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31. Comments also were filed by USDOT, through its ITS Joint Program Office, and by SBA. USDOT asserts that it and area governments are making major investments in new technologies to alleviate traffic congestion and that 31 GHz point-to-point microwave links are a significant tool. SBA argues that in the Initial Regulatory Flexibility Analysis (IRFA) in the Fourth NPRM, we underestimated the number of small entities to be affected by our proposed redesignation of 31 GHz and failed to consider alternatives to displacing incumbent licensees. They oppose our proposal to redesignate the entire 31 GHz band exclusively to LMDS as against the public interest and Federal goals promoting traffic management systems and clean air. 44

32. IMSA is an organization that promotes the development and use of electrical signaling and communications systems for public safety. Its members include many governmental agencies. IMSA submits extensive comments opposing the factual and legal basis of our proposal. ITE is an organization of transportation professionals that argues that our proposal would adversely impact the development of ITS being promoted by USDOT as an alternative traffic management tool. IMSA and ITE request that we consider alternatives to displacing 31 GHz services and argue that continued access to the band is in the public interest.“S

33. Four developers and sellers of equipment submit comments opposing our proposal. Sierra is the leading developer and supplier of 31 GHz technology. It submits extensive comments to demonstrate that our proposal is against the public interest and urging that 31 GHz services be continued. Comstat states that it recently installed three systems supplied by Sierra and has invested in spare radio systems. Sunnyvale specializes in traffic control equipment and asserts that Sierra just completed development for it of a microwave unit that is now available in the market to meet demands for 31 GHz technology. They argue that our proposed redesignation would render their equipment useless, because of the harmful interference from LMDS, and urge us to permit 31 GHz services to continue.46 ICE-G develops systems

44 SBA Reply Comments to Fourth NPRM at 2-5. USDOT filed the comments in a letter on September 26, 1996, after the close of the period for comments. USDOT Letter of Sept. 26. We accept these late-filed comments as part of the record in order to ensure a complete evaluation of issues raised in this proceeding.

45 IMSA Reply Comments to Fourth NPRM at 16-19. ITE filed comments in a letter on September 9, 1996, after the close of the period for the filing of comments in this proceeding. ITE Letter of Sept. 9, 1996. We accept these late-filed comments in the record in order to ensure we have a complete record for our determinations.

46 Comstat Comments to Fourth NPRM at 2-3; Sierra Comments to Fourth NPRM at 1-6; Sierra Reply Comments to Fourth NPRM at 1-2; Sunnyvale Comments to Fourth NPRM at 1-5; Sunnyvale Reply Comments to Fourth NPRM at 1-5.

operating at 28 GHz and 40 GHz, and opposes designation of 31 GHz for LMDS on the grounds that 40 GHz is better suited because of the equipment it has developed. 47

34. In response to our proposals for alternatives and for cooperation to achieve some methods for coexisting, most comments request that we adopt a band-sh serves a part of the band for continuation of 31 GHz services. On reply, Sierra submits a band-sharing plan based on different segmentation and provisions than that of Cellular Vision.48 The plan is supported by IMSA, ITE, SBA, Sunnyvale, and USDOT.49

3. Decision

a. Summary

35. We conclude that it is in the public interest to protect incumbent licensees insofar as it is possible to maintain the status quo in their existing operations, while allowing LMDS access to the entire spectrum to initiate new communications service with wide-ranging advanced technologies. We achieve this public interest objective through the following actions, findings, and decisions in the succeeding sections of this Order.

36. First, we designate 300 megahertz of spectrum in the 31 GHz band to LMDS. Second, we conclude that incumbent licensees in the 31 GHz band do not presently use the spectrum intensively, but that certain uses by State and local govern portant services to the public. Third, we find that we must carefully balance these incumbent uses and the potential value of LMDS in deciding upon the best means of resolving issues in this proceeding in the public interest. Fourth, we adopt a plan for use of the spectrum that includes features of plans suggested in the record. We find that incumbents cannot co-exist in the 31 GHz band without protection from LMDS, and that relocation to the 23 GHz band or any other band is neither practical nor suitable. Most commenters support a band-sharing plan that accords incumbents some protection from LMDS, while allowing LMDS to be designated to use the spectrum.

37. Fifth, although LMDS is accorded protection throughout the spectrum as we proposed, we impose on LMDS the requirement to protect incumbent licensees from harmful interference in the two 75 megahertz bands at each end. Incumbent and LMDS operators in

47 ICE-G Comments to Fourth NPRM at 1-3; ICE-G Reply Comments to Fourth NPRM at 1.

48 Sierra Reply Comments to Fourth NPRM at 12-13.

49 ITE Letter of Sept. 9, 1996; IMSA Reply Comments to Fourth NPRM at 17; SBA Reply Comments to Fourth NPRM at 3; Sunnyvale Reply Comments to Fourth NPRM at 2; USDOT Letter of Sept. 26, 1996.

the two outer bands will negotiate to establish the necessary protections for each other. Sixth, incumbents in the middle 150 megahertz, except those with temporary authorizations, may relocate to the outer bands by modifying their licenses within 15 days after the effective date

es adopted in this Order,"° or pursue alternative service options. Finally, we do not permit new applications to be filed under our current 31 GHz licensing rules, and pending applications are dismissed. Incumbent licensees may continue their operations within the terms of their licenses, as long as they do not expand or increase services. While they may renew their licenses, they are limited in their modifications.

b. Need and Usefulness of 31 GHz Spectrum for LMDSSI

38. Sierra argues that our proposed designation of 31 GHz for LMDS is both excessive and premature.52 It contends that LMDS proponents have not justified a present need 300 megahertz at 31 GHz nor the technical suitability for the band. It asserts that the 1,000 megahertz allotted on a primary or co-primary basis in the 28 GHz band is ample for LMDS at this early stage of its development. Sierra contends that wireless cable and local exchange services must compete with highly advanced systems, and that the likelihood of success for LMDS entry in these markets, as well as other proposed LMDS uses, is too conjectural to warrant taking 31 GHz spectrum away from its current users. Sierra requests that we continue our efforts described in the First Report and Order to acquire access to spectrum below 27.5 GHz for LMDS." ICE-G requests that we also reconsider designating LMDS at 40 GHz, which it argues is well suited for LMDS uses. 54

39. In the First Report and Order, we concluded that additional spectrum was needed outside the 28 GHz band for LMDS because the comprehensive 28 GHz band plan we adopted did not provide the 1 gigahertz of unencumbered spectrum as originally proposed. As Cellular Vision states in its comments, the LMDS proponents consistently have demonstrated throughout this proceeding that each LMDS operator must have at least 1 gigahertz of unen

so See paras. 91-92, 440, infra.

51 We note as a preliminary matter that we also sought comment regarding how to assign the additional spectrum in the 31 GHz band in connection with determining the licensing rules for LMDS. These comments are considered in the next section of this Order, in which we decide the number of licenses for geographic areas in which LMDS is licensed. Nevertheless, we also take the comments into account in this section to the extent they are pertinent to deciding whether and how to reallocate the 31 GHz band to LMDS.

52 Sierra Comments to Fourth NPRM at 10-11.

53 First Report and Order, at para. 39.

54 ICE-G Comments to Fourth NPRM at 3.

cumbered spectrum. This is necessary to ensure LMDS can provide a competitive broadband alternative to local exchange services offered by local telephone companies and to video programming services provided by wireline cable operators.”

40. We summarize in paragraphs 20 through 23, supra, all the LMDS proponents that support our proposal, and they emphasize the necessity of acquiring additional unencumbered spectrum because 150 megahertz of spectrum in the 1,000 megahertz block originally proposed has been limited to downstream communications. They describe the experimentation and advancements in two-way services that require the 300 megahertz and that achieves our goal for the full range of telecommunications and video services intended. We conclude that it has been sufficiently demonstrated that LMDS has greater potential in the marketplace if we provide the additional spectrum we proposed for its licensing.

41. The comments do not reflect any technical problems that are obstacles to use of the 31 GHz band by LMDS operators, nor the need for any measures to facilitate their deployment of services in the band. While LMDS proponents acknowledge that no LMDS equipment has been specifically designed for the band, equipment manufacturers claim they are committed to developing the necessary hardware once we designate the 31 GHz band for LMDS use. So In addition, HP contends that non-contiguous spectrum will enable interactive broadband services without the need for costly diplexers and filters in the customer premises equipment.57 Contrary to Sierra's contentions, we find that 31 GHz is suitable for LMDS and can readily be used for LMDS to compete with the full range of telecommunications and video programming services if we provide the necessary spectrum.

42. Several commenters support an alternative allocation of adjacent spectrum below 27.5 GHz for LMDS to provide a single contiguous band.58 We considered this in the First Report and Order where we directed Commission staff to continue explore the feasibility of shared use or reallocation of some portion of this band from the

ss Cellular Vision Reply Comments to Fourth NPRM at 5.

56 MA-COM Comments to Fourth NPRM at 4; Titan Reply Comments to Fourth NPRM at 1; CVTT Comments to Fourth NPRM at 5; Cellular Vision Comments to Fourth NPRM at 5, 8. ComTech, Endgate, and

erned about the costs of additional equipment to use the band, but they uniformly support access to the band. ComTech Comments to Fourth NPRM at 1; Endgate Comments to Fourth NPRM at 1; Rio Vision Comments to Fourth NPRM at 1.

37 HP Comments to Fourth NPRM at 2.

58 See, e.g., CellularVision Comments to Fourth NPRM at 5-6; Sierra Comments to Fourth NPRM at 6.

Government for commercial usage.59 No further developments have occurred since that time

make the requested spectrum available to us for designation for LMDS use. We believe that it would not be in the public interest to delay the licensing of LMDS and the development of LMDS equipment while we explore potentially speculative options for additional spectrum. However, we continue to support these efforts to explore the availability of additional spectrum.

43. As for the 40 GHz band, we considered the viability of the band for LMDS in the First Report and Order and concluded that, while its immediate use was not established, we would address possible long term uses in a pending proceeding that is reviewing frequencies above 40 GHz. No commenter has presented compelling reasons for us to revisit the issue. Insofar as other bands apart from 31 GHz are available at this time to assign to LMDS, we find, based on our assessment of possible alternatives and based upon the record established in this proceeding, that no adequate alternatives presently exist that would suffice for the expeditious development of services contemplated for LMDS. Sierra and other commenters opposing our proposed approach have failed to identify any alternative sources of spectrum that could reasonably be considered sufficient to meet our stated objectives in licensing LMDS.

c. Extent of Incumbent Licenses and Services in 31 GHz Band

(1) Number of Licensees

44. In the Fourth NPRM, we concluded that existing usage in the 31 GHz band appears to be relatively light, geographically concentrated, and principally engaged in traffic signal communications. In providing a description and estimate in the IRFA of the small entities that might be affected by our proposals, we concluded that the majority would be small entities that are municipalities or other local governmental entities. We stated that there are 27 such incumbent licensees in the band and we estimated that 25 or 26 were small entities based on the SBA definition of small municipalities, which have populations less than 50,000.62 Sierra, IMSA, SBA, and other commenters opposing our proposed redesignation of 31 GHz argue that we have significantly underestimated the number of licensees, as well as the volume and extent of the current 31 GHz services nationwide.

59 First Report and Order, at para. 39.

60 Id. at para. 14.

61 Id. at para. 99.

62 Id., Appendix C.

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