Shared Use of the 42-42.5 GHz Band

Published date31 July 2023
Record Number2023-16167
Citation88 FR 49423
CourtFederal Communications Commission
SectionProposed rules
49423
Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules
version of ASTM D6348–03(2010) and
includes a new section on accepting the
results from direct measurement of a
certified spike gas cylinder, but still
lacks the caveats we placed on the
D6348–03(2010) version. The voluntary
consensus standard ASTM D6348–12e1
has been reaffirmed and is now ASTM
D6348–12(2020) and is an acceptable
alternative to EPA Method 320 at this
time with caveats requiring inclusion of
selected annexes to the standard as
mandatory. When using ASTM D6348–
12(2020), the following conditions must
be met:
(1) The test plan preparation and
implementation in the Annexes to
ASTM D 6348–12(2020), Sections A1
through A8 are mandatory; and
(2) In ASTM D6348–12(2020) Annex
A5 (Analyte Spiking Technique), the
percent (%) R must be determined for
each target analyte (Equation A5.5). In
order for the test data to be acceptable
for a compound, %R must be 70% R
130%. If the %R value does not meet
this criterion for a target compound, the
test data is not acceptable for that
compound and the test must be repeated
for that analyte (i.e., the sampling and/
or analytical procedure should be
adjusted before a retest). The %R value
for each compound must be reported in
the test report, and all field
measurements must be corrected with
the calculated %R value for that
compound by using the following
equation:
Reported Results = ((Measured
Concentration in Stack))/(%R) × 100
The EPA is also incorporating by
reference Quality Assurance Handbook
for Air Pollution Measurement Systems,
Volume IV: Meteorological
Measurements, Version 2.0 (Final),
March 2008 (EPA–454/B–08–002). The
Quality Assurance Handbook for Air
Pollution Measurement Systems,
Volume IV: Meteorological
Measurements, Version 2.0 may be
found at https://nepis.epa.gov/Exe/
ZyPURL.cgi?Dockey=P100FOMB.TXT.
Additional information for the VCS
search and determination can be found
in the memorandum, Voluntary
Consensus Standard Results for
National Emission Standards for
Hazardous Air Pollutants: Integrated
Iron and Steel Manufacturing, which is
available in the docket for this action.
The EPA welcomes comments on this
aspect of the proposed rulemaking and,
specifically, invites the public to
identify potentially applicable VCS, and
to explain why the EPA should use such
standards in this regulation.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629,
February 16, 1994) directs Federal
agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on communities
with EJ concerns. For this action the
EPA conducted an assessment of the
impacts that would result from the
proposed rule amendments, if
promulgated, on various demographic
groups living near Integrated Iron and
Steel facilities (as described in section
V.C of this preamble).
The EPA believes that the human
health or environmental conditions that
exist prior to this action result in or
have the potential to result in
disproportionate and adverse human
health or environmental effects on
communities with EJ concerns. For
populations living within 5 km of the
nine integrated iron and steel facilities,
the percent of the population that is
African American is more than twice
the national average (27 percent versus
12 percent). Specifically, the percent of
the population that is African American
is more than 1.5 times the national
average within 5 km of six of the nine
facilities. The percentage of the
population that is living below the
poverty level (29 percent) and living
below 2 times the poverty level (52
percent) is well above the national
average (13 percent and 29 percent,
respectively). Specifically, the percent
of the population that is living below
the poverty level is more than 1.5 times
the national average within 5 km of
seven of the nine facilities. Other
demographics for the populations living
within 5 km are below or near the
respective national averages.
The EPA believes that this action is
likely to reduce existing
disproportionate and adverse effects on
communities with EJ concerns. This
action requires facilities to improve
UFIP emission control resulting in
reductions of about 110 tpy of metal
HAP and about 820 tpy PM
2.5
. We
estimate that all facilities will achieve
reductions of HAP emissions as a result
of this proposed rule, including the
facilities at which the percentage of the
population living in close proximity
who are African American and below
poverty level is greater than the national
average.
The information supporting this
Executive Order review is contained in
sections IV and V of this preamble. The
demographic analysis is available in a
document titled Analysis of
Demographic Factors for Populations
Living Near Integrated Iron and Steel
Facilities, which is available in the
docket for this action.
Michael S. Regan,
Administrator.
[FR Doc. 2023–15085 Filed 7–28–23; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 0
[WT Docket No. 23–158; GN Docket No. 14–
177; FCC 23–51; FR ID 157853]
Shared Use of the 42–42.5 GHz Band
AGENCY
: Federal Communications
Commission.
ACTION
: Proposed rule; solicitation of
comment.
SUMMARY
: In this document, the Federal
Communications Commission
(Commission or FCC) seeks comment on
how innovative, non-exclusive
spectrum access models might be
deployed in the 42 GHz band (42–42.5
GHz) to provide increased access to
high-band spectrum, particularly by
smaller wireless service providers, and
to support efficient, intensive use of the
band. The Commission also seeks
comment on how potential sharing and
licensing regimes might lower barriers
to entry for smaller or emerging wireless
service providers, encourage
competition, and prevent spectrum
warehousing.
DATES
: Comments are due on or before
August 30, 2023; reply comments are
due on or before September 29, 2023.
Written comments on the Paperwork
Reduction Act proposed information
collection requirements must be
submitted by the public, the Office of
Management and Budget (OMB), and
other interested parties on or before
September 29, 2023. Written comments
on the Initial Regulatory Flexibility
Analysis (IRFA) in this document must
have a separate and distinct heading
designating them as responses to the
IRFA and must be submitted by the
public on or before August 30, 2023.
ADDRESSES
: Pursuant to §§ 1.415 and
1.419 of the Commission’s rules (47 CFR
1.415, 1.419), interested parties may file
comments and reply comments on or
before the dates indicated on the first
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Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules
1
See Use of Spectrum Bands Above 24 GHz For
Mobile Radio Services, et al., Report and Order and
Further Notice of Proposed Rulemaking, 31 FCC
Rcd 8014, 8154, paragraph 403 (2016); Use of
Spectrum Bands Above 24 GHz For Mobile Radio
Services, et al., Second Report and Order, Second
Further Notice of Proposed Rulemaking, Order on
Reconsideration, and Memorandum Opinion and
Order, 32 FCC Rcd 10988 (2017); Use of Spectrum
Bands Above 24 GHz For Mobile Radio Services, et
al., Third Report and Order, Memorandum Opinion
page of this document. Comments may
be filed using the Commission’s
Electronic Comment Filing System
(ECFS). See Electronic Filing of
Documents in Rulemaking Proceedings,
63 FR 24121 (1998). You may submit
comments, identified by WT Docket No.
23–158; and GN Docket 14–177, by any
of the following methods:
Electronic Filers: Comments may be
filed electronically using the internet by
accessing the ECFS: http://apps.fcc.gov/
ecfs/.
Paper Filers:
Parties who choose to file by paper
must file an original and one copy of
each filing.
Filings can be sent by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mall. All
filings must be addressed to the
Commission’s Secretary, Office of the
Secretary, Federal Communications
Commission.
Commercial overnight mail (other
than U.S. Postal Service Express Mail
and Priority Mail) must be sent to 9050
Junction Drive, Annapolis Junction, MD
20701.
U.S. Postal Service first-class,
Express, and Priority mail must be
addressed to 45 L Street NE,
Washington, DC 20554.
Effective March 19, 2020, and until
further notice, the Commission no
longer accepts any hand or messenger
delivered filings. This is a temporary
measure taken to help protect the health
and safety of individuals, and to
mitigate the transmission of COVID–19.
See FCC Announces Closure of FCC
Headquarters Open Window and
Change in Hand-Delivery Policy, Public
Notice, DA 20–304 (March 19, 2020).
https://www.fcc.gov/document/fcc-
closes-headquarters-open-window-and-
changes-hand-delivery-policy.
People with Disabilities: To request
materials in accessible formats (braille,
large print, computer diskettes, or audio
recordings), please send an email to
FCC504@fcc.gov or call the Consumer &
Government Affairs Bureau at (202)
418–0530 (VOICE), (202) 418–0432
(TTY).
FOR FURTHER INFORMATION CONTACT
:
Catherine Schroeder of the Wireless
Telecommunications Bureau,
Broadband Division, at
Catherine.Schroeder@fcc.gov or 202–
418–1956. For additional information
concerning the Paperwork Reduction
Act proposed information requirements
contained in this document, send an
email to PRA@fcc.gov or contact Kathy
Williams at (202) 418–2918.
SUPPLEMENTARY INFORMATION
: This is a
summary of the Commission’s Notice of
Proposed Rulemaking (NPRM) in WT
Docket No. 23–158 and GN Docket No.
14–177; FCC 23–51, adopted on June 8,
2023, and released on June 9, 2023. The
full text of this document is available at
https://docs.fcc.gov/public/
attachments/FCC-23-51A1.pdf.
Regulatory Flexibility Act: The
Regulatory Flexibility Act of 1980, as
amended (RFA), requires an agency to
prepare a regulatory flexibility analysis
for notice-and-comment rulemakings,
unless the agency certifies that ‘‘the rule
will not, if promulgated, have a
significant economic impact on a
substantial number of small entities.’’
The Commission seeks comment on
potential rule and policy changes
contained in the NPRM, and
accordingly, has prepared an IRFA. The
IRFA for this NPRM in WT Docket No.
23–158 and GN Docket No. 14–177 is set
forth below in this document and
written public comments are requested.
Comments must be filed by the
deadlines for comments on the NPRM
indicated under the
DATES
section of
this document and must have a separate
and distinct heading designating them
as responses to the IRFA. The
Commission reminds commenters to file
in the appropriate dockets: WT Docket
No. 23–158 and GN Docket No. 14–177.
Paperwork Reduction Act: This
document may contain proposed
modified information collection
requirements. Therefore, the
Commission seeks comment on
potential new or revised information
collections subject to the Paperwork
Reduction Act of 1995. If the
Commission adopts any new or revised
information collection requirements, the
Commission will publish a notice in the
Federal Register inviting the general
public and the Office of Management
and Budget to comment on the
information collection requirements, as
required by the Paperwork Reduction
Act of 1995, Public Law 104–13. In
addition, pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C.
3506(c)(4), the Commission seeks
specific comments on how it might
further reduce the information
collection burden for small business
concerns with fewer than 25 employees.
Ex Parte Rules: This proceeding shall
be treated as a ‘‘permit-but-disclose’’
proceeding in accordance with the
Commission’s ex parte rules. Persons
making ex parte presentations must file
a copy of any written presentation or a
memorandum summarizing any oral
presentation within two business days
after the presentation (unless a different
deadline applicable to the Sunshine
period applies). Persons making oral ex
parte presentations are reminded that
memoranda summarizing the
presentation must (1) list all persons
attending or otherwise participating in
the meeting at which the ex parte
presentation was made, and (2)
summarize all data presented and
arguments made during the
presentation. If the presentation
consisted in whole or in part of the
presentation of data or arguments
already reflected in the presenter’s
written comments, memoranda, or other
filings in the proceeding, the presenter
may provide citations to such data or
arguments in his or her prior comments,
memoranda, or other filings (specifying
the relevant page and/or paragraph
numbers where such data or arguments
can be found) in lieu of summarizing
them in the memorandum. In
proceedings governed by rule 1.49(f) or
for which the Commission has made
available a method of electronic filing,
written ex parte presentations and
memoranda summarizing oral ex parte
presentations, and all attachments
thereto, must be filed through the
electronic comment filing system
available for that proceeding, and must
be filed in their native format (e.g., .doc,
.xml, .ppt, searchable .pdf). Documents
shown or given to Commission staff
during ex parte meetings are deemed to
be written ex parte presentations and
must be filed consistent with Rule
1.1206(b). Participants in this
proceeding should familiarize
themselves with the Commission’s ex
parte rules.
Synopsis
I. Notice of Proposed Rulemaking in
WT Docket No. 23–158 and GN Docket
No. 14–177
A. Background
1. As part of a multiyear effort to
enable deployment of advanced wireless
services such as 5G, the Commission
has made 4.95 gigahertz of spectrum
above 24 GHz available on an
exclusively-licensed geographic area
basis. The Commission has already
established service and licensing rules
for the 24 GHz, 28 GHz, Upper 37 GHz,
39 GHz, and 47 GHz bands, all of which
are available on either a county or a
Partial Economic Area (PEA) basis.
1
The
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Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules
and Order, and Third Further Notice of Proposed
Rulemaking, 33 FCC Rcd. 5576 (2018); Use of
Spectrum Bands Above 24 GHz For Mobile Radio
Services, et al., Fourth Report and Order, 33 FCC
Rcd 12168 (2018). See also 47 CFR 30.4, 30.5. When
citing to the Report and Order portions of the 2016
or 2018 documents, the Commission will refer to
the First R&O or Third R&O, respectively. When
citing to the Memorandum Opinion and Order
portion of the 2018 document, the Commission will
refer to the MO&O. When citing to the Further
Notice of Proposed Rulemaking portion of the 2016
or 2018 document, the Commission will refer to the
First FNPRM or Third FNPRM, respectively.
2
47 CFR 2.106.
3
Nine experimental licenses are authorized for
testing using this frequency range. Pursuant to the
Commission’s rules, operation of an experimental
radio station is permitted only on the condition that
harmful interference is not caused to licensees. If
harmful interference to an established radio service
occurs, upon becoming aware of such harmful
interference the Experimental Radio Service
licensee must immediately cease transmissions. See
47 CFR 5.84.
4
47 CFR 2.106. Footnote US211 urges applicants
for airborne or space stations assignments in the
40.5–42.5 GHz band to take all practicable steps to
protect radio astronomy observations in the 42.5–
43.5 GHz band from harmful interference. 47 CFR
2.106 n.US211.
5
MOBILE NOW Act, Public Law 115–141, Div. P,
tit. VI, 132 Stat. 1097 (2018), §604(a), (b)(1), (b)(2)
(codified at 47 U.S.C. 1503) (requiring the
Commission to publish a Notice of Proposed
Rulemaking to consider service rules to authorize
mobile or fixed terrestrial wireless operations,
including for advanced mobile service operations,
in the 42 GHz band).
6
Generally, spectrum between 30 GHz and 300
GHz.
7
As of March 31, 2023, nine experimental
licenses are authorized for testing using this
frequency range; however, as noted above, these
licenses are issued on a noninterference basis. See
47 CFR 5.84.
8
Some commenters supported this approach.
9
The Commission notes that it has already
established a record on an exclusive-use licensed
approach for the 42 GHz band. See Third FNPRM,
33 FCC Rcd at 5599, paragraph 54.
Commission has held three auctions to
award licenses in these bands, the most
recent of which was completed in 2020.
2. The Commission also has made
available a significant amount of high-
band spectrum for unlicensed use. The
rules for unlicensed device use at 57–64
GHz were expanded in 2016 to include
64–71 GHz, bringing the total amount of
high-band spectrum available on an
unlicensed basis to 14 gigahertz.
3. The 42 GHz band is currently
allocated to non-Federal Fixed and
Mobile services on a primary basis;
there is no Federal allocation in the
band.
2
Although the Commission sought
comment previously on proposed
service rules for this band among other
bands above 24 GHz, none are currently
in place, and the band has no
incumbent licensees.
3
The lower
adjacent 40–42 GHz band has been
designated for satellite use. The upper
adjacent 42.5–43.5 GHz band is
allocated to radio astronomy services
(RAS) on a primary basis for Federal
and non-Federal use and to the Federal
fixed, fixed-satellite (Earth-to-space),
and mobile—except aeronautical
mobile—services on a primary basis.
4
4. The Commission previously sought
comment on a proposal to authorize
flexible fixed and mobile operations in
the 42 GHz band under the new part 30
Upper Microwave Flexible Use Service
(UMFUS) rules, but only on the
condition that adjacent channel RAS at
42.5–43.5 GHz could be protected.
Specifically, the Commission sought
comment and detailed information on
what protections should be established
for this adjacent band—for example,
whether out-of-band emission limits
into the 42.5–43.5 GHz band should be
established or whether it was necessary
to create a guard band below 42.5 GHz.
The Commission also sought comment
on the appropriate band plan for the 42
GHz band, including whether the band
should be licensed as a single channel,
split into two channels, or split into
multiple 100 megahertz channels. The
Commission proposed licensing the
band geographically using PEAs.
5. Pursuant to the directives in the
MOBILE NOW Act,
5
the Commission
later included in the Third FNPRM, 83
FR 34520 (July 20, 2018), requests for
further comment on a regulatory
framework to enable licensed and/or
unlicensed uses of the 42 GHz band.
The Commission received 17 comments
and six reply comments to the Third
FNPRM relating to the 42 GHz band.
B. Shared Use of the 42–42.5 GHz Band
1. Potential Benefits of Shared Licensing
6. Millimeter wave (mmW)
6
transmissions have a shorter
propagation range than lower-frequency
spectrum and are blocked by walls and
other obstacles, making it easier to reuse
the same band or channel within a
smaller geographic area. Technological
advances such as MIMO (multiple-input
multiple-output) and beamforming
antennas offer additional possibilities
for reuse between multiple operators.
Given that the Commission already has
offered both traditionally-licensed
spectrum (on a geographic basis) and
made spectrum available on a flexible
basis for unlicensed devices in the
mmW bands, and that the
characteristics of mmW spectrum lend
themselves to sharing and reuse, the
Commission seeks to explore how novel
approaches to shared licensing may
support increased efficiency and
intensity of use among a wider range of
users within this mmW spectrum.
7. Unlike many other mmW bands,
the 42 GHz band has no existing
operations, either federal or non-
federal.
7
This ‘‘greenfield’’ spectrum
gives the Commission greater flexibility
in designing a shared licensing scheme
that may be optimized for future use
and can take advantage of new
developments in technology more easily
than a band with existing deployments.
The Commission therefore believes that
consideration of alternatives to
exclusive geographic area licensing in
the 42 GHz band is appropriate.
8. Although the Commission has
previously sought comment on licensing
the 42 GHz band on the same
geographic area basis as the UMFUS
bands such as the 37/39 GHz bands,
8
those two ranges are separated by the
40–42 GHz satellite-only band. This
separation means that there appear to be
fewer potential synergies to using the
same licensing approach in both bands
than if the two could be combined into
a single continuous band.
9. The benefits of potential unlicensed
use of the 42 GHz band also appear to
be limited. No commenter previously
supported making this band available
on an unlicensed basis, and de Vries
suggested that unlicensed use of the
band would not provide adequate
protection against harmful interference.
This latter point is significant given the
importance of protecting RAS
operations in the adjacent 42.5–43.5
GHz band. Harmful interference from
unlicensed devices would likely be
more difficult to resolve, given the
additional difficulty relative to licensed
operations of identifying the specific
interferer.
10. In light of these considerations,
the Commission seeks comment on
applying a shared approach to the 42
GHz band. The Commission asks
commenters to enumerate the benefits
or drawbacks of this approach, as
compared with either an exclusive-use
licensed
9
or unlicensed approach.
2. Shared Licensing Approaches
11. In this section, the Commission
discusses a variety of potential
approaches to licensing the 42 GHz
band on a shared basis. These
approaches may have different costs and
benefits in different situations, and
some may facilitate certain uses better
than others. The Commission seeks
comment on these approaches and on
any alternatives that might better
promote its goals of more efficient
spectrum use and lower barriers to
spectrum access compared with
traditional exclusive-use licensing in
this band.
12. Nationwide non-exclusive
licensing. Under this approach,
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10
Letter from John W. Kuzin, Vice President,
Qualcomm, to Marlene H. Dortch, Secretary, FCC,
GN Docket 14–177 et al., at 1 (filed Mar. 18, 2022)
(emphasis removed). See also Letter from John W.
Kuzin, Vice President, Qualcomm, to Marlene H.
Dortch, Secretary, FCC, GN Docket 14–177 et al., at
2 (filed Oct. 2, 2021).
currently in use in the 70/80/90 GHz
bands, operators would first obtain a
nationwide non-exclusive license from
the Commission, and then coordinate
specific deployment sites with a third-
party database. This approach would
likely require advance work in
identifying and setting up a database
administrator but could facilitate quick
and efficient site registration once
established. OTI, focusing on point-to-
multipoint service, supports this
licensing regime for the 42 GHz band (as
well as for the Lower 37 GHz band), and
it argues that such a system would
reduce costs and facilitate entry and
coexistence between licensees. Charter
also supports this approach for the
Lower 37 GHz band, in order to promote
greater efficiency.
13. The Commission seeks comment
on the potential use of this nationwide
non-exclusive licensing approach for
the 42 GHz band. Would this model best
facilitate efficient use of this spectrum?
Would it lower barriers to entry as
compared with either traditional
exclusive-use licensing, or the other
shared licensing approaches discussed
in this NPRM? Commenters advocating
such an approach should also provide
information regarding any limitations
that should be placed on users. For
example, should all licensees operating
in a common area have access to the full
500 megahertz or only a portion to
preserve the ability of other licensees to
operate in that same area? Should there
be limitations on the size of a service
area that could be registered with a
database to promote coexistence and
enable access by other licensees?
Should the Commission simply make
the band available and require licensees
to cooperate in the selection and use of
frequencies in the band? What are the
costs and benefits of taking this
approach? The Commission notes that
OTI’s proposal focuses on fixed point-
to-multipoint service. Would it be
possible to use this approach to license
mobile service as well? What would be
the costs or obstacles associated with
identifying and establishing a database
administrator? The Commission seeks
comment on these issues and any other
considerations involved with a
nationwide non-exclusive model for this
band.
14. Site-based licensing.
Alternatively, the Commission could
license the 42 GHz band on a site-by-site
basis directly, without the use of a
nationwide non-exclusive license
regime or a third-party database. This
approach might provide greater
transparency than the use of third-party
databases, because information for each
licensed site—including, for example,
construction notifications
demonstrating whether buildout
requirements have been met—would be
publicly available in the Commission’s
Universal Licensing System (ULS). This
would also allow the Commission to be
more responsive to potential disputes,
and facilitate easier administration and
enforcement of buildout requirements,
without needing to communicate with
the third-party database manager as part
of this process.
15. The Commission seeks comment
on a potential site-based licensing
approach in this context. Would
licensing each individual site directly
be overly burdensome on licensees?
Would adopting a site-based licensing
approach facilitate the easier
enforcement of buildout requirements as
compared to using a third party
database registrar, and therefore
contribute to greater efficiency and less
warehousing of this spectrum? To what
extent would the lack of a third-party
database administrator result in
logistical hurdles that might increase
costs or decrease efficiency of licensees’
operations, or would it be a benefit to
have license issues addressed directly
with the Commission? Would
prospective licensees be able to access
this spectrum more quickly and easily
under a third-party database approach,
versus licensing each site with the
Commission? Would there be additional
or different technical or operational
rules needed under either approach, for
example specific rules for resolving
coexistence issues under site-based
licensing versus relying on the database
for this purpose in a third-party
registration approach? The Commission
seeks comment on these and any other
considerations relating to this licensing
model.
16. Technology-based sensing. In the
context of the Lower 37 GHz band,
Qualcomm proposes that the
Commission adopt a technology-based
long-term sensing mechanism for mmW
spectrum. Qualcomm suggests that this
approach would allow ‘‘multiple
licensees each using any air interface, to
share on a licensed basis the entire . . .
band in the same location, on the same
frequencies, and at the same time, by
taking advantage of the highly
directional nature of mmW
communications.’’
10
This proposal,
which describes technology-based
sensing using a geographic area
licensing regime, would require that
licensees coordinate among themselves
a measurement window during which
all licensees (except for a priority user
in each channel) cease transmissions for
a given time period in order to use long-
term sensing to detect any active
receivers, and then transmit afterwards
only in directions where no such
receivers are detected. Qualcomm
suggests that, if properly implemented,
this system would provide priority
licensees with more reliable protection
than other sensing-based systems such
as Listen Before Talk, and would also
allow indoor operation across the entire
band without disrupting priority or
outdoor operations, and without
requiring a database.
17. The Commission seeks comment
on applying this potential approach to
the 42 GHz band, and the attendant
costs and benefits of adopting a
technology-based sensing framework.
Because Qualcomm designed this
proposal for the Lower 37 GHz band, are
there changes that would need to be
made to make it suitable for the 42 GHz
band? For example, would this proposal
be viable without a priority user in a
given channel? Similarly, given that
Qualcomm’s proposal demonstrates
how technology-based sensing operates
using geographic license areas, would
adjustments need to be made to the
proposal for a different type of licensing
regime? Further, would the
measurement and sensing requirements
mean that users of the 42 GHz band
could not take advantage of the
equipment ecosystems of existing
millimeter-wave bands? If so, would it
increase equipment costs or increase
barriers to entry for smaller or emerging
operators? Are there other long-term
sensing systems that should be
considered? The Commission seeks
comment on what steps the Commission
or industry should take to ensure that,
if adopted, any technology-based
sensing protocols are non-proprietary/
open-source or widely available to
maximize use and drive innovation. The
Commission seeks comment on these
and any other considerations for this
approach.
18. Coordination mechanism. The
Commission assumes that any shared
licensing regime will require a
coordination mechanism to protect all
licensees from harmful interference.
Examples of potential coordination
mechanisms include the third-party
database queries used in 70/80/90 GHz,
the Spectrum Access Systems (SAS)
used in the Citizens Broadband Radio
Service to manage access to spectrum by
different classes of licensed users in the
3550–3700 MHz band, the Automated
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The Commission could, for example adopt a
first-come-first-served licensing or registration
scheme in which the first actual users that are
licensed/registered have a right to interference
protection (provided they deploy their systems
within the requisite time period), but they have no
right to exclude other users.
Frequency Coordination (AFC) system
recently established in 6 GHz to
facilitate coexistence of unlicensed
devices with incumbent operations and
radio astronomy observatories, and
equipment-based long-term sensing like
the approach proposed by Qualcomm
for the Lower 37 GHz band. The
Commission seeks comment on these
and other potential coordination
mechanisms. What are the costs and
benefits of each model? Which model
would work best for each potential
licensing regime? Are there concerns
specific to the 42 GHz band that might
recommend one coordination
mechanism over another?
19. Other Considerations. The
Commission seeks general comment on
the sharing and licensing mechanisms
described above, as applied to the 42
GHz band. Which model would be most
conducive to the intensive and efficient
use of this spectrum? Which model
would yield the greatest benefits, at the
least cost? What are the potential
barriers to deployment, operation, or
equipment availability under each
model? The Commission also seeks
comment on which types of services
might be accommodated by these shared
licensing regimes. OTI suggests the
Commission also allow for point-to-
multipoint service in this context.
Would it be possible to accommodate
both point-to-point and point-to-
multipoint services in the 42 GHz band?
Would it also be possible to
accommodate mobile service? Are there
specific licensing or sharing
mechanisms that would better facilitate
multiple services in the band? Are there
specific technical or licensing
requirements or coordination
mechanisms that would better facilitate
the inclusion of mobile service?
20. The Commission seeks comment
on whether first-in-time protections
11
are necessary or appropriate for each of
the shared licensing regimes discussed
above, and if so, what form they should
take. Charter argues that the use of time
division duplex (TDD) synchronization
would enable multiple operators to
coexist in exactly the same area. Would
requiring TDD synchronization be
sufficient to enable such reuse? If so,
would such a system render first-in-time
protections moot? To what extent would
the certainty provided by a first-in-time
guarantee be necessary to encourage
deployment in this band? Would the
lack of such a guarantee deter
investment by potential licensees? Do
the answers to these questions depend
on which shared licensing regime the
Commission adopts? Are there licensing
mechanisms (such as technology-based
sensing) for which a first-in-time
guarantee would be unnecessary, or
more burdensome than beneficial? If the
Commission does not adopt first-in-time
protections, what other mechanisms
might resolve situations of congestion or
harmful interference in a particular
area? The Commission seeks general
comment on this issue, including on
any other potential costs or benefits not
mentioned here.
21. The Commission also seeks
comment on the appropriate
coordination requirements for site-based
licensing or site-based registration (in
conjunction with a nationwide license),
should the Commission adopt it. OTI
suggests that site-based licensing (or
registration) should require
coordination not only on a site-by-site
basis, but on a sector-by-sector basis, to
increase spectrum reuse, avoid
warehousing, and encourage
competition. Would this level of
specificity be feasible from a
deployment perspective? Would it be
unduly burdensome on licensees who
might wish to license or register
multiple sectors at the same site? How
prevalent are deployment scenarios in
which operators use only a subset of
sectors? Would access to one sector (or
some subset of a full arc) at a particular
site provide smaller or later-deploying
operators with a greater opportunity to
deploy alongside other licensees? If the
Commission does incorporate sector-
level licensing or registration, what
would the appropriate sector size be? Is
it 30-degree sectors, as OTI suggests?
Should the Commission allow licensees
or registrants to specify a sector size
when applying or registering? If sector-
based licensing is not appropriate in the
42 GHz band, is there some other way
of licensing or registering sites that
might facilitate greater spectrum reuse
while still providing licensees with
adequate spectrum access?
22. The Commission also seeks
comment on whether there would be
any potential synergies in the instant
context with approaches being
considered for the Lower 37 GHz (37–
37.6 GHz) band. In 2016, the
Commission adopted rules to permit
fixed and mobile terrestrial operation
across the 37 GHz band (37–38.6 GHz)
and made the Lower 37 GHz band
available for coordinated co-primary
sharing between Federal and non-
Federal users, with the non-Federal
users licensed by rule. The Commission
indicated that both Federal and non-
Federal users would access the band by
registering individual sites through a
coordination mechanism and sought
comment on the details of that
coordination mechanism and what
functions it should perform. In 2018, the
Commission sought comment on several
specific proposals for this coordination
mechanism, including first-come-first-
served site-based licensing or
registration in conjunction with several
different types of potential licenses. In
addition to OTI, Charter, and
Qualcomm, whose proposals are
discussed above, several commenters
suggest that Commission base its rules
for Lower 37 GHz on those adopted for
the 70/80 GHz bands. The Commission
seeks comment on whether it should
adopt a shared licensing approach for
the 42 GHz band that mirrors the
Commission’s approach to the Lower 37
GHz band. What would be the benefits
or costs to doing so? Are there other
ways to leverage the potential of these
bands together? The Commission notes
that unlike the 42 GHz band, the Lower
37 GHz band must accommodate
sharing and coordination between
Federal and non-Federal users.
23. Finally, the Commission also
seeks comment on any other model or
mechanism for non-exclusive licensing
not discussed here which may be better
suited for the 42 GHz band, or any other
relevant considerations for these or
other shared licensing regimes.
Commenters suggesting alternative
approaches should do so with as much
specificity as possible, including
discussing the potential costs and
benefits of their proposed option as
compared with the approaches above
and either an exclusive-use licensed or
unlicensed approach. The Commission
also seeks comment on whether it could
enable secondary operations in the 42
GHz band, while still ensuring primary
licensees protection from harmful
interference.
3. Buildout Requirements
24. In traditional exclusive-use
geographic area licensing regimes, the
Commission typically sets buildout
requirements in terms of service
coverage of a given percentage of the
population of the license area. For
licensing regimes not tied to a particular
license area, or where a license area is
shared among multiple licensees,
however, this metric may not be suitable
or feasible. The Commission’s
overarching goal is to adopt a buildout
metric that ensures in each
circumstance that spectrum is
meaningfully being put to use in
practice. To this end, the Commission
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47 CFR 30.201 through 209.
13
No commenters oppose the inclusion of 42 GHz
in these technical rules, or suggest specific
variations.
14
TIA addressed this issue in its comments to a
separate Further Notice, 83 FR 42089 (Aug. 20,
2018). See Use of Spectrum Bands Above 24 GHz
For Mobile Radio Services, GN Docket 14–177,
Fourth Further Notice of Proposed Rulemaking, 33
FCC Rcd 7674 (2018) (Fourth FNPRM). See TIA
Fourth FNPRM Comments at 5–6, Table 1, 11.
15
The adjacent band, 42.5–43.5 GHz, is allocated
for Federal and non-Federal RAS operations and
Federal fixed, earth-to-space satellite and mobile
services. 47 CFR 2.106.
seeks comment on the appropriate
buildout requirements for potential
licensees under the various approaches
described above.
25. One buildout approach could be
to require licensees to begin operations
within a specified time. OTI has
proposed that an appropriate timeframe
would be 12 months or less from site
registration, after which a licensee
would lose any first-in-time protections
for that site. The Commission seeks
comment on this proposal, including
any alternative timeframes. The
Commission also seeks comment on
whether this approach would be better
suited to certain sharing and licensing
regimes, and, conversely, whether it
might be unsuitable or inapplicable to
certain others. Recognizing that the
Commission seeks comment above on
whether it should adopt first-in-time
protections for this band, if the
Commission ultimately do not adopt
such protections as part of the shared
licensing regime here, what other
consequence for failing to meet a build-
out deadline might be appropriate?
Would any consequence for failure to
build out in a timely manner be
necessary in such circumstances?
26. The Commission also seeks
general comment on the appropriate
buildout metrics for potential
technology-based sharing regimes. If the
Commission ultimately adopts a sharing
mechanism where the equipment itself
determines access to spectrum, should it
impose any buildout requirement at all,
or is the inherently non-exclusive
nature of such a regime sufficient to
ensure efficient use and prevent
spectrum warehousing? The
Commission seeks comment on these
and any other considerations for
buildout requirements under sharing
regimes based on technology-based
long-term sensing, including any
potential solutions not discussed here.
27. The Commission also seeks
comment on any other potential
buildout requirement metrics or levels
suitable for the sharing mechanisms
discussed in this NPRM. Additionally,
to the extent that commenters have
suggestions for other potential sharing
or licensing mechanisms, the
Commission encourages them to include
suggestions for corresponding buildout
requirements, or other methods of
ensuring efficient spectrum use and
preventing spectrum warehousing.
4. License Term and Applicability of
Part 30 Technical Rules
28. The Commission previously
sought comment on licensing the 42
GHz band under the part 30 UMFUS
licensing and technical rules. Although
the Commission is not proposing to
adopt an exclusive-use licensing regime,
it does propose to adopt a ten-year
license term for licenses in this band,
similar to other part 30 services. The
Commission seeks comment on this
proposal, and ask whether there are
additional considerations in adopting a
ten-year license term under a shared
licensing approach.
29. The mmW bands the Commission
has previously licensed are all governed
by the technical rules found in part
30.
12
This uniform treatment facilitates
development of a common equipment
ecosystem and easier operator
deployment, and is supported generally
in the underlying record in this
proceeding.
13
Inclusion in this uniform
technical regime might allow these
benefits to also accrue to the 42 GHz
band. If this band is made available
under a licensing scheme significantly
different from the other part 30 bands,
however, it is possible that those
benefits might be diminished, or costs
or other inefficiencies incurred.
30. The Commission seeks comment
on the applicability of the part 30
technical rules to the 42 GHz band as
licensed under the various potential
sharing regimes outlined above. Should
the Commission apply these existing
technical rules for the 42 GHz band,
regardless of the licensing regime it
ultimately adopts? Are there changes to
the technical rules might be appropriate
or necessary to accommodate shared
licensing? Are there different costs or
benefits that may be associated with the
existing part 30 technical rules in this
context, which the Commission has not
previously considered?
5. Band Plan
31. In the Third FNPRM, the
Commission proposed to license the 42
GHz band as five 100 megahertz
channels. Most commenters supported
the Commission’s proposal. They noted
that a 100 megahertz channel is a
building block for mmW mobile
equipment, and that this channel size is
consistent with 3rd Generation
Partnership Project (‘‘3GPP’’) standards
in the mmW bands. Several commenters
also asserted that 100 megahertz block
sizes would facilitate the deployment of
5G services. A few commenters
advocated using 200 MHz channels. For
example, TIA argues that wider
channels will better support 5G
services.
14
In response to the First
FNPRM, 81 FR 58269 (August 24, 2016),
Qualcomm also supported a band plan
with two 200 megahertz channels.
32. The Commission again proposes
to license the 42 GHz band in five 100
megahertz channels and seeks comment
on this proposal in the context of the
new proposals under consideration
here. Would the benefits previously
noted by commenters supportive of 100
megahertz channels still apply under
the sharing regimes discussed above?
Would the increased flexibility of a non-
exclusive licensing regime benefit more
from 100 megahertz channels, or from
another channel size? Are there
particular sharing or licensing regimes
that would benefit most from a different
channel size?
6. Protecting RAS Services at 42.5–43.5
GHz
33. As noted above, in the First
FNPRM, the Commission proposed to
authorize flexible mobile and fixed
operations in the 42 GHz band,
provided that RAS could be protected in
the adjacent 42.5–43.5 GHz band.
15
The
Commission sought comment on the
forms that such protection should take,
e.g., whether it should establish special
out-of-band emission (OOBE) limits into
the 42.5–43.5 GHz band or create a
guard band below 42.5 GHz. After
noting the National Academy of
Sciences’ Committee on Radio
Frequencies (CORF) and T-Mobile’s
agreement that RAS bands could be
protected by limiting UMFUS
operations near an RAS observatory, the
Commission renewed its call in the
Third FNPRM for interested parties to
provide detailed technical analysis of
the coexistence of RAS with terrestrial
mobile operations that fully supported
any proposed methodology.
Specifically, the Commission asked
whether its rules should be based on the
International Telecommunication Union
Radiocommunication Sector (ITU–R)
RA.769 parameters, or alternate
protection criteria, and sought comment
on whether to establish coordination
zones around relevant RAS facilities.
34. CORF has asserted that frequency
lines at 42.519, 42.821, 43.122, and
43.424 GHz are of the greatest
importance for the detection of strong
silicon monoxide maser emissions from
stars and star forming regions, which
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RAS observations in this band are currently
made at various U.S. observatories: Green Bank
Telescope (GBT), WV; VLA Socorro, NM; Westford,
MA (Haystack); Brewster, WA; Fort Davis, TX;
Hancock, NH; Kitt Peak, AZ; Los Alamos, NM;
Mauna Kea, HI; North Liberty, IA; Owens Valley,
CA; Pie Town, NM; St. Croix, VI. CORF FNPRM
Comments at 9 & n.7 (citing 47 CFR 2.106,
n.US131).
17
Although they provide no new studies, Nokia
and others direct the Commission to T-Mobile’s
RAS sharing study, produced for the 32/47/50 GHz
bands and assert this study is well-suited to also
calculating protection zones for RAS sites operating
adjacent to the 42 GHz band. CORF agrees this
study could be applicable for calculating
coordination distances. The Commission does not
find this study sufficient to establish coordination
distances because it is based on an analysis done
with respect to different systems in the 32 GHz
band.
18
FWCC urges that any guard band adopted
should be limited to fixed-only operations subject
to full fixed service frequency coordination to
control emissions in the direction of RAS sites.
19
47 CFR 1.924.
facilitates the measurement of stellar
temperature, density, wind velocity and
other parameters. The 42 GHz band also
is one of the preferred bands for
measuring continuum observations.
RAS observations are currently made at
a limited set of observatories around the
United States.
16
Additionally, according
to a report by the National Academy of
Sciences, Engineering, and Medicine,
the Next Generation Very Large Array
(ngVLA) is a top priority for U.S.
astronomy in the coming decade and
would include new sites predominantly
near the current VLA, but also
throughout New Mexico and adjacent
states with long baseline stations in
close proximity to existing VLBA
stations. Because a typical radio
telescope receives less than 1 percent of
one-billionth of one-billionth of a watt
(10
¥20
W) from a typical cosmic object,
the telescope is particularly vulnerable
to in-band emissions, spurious out-of-
band emissions, and emissions
producing harmonics, making
protection important. CORF has
represented that the detrimental levels
for continuum and spectral line radio
astronomy observations for single dishes
are ¥227 dBW/m
2
/Hz and ¥210 dBW/
m
2
/Hz, respectively, for the average
across the full 1 gigahertz of the 42.5–
43.5 GHz band and the peak level in any
single 500 kHz channel, as based upon
ITU–R RA.769, Tables 1 and 2,
respectively. For observations using the
entire VLBA, CORF represented that the
corresponding limit is ¥175 dBW/m
2
/
Hz). T-Mobile agreed that the ITU power
flux density (PFD) limits are appropriate
to address potential interference to RAS.
35. Proponents of using the 42 GHz
band for flexible terrestrial wireless use
have generally agreed that various
practical methods may be effective at
protecting RAS, including use of
exclusion zones, coordination zones,
and aggregate emissions limits—
particularly because RAS sites are
remotely located. None provide detailed
information or examples showing how
these proposed methods would work in
practice.
17
Regarding whether it is
necessary or appropriate to establish a
guard band below 42.5 GHz in order to
protect RAS, CORF stated that a guard
band of 200 MHz within the radio
horizon around radio astronomy sites
would meet the ITU–R RA.769
protection criteria. T-Mobile argued that
a guard band is unnecessary and the
ITU protection threshold can be met
with minimum exclusion distances. In
response to the First FNPRM, some
commenters asserted that a guard band
would narrow the usable aspects of the
42 GHz band.
18
TIA argued it should be
possible to craft UMFUS operating rules
that protect adjacent RAS services via
geographic coordination or otherwise,
making guard bands unnecessary,
especially since they interfere with the
Commission’s channel block plans.
36. The Commission agrees with
CORF and T-Mobile that RAS bands can
probably be protected by limiting 42
GHz operations near a RAS facility to
reduce the risk of terrestrial
interference. Because the Commission
believes that geographic separation of 42
GHz licensed operations and RAS
facilities will provide sufficient
protection of RAS facilities, it does not
propose to impose out-of-band
emissions limits on licenses in the 42
GHz band that are tighter than out-of-
band-emissions limits on UMFUS
licenses in other mmW bands.
Furthermore, the Commission does not
propose to establish coordination zones
around RAS facilities because it believes
that compliance with the limits it
proposes in this NPRM will be sufficient
to protect RAS observations. The record
to date does not contain sufficient
information to determine whether, and
if so, at what distances, coordination
zones would be appropriate, but the
Commission invites the submission of
such information from commenters.
37. The Commission proposes to
require 42 GHz licensees to limit
emissions into the 42.5–43.5 GHz
passive band at those relatively few
locations where RAS observatories make
observations in this band. The
Commission proposes to adopt the
parameters established by ITU–R
RA.769 as the interference protection
criteria for RAS operations, as suggested
by CORF and T-Mobile. While the
Commission believes that these
parameters are extremely conservative,
no one has previously submitted studies
suggesting alternative criteria, and the
ITU’s analysis indicates compliance
with those criteria are likely to protect
the RAS facilities from harmful
interference. Given that the
observatories are mostly located in
remote areas and signals in this
frequency range are significantly
attenuated by terrain and clutter, the
Commission expects that adopting these
conservative criteria would have only a
small impact on 42 GHz licensed
operations.
38. Therefore, for all 42 GHz licensees
operating near designated RAS facilities,
the Commission proposes that: (1) the
spectral PFD received at the RAS sites
at the Haystack Observatory (Westford,
MA), the Green Bank Telescope (Green
Bank, WV) and the Very Large Array
(Socorro, NM) averaged over the entire
42.5–43.5 GHz frequency range must not
exceed ¥227 dBW/m
2
/Hz; (2) the
spectral PFD received within any 500
kHz channel within the 42.5–43.5 GHz
frequency range for the three sites noted
above must not exceed ¥210 dBW/m
2
/
Hz; and, (3) the spectral PFD within the
42.5–43.5 GHz frequency range for the
Very Long Baseline Array (VLBA)
Stations must not exceed ¥175 dBW/
m
2
/Hz. The Commission proposes to list
the relevant sites in a new footnote to
the United States Table of Frequency
Allocations for clarity. The Commission
believes that these limits are sufficient
to protect RAS operations in the
adjacent band without establishing a
guard band within the 42 GHz band.
The Commission emphasizes that its
proposal to adopt these limits is based
on the specific factors present in the 42
GHz band and would not necessarily
control future decisions it makes
regarding other frequency bands subject
to note US342. In addition to these
requirements, the existing requirements
for coordination in the National Radio
Quiet Zone will be maintained.
19
The
Commission seeks comment on this
proposal.
C. Costs and Benefits and Diversity,
Equity, and Inclusion
39. The Commission invites comment
generally on the costs and benefits
associated with the various approaches
discussed in this NPRM. Are there any
aspects of the above issues that the
Commission has not considered? Are
there any studies, efforts, or analyses
that the Commission should consider? If
so, the Commission asks that
commenters identify them and explain
why they should be considered.
40. Digital Equity and Inclusion.
Finally, the Commission, as part of its
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20
Section 1 of the Communications Act of 1934
as amended provides that the FCC ‘‘regulat[es]
interstate and foreign commerce in communication
by wire and radio so as to make [such service]
available, so far as possible, to all the people of the
United States, without discrimination on the basis
of race, color, religion, national origin, or sex.’’ 47
U.S.C. 151.
21
The term ‘‘equity’’ is used here consistent with
E.O. 13985 as the consistent and systematic fair,
just, and impartial treatment of all individuals,
including individuals who belong to underserved
communities that have been denied such treatment,
such as Black, Latino, and Indigenous and Native
American persons, Asian Americans and Pacific
Islanders and other persons of color; members of
religious minorities; lesbian, gay, bisexual,
transgender, and queer (LGBTQ+) persons; persons
with disabilities; persons who live in rural areas;
and persons otherwise adversely affected by
persistent poverty or inequality. See E.O. 13985, 86
FR 7009, E.O. on Advancing Racial Equity and
Support for Underserved Communities Through the
Federal Government (Jan. 20, 2021).
22
See 5 U.S.C. 603. The RFA, 5 U.S.C. 601
through 612, has been amended by the Small
Business Regulatory Enforcement Fairness Act of
1996, (SBREFA) Public Law 104–121, Title II, 110
Stat. 857 (1996).
23
See 5 U.S.C. 603(a).
24
See id.
25
5 U.S.C. 603(b)(3).
26
5 U.S.C. 601(6).
27
5 U.S.C. 601(3) (incorporating by reference the
definition of ‘‘small-business concern’’ in the Small
Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C.
601(3), the statutory definition of a small business
applies ‘‘unless an agency, after consultation with
the Office of Advocacy of the Small Business
Administration and after opportunity for public
comment, establishes one or more definitions of
such term which are appropriate to the activities of
the agency and publishes such definition(s) in the
Federal Register.’’
28
15 U.S.C. 632.
29
See 5 U.S.C. 601(3) through (6).
30
See SBA, Office of Advocacy, Frequently
Asked Questions, ‘‘What is a small business?,’’
https://cdn.advocacy.sba.gov/wp-content/uploads/
2021/11/03093005/Small-Business-FAQ-2021.pdf.
(Nov 2021).
continuing effort to advance digital
equity for all,
20
including people of
color, persons with disabilities, persons
who live in rural or Tribal areas, and
others who are or have been historically
underserved, marginalized, or adversely
affected by persistent poverty or
inequality, invites comment on any
equity-related considerations
21
and any
potential benefits that may be associated
with the various approaches and issues
discussed herein. Specifically, the
Commission seeks comment on how the
various approaches that the Commission
may consider may promote or inhibit
advances in diversity, equity, inclusion,
and accessibility, as well the scope of
the Commission’s relevant legal
authority.
II. Initial Regulatory Flexibility
Analysis in WT Docket No. 23–158 and
GN Docket No. 14–177
41. As required by the Regulatory
Flexibility Act of 1980, as amended
(RFA),
22
the Commission has prepared
this Initial Regulatory Flexibility
Analysis (IRFA) of the possible
significant economic impact on a
substantial number of small entities by
the policies and rules proposed in this
NPRM. Written public comments are
requested on this IRFA. Comments must
be identified as responses to the IRFA
and must be filed by the deadlines for
comments in the NPRM. The
Commission will send a copy of the
NPRM including this IRFA, to the Chief
Counsel for Advocacy of the Small
Business Administration (SBA).
23
In
addition, the NPRM and IRFA (or
summaries thereof) will be published in
the Federal Register.
24
A. Need for, and Objectives of, the
Proposed Rules
42. In the NPRM, the Commission
proposes to increase the Nation’s supply
of spectrum for mobile broadband by
adopting rules for fixed and mobile
services in the 42–42.5 GHz band. The
Commission proposes to license this
spectrum on a shared, non-exclusive
basis. This additional spectrum for
mobile use will help ensure that the
speed, capacity, and ubiquity of the
nation’s wireless networks keeps pace
with the skyrocketing demand for
mobile service. It will also make
possible new types of services for
consumers and businesses. The
Commission seeks comment on the
specific types of licenses under which it
should make this spectrum available,
including non-exclusive nationwide
licensing, site-based licensing, and
technology-based sensing. The
Commission seeks comment in
particular on what licensing models
might best facilitate entry and
participation by smaller and emerging
entities as well as comments that
provide options for potentially lowering
barriers to entry for smaller or emerging
wireless service providers, encourage
competition, and avoid spectrum
warehousing.
43. Until recently, the mmW bands
were generally considered unsuitable
for mobile applications because of
propagation losses at such high
frequencies and the inability of mmW
signals to propagate around obstacles.
As increasing congestion has begun to
fill the lower bands and carriers have
resorted to smaller and smaller
microcells in order to re-use the
available spectrum, the industry is
taking another look at the mmW bands
and beginning to realize that at least
some of the presumed disadvantages
can be turned to advantages. For
example, short transmission paths and
high propagation losses can facilitate
spectrum re-use in microcellular
deployments by limiting the amount of
interference between adjacent cells.
Furthermore, where longer paths are
desired, the extremely short
wavelengths of mmW signals make it
feasible for very small antennas to
concentrate signals into highly focused
beams with enough gain to overcome
propagation losses. The short
wavelengths of mmW signals also make
it possible to build multi-element,
dynamic beam-forming antennas that
will be small enough to fit into
handsets—a feat that might never be
possible at the lower, longer-wavelength
frequencies below 6 GHz where cell
phones operate today.
B. Legal Basis
44. The proposed action is authorized
pursuant to sections 1, 2, 4, 301, 302,
303, 304, 307, 309, and 310 of the
Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, 154, 301,
302a, 303, 304, 307, and 309, § 604 of
the MOBILE NOW Act, 47 U.S.C. 1503,
and § 1.411 of the Commission’s Rules,
47 CFR 1.411.
C. Description and Estimate of the
Number of Small Entities to Which the
Proposed Rules Will Apply
45. The RFA directs agencies to
provide a description of and, where
feasible, an estimate of the number of
small entities that may be affected by
the proposed rules, if adopted.
25
The
RFA generally defines the term ‘‘small
entity’’ as having the same meaning as
the terms ‘‘small business,’’ ‘‘small
organization,’’ and ‘‘small governmental
jurisdiction.’’
26
In addition, the term
‘‘small business’’ has the same meaning
as the term ‘‘small business concern’’
under the Small Business Act.’’
27
A
‘‘small business concern’’ is one which:
(1) is independently owned and
operated; (2) is not dominant in its field
of operation; and (3) satisfies any
additional criteria established by the
SBA.
28
46. Small Businesses, Small
Organizations, Small Governmental
Jurisdictions. The Commission’s actions,
over time, may affect small entities that
are not easily categorized at present.
The Commission therefore describes
here, at the outset, three broad groups of
small entities that could be directly
affected herein.
29
First, while there are
industry specific size standards for
small businesses that are used in the
regulatory flexibility analysis, according
to data from the SBA’s Office of
Advocacy, in general a small business is
an independent business having fewer
than 500 employees.
30
These types of
small businesses represent 99.9% of all
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Id.
32
See 5 U.S.C. 601(4).
33
The IRS benchmark is similar to the population
of less than 50,000 benchmark in 5 U.S.C 601(5)
that is used to define a small governmental
jurisdiction. Therefore, the IRS benchmark has been
used to estimate the number of small organizations
in this small entity description. See Annual
Electronic Filing Requirement for Small Exempt
Organizations—Form 990–N (e-Postcard), ‘‘Who
must file,’’ https://www.irs.gov/charities-non-
profits/annual-electronic-filing-requirement-for-
small-exempt-organizations-form-990-n-e-postcard.
The Commission notes that the IRS data does not
provide information on whether a small exempt
organization is independently owned and operated
or dominant in its field.
34
See Exempt Organizations Business Master File
Extract (E.O. BMF), ‘‘CSV Files by Region,’’ https://
www.irs.gov/charities-non-profits/exempt-
organizations-business-master-file-extract-eo-bmf.
The IRS Exempt Organization Business Master File
(E.O. BMF) Extract provides information on all
registered tax-exempt/non-profit organizations. The
data utilized for purposes of this description was
extracted from the IRS E.O. BMF data for businesses
for the tax year 2020 with revenue less than or
equal to $50,000 for Region 1-Northeast Area
(58,577), Region 2-Mid-Atlantic and Great Lakes
Areas (175,272), and Region 3-Gulf Coast and
Pacific Coast Areas (213,840) that includes the
continental U.S., Alaska, and Hawaii. This data
does not include information for Puerto Rico.
35
See 5 U.S.C. 601(5).
36
See 13 U.S.C. 161. The Census of Governments
survey is conducted every five (5) years compiling
data for years ending with ‘‘2’’ and ‘‘7’’. See also
Census of Governments, https://www.census.gov/
programs-surveys/cog/about.html.
37
See U.S. Census Bureau, 2017 Census of
Governments—Organization Table 2. Local
Governments by Type and State: 2017
[CG1700ORG02], https://www.census.gov/data/
tables/2017/econ/gus/2017-governments.html.
Local governmental jurisdictions are made up of
general purpose governments (county, municipal
and town or township) and special purpose
governments (special districts and independent
school districts). See also tbl.2. CG1700ORG02
Table Notes_Local Governments by Type and State_
2017.
38
See id. at Table 5. County Governments by
Population-Size Group and State: 2017
[CG1700ORG05], https://www.census.gov/data/
tables/2017/econ/gus/2017-governments.html.
There were 2,105 county governments with
populations less than 50,000. This category does
not include subcounty (municipal and township)
governments.
39
See id. at Table 6. Subcounty General-Purpose
Governments by Population-Size Group and State:
2017 [CG1700ORG06], https://www.census.gov/
data/tables/2017/econ/gus/2017-governments.html.
There were 18,729 municipal and 16,097 town and
township governments with populations less than
50,000.
40
See id. at Table 10. Elementary and Secondary
School Systems by Enrollment-Size Group and
State: 2017 [CG1700ORG10], https://
www.census.gov/data/tables/2017/econ/gus/2017-
governments.html. There were 12,040 independent
school districts with enrollment populations less
than 50,000. See also Table 4. Special-Purpose
Local Governments by State Census Years 1942 to
2017 [CG1700ORG04], CG1700ORG04 Table Notes_
Special Purpose Local Governments by State_
Census Years 1942 to 2017.
41
While the special purpose governments
category also includes local special district
governments, the 2017 Census of Governments data
does not provide data aggregated based on
population size for the special purpose
governments category. Therefore, only data from
independent school districts is included in the
special purpose governments category.
42
This total is derived from the sum of the
number of general purpose governments (county,
municipal and town or township) with populations
of less than 50,000 (36,931) and the number of
special purpose governments—independent school
districts with enrollment populations of less than
50,000 (12,040), from the 2017 Census of
Governments—Organizations Tables 5, 6 & 10.
43
See 47 CFR part 101, subparts C and I.
44
See id. Subparts C and H.
45
Auxiliary Microwave Service is governed by
part 74 of Title 47 of the Commission’s Rules. See
47 CFR part 74. Available to licensees of broadcast
stations and to broadcast and cable network
entities, broadcast auxiliary microwave stations are
used for relaying broadcast television signals from
the studio to the transmitter, or between two points
such as a main studio and an auxiliary studio. The
service also includes mobile TV pickups, which
relay signals from a remote location back to the
studio.
46
See 47 CFR part 30.
47
See 47 CFR part 101, subpart Q.
48
See id. Subpart L.
49
See id. Subpart G.
50
See id.
51
See id. Subpart O.
52
See id. Subpart P.
53
See 47 CFR 101.533 and 101.1017.
54
See U.S. Census Bureau, 2017 NAICS
Definition, ‘‘517312 Wireless Telecommunications
Carriers (except Satellite),’’ https://
www.census.gov/naics/?input=517312&year=2017&
details=517312.
55
See 13 CFR 121.201, NAICS Code 517312 (as
of 10/1/22, NAICS Code 517112).
56
See U.S. Census Bureau, 2017 Economic
Census of the United States, Employment Size of
Firms for the U.S.: 2017, Table ID:
EC1700SIZEEMPFIRM, NAICS Code 517312,
https://data.census.gov/cedsci/table?y=2017&n=
517312&tid=ECNSIZE2017.EC1700
SIZEEMPFIRM&hidePreview=false.
57
Id. The available U.S. Census Bureau data does
not provide a more precise estimate of the number
of firms that meet the SBA size standard.
businesses in the United States, which
translates to 32.5 million businesses.
31
47. Next, the type of small entity
described as a ‘‘small organization’’ is
generally ‘‘any not-for-profit enterprise
which is independently owned and
operated and is not dominant in its
field.’’
32
The Internal Revenue Service
(IRS) uses a revenue benchmark of
$50,000 or less to delineate its annual
electronic filing requirements for small
exempt organizations.
33
Nationwide, for
tax year 2020, there were approximately
447,689 small exempt organizations in
the U.S. reporting revenues of $50,000
or less according to the registration and
tax data for exempt organizations
available from the IRS.
34
Finally, the
small entity described as a ‘‘small
governmental jurisdiction’’ is defined
generally as ‘‘governments of cities,
counties, towns, townships, villages,
school districts, or special districts, with
a population of less than fifty
thousand.’’
35
U.S. Census Bureau data
from the 2017 Census of Governments
36
indicate there were 90,075 local
governmental jurisdictions consisting of
general purpose governments and
special purpose governments in the
United States.
37
Of this number, there
were 36,931 general purpose
governments (county,
38
municipal, and
town or township
39
) with populations
of less than 50,000 and 12,040 special
purpose governments—independent
school districts
40
with enrollment
populations of less than 50,000.
41
Accordingly, based on the 2017 U.S.
Census of Governments data, the
Commission estimates that at least
48,971 entities fall into the category of
‘‘small governmental jurisdictions.’’
42
48. Fixed Microwave Services. Fixed
microwave services include common
carrier,
43
private-operational fixed,
44
and broadcast auxiliary radio services.
45
They also include the UMFUS,
46
Millimeter Wave Service (70/80/90
GHz),
47
Local Multipoint Distribution
Service (LMDS),
48
the Digital Electronic
Message Service (DEMS),
49
24 GHz
Service,
50
Multiple Address Systems
(MAS),
51
and Multichannel Video
Distribution and Data Service
(MVDDS),
52
where in some bands
licensees can choose between common
carrier and non-common carrier
status.
53
Wireless Telecommunications
Carriers (except Satellite)
54
is the
closest industry with a SBA small
business size standard applicable to
these services. The SBA small size
standard for this industry classifies a
business as small if it has 1,500 or fewer
employees.
55
U.S. Census Bureau data
for 2017 show that there were 2,893
firms that operated in this industry for
the entire year.
56
Of this number, 2,837
firms employed fewer than 250
employees.
57
Thus under the SBA size
standard, the Commission estimates that
a majority of fixed microwave service
licensees can be considered small.
49. The Commission’s small business
size standards with respect to fixed
microwave services involve eligibility
for bidding credits and installment
payments in the auction of licenses for
the various frequency bands included in
fixed microwave services. When
bidding credits are adopted for the
auction of licenses in fixed microwave
services frequency bands, such credits
may be available to several types of
small businesses based average gross
revenues (small, very small and
entrepreneur) pursuant to the
competitive bidding rules adopted in
conjunction with the requirements for
the auction and/or as identified in part
101 of the Commission’s rules for the
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See 47 CFR 101.538(a)(1) through (3),
101.1112(b) through (d), 101.1319(a)(1) through (2),
and 101.1429(a)(1) through (3).
59
See U.S. Census Bureau, 2017 NAICS
Definition, ‘‘334220 Radio and Television
Broadcasting and Wireless Communications
Equipment Manufacturing,’’ https://
www.census.gov/naics/?input=334220
&year=2017&details=334220.
60
Id.
61
See 13 CFR 121.201, NAICS Code 334220.
62
See U.S. Census Bureau, 2017 Economic
Census of the United States, Employment Size of
Firms for the U.S.: 2017, Table ID:
EC1700SIZEEMPFIRM, NAICS Code 334220,
https://data.census.gov/cedsci/table?y=2017&n=
334220&tid=ECNSIZE2017.EC1700SIZEEMP
FIRM&hidePreview=false.
63
Id. The available U.S. Census Bureau data does
not provide a more precise estimate of the number
of firms that meet the SBA size standard.
64
See U.S. Census Bureau, 2017 NAICS
Definition, ‘‘517410 Satellite Telecommunications,’’
https://www.census.gov/naics/?input
=517410&year=2017&details=517410.
65
See 13 CFR 121.201, NAICS Code 517410.
66
See U.S. Census Bureau, 2017 Economic
Census of the United States, Selected Sectors: Sales,
Value of Shipments, or Revenue Size of Firms for
the U.S.: 2017, Table ID: EC1700SIZEREVFIRM,
NAICS Code 517410, https://data.census.gov/
cedsci/table?y=2017&n=517410&
tid=ECNSIZE2017.EC1700SIZEREVFIRM&hide
Preview=false.
67
Id. The available U.S. Census Bureau data does
not provide a more precise estimate of the number
of firms that meet the SBA size standard. The
Commission also notes that according to the U.S.
Census Bureau glossary, the terms receipts and
revenues are used interchangeably, see https://
www.census.gov/glossary/#term_
ReceiptsRevenueServices.
68
Federal-State Joint Board on Universal Service,
Universal Service Monitoring Report at 26, Table
1.12 (2021), https://docs.fcc.gov/public/
attachments/DOC-379181A1.pdf.
69
Id.
70
See U.S. Census Bureau, 2017 NAICS
Definition, ‘‘517312 Wireless Telecommunications
Carriers (except Satellite),’’ https://
www.census.gov/naics/?input=517312&year=
2017&details=517312.
71
Id.
72
See 13 CFR 121.201, NAICS Code 517312 (as
of 10/1/22, NAICS Code 517112).
73
See U.S. Census Bureau, 2017 Economic
Census of the United States, Employment Size of
Firms for the U.S.: 2017, Table ID:
EC1700SIZEEMPFIRM, NAICS Code 517312,
https://data.census.gov/cedsci/table?y=2017
&n=517312&tid=ECNSIZE
2017.EC1700SIZEEMPFIRM&hidePreview=false.
74
Id. The available U.S. Census Bureau data does
not provide a more precise estimate of the number
of firms that meet the SBA size standard.
75
Federal-State Joint Board on Universal Service,
Universal Service Monitoring Report at 26, Table
1.12 (2021), https://docs.fcc.gov/public/
attachments/DOC-379181A1.pdf.
76
Id.
77
See U.S. Census Bureau, 2017 NAICS
Definition, ‘‘517919 All Other
Telecommunications,’’ https://www.census.gov/
naics/?input=517919&year=2017&details=517919.
78
Id.
79
Id.
80
See 13 CFR 121.201, NAICS Code 517919 (as
of 10/1/22, NAICS Code 517810).
specific fixed microwave services
frequency bands.
58
50. In frequency bands where licenses
were subject to auction, the Commission
notes that as a general matter, the
number of winning bidders that qualify
as small businesses at the close of an
auction does not necessarily represent
the number of small businesses
currently in service. Further, the
Commission does not generally track
subsequent business size unless, in the
context of assignments or transfers,
unjust enrichment issues are implicated.
Additionally, since the Commission
does not collect data on the number of
employees for licensees providing these
services, at this time the Commission is
not able to estimate the number of
licensees with active licenses that
would qualify as small under the SBA’s
small business size standard.
51. Radio and Television
Broadcasting and Wireless
Communications Equipment
Manufacturing. This industry comprises
establishments primarily engaged in
manufacturing radio and television
broadcast and wireless communications
equipment.
59
Examples of products
made by these establishments are:
transmitting and receiving antennas,
cable television equipment, GPS
equipment, pagers, cellular phones,
mobile communications equipment, and
radio and television studio and
broadcasting equipment.
60
The SBA
small business size standard for this
industry classifies businesses having
1,250 employees or less as small.
61
U.S.
Census Bureau data for 2017 show that
there were 656 firms in this industry
that operated for the entire year.
62
Of
this number, 624 firms had fewer than
250 employees.
63
Thus, under the SBA
size standard, the majority of firms in
this industry can be considered small.
52. Satellite Telecommunications.
This industry comprises firms
‘‘primarily engaged in providing
telecommunications services to other
establishments in the
telecommunications and broadcasting
industries by forwarding and receiving
communications signals via a system of
satellites or reselling satellite
telecommunications.’’
64
Satellite
telecommunications service providers
include satellite and earth station
operators. The SBA small business size
standard for this industry classifies a
business with $38.5 million or less in
annual receipts as small.
65
U.S. Census
Bureau data for 2017 show that 275
firms in this industry operated for the
entire year.
66
Of this number, 242 firms
had revenue of less than $25 million.
67
Additionally, based on Commission
data in the 2021 Universal Service
Monitoring Report, as of December 31,
2020, there were 71 providers that
reported they were engaged in the
provision of satellite
telecommunications services.
68
Of these
providers, the Commission estimates
that approximately 48 providers have
1,500 or fewer employees.
69
Consequently, using the SBA’s small
business size standard, a little more
than half of these providers can be
considered small entities.
53. Wireless Telecommunications
Carriers (except Satellite). This industry
comprises establishments engaged in
operating and maintaining switching
and transmission facilities to provide
communications via the airwaves.
70
Establishments in this industry have
spectrum licenses and provide services
using that spectrum, such as cellular
services, paging services, wireless
internet access, and wireless video
services.
71
The SBA size standard for
this industry classifies a business as
small if it has 1,500 or fewer
employees.
72
U.S. Census Bureau data
for 2017 show that there were 2,893
firms in this industry that operated for
the entire year.
73
Of that number, 2,837
firms employed fewer than 250
employees.
74
Additionally, based on
Commission data in the 2021 Universal
Service Monitoring Report, as of
December 31, 2020, there were 797
providers that reported they were
engaged in the provision of wireless
services.
75
Of these providers, the
Commission estimates that 715
providers have 1,500 or fewer
employees.
76
Consequently, using the
SBA’s small business size standard,
most of these providers can be
considered small entities.
54. All Other Telecommunications.
This industry is comprised of
establishments primarily engaged in
providing specialized
telecommunications services, such as
satellite tracking, communications
telemetry, and radar station operation.
77
This industry also includes
establishments primarily engaged in
providing satellite terminal stations and
associated facilities connected with one
or more terrestrial systems and capable
of transmitting telecommunications to,
and receiving telecommunications from,
satellite systems.
78
Providers of internet
services (e.g. dial-up ISPs) or Voice over
internet Protocol (VoIP) services, via
client-supplied telecommunications
connections are also included in this
industry.
79
The SBA small business size
standard for this industry classifies
firms with annual receipts of $35
million or less as small.
80
U.S. Census
Bureau data for 2017 show that there
were 1,079 firms in this industry that
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81
See U.S. Census Bureau, 2017 Economic
Census of the United States, Selected Sectors: Sales,
Value of Shipments, or Revenue Size of Firms for
the U.S.: 2017, Table ID: EC1700SIZEREVFIRM,
NAICS Code 517919, https://data.census.gov/
cedsci/table?y=2017&n=517919&tid=ECN
SIZE2017.EC1700SIZEREVFIRM
&hidePreview=false.
82
Id. The available U.S. Census Bureau data does
not provide a more precise estimate of the number
of firms that meet the SBA size standard. The
Commission also notes that according to the U.S.
Census Bureau glossary, the terms receipts and
revenues are used interchangeably, see https://
www.census.gov/glossary/#term_ReceiptsRevenue
Services.
83
5 U.S.C. 603(a)(1) through (4).
operated for the entire year.
81
Of those
firms, 1,039 had revenue of less than
$25 million.
82
Based on this data, the
Commission estimates that the majority
of ‘‘All Other Telecommunications’’
firms can be considered small.
D. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements for Small Entities
55. The Commission expects the
proposed rules in the NPRM will
impose new or additional reporting or
recordkeeping and/or other compliance
obligations on small entities as well as
other licensees and applicants. At this
time however, the Commission is not in
a position to determine whether, if
adopted, its proposals and the matters
upon which it seeks comment will
require small entities to hire
professionals to comply and cannot
quantify the cost of compliance with the
potential rule changes discussed herein.
56. Depending on the licensing model
the Commission ultimately adopts for
the 42 GHz band, applicants for licenses
may be required to coordinate their
proposed operations with other
licensees and applicants. Under the
relevant licensing models, such
coordination would be necessary to
ensure that neighboring operations will
not interfere with each other. The
Commission seeks comment on the cost
to small entities for this potential
coordination with operations.
57. Small entities and other
applicants in the 42 GHz band may be
required to meet buildout requirements.
Depending on the type of buildout
requirement the Commission ultimately
adopts, licensees may be required to
provide information to the Commission
on the facilities they have constructed,
the nature of the service they are
providing, and the extent to which they
are providing coverage in their license
or registered site area. Any performance
or buildout requirements the
Commission adopts will be structured to
ensure that spectrum is being put into
use and to encourage rapid deployment
of next generation wireless services,
including 5G, which would benefit
small entities and the industry as a
whole. The Commission seeks comment
as to the potential equipment,
operational and implementation costs to
small entities working towards
complying with these buildout
requirements.
E. Steps Taken To Minimize the
Significant Economic Impact on Small
Entities, and Significant Alternatives
Considered
58. The RFA requires an agency to
describe any significant, specifically
small business, alternatives that it has
considered in reaching its proposed
approach, which may include the
following four alternatives (among
others): ‘‘(1) the establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance and reporting requirements
under the rule for such small entities;
(3) the use of performance rather than
design standards; and (4) an exemption
from coverage of the rule, or any part
thereof, for such small entities.’’
83
59. The Commission believes the
potential licensing models on which it
seeks comment would facilitate access
to spectrum by small businesses and a
wide variety of other entities. However,
to assist in the Commission’s evaluation
of the economic impact on small entities
as a result of actions that have been
proposed in the NPRM, and to better
explore options and alternatives, the
Commission has sought comment from
the parties. Of particular interest are
those comments providing insight as to
whether any of the costs associated with
any potential performance or buildout
requirements can be alleviated for small
businesses. The Commission expects to
more fully consider the economic
impact and alternatives for small
entities following the review of
comments filed in response to the
NPRM.
F. Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rules
60. None.
III. Ordering Clauses
61. Accordingly, it is ordered,
pursuant to sections 1, 2, 4, 301, 302,
303, 304, 307, 309, and 310 of the
Communications Act of 1934, 47 U.S.C.
151, 152, 154, 301, 302a, 303, 304, 307,
and 309, § 604 of the MOBILE NOW
Act, 47 U.S.C. 1503, and § 1.411 of the
Commission’s Rules, 47 CFR 1.411, that
this Notice of Proposed Rulemaking is
hereby adopted.
62. It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Notice of Proposed Rulemaking,
including the Initial Regulatory
Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small
Business Administration.
Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2023–16167 Filed 7–28–23; 8:45 am]
BILLING CODE 6712–01–P
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