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45. Specifically, Sierra states that we overlooked several licensees in the list of licensees that were mailed copies of the Fourth NPRM and argues that our data base appears to be incomplete.63 IMSA submits a list of a number of current 31 GHz licensees that reflects 70 rows of names, generated from the Commission's data base, and asserts that there actually may be more. Sunnyvale submits a list of more than 40 electronic traffic control modules it has installed, and another list of more than 40 locations where a larger number of installations are in process. It further argues that the license count does not reflect the inherent time delay in applying the technology to the traffic control environment.6S ITE and USDOT assert that about 40 communities have installed, or are installing, 31 GHz traffic control systems. SBA asserts that it was informed by Sierra that there may be as many as 100 incumbent licensees, both public and private, in this band. SBA submits a list prepared by Sierra of 27 dealers and resellers of Sierra's equipment, which is used by incumbent licensees.o

46. We agree with Sierra and the other commenters that the number of licensees we included in the IRFA of the Fourth NPRM did not reflect the total number of current licensees under the existing 31 GHz rules. Based on a review of our current data base, we find a total of 86 licensees operating at 122 stations. We note that the list of licensees submitted by IMSA is similar, but out-of-date and does not identify many of the licensees. Moreover, the list duplicates several licensees by identifying each application and counting it separately

47. We clarify that, in the IRFA, we were considering the number of incumbent licensees that are small governmental entities that would be affected by our proposal to designate 31 GHz for LMDS, rather than all of the incumbent licensees that might be small entities. A review of our current database reveals that existing licenses have been issued for three categories of 31 GHz services, as follows:

• LTTS provided by a variety of telephone and other communications companies.

Governmental services including traffic control provided by municipalities, counties, and

Private business uses provided by a variety of businesses and groups.

63 Sierra Comments to Fourth NPRM at 2.

64 IMSA Reply Comments to Fourth NPRM at 8, Appendix A.

Sunnyvale Comments to Fourth NPRM at 2.

66 ITE Letter of Sept. 6, 1996; USDOT Letter of Sept 26, 1996.

67 SBA Reply Comments to Fourth NPRM at 4, Appendix.

In the IRFA, we stated that 27 incumbent licensees were governmental entities. However, we correct that number under our current database that reflects that, of the total 86 licensees, 19 are governmental entities and that 14 of them are municipalities of various sizes. As for the remaining number of licensees, our database reflects that 59 are LTTS licensees and 8 are private business users. 68

48. Sunnyvale identifies approximately 40 municipalities in which it has installed traffic control devices. However, we can find only approximately 12 on the list that are licensees and are in our database. Although it also submits the names of more than 50 governmental entities where it has installations on contract and awaiting completion, we do not know how many of those localities, if any, would become licensees. Although ITE and USDOT also assert that 40 communities are using 31 GHz traffic systems, we note above that our database reflects a total of 14 licensed municipalities and we cannot otherwise verify commenters' figures. It could be the listings identify unlicensed users of the spectrum, a fact that may have escaped our monitoring and enforcement efforts. If users of 31 GHz spectrum have failed to apply for a license and are not operating lawfully, they cannot expect to be included in our considerations here.

49. As for the list submitted by SBA identifying 27 dealers of Sierra's equipment, the list does not indicate if any of them are licensees or if the equipment they sell is used by licensed 31 GHz services. However, we note that Comstat is listed, and it filed comments. Comstat states it has installed three systems supplied by Sierra to carry critical information from facility to facility and that were appropriately licensed through the Commission. It claims that the customers would have to move to other frequencies if we designated 31 GHz for LMDS as proposed and that, as a result, the systems would be useless and its spare radio systems would be a total loss. 69

50. We realize that manufacturers of equipment used for existing 31 GHz services would be affected by our proposal, which could require them to modify such equipment for other spectrum or develop new equipment for other uses, such as LMDS. Nevertheless, these manufacturers are not included in the proposed rule changes, and they are neither subject to our existing 31 GHz rules nor the proposed changes to the licensing of that band. SBA argues that over a dozen of Sierra's resellers appear to be small businesses, but since it appears they are not licensees and the impact of this rulemaking is unclear and indirect at best, we do not alter our figures to include them in the number of existing services impacted by our proposed

68 Appendix B includes a list identifying each of the existing governmental and private business licensees and the cities in which their operations currently are authorized to reflect those markets affected by these incumbent licensees.

69 Comstat Comments to Fourth NPRM at 2-3.

designation for LMDS nor consider how alternatives could minimize such an impact if it did exist.

51. We also clarify for Sierra that the licensees listed for mailing the Fourth NPRM omits the LTTS licensees, but includes all the remaining licensees. We find their omission from the mailing list has no material effect on our considerations of our proposed designation. In the Fourth NPRM, we sought comment from all interested parties and discussed all incumbent licensees, noting that 31 GHz spectrum is used as a radio link by broadcasters." In this Report and Order, we are considering all incumbent licensees and interests in determining whether our proposal is in the public interest.

(2) Scope of Existing 31 GHz Services

52. IMSA, Sierra, and Sunnyvale argue that we also underestimated the locations and extent of all incumbent uses of 31 GHz spectrum when we stated in the Fourth NPRM that usage appears light and geographically concentrated in a few areas of the Nation." Sierra presents a variety of arguments in support of its contentions, as follows. It asserts that the traffic control systems are used by more than 30 State, county, and city governments spread over at least 10 States and that many of them are large cities, counties, or States. It contends that uses are not limited to traffic lights and local area networks, and that non-governmental users are similarly dispersed and provide an assortment of wireless voice, video, and data communication services for private and common carrier applications.

53. Sierra also asserts that our proposal to designate the 31 GHz band for primary use by LMDS ignores our goals when we adopted the service rules for 31 GHz in 1985 to meet communications needs unfilled by traditional service categories. Sierra states that it provides the majority of 31 GHz transmitters currently in use, that it is shipping 75 percent more equipment in 1996 than in 1995, and that it expects to ship four times more equipment in 1997 than in 1996. It contends that the market for private network equipment continues to double every two years and that the wireless solution for short-range transmissions in 31 GHz is particularly economical and preferable.

54. In addressing these arguments, we first seek to clarify the nature and scope of the services that we authorized for 31 GHz in the Spectrum Utilization Second Report and Order. As we stated in the Fourth NPRM, we made the spectrum at 31 GHz available to satisfy vari

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ous short-range, fixed and mobile communications needs pursuant to reduced licensing and coordination requirements.73 The examples included a common carrier using the band to establish a temporary radio link to bypass an existing cable facility that has been disrupted or a broadcaster establishing a radio link between a television camera and a mobile relay station needed by broadcasters or cable operators. To encourage expanded use of the band, we authorized operations on a co-equal, non-protected basis." Applicants specify whether operations are to be licensed on a point-to-point basis or within an area of operation defined

a point and radius." The rules implementing the 31 GHz services are currently located in Part 101 for the private operational fixed and LTTS microwave services, in Part 74 for auxiliary broadcasting services, in Part 78 for cable television relay services, and in Part 95 for general mobile radio services.76 The 31 GHz band is one of several bands identified in the rules that are available for these services.

55. Our designation of the 31 GHz band for these services was part of an ongoing proceeding to establish a spectrum utilization policy for the use of certain bands between 947 MHz and 40 GHz by fixed and mobile services." However, just as we did in that docket, we have a responsibility to revisit spectrum use to determine whether it is being put to the most efficient and effective use in the public interest. We have noted that our database reveals that current licensees fall into three categories of users, and all of them are regulated under Part 101. Most are LTTS licensees. Unlike the other two categories of users, LTTS is licensed on a broad area basis to provide temporary service for less than six months on an isolated, as

73 Fourth NPRM, at para. 99.

74 Spectrum Utilization Second Report and Order, at para. 10.

75 Id. at 10.

76 47 CFR $$ 101.147(t), 101.803(e), 74.602(h), 78.18(a), 95.1(b). We recently adopted Part 101 to consolidate all of the common carrier microwave service rules in Part 21 and all of Part 94, which governed private microwave services, into one set of streamlined rules. Thus, the previous rules implementing 31 GHz services in Sections 21.701(k) and 94.65(n) have been superseded by the Part 101 rules. Reorganization and Revision of Parts 1, 2, 21, and 94 of the Rules to Establish a New Part 101 Governing Terrestrial Microwave Fixed Radio Services, WT Docket No. 94-148; Amendment of Part 21 of the Commission's Rules for the Domestic Public Fixed Radio Services, CC Docket No. 93-2; and McCaw Cellular Communications, Inc., Petition for Rulemaking, RM-7681; Report and Order, 11 FCC Red 13449 (1996) (Part 101 Report and Order).

77 Establishment of a Spectrum Utilization Policy for the Fixed and Mobile Services' Use of Certain Bands Between 947 MHz and 40 GHz, Gen. Docket No. 82-334, Notice of Proposed Rulemaking, FCC 83-2, released Feb. 15, 1983 (Spectrum Utilization First Notice); First Report and Order, FCC 83-393, released Nov. 3, 1983 (Spectrum Utilization First Report and Order).

needed basis.78 Service may be offered only if licensees are able to clear their channels for use. Thus, reliance on 31 GHz spectrum to meet these immediate needs is tenuous, since licensees must have alternative services available if interference-free 31 GHz spectrum is not available. Only eight licenses are issued for private business uses, which are limited in scope to internal business uses. As for the remaining 19 governmental licensees, they provide traffic control services that all of the comments address and that we discuss below.

56. Thus, although licensees may be dispersed nationwide and services scattered among many States, most of those licenses are for services with no fixed location that are only temporary and secondary in nature. All of the services are limited to very short range microwave services that consist of simplified communication functions, which are not licensed only on the 31 GHz band. We do not dispute the importance that some State and local governmental agencies place on their utilization of 31 GHz for traffic control and other functions. However, they are limited to approximately 19 licensees and their operations are confined to localized services scattered among seven States. Based on an assessment of the nationwide availability of the spectrum, it is apparent that the number of entities operating under the existing rules for 31 GHz services is small and the locations are very few and co

(3) Traffic Control Systems

57. Most of the comments opposing our proposed designation of 31 GHz argue that the band is being used by public safety entities to provide important traffic control services that are being developed in furtherance of national traffic and air pollution control goals. As indicated, there are 19 licensees that are governmental entities and that are authorized to engage in such services. IMSA, ITE, Nevada DOT, SBA, Sierra, Sunnyvale, and USDOT argue that our proposal fails to take into account the importance of the traffic control technology and systems in 31 GHz to public safety and pollution control. Specifically, IMSA and Sierra argue that the technology is becoming increasingly popular for effective traffic control systems which involve video, voice, and other communications devices and that are significantly less costly than traditional method of interconnecting signals using underground cable.79 Sunnyvale recently completed development of traffic control equipment with Sierra that is being promoted on the market and that is in demand. 80

58. ITE argues that transportation professionals are involved in ITS programs funded by USDOT, which use different technologies to improve transportation and promote more

78 47 CFR $$ 101.805, 101.815.

79 IMSA Reply Comments to Fourth NPRM at 2-5; Sierra Reply Comments to Fourth NPRM at 2-4.

80 Sunnyvale Comments to Fourth NPRM at 1.

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