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(2) Relocation to 23 GHz Band

72. We asked for comments on various aspects of the 23 GHz band, its suitability, and if incumbents should be entitled to relocation costs. 104 No comments present reasons to support a move to the 23 GHz band. IMSA, Sierra, and Topeka oppose the proposal and argue that the band is not a suitable substitute for 31 GHz for a range of technical and financial reasons.ios For example, Sierra argues that the cost of modifying existing 31 GHz radios would be the same as replacing them with new, more costly 23 GHz equipment. Moreover, 23 GHz equipment must be larger than 31 GHz, so that a 23 GHz antenna with a small enough beamwidth for efficient frequency reuse is too big for existing housing and would require the development of new casings before incumbents could relocate to 23 GHz. 106

106

73. As commenters point out, moving to the 23 GHz band would impose financial hardships on incumbent licensees. This is a large burden to impose on the tax-supported municipalities and other governmental entities that use the traffic control systems in 31 GHz. It appears that the operations cannot be replicated in the 23 GHz band without considerable changes to the 31 GHz equipment. In these circumstances, we do not adopt relocation of incumbent services to 23 GHz as an alternative at this time. We will consider in the following sections the plans submitted by the various parties for sharing the 31 GHz band through compromises. 107

(3) Proposed Band-Sharing Plans

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74. CellularVision suggests that we modify our proposal to designate the entire 300 megahertz in the 31 GHz band for LMDS. 108 Instead, it proposes that we designate a total of 50 megahertz, from 31.0-31.025 GHz and 31.275-31.3 GHz, for point-to-point use on a primary basis, and a total of 250 megahertz, from 31.025-31.275 GHz, for LMDS on a primary basis for two-way service. CellularVision suggests that LMDS licensees be given secondary access to the 50 megahertz designated on a primary basis for point-to-point use, based on its belief that LMDS technology will not interfere with current 31 GHz use.

104 Fourth NPRM, at para. 102.

105 IMSA Reply Comments to the Fourth NPRM at 13; Sierra Comments to Fourth NPRM at 12-13; Topeka Comments to Fourth NPRM at 3-4.

106 Sierra Comments to Fourth NPRM at 12-13.

107 Given the approach we have decided to take in this Order, we need not consider the comments regarding compensation for relocation costs to be incurred by incumbent moves to other bands.

108 CellularVision Reply Comments to Fourth NPRM at 9-10.

75. Cellular Vision submits a technical paper to demonstrate that two 25 megahertz segments are sufficient to accommodate use by the current systems and that operation on that basis is technically feasible. It argues that the paper demonstrates that the band is being used inefficiently by a small number of licensees and that, with an increase in frequency stability and use of narrower channels, existing uses can be accommodated in only 50 megahertz. In reply, Sierra filed ex parte statements that address the technical requirements of incumbent traffic control services and the need for a minimum of 120 megahertz for incumbent systems to operate. 109

76. Sierra and Sunnyvale offer a proposal set out by Sierra for sharing 300 megahertz in the 31 GHz band." The plan would designate a total of 150 megahertz to be retained for use by existing and potential users for fixed service point-to-point microwave radios under the

les. That spectrum would consist of 75 megahertz between 31.000-31.075 GHz and 75 megahertz between 31.225-31.300 GHz. The middle 150 megahertz of the band would be designated for LMDS use on a primary protected status. The Sierra plan provides that the middle 150 megahertz would be designated for subscriber-to-hub operations to compensate for the 150 megahertz that was restricted against such operations in the 28 GHz band. Sierra and Sunnyvale claim that the plan offers equipment design benefits for LMDS because of the separation between the 29 GHz and 31 GHz bands. Although the frequency separation does make antenna design more challenging, changes would be minimal because the total difference between the upper ends and lower ends of the two bands is less than 2 gigahertz." As for incumbent services, Sierra does not anticipate harmful adjacent-band interference from LMDS use in the middle sub-band. Sierra asserts that the proposed plan should meet the technical needs of both services. 112

77. Under the plan, current 31 GHz services would retain the use of the upper and lower 75 megahertz sub-bands under the same conditions to which they are currently subject, on an unprotected basis and free of interference from LMDS. LMDS would not be allowed to operate there. Incumbent point-to-point users in the middle block designated for LMDS could remain on their present frequencies until they receive interference from, or cause interference to, LMDS operations. At that time, their equipment would be retuned, rather than replaced, to conform to the new frequency plan and they would henceforth operate in the

109 Ex Parte Letter from Sierra to S. Toller, Sept. 10, 1996 (Sierra Ex Parte Letter of Sept. 10, 1996); Ex Parte Letter from Sierra to W. Caton, Sept. 26, 1996 (Sierra Ex Parte Letter of Sept. 26, 1996).

110 Sierra Reply Comments to Fourth NPRM at 11-13; Sunnyvale Reply Comments to Fourth NPRM at 1

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Sierra Reply Comments to Fourth NPRM at 12; Sunnyvale Reply Comments to Fourth NPRM at 2.

112 Sierra Reply Comments to Fourth NPRM at 12, n.33.

upper or lower 75 megahertz bands. All new point-to-point licenses would be issued in the two outer band segments. Sierra asserts that it offers the plan after consultation with LMDS interests. 113

78. Endgate supports the Sierra plan as a reasonable compromise of the various competing interests. It argues that we should increase the existing 50 milliwatt power limit at 31 GHz to approximately a 55 dBW limit."14 IMSA, ITE, Nevada DOT, SBA, and USDOT support the plan, which they contend accommodates all the parties' interests while accomplishing the policy goals of the Commission. They argue that all users of the spectrum should be adequately accommodated to best serve the public interest and assure equitable treatment of the public agencies involved."

f. Spectrum Sharing Plan

79. Based on the considerations expressed in the record, we have decided to modify our proposal to designate the 31 GHz band on a primary protected basis for LMDS. Instead, we adopt a plan to share the 300 megahertz based on features of both the plans submitted by Cellular Vision and Sierra. We find that a sharing plan is supported by the principal advocates of both LMDS and incumbent 31 GHz services. Although most of the LMDS commenters generally support our proposed designation, none has filed pleadings in specific opposition to the subsequently submitted plans. As we had requested, the parties involved have cooperated and produced alternative band sharing plans that they each contend would allow the services to coexist without imposing economic or technical burdens on LMDS providers. These are laudable efforts that enable us to reach a decision that, while not relying exclusively on either proposed plan, is more equitable and balanced.

(1) Segmentation

80. We adopt our proposal to designate for LMDS the 300 megahertz of spectrum in the 31 GHz band. However, rather than adopt our proposal to accord LMDS primary protected status and incumbents secondary status for the entire 300 megahertz, we segment the band

113 Id. at 12, n.31.

114 Endgate Reply Comments to Fourth NPRM at 1.

115 USDOT Letter of Sept. 26, 1996; SBA Reply Comments to Fourth NPRM at 2-3.

as

as enumerated by Sierra for purposes of according protection from harmful interference, follows:

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SEGMENTATION PLAN

As discussed more fully below, we

grant LMDS protection from harmful FREQUENCY BAND

SPECTRUM

interference by incumbents or other 31.000-31.075 GHz

75 megahertz

LMDS licensees in the middle 150 31.075-31.225 GHz

150 megahertz

megahertz of the 31 GHz band. We 31.225-31.300 GHz

75 megahertz

do not grant any incumbent licensees protection from harmful interference in

the middle 150 megahertz. We provide that the existing operations of governmental and private business incumbent licensees in the upper and lower 75 megahertz bands are to be protected from harmful interference from LMDS to enable them to continue existing operations. LMDS licensees in the upper and lower 75 megahertz bands will receive protection from harmful interference by other LMDS licensees and from all incumbent licensees.

81. We find that this spectrum division ensures sufficient spectrum to meet the needs of both LMDS and incumbent licensees. It has been sufficiently established that LMDS requires at a minimum an additional 150 megahertz of unencumbered spectrum in order to compensate for the 150 megahertz encumbered in the First Report and Order and to provide LMDS with the 1 gigahertz we found it needed for broadband service. Although Cellular Vision has proposed that LMDS be assigned 250 megahertz in the center of the band, it appears that this proposal was based on its belief that two 25 megahertz segments are sufficient for incumbent systems. However, Sierra has demonstrated that this segmentation cannot accommodate most incumbent operations.

82. According to Sierra, even major equipment modifications would not make sufficient capacity available to manage certain kinds of inputs that are important to municipal licensees that use their equipment for video monitoring." It appears that an assignment of only 50 megahertz to incumbents would make it difficult to avoid intra-system interference in certain system configurations. Sierra points out that a typical major intersection sends and receives data in four directions, consisting of both directions along each street. Thus, at least four frequency pairs are required to allow proper frequency coordination to prevent individual

116 Harmful interference is defined in the Commission's Rules as “interference which endangers the functioning of a radionavigation service or of other safety services or seriously degrades, obstructs, or repeatedly interrupts a radiocommunication service operating in accordance with these (International Radio) Regulations.” 47 CFR § 2.1.

117 Sierra Ex Parte Letter of Sept. 10, 1996, at 2.

radio links at the intersection from interfering with each other.118 We conclude that Cellular Vision's segmentation plan would be inadequate for important incumbent services.

83. Sierra has stated that the 200 megahertz requirement for existing, four-frequency pair traffic control installation equipment could be modified to accommodate four frequency pairs within 150 megahertz, at a price accessible to existing municipal licensees."19 Although Sierra has indicated that it could modify its equipment to accommodate existing within 125 megahertz (with 62.5 megahertz at each end of the band), 120 this would not be as satisfactory as providing 75 megahertz at each end. On balance, we find that the segmentation proposal advanced by Sierra meets the needs of LMDS, while providing most incumbent licensees with the spectrum needed to continue their important operations.

84. Sunnyvale requests that, if no compromise designation of spectrum is we initiate a negotiated rulemaking under Section 1.18 of the Commission's Rules. 121 Inasmuch as we adopt a band sharing plan that reflects the segmentation requested by Sierra and provides the protection that Sunnyvale seeks for incumbent licensees, we deny the request. As a result, we need not address Sunnyvale's argument that adoption of our original proposal to authorize 300 megahertz in the 31 GHz band would constitute a modification of the existing licenses in the band by removing them from a co-equal status among approved users to a secondary status with new users. 122 The band sharing plan we adopt allows incumbent licensees engaged in traffic control services, which Sunnyvale addresses, to continue operating in the amount of spectrum they require without harmful interference from LMDS, thus preserving their status.

(2) LMDS Use and Protection

85. We decline to adopt Sierra's proposal with respect to the limitations it seeks to impose on LMDS access to the entire band. We are adopting our proposal to designate the entire 300 megahertz for LMDS use, rather than designating only the 150 megahertz in the middle segment, as Sierra requests. There is no need to exclude LMDS from the outer 150 megahertz. LMDS is required to protect governmental and private business incumbent

118 Id. at 1-2.

119 Id. at 2.

Sierra Ex Parte Letter of Sept. 26, 1996.

121 Sunnyvale Reply Comments to Fourth NPRM at 3.

122 Id. at 4 (citing F.C.C. v. National Broadcasting Co. (KOA), 319 U.S. 239 (1943)); Sunnyvale Comments to Fourth NPRM at 4.

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