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efficient use of existing infrastructure by avoiding new highway construction costs. ITE argues that 31 GHz traffic systems are used for ITS and that we should not change the use of the band without making USDOT a partner in the decision making process. USDOT asserts that use of point-to-point microwave links has become a significant tool in the surveillance and control of the roads by providing a data and video pipeline for traffic managers. It asserts that the Federal and local governments are making major investments in new technologies to alleviate traffic congestion and urges that we protect existing and in-progress investments by allowing 31 GHz service to continue on at least a portion of the spectrum. 82 SBA emphasizes the importance of our consideration of the impact of our proposal on local governmental entities, which it contends are expected to grow significantly now that Sunnyvale's traffic control technology is available.83

59. Of the governmental entities that are licensed to use the spectrum for such traffic control systems, MSAPRC indicates that it is funding such systems in Southern California. Nevada DOT established a traffic signal control system for the Las Vegas metropolitan area, which has over 1 million population. It has received authorization to operate in the 13 GHz and 18 GHz bands to transport video images in the system, and is awaiting authorization in the 31 GHz band to extend the system around the control center. The system will cost approximately $11 million and is expected to reduce air pollution and save costs over existing management systems. It argues that the video surveillance signals will be degraded without deployment of the 31 GHz technology and the viability of the new network would be threat

ened. 84

60. Of the municipalities, Palm Springs states it has licensed and installed 31 GHz radios for the past two years involving 35 signals, with a plan for an additional 20 signals to be added in the next year and for a total of 70 when the project is completed in three years. It argues that the systems are affordable, important to the public safety, and reduce exhaust emissions. San Diego recently completed installation of a signal system using 31 GHz to coordinate data between 13 intersections and a master traffic control system. It argues that design and installation costs are substantially reduced, maintenance costs are less, and the interconnect system is more effective than others.

61. Topeka operates 42 radio links in the 31 GHz band as part of a system that controls traffic lights throughout the city. It asserts that it invested $165,000 in the system.

81 ITE Letter of Sept. 6, 1996.

82 USDOT Letter of Sept. 26, 1996.

83 SBA Reply Comments to Fourth NPRM at 1.

84 MSAPRC Comments to Fourth NPRM at 1; Nevada DOT Letter of Sept. 5, 1996.

Although Honolulu and Long Beach do not hold licenses, Lone Beach claims it has spend over $1.5 million to purchase 31 GHz radios that link 37 intersections to the Traffic Management Center (TMC). Honolulu asserts that it depends on the 31 GHz bandwidth for communications between its TMC and various signal sites, and that it is expanding its system into freeway and other programs. All the entities argue that adoption of our proposed designation would require them to modify or replace equipment in order to use other technologies, at great expense to taxpayers. 8s

62. We find that commenters have demonstrated that the traffic control systems currently using 31 GHz spectrum are an important category of incumbent services. We recognized in the Fourth NPRM that traffic signal communication is the most extensive incumbent use of 31 GHz, which commenters confirm. 86 These systems are used increasingly by state and local governments to reduce congestion at busy intersections and combat air pollution by controlling vehicle emissions under standards and goals established by the Federal Government. In the following sections we balance these incumbent interests with the interests that we believe make it important for us to designate spectrum for new LMDS operations.

d. Basis for Redesignation: Protection Status of

Incumbents and Public Interest

63. In the Fourth NPRM, we sought comment regarding whether incumbents should be relocated to another band where interference protection is provided by our rules, such as

le 23 GHz frequency band, or whether incumbents could be accommodated by other methods without affecting LMDS in the same band despite the fact that incumbents have assumed all the risks of receiving interference.87 IMSA, SBA, Sierra, and Sunnyvale argue that our reliance on the present lack of interference protection at 31 GHz is no basis to displace the incumbent services from 31 GHz and subject them to interference, for the first time, that would effectively eliminate their services. IMSA argues that we ignored in the Fourth NPRM both our intent in originally allocating the 31 GHz band and the practical reality of 31 GHz operations under currently applicable technical rules. 88 Sierra points out that, although 31 GHz

85 Palm Springs Comments to Fourth NPRM at 1; San Diego Comments to Fourth NPRM at 1; Topeka Comments to Fourth NPRM at 1; Long Beach Comments to Fourth NPRM at 1; Honolulu Comments to Fourth NPRM at 1.

86 Fourth NPRM, at para. 99.

87 Id. at para. 102.

88 IMSA Reply Comments to Fourth NPRM at 11.

users may have no legal protection against interfering co-users, they are afforded effective protection against interference by the technical rules. 89

64. All three categories of current licensees were licensed under rules that require they share the frequency on a co-equal basis on a non-protected basis, without protection from harmful interference.90 However, as commenters assert, their operations in effect are free from interference. In the Spectrum Utilization Second Report and Order, we concluded that the probability of causing or receiving harmful interference at 31 GHz would be small because of the technical requirements we imposed and the geographic diversity of use. Our goal was to provide for reduced licensing and coordination requirements for service providers utilizing the band, giving each licensee equal access and no rights to object to harmful interference being caused by any other licensed operation.

65. Thus, as IMSA, argues, it would appear that incumbent 31 GHz licensees engaged in traffic control operations are not typical secondary spectrum users, inasmuch as all other categories of licensees in the band are not entitled to protection. And among the current licensees, the technical rules provide them with effective protection and immunity from the other licensed operators. 2 Moreover, current licensing is not extensive, so that licensees experience little or no impact from other 31 GHz licensees. Despite their non-protected status, incumbent licensees are not currently subject to interference and had no reason to anticipate a large degree of interference under the existing licensing scheme.

66. Sierra further argues that the fact that incumbents rely on technical rules for interference protection, rather than on more explicit rules barring interfering operations, is irrelevant to the requirement that we make allocation decisions based on the public interest.93 IMSA and Sierra, among others, request that we consider fully the interests of the present users of 31 GHz as reflected in this record, which they argue establishes that it would be contrary to the public interest to adopt our proposal to redesignate the band for LMDS use on a primary basis.94 IMSA argues that although some public value is derived from the promo

89 Sierra Comments to Fourth NPRM at 6-8; Sierra Reply Comments to Fourth NPRM at 7-8.

90 47 CFR §§ 101.103(b), 101.147(t).

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

92 Sierra Comments to Fourth NPRM at 6-7; Topeka Comments to Fourth NPRM at 2.

93 Sierra Comments to Fourth NPRM at 8. See also Sierra Reply Comments to Fourth NPRM at 5-8 (citing H&B Communications Corp. v. F.C.C., 420 F.2d 638 (D.C. Cir. 1969).

94 IMSA Reply Comments to Fourth NPRM at 2-4; Sierra Comments to Fourth NPRM at 8.

tion of new commercial technologies such as LMDS, we cannot ignore the corresponding public detriment from displacing important governmental services such as traffic signal coordination facilities in which a considerable amount of taxpayer dollars is invested. 9s

67. The public interest underlies any decision we make in allocating spectrum. It is for this reason we sought comment on alternative methods for accommodating incumbent spectrum uses in the 31 GHz band. Although we have found that implementation of LMDS generally is in the public interest, we must weigh all the equities reflected in the record and balance any benefits against any possible harms. This applies equally to the incumbent services as to the LMDS services. As SBA points out, we are required to consider the impact of our proposed designation on existing users of the spectrum, in particular small governmental entities and small businesses, and consider alternatives that could minimize the impact of our proposals on them. We find that the traffic control systems serve important governmental services and are used to achieve Federal, State, and local goals to relieve traffic

d air pollution. We also find that 31 GHz licensees have existed co-equally and free from interference up until now. Licensed municipalities demonstrate they have substantial investments in signal systems using a number of 31 GHz radio links, and could require protection of these public safety operations from LMDS.%

68. On the other hand, we held in the First Report and Order that LMDS is an important new technology with a wealth of innovative services to meet a nationwide demand for improved wireless telecommunications and video subscriber services. It is expected to compete with local exchange companies for telephone service and with cable carriers, greatly enhancing customer choice and facilitating the rapid dissemination of innovative communications services. We will weigh all these considerations in the following sections in determining how to designate the 31 GHz band between these competing interests.

e. Incumbent Accommodation Alternatives

(1) Co-Existence with LMDS

69. We requested comment regarding how incumbent licensees might co-exist with LMDS services under our proposal to designate the entire 300 megahertz in the 31 GHz band

95 IMSA Reply Comments to Fourth NPRM at 3, 5.

% See paras. 57-61, 66, supra.

97 First Report and Order, at paras. 14-15.

to LMDS on a primary, protected basis. For example, we asked if LMDS licensees would have sufficient capacity to accommodate existing licensees as customers of their services. 98

70. Endgate maintains that, if the entire 300 megahertz is designated for LMDS as proposed, incumbent users could begin to lease point-to-point spectrum from the spectrum owners. It contends that this has the advantage of guaranteeing interference-free operation." Cellular Vision and CVTT request that we ensure that LMDS licensees have the flexibility to deploy services utilizing the 31 GHz spectrum during the period that the technology is being developed for LMDS use." CellularVision argues that the flexibility to enter into post-auction sublease agreements will ensure the most efficient use of the spectrum. ComTech, Rio Vision, and TI argue that existing licensees accepted their licenses with non-protected status and as such would be secondary to LMDS and not entitled to compensation or other accommodation. 11 TI contends that incumbents could continue to use the spectrum by engineering around LMDS to resolve interference problems and notes that Topeka suggested relocating the radios it operates. 102

71. All of the comments that were filed opposing designation of the 31 GHz band to LMDS are from parties interested in the traffic control uses of the band provided by governmental entities under our existing licensing rules for 31 GHz. Of these traffic control interests, none of them believes that co-existence under our proposal is possible. They argue that, if the Commission accords LMDS access to the entire 300 megahertz on a primary protected basis, any incumbent licensees are reduced to a secondary status and the interference from LMDS would essentially eliminate their 31 GHz services. They seek to avoid the costs of new or modified equipment to either accommodate the interference or move to another service band. Topeka, for example, urges that we at least make provisions to “grandfather” public safety entities to protect them from interference or provide compensation for equipment changes. 103 None of the comments indicates if LMDS technology would be useful or could be modified to serve their needs.

98 Fourth NPRM, at para. 106.

99 Endgate Reply Comments to Fourth NPRM at 1.

100 Cellular Vision Comments to Fourth NPRM at 5; CVTT Comments to Fourth NPRM at 9.

101 ComTech Comments to Fourth NPRM at 5; RioVision Comments to Fourth NPRM at 2; TI Reply Comments to Fourth NPRM at 10-11.

102 TI Reply Comments to Fourth NPRM at 9.

103 Topeka Comments to Fourth NPRM at 3.

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