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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 ) ) Amendment of Part 90 of the ) PR Docket No. 93-61 Commission's Rules to Adopt ) Regulations for Automatic Vehicle ) Monitoring Systems ) MEMORANDUM OPINION AND ORDER AND FURTHER NOTICE OF PROPOSED RULE MAKING Adopted: August 28, 1997 Released: September 16, 1997 Comments Due: November 5, 1997 Reply Comments Due: November 20, 1997 By the Commission: TABLE OF CONTENTS Paragraph I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. ELIGIBILITY AND PERMISSIBLE USES . . . . . . . . . . . . . . . . 7 III. OTHER ISSUES RAISED ON RECONSIDERATION A. Definition and Licensing of Non-Multilateration Systems 1. Antenna Heights and Power Limitations . . . . . . . . . . .18 2. Licensing Issues. . . . . . . . . . . . . . . . . . . . . .24 B. Accommodation of Secondary Users in the 902-928 MHz Band . . . . . . 28 1. Parameters of Safe Harbor . . . . . . . . . . . . . . . . .30 2. Safe Harbor and Non-Multilateration Systems . . . . . . . .39 3. Administrative Procedure Act. . . . . . . . . . . . . . . .41 C. Spectrum Allocation Plan . . . . . . . . . . . . . . . . . . . .43 D. Geographic Areas for Exclusive Licenses. . . . . . . . . . . . .51 E. Multilateration System Operations -- Wideband Forward Links. . . . . 56 F. Petitions for Reconsideration of Order on Reconsideration. . . . . . 65 IV. COMPETITIVE BIDDING FOR MULTILATERATION LMS LICENSEES. . . . . .72 V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . .79 VI. ADMINISTRATIVE MATTERS . . . . . . . . . . . . . . . . . . . . .80 VII. ORDERING CLAUSES . . . . . . . . . . . . . . . . . . . . . . . .83 Appendix A -- Pleadings Appendix B -- Initial Regulatory Flexibility Analysis (Further Notice of Proposed Rule Making) Appendix C -- Final Regulatory Flexibility Analysis (Report and Order) Appendix D -- Rule Changes I. INTRODUCTION 1. In this Memorandum Opinion and Order and Further Notice of Proposed Rule Making, we address the remaining issues raised by petitioners for reconsideration of our Report and Order in PR Docket No. 93-61, which established rules governing the licensing of the Location and Monitoring Service (LMS) in the 902-928 MHz band. We resolved other issues raised by petitioners in an Order on Reconsideration in this docket. This item clarifies interconnection limitations for multilateration LMS, as well as other issues raised on reconsideration, such as operational parameters for non-multilateration systems, treatment of other users of the 902-928 MHz band, the structure of the spectrum allocation plan, the geographic service area for licensing multilateration LMS, and the licensing of wideband forward links. 2. As we have discussed previously in this Docket, LMS refers to advanced radio technologies designed to support the nation's transportation infrastructure and to facilitate the growth of Intelligent Transportation Systems. In the LMS Report and Order, we created a new Subpart M in Part 90 of the Commission's Rules for Transportation Infrastructure Radio Services (TIRS). LMS, which encompasses the 20-year-old Automatic Vehicle Monitoring Service as well as developing transportation-related services, was deemed to be the first service included within the TIRS category. In this regard, the Intelligent Transportation Society of America filed a petition for reconsideration of the LMS Report and Order requesting that we redesignate TIRS as ITSRS, or "Intelligent Transportation Systems Radio Service." This request was supported by the American Association of State Highway and Transportation Officials and by the Land Mobile Communications Council. These parties contend that the term "Intelligent Transportation System" has become widely accepted by other government agencies and in the private sector, and would be more descriptive of the types of services contemplated for Subpart M of Part 90. We are persuaded that it would be appropriate to refer to LMS and like services as Intelligent Transportation Systems Radio Services, and we will change our rules accordingly. 3. In the LMS Report and Order, the Commission defined two types of LMS systems -- multilateration and non-multilateration. Multilateration LMS systems are designed to locate vehicles or other objects by measuring the difference of time of arrival, or difference in phase, of signals transmitted from a unit to a number of fixed points, or from a number of fixed points to the unit to be located. Such systems generally use spread-spectrum technology to locate vehicles throughout a wide geographic area. Multilateration technology is used, for example, by trucking companies to track individual vehicles, by municipalities to pinpoint the location of their buses, and by private entrepreneurs developing subscriber-based services for recovery of stolen vehicles. The Commission defined non- multilateration systems as LMS systems that employ any technology other than multilateration technology. The Commission noted that unlike a multilateration system, which determines the location of a vehicle or object over a wide area, a typical non-multilateration system uses narrowband technology whereby an electronic device placed in a vehicle transfers information to and/or from that vehicle when the vehicle passes near one of the system's stations. Examples of non-multilateration LMS systems include automated toll collection devices and systems used by railway companies to monitor the location of railroad cars. 4. LMS operates in the 902-928 MHz frequency band. The band is allocated for primary use by Federal Government radiolocation systems. Next in order of priority are Industrial, Scientific and Medical (ISM) devices. Federal Government fixed and mobile and LMS systems are secondary to both of these uses. The remaining uses of the 902-928 MHz band include licensed amateur radio operations and unlicensed Part 15 equipment, both of which are secondary to all other uses of the band. Part 15 low power devices include, but are not limited to, those used for automatic meter reading, inventory control, package tracking and shipping control, alarm services, local area networks, internet access and cordless telephones. The amateur radio service is used by technically inclined private citizens to engage in self- training, information exchange and radio experimentation. In the LMS Report and Order, the Commission recognized the important contribution to the public provided by Part 15 technologies and amateur radio operators and sought to develop a band plan that would maximize the ability of these services to coexist with LMS systems. 5. The Commission adopted the LMS Report and Order with an eye toward minimizing potential interference within and among the various users of the 902-928 MHz band. The Commission's band plan accordingly permits secondary operations across the entire band by users of unlicensed Part 15 devices and amateur licensees. At the same time, the band plan separates non-multilateration from multilateration LMS systems in all but one subband so as to avert interference. The LMS Report and Order also established limitations on LMS systems' interconnection with the public switched network and set forth a number of technical requirements intended to ensure successful coexistence of all the services authorized to operate in the band. 6. This Memorandum Opinion and Order for the most part affirms decisions made by the Commission in the LMS Report and Order as an appropriate balancing of the interests of the different uses authorized in the band. Where appropriate, we clarify particular aspects of those decisions. First, we review petitioners' objections to our interconnection restrictions and clarify that the regulatory classification of LMS operators will be determined on a case-by-case basis. Next, we address petitioners' concerns regarding the definition and scope of the non-multilateration LMS service. We then discuss issues raised by petitioners regarding the "safe harbor" within which Part 15 devices and amateur operators will be deemed not to cause interference to multilateration LMS providers. We next address petitioners' suggested changes to the band plan adopted in the LMS Report and Order, as well as our decision to license multilateration LMS systems on a major trading area (MTA) basis. We further consider the propriety of allowing multilateration wideband forward links to operate in the 902-928 MHz band. Finally, in a Further Notice of Proposed Rule Making included as part of this item, we propose rules and procedures governing competitive bidding for multilateration LMS frequencies. II. ELIGIBILITY AND PERMISSIBLE USES 7. Background. In the LMS Report and Order, we recognized that multilateration systems may have some need for interconnection with the public switched telephone network (PSTN). At the same time, however, we recognized that unlimited interconnection by multilateration operators would be incompatible with the unique technical environment created by different types of services sharing the 902-928 MHz band. We were concerned that such activity would not only increase the potential for harmful interference to other users of the band, but also detract from the location and monitoring purposes of the LMS allocation. Accordingly, we adopted operational restrictions on multilateration LMS operators to minimize interference to all users of the spectrum. These restrictions include limitations on messaging services and interconnection with the PSTN, and a prohibition against message and data transmissions to fixed units and units for which location and monitoring is not being provided. 8. Pleadings. Of the restrictions listed above, the most discussed by petitioners are the Commission's limitations on interconnection. Specifically, the Commission in the LMS Report and Order permitted "store and forward" interconnection where either (1) transmissions from a vehicle or object being monitored are stored by the multilateration LMS provider for later transmission over the PSTN, or (2) transmissions received by the multilateration LMS provider from the PSTN are stored for later transmission to the vehicle or object being monitored. The rules adopted in the LMS Report and Order do not permit "real-time" interconnection between vehicles and the PSTN except for emergency communications related to a vehicle or a passenger in a vehicle. 9. MobileVision is the only petitioner that supports unrestricted interconnection. It believes that interconnection with the PSTN must be provided on an unrestricted basis if multilateration LMS systems are to be viable and the goals of the Intelligent Vehicle Highway System are to be attained. In the alternative, MobileVision proposes that multilateration systems' interconnection capabilities only be restricted by requiring store and forward interconnection to the mobile unit from the PSTN, but permit unrestricted (i.e., real time) communication to the PSTN from the mobile unit. MobileVision submits that this is the minimum degree of interconnection necessary to serve the needs of the public and the Intelligent Vehicle Highway System and to provide the necessary foundation for a successful spectrum auction. 10. Unlike MobileVision, the majority of parties addressing the issue support at least some restriction on LMS interconnection. For example, Pinpoint submits that allowing unlimited voice communications would be inappropriate because such traffic would increase interference levels throughout the band and would complicate sharing in the band. Pinpoint thus supports limiting interconnection to data store and forward messages. Similarly, Metricom/SCE, CellNet and the Part 15 Coalition argue that voice messaging is not an important component of LMS and that permitting it will eliminate the possibility of Part 15 devices coexisting with LMS operators in the 902-928 MHz band. Ad Hoc Gas and the Part 15 Coalition oppose use of LMS for interconnected voice messaging, even on a limited, store-and-forward basis. The Part 15 Coalition suggests that if the Commission nevertheless decides to retain this exception, a minimum time delay of transmission should be imposed such that a two-way, person-to-person conversation would be impossible (e.g., one minute). 11. Further, some petitioners that oppose permitting any multilateration LMS interconnection to the PSTN submit that the restrictions adopted by the Commission present substantial enforcement problems. They argue that by limiting transmission of messages to emergency communications related to the location and monitoring functions of the system, the Commission will place multilateration LMS operators in the position of having to become substantially involved with the content of their customers' communications. Further, UTC contends that carrier enforcement of this restriction could violate Section 705 of the Communications Act, which prohibits carriers from divulging the contents of their customers' communications. UTC additionally argues that a rule requiring multilateration LMS providers to monitor, disclose and/or prevent customers from transmitting certain types of communications could be construed as a form of censorship in violation of Section 326 of the Communications Act. Similarly, Ad Hoc Gas submits that allowing interconnection for only limited purposes could be considered a content-based speech restriction in violation of the First Amendment. 12. Nonetheless, some parties, even those that generally oppose interconnection, recognize that some interconnected service is needed in the event of an emergency. For example, CellNet contends that the use of any interconnected services should be limited to those of an emergency nature, whether it is a real-time or a store and forward communication. AirTouch/Teletrac and SBMS believe that it would be in the public interest to allow voice communications for emergency situations. On the other hand, Symbol Technologies would prohibit all interconnected voice messaging, even for emergency purposes, due to questions regarding the legality of monitoring message content. The Part 15 Coalition contends that there is no justification for emergency voice communications to be interconnected to the PSTN because other technologies are available for emergencies, such as emergency radio beacons. AirTouch/Teletrac responds that voice messages may be necessary to explain certain complex situations and could be time and life saving. In any event, a number of petitioners request that the definitions of store and forward messaging and emergency voice communications be clarified. 13. Discussion. As noted above, the LMS Report and Order specifically permitted "store and forward" interconnection, where either (1) transmissions from a vehicle or object being monitored are stored by the LMS provider for later transmission over the PSTN, or (2) transmissions received by the LMS provider from the PSTN are stored for later transmission to the vehicle or object being monitored. Real-time interconnection between vehicles or objects being monitored and the PSTN was limited to emergency communications related to a vehicle or passenger in a vehicle. The LMS Report and Order also stated that emergency communications may include information about a medical condition that requires immediate attention or the mechanical breakdown or failure of an automobile. 14. After revisiting this issue and considering petitioners' concerns, we continue to believe that our decision regarding limitations on multilateration LMS interconnection reflects a necessary balancing of the interests of LMS providers and other users of the 902-928 MHz band. Relaxing restrictions on interconnection could increase the potential for interference in the band by allowing for additional message traffic. We believe that requiring messages to be sent on a store-and-forward basis will reduce message traffic in the band by making it difficult to conduct a real-time conversation using LMS spectrum. We therefore reject MobileVision's recommendation that multilateration LMS users be permitted unrestricted interconnection to the PSTN. We note that other services, such as personal communications services (PCS) and cellular telephone, are available for that type of use. At the same time, however, we conclude that real-time interconnection is necessary and appropriate in emergency situations. We therefore also reject the arguments of commenters asking that we forbid real-time interconnection in emergency situations. We believe that to do otherwise could impede the development of LMS, to the detriment of Intelligent Transportation Systems and, more importantly, would raise significant public safety concerns. 15. We clarify that "store and forward" communications as described in the LMS Report and Order refers to a storage of voice or data messages for subsequent delivery to the recipient. We decline to adopt a specific minimum delay, as requested by some petitioners. As a guideline, however, we adopt a "safe harbor" approach whereby a particular message will be considered an acceptable store-and- forward message pursuant to our rules if the LMS service provider incorporates at least a thirty-second delay between the time a message is stored and the time that message is forwarded. This is not to say that a delay of less than 30 seconds will be unacceptable in all cases, but use of a 30-second delay will ensure that the communication will be deemed to fit within the definition of a store and forward message with respect to LMS. While we considered using a one-minute delay, as suggested by the Part 15 Coalition, we believe that a thirty-second delay is sufficient to ensure that two-way conversation is impractical and will thereby discourage use of multilateration LMS for general messaging. We also clarify that emergency communications, for which real-time interconnection may be utilized, is equivalent to a 911 or 311 call. Such communication must have a direct relation to the immediate safety of life or for communications to render assistance to a motorist. If no immediate action is necessary, it is not an emergency. All other communications should use "store and forward" technology. 16. We recognize petitioners' concerns that limiting interconnection based on the character of the message would be difficult to enforce and therefore raises the possibility of abuse. We believe, however, that setting forth specific examples of what is or is not an emergency would serve no useful purpose. While it may be desirable to have a fully descriptive definition of an emergency communication in the rules, such a rule could be unduly restrictive. The Commission does not intend to monitor the content of messages but expects that multilateration operators will be able to demonstrate compliance with the interconnection limitations if requested. Compliance may be accomplished by equipment that will permit voice calls in real time only to 311, 911, and an automobile road service provider. Of course, compliance might also be accomplished by multilateration LMS operators monitoring transmissions over their facilities and providing information regarding their transmissions to the Commission if requested. We believe that this type of monitoring will not violate Section 705 of the Communications Act as alleged by UTC, because it fits within the exception for providing information regarding a transmission "on demand of other lawful authority." We also note that the Commission will, on a case-by-case basis, consider requests for confidential treatment of such information. Moreover, the interconnection limitations are not tantamount to a restriction on free speech, as alleged by UTC and Ad Hoc Gas. Rather, the interconnection limitations are necessary to define the parameters of multilateration LMS service pursuant to the Commission's authority under the Communications Act to prescribe the type of service to be offered by a particular class of radio stations. 17. The interconnection issues raised by petitioners lead to the question of whether multilateration LMS is a Commercial Mobile Radio Service (CMRS). Pursuant to Section 332(d) of the Communications Act, a service is classified as CMRS if it is (1) provided for profit, (2) interconnected with the PSTN, and (3) available to the public or effectively available to a substantial portion of the public. In the CMRS Second Report and Order, we classified LMS as a Private Mobile Radio Service (PMRS). We indicated, however, that should LMS systems offer interconnected service in the future, they would be subject to reclassification as a presumptively Commercial Mobile Radio Service (CMRS). At this juncture, it is unclear to what extent multilateration LMS providers will offer any interconnected service, notwithstanding their ability to offer some limited interconnection capabilities as discussed above. To accommodate the specific service offerings anticipated by each multilateration LMS provider, we will use a case-by-case approach in determining whether a particular service offering is CMRS or PMRS. III. OTHER ISSUES RAISED ON RECONSIDERATION A. Definition and Licensing of Non-Multilateration Systems 1. Antenna Height and Power Limitations 18. Background. In the LMS Report and Order, we limited the peak effective radiated power (ERP) of non-multilateration systems to 30 watts over the licensee's authorized bandwidth. The Commission also limited the antenna height above ground of these systems to 15 meters. 19. Pleadings. The Part 15 Coalition proposes that the Commission make the height and power restrictions more strict, while Amtech suggests that they be relaxed in certain circumstances. The Part 15 Coalition contends that the Commission's definition of non-multilateration systems includes virtually any vehicular communications technology, including cellular and PCS. Further, it asserts that true "tag- reader" technologies require at most a few watts of power. The Part 15 Coalition submits that such high- power operations might not pose a significant threat of interference to Part 15 technologies if confined to highway toll plazas and railroad sidings, but that high-power systems with no geographic limits will overwhelm Part 15 operations in their vicinity. The Part 15 Coalition therefore requests that the Commission either (1) reduce the applicable power limitation for non-multilateration LMS systems to one watt, or (2) require that all such systems be operated within 50 meters of a highway toll plaza or rail siding. 20. Most parties addressing the issue believe that the Part 15 Coalition's proposal would unduly restrict non-multilateration operators. For example, Pinpoint and Texas Instruments argue that granting the Part 15 Coalition's proposal would foreclose operation of non-multilateration systems that are not tag readers, such as might be used in parking facilities to monitor permissible incoming and outgoing vehicles. Hughes submits that the Part 15 Coalition's modification would limit non-multilateration operators' ability to maintain current services and develop and implement new ones. 21. Unlike the Part 15 Coalition, Amtech contends that the height and power limits adopted in the LMS Report and Order are too restrictive. For example, with respect to the height restriction, Amtech submits that readers used by airport authorities to monitor taxis and ground commercial transportation services sometimes are placed at locations less than 15 meters above the applicable arrival or departure ramp, but more than 15 meters above the ground. With respect to the power limitation, Amtech asserts that a railway company would need unconventional antennas in order to monitor rail cars in high speed multiple track situations. Amtech therefore suggests that antenna heights greater than 15 meters should be permitted if the ERP is limited to 30 watts, and if the energy radiated toward the horizon is reduced such that the resultant radiated electric field is no more than 90 dBuV/m at a distance of one mile from the site at a height of six feet. Amtech also suggests that a system be permitted to exceed 30 watts ERP if the resultant radiated electric field is no more than 90 dBuV/m at a distance of one mile from the site and at a height of six feet (or 96 dBuV/m at one kilometer and a receive height of two meters). 22. A number of parties oppose Amtech's suggestion. They contend that allowing non- multilateration operators to exceed the height or power restrictions could significantly increase the potential for interference to Part 15 users. The Ad Hoc Gas Distribution Utilities Coalition agrees with Amtech that allowing non-multilateration systems flexibility to exceed the height limitations may be acceptable with appropriate safeguards, but would not permit non-multilateration systems to exceed the power limits. Indeed, Ad Hoc Gas believes that 30 watts is too high a power limitation for a band designed to be shared and suggests that emissions from LMS base station and mobile transmitters operating from 903-927.25 MHz be limited to 10 watts ERP, except where highly directional antenna are employed. 23. Discussion. The LMS Report and Order concluded that the power and antenna height restrictions will allow non-multilateration systems to share spectrum more easily with other non- multilateration systems and with Part 15 users. It also concluded that the power and antenna height limitations will permit greater frequency reuse. We continue to believe that the definition and technical specifications of non-multilateration LMS systems adopted in the LMS Report and Order reflect a reasoned balancing of the interests of the various users of the 902-928 MHz band, and no new information has been introduced into the record of this proceeding to persuade us otherwise. The restrictions advocated by the Part 15 Coalition and others would unduly limit non-multilateration operations, jeopardizing future technological developments that could be crucial to the advancement of Intelligent Transportation Systems. On the other hand, the higher limitations suggested by Amtech could increase the potential for interference within the band. We believe that our requirements are most conducive to continued sharing of this band, and thus we decline to modify the power and antenna height restrictions we adopted in the LMS Report and Order. We believe that the antenna height and transmitting power limits in the current rule accommodate most of the common non-multilateration applications that would be appropriate for operation in this shared spectrum. However, in the event that unique practical considerations of a particular installation necessitate a higher antenna mounting height, such as the airport example cited by Amtech, we would consider waiving the rule on a case-by-case basis to allow the higher antenna height (but not higher power), provided that other comparable technical trade-offs, such as reduced power or confined antenna radiation patterns, are employed to limit the interference potential. 2. Licensing Issues 24. Background. In the LMS Report and Order, we decided to license non-multilateration LMS systems on a shared basis because these systems generally cover relatively short distances, and because of our belief that licensing based on a fixed mileage separation would limit re-use of spectrum and thereby limit the potential uses of non-multilateration systems. The Commission declined to adopt a blanket licensing scheme for non-multilateration systems whereby, for example, a licensee would be permitted to locate transmitter sites anywhere within a given geographic area. The Commission instead decided to require non-multilateration systems to acquire licenses for each site, concluding that a blanket licensing approach would make it difficult for the Commission and the public to ascertain the exact location of LMS transmitters. 25. The Interagency Group reiterates its request that the Commission devise a blanket authorization procedure for non-multilateration systems used in large scale public service projects (i.e., publicly-funded public service non-multilateration systems with multiple sites and multiple readers at individual sites). It notes that the LMS Report and Order declined to do this, reasoning that applicants and co-users need to know exactly where systems are located in order to avoid interference. The Interagency Group submits that it does not advocate blanket licensing for all non-multilateration systems, but only those used in large-scale public service projects. Moreover, the Interagency Group argues, it is not seeking to obtain licensing for unidentified sites but seeks a streamlined, single application procedure for obtaining all licenses required to operate all necessary sites on a system-wide basis after such sites have been identified. In other words, instead of separately considering the applications of each member of the Interagency Group, which consists of eight different public transportation authorities, the Commission would receive and consider joint applications for purposes of deploying a single, region-wide toll collection system. The Interagency Group submits that this would facilitate planning, promote administrative efficiency and ensure that necessary frequencies will be available during a lengthy build-out period. Amtech and Hughes support the Interagency Group's suggestion. 26. In addition, Ad Hoc Gas urges the Commission to revise its rules to make clear that non- multilateration systems are to limit their transmissions to a confined area and will not be licensed to provide communications over an extended area. In opposition, Texas Instruments (TI) submits that not all non-multilateration systems operate over a limited contiguous area, and argues that the future of the intelligent highway system requires that vehicles be able to interact with transponders that do not emit over one contiguous area. For example, TI posits that a commuter of the future on a typical trip home at the end of a workday may, via non-multilateration LMS technology, enter his or her car without keys, exit a parking garage without stopping at the gate, pass through toll plazas uninterrupted and refuel without stopping to pay. TI asserts that this is only possible because the commuter's vehicle has interacted at various times with different transponders that do not emit over one contiguous area. 27. Discussion. We are persuaded by the Interagency Group that it would be administratively expedient to establish a mechanism by which public agencies and other entities can file joint applications for non-multilateration systems for purposes of deploying a single, region-wide system with multiple sites and multiple readers at individual sites. While we anticipate that this mechanism will be used primarily by municipalities and government agencies, we also believe that other entities seeking to establish multiple-site systems should also be able to use a streamlined application procedure. We will thus permit applicants to file a single application for a non-multilateration license covering multiple sites within a given U.S. Department of Commerce Bureau of Economic Analysis Economic Area (EA). Such an application may also be filed jointly by multiple users of a single system. In order to avoid uncertainty for other users of the band, the application must identify all planned sites and, after receiving the license, the licensee must notify the Commission if sites are deleted or if new sites are added before those sites become operational. We will revise our rules accordingly. We decline, however, to revise our rules as requested by Ad Hoc Gas to specify that the transmissions of non-multilateration systems are limited to a confined area. We believe that this could unnecessarily limit such systems' flexibility to configure their facilities for particular uses. B. Accommodation of Secondary Users in the 902-928 MHz Band 28. Background. To accommodate the concerns of Part 15 interests regarding their secondary status vis-a-vis LMS, the LMS Report and Order adopted a "safe harbor" within which Part 15 devices may operate without fear of being deemed to cause interference to LMS operators. Specifically, a Part 15 device will, by definition, not be considered to be causing interference to a multilateration LMS system if it is otherwise operating in accordance with the provisions of Part 15 and meets at least one of the following conditions: (a) it is a Part 15 field disturbance sensor operating in compliance with Section 15.245 of the rules and it is not operating in the 904-909.750 or 919.750-928.000 MHz sub-bands; or (b) it does not employ an outdoor antenna; or, (c) if it does employ an outdoor antenna, then if (1) the directional gain of the antenna does not exceed 6 dBi, or if the directional gain of the antenna exceeds 6 dBi, it reduces its transmitter output power below 1 watt by the proportional amount that the directional gain of the antenna exceeds 6 dBi; and, (2) either (A) the antenna is 5 meters or less in height above ground; or, (B) the antenna is more than 5 meters in height above ground but less than or equal to 15 meters in height above ground and either: (i) adjusts its transmitter output power below 1 watt by 20 log (h/5) dB, where h is the height above ground of the antenna in meters; or, (ii) is providing the final link for communications of entities eligible under Subparts B or C of Part 90 of the rules. 29. In its Order on Reconsideration in this proceeding, the Commission denied requests by petitioners that the Part 15 safe harbor instead be treated as a rebuttable presumption, i.e., that LMS licensees be permitted to file complaints of interference regarding Part 15 devices operating within the safe harbor if the LMS licensees believe those Part 15 devices are causing harmful interference. The Commission concluded that the safe harbor approach represented an appropriate balancing of the interests of the various parties sharing the 902-928 MHz band. In this Memorandum Opinion and Order, we address petitioners' other contentions regarding the safe harbor. Specifically, petitioners also challenged the technical parameters of the safe harbor and argued that the Commission acted in violation of the Administrative Procedure Act (APA), 5 U.S.C.  551, et seq. In addition, some petitioners ask that the safe harbor apply to non-multilateration LMS operators as well as multilateration operators. 1. Parameters of Safe Harbor 30. Pleadings. A number of parties who support the concept of a safe harbor oppose the height and power restrictions adopted by the Commission. Some of them contend that the height limit should be eliminated, or at least raised to accommodate schools, libraries and other users that might locate their antennas on top of buildings or street light poles. If the Commission does not eliminate or relax the height/power requirements, some parties suggest that it add educational users to the exemption of Section 90.361(c)(2)(ii)(B), which now permits public safety and special emergency users to employ full power with antennas up to 15 meters. Similarly, UTC suggests revising the rule so that entities listed in Section 90.63 of the Commission's Rules (i.e., Power Radio Service entities such as utilities) will not be subject to the height/power restriction. Metricom submits that the safe harbor limits should not apply to mobile and portable Part 15 devices. It posits that a cordless phone being operated off a 50th floor balcony as part of a wireless network should not be subject to complaints of interference from LMS providers. In addition, some parties contend that the height and power restrictions are arbitrary in that they would not necessarily achieve their intended purpose of minimizing interference to LMS operators. For example, the Part 15 Coalition argues that an antenna operation five meters above ground on a mountaintop could cause more interference than an antenna 50 feet above ground located on average terrain. 31. Other parties, most of whom oppose the idea of a Part 15 safe harbor, urge the Commission not to relax the height and power restrictions. Indeed, some of these parties would tighten the parameters of the safe harbor. For example, Uniplex believes that the safe harbor should not include Part 15 devices that are within a given distance of LMS operations, and would apply that distance variable to indoor antennas. Pinpoint would limit the application of the safe harbor to Part 15 operations with antenna heights of five meters or less. Pinpoint contends that the height/power attenuation rule has the undesirable effect of allowing more powerful systems at 15 meters antenna height than at 5 meters to be insulated from interference complaints. Further, Pinpoint argues that any interference tolerance standard should be measured at the base station site (i.e., the receiver of interference) and not based on height and power of Part 15 devices. The American Radio Relay League contends that the safe harbor effectively places a power limit on amateur operators that does not exist in other bands and that the power limit is so severe that it precludes amateur operation in any segment of the 902-928 MHz band used for multilateration LMS. It further contends that the safe harbor was designed with Part 15 devices in mind rather than amateur radio operators. 32. Discussion. We believe that the safe harbor rule, which was adopted after careful study of the extensive record in this proceeding, appropriately balances the interests of the various parties operating in the 902-928 MHz band so as to limit the potential for harmful interference. In the LMS Report and Order, the Commission affirmed that unlicensed Part 15 devices in the band, as in any other band, may not cause harmful interference to and must accept interference from all other operations in the band. It also reiterated that unlicensed Part 15 operations have no vested or recognizable right to continued use of any given frequency. Nonetheless, the Commission recognized the concerns of Part 15 and amateur interests with respect to their secondary status. Accordingly, in order to alleviate such concerns and to provide all operators in the band with a greater degree of certainty in configuring their systems, thereby promoting competitive use of the band, the Commission adopted the safe harbor definition of non-interference. 33. The safe harbor rule is intended to identify Part 15 and amateur operations that will, in all cases, be deemed not to cause harmful interference to LMS operators. The Commission emphasized in the LMS Report and Order that Part 15 and amateur operations are not restricted from operating beyond the parameters of the safe harbor. Rather, the safe harbor specifications provide a threshold beyond which Part 15 and amateur operators will not be insulated from LMS operators' claims of harmful interference. We therefore do not believe it necessary to add exemptions to the safe harbor as urged by some petitioners. 34. Moreover, the technical specifications of the rule were clearly explained in the LMS Report and Order. In general, amateur operators or Part 15 devices using outdoor antennas that are between five and 15 meters above the ground must reduce their output power concomitant with the height of their antennas in order to fit within the safe harbor. The Commission observed that an antenna less than five meters in height driven by a transmitter with one watt or less of output power (the general power limitation for Part 15 devices) will only affect LMS operations that are geographically close. A higher antenna, however, has the potential to affect a larger number of LMS operations. The Commission concluded that the power adjustment assures that between 5 and 15 meters, an outdoor antenna has the equivalent effect on multilateration LMS operations of an antenna five meters high using no more than 1 watt transmitter output power. We continue to believe that these specifications appropriately balance the interests of all the parties in minimizing interference. 35. We do not believe, as Metricom suggests, that the term "final link" in Section 90.361(c)(2)(ii)(B) of the Commission's rules requires clarification. Metricom asserts that the meaning of "final link" is open to interpretation because the Commission does not define the term. Metricom proposes that it be read as encompassing the entire complement of Part 15 devices that carries, or is available to carry, communications ultimately intended for entities eligible under Subparts B or C of Part 90 of the Rules. However, what Metricom proposes would in fact expand the definition of "final link" beyond its intended scope. The term "final link" is that link in a communications system which terminates with the Part 15 device used by or within the control of the Subpart B or C eligible entity. The term does not apply to other links in the system used to support such communications, e.g., intermediate links or links used by non-Subpart B or C entities. Therefore, we decline to expand the list of operations included under "final link" as proposed by Metricom. 36. We are persuaded by petitioners, however, that we should expand Section 90.361(c)(2)(ii)(B) of the Commission's Rules to include schools, libraries and rural health care providers within the safe harbor, permitting them to employ full power with antennas up to 15 meters. It is apparent from the record that many such institutions, particularly schools, may wish to use Part 15 devices that operate in this band, as well as similar devices that operate in the 5 GHz National Information Infrastructure (NII) band, to connect to the Internet and other on-line resources. In addition to being invaluable research tools, such resources enhance the ability of students, teachers and parents to communicate with one another, as pointed out by the Connectivity for Higher Learning Coalition. We believe that inexpensive access to the national information infrastructure by our nation's educational institutions is of sufficiently significant benefit to the public to warrant special protection for this limited class of Part 15 devices. Further, the universal service provisions of Section 254 of the Communications Act, as amended by the Telecommunications Act of 1996, single out schools, libraries and public or nonprofit health care providers serving residents of rural areas as deserving of special attention so as to enable them to satisfy their communications needs. Accordingly, we will include within the safe harbor elementary and secondary schools, libraries and health care providers for rural areas as defined by Section 254. 37. Further, we recognize that unlike Part 15 devices, the vast majority of which could operate within the safe harbor, amateur radio operations typically would not fit within the safe harbor provisions. Nevertheless, to the extent that amateur operators wish to employ the 902-928 MHz band and to operate within the safe harbor provisions, they should have the same protection as Part 15 devices. Further, we reiterate that failure to fit within the safe harbor provisions does not prevent operations; such operations may continue exactly as before, but are not protected from LMS operators' claims of interference. 38. In addition, AirTouch/Teletrac asks that the Commission clarify whether video links are included in the category of "unprotected" Part 15 devices for purposes of determining eligibility for the safe harbor. They are not. The LMS Report and Order specifically provided that long-range video links will not be permitted to take advantage of the safe harbor. We stated that "because multilateration entities concur that most Part 15 interference to multilateration LMS systems is likely to be from field disturbance sensors and long range video links, we will not make any presumption of interference-free operations for these devices when they operate in the exclusive-use bands." 2. Extend Safe Harbor to Non-Multilateration 39. Pleadings. Metricom suggests that the safe harbor should apply with respect to non- multilateration operators as well as multilateration operators. It is concerned that non-multilateration operators will have the same problems sharing the band as multilateration operators, and argues that it is illogical to create a rule whereby Part 15 devices are protected from claims of interference by multilateration LMS systems but may be deemed to cause interference to non- multilateration LMS systems. Other parties disagree, arguing that non-multilateration LMS systems and Part 15 devices do not have interference conflicts similar to those of multilateration LMS systems and Part 15 devices. 40. Discussion. The safe harbor was intended as a way to reduce interference conflicts between multilateration LMS operators and Part 15 devices and amateur operators in the 902-928 MHz band. Specifically, it was designed to provide parameters within which a Part 15 device or amateur operator could operate without being subject to a claim that it was interfering with the signal of a multilateration LMS operator. Because non-multilateration systems generally employ narrowband technology and operate at lower power levels, it is less likely that Part 15 devices and amateur operators will interfere with them, as compared with multilateration LMS systems, which use wider bandwidth emissions and operate at higher power levels. Because the range of non-multilateration devices is relatively small, there is less chance of Part 15 and amateur radio devices being located within their area of operation. Moreover, the record does not reveal actual or potential interference between non-multilateration and Part 15 devices. To the contrary, there appears to be substantial evidence that there is little likelihood of interference. For these reasons, we do not believe that it is either necessary or appropriate to extend the definition of the safe harbor so as to insulate Part 15 and amateur operators from claims of interference by non-multilateration systems. 3. Administrative Procedure Act 41. Pleadings. Some petitioners contend that the Commission's adoption of a safe harbor was a violation of the Administrative Procedure Act (APA), because it was not proposed in the Notice in this proceeding and was therefore adopted without the required notice and opportunity for public comment. Other parties disagree, contending that the safe harbor was a logical outgrowth of the issues raised in the Notice. 42. Discussion. We do not agree that the safe harbor setting forth conditions that will not be considered harmful interference from amateurs and Part 15 devices violated the APA. The APA requires an agency to provide the public with "either the terms or the substance of a proposed rule or a description of the subject and issues involved." The APA, however, "does not require an agency to publish in advance every precise proposal which it may ultimately adopt as a rule." Rather, the notice is sufficient if the final rule is a "logical outgrowth" of the underlying proposal. We believe that the safe harbor was a logical outgrowth of the Notice of Proposed Rule Making in this proceeding, which sought comment on ways to accommodate the various users of the 902-928 MHz band and identified specifically the problems surrounding coexistence of Part 15 and licensed users of the band. Moreover, the suggestion of a Part 15 safe harbor was discussed in publicly-filed ex parte submissions. C. Spectrum Allocation Plan 43. Background. The LMS Report and Order allocated the entire 902-928 MHz frequency band for LMS systems, generally separating multilateration and non-multilateration operations, as follows: A: 902.000 - 904.000 Non-Multilateration B: 904.000 - 909.750 Multilateration C: 909.750 - 919.750 Non-Multilateration D: 919.750 - 921.750 Multilateration and Non-Multilateration E: 921.750 - 927.250 Multilateration F: 927.250 - 927.500 Narrow band associated with sub-band E G: 927.500 - 927.750 Narrow band associated with sub-band D H: 927.750 - 928.000 Narrow band associated with sub-band B Thus, we concluded that bands B and E will be assigned to multilateration systems. Bands A and C will be assigned to non-multilateration systems. Band D will be subject to both multilateration and non- multilateration use. Licensees of bands B, D and E will be assigned narrow bands H, G and F, respectively. Operators requiring additional spectrum will be permitted to aggregate bands to obtain up to eight MHz in a given region through the aggregation of bands D and G and bands E and F. We concluded that licensees may not otherwise be authorized to operate on more than one of the multilateration bands in a given geographic area. 44. Pleadings. SBMS contends that the designation of Band D for sharing between multilateration and non-multilateration systems is unworkable and will increase interference. It submits that the Notice in this proceeding proposed separate allocations for multilateration and non- multilateration systems and that designating Band D for sharing was in response to Amtech's argument that additional contiguous spectrum was necessary for its non-multilateration operations. SBMS reiterates its call for an allocation plan that offers reverse link spectrum in discrete two MHz increments, grants auction winners free alienability of bandwidth, and allows participants to acquire multiple two MHz blocks in any particular market. It asserts that an allocation plan with these characteristics will deter warehousing, promote competition, reward providers that employ spectrum-saving technologies, and result in lower costs to consumers. Further, SBMS posits that auctioning of smaller spectrum blocks would likely encourage participation by smaller entities. 45. Amtech urges the Commission to reject the SBMS approach. It also requests that the Commission modify its spectrum allocation plan to allow non-multilateration systems an additional 2 MHz of contiguous spectrum by permitting them to operate in subband E on a shared basis with multilateration systems. Amtech contends that the 12 MHz of contiguous spectrum available to non- multilateration operators under the band plan is the absolute minimum amount of spectrum required for new high-rate data applications. It submits that non-multilateration operators need more flexibility to facilitate resolution of interference. 46. In addition, Pinpoint and Uniplex propose that the Commission designate a sub-band for multilateration LMS systems that are willing to share spectrum that would not be subject to competitive bidding. Uniplex contends that this would preserve and encourage small entrepreneurial companies in this service and increase the value of the spectrum available for bidding. Pinpoint details its own time sharing experiment with Uniplex to illustrate that sharing among multilateration operators is feasible. A number of parties disagree with the Pinpoint/Uniplex proposal. For example, MobileVision contends that time sharing among multilateration LMS systems would not work because there is no common ground for arriving at a set of specifications, essential emergency voice communications would be rendered unusable, and an LMS system's reliability, capacity and integrity would be compromised. 47. Another change to the band plan supported by some parties is the reclassification of Part 15 devices as co-primary in parts of the band. These parties contend that this will eliminate their interference concerns and will promote the development of valuable Part 15 technology. Similarly, Safetran is concerned that the adopted frequency allocation will result in congestion and interference that will render ineffective direct sequence modulation spread spectrum radio, which is a Part 15 type of radio service used by railway companies. It suggests that certain portions of the band be allocated for this type of low power emission. 48. Discussion. As we stated in the LMS Report and Order, we believe that both multilateration and non-multilateration LMS systems will play an important role in achieving a nationwide intelligent highway infrastructure. We accordingly devised a band plan that, for the most part, creates separate allocations for the two types of LMS systems and takes into consideration the interference concerns of non-LMS users of the 902-928 MHz band. Upon review of parties' responses to our Notice of Proposed Rule Making in this proceeding, however, we decided to allocate the 2 MHz of subband D to be shared by multilateration and non-multilateration users so as to provide non-multilateration users with the possibility of obtaining additional contiguous spectrum. 49. We do not agree with SMBS that our band plan was illogical or that sharing between multilateration and non-multilateration operators is not feasible. Because we agree that it is preferable that multilateration and non-multilateration facilities do not operate in the same spectrum, we adopted a band plan that, for the most part, allocated separate blocks of spectrum for multilateration and non- multilateration systems. Our modification to the proposed band plan represented an effort to respond to the concern that some non-multilateration systems might need additional spectrum, without taking any spectrum away from multilateration users. We concluded that it would be appropriate to permit those few multilateration users the opportunity to obtain additional spectrum by permitting them to share the 2 MHz of subband D. We considered the SBMS band plan earlier in this proceeding and declined to adopt it. SMBS has raised no new issues or arguments that persuade us that their plan is superior to the plan we adopted in the LMS Report and Order. 50. In addition, we decline to adopt Amtech's suggestion that we allocate an additional 2 MHz of contiguous spectrum for non-multilateration providers. We believe that the band plan adopted in the LMS Report and Order appropriately balances the needs and interests of multilateration and non- multilateration operators, as well as Part 15 and amateur users of the band. For this reason, we also decline to adopt exclusive subbands for parties willing to time-share, or for Part 15 users. Doing so would upset the equilibrium among users of the band. Such an allocation would also ignore the secondary status of Part 15 providers in that it would afford unlicensed devices co-primary status vis-a- vis licensed operators. D. Geographic Areas for Exclusive Licenses 51. Background. Rand McNally organizes the 50 states and the District of Columbia into 47 Major Trading Areas (MTAs) and 487 Basic Trading Areas (BTAs). In the LMS Report and Order, the Commission concluded that MTAs and four additional MTA-like service areas provide a more suitable regulatory construct for multilateration licensing than the smaller BTAs. The Commission determined that use of MTAs, as defined in the Rand McNally Commercial Atlas and Marketing Guide, will give systems greater capacity to accommodate large number of prospective users which, in turn, will promote competition and encourage advancement of new technologies. The rules adopted in the LMS Report and Order provide for one exclusive multilateration system license in each MTA in each of the sub-bands identified for exclusive assignments (B and H, D and G, E and F). 52. Pleadings: Rand McNally submits that it is the copyright owner of the MTA/BTA Listings and the Commercial Atlas and Marketing Guide and that it has not licensed use of its MTA/BTA listings in connection with LMS. It asserts that the Commission should encourage prospective LMS licensees to contact Rand McNally to arrange licensing, and should explicitly acknowledge that the use of MTAs requires Rand McNally's consent, as it did in the 900 MHz SMR proceeding. 53. In addition, SBMS notes that the rules require construction of a substantial portion of at least one BTA per MTA within 12 months after initial authorization. SBMS is concerned that licensing on an MTA basis will encourage warehousing in light of this BTA-based build-out requirement. It contends that an LMS operator could meet this minimum standard by constructing and testing in a low-demand rural BTA, and could warehouse the rest of the MTA. 54. Discussion. After a thorough review of the record in this proceeding and upon further reflection regarding this issue, we conclude that the relevant geographic areas for multilateration LMS licenses should be based on U.S. Department of Commerce Bureau of Economic Analysis Economic Areas (EAs). There are 172 EAs covering the continental United States. 55. Because EAs have not been established for the five U.S. possessions (Guam, Northern Mariana Islands, Puerto Rico, U.S. Virgin Islands, American Samoa), we will create additional licensing regions for systems operating in these territories as well as for the Gulf of Mexico. Specifically, we will designate the following additional licensing regions: (1) Guam and the Northern Mariana Islands (to be licensed as a single area); (2) Puerto Rico and the U.S. Virgin Islands (to be licensed as a single area); and (3) American Samoa. In addition, Alaska will be licensed as a single area. We believe that EAs are large enough to give systems sufficient capacity to accommodate large numbers of prospective users, which will promote competition, encourage new technologies and result in superior service to the public. At the same time, EAs are small enough to alleviate the BTA/MTA warehousing concerns posited by SMBS. Further, use of smaller geographic units could result in a more diverse group of prospective licensees because EA-based licenses may be more affordable for small and medium-sized businesses than would MTA-based licenses. We conclude that such an outcome not only is desirable but furthers the public interest and one of the goals enunciated in Section 309(j) of the Communications Act. Moreover, EAs are better suited than MTAs to a service aimed at improving the nation's transportation infrastructure because EAs are based on urban, suburban and rural traffic patterns. Further, use of EAs solves the copyright problem raised by Rand McNally, because EAs are published by the U.S. Department of Commerce. E. Multilateration System Operations -- Wideband Forward Links 56. Background. In the LMS Report and Order we allowed LMS multilateration systems to use wideband forward links. A forward link refers to the signal path from the LMS system's fixed base site to its mobile units. The Commission noted that unlike a narrowband forward link, a wideband forward link can operate over a multilateration system's entire authorized sub-band. This concerned Part 15 interests, who, the Commission pointed out, opposed authorization of wideband forward links because they believed that wideband forward links are likely to cause interference to Part 15 devices. The Commission emphasized that grant of multilateration licenses will be conditioned on the applicant's ability to demonstrate through field testing that its system does not cause unacceptable levels of interference to Part 15 devices. It also limited the maximum power of wideband forward links to 30 watts ERP. 57. Pleadings. A number of parties reiterate the concern that wideband forward links will cause harmful interference to Part 15 devices and should therefore not be authorized. They submit that multilateration LMS providers have not shown a compelling need for the links sufficient to counterbalance the potentially severe detriment to Part 15 devices. In the alternative, the Part 15 Coalition calls for antenna height and duty cycle restrictions on such links. 58. Pinpoint and Uniplex, the original proponents of wideband forward links, continue to believe that authorization of such links is appropriate. Pinpoint submits that wideband forward links confer substantial cost and efficiency benefits for high capacity multilateration LMS systems and facilitate the sharing of spectrum by multilateration systems. It asserts, however, that the 30 watt ERP limit and the testing requirement will make the use of such links very difficult. It further contends that there is no evidence that wideband forward links cause the significant levels of interference claimed. Uniplex enumerates a number of advantages to use of wideband forward links rather than narrowband forward links. For example, it submits that a narrowband system attempting to track a person (e.g., a prisoner or an Alzheimer's Disease patient) would have to periodically transmit a fairly high-powered signal from that person, which would require battery capacity beyond that which could be worn by a person, as a practical matter. In contrast, it asserts, a wideband system would only transmit on request so that battery size is manageable. 59. Another difference highlighted by Uniplex is that narrowband forward links must constantly query mobiles and store their locations in a central database, while wideband systems allow for intelligence to be stored in the mobile itself. It asserts that this permits less use of airtime in some applications. For example, Uniplex posits a metropolitan transportation system with 500 buses that has a requirement that central dispatch be alerted if a bus is running two or more minutes off schedule. It submits that while a system with narrowband forward links would have to query all 500 buses every two minutes, wideband forward links would permit each bus to have its own on-board computer with its stored schedule and buses would only report back to dispatch when behind schedule. For similar reasons, Uniplex submits that a wideband prisoner tracking system could accurately monitor the location of a prisoner, while narrowband links can only report when that prisoner has gone out of permissible range. 60. Uniplex asserts that by adopting a stricter power limitation than was proposed in the Notice in this proceeding, in combination with restrictions on grandfathered systems, the Commission has adopted a policy strongly favoring narrowband forward link technology. It argues that this will limit the potential for the emergence of diverse technologies in the band. Accordingly, Uniplex requests that the Commission adopt a 300-watt power limitation with a duty cycle limitation in lieu of the 30-watt power limitation adopted in the LMS Report and Order. It also urges the Commission to permit grandfathered systems to deploy additional sites within a 30-mile radius of the primary site; it contends that this would enable a grandfathered system using a wideband forward link to offer service in an area similar to that of a typical grandfathered narrowband forward link licensee, whose service area would be bound by the range of its outermost 300-watt narrowband forward link sites. 61. Discussion. We believe that elimination of wideband forward links would preclude certain LMS technology options from being developed, to the detriment of consumers. At the same time, we continue to believe that the power limitation of 30 watts ERP is necessary and appropriate to minimize interference to other operators sharing the 902-928 MHz band. As we noted in the LMS Report and Order, limiting base and mobile stations' power levels will lessen the potential for interference between co-channel multilateration systems and will reduce the likelihood of interference to other operations in the 902-928 MHz band. Further, pre-authorization testing will be a condition on the license of multilateration LMS operators seeking to employ wideband forward links. We do not agree with Uniplex that adoption of a duty cycle limitation would allow increased power for wideband forward links without increasing the interference potential. With wideband forward link technology, each vehicular unit to be located must be able to receive transmissions from at least four different forward link transmitters. These transmitters operate sequentially, passing a "token" packet. Consequently, although a duty cycle limitation could be applied to each individual forward link transmitter, considered collectively, there would almost always be at least one transmitter transmitting in an area at any given time. Taking into consideration the greater range of a base transmitter, as compared to a mobile transmitter, and the amount of spectrum occupied by the wideband forward link, we believe allowing higher power for wideband forward links would unacceptably increase band congestion. 62. Also, we decline to permit grandfathered systems to deploy additional transmitters on the basis of a 30-mile radius. Uniplex's reason for asking for this is essentially to allow comparable coverage for its particular technology as compared to technologies using narrowband forward links. We have found that, in the 902-928 MHz band, it is necessary to have a common set of technical limits in order to facilitate co-occupancy among the various band users. Each different technology operating within these limits, however, will likely have advantages and disadvantages as compared to the others, including the matter of coverage. We do not have sufficient experience with operating LMS systems to craft a rule that would be appropriate for all potential LMS technologies. To the extent that grandfathered systems seek to add fill-in sites that do not increase their coverage footprint, we believe such requests should be handled on a case-by-case basis. 63. Some of the examples posed by Uniplex raise the issue of whether LMS technology may be used to track individuals as well as vehicles. CellNet requests us to clarify that only vehicles or inanimate objects, and not individuals, may be monitored and located via LMS. CellNet is concerned that without this restriction, the possibility increases that paging and messaging services will become the primary offerings on LMS channels. It also suggests that the Commission impose a limit on the number of receivers a company uses for non-vehicular monitoring, rather than defining vehicular location as a company's "primary" business. 64. The rules adopted in the LMS Report and Order permit a multilateration LMS system to provide non-vehicular location services as long as the system's primary operations involve the provision of vehicle location services. We do not share CellNet's concern that LMS will become a paging service. The rule clearly provides that such non-vehicular location functions may not be an LMS operation's primary function. To afford multilateration LMS operators maximum flexibility in designing their systems, we also decline to adopt a specific cap on non-vehicular location services. Non- multilateration LMS operators, on the other hand, are specifically prohibited from offering non-vehicular location services. The Commission adopted this restriction because the spectrum occupied by non- multilateration LMS operators has a heavier concentration of amateur radio operators, Part 15 devices and federal government radiolocation operations than do other portions of the band. We continue to believe that this approach minimizes the potential for interference and we therefore decline to revise our rules. F. Petitions for Reconsideration of Order on Reconsideration 65. On May 30, 1996, three parties filed petitions for reconsideration of the Order on Reconsideration, which, as noted above, had resolved certain issues regarding grandfathering of existing LMS systems that had been raised on reconsideration of the LMS Report and Order. Those petitioners, Amtech Corporation, Pinpoint Communication Networks, Inc., and Teletrac License, Inc., seek reconsideration of different aspects of the Order on Reconsideration. For the reasons detailed below, each of these petitions is denied, except that we will make a technical correction to the rules requested by Amtech. 66. Amtech Petition. Amtech, a non-multilateration LMS provider, asserts that the Commission should revise the emission mask specifications of Section 90.209 as applied to transmitters with less than two watts output power. Specifically, Amtech proposes that the attenuation for out-of-band emissions produced by non-multilateration transmitters of two watts or less be specified as 43 + 10 Log(P) rather than 55 + 10 Log(P). Amtech contends that it has employed this limit for a number of years and that it is the same limit applied in other contexts for systems that can have greater height and power than non- multilateration systems. Amtech argues that use of the stricter 55 + 10 Log(P) standard imposes significant costs and is not necessary due to the limited interference potential of non-multilateration systems. We are not persuaded that Amtech has presented sufficient evidence to support its contention that the standard adopted in the LMS Report and Order is overly restrictive. We continue to believe that that standard is the most appropriate given the disparate users of the 902-928 MHz band. 67. Amtech also urges the Commission to revise the relevant emission mask rule (formerly Section 90.209, now Section 90.210) to conform with the rule as originally adopted in the LMS Report and Order, wherein the attenuation applied at the edge of the licensee's LMS subband rather than at the edge of the "authorized bandwidth." We did not intend in the Order on Reconsideration to revise the emission mask for non-multilateration LMS licensees and we will make appropriate changes to Section 90.210 to make that clear. 68. Pinpoint Petition. Pinpoint, a multilateration LMS licensee, takes issue with the statement in the Order on Reconsideration that [T]he Commission seeks to ensure not only that Part 15 operators refrain from causing harmful interference to LMS systems, but also that LMS systems are not operated in such a manner as to degrade, obstruct or interrupt Part 15 devices to such an extent that Part 15 operations will be negatively affected. Pinpoint contends that this language is inconsistent with Part 15 devices' secondary status in the LMS band and that it constitutes a "new standard" with respect to LMS operators' obligations vis-a-vis Part 15 devices. Pinpoint argues that this "new standard" conflicts with the statement in the LMS Report and Order that unlicensed Part 15 devices "may not cause harmful interference to and must accept interference from all other operations in the band." 69. The language in the Order on Reconsideration cited by Pinpoint does not mean that Part 15 devices are entitled to protection from interference. They are not. Rather, we were explaining our decision to place a testing condition on multilateration LMS licenses. The purpose of the testing condition is to insure that multilateration LMS licensees, when designing and constructing their systems, take into consideration a goal of minimizing interference to existing deployments or systems of Part 15 devices in their area, and to verify through cooperative testing that this goal has been served. 70. Teletrac Petition. Teletrac seeks reconsideration of the restriction in Section 90.363(a) of the Commission's Rules, originally adopted in the LMS Report and Order and affirmed in the Order on Reconsideration, that limits site relocation for grandfathered LMS licensees to within two kilometers of their authorized site. Teletrac submits that removing this restriction would be in the public interest because it would permit grandfathered multilateration LMS operators to improve the efficiency of their systems. We are not persuaded that Teletrac has raised any new arguments to justify our further reconsideration of this rule. We note that we have granted Teletrac waivers of this rule with respect to three specific sites. 71. Teletrac also urges the Commission to clarify that the Part 15 safe harbor only applies to Part 15 operations authorized pursuant to the Part 15 rules in effect at the time the safe harbor rule was adopted. Teletrac submits that the presumption of non-interference in the safe harbor rule assumes that the Part 15 rules as they existed when the safe harbor rule was adopted will remain in place. Teletrac notes that the Commission has proposed changes to the rules. Since the time Teletrac raised this point, the Commission has adopted changes to the Part 15 rules. We do not believe that the modified rules conflict with the safe harbor. To the extent Teletrac continues to have concerns that the new rules are incompatible with the safe harbor, it should detail those concerns with the Commission. IV. COMPETITIVE BIDDING FOR MULTILATERATION LMS LICENSEES FURTHER NOTICE OF PROPOSED RULE MAKING 72. In the LMS Report and Order, the Commission decided to use competitive bidding to select from mutually exclusive applications for multilateration LMS licenses. The Commission reached this decision based on its conclusion that the statutory criteria for auctioning licenses, which are set forth in Section 309(j) of the Communications Act, 47 U.S.C.  309(j), are satisfied. More specifically, the Commission found (1) that its decision to offer multilateration LMS licenses on an exclusive basis makes it likely that mutually exclusive applications for such licenses will be filed; (2) that multilateration LMS licenses will be used principally to offer for-profit, subscriber-based services; and, (3) that the use of competitive bidding for these licenses will promote the public interest objectives set forth in Section 309(j)(3). 73. Under the spectrum plan we adopted in the LMS Report and Order and reaffirm here, three blocks of spectrum are allocated to multilateration LMS systems: (1) 904.000-909.750 MHz and 927.750-928.000 MHz; (2) 919.750-921.750 MHz and 927.500-927.750 MHz; and, (3) 921.750-927.250 MHz and 927.250-927.500 MHz. One license will be awarded for each of these spectrum blocks in each of 176 EAs. Thus, there are a total of 528 multilateration LMS licenses to be auctioned. 74. We anticipate conducting the auction for multilateration LMS frequencies in conformity with the general competitive bidding rules proposed to be included in Part 1, Subpart Q of the Commission's Rules, and substantially consistent with the auctions that have been employed in other wireless services. We propose to adopt for the LMS auction the simultaneous multiple round competitive bidding design used in the PCS auctions. Multiple round bidding should provide more information to bidders than single round bidding during the auction about the values of the licenses. We seek comment on this proposal. We also tentatively conclude that the LMS auction will follow the general competitive bidding procedures of Part 1, Subpart Q. We seek comment on this tentative conclusion. 75. Small Businesses. Our auction rules for other services generally include special provisions - - such as bidding credits and installment payments -- designed to fulfill our statutory mandate to ensure that small businesses have the opportunity to participate in the provision of spectrum-based services. In the Second Memorandum Opinion and Order in the competitive bidding docket, we indicated that we would establish definitions for "small business" on a service-by-service basis. We therefore seek comment regarding the establishment of a small business definition for multilateration LMS. Commenters should discuss the level of capital commitment that is likely to be required to purchase a multilateration LMS license at auction and create a viable business. We also seek comment on what small business provisions should be offered to multilateration LMS small business entities. Our goal, should we adopt a special provision(s) for one or more categories of small businesses, will be to remove entry barriers so as to ensure the participation of small businesses in the auction and in the provision of service. If we adopt special provisions for small businesses, we propose that our unjust enrichment rules apply as set forth in Part 1, Subpart Q. 76. In other services we also adopted attribution rules for purposes of determining small business status. We tentatively conclude that for LMS we should attribute the gross revenues of all controlling principals in the small business applicant as well as its affiliates. We seek comment on this tentative conclusion. We also seek comment on whether small business provisions are sufficient to promote participation by businesses owned by minorities, women, or rural telephone companies. To the extent that commenters propose additional provisions to ensure participation by minority-owned or women-owned businesses, we ask them to address how such provisions should be crafted to meet the relevant standards of judicial review. 77. Partitioning and Disaggregation. We propose to allow multilateration LMS licensees to partition their geographic license area and disaggregate portions of their spectrum. We anticipate that this will, among other things, help to remove entry barriers for small businesses. We seek comment on this proposal. 78. If we determine that special provisions for small business are appropriate for LMS auctions, we tentatively conclude that a qualified small business that applies to partition or disaggregate its license to a non-small business entity should be required to repay any benefits it received from special small business provisions. We seek comment on the type of unjust enrichment requirements that should be placed as a condition for approval of an application to partition or disaggregate a license owned by a qualified small business licensee to a non-small business entity. This could include, for example, repayment of any bidding credit that we may adopt for small businesses, and would be applied on a proportional basis. Similarly, if a small business licensee partitions or disaggregates to another qualified small business that would not qualify for the same level of bidding credit, the transferring licensee should be required to repay a portion of the benefit it received. We seek comment on these tentative conclusions. Alternatively, we seek comment on whether we should restrict the partitioning or disaggregation of such licenses when the partitionee or disaggregatee is not within the definition of an entity eligible for such special provisions, or whether, at some point (e.g., a term of years), such restriction on partitioning and disaggregation be removed and the unjust enrichment provisions would apply. We also seek comment on how such unjust enrichment amounts should be calculated, especially in light of the difficulty of devising a methodology or formula that will differentiate the relative market value of the opportunities to provide service to various partitioned areas or to use the amount of spectrum disaggregated. V. CONCLUSION 79. In this Memorandum Opinion and Order, we have carefully considered petitioners' concerns and, for the most part, determined that our prior decisions in this proceeding remain appropriate. We believe that our LMS rules will facilitate the rapid deployment of LMS and will be instrumental in the development of "smart highway" technology. At the same time, we have endeavored to fairly balance the diverse interests of all parties operating in the 902-928 MHz band. We have paid particular attention to the positions of Part 15 and amateur operators and we believe we have created a band plan and accompanying regulatory structure that will enable them to coexist with LMS systems without significant disruption to their operations. VI. ADMINISTRATIVE MATTERS 80. Ex Parte Rules -- Non-Restricted Proceeding. This is a non-restricted notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed as provided in Commission Rules. See generally 47 C.F.R.  1.1202, 1.1203, 1.1206. 81. Regulatory Flexibility. The Initial and Final Regulatory Flexibility Analyses for this Memorandum Opinion and Order, as required by Sections 603 and 604, respectively, of the Regulatory Flexibility Act of 1980, 5 U.S.C.  603-604, is set forth in Appendix B and Appendix C. 82. The Secretary shall send a copy of this Memorandum Opinion and Order, including the Final and Initial Regulatory Flexibility Analyses, to the Chief Counsel for Advocacy of the Small Business Administration in accordance with paragraph 603(a) of the Regulatory Flexibility Act (Pub. L. No. 96-354, 94 Stat. 1164, 4 U.S.C.  601, et seq. (1981)). 83. Comment Dates. Pursuant to applicable procedures set forth in Sections 1.415 and 1.419 of the Commission's rules, 47 C.F.R.  1.415 and 1.419, interested parties may file comments on or before November 5, 1997, and reply comments on or before November 20, 1997. To file formally in this proceeding, you must file an original and four copies of all comments, reply comments, and supporting comments. If you want each Commissioner to receive a personal copy of your comments, you must file an original plus nine copies. You should send comments and reply comments to the Office of the Secretary, Federal Communications Commission, Washington, D.C. 20554. Comments and reply comments will be available for public inspection during regular business hours in the FCC Reference Center of the Federal Communications Commission, Room 239, 1919 M Street, N.W., Washington, D.C. 20554. 84. Paperwork Reduction. The FNPRM has been analyzed with respect to the Paperwork Reduction Act of 1995 and was found to impose no new or modified information collection requirement on the public. Implementation of any new or modified requirement will be subject to approval by the Office of Management and Budget, as prescribed by the Act. VII. ORDERING CLAUSES 85. IT IS ORDERED that, pursuant to the authority of Sections 4(i), 302, 303(r), and 332(a)(2) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 302, 303(r), and 332(a), the rule changes specified in Appendix D are adopted. 86. IT IS FURTHER ORDERED that the rule changes set forth in Appendix D WILL BECOME EFFECTIVE 60 days after publication in the Federal Register. 87. IT IS FURTHER ORDERED that the petitions for reconsideration filed by the parties listed in Appendix A ARE GRANTED to the extent discussed herein, and ARE OTHERWISE DENIED. 88. IT IS FURTHER ORDERED that the petitions for reconsideration of the Order on Reconsideration filed by Pinpoint Communication Networks, Inc. and Teletrac License, Inc. ARE DENIED. 89. IT IS FURTHER ORDERED that the petition for reconsideration of the Order on Reconsideration filed by Amtech Corporation IS GRANTED to the extent specified herein and IS otherwise DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary APPENDIX APLEADINGS Petitions for Reconsideration 1. Ad Hoc Gas Distribution Utilities Coalition (Ad Hoc Gas) 2. AirTouch/Teletrac 3. The American Radio Relay League, Inc. (ARRL) 4. AMTECH Corporation (Amtech) 5. CellNet Data Systems, Inc. (CellNet) 6. Connectivity for Learning Coalition 7. Hughes Transportation Management Systems (Hughes) 8. Intelligent Transportation Society of America (ITSA) 9. Metricom, Inc. and Southern California Edison Company (Metricom/SCE) 10. MobileVision, L.P. (MobileVision) 11. The New Jersey Highway Authority, the New Jersey Turnpike Authority, the New York State Thruway Authority, the Pennsylvania Turnpike Commission, the Metropolitan Transportation Authority Bridges and Tunnels, the Port Authority of New York and New Jersey, the South Jersey Transportation Authority and the Delaware River Port Authority (The Interagency Group). 12. The Part 15 Coalition 13. Pinpoint Communications (Pinpoint) 14. Rand McNally & Company (Rand McNally) 15. Safetran Systems Corporation (Safetran) 16. Southwestern Bell Mobile Systems, Inc. (SBMS) 17. Texas Instruments, Inc. and MFS Network Technologies, Inc. (TI/MFS) 18. Uniplex Corporation (Uniplex) 19. UTC 20. Wireless Transactions Corporation (WTC) Oppositions 1. AirTouch/Teletrac 2. American Telemedicine Association (ATA) 3. AMTECH Corporation 4. Association of American Railroads (AAR) 5. CellNet Data Systems 6. Connectivity for Learning Coalition 7. Hughes Transportation Management Systems 8. Itron Inc. (Itron) 9. Metricom, Inc. and Southern California Edison 10. Mobilevision, L.P. 11. Part 15 Coalition 12. Pinpoint Communications, Inc. 13. Southwestern Bell Mobile Services 14. Texas Instruments, Inc. (TI) 15. Uniplex Corporation Comments on Petitions for Reconsideration 1. Ad Hoc Gas Distribution Utilities Coalition 2. Alarm Industry Communications Committee (Alarm Industry) 3. American Association of State Highway and Transportation Officials 4. AT&T Corp. (AT&T) 5. Electronic Industries Association, Consumer Electronic Group (EIA) 6. Land Mobile Communications Council 7. Symbol Technologies, Inc. (Symbol Technologies) 8. Telecommunications Industry Association, User Premises Equipment Division, Wireless Consumer Communications Section (TIA) 9. UTC Replies 1. Ad Hoc Gas Distribution Utilities Coalition 2. AirTouch/Teletrac 3. Amtech Corporation 4. AT&T Corp. 5. CellNet Data Systems, Inc. 6. The Connectivity for Learning Coalition 7. Electronic Industries Association, Consumer Electronics Group 8. Hughes Transportation Management Systems 9. Itron, Inc. 10. Mark IV Industries, Lt., I.V.H.S. Division (Mark IV) 11. Metricom, Inc., and Southern California Edison Company 12. MobileVision, L.P. 13. Part 15 Coalition 14. Pinpoint Communications 15. Southwestern Bell Mobile Systems 16. Telecommunications Industry Association, User Premises Equipment Division, Wireless Consumer Communications Section 17. Texas Instruments, Inc. and MFS Network Technologies, Inc. (TI/MFS) 18. UTC Other Correspondence 1. Fred Bagg 2. Marcia Davis 3. Peter Fiset 4. Chase Hughes 5. Reed W. Jones 6. Faisal Khan 7. Dr. Jim Lansford 8. Rex Osborn 9. Matt Owens 10. Tom Wessel APPENDIX B INITIAL REGULATORY FLEXIBILITY ANALYSIS Further Notice of Proposed Rulemaking As required by the Regulatory Flexibility Act, see 3 U.S.C.  603, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the expected impact on small entities of the policies and rules proposed and adopted in the Further Notice section of this Report and Order and Further Notice of Proposed Rulemaking (FNPRM). Written public comments are requested on the IRFA and must be filed by the deadlines for comments on the Report and Order and Further Notice of Proposed Rulemaking. A. Reason for Action: This FNPRM was initiated to secure comment on proposals for revising rules for the auction of multilateration Location and Monitoring Service (LMS) frequencies. Such changes to the rules for multilateration LMS would promote efficient licensing and enhance the service's competitive potential in the Commercial Mobile Radio Service marketplace. The adopted and proposed rules are based on the competitive bidding authority of Section 309(j) of the Communications Act of 1934, as amended, 47 U.S.C.  309(j), which authorized the Commission to use auctions to select among mutually exclusive initial applications in certain services, including multilateration LMS. B. Objectives of this Action: The Omnibus Budget Reconciliation Act of 1993 (Budget Act), Pub. L. No. 103-66, Title VI,  6002, and the subsequent Commission actions to implement it are intended to establish a system of competitive bidding for choosing among certain applications for initial licenses, and to carry out statutory mandates that certain designated entities, including small businesses, are afforded an opportunity to participate in the competitive bidding process and in the provision of multilateration LMS services. C. Legal Basis: The proposed action is authorized under the Budget Act and in Sections 4(i), 303(r), and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 303(r) and 309(j). D. Reporting, Recordkeeping, and Other Compliance Requirements: The Commission does not anticipate any additional reporting or recordkeeping requirements resulting from this FNPRM. E. Federal Rules Which Overlap, Duplicate or Conflict With These Rules: None. F. Description, Potential Impact, and Number of Small Entities Involved: The FNPRM would establish certain multilateration LMS spectrum blocks for bidding by smaller entities as well as larger entities, and would grant special provisions to certain eligible entities bidding within those blocks. The Commission is required to estimate in its Final Regulatory Flexibility Analysis the number of small entities to which a rule will apply, provide a description of such entities, and assess the impact of the rule on such entities. To assist the Commission in this analysis, commenters are requested to provide information regarding how many total entities, existing and potential, would be affected by the proposed rules in the FNPRM. In particular, the Commission seeks estimates of how many such entities will be considered small businesses. Geographic Partitioning and Spectrum Disaggregation. The partitioning and disaggregation rule changes proposed in this proceeding will affect all small businesses which avail themselves of these rule changes, including small businesses currently holding multilateration LMS licenses who choose to partition and/or disaggregate and small businesses who may acquire licenses through partitioning and/or disaggregation. The Commission is required to estimate in its Final Regulatory Flexibility Analysis the number of small entities to which a rule will apply, provide a description of such entities, and assess the impact of the rule on such entities. To assist the Commission in this analysis, commenters are requested to provide information regarding how many total entities, existing and potential, would be affected by the proposed rules in the FNPRM. In particular, the Commission seeks estimates of how many such entities will be considered small businesses. As explained in the Final Regulatory Flexibility Analysis for this Report and Order, the Commission is utilizing the SBA definition applicable to radiotelephone companies, i.e., an entity employing less than 1,500 persons. The Commission seeks comment on whether this definition is appropriate for multilateration LMS licensees in this context. Additionally, the Commission requests each commenter to identify whether it is a small business under this definition. If a commenter is a subsidiary of another entity, this information should be provided for both the subsidiary and the parent corporation or entity. The number of small entities that will be affected is unknown. New entrants could obtain multilateration LMS licenses through the competitive bidding procedure, and take the opportunity to partition and/or disaggregate a license or obtain an additional license through partitioning or disaggregation. Additionally, entities that are neither incumbent licensees nor geographic area licensees could enter the market by obtaining a multilateration LMS license through partitioning or disaggregation. The Commission cannot estimate how many licensees or potential licensees could take the opportunity to partition and/or disaggregate a license or obtain a license through partitioning and/or disaggregation, because it has not yet determined the size or number of multilateration LMS licenses that will be granted in the future. Given the fact that nearly all wireless communications companies have fewer than 1,000 employees, and that no reliable estimate of the number of future multilateration LMS licensees can be made, the Commission assumes for purposes of this IRFA that all of the licenses will be awarded to small businesses. It is possible that a significant number of the potential licensees who could take the opportunity to partition and/or disaggregate a license or who could obtain a license through partitioning and/or disaggregation will be small businesses. G. Any Significant Alternatives Minimizing the Impact on Small Entities Consistent with the Stated Objectives: With respect to partitioning and disaggregation, the Commission tentatively concludes that unjust enrichment provisions should apply when a licensee has benefitted from the small business provisions in the auction rules and applies to partition or disaggregate a portion of the geographic license area to another entity that would not qualify for such benefits. The alternative to applying the unjust enrichment provisions would be to allow an entity who had benefitted from the special bidding provisions for small businesses to become unjustly enriched by partitioning or disaggregating a portion of their license area to parties that do not qualify for such benefits. The FNPRM proposes certain provisions for smaller entities designed to ensure that such entities have the opportunity to participate in the competitive bidding process and in the provision of multilateration LMS services. Any significant alternatives presented in the comments will be considered. IRFA Comments: We request written public comment on the foregoing Initial Regulatory Flexibility Analysis. Comments must have a separate and distinct heading designating them as responses to the IRFA and must be filed by the deadlines provided in this Report and Order/Further Notice of Proposed Rulemaking. APPENDIX C FINAL REGULATORY FLEXIBILITY ANALYSIS Report and Order As required by Section 603 of the Regulatory Flexibility Act, 5 U.S.C.  603 (RFA), the Commission has prepared a Final Regulatory Flexibility Analysis for this Memorandum Opinion and Order. A. Need for and purpose of the action: The revised rules adopted in this Memorandum Opinion and Order will enhance use of the 902- 928 MHz band for the Location and Monitoring Service. The revised rules will create a more stable environment for LMS licensees and will provide much needed flexibility for operators of such systems. The two changes made to the LMS rules in this item (1) change the basis for wide-area licensing of LMS systems to EAs rather than MTAs, and (2) add schools, libraries and rural health care providers to the list of entities exempt from the antenna height and operating power requirements of the Part 15 safe harbor. B. Issues raised in response to the IRFA: No comments were submitted in response to the IRFA. C. Description and number of small entities involved: The Commission has not adopted a definition of small business specific to LMS systems, which are defined in Section 90.7 of the Commission's Rules. Accordingly, we will use the SBA's definition applicable to radiotelephone companies, i.e., an entity employing fewer than 1,500 persons. We anticipate that most LMS licensees will fit the definition of small business provided by the SBA. No auctions have been held for the LMS service. The Commission expects to award three licenses in each of 176 EAs or EA-like areas, for a total of 528 licenses. D. Reporting, recordkeeping and other compliance requirements: The rules adopted in this Memorandum Opinion and Order do not impose any additional reporting, recordkeeping, or other compliance requirements. E. Steps taken to minimize burdens on small entities: This Memorandum Opinion and Order concludes that the relevant geographic areas for multilateration LMS licenses should be based on U.S. Department of Commerce Bureau of Economic Analysis Economic Areas (EAs) rather than Major Trading Areas (MTAs). The record indicates that existing and planned multilateration systems better approximate an EA than the geographically larger MTA. Use of smaller geographic units could ultimately result in a more diverse group of prospective bidders by creating more opportunities for small businesses. The Memorandum Opinion and Order also modifies the "Part 15 safe harbor" by expanding the list of entities exempt from applicable height and power restrictions, to include health care providers in rural areas, schools and libraries. In many instances, the rooftop antennas of these entities would not fit within the parameters of the safe harbor. The record of this proceeding indicates that such institutions use Part 15 technology as a low-cost means to connect to the Internet and other valuable on-line resources; this rule change would facilitate their ability to do so without raising concerns about interference to LMS providers in the same area. F. Significant alternatives considered and rejected: The Memorandum Opinion and Order considers the remaining issues raised in petitions for reconsideration of the Report and Order in PR Docket No. 93-61 that established licensing and operational rules for the Location and Monitoring Services (LMS). An Order on Reconsideration adopted in March 1996 resolved a limited set of issues relating to rights and obligations of existing multilateration LMS licensees. This Memorandum Opinion and Order resolves the remaining issues raised by petitioners. The Memorandum Opinion and Order concludes that restrictions on the ability of multilateration LMS licensees to offer interconnected service should be maintained to minimize interference between LMS and Part 15 and amateur operations. The Memorandum Opinion and Order also denies requests that antenna height and power limitations for non-multilateration operators be either relaxed or further restricted, and denies a request that we adopt a blanket authorization procedure for extensive non-multilateration LMS systems licensed to local government or public safety eligibles. In addition, the Memorandum Opinion and Order denies requests to modify the "safe harbor" provisions for Part 15 devices and amateur operators, and denies requests to extend the definition of the safe harbor to apply to claims of interference by non-multilateration systems. The Memorandum Opinion and Order does, however, adopt a rule provision specifically including schools, libraries and rural health care providers within the safe harbor regardless of their antenna height and operating power. The item also denies requests to change the band plan for LMS, but does conclude that multilateration LMS systems will be licensed on an EA basis rather than an MTA basis. Finally, the Memorandum Opinion and Order denies requests that wideband forward links be prohibited. G. Report to Congress: The Commission shall send a copy of this Final Regulatory Flexibility Analysis with this Memorandum Opinion and Order in a report to Congress pursuant to Section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.  801(a)(1)(A). A copy of this Regulatory Flexibility Analysis will also be published in the Federal Register. APPENDIX D RULE CHANGES Part 90 of Chapter I of Title 47 of the Code of Federal Regulations is amended as follows: PART 90 - PRIVATE LAND MOBILE RADIO SERVICES 1. The authority citation for Part 90 continues to read as follows: AUTHORITY: Secs. 4, 251-2, 303, 309, and 332, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 251- 2, 303, 309 and 332, unless otherwise noted. 2. The heading for Subpart M of Part 90 is revised to read "Intelligent Transportation Systems Radio Service." 3. Section 90.7 is amended by revising the definition for "EA-based or EA license" to read as follows:  90.7 Definitions. * * * * * EA-based or EA license. A license authorizing the right to use a specified block of SMR or LMS spectrum within one of the 175 Economic Areas (EAs) as defined by the Department of Commerce Bureau of Economic Analysis. The EA Listings and the EA Map are available for public inspection at the Wireless Telecommunications Bureau's public reference room, Room 5608, 2025 M Street, NW, Washington, DC 20554 and Office of Operations--Gettysburg, 1270 Fairfield Road, Gettysburg, PA 17325. * * * * * 4. Section 90.155 is amended by revising paragraph (d) to read as follows:  90.155 Time in which station must be placed in operation. * * * * * (d) Multilateration LMS systems authorized in accordance with Section 90.353 must be constructed and placed in operation within twelve (12) months from the date of grant or the authorization cancels automatically and must be returned to the Commission. EA-licensed multilateration LMS systems will be considered constructed and placed in operation if such systems construct a sufficient number of base stations that utilize multilateration technology (see paragraph (e) of this section) to provide multilateration location service to at least 1/3 of the counties in the EA. * * * * * 5. Section 90.210 is amended by revising paragraph (k)(3) and adding paragraph (k)(6) to read as follows:  90.210 Emission masks. * * * * * (k) * * * (3) Other transmitters. For all other transmitters authorized under Subpart M, the peak power of any emission shall be attenuated below the power of the highest emission contained within the licensee's LMS sub-band in accordance with the following schedule: (i) On any frequency within the authorized bandwidth: Zero dB; (ii) On any frequency outside the licensee's LMS sub-band edges: 55+10log(P) dB where (P) is the highest emission (watts) of the transmitter inside the licensee's LMS sub-band. * * * * * (6) The LMS sub-band edges for non-multilateration systems for which emissions must be attenuated are 902.00, 904.00, 909.5 and 921.75 MHz. * * * * * 6. Section 90.350 is revised by replacing the two occurrences of the phrase "Transportation Infrastructure Radio Service" with "Intelligent Transportation Systems Radio Service." 7. Section 90.353 is amended by revising paragraphs (d), (e) and (f) and by adding paragraph (i) to read as follows:  90.353 LMS operations in the 902-928 MHz band. * * * * * (d) Multilateration LMS systems will be authorized on a primary basis within the bands 904- 909.75 MHz and 921.75-927.25 MHz. Additionally, multilateration and non-multilateration systems will share the 919.75-921.75 MHz band on a co-equal basis. Licensing will be on the basis of Economic Areas (EAs) for multilateration systems, with one exclusive EA license being issued for each of these three sub-bands. Except as provided in paragraph (f) of this section, multilateration EA licensees may be authorized to operate on only one of the three multilateration bands within a given EA. Additionally, EA multilateration LMS licenses will be conditioned upon the licensee's ability to demonstrate through actual field tests that their systems do not cause unacceptable levels of interference to 47 CFR Part 15 devices. (e) Multilateration EA-licensed systems and grandfathered AVM systems (see Section 90.363 of this Part) are authorized on a shared basis and must cooperate in the selection and use of frequencies in accordance with Section 90.173(b). (f) Multilateration EA licensees may be authorized to operate on both the 919.75-921.75 MHz and 921.75-927.25 MHz bands within a given EA (see Section 90.209(b)(10) of this Part). * * * * * (i) Non-multilateration LMS licenses will be issued on a site-by-site basis, except that municipalities or other governmental operatives may file jointly for a non-multilateration license covering a given U.S. Department of Commerce Bureau of Economic Analysis Economic Area (EA). Such an application must identify all planned sites. After receiving the license, the non-multilateration EA licensee must notify the Commission if sites are deleted or if new sites are added, before those sites may be put into operation. * * * * * 8. Section 90.359 is amended to read as follows:  90.359 Field strength limits for EA-licensed LMS systems. EA-licensed multilateration systems shall limit the field strength of signals transmitted from their base stations to 47 dBuV/m at their EA boundary. 9. Section 90.361 is amended to read as follows:  90.361 Interference from Part 15 and Amateur operations. Operations authorized under Parts 15 and 97 of this chapter may not cause harmful interference to LMS systems in the 902-928 MHz band. These operations will not be considered to be causing harmful interference to a multilateration LMS system operating in one of the three EA sub-bands (see Section 90.357(a)) if they are non-video links operating in accordance with the provisions of Parts 15 or 97of this chapter and at least one of the following conditions are met: (a) It is a field disturbance sensor operating under Section 15.245 of this chapter and it is not operating in the 904-909.750 or 919.750-928.000 MHz sub-bands; or (b) It does not employ an outdoor antenna; or (c) If it does employ an outdoor antenna, then if: (1) The directional gain of the antenna does not exceed 6dBi, or if the directional gain of the antenna exceeds 6 dBi, it reduces its transmitter output power below 1 watt by the proportional amount that the directional gain of the antenna exceeds 6 dBi; and (2) Either: (i) The antenna is 5 meters or less in height above ground; or (ii) The antenna is more than 5 meters in height above ground but less than or equal to 15 meters in height above ground and either: (A) Adjusts its transmitter output power below 1 watt by 20 log (h/5) dB, where h is the height above ground of the antenna in meters; or (B) Is providing the final link for communications of entities eligible under subpart B or C of this Part, or is providing the final link for communications of health care providers that serve rural areas, elementary schools, secondary schools or libraries.