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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the DA 96-1481 FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Freeze on the Filing of Applications for New) Licenses, Amendments, and Modifications ) in the 18.8 - 19.3 GHz Frequency Band ) ORDER Adopted: August 30, 1996 Released: August 30, 1996 By the Chief, Wireless Telecommunications Bureau, and Chief, International Bureau: 1. Effective upon the release date of this Order, we will not accept or process, except as described below in para.6, any applications for new licenses, renewals, extensions, amendments, or modifications for terrestrial fixed services at 18.820-18.920 and 19.160- 19.260, or any applications for nongeostationary fixed satellite service (NGSO\FSS) earth stations which are intended for use in the 18.8-19.3 GHz frequency band ("18 GHz band"). 2. Currently pending before the Wireless Telecommunications Bureau (Wireless Bureau), for example, are 247 applications seeking authority to provide Digital Electronic Message Service (DEMS) at the 18 GHz band. On July 17, 1996 the Commission designated the 18 GHz band as the band for NGSO\FSS downlinks. Of the DEMS applications pending as of August 30, 1996, 174 (approximately 70%) were filed for additional sites within already- licensed exclusive defined areas. These applications were filed the day after the Commission's release of its decision to designate the 18 GHz band for co-primary use by fixed terrestrial and NGSO\FSS downlinks. Approximately 70 of the 247 pending applications, however, are for new exclusive geographic areas. 3. On August 23, 1996, the Wireless Bureau received a written request filed by Teledesic Corporation, a NGSO\FSS applicant, for an administrative freeze on acceptance and processing of applications for DEMS licenses in the 18 GHz band. In that same request, Teledesic proposed that NGSO\FSS earth station applications at 18 GHz also be subject to the same administrative freeze. Teledesic argues that such an administrative freeze would serve the public interest by, inter alia, both preserving a level playing field for both Teledesic and DEMS licensees to discuss the potential for sharing and conserving Commission resources. 4. On August 28, 1996, the Wireless Bureau received a written reply to the Teledesic request for an administrative freeze from DEMS licensees/applicants, The Associated Group (AG) and Digital Services Corporation (DSC) (hereinafter collectively "Respondents"). Respondents assert that the temporary freeze will impede their opportunity to provide facilities-based competitive services in the local exchange marketplace, contrary to the goals of the Telecommunications Act of 1996. They argue that Teledesic is trying to undercut both local, facilities-based competition and the due process rights of 18 GHz DEMS licensees/applicants. 5. Generally, accepting and processing the DEMS applications received in the last few months or NGSO\FSS earth station applications may affect ongoing sharing and coordination discussions between DEMS applicants/licensees and Teledesic, the NGSO\FSS applicant. Processing might also affect a forthcoming Commission rulemaking because applications being filed and processed are not necessarily in conformance with application and technical requirements that may be developed for this band. 6. Specifically, we will soon make recommendations to the Commission on how to proceed with licensing of fixed terrestrial services in the 18 GHz band, including a review of the current licensing approach as well as the coordination issues arising from the co-primary status of fixed terrestrial services and NGSO\FSS. However, with respect to existing licensees that hold authorizations to use a channel on an exclusive basis within a defined area, we do not seek to take action that would freeze their ability to build-out pursuant to their pending applications. Rather, those pending applications for build-out of already authorized exclusive defined areas shall remain subject to regular Bureau processing, including the current notice and comment period. As a result, we note that this administrative freeze affects only approximately 70 of the pending 248 applications. 7. Consequently, we find that the public interest will be served by not accepting any further applications for licensing, or amendments to pending applications for licensing, of any new frequency assignments or additional nodal stations for terrestrial fixed services, filed pursuant to Part 101, Subparts B, C, G, H, I, of the Commission's Rules, in the 18.820-18.920 and 19.260-19.260 GHz bands. However, we would entertain applications from existing DEMS licensees for additional nodal sites within already authorized defined areas where these licensees demonstrate that grant of their application is necessary to meet customer demands for their DEMS services. 8. We similarly find that the public interest will be served by not accepting for filing any applications for NGSO\FSS earth stations to operate in the 18 GHz band. Accordingly, effective upon the release date of this Order, no further terrestrial fixed services applications, or amendments to such applications, in the 18.820-18.920 and 19.160-19.260 GHz bands will be accepted for filing, except under the condition set forth above, or any applications for NGSO\FSS earth stations in the 18 GHz band. Any such applications received on or after this date will be returned as unacceptable for filing. 9. In addition, applications for licenses for new markets filed prior to the freeze deadline stated above will be held in abeyance (not processed) until further notice. We will determine later whether to process or return any such pending applications. The freeze also applies to applications for license modification or renewals. Such applications will be either returned or held in abeyance, consistent with the treatment of applications for new licenses or for amendments. 10. We will, however, continue to permit the modifications that have previously been permitted without prior authorization. Such modifications require after-the-fact notification to the Commission. This category of modifications includes equipment upgrades and other changes that can improve the efficiency of the subject terrestrial services without increasing the interference potential with the NGSO\FSS. 11. The Bureaus' decision to impose this freeze is procedural in nature and therefore the freeze is not subject to the notice and comment and effective date requirements of the Administrative Procedure Act. Moreover, there is good cause for the Bureaus' not using notice and comment procedures in this case, or making the freeze effective 30 days after publication in the Federal Register. We find that such procedures would be impractical, unnecessary and contrary to the public interest as our compliance would undermine the public policy rationale of the freeze in the first place. The decision to impose a temporary freeze in this Order is not intended to reflect on the ultimate resolution of the use of this band, but is intended to maintain the Commission's regulatory options in the band pending the resolution of such issues. 12. ACCORDINGLY, as discussed herein, IT IS HEREBY ORDERED that effective upon the release date of this Order, no applications, or amendments to pending applications, renewals, modifications, or extensions will be accepted for filing for either terrestrial fixed services in the 18.820-18.920 and 19.160-19.260 bands or NGSO\FSS earth stations in the 18 GHz band. In addition, processing of already-filed applications for new markets in the 18.820-18.920 and 19.160-19.260 GHz bands will be held in abeyance until further notice. This administrative freeze will continue until the Commission announces that the acceptance of subject applications and the processing of the subject already-filed applications (if such is determined) will resume. This action is authorized under Sections 4(i), 4(j), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), 303(r). FEDERAL COMMUNICATIONS COMMISSION __________________________________ Michele C. Farquhar Chief, Wireless Telecommunications Bureau __________________________________ Donald F. Gips Chief, International Bureau