service coordination? If so, would modification of the Commission's rules, in addition to those we propose in this Notice, or changes to the procedures used by frequency coordinators, help to ensure that the principles of spectrum efficiency and equity among band-sharers are more fully realized in bands shared by the FS and FSS? We invite comment on these general questions. 33. We also seek comment on the extent of the FS and FSS sharing problem. We invite licensees, commercial frequency coordinators and others with experience in coordinating FSS earth station and FS station facilities in shared bands to comment on the breadth and nature of sharing difficulties. We ask for comment on the numbers of cases in which the FS and FSS have experienced sharing difficulties and whether the sharing difficulties have occurred in particular band segments and under which specific circumstances. For example, in its reply comments, FWCC argues that "an earth station using one transponder on one satellite should not be able to block an FS applicant over the entire band." We ask for specific comment on how frequently this blocking occurs, and invite comment on whether the sharing difficulties experienced by FS or FSS applicants and licensees are correlated to particular types of FSS earth stations or FS stations. We also seek comment on how our proposal, in a recent Part 101 NPRM, to consider auctioning of geographic area licenses for fixed microwave facilities would affect the nature and extent of the current FS and FSS sharing problem. We specifically invite comment on whether the CSAT licensing we now propose, see infra Section V, would work in light of the earlier proposal to auction FS licenses in the C-band on a geographic area basis, as opposed to the current site-by- site basis. Further, we seek comment on whether geographic area licensing of FS facilities by means of auction leads to any conflict with the current licensing of C-band earth stations, or with the proposed licensing of CSATs, and how the C-band licensing of geographic area FS facilities and FSS earth stations could be fashioned to work compatibly? 34. We propose that the new Section 25.203(e)(2) and Section 101.103(d)(1) rules on interference analysis models apply across all bands where the FS and FSS share spectrum on a co- primary basis. The remaining rule changes we propose in this Notice, see infra, concerning coordination and sharing between FSS earth stations and FS stations, would apply in the C- and Ku-bands where the two services share a primary service allocation, and we ask whether these rules also should apply in other bands. FWCC has identified three specific band pairs in the C-, Ku-, and Ka-bands where it particularly is concerned about FS access to co-shared spectrum. We recognize that differing FS and FSS applications within particular services may affect how the services share. For instance, some satellite bands are reserved for "feeder link" or "gateway" earth station use and others provide service links to user terminals. We have reserved one FSS band for international systems. We also have reserved bands for specific uses such as Mobile- Satellite Service or Broadcast-Satellite Service feeder links. We, therefore, ask for comment on whether there are reasons that the rules we are proposing in this Notice should be limited to particular frequency bands. We further propose that these amended rules apply to all FSS earth stations and FS stations upon the effective date of the Report and Order in this proceeding. 1. Demonstrating "Actual Need" 35. FWCC's Petitions. In its petitions, FWCC asserts, with respect to the spectrum conservation obligations of operators in the FS and FSS, that the Part 101 and Part 25 rules are asymmetrical, to the disadvantage of FS licensees and applicants. FWCC avers that whereas Part 101 requires point-to-point terrestrial operators to meet stringent requirements designed to ensure efficient use and loading of FS spectrum, Part 25 contains no specific provisions requiring earth station operators to "minimize spectrum usage." 36. FWCC states that, since at least 1967, the Commission has licensed earth stations to use the entire allocated band without inquiring into the amount of traffic to be carried. It argues that the Commission's policy of imposing spectrum conservation obligations on terrestrial users but not on earth station operators unfairly burdens terrestrial systems. FWCC asks the Commission to affirm by declaratory ruling that an earth station in the FSS, using spectrum shared with terrestrial services, may be licensed and coordinated to use only twice the amount of bandwidth for which the applicant demonstrates "actual need at the time of licensing." Alternatively, FWCC asks the Commission to amend Section 25.130 to require an earth station applicant to specify and justify a priori the amount of bandwidth actually needed to deliver the services described in an application for initial authorization, major modification, or renewal. Under both its request for declaratory ruling and petition for rulemaking, FWCC further proposes that an earth station operator seeking additional bandwidth beyond what FWCC proposes to impose as the limitation in the earth station's license (that is, twice demonstrated need) must file to modify its license, subject to satisfactory frequency coordination with other users. 37. Oppositions. FSS licensees, users, and industry associations oppose FWCC's proposal to establish demonstrated need requirements for earth station applicants because they maintain that each earth station must have the ability to switch from one channel to another based on transponder availability on the satellite with which it desires to transmit at a given time. Further, they point out that FSS earth stations, particularly gateway/teleport earth stations, require full- band flexibility to accommodate changing space segment configurations and to meet existing and new market demands. HBO states that in many cases the particular satellite and frequency that must be used are beyond the control of the earth station operator. Opposing parties also note that a satellite transponder failure may require a particular earth station to switch to another transponder operating at a different frequency or on another geostationary satellite. 38. Commenters further state that NGSO satellite system earth stations must be capable of operating over the entire allocated bandwidth so that they can switch to channels that are available on satellites in view within the NGSO constellation, to avoid both interference to other NGSO systems and intrasystem interference. SkyBridge avers that although an earth station operator may not use all available bandwidth at the start of service, it may augment its use as its business grows and must be coordinated and licensed from the start for all of the bandwidth ultimately needed by the projected traffic. SkyBridge states that all such bands used by an earth station are needed. 39. Further, with respect to FWCC's proposal to use certifications of transponder contracts or minutes of usage per day, commenters contend that there are no general criteria for bandwidth usage that could be applied across the board to all satellite systems. Finally, commenters suggest that the rules proposed by FWCC would reverse the Commission's clear trend toward simplification of licensing and decreased reporting requirements. 40. FWCC Reply Comments. In its reply comments, FWCC clarifies that it does not seek the adoption of identical rules for the FS and the FSS, but rather rules that would impose equitable requirements on both services. FWCC does not propose an FSS bits per Hertz efficiency standard, and does not believe such an efficiency standard would be necessary for equitable FSS/FS sharing. Nor does FWCC seek the adoption of any measures that would infringe on the legitimate needs of earth station operators for flexible use of the spectrum. FWCC posits, however, that its "actual need" proposal would promote efficient use of shared bands by allowing FS facilities access to frequencies that earth stations now keep idle. 41. Discussion. We acknowledge the concerns of the Fixed Service community that FS applicants and licensees are subject to specific efficiency standards while FSS earth station operators in the same band are not subject to parallel or equivalent requirements. At the same time, we recognize that the two services have architectural and operational differences. The FS involves point-to-point or point-to-multipoint facilities that are authorized to communicate on discrete paths at specific frequencies. FSS earth stations, on the other hand, may not use the same frequencies, at the same angles and azimuths, over long periods of time. Rather, many FSS earth stations regularly change their orientations and frequencies to transmit to or receive information from a number of satellites and satellite transponders. Spectrum use by FSS earth stations also must be coordinated in paired bands, one band for receive frequencies and a second band for transmit frequencies. 42. Because of these differences, we have taken different approaches to ensuring spectrum efficiency in the respective services. As commenters observe, we have placed technical limits on both services to ensure efficient use of the spectrum. For example, while our Part 101 rules for the FS service employ a variety of payload and loading requirements, earth station operators, by default, must conform to the technical requirements for satellite space stations, in order to gain access to geostationary satellite orbit FSS satellites serving the United States and abroad. Indeed, FWCC itself recognizes that the two services differ, and states that it is not so much concerned about the efficiency of spectrum actually used by FSS earth stations but rather is concerned with what it sees as the non-use of some of the spectrum licensed to satellite earth stations. Thus, FWCC has proposed, in its request for declaratory ruling and in its parallel proposal for a rule amendment, that we change our policy of authorizing earth stations to access the full allocated band and declare instead that we will authorize earth stations to use no more than twice the amount of spectrum "actually needed." 43. At this time, we do not believe it is necessary to change our policy of authorizing earth stations, subject to coordination with FS operators prior to licensing, to use the entire pertinent frequency bands. Our full-band licensing policy promotes important operational objectives in the FSS, in particular by providing earth station licensees the needed flexibility to change transponders or satellites on short notice, and without having to be re-licensed by the Commission, to meet changing operational requirements. As commenters observe, the potential transmission path for a satellite earth station can include any authorized space station within the portion of the geostationary satellite arc seen by the earth station. Many satellite earth stations employ multiple antennas and regularly communicate with a constantly changing mix of FSS satellites, both domestic and foreign. This type of operation requires access over a wide range of orbital arc and frequencies. These stations include commercial gateway and teleport facilities that are in the business of providing third parties access to satellite services. They also include private facilities such as those operated by HBO to transmit and receive programming. As HBO observes in its pleadings, the antennas at its Hauppauge facility regularly communicate with multiple satellites on an array of frequencies. In sum, our full-band licensing policy provides all earth station operators the ability to conform to the constraints placed on the satellite operators and the flexibility to change channels to access available transponder capacity within a satellite network and available capacity on other satellite networks. 44. Moreover, we believe that FWCC's proposal would be impractical to implement. To obtain documentation to make an up-front showing of "actual need," an FSS earth station applicant, before it submitted its application, would be required to enter into contracts with those satellite operators whose satellites it proposed to access. To conclude such contracts, the FSS earth station applicant first would need to identify the specific frequencies and to pay reservation fees for these frequencies to the applicable satellite operators to ensure that the applicant had access to the spectrum it needed, although at that time it would be unclear whether the applicant in fact could coordinate the reserved spectrum with affected FS station licensees and applicants. 45. For these reasons, we deny FWCC's instant request for declaratory ruling and its parallel request to amend Section 25.130 to limit an earth station licensee's spectrum usage to the amount of bandwidth it can demonstrate a priori that it "actually needs" to deliver the services described in an application for initial authorization, major modification or renewal. At the same time, we take notice of FWCC's concern that, in fact, not all FSS earth stations may be using the full licensed band, and we propose to address FWCC's concerns in a different manner. FWCC states that coordinating new or expanded FS operations, particularly in the 4 GHz band but also in other shared bands, has become increasingly difficult. FWCC also advises that, "We have no quarrel with any use of spectrum by any earth station. We object only to earth station privileges over unused spectrum." FWCC seeks a remedy to the spectrum shortage it says FS applicants and licensees are experiencing, but "without significantly burdening satellite operations." We believe that FWCC's "actual needs" rule would place an undue regulatory burden on FSS earth station applicants, and therefore propose to adopt a more targeted and less burdensome requirement to address FWCC's concern. 46. In order to justify FWCC's "actual needs" rule, FWCC points out that FSS earth stations can deny coordination of new or expanded FS stations even with respect to unused spectrum. We propose, as discussed below, to tailor a rule to address those instances where an FSS earth station denies a coordination request when the FSS earth station is not using and has no imminent plans to use -- the requested spectrum. Although we would expect many FSS earth stations, particularly teleports and other FSS earth stations that communicate with a number of different satellites and transponders, to have records demonstrating use across most if not all of the relevant band, this may not be the case in all instances where coordination is denied. In those cases where FSS earth stations have chosen not to exercise their ability to change channels to access available transponder capacity within a satellite network and available capacity on other satellite networks, but yet have denied coordination, we believe that they should be required to coordinate the requested FS use. 47. As discussed below, we therefore incorporate this related concept of "demonstrated use" in our proposal, see infra, to require an FSS earth station operator to demonstrate to the frequency coordinator, at the time an FS operator requests and is denied coordination, that the FSS earth station is using, or has imminent plans to use, the spectrum in question. We believe that this proposal and a separate, additional proposal on FSS/FS frequency coordination, see infra, will ensure that spectrum in bands shared by the FSS and FS is being used efficiently and will help to alleviate congestion concerns when coordinated spectrum is not being used by FSS earth stations. We tentatively conclude that these proposals are the most effective and targeted means of addressing the concern of the FS community regarding access to spectrum at the time of coordination, without imposing unnecessary regulatory constraints on either service. We invite commenters disagreeing with our tentative conclusion to submit comments on this point. In particular, we ask for comment as to why our proposals, see infra, to adopt both a "demonstrated use" showing at the time coordination is denied and a separate rule on frequency coordination, but not to adopt FWCC's "actual need" proposal, would not address adequately the concerns of the FS community. We invite commenters arguing that our proposals do not address adequately those concerns to propose alternative approaches that take into account the constraints under which an FSS earth station must operate when attempting both to secure spectrum on satellite networks and to meet coordination requirements for shared frequency bands. 1. Demonstrating "Use" 48. FWCC's Petitions. In its petitions, FWCC has also requested that the Commission amend its rules so that earth stations using spectrum shared with the fixed services would be required to meet minimum loading standards, which the FWCC believes would help to make more spectrum available for terrestrial use without impinging on earth station operators. FWCC notes that spectrum shortage has become a fact of life in many parts of the country and that the Commission is attempting to ease congestion in most of the fixed and mobile services by requiring licensees to meet reasonably accessible levels of loading and spectrum efficiency. Specifically, FWCC has asked that the following language be added to Part 25 of the Commission's rules: An earth station licensee in the Fixed Satellite Service, in bands shared with point- to-point terrestrial services, must certify within 30 months after issuance of an initial license, major modification, or renewal that it is loaded to 50% of its licensed bandwidth. A licensee that cannot make this certification by the required date must instead, within 30 days of that date, notify the Commission pursuant to Section 25.118 of a reduced range of operating frequencies whose total bandwidth is no more than twice the actual load, and must disseminate such notice to the public in a manner reasonably calculated to reach other users of the band. This paragraph does not apply to earth stations authorized for total bandwidth of 40 MHz or less in each direction. 49. FWCC notes that the first sentence of this provision would parallel the loading requirement applicable to terrestrial operations in the 4, 6, 10, and 11 GHz bands, operating at bandwidths of 10 MHz or greater. FWCC proposes the second sentence in lieu of outright cancellation of the earth station license for failure to load. The last sentence would provide an exemption for light users of the band. 50. Oppositions. Opposing parties object to loading standards for the same reasons that they oppose the "actual need" proposal. They argue that FSS loading rules are unnecessary because efficient loading of satellite carriers is inherent in satellite capacity economics. They state further that loading standards are unworkable, that loading data is commercially sensitive information, and that a loading standard would increase administrative and regulatory costs. 51. FWCC Reply Comments. In response, FWCC avers that loading standards do not raise policy issues separate from the demonstrated need proposal, but are merely an enforcement mechanism to prevent earth stations from routinely using only a small part of the spectrum they coordinate. FWCC's proposal would acknowledge intermittent use toward loading if it would also be counted toward demonstrated need. FWCC concurs with ATC and SkyBridge that loading standards make little sense for spread-spectrum systems, and that licensees should not be required to disclose actual loading data. 52. Discussion. We wish to craft the most direct and straightforward rules possible to achieve our goals, and we solicit comment on whether the proposed rules can be streamlined to facilitate compliance, enforcement, and transparency. We are particularly interested in comments on whether we need to define "use" or whether we should look to the totality of the circumstances. That is, if it is appropriate to define use with specificity, how should we define it? We also seek comment on whether the factors listed below should be a part of the rule, or simply a portion of our assessment. We defer defining "use" until the record on these various points is more complete. Although we do not propose to adopt a specific spectrum efficiency standard for FSS earth stations, we seek comment on whether the Commission should develop and apply such a standard for FSS earth stations, especially in frequency bands shared with other radio services 53. Commenters in their oppositions to the FWCC proposal for "loading" standards raise legitimate questions as to how such a concept could be applied to satellite earth stations, particularly if we attempt to apply a general standard to all types of earth stations. What they have not done, however, is challenge the principle that all users of the radio spectrum bear a responsibility to ensure that it is used in an efficient manner. We believe the principle of efficient use of spectrum shared between satellite earth stations and terrestrial fixed stations is in the public interest and should be pursued. 54. We support the concept that licensed spectrum should be used or successfully coordinated with other primary services that require use of the shared spectrum. As FWCC has pointed out, the radio spectrum is a limited resource that must be shared by a wide variety of services and types of users within each service. The Commission must ensure that this resource is used in the most efficient manner possible, consistent with meeting the needs of its licensees. In shared bands, an earth station licensee should not be able to block indefinitely access to spectrum the earth station is not using. 55. The concept of loading, as proposed by FWCC and as discussed in the comments and reply comments, has two distinct components. First, licensed spectrum should be used and not warehoused by any licensee or licensees, and, in shared bands, every attempt should be made to successfully coordinate with other primary users. Second, when spectrum is used, it should be used in an efficient manner. 56. We propose to address the first component in this Notice, by proposing, for the C- and Ku-bands shared between FSS earth stations and FS stations, to adopt a new coordination procedure to increase efficient and equitable use of these bands. This new procedure would be initiated by the frequency coordinator only if an FSS earth station licensee denies an FS station applicant's request to coordinate spectrum. Pursuant to this new procedure, we propose to require that an FSS earth station operator denying a coordination request certify to the frequency coordinator: 1) its current and recent actual use of the requested spectrum, by identifying the applicable satellite locations, transponder frequency bands, and the timeframes they were in use; and (2) any imminent use of the requested spectrum. The frequency coordinator would determine, in the first instance, whether the requested spectrum is in "use," or whether it is not in "use" and thus is available for re-licensing to the requesting party. If a dispute arises over the coordinator's determination that the FSS earth station should reduce its licensed spectrum to accommodate the FS station request, or, alternatively, over the coordinator's determination that the coordination request should be denied because the requested spectrum is in "use," the disputing party may request Commission review. In a Commission review, the frequency coordinator would provide the Commission with all relevant information from the attempted coordination that led to the dispute, and the Commission might require, as needed, that the FSS earth station licensee and FS applicant supplement this record. We request comment on whether this proposal would provide for the equity in co-frequency sharing that the FWCC seeks and whether it would achieve the Commission's goal of promoting spectrum efficiency in shared bands. We request comment on whether this showing by the FSS earth station licensee should receive confidential treatment by the Commission. 57. Once the new coordination procedure is triggered, we would propose to require the FSS earth station to demonstrate "use" of the requested spectrum to the frequency coordinator, as follows: 1) for recent use, by identifying the timeframes during which each satellite transponder frequency band was "used" within the past 24 months; 2) for current use, by identifying each satellite transponder frequency band in "use" at the time of the coordination request; and 3) for imminent use, by certifying the availability of some form of detailed information on planned "use," e.g., use to be initiated within the next six months and supported by contract(s) or other documentation. We ask for comment on a number of questions on the concept of "use" as it is applied in the context of FSS earth stations. In particular, we ask whether we should define "use" and how FSS earth station licensees could demonstrate "use?" For example: · Frequency Diversity: In the coordination and licensing process, how would the FCC and interested parties take into account the need of some FSS earth station operators for the flexibility to switch between different satellites or between multiple transponders on the same satellite? Would the routine or non-routine nature of the need for frequency diversity be relevant? Specifically, if the FSS earth station has a routine need to access multiple transponders or satellites, including multiple satellites in a non-geostationary orbit system, how would this operational requirement be factored into determining use? Similarly, would the presence at an FSS earth station of multiple antennas pointing at multiple and changing satellites be relevant? How would "routine" and "multiple" be defined? · Intermittent Use: If the spectrum licensed to an FSS earth station is not in use at all times, how much use would satisfy this criterion? Could factors such as total minutes of daily use be used to define use? In the context of a "wideband" data system, should a minimum threshold of data throughput be required to constitute use? If so, what should that minimum data throughput be? · Transponder Usage: In the context of an FSS earth station that varies its transponder usage over time, how often would a particular transponder (or even a portion of a transponder) be required to be active to be considered in use? · Future Use: Should the concept of use include contracts with the satellite operators for future use or to use certain transponders that could not be immediately brought into use due to international coordination difficulties or other circumstances such as satellite failure redundancy? What criteria should apply to determine whether an earth station licensee has imminent plans to use the spectrum in question? For example, should our definition of imminent use require a showing of firm financial commitments to lease satellite transponder time? · Space Segment Assignment: If the satellite frequency is assigned solely at the discretion of the space segment provider, would this factor be relevant in demonstrating use? · Equipment Failure: Could occasional, short-term events, coordination to use satellites known to be nearing the end of useful life, and planning as a precaution against transponder or satellite failure constitute factors in the demonstration of use? · NGSO/MSS Feeder Links: For non-geostationary satellite orbit Mobile-Satellite System feeder links or non-geostationary-orbit Fixed-Satellite System gateway earth stations, spectrum use is a function of the frequency reuse efficiencies realized in the bands used to serve the end user. For these stations, how should use be demonstrated, for example, in the 6525-6875 MHz band? · Balance of Current and Future: In the coordination process, how would "current" and "future" use be balanced in determining which spectrum should be considered in an FSS earth station/FS station coordination? 5. We propose that, if the FSS earth station denying coordination has been licensed for less than 24 months, it would be exempted from the new coordination procedure. This "initial loading period" would provide time for the FSS earth station to establish its business and build its customer base. At the same time, we propose to amend Section 101.141 to shorten the loading period for FS licensees in the C- and Ku-bands to 24 months. Currently, FS licensees in the C- and Ku-bands have 30 months from initial licensing in which to load their facilities to the required capacity. Modifications of the Part 25 and 101 rules in this manner would give both the FSS and FS licensees a comparable period of time in which to put their spectrum to use before it is susceptible to re-licensing to others. We request comment on whether this initial loading period should vary depending on the type of FSS earth station or FS station involved and on the rationale for any recommended differences in treatment. We also seek comment as to whether Section 101.141 and Section 25.203(e)(1) should be amended to include other bands shared by the FS and FSS, in addition to the C- and Ku-bands. 6. Finally, we note that FWCC suggests exempting FSS earth stations licensed for less than 40 MHz of bandwidth from its proposed Section 25.118 rule change, and we propose a similar exemption for our new coordination rule. That is, FSS earth stations licensed for 40 MHz or less of bandwidth in any direction would not be required to demonstrate use in order to retain protection for that spectrum. We observe that this exemption would mean that, under the rules we are proposing in Section V to authorize CSAT services, CSATs would not be subject to the new coordination rule because they would be limited to 20 MHz of bandwidth in each direction. We seek comment on this proposed exemption. 7. This proposal is contained in Appendix C to this NPRM. We ask for comment on the procedural aspects of this proposal. For example, in the case where a terrestrial FS station has been successfully coordinated on spectrum not currently used by the FSS earth station, we seek comment on how the results of such a coordination could be recorded for future reference. Should frequency coordinators maintain such results and should the results be reported to the Commission? 8. We also seek comment on the most practicable means to apply the new rule to existing FSS earth station licensees. Because such frequencies may no longer be available to the FSS earth station licensee without restriction, would this constitute a modification to the FSS earth station license and, if so, what Commission procedures would be required before re-licensing could occur? Moreover, we ask whether our new coordination procedure would require us to undertake an administrative hearing in order to amend the license of an existing FSS earth station to delete frequencies currently authorized to the FSS earth station but not demonstrated to be in actual use. We further ask whether we should impose conditions, on a forward-looking basis, on FSS earth station licenses that would allow us to implement this new coordination rule. Additionally, we request comment on whether we should require an FSS earth station licensee to make a showing of actual use at the time of each license renewal in order to retain the full licensed bandwidth, in addition to imposing the requirement for a showing at the time of a coordination request. 9. The second component of "loading" is efficient use of the spectrum. While FWCC makes no specific proposal with respect to an "efficiency standard" for earth stations, it does specifically reference the spectrum efficiency standards of Section 101.141(a)(3) note 3 in drawing a parallel between the Part 101 rules and its proposed loading standard. Although we do not propose in this Notice to adopt a specific spectrum efficiency standard for FSS earth stations, we do seek comment on whether the Commission should fashion a spectrum efficiency standard for FSS earth stations. For example: · Type of Station: Recognizing that different kinds of earth stations (e.g., end user terminals versus teleport operators) may have differing requirements for flexibility, and that they operate in different frequency bands, how would the distinctions between these different types of stations affect the definition of any loading standards? Would the number (large or small) of users served by FSS earth stations be relevant to the definition of loading? Should there be a tiered approach to applying a loading standard (i.e., more stringent requirements in one band, or one portion of an FSS band, than in others)? · Technology Employed: If a loading standard were to be adopted, should the standard vary based upon the type of technology involved? For example, if a particular satellite system used a Time Division Multiple Access (TDMA) wideband architecture, it would seem appropriate that individual user earth stations and gateway stations would have different loading standards. If so, what should those standards be? · Timing: If loading standards were to be adopted, what would be an appropriate timeframe for meeting these standards? FWCC proposes 30 months. Would this 30-month timeframe be appropriate for all types of earth stations and for all times (e.g., after initial license or after license renewal)? · Bandwidth: Should loading standards be waived for stations that use only a small portion of the band of license? FWCC suggests a waiver of the requirement for stations that use 40 MHz of spectrum or less in each direction. Is this an appropriate value? We note that at C- band 40 MHz is the normal satellite transponder bandwidth, but at the Ku- and Ka-band, satellites have different (larger) transponder bandwidths. · Functionality: The Fixed Service shares spectrum with a variety of satellite services (e.g., FSS, BSS and MSS). With respect to the questions above, how do widely varying needs of these particular satellite services affect the determination of or need for loading standards? That is, are there specific amounts of spectrum routinely needed for different satellite uses and for differing functions (e.g., service links, feeder links, and Telemetry, Tracking and Command (TT&C))? Are there other factors affecting an estimation of spectrum need, such as operational requirements, business considerations, emergency planning, and possible growth, and do they vary depending on the types of satellite use and earth station function? · Other Factors: How do we address other factors such as the earth station operator's business routinely requiring ready access to multiple satellites, an earth station complex having multiple antennas pointing at multiple and changing satellites, and the earth station operator providing service to independent third parties with unpredictable space segment needs? 7. Finally, there are instances where the FSS is operating under unusual or unique circumstances. For instance, in the 10.7-11.7 GHz band, FSS systems are limited to providing only international, intercontinental operations in accordance with footnote NG104 in order to limit the number of FSS earth stations operating in the band to permit more use by the Fixed Service. A second example is the 13.75-14.0 GHz band where FSS earth stations are required to share spectrum with Government services, and therefore are limited to certain corresponding shared downlink frequency bands. In this latter situation, a loss of frequency diversity might prevent implementation of satellite services in this band. We therefore seek comment on whether any spectrum use or efficiency standards are appropriate in situations where FSS earth station use already is substantially restricted and, if so, whether they should be tailored to the unique situations involved. 8. Although the efficiency requirements that we propose appear to be inconsistent with the Commission's general trend towards less intrusive regulation of the manner in which licensees use spectrum, we find that under the circumstances the proposals herein are better suited to meeting the needs of the industry and the general public. We note that the deregulatory approach has been particularly pronounced for spectrum purchased at auction. In this case, however, the users of the spectrum have obtained those rights free of charge. Given the current somewhat asymmetrical efficiency obligations on the co-primary licensees, absent an auction, we believe that exploring some efficiency requirement is the best way to further our spectrum management objectives. 1. Interference Coordination 9. FWCC's Petitions. The FWCC Petitions raise the issue of how prior coordinations should affect the conduct of subsequent coordinations. Specifically, FWCC asks the Commission to adopt rules requiring an earth station to accept from subsequently coordinated fixed stations the same level of interference that it accepted in its initial coordination. 10. FWCC also proposes a detailed procedure for implementing this concept. It proposes that if a satellite earth station applicant coordinating a new or modified earth station accepts cases of potential interference into the earth station from terrestrial users, it may at its option explain the basis for accepting each case (frequency offset, terrain, attenuation from buildings, etc.). Combinations of explanations would be acceptable, as well as incomplete explanations. If the explanation for acceptance of potential interference relies on frequency offset, then a terrestrial station would be able to coordinate at any level in the frequency ranges accepted by the earth station. If, however, the only explanation for acceptance of the potential interference is shielding by a local feature that would not appear on a topographical map, such as a building or berm, then its level of attenuation would be deemed to be the amount of the missed objective, even if this is different from the actual attenuation that would show up in measurements. This imputed attenuation would then apply over the entire azimuth subtended by the feature. For example, if the earth station accepts a 50 dB missed objective on the basis of a building, then the attenuation of that building would be deemed to be 50 dB for all azimuths passing though the building. 11. If, however, the only explanation for acceptance of the interference is terrain blockage, then FWCC proposes that the earth station applicant must evaluate the blockage using industry- accepted programs based on current topographical maps. If the evaluated blockage is less than the missed objective, and therefore insufficient to meet the interference objective, the desired interference objective level of the original coordination would be reduced by the amount of the missed objective. For example, suppose the original interference objective is -170 dBW, the accepted incoming signal level is -120 dBW, and documented terrain blockage is 30 dB. The missed objective is the difference between -170 and -120, or 50 dB. Terrain accounts for 30 dB of that, leaving 20 dB unexplained. The interference objective for new terrestrial facilities would then deemed to be 20 dB above the original objective of -170 dBW, or -150 dBW. 12. If the explanation for acceptance of the interference is a combination of terrain blockage and shielding by a local feature, FWCC then proposes that the level of attenuation of the local feature would be deemed to be the amount of the missed objective, less the terrain blockage calculated as above, and would apply over the entire azimuth subtended by the attenuating feature. If the earth station operator does not offer an explanation for acceptance of the interference, or if none of the other explanations applies, then FWCC suggests that the original objective would be reduced by the amount of the unexplained missed objective. For example, if the original interference objective was -170 dBW and the missed objective was 20 dB, the interference objective for new terrestrial facilities would be deemed to be -170 + 20 = -150 dBW. 13. FWCC proposes specific modifications to Part 25 of the Commission's Rules that would implement these provisions. FWCC's specific proposal would amend Section 25.203 by redesignating paragraphs (e) through (k) as (f) through (l), and by adding a new paragraph (e) that would read as follows: (e)(1) An applicant for an earth station authorization may, during the frequency coordination process, choose to accept cases of potential interference into the earth station from terrestrial users. In that event, subsequent terrestrial applicants may coordinate with the earth station at the same level and under the same conditions as the earth station accepted in its coordination, subject to the following paragraphs. (2) An applicant for an earth station authorization that accepts cases of potential interference from a terrestrial station, as in paragraph (l), may specify that it does so on the basis of frequency offset from the frequencies and bandwidth used by the terrestrial station. In that event, subsequent terrestrial applicants may coordinate in the frequency ranges accepted by the earth station without affording any protection to the earth station. (3) An applicant for an earth station authorization that accepts cases of potential interference, as in paragraph (l), may specify that it relies on attenuation by a local feature, in which event it must identify the local feature and specify its location and the subtended azimuth. Subsequent terrestrial applicants may coordinate over the arc of azimuths passing through the local feature at the same level as the earth station accepted. (4) An applicant for an earth station authorization that accepts cases of potential interference, as in paragraph (l), may specify that its waiver is based in whole or in part on terrain blockage. In that event the earth station applicant must evaluate the terrain blockage using industry-accepted programs based on current topographical maps. If the evaluated blockage is less than the difference between the desired and accepted interference objectives, and therefore insufficient to clear the interference case, subsequent terrestrial applicants may coordinate at the level that the earth station accepted in its waiver, reduced by the evaluated blockage. (5) An applicant for an earth station authorization may accept cases of potential interference based on combinations of the factors addressed in paragraphs (2) through (4). In that event, subsequent terrestrial applicants may coordinate at the levels determined under paragraphs (2) and (3), which may depend on frequency and azimuth, as adjusted by terrain blockage as specified in paragraph (4). 14. Oppositions. Some opposing parties object to FWCC's proposal requiring an earth station licensee to grant interference exceptions to all future FS stations because the earth station waives a particular level of interference from one FS station. They contend that such a rule would have the effect of discouraging licensees from granting any interference exceptions. GE Americom asserts that there is no basis for the FCC to mandate that an existing earth station operator accept interference from a new applicant that could impair the earth station's ability to meet customer requirements. 15. Commenters also argue that serious damage could be caused to an earth station complex by adding multiple sources of potential interference and find fault with specific technical parameters set out in the FWCC proposal. Opposing parties further argue that a coordination rule is unnecessary, would cause regulatory delay, and would preempt existing industry fora. 16. FWCC Reply Comments. In its response, FWCC asserts that its petition merits public debate before the Commission as opposed to discussion in a less public industry forum. FWCC also disputes that the additive effects of multiple interference exposures, the changing nature of the interference environment, or adjacent band interference will degrade operations unacceptably. 17. Discussion. The FWCC proposal raises a number of general and specific issues related to frequency coordination between FS stations and FSS earth stations. The first of these issues is whether the waiving of a particular level of interference from one FS station should be treated as an acceptance of that level of interference from all future coordinated FS stations. Commenters opposing the FWCC proposal note that an FSS earth station operator may accept a particular level of interference in one particular portion of the spectrum, recognizing that not all frequencies will have the same value to the earth station operator. In its reply, FWCC asserts that its purpose is only to ensure that like cases are treated alike. 18. When conducting an interference analysis as part of the coordination of an FSS earth station and an FS station, there are a number of factors to be considered. These include the transmitted power of the FS station, the pointing direction of the FS station antenna relative to the FSS earth station, the FS station antenna radiation pattern, and any anomalies over the propagation path that might attenuate the interfering signal (such as terrain shielding or attenuation by buildings). Additionally, the coordination would consider technical aspects of the FSS earth station, such as antenna gain and pointing direction, in determining whether interference from an FS station would result in the FSS earth station operating at below normally permissible interference objectives. 19. When an FSS earth station applicant enters into the coordination process with an FS station licensee, the FSS earth station applicant may consider mitigating factors such as terrain blockage, frequency offset, attenuation by buildings, or the importance of that particular set of frequencies (e.g., the availability of those frequencies on the applicable satellite(s)) to determine whether it successfully can coordinate its earth station. An FSS earth station applicant also may be willing to accept higher than desired levels of interference in a part of the coordinated spectrum in order to complete its coordination successfully. The FSS earth station licensee, however, may have no incentive to apply those same mitigation factors when considering coordination requests from subsequent FS station applicants. In this situation, we believe, as stated by FWCC, "that like cases [should be] treated alike." 20. Every coordination request is likely to differ from earlier requests in some respects. There are, however, elements that are often identical, or nearly identical, among coordinations. In situations where these elements are common, it would be reasonable, assuming no change in propagation models, for the quantitative effects of these elements on the interference analysis in later coordinations to be the same as in the initial coordination. By way of example, if an FSS earth station applicant successfully coordinates with an FS station licensee and, as part of the interference analysis, assumes a 30 dB attenuation of the interfering signal by an intervening building, then it would be reasonable for the FSS earth station licensee to accept the same 30 dB attenuation derived in the original propagation analysis in subsequent coordinations with FS station applicants if the latter stations are to be operated from the same tower as the first FS station (assuming operation in the same frequency band, e.g., C-band). In this situation, the second interfering signal would be traveling along the same path as the first signal that was successfully coordinated, encountering the same building along its path. We note, however, that use of the same value of attenuation attributed to a building in the original analysis would not necessarily imply acceptance of the interference resulting from the second fixed service station. As noted above, there are many factors that must be considered when performing an interference analysis as part of a coordination procedure, and it is the effects of all of these factors that must be considered. 21. FWCC suggests that, if an FSS earth station accepts a level of interference that would degrade its performance below normally permissible interference objectives in one part of the spectrum in which it is operating, then it should be required to accept that same level on all frequencies. We cannot support the logic of FWCC's argument. The objectionable interference that the earth station applicant may be willing to accept may affect only a relatively small portion of the spectrum that the earth station will use. We recognize that an earth station applicant may have to accept interference in one part of its licensed spectrum in order to gain access to the remainder. The sacrifice of the use of this small portion of its total bandwidth is one the earth station applicant should be free to make without sacrificing the viability of its entire system. Allowing the earth station applicant to proceed in this manner recognizes the realities of sharing a scarce resource among many users and services, and promotes the efficient use of the radio spectrum. 22. FWCC also suggests that acceptance of a particular level of interference from one source should imply acceptance of all subsequent interference sources at or below the level of the initial interference source. As pointed out by a number of the commenters, interference sources are cumulative, and it is the totality of that interference that must be considered in determining whether interference from subsequent sources is acceptable. In this respect, each subsequent coordination request must be evaluated on its own merits, and its effects on existing stations must be considered in the context of the entire interference environment. We must, therefore, reject this specific proposal of FWCC. 23. An additional problem noted by FWCC is the situation in which an FSS earth station applicant, in order to complete its coordination successfully, accepts interference from an existing FS station that would exceed the total interference allowance for the earth station, even after consideration of mitigating factors such as terrain shielding or building blockage. The question then becomes one of further protecting an earth station that has already accepted interference, on a particular set of frequencies, that is recognized will cause the earth station to operate below its normally permissible interference objectives. FWCC proposes that if the acceptance of this interference is based upon frequency offset, then subsequent FS station applicants may coordinate in the frequency ranges accepted by the FSS earth station without affording any protection to the earth station. Because our goal is efficient use of the spectrum, it would not seem reasonable to allow an FSS earth station licensee to preclude future FS station use of a part of the spectrum in which the earth station licensee has already accepted levels of interference from other FS stations that would preclude its use of that particular part of the spectrum. We recognize, however, that the earth station may experience these objectionable interference levels only when pointing at a limited set of geostationary satellite orbit locations, and that this factor also must be considered during the coordination process. 24. These varying scenarios, therefore, raise a number of issues: · If an FSS earth station licensee accepts the use of particular interference mitigation factors during a coordination with an FS station, should the FSS earth station be required to accept the use of those same interference mitigation factors during subsequent coordinations if similar circumstances are present? More specifically, if terrain or building blockage was considered and accepted in one coordination, should the same amount of signal blockage be assumed for future coordinations over identical or nearly identical paths? · If an FSS earth station licensee accepts a particular level of interference during coordination with an FS station, should the FSS earth station, once licensed, be required to accept the same level of interference or less from an FS station subsequently seeking coordination on the same frequency? On offset frequencies? · Should a requirement for acceptance of a particular level of interference be dependent upon whether the FSS earth station's total interference allowance already has been exceeded in prior coordinations? · Should similar coordination requirements apply to FS station applicants and licensees? 2. In order to better balance the competing needs of the FSS and FS services in shared bands and to promote, during the coordination process, the most efficient use of this shared radio spectrum, we propose that if an FSS earth station or FS station applicant employs certain interference mitigation techniques (such as terrain shielding or building blockage) in order to coordinate its station successfully, then to the extent that those same conditions exist for subsequent requests for coordination between an FSS and FS station applicant and licensee, the FSS earth station or FS station licensee must give those interference mitigation factors the same weight as in the original coordination. Additionally, if an FSS earth station applicant, during its coordination, accepts a level of interference that is recognized to be below accepted interference objectives along a set of azimuths and elevation angles, then the FSS earth station licensee is not entitled to protection from interference from future FS applicants on those same frequencies within that same set of azimuths and elevation angles. Our proposal would amend Section 25.203 and Section 101.103(d)(1) of the rules, as set forth in Appendix C of this Notice. We propose that these amended rules would apply across all frequency bands where the FSS and FS share a primary service allocation. 3. We anticipate that these rules would be applied by the relevant frequency coordinators as they process requests for frequency coordination, and that the frequency coordinators will maintain records of these actions within their database, including information about interference models and assumptions used, including any updates to interference models over time. 4. We seek comment on the specific proposals presented in Appendix C, on the issues raised above, and on any other factors regarding rules or procedures that could facilitate coordination between FS stations and FSS earth stations, and promote the efficient use of such shared spectrum. Additionally, to ease the process of coordinating future requests, we seek comment on whether the Commission should place conditions on the license of an FS station or FSS earth station to specifically identify those particular frequencies and interference paths where the station has not successfully cleared coordination, and is therefore not entitled to protection. Finally, we are very interested in receiving information about actual experiences in which earlier and later applicants, that are similarly situated, have been treated differently in the coordination process. V.discussion of onsat proposal 6. The Telecommunications Act of 1996 requires the Commission to encourage the deployment of advanced telecommunications, on a reasonable and timely basis to all Americans. It also requires the Commission to take action to accelerate deployment of that capability to all Americans. In our most recent report to Congress, we observed that although advanced telecommunications capability is generally being deployed in a reasonable and timely fashion, certain groups of consumers - including rural Americans and consumers in tribal areas - are not receiving such service in a timely fashion. Last year we initiated an NPRM in which we sought comment on potential terrestrial wireless and satellite policy initiatives to address the telecommunications needs of Native Americans living on tribal lands. In that Tribal Lands NPRM, we cited small aperture terminal earth station networks as one satellite technology increasingly being deployed for low-cost telephony that is also capable of providing advanced telecommunications services. We sought comment on any satellite policies we could adopt to further the deployment of such networks on tribal lands and in other unserved areas. The Report and Order that the Commission adopted in the proceeding concluded that, technical and administrative hurdles to the provision of satellite service to tribal lands are best considered on a case-by-case basis, with waivers granted as necessary to facilitate such deployment. In its instant petition, Onsat asks the Commission to issue a declaratory order that Section 25.115(c) of the Commission's Rules permits the licensing of very small aperture terminal (VSAT) satellite earth stations in the C-band. Onsat avers that the rule interpretation it seeks is a response to our request, in the Tribal Lands NPRM, for proposals on satellite policies that would promote the deployment of satellite services in tribal lands and other unserved areas. Onsat states that, if permitted to go forward in developing C-band small aperture terminal earth station networks, it will be able to serve rural institutional customers with the most advanced communications in a cost-effective manner. 7. Onsat's petition raises the issue of whether we should authorize a network of small aperture terminal satellite earth stations in the C-band under a single license. As we observed in the Tribal Lands NPRM, these types of satellite earth station networks employ cost-effective technology to reach sparsely populated areas, and thus could help to accelerate deployment of advanced telecommunications capability to Americans in tribal and rural areas. We propose to adopt changes to Part 25 of our rules to authorize, under a single license, networks of prior- coordinated small aperture terminal satellite earth stations in the C-band. Our proposal to license this service is based on our current licensing rules for Very Small Aperture Terminals, or VSATs, in the Ku-band, with necessary modifications to reflect the prior frequency coordination required in the C-band because of FS/FSS co-primary frequency sharing in this band. To distinguish our licensing of these pre-coordinated C-band earth stations from the blanket licensing of VSATs in the Ku-band, we will refer to the C-band networks addressed in this Notice as C-band Small Aperture Terminals (CSATs). 8. Onsat's petition argues that blanket licensing of such CSATs is permissible in the C-band under existing Commission rules, and Onsat seeks a declaratory ruling to confirm its interpretation of the rules. We believe that such a declaratory ruling could expand the need for case-by-case evaluation of proposed CSAT networks and thus would not be the most efficient or effective means for regulating this service. We, therefore, deny Onsat's petition for declaratory ruling and, instead, initiate a rulemaking to propose modification to Part 25 of the Commission's Rules to permit licensing of CSAT networks in C-band frequencies under a single authorization. We believe that this Notice regarding licensing of CSAT networks is particularly relevant to our inquiry in the Tribal Lands NPRM because it will further the Commission's goal of serving rural customers with advanced communications. 1. General Considerations 9. When the Commission first licensed VSAT networks in 1986, the multiple applicants for the service requested frequencies only in the 12/14 GHz band, at least in part because there were no co-primary terrestrial users of those bands. The Commission stated that granting the applicants' requested blanket authorization procedures would result in more rapid use of the 12/14 GHz frequencies that had not been occupied. In addition, because this band was allocated solely to FSS on a primary basis, the Commission could grant one license to cover hundreds or thousands of Ku-band earth stations without regard to intra-band, inter-service coordination issues. The VSAT Order observed that while the lack of co-primary terrestrial users in the 12/14 GHz frequency bands eliminated the need for location and site-specific frequency exhibits, those exhibits would be necessary in the C-band where there are co-primary terrestrial users. 10. Nevertheless, the Commission historically has sought to streamline the licensing process for networks of C-band earth stations as well. In 1984, the Commission implemented a simplified procedure for one licensee that was operating a network containing large numbers of small, technically-identical C-band earth stations. Under this streamlined approach, the licensee, Equatorial Communications Company, would still submit site-specific frequency coordination information and the Commission would still issue individual licenses for each earth station, but the individual applications would be submitted in an abbreviated form. The Commission further streamlined this procedure for Equatorial's successor-in-interest, GTE Spacenet Services Corporation, in 1992, when the Commission implemented a "blanket" licensing procedure for these same earth stations. Under this procedure, the Commission granted GTE Spacenet a lead license to cover a specified number of identical earth stations (in this case, 30,000). To ensure that these earth stations do not interfere with co-primary FS operations, the Commission required GTE Spacenet to complete frequency coordination for each individual station before bringing it into service. Further, the Commission required GTE Spacenet to notify the Commission, on a monthly basis, of the number of earth stations brought into service. 11. The CSAT licensing procedures we propose in this Notice respond to concerns that individual licensing of each earth station in a network of small aperture terminal earth stations would result in longer overall license processing times, increased consumer costs, and additional administrative burdens. The procedures we propose also reflect our belief that "blanket" licensing is possible in the C-band but only if contingent on individual site coordination between FS facilities and the FSS earth station as required by our proposed rules. 1. Regulatory and Licensing Issues 12. We propose to model CSAT licensing procedures on the streamlined procedure successfully used since 1992 for licensing the small earth stations of the GTE Spacenet Services Corporation in the C-band. Most notably, these procedures will require CSAT applicants to complete frequency coordination for each individual earth station antenna, but will allow licensing for a system of technically-identical earth stations so coordinated, with simplified reporting to the FCC. 13. Rule Governing Applications. Our earth station application rule permits applications for license of small antenna network systems operating in the 12/14 GHz frequency band under blanket operating authority. The rule does not specifically provide for "blanket" licensing in other frequencies, although one licensee has been operating a comparable small antenna network system in the C-band frequencies both before and since the adoption of the VSAT Order. We therefore propose to amend Section 25.115 to specifically incorporate generic simplified processing procedures that will apply to any CSAT applicant instead of addressing "blanket" applications for earth station networks in the C-band on a case-by-case basis, as we have done in the past. 14. Application Form. We propose that existing application procedures in Section 25.115 will govern applications to license small antenna network systems operating in the 4/6 GHz frequency band. Applications for CSAT operating authority will be filed on FCC Form 312. The main portion of Form 312 and Schedule B shall be filed for each large hub station, and another Schedule B shall be filed for each representative type of small antenna station operating within the network. The initial or "lead" application will identify the requested spectrum to be used for communication channels. The Commission will place the "lead" application on Public Notice. Acceptable applications will be granted for a "lead" application to construct and operate the requested number of technically identical small antenna earth stations specified in the small antenna Schedule B included with the lead application. Further, we propose to require electronic filing of Form 312, Schedule B applications to add technically identical small antenna earth stations to a previously authorized CSAT system. After coordination and licensing, and before placing any earth station into operation, our rules would require the earth station licensee to file a coordination notification for each earth station with the Commission. This coordination notification will include the location of each station, as well as a certification that frequency coordination has been completed and that the earth station complies with all environmental and Federal Aviation Administration requirements. We would put the licensee's coordination notification filing on public notice, and the licensee would be permitted to commence operation if no comments were received within the 30-day notice period. A commenter objecting to the earth station commencing operations would be required to serve the earth station licensee with a copy of its comments. We would permit the earth station to begin operations once the objection is removed. We seek comment on any alternative to the proposal that expedites the processing and minimizes the administrative burden on both the Commission and the CSAT licensee while providing adequate notice to affected parties. 15. Fees. Section 8(a) of the Communications Act sets forth fees the Commission must assess for filing applications to aid in recovering some of the administrative costs incurred in processing those applications. The fee structure in the Communications Act can only be amended by legislative action. Consequently, applications for CSAT networks may require the Commission to propose a new fee category to Congress. 16. Because the CSAT service most closely matches the GTE Spacenet system, the existing fee structure for Fixed-Satellite Transmit/Receive Earth Stations (2 meters or less and operating in the 4/6 GHz frequency band) is the fee most comparable to CSAT applications. Because the underlying statute limits this fee category to earth stations that are two meters in diameter or less, we must pursue a statutory change in order to create a comparable fee structure for CSATs. We propose charging applicants for CSAT service a set fee for an initial, lead application, and charging an additional fee for coordination notification of each additional earth station. We request comment on the extent to which Commission review of the individual coordination of CSAT earth stations added to a network after the "lead" license would create administrative processing burdens and costs. 17. Licensing Provisions. We propose to amend Section 25.134 of our rules to make it applicable to CSAT networks. We expect that routine processing will be possible for CSAT networks that meet the antenna performance standards in our present Section 25.209, and do not exceed the power levels specified in our present Sections 25.211(d) and 25.212(d). Applications seeking to exceed these limits will be required to include a technical analysis demonstrating an ability to operate on a non-interference basis to adjacent fixed-satellite services or to provide a certification from the satellite operator that this operation has been successfully coordinated with adjacent satellite operators. We anticipate revisiting these rules in an earth station streamlining proceeding later this year, and will consider at that time whether these power and antenna size limits can or should be amended to allow routine processing of more applications. 18. Frequency Coordination. As discussed supra, the fixed wireless community has raised concerns that authorization of CSATs could add to coordination difficulties between the FS and FSS in the C-band. FWCC initially opposed Onsat's petition for declaratory order on the ground that Onsat's proposed service would further exacerbate frequency coordination difficulties in the C-band. FWCC later withdrew its opposition after Onsat agreed to limit both the amount of C- band spectrum its proposed system would use and the number of orbital positions toward which its remote earth stations would be directed. We propose to adopt the parameters of the Onsat/FWCC agreement as a limit on spectrum use for CSATs. Thus, we propose to license CSAT networks for no more than 20 MHz of C-band spectrum and for no more than three satellite locations within the visible geostationary satellite arc. We seek comment on whether CSAT networks can be designed and implemented within these limitations. We also invite comment on whether we should propose to limit the licensing of all CSAT networks to a particular identified portion of the C-band and, if so, how much of a sub-band we should set aside for CSATs. We further ask whether such band restrictions would pose operational difficulties for CSAT networks. 19. Furthermore, in order to allow CSAT networks in the C-band frequencies, it is essential that each and every earth station facility be fully coordinated with co-primary terrestrial users of C-band frequencies. Accordingly, we propose that the Commission require every technically identical earth station in any CSAT network to be coordinated under our existing rules for coordination of earth stations with terrestrial stations. This coordination must be accomplished at the time applicants or licensees seek to place an individual earth station in service. We expect that applicants will request operating authority for a number of earth stations at the time their lead application is filed, and subsequently will coordinate and notify the Commission of each earth station implemented in the network authorized in accordance with the lead license. In other words, even though CSAT stations may be conditionally authorized under a lead license, each CSAT earth station must protect, and is not entitled to protection from, other earth stations or terrestrial stations that were coordinated prior to coordination of that particular CSAT earth station. The CSAT station also would not be permitted to operate until this coordination is completed, the Commission has been notified, and the 30-day notice period has elapsed. 20. We believe that the type of service proposed by Onsat and contemplated in our proposed CSAT rules is in the public interest because it facilitates advanced broadband communications for Americans in rural, underserved areas. Our Tribal Lands proceedings and other Commission initiatives have sought to improve the delivery of broadband services to rural areas. We note that the required individual coordination with terrestrial users of C-band frequencies may, as a practical matter, effectively limit CSAT networks to rural areas where those frequencies are relatively underused. We seek comment, therefore, on whether our rules should limit the CSAT service to rural areas, or, alternatively, whether our rules should allow CSAT network service wherever frequency coordination allows the installation of an earth station. If rules limiting the service to rural areas are proposed, we request comment on how to define rural for this purpose, and how we can administer such a rural limitation. 21. Reporting Requirements. We propose that each CSAT licensee be required to provide the Commission an annually updated list of all operational earth stations in its system. This list would provide a definitive portrait of each licensee's operational CSAT system once a year, and would allow the Commission to verify the validity of its database. The CSAT licensees' annual report would also have to include a list of all earth stations planned for the next 12 months but not yet built, a list of all earth stations deactivated during the year, and a report of any changes in satellite location applicable to the CSAT network. We propose to seek only an estimate of all earth stations planned for the next 12 months but not yet built, because we recognize that businesses would have some difficulty projecting the number of CSATs they plan to deploy in the future. The annual reporting requirement would provide the FCC and frequency coordinators the opportunity to crosscheck database records for accuracy, and be useful in dispute resolution