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ed. We stated that the 31 GHz services are permitted in the 23 GHz band and requested comment on the relocation of incumbent 31 GHz systems to that band. We asked whether incumbents should be entitled to any recovery for reasonable relocation costs and, if so, if LMDS applicants should be required to contribute to the recovery of such reasonable costs. 18

18. Alternatively, we requested comment on whether there are any methods by which the incumbent services could be accommodated without delaying, causing interference to, or limiting the usefulness of LMDS at 31 GHz. We pointed out that although incumbent licensees have assumed all the risks of receiving interference, we nevertheless encouraged cooperation among the LMDS providers and existing licensees in exploring any methods that would allow the services to coexist without placing any economic or technical burdens on the LMDS providers. We also asked if there are existing mechanisms that will permit all of these services to share the entire band. Finally, we requested comment on whether we should accept any new applications, modifications, or renewal applications in the 31 GHz services in light of the proposal to establish a secondary status for these services."

19. The following sections, in reviewing the record and presenting our decisions, address several broad issues. First, is there a need for 1,000 megahertz of unencumbered spectrum for LMDS and, if so, does the 31 GHz band offer the best means of achieving this in combination with spectrum at 28 GHz that we have already assigned to LMDS? Second, if we utilize spectrum at 31 GHz for LMDS, what is the nature of incumbent operations that will be affected and what is the level of incumbent usage? Third, how should we weigh the utility of these uses as compared to LMDS? Fourth, in making spectrum at 31 GHz availab for LMDS, should incumbents be relocated to other bands, or should some form of sharing the 31 GHz spectrum be developed that balances the needs of incumbents and LMDS providers in a way that best serves the public interest?

2. Comments

20. Support for our proposal to redesignate, on a primary protected basis, the 31 GHz band for LMDS is expressed by a variety of proponents of LMDS. This includes satellite systems represented by GE, Hughes, LMC, and Motorola, which argue that allocating an additional 300 megahertz of spectrum for LMDS use is important to satisfy their spectrum requirements and promote innovative satellite networks with a wealth of high-speed,

18 Id. at para. 102.

19 Id. at paras. 103-104.

broadband, interactive services on demand within the United States and around the globe.20 They state that the additional unencumbered spectrum for LMDS will solve concerns created by the First Report and Order, in which we provided that 150 of the 1,000 megahertz in 28 GHz would be shared on a co-primary basis with NGSO/MSS feeder links.

21. Support also is filed in comments of various groups and associations on behalf of their members, including PTV, Ad Hoc RTG, and WCA. PTV generally supports the availability of the proposed spectrum for use by its public television station members. Ad Hoc RTG argues that we should designate 300 megahertz because of significant demand for the two-way interactive services that LMDS can provide and that rural telephone companies seek to promote.22 WCA points out that we correctly found that wireless cable operat which it represents, could use the additional spectrum for two-way LMDS services to provide local telephone services in competition with local telephone companies.23

22. Support for allocating an additional 300 megahertz for LMDS also was filed in comments by HP, Rio Vision, and WebCel, which argue that the extra capacity is needed to ensure the economic viability of an interactive LMDS system and accommodate the two-way and symmetric broadband LMDS uses that are expected to compete with incumbent cable and telephony services.24

23. Cellular Vision submits extensive comments in support of our proposal, which it argues is an essential element of its efforts since 1991 to establish LMDS on sufficient spectrum to develop the multiple potential uses for LMDS that are not yet ascertained.? Cellular Vision initiated LMDS under the Pioneer's Preference authorized in the First NPRM, and anticipates offering consumers the full range of two-way services intended by designating additional spectrum for LMDS. Its affiliate, CVTT, states that it developed the multi-faceted high-tech LMDS technology and urges we promptly designate 31 GHz for LMDS so that

20 GE Comments to Fourth NPRM at 1-3; Hughes Comments to Fourth NPRM at 2; LMC Comments to Fourth NPRM at 3-4; Motorola Reply Comments to Fourth NPRM at 4.

21 PTV Comments to Fourth NPRM at 3.

22 Ad Hoc RTG Comments to Fourth NPRM at 7-8.

23 WCA Comments to Fourth NPRM at 1-3.

24 HP Comments to Fourth NPRM at 2; RioVision Comments to Fourth NPRM at 1; WebCel Reply Comments to Fourth NPRM at 18-19.

25 Cellular Vision Comments to Fourth NPRM at 7-8; Cellular Vision Reply Comments to Fourth NPRM at 6-7.

industry will develop the new equipment and applications to create commercially viable uses with the 28 GHz spectrum.26 Other developers of LMDS that submit comments in support are Endgate, M/A-COM, TI, and Titan. They urge us to promptly designate the additional spectrum in 31 GHz to provide the technology sector with the assurance to develop and implement the services intended for LMDS.27

24. In response to our request for comments on the technical adaptability of the band, ComTech states that equipment costs would be higher if the 31 GHz band is used rather than 1 gigahertz of contiguous spectrum, because multiple antennas would be required rather than only one.28 Rio Vision is concerned as to what additional equipment may be required for twoway transmissions in 31 GHz and how much the additional equipment will cost.29 However, Cellular Vision and CVTT assert that leading LMDS manufacturers, such as Philips, Titan, and MA-COM, are expected promptly to develop commercially viable applications and equipment for use of the 31 GHz band in conjunction with their equipment for the 28 GHz band.30 However, they request that LMDS licensees be given the flexibility to deploy services that can use the 31 GHz spectrum until the technology is developed for LMDS uses. MA-COM and Titan confirm that they intend to commit research and development resources to develop commercially viable hardware to be used in connection with the 28 GHz LMDS systems. 31

echnical solution for antennas and active electronics is more difficult to design and produce if the return link is within the 31 GHz band, but that solutions can be readily developed once we designate the spectrum. 32

25. In response to our request for comments on proposals for accommodating incumbent services authorized under the existing 31 GHz services, several of the comments argue that no alternative provisions for protecting them from interference are warranted because incumbent licenses are issued on a non-protected basis and thus they are secondary to any other

26 CVTT Comments to Fourth NPRM at 5.

27 Endgate Comments to Fourth NPRM at 1; MA-COM Comments to Fourth NPRM at 4; TI Reply Comments to Fourth NPRM at 1-4; Titan Reply Comments to Fourth NPRM at 1.

28 ComTech Comments to Fourth NPRM at 2.

29 Rio Vision Comments to Fourth NPRM at 1.

30 Cellular Vision Comments to Fourth NPRM at 5, 8; CVTT Comments to Fourth NPRM at 5.

31 MA-COM Reply Comments to Fourth NPRM at 4; Titan Reply Comments to Fourth NPRM at 1.

32 Endgate Comments to Fourth NPRM at 1.

service that may operate on the band." ComTech contends that if these licensees cannot operate on a non-interference basis, it is their legal and financial responsibility to correct that interference. 34 GE argues that they should be required to terminate operations or move to another band if it is technically infeasible for current systems to coexist with LMDS.95

26. Cellular Vision and TI argue that the licensees knowingly accepted such nonprotected licenses and have no legitimate expectation of protection in the face of harmful interference from LMDS.36 Hughes argues that our proposal does not alter the legal standing of incumbent licensees.” ComTech, Rio Vision, and TI object to any compensation if such licensees are relocated, inasmuch as they are secondary users that must bear the impact of any interference problems, and to any applications for licensing of such services or, as TI further argues, any grandfathering of existing licensees."

27. Cellular Vision, Endgate, and HP support our suggestion for cooperation among LMDS interests and incumbent 31 GHz licensees to explore methods for allowing both technologies to coexist on the 31 GHz band. HP is concerned about displacing existing services, particularly local municipalities using the spectrum for traffic control, and suggests alternatives that include splitting 31 GHz into two bands, establishing criteria for sharing that eliminates potential interference, and relocating traffic signal systems to 28 GHz.39 On reply, Cellular Vision submits a plan for sharing the band with incumbent users.40 Endgate submits another plan based on different segmentation for sharing the band with incumbents."

33 Cellular Vision Comments to Fourth NPRM at 9; CellularVision Reply Comments to Fourth NPRM at 6; ComTech Comments to Fourth NPRM at 7; GE Comments to Fourth NPRM at 3; Hughes Comments to Fourth NPRM at 2; Hughes Reply Comments to Fourth NPRM at 2; RioVision Comments to Fourth NPRM at 2; TI Reply Comments to Fourth NPRM at 6.

34 ComTech Comments to Fourth NPRM at 7.

35 GE Comments to Fourth NPRM at 3.

36 Cellular Vision Reply Comments to Fourth NPRM at 4; TI Reply Comments to Fourth NPRM at 6-7.

37 Hughes Reply Comments to Fourth NPRM at 3.

38 ComTech Comments to Fourth NPRM at 7; RioVision Comments to Fourth NPRM at 2; TI Reply Comments to Fourth NPRM at 10-11.

39 HP Comments to Fourth NPRM at 3.

40 Cellular Vision Reply Comments to Fourth NPRM at 8-10.

41 Endgate Reply Comments to Fourth NPRM at 1.

28. Opponents of our proposal to redesignate 31 GHz spectrum for LMDS include a variety of proponents of existing 31 GHz services, as identified below. As a general matter, parties opposing our proposal argue that we underestimated the extent and importance of the incumbent 31 GHz services and licensees, in particular those governmental entities using the spectrum for traffic and air pollution control. They argue that the impact of LMDS operations as proposed would undermine all existing operations and be contrary to the public interest. Most oppose any alternative that requires them to leave the 31 GHz band and subjects them to interference from LMDS. Most request that a plan be developed that allows them to continue existing services at least in part of the band while providing LMDS with the spectrum needed.

29. Several governmental entities submit comments in support of the continued use of 31 GHz for traffic control systems. The municipalities include the Cities of Palm Springs, San Diego, and Topeka, which are licensees, and the City of Long Beach and the City and County of Honolulu, which are not licensees. They all have purchased and installed 31 GHz radio links to interconnect signalized intersections with a Traffic Management Center in systems that manage traffic incidents, congestions, and synchronization. They intend to extend the systems into growing areas. They argue that their 31 GHz microwave systems are cost-effective and inexpensive to install and maintain. They request that we maintain their ability to use the frequency for their traffic control systems and that we not permit LMDS to interfere with such services, which would create undue hardships. Many of the systems are part of Intelligent Transportation Systems (ITS) promoted under Federal transportation goals. 42

30. Comments also were filed on behalf of the State of California (by MSAPRC) and by Nevada DOT. MSAPRC argues that it has funded signal synchronization projects in 31 GHz along heavily traveled, multijurisdictional arterial highways in Southern California as a specific air pollution reduction strategy. Nevada DOT is replacing an outdated traffic system throughout the metropolitan Las Vegas Area, for which applications are pending, with a system that relies on 31 GHz channels for surveillance. MSAPRC and Nevada DOT argue that the harmful interference from LMDS would seriously impair such systems and they request we adopt a plan that permits 31 GHz systems to continue to operate and grow.43

42 Honolulu Comments to Fourth NPRM at 1; Long Beach Comments to Fourth NPRM at 3-4; Palm Springs Comments to Fourth NPRM at 2; San Diego Comments to Fourth NPRM at 1-2; Topeka Comments to Fourth NPRM at 1.

43 MSAPRC Comments to Fourth NPRM at 1-2. Nevada DOT filed comments in a letter on September 5, 1996, which also summarized an ex parte contact, after the period closed for the filing of comments. Nevada DOT Letter of Sept. 5. We accept these late-filed comments as part of the record in order to ensure a complete assessment of issues raised in this proceeding.

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