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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 ) ) Reorganization and Revision of ) WT Docket No. 94-148 Part 1, 2, 21 and 94 of ) The Rules to Establish a New ) Part 101 Governing Terrestrial ) Microwave Fixed Radio Services ) ) Amendment of Part 21 of the ) CC Docket No. 93-2 Commission's Rules for the Domestic ) Public Fixed Radio Services ) ) McCaw Cellular Communications, Inc. ) Petition for Rulemaking ) ORDER Adopted: February 24, 1998 Released: February 24, 1998 By the Chief, Wireless Telecommunications Bureau and the Chief, Office of Engineering and Technology: 1. By this Order, pursuant to delegated authority, we modify Section 101.31(e) of the Commission's rules to provide for conditional authorization in the 10.6-10.68 GHz band ("10 GHz band") under certain circumstances. This action advances significant public interest objectives by eliminating a source of regulatory delay in bringing microwave services to the marketplace. As a direct result of this action, licensees will be able to provide service in the 10 GHz band in an expedited manner and will have greater flexibility in coordinating and consolidating construction efforts. 2. Background. On February 8, 1996, the Commission adopted its Report and Order in WT Docket No. 94-148 in which it simplified and consolidated its rules for the common carrier and private operational fixed microwave services. In the Report and Order, the Commission, among other things, extended conditional authorization authority to both common carrier and private operational fixed microwave services generally, with a few limited exceptions. Thus, fixed microwave licensees are permitted to construct and begin operating their facilities prior to receiving a grant of an application for authorization, provided they meet the requirements of Section 101.31(e) of the Commission's rules. 3. While the Commission extended conditional authorization authority to fixed microwave services generally, it concluded that conditional authorization authority should not be available for: (1) the 10 GHz band, (2) the 17.7-19.7 GHz band in the states of Colorado, Maryland, and Virginia and the District of Columbia, and (3) the 21.2-23.6 GHz band ("23 GHz band") for operations with an effective radiated power (ERP) greater than 55 dBm. In this connection, the Commission noted that these bands are allocated for both Government and non-Government users and, as a result, these frequencies are subject to coordination between the Commission and the National Telecommunications and Information Administration (NTIA). In the Report and Order, the Commission delegated authority to the Wireless Telecommunications Bureau (WTB) and the Office of Engineering and Technology (OET) to modify the rule regarding conditional authorization, if appropriate, once the Commission and NTIA reached an agreement regarding coordination of these frequencies. 4. Over the last year, Commission staff has worked closely with the Interdepartment Radio Advisory Committee (IRAC) and NTIA in an effort to reach an agreement regarding the 10 GHz and 23 GHz bands. On January 21, 1998, the Commission received a Memorandum from NTIA concerning conditional authorization in the 10 GHz band. The NTIA Memorandum lists specific geographic areas where prior coordination with NTIA will be required before grant of FCC authorizations covering non-Government operations in the 10 GHz band. The NTIA Memorandum also states that, for non-Government facilities operating only outside these geographic areas, coordination with NTIA will not be necessary. In addition, NTIA requests that the appropriate revisions be made to the Commission's rules to reflect the coordination requirements set forth in its Memorandum. 5. Discussion. As the Commission indicated in the Report and Order, the availability of conditional authorization authority allows the microwave industry to operate more efficiently. Given the Commission's position on extending conditional authorization authority to the microwave industry generally and the NTIA Memorandum, we conclude that the Commission and NTIA have now reached agreement regarding coordination of 10 GHz band frequencies. Thus, we hereby modify the Commission's rules to permit conditional authorization in the 10 GHz band under the specific circumstances stated in the NTIA Memorandum. Entities will have conditional authorization authority for operations in the 10 GHz band in areas other than those specified in the NTIA Memorandum. Under this conditional authorization procedure, an applicant for the 10 GHz band will be allowed to operate while its formal license application(s) is being processed, provided that the applicant certifies that the following conditions are satisfied: (1) it has successfully completed the frequency coordination process pursuant to Section 101.103(d) of the Commission's rules; (2) the proposed station's operation will have no significant environmental impact; (3) grant of the application does not require a waiver of the Commission's rules; (4) the proposed facilities do not lie within 56.3 kilometers of any international border; (5) the antenna structure(s) has been previously studied by the Federal Aviation Administration (FAA) and determined to pose no hazard to aviation safety as required by Subpart B of Part 17 of the Commission's rules; or, if not previously studied by the FAA and cleared by the FCC, the antenna or tower structure does not exceed 6.1 meters above ground level or above an existing man-made structure (other than an antenna structure); and (6) the filed application is consistent with the proposal that was coordinated pursuant to Section 101.103 of the Commission's rules. However, an applicant operating under such conditional authorization must cease operation immediately upon notification by the Commission, if, for example, it is subsequently determined that the applicant's proposed station does not, in fact, comply with all of these conditions. 6. We believe that the public interest will be served by permitting microwave licensees in the 10 GHz band to avail themselves of conditional authorization authority at the earliest opportunity. Our decision here will allow for more rapid delivery of 10 GHz band microwave services to the marketplace. Because this rule modification will make the authorization process less restrictive, we, for good cause, find that public notice and comment are unnecessary and contrary to the public interest. We also believe that 30-day advance publication of this amendment is likewise unnecessary and contrary to the public interest. Thus, we shall make this amendment effective upon publication of this Order in the Federal Register. In addition, entities with 10 GHz band applications pending when this Order becomes effective may implement conditional authorization authority in accordance with Section 101.31 as amended herein. 7. Accordingly, Section 101.31 of the Commission's rules IS HEREBY MODIFIED as set forth in Appendix B, effective upon publication of this Order in the Federal Register. 8. This action is taken pursuant to delegated authority under Sections 0.331 and 0.241 of the Commission's Rules, 47 C.F.R.  0.331 and 0.241, and pursuant to the Report and Order in WT Docket No. 94-148. FEDERAL COMMUNICATIONS COMMISSION Daniel B. Phythyon Chief, Wireless Telecommunications Bureau Richard M. Smith Chief, Office of Engineering and Technology APPENDIX A TEXT OF THE JANUARY 21, 1998, MEMORANDUM FROM THE NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION CONCERNING CONDITIONAL AUTHORIZATIONS IN THE 10.6-10.68 GHZ BAND APPENDIX B FINAL RULE Chapter I of Title 47 of the Code of Federal Regulations is amended as follows: 1. Paragraph (e) of Section 101.31 is revised as follows: Sec. 101.31 Special temporary, temporary, and conditional authorizations. * * * * (e) Conditional authorization. * * * * (1) * * * (vi) If operated on frequencies in the 10.6-10.68 GHz band, the station site does not lie within any of the following regions: Name of Region Dimensions Center-Point Radius in Kilometers Kitt Peak, Arizona 60 N31-57-22; W111-36-42 Big Pine, California 60 N37-13-54; W118-16-34 Vandenburg AFB, California 75 N34-43-00; W120-34-00 Denver, Colorado150 N39-43-00; W104-46-00 Washington, DC 150 N38-48-00; W76-52-00 Eglin AFB, Florida 50 N30-29-00; W86-32-00 Mauna Kea, Hawaii 60 N19-48-16; W155-27-29 North Liberty, Iowa 60 N41-46-17; W91-34-26 Maryland Point, Maryland60 N38-22-26; W77-14-00 Hancock, New Hampshire 60 N42-56-01; W71-59-12 Los Alamos, New Mexico 60 N35-46-30; W106-14-42 Pie Town, New Mexico 60 N34-18-04; W108-07-07 Socorro, New Mexico 160 N34-04-43; W107-37-04 WSMR, New Mexico75 N32-23-00; W106-29-00 Minot AFB, North Dakota 80 N48-15-00; W101-17-00 Arecibo, Puerto Rico 160 N18-20-37; W66-45-11 Fort Davis, Texas 60 N30-38-06; W103-56-39 St. Croix, Virgin Islands 60 N17-45-31; W64-35-03 Brewster, Washington 60 N48-07-53; W119-40-55 Green Bank, West Virginia 160 N38-25-59; W79-50-24 (vii) The filed application(s) does not propose to operate in the 21.2-23.6 GHz band with an E.R.P. greater than 55 dBm pursuant to  101.147(s); and (viii) The filed application(s) is consistent with the proposal that was coordinated pursuant to  101.103. * * * * *