[Federal Register Volume 86, Number 43 (Monday, March 8, 2021)]
[Proposed Rules]
[Pages 13266-13278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04115]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 2, 15, 25, 27 and 101
[WT Docket No. 20-443, GN Docket No. 17-183, RM-11768 (Proceeding
Terminated); FCC 21-13; FRS 17479]
Expanding Flexible Use of the 12.2-12.7 GHz Band
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission seeks comment on whether it
could add a new Mobile allocation or expanded terrestrial service
rights in 500 megahertz of mid-band spectrum between 12.2-12.7 GHz (12
GHz band) without causing harmful interference to incumbent licensees.
Assuming the Commission could do so, it seeks comment on whether that
action would promote or hinder the delivery of next-generation services
in the 12 GHz band given the existing and emergent services offered by
incumbent licensees. The Commission proceeds mindful of the significant
investments made by incumbents and values the public interest benefits
that could flow from investments made to provide satellite broadband
services, particularly in rural and other underserved communities that
might be more expensive to serve through other technologies. The
Commission believes that it is appropriate, however, to initiate a
rulemaking proceeding to allow interested parties to address whether
additional operations can be accommodated in the band while protecting
incumbent operations from harmful interference and for the Commission
to assess the public interest considerations associated with adding a
new allocation.
DATES: Comments due on or before April 7, 2021 and reply comments due
on or before May 7, 2021.
ADDRESSES: You may submit comments, identified by WT Docket No. 20-443
and GN Docket No. 17-183, by any of the following methods:
Electronic Filers: Comments may be filed electronically
using the internet by accessing the ECFS: https://www.fcc.gov/ecfs.
Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing. If more than one docket
or rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by commercial overnight courier, or by first-
class or overnight U.S. Postal Service mail. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 45 L Street NE, Washington DC 20554.
Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health
[[Page 13267]]
and safety of individuals, and to mitigate the transmission of COVID-
19.
During the time the Commission's building is closed to the
general public and until further notice, if more than one docket or
rulemaking number appears in the caption of a proceeding, paper filers
need not submit two additional copies for each additional docket or
rulemaking number; an original and one copy are sufficient.
People with Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an email to [email protected] or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
FOR FURTHER INFORMATION CONTACT: Madelaine Maior of the Wireless
Telecommunications Bureau, Broadband Division, at 202-418-1466 or
[email protected]; or Simon Banyai of the Wireless
Telecommunications Bureau, Broadband Division, at 202-418-1443 or
[email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Notice of Proposed Rulemaking (NPRM), in WT Docket No. 20-443; FCC 21-
13, adopted on January 2, 2021 and released on January 15, 2021. The
full text of this document is available electronically via the FCC's
website at https://docs.fcc.gov/public/attachments/FCC-21-13A1.pdf or
via the FCC's Electronic Comment Filing System (ECFS) website at http://www.fcc.gov/ecfs. (Documents will be available electronically in
ASCII, Microsoft Word, and/or Adobe Acrobat.) Alternative formats are
available for people with disabilities (braille, large print,
electronic files, audio format), by sending an email to [email protected]
or calling the Commission's Consumer and Governmental Affairs Bureau at
(202) 418-0530 (voice), (202) 418-0432 (TTY).
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980, as amended (RFA), requires
that a regulatory flexibility analysis be prepared for notice and
comment rulemaking proceedings, unless the agency certifies that ``the
rule will not, if promulgated, have a significant economic impact on a
substantial number of small entities.'' Accordingly, the Commission has
prepared an Initial Regulatory Flexibility Analysis (IRFA) concerning
potential rule and policy changes contained in this NPRM. The IRFA is
set forth in Appendix A, visit https://www.fcc.gov/edocs.
Paperwork Reduction Act
This NPRM may contain potential new or revised information
collection requirements. Therefore, the Commission seeks comment on
potential new or revised information collections subject to the
Paperwork Reduction Act of 1995. If the Commission adopts any new or
revised information collection requirements, the Commission will
publish a notice in the Federal Register inviting the general public
and the Office of Management and Budget to comment on the information
collection requirements, as required by the Paperwork Reduction Act of
1995, Public Law 104-13. In addition, pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4), the Commission seeks specific comment on how it might
further reduce the information collection burden for small business
concerns with fewer than 25 employees.
Ex Parte Rules
Pursuant to Sec. 1.1200(a) of the Commission's rules, this NPRM
shall be treated as a ``permit-but-disclose'' proceeding in accordance
with the Commission's ex parte rules. Persons making ex parte
presentations must file a copy of any written presentation or a
memorandum summarizing any oral presentation within two business days
after the presentation (unless a different deadline applicable to the
Sunshine period applies). Persons making oral ex parte presentations
are reminded that memoranda summarizing the presentation must (1) list
all persons attending or otherwise participating in the meeting at
which the ex parte presentation was made, and (2) summarize all data
presented and arguments made during the presentation. If the
presentation consisted in whole or in part of the presentation of data
or arguments already reflected in the presenter's written comments,
memoranda or other filings in the proceeding, the presenter may provide
citations to such data or arguments in his or her prior comments,
memoranda, or other filings (specifying the relevant page and/or
paragraph numbers where such data or arguments can be found) in lieu of
summarizing them in the memorandum. Documents shown or given to
Commission staff during ex parte meetings are deemed to be written ex
parte presentations and must be filed consistent with rule 1.1206(b).
In proceedings governed by rule 1.49(f) or for which the Commission has
made available a method of electronic filing, written ex parte
presentations and memoranda summarizing oral ex parte presentations,
and all attachments thereto, must be filed through the electronic
comment filing system available for that proceeding, and must be filed
in their native format (e.g., .doc, .xml, .ppt, searchable .pdf).
Participants in this proceeding should familiarize themselves with the
Commission's ex parte rules.
Synopsis
I. Background
1. In the United States, the 12 GHz band is allocated on a primary
basis for non-Federal use for Broadcasting Satellite Service (BSS)
(referred to domestically in the band as Direct Broadcast Satellite
(DBS), Fixed Satellite Service (space-to-Earth) limited to non-
geostationary orbit systems (NGSO FSS), and Fixed Service.\1\ While
these three services are co-primary, NGSO FSS and Fixed Service are
allocated on a non-harmful interference basis with respect to BSS.\2\
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\1\ See 47 CFR 2.106, United States Table of Frequency
Allocations, non-Federal Table for the band 12.2-12.7 GHz. NGSO FSS
(space-to-Earth) operations are authorized pursuant to international
footnote 5.487A, which provides additional allocations including in
Region 2 as follows:
[The 12.2-12.7 GHz is] allocated to the fixed-satellite service
(space-to-Earth) on a primary basis, limited to non-geostationary
systems and subject to application of the provisions of [ITU Radio
Regulations] No. 9.12 for coordination with other non-geostationary-
satellite systems in the fixed-satellite service. Non-geostationary-
satellite systems in the fixed-satellite service shall not claim
protection from geostationary-satellite networks in the
broadcasting-satellite service operating in accordance with the
Radio Regulations, irrespective of the dates of receipt by the [ITU
Radiocommunication] Bureau of the complete coordination or
notification information, as appropriate, for the non-geostationary-
satellite systems in the fixed-satellite service and of the complete
coordination or notification information, as appropriate, for the
geostationary-satellite networks, and [international footnote] No.
5.43A does not apply. Non-geostationary-satellite systems in the
fixed-satellite service in the [12 GHz band] shall be operated in
such a way that any unacceptable interference that may occur during
their operation shall be rapidly eliminated.
47 CFR 2.106, n.5.487A. When an international footnote is
applicable without modification to non-Federal operations, the
Commission places the footnote on the non-Federal Table. See 47 CFR
2.105(d)(5).
\2\ See 47 CFR 2.106, n.5.490 (International Footnote). In
Region 2, in the 12.2-12.7 GHz band, existing and future terrestrial
radiocommunication services shall not cause harmful interference to
the space services operating in conformity with the broadcasting
satellite Plan for Region 2 contained in Appendix 30. ``Harmful
Interference'' is defined under the Commission's rules as
``[i]nterference 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 the ITU Radio Regulations.'' 47
CFR 2.1(c).
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2. NGSO FSS operators also have a non-federal co-primary downlink
allocation and access to the 10.7-12.2 GHz band on a co-primary basis
with Fixed Service in 10.7-11.7 GHz and on a primary basis from 11.7-
12.2 GHz.\3\ Meanwhile, the adjacent frequencies above the band, 12.7-
12.75 GHz, are allocated for non-federal Fixed Service, FSS, and Mobile
Service.
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\3\ See 47 CFR 2.106. See also Update to Parts 2 and 25
Concerning Non-Geostationary, Fixed-Satellite Service Systems and
Related Matters, Report and Order and Further Notice of Proposed
Rulemaking, 32 FCC Rcd 7809 (2017) (2017 NGSO Order). FSS is co-
primary with Fixed Service for individually licensed earth stations.
Individually licensed FSS earth stations require coordination with
co-primary Fixed Service. The 2017 NGSO Order also adopted rules to
allow blanket earth station licensing for NGSOs in the 10.7-11.7 GHz
band on an unprotected basis relative to terrestrial Fixed Service.
As a result, blanket earth station licenses for NGSOs cannot claim
interference protection from terrestrial Fixed Service in the band.
Id. at 7817, paras. 24-25.
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3. Currently there are three services authorized and operating in
the band: DBS providers operating under the primary BSS allocation,
Multi-Channel Video and Data Distribution Service (MVDDS) licensees
operating on a non-harmful interference basis to DBS under the co-
primary Fixed Service allocation, and NGSO licensees operating on a
non-harmful interference basis to DBS under the co-primary NGSO FSS
allocation. The Commission's rules enable sharing between co-primary
NGSO FSS and MVDDS using a combination of technical limitations,
information sharing, and first-in-time procedures.\4\
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\4\ See 47 CFR 101.113(a) n.11, 101.147(p).
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4. The Commission added the DBS allocation in the early 1980s \5\
and DBS service began in 1994.\6\ In 1996 and 2004, some of these
licenses were awarded by competitive bidding.\7\ In 2000, the
Commission permitted a new terrestrial service, MVDDS, to operate in
the 12 GHz band under the existing Fixed Service allocation on a co-
primary, non-harmful interference basis to the incumbent DBS providers,
and on a co-primary basis to NGSO FSS.\8\ The Commission also adopted
rules to permit NGSO FSS operations in the 12 GHz band at this same
time.\9\
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\5\ See Inquiry into the Development of Regulatory Policy in
Regard to Direct Broadcast Satellites for the Period Following the
1983 Regional Administrative Radio Conference, Report and Order, 90
FCC2d 676 (1982), recon. denied, 53 RR2d 1637 (1983).
\6\ See Revision of Rules and Policies for the Direct Broadcast
Satellite Service, Report and Order, 11 FCC 9712 (1995). DBS
operations are subject to the International Telecommunication (ITU)
Radio Regulations BSS and Feeder Link Plans contained in Appendices
30 and 30A.
\7\ In 1996 the Commission held two auctions for DBS orbital
slots at 110[deg] and 148[deg] in 1996. See, e.g., https://www.fcc.gov/auction/8; https://www.fcc.gov/auction/9. In 2004, the
Commission held an auction for three licenses for certain channels
at DBS orbital slots at 175,[deg] 166[deg] and 157[deg] but this
auction was nullified. See Direct Broadcast Satellite (DBS) Service
Auction Nullified: Commission Sets Forth Refund Procedures for
Auction No. 52 Winning Bidders and Adopts a Freeze on All New DBS
Service Applications, Public Notice, 20 FCC Rcd 20618, 20618 & n.3
(2005) (citing Northpoint Technology, Ltd. v. FCC, 412 F.3d 145 (DC
Cir. 2005)). In its decision, the Appellate Court vacated and
remanded the section of the DBS Auction Order that concluded that
DBS is not subject to the auction prohibition of the Open-Market
Reorganization for the Betterment of International
Telecommunications Act, Public Law 106-180, 114 Stat. 48 section 647
(enacted Mar. 12, 2000), codified at 47 U.S.C. 765f (ORBIT Act). Id.
at n.3
\8\ See Amendment of Parts 2 and 25 of the Commission's Rules to
Permit Operation of NGSO FSS Systems Co-Frequency with GSO and
Terrestrial Systems in the Ku-Band Frequency Range, Amendment of the
Commission's Rules to Authorize Subsidiary Terrestrial Use of the
12.2-12.7 GHz Band by Direct Broadcast Satellite Licensees and Their
Affiliates; and Applications of Broadwave USA, PDC Broadband
Corporation, and Satellite Receivers, Ltd. to Provide A Fixed
Service in the 12.2-12.7 GHz Band, ET Docket No. 98-206, First
Report and Order and Further Notice of Proposed Rule Making, 16 FCC
Rcd 4096, 4177, para. 213 (2000) (First R&O and FNPRM).
\9\ Id. at 4099-4100, para. 2; see also Establishment of
Policies and Service Rules for the Non-Geostationary Satellite
Orbit, Fixed Satellite Service in the Ku-band, IB Docket No. 01-96,
Report and Order, 17 FCC Rcd 7841 (2002).
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5. The service rules for MVDDS permit one-way digital fixed non-
broadcast service, including one-way direct-to-home/office wireless
service.\10\ To protect DBS, the Commission adopted technical rules to
ensure that MVDDS stations would not cause harmful interference to DBS
and imposed extensive coordination requirements on MVDDS licensees for
each proposed station.\11\ These rules include detailed frequency
coordination procedures, interference protection criteria, and
limitations on signal emissions, transmitter power levels, and
transmitter locations.\12\ In particular, the rules limit the effective
isotropic radiated power (EIRP) for MVDDS stations to 14.0 dBm per 24
megahertz (-16.0 dBW per 24 megahertz).\13\
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\10\ See 47 CFR 101.1407 (two-way services can be provided using
spectrum in other bands for the return link). See also Amendment of
Parts 2 and 25 of the Commission's Rules to Permit Operation of NGSO
FSS Systems Co-Frequency with GSO and Terrestrial Systems in the Ku-
Band Frequency Range, Memorandum Opinion and Order and Second Report
and Order, 17 FCC Rcd 9614 (2002) (MVDDS Second Report and Order)
(aff'd Northpoint Technology, LTD et al. v. FCC, 414 F.3d 61 (DC
Cir. 2005)).
\11\ See 47 CFR 101.1440.
\12\ See, e.g., MVDDS Second Report & Order, 17 FCC Rcd at 9634-
9664 paras. 53-125; 9690-9695 paras. 196-209; 47 CFR 25.139 (NGSO
FSS coordination and information sharing between MVDDS licensees in
the 12.2 GHz to 12.7 GHz band); 25.208(k) (Power flux density
limits); 101.103 (Frequency coordination procedures); 101.105
(Interference protection criteria); 101.111 (Emission limitations);
101.113 (Transmitter power limitations); 101.129 (Transmitter
location); 101.1409 (Treatment of incumbent licensees); 101.1440
(MVDDS protection of DBS).
\13\ See 47 CFR 101.113(a) n.11; 101.147(p). The EIRP limit for
MVDDS is expressed as a power spectral density, i.e., 14 dBm per 24
megahertz of spectrum. Herein the Commission occasionally refers to
EIRP levels in shorthand, e.g., ``14 dBm.'' The Commission clarifies
that these shorthand references are for convenience only.
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6. To accommodate co-primary DBS earth stations that must be
protected from interference caused by MVDDS, an MVDDS licensee may not
begin operation unless it can ensure that the equivalent power flux
density (EPFD) \14\ from a proposed transmitting antenna does not
exceed the applicable EPFD limit at any DBS subscriber location.\15\
Specifically, an MVDDS licensee cannot begin operation in the 12 GHz
band unless it can ensure that the signal from its proposed
transmitting antenna will not exceed certain specified EPFD limits at
the receive antennas of any DBS customers of record (i.e., those who
have had their antenna installed either before or within 30 days after
the MVDDS licensee provides 90-days notice to DBS licensees of its
intent to commence operations).\16\ Accordingly, when an MVDDS licensee
is proposing to deploy a transmitting antenna, it must conduct a survey
of the area around its proposed transmitting antenna site to determine
the location of all DBS customers of record that may potentially be
affected by its service.\17\ After coordinating a proposed transmitter
with DBS licensees, the MVDDS licensee must remediate all complaints of
interference to DBS customers of record for one year after it begins
operating the transmitter.\18\ Going forward, the burden shifts to DBS
licensees for new customers (and after one year for the customers of
record) to take into account the presence of the MVDDS operations and
ensure that DBS subscribers do not suffer interference from previously
coordinated MVDDS stations.\19\ The Commission found that these and the
other technical requirements would ensure that any interference caused
to DBS customers
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will not exceed a level that is considered permissible.\20\
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\14\ The EPFD is the power flux density produced at a DBS
receive earth station, taking into account shielding effects and the
off-axis discrimination of the receiving antenna assumed to be
pointing at the appropriate DBS satellite(s) from the transmitting
antenna of a MVDDS transmit station. 47 CFR 101.105(a)(4)(ii)(A).
\15\ The Commission established different EPFD limits in four
regions of the U.S., see 47 CFR 101.105(a)(4)(ii)(B), mainly due to
differences in rainfall in each region. See, e.g., MVDDS Second
Report & Order, 17 FCC Rcd at 9691, para. 197.
\16\ See 47 CFR 101.1440(a).
\17\ See 47 CFR 101.1440(b).
\18\ See 47 CFR 101.1440(g).
\19\ See 47 CFR 101.1440(e) & (g).
\20\ See, e.g., MVDDS Second Report & Order, 17 FCC Rcd at 9640-
9663 paras. 67-125, 9691-92, 198; see also 47 CFR 2.1 (defining
harmful interference).
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7. The Commission also enabled sharing between co-primary NGSO FSS
and MVDDS using a combination of technical limitations, information
sharing, and first-in-time procedures.\21\ Specifically, these two
services gain priority based on a first-in-time, first-in-right
approach, under which NGSO FSS receivers and MVDDS transmitting systems
are afforded priority in the 12 GHz band portion of spectrum vis-
[agrave]-vis each other based on which deployed earlier.\22\
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\21\ See 47 CFR 101.113(a) n.11; 101.147(p).
\22\ See 47 CFR 101.103(f)(1); see also 47 CFR 101.105(a)(4)(i)
(limiting the PFD level beyond 3 km from an MVDDS station to -135
dBW/m\2\ in any 4 kHz measured and/or calculated at the surface of
the earth), 101.129(b) (prohibiting location of MVDDS transmitting
antennas within 10 km of any qualifying NGSO FSS receiver absent
mutual agreement of the licensees).
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8. Most recently, in 2016 and 2017, proponents of a new generation
of NGSO FSS systems sought Commission authority for planned
constellations of hundreds or thousands of small satellites using
several frequency bands, including the 12 GHz band, and in 2017, the
Commission updated its rules to enable the deployment of these emerging
systems.\23\
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\23\ See Update to Parts 2 and 25 Concerning Non-Geostationary,
Fixed-Satellite Service Systems and Related Matters, Report and
Order and Further Notice of Proposed Rulemaking, 32 FCC Rcd 7809
(2017) (recon. pending).
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9. Two U.S.-licensed DBS providers, DISH Network L.L.C. (DISH) and
DIRECTV \24\ use the band throughout the US to provide DBS directly
from geostationary-orbit (GSO) satellites to relatively small dish
antennas at tens of millions of individual homes and businesses.
DIRECTV and DISH Network had over 22 million combined subscribers as of
the third quarter of 2020.\25\ Meanwhile, eight companies (10 legal
entities) currently hold 191 of 214 MVDDS licenses.\26\
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\24\ DIRECTV became a subsidiary of AT&T in July 2015. See,
e.g., Applications of AT&T, Inc. and DIRECTV for Consent to Assign
or Transfer Control of Licenses and Authorizations, MB Docket No.
14-90, Memorandum Opinion and Order, 30 FCC Rcd 9131 (2015). Herein
the Commission refers to AT&T and DIRECTV interchangeably.
\25\ See S&P Market Intelligence, Multichannel Operators by DMA
(Q3 2020).
\26\ The remaining 23 licenses automatically terminated for
failure to meet the buildout requirement. See Requests of Three
Licensees of 22 Licenses in the Multichannel Video and Data
Distribution Service for Extension of Time to Meet the Final
Buildout Requirement for Providing Substantial Service under Sec.
101.1413 of the Commission's Rules, Applications of Three Licensees
for Renewal of 22 Licenses in the Multichannel Video and Data
Distribution Service, Order, 33 FCC Rcd 10757 (WTB BD Oct. 29,
2018). See also Blumenthal DTV LLC, Call Sign WQAR709 (Terminated
July 26, 2014).
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10. In April 2016, the MVDDS 5G Coalition, which included eleven of
the twelve MVDDS licensees at that time, filed a Petition for
Rulemaking requesting reforms to the rules for the 12 GHz band.\27\ The
Petition seeks commencement of a rulemaking proceeding to: (i) Add a
Mobile allocation at 12.2-12.7 GHz to the Non-Federal Table of
Frequency Allocations, (ii) delete or demote to secondary the
``unused'' NGSO FSS allocation in this band from the Non-Federal Table
of Frequency Allocations, (iii) allow MVDDS licensees to provide two-
way, point-to-point or mobile broadband service, (iv) eliminate the
MVDDS effective isotropic radiated power (EIRP) limit, and (v) seek
comment on easing the four regional equivalent power flux density
(EPFD) limits.
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\27\ Petition of MVDDS 5G Coalition Petition for Rulemaking, RM-
11768, filed Apr. 26, 2016 (MVDDS 5G Coalition Petition). See also
Petition for Rulemakings Filed, Public Notice, Report No. 3042 (May
9, 2016) (Petition Public Notice). In its most recent filing, the
Coalition's members were reported to be: Cass Cable TV, Inc. (Cass
Cable), DISH Network L.L.C., Go Long Wireless, LTD. (Go Long
Wireless), MDS Operations, Inc., MVD Number 53 Partners, Satellite
Receivers, Ltd., SOUTH.COM LLC, Story Communications, LLC, and
Vision Broadband, LLC (Vision Broadband). See Letter from Chad
Winters, Cass Cable, to Marlene H. Dortch, Secretary, FCC, Docket
No. RM-11768, at 1 (filed May. 28, 2019) (MVDDS 5G Coalition May 28,
2019 Ex Parte). The Commission notes that MDS Operations
subsequently assigned its remaining 60 MVDDS licenses to RS Access.
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11. The Coalition contended that the (then) 15-year-old MVDDS rules
did not account for the ``urgent national priority'' to make additional
spectrum available for 5G mobile services or the intervening
technological developments that would now make it feasible to provide
two-way mobile broadband services in the band while simultaneously
protecting DBS from harmful interference.\28\ The Coalition stated that
``5G services have unique attributes that facilitate sharing in high
frequency bands, such as the MVDDS band, since they can be used in a
localized way to provide capacity relief in urban canyons and
indoors.'' \29\ In conjunction with its Petition, the Coalition
provided two Coexistence Studies that it claimed illustrate that the
new rules it was proposing would protect DBS operators in the band but
that they would be incompatible with NGSO FSS.\30\
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\28\ See MVDDS 5G Coalition Petition at 17-18; MVDDS 5G
Coalition Reply at 3.
\29\ MVDDS 5G Coalition Reply at 3. The Coalition notes that,
``with the emergence of 5G, higher spectrum bands can be used to
provide much needed broadband capacity relief using targeted, small
cell deployments (such as in buildings and at urban street level
locations) that present a lower interference potential than
traditional wide-area macrocell deployments in lower frequency
bands. Additionally, advanced antenna techniques like
``beamforming'' and ``beamsteering'' allow better control of
transmitter energy, enabling transmissions to be more narrowly
focused to desired locations (and away from receivers with which
they might interfere) dynamically.'' MVDDS 5G Coalition Petition at
18.
\30\ MVDDDS 5G Coalition Comments, Attach. 1, MVDDS 12.2-12.7
GHz Co-Primary Service Coexistence (Coexistence 1) and MVDDS 5G
Coalition Reply, Appx. A, MVDDS 12.2-12.7 GHZ Co-Primary Service
Coexistence II (Coexistence 2) (collectively, Coexistence Studies).
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12. In the intervening four years, the Commission has taken action
to make additional spectrum available for 5G services.\31\ In 2020, the
Commission initiated a proceeding to consider rule changes to allow the
provision of 5G backhaul and broadband to ships and aircraft in motion
in the 70/80/90 GHz bands. Additionally in 2020, the Commission took
action to make available 280 megahertz of 3.7-4.2 GHz band spectrum
while relocating existing satellite operations to the upper part of the
band. Also in 2020 the Commission modernized certain rules governing
the 800 MHz and took action to expand unlicensed broadband
opportunities in the 6 GHz band. In 2019 the Commission completed
Auction 101, licensing 850 megahertz of spectrum for flexible use in
the 28 GHz band. In
[[Page 13270]]
Auction 102, the Commission licensed 700 megahertz of spectrum for
flexible use in the 24 GHz band. In Auction 103 the Commission licensed
3,400 megahertz of spectrum for flexible use in the upper 37 GHz band,
the 39 GHz band, and the 47 GHz band. Also in 2019, the Commission
proposed to reconfigure the 900 MHz band to facilitate the development
of broadband technologies and services.\32\ The Commission has also
taken steps to provide new opportunities for innovators and
experimenters between 95 GHz and 3 THz.\33\ In 2018, the Commission
proposed providing greater flexibility to current EBS licensees and new
opportunities to obtain unused spectrum in the 2.5 GHz band \34\ and
changed the rules governing Priority Access Licenses (PALs) to spur 5G
investment and deployment in the 3.5 GHz band. In 2017, the Commission
completed Auction 1002, licensing 70 megahertz of spectrum for flexible
use in the 600 MHz band.
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\31\ Since the Petition was filed in 2016, the Commission has
taken action in several proceedings to make more than six gigahertz
of spectrum available for 5G service, including 4,950 megahertz of
high-band spectrum, over 500 megahertz of mid-band spectrum, and
several swaths of low-band spectrum. See e.g., Modernizing and
Expanding Access to the 70/80/90 GHz Bands, et al, Notice of
Proposed Rulemaking and Order, 35 FCC Rcd 6039 (2020); Unlicensed
Use of the 6 GHz Band; Expanding Flexible Use in Mid-Band Spectrum
Between 3.7 and 24 GHz, Report and Order, 35 FCC Rcd 3852 (2020);
Review of the Commission's Rules Governing the 896-901/935-940 MHz
Band, Report and Order, 35 FCC Rcd 5183 (2020); Improving Public
Safety Communications in the 800 MHz Band, Report and Order, 35 FCC
Rcd 4935 (2020); Incentive Auction of Upper Microwave Flexible Use
Service Licenses in the Upper 37 GHz, 39 GHz, and 47 GHz Bands for
Next-Generation Wireless Services Closes; Winning Bidders Announced
for Auction 103, Public Notice, 35 FCC Rcd 2015 (2020); Winning
Bidders Announced for Auction of 28 GHz Upper Microwave Flexible Use
Service Licenses (Auction 101), Public Notice, 34 FCC Rcd 4279
(2019); Auction of 24 GHz Upper Microwave Flexible Use Service
Licenses Closes; Winning Bidders Announced for Auction 102, Public
Notice, 34 FCC Rcd 4296 (2019); Transforming the 2.5 GHz Band,
Notice of Proposed Rulemaking, 33 FCC Rcd 4687 (2018); Promoting
Investment in the 3550-3700 MHz Band, Report and Order, 33 FCC Rcd
10598 (2018); Expanding Flexible Use of the 3.7 to 4.2 GHz Band,
Order and Notice of Proposed Rulemaking, 33 FCC Rcd 6915 (2018);
Incentive Auction Task Force and Wireless Telecommunications Bureau
Grant 600 MHz Licenses, Public Notice, 33 FCC Rcd 869 (2018). See
also Federal Communications Commission, The FCC's 5G FAST Plan,
https://www.fcc.gov/5G (last visited Jan. 7, 2021).
\32\ Review of the Commission's Rules Governing the 896-901/935-
940 MHz Band, Report and Order, 35 FCC Rcd 5183 (2020).
\33\ FCC Opens Spectrum Horizons for New Services &
Technologies, Report and Order, 34 FCC Rcd 1605 (2019).
\34\ Transforming the 2.5 GHz Band, Notice of Proposed
Rulemaking, 33 FCC Rcd 4687 (2018).
---------------------------------------------------------------------------
13. The MVDDS 5G Coalition Petition also preceded a 2016 processing
round to accept NGSO FSS applications and petitions for market access
in several frequency bands and the Commission's reforms to its NGSO FSS
rules.\35\ In 2017, the Commission granted the first of the new
generation requests--a petition for market access by WorldVu Satellites
Limited (OneWeb) for a planned Low Earth Orbit (LEO) NGSO satellite
system of 720 satellites authorized by the United Kingdom in the 10.7-
12.7 GHz Band (in addition to several other bands).\36\ The Commission
concluded that ``the pendency of the MVDDS 5G Coalition's Petition for
Rulemaking was not a sufficient reason to delay or deny these requests
to use the band under the existing NGSO FSS allocation and service
rules.'' \37\ In granting this request, however, the Commission
conditioned access to the 12 GHz band on the outcome of the MVDDS 5G
Coalition's Petition and any other rulemaking initiated on the
Commission's own motion.\38\ The Commission also agreed with comments
of the MVDDS 5G Coalition that MVDDS should not have to protect any
non-fixed NGSO-FSS operations in the band, if authorized in the future,
because such operations had not been contemplated under the
longstanding first-in-time MVDDS/NGSO FSS sharing approach.\39\
---------------------------------------------------------------------------
\35\ See Satellite Policy Branch Information; OneWeb Petition
Accepted for Filing (IBFS File No. SAT-LOI-20160428-00041), Cut-Off
Established for Additional NGSO-Like Satellite Applications or
Petitions for Operations in the 10.7-12.7 GHz, 14.0-14.5 GHz, 17.8-
18.6 GHz, 18.8-19.3 GHz, 27.5-28.35 GHz, 28.35-29.1 GHz, and 29.5-
30.0 GHz Bands, Public Notice, 31 FCC Rcd 7666 (IB July 15, 2016).
\36\ See WorldVu Satellites Limited, Petition for Declaratory
Ruling Granting Access to the U.S. Market for the OneWeb NGSO FSS
System, Order and Declaratory Ruling, 32 FCC Rcd 5366 (2017) (OneWeb
Order).
\37\ Id. at 5369 para. 6.
\38\ Id. at 5378, para. 26 (``This grant of U.S. market access
and any earth station licenses granted in the future are subject to
modification to bring them into conformance with any rules or
policies adopted by the Commission in the future.''). See also id.
at 5369, para. 6 (``Accordingly, any investment made toward
operations in this band by OneWeb in the United States assume the
risk that operations may be subject to additional conditions or
requirements as a result of such Commission actions.'').
\39\ Id. at 5370 para. 8.
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14. The Commission subsequently granted five additional NGSO FSS
requests to use bands that include 12 GHz band (among others).\40\ Each
grant is subject to modification to bring it into conformance with any
rules or policies adopted by the Commission in the future; the market-
access grants to Space Norway, Kepler, and Theia also state that this
condition includes any earth station licenses granted in the future. In
all but the Space Norway Order, the Commission expressly stated that
the any investments made toward operations in the bands authorized in
the United States assume the risk that operations may be subject to
additional conditions or requirements as a result of any future
Commission actions, and all of the orders directly or indirectly
referenced the MVDDS 5G Coalition Petition.\41\ Parties disagree about
the scope and applicability of these conditions.\42\
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\40\ Space Norway AS, Petition for a Declaratory Ruling Granting
Access to the U.S. Market for the Arctic Satellite Broadband
Mission, Order and Declaratory Ruling, 32 FCC Rcd 9649 (2018) (Space
Norway Order); Karousel Satellite LLC, Application for Authority to
Launch and Operate a Non-Geostationary Earth Orbit Satellite System
in the Fixed Satellite Service, Memorandum Opinion, Order and
Authorization, 33 FCC Rcd 8485 (2018) (Karousel Order), Space
Exploration Holdings, LLC Application For Approval for Orbital
Deployment and Operating Authority for the SpaceX NGSO Satellite
System, Memorandum Opinion Order and Authorization, 33 FCC Rcd 3391
(2018) (SpaceX Order), Kepler Communications Inc. Petition for
Declaratory Ruling to Grant Access to the U.S. Market for Kepler's
NGSO FSS System, Order, 33 FCC Rcd 11453, (2018) (Kepler Order),
Theia Holdings A, Inc. Request for Authority to Launch and Operate a
Non-Geostationary Satellite Orbit System in the Fixed-Satellite
Service, Mobile-Satellite Service, and Earth-Exploration Satellite
Service, Memorandum, Opinion and Authorization, 34 FCC Rcd 3526
(2019) (Theia Order).
\41\ See Space Norway Order, 32 FCC Rcd at 9655, 9611, paras.
13, 27 (2017); Karousel Order, 33 FCC Rcd at 8486-87, paras. 3,
n.14, 25(v) (2018); SpaceX Order, 33 FCC Rcd at 3399, 3401-02, 3407,
paras. 19, 26, 40(r) (2018); Kepler Order, 33 FCC Rcd at 11455,
11462-63, paras. 4-5, 29 (2018), Theia Order, 34 FCC Rcd at 3539-40,
3548, paras. 36, 58 (2019).
\42\ Space Exploration Technologies Corp. (SpaceX) argues that
its authorizations are not conditional in 12 GHz band. See, e.g.,
Letter from David Goldman, Director of Satellite Policy, SpaceX, to
Marlene H. Dortch, Secretary, FCC, Docket No. RM-11768, at 2 (filed
Nov. 5, 2020) (SpaceX Nov. 5, 2020 Ex Parte). DISH argues that
``every . . . Ku-band authorization is conditioned on the outcome of
the 12 GHz petition.'' Letter from Jeffrey H. Blum, Executive Vice
President, External and Legislative Affairs, DISH, to Marlene H.
Dortch, Secretary, FCC, Docket No. RM-11768, at 2 (filed Nov. 12,
2020) (DISH Nov. 12, 2020 Ex Parte); see also id. at 1-2 citing
SpaceX Order, 33 FCC Rcd 3391, n.88.
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15. Since the Commission granted these requests, OneWeb, Kepler
Communications (Kepler) and SpaceX have launched the first satellites
of their authorized constellations and additional launches are
scheduled in 2021. To date, OneWeb has launched 110 satellites and
Kepler has launched 2 satellites. SpaceX has deployed more than 900
satellites that use the 12 GHz band among other bands, which now makes
it the largest satellite constellation in the world.\43\ In addition,
through the Commission's Rural Digital Opportunity Fund reverse
auction, SpaceX received $88.5 million in annual support for ten years
(or $885 million total) to provide broadband service to 642,925
locations.\44\ SpaceX claims that its service is capable of providing
downlink/uplink speeds of 103/42 megabits-per-second and a consistently
observed median latency of 30 milliseconds.
---------------------------------------------------------------------------
\43\ In a March 2020 NGSO FSS processing round, these four
companies filed additional applications to use the 12 GHz band. See
SpaceX, SAT-LOA-20200526-00055; OneWeb, SAT-MPL-20200526-00062; New
Spectrum Satellite, SAT-LOA-20200526-00060; Kepler, SAT-PDR-
20200526-00059. These companies have also filed several applications
for earth stations. See, e.g., SpaceX Application File No. SES-LIC-
20190211-00151; SpaceX File Nos. SES-LIC-20190402-00425, SES-LIC-
20190402-00426, SES-LIC-20190402-00427, SES-LIC-20190402-00450, SES-
LIC-20190402-00451, SES-LIC-20190405-00453; OneWeb Application File
No. SES-LIC-20190930-01217; OneWeb Application File No. SES-LIC-
20190930-01237.
\44\ Rural Digital Opportunity Fund Phase I Auction (Auction
904) Closes: Winning Bidders Announced, Public Notice, 35 FCC Rcd
13888, Appx. A. (2020).
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16. In its most recent filing, the MVDDS 5G Coalition continues to
ask the Commission to consider modernizing MVDDS rules and to protect
MVDDS interests in the band. While the MVDDS 5G Coalition originally
contended that 5G terrestrial use and NGSO FSS use are incompatible,
other proponents of flexible use (such as two-way mobile)--including
some of the members of the MVDDS 5G Coalition--recently have
[[Page 13271]]
suggested the possibility of sharing in the band.\45\ Meanwhile,
OneWeb, AT&T Services, Inc. (AT&T), SpaceX, Intelsat License LLC
(Intelsat), SES S.A. (SES), Kepler, and others contend that sharing
remains impossible between NGSO FSS and terrestrial two-way mobile
operations.
---------------------------------------------------------------------------
\45\ See e.g., Letter from Martha Suarez, President, Dynamic
Spectrum Alliance (DSA), to Marlene H. Dortch, Secretary, FCC,
Docket No. RM-11768, at 2 (filed Aug. 21, 2020) (DSA Aug. 21, 2020
Ex Parte); Letter from Trey Hanbury, Counsel, RS Access, to Marlene
H. Dortch, Secretary, FCC, Docket No. RM-11768, at 2-3 (filed Sept.
21, 2020) (RS Access Sept. 21, 2020 Ex Parte); DISH Nov. 12, 2020 Ex
Parte at 4 (stating that ``since the 2016 studies, developments in
the satellite industry indicate that NGSO FSS constellations possess
geostationary-like functions and properties that could prove more
compatible with 5G services in the 12 GHz Band than the last-
generation NGSO earth stations.'').
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II. Discussion
17. The Commission has long been committed to ensuring that
spectrum is put to its highest and best use. As such, the Commission
commence this rulemaking proceeding to consider whether the current
rules for the use of 12 GHz best serve the public interest. As a
threshold matter, therefore, the Commission seeks comment on how to
weigh the spectrum the Commission has already made available for 5G
over the past four years and the hundreds of satellites that have been
launched by the NGSO FSS operators in considering whether it is
technically feasible to add additional or expanded spectrum rights in
the 12 GHz band without causing harmful interference to incumbent
licensees (and, if so, whether a balancing of public interest benefits
would support taking that step). In the sections below, the Commission
seeks comment on two potential approaches to future use of the 12 GHz
band: Increasing terrestrial use of the shared band or continuing with
the current framework. The Commission seeks comment on each approach,
including the costs and benefits, in order to pursue the Commission's
goals of putting spectrum to its highest-value and most efficient use
while protecting incumbent operations in the band from harmful
interference.
A. Enhanced Opportunities for Shared Use of the Band
18. First, the Commission seeks comment on whether it can increase
opportunities for shared use of the band while protecting incumbents
from harmful interference. The MVDDS 5G Coalition argues that
technological advances since the creation of MVDDS in 2000 justify
revisiting the rules for terrestrial use of the band. Specifically, the
MVDDS 5G Coalition asserts that terrestrial flexible use service is
compatible with DBS service due to technological advances, such as
targeted small-cell deployments and advanced antenna techniques like
beamforming and beamsteering, which allow better control of transmitter
energy and therefore can protect DBS. Other proponents of terrestrial,
flexible use of the band similarly argue that developments since the
MVDDS Petition was submitted in 2016 open up the possibility of
coexistence between DBS, terrestrial flexible use, and NGSO FSS
operations, and they maintain that the complex technical issues this
raises warrant a new Commission rulemaking. As such, the Commission
seeks comment on adding a mobile service allocation throughout the 12
GHz band, whether coexistence between and among these competing
services is technically achievable and, if so, what mechanisms the
Commission might consider in facilitating such coexistence.
19. The Commission notes that section 303(y) provides the
Commission with authority to provide for flexible use operations only
if: ``(1) such use is consistent with international agreements to which
the United States is a party; and (2) the Commission finds, after
notice and opportunity for public comment, that (A) such an allocation
would be in the public interest; (B) such use would not deter
investment in communications services and systems, or technology
development; and (C) such use would not result in harmful interference
among users.'' \46\ The Commission seeks comment on whether adding a
mobile allocation to the 12 GHz band to allow flexible, terrestrial use
is consistent with this provision.\47\ In particular, the Commission
seeks information on the status of technologies that have been
developed or are currently in development that would allow for two-way
mobile communications in the 12 GHz band, whether standards have been
set related to such technologies, whether there are any international
agreements on a band plan or air interface for the 12 GHz band, and the
impact (if any) on international rights for U.S.-licensed systems that
might be affected as a result of its providing for expanded shared use
of the band.\48\
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\46\ Balanced Budget Act of 1997, Public Law 105-33, 111 Stat
251, 268-69 sec. 3005 Flexible Use of Electromagnetic Spectrum
(codified at 47 U.S.C. 303(y)). See also 47 CFR 2.106, 27.2, 27.3.
\47\ The Commission notes the 12 GHz band has not been proposed
at the International Telecommunication Union (ITU) for 5G or
International Mobile Telecommunications (IMT) use at this time.
Intelsat Opposition at 3; MVDDS 5G Coalition Reply at 6; Letter From
Grover G. Norquist, President, Americans for Tax Reform, et al., to
Marlene H. Dortch, Secretary, FCC, Docket No. RM-11768, at 3 (filed
Oct. 16, 2020) (ATR Oct. 16, 2020 Ex Parte); Letter from Thomas A.
Schatz, President, Citizens Against Government Waste, to Marlene H.
Dortch, Secretary, FCC, Docket No. RM-11768, at 3 (filed Oct. 22,
2020) (CAGW Oct. 22, 2020 Ex Parte). The Commission seeks comment on
the pertinence of this observation.
\48\ See Letter from David Goldman, Director of Satellite
Policy, SpaceX, to Marlene H. Dortch, Secretary, FCC, Docket No. RM-
11768, Attach. A, Questions Necessary to Balance the 12 GHz NPRM, at
3-4 (filed Jan. 6, 2021) (SpaceX Jan. 6, 2021 Ex Parte).
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1. Protecting Satellite Incumbents From Harmful Interference
20. The Commission seeks comment on the technical parameters that
could allow additional terrestrial use of the band without causing
harmful interference to incumbent operators. Among other things, the
Commission seeks comment on whether it should allow two-way
communications and flexible use of the band as well as what technical
parameters would be appropriate for such new terrestrial operations.
For example, assuming existing MVDDS service rules as the baseline,
should the Commission eliminate or modify the EIRP restriction for
terrestrial operators of 14.0 dBm per 24 megahertz (-16.0 dBW per 24
megahertz)?
21. Protecting DBS Operations. The MVDDS 5G Coalition and others
assert that coexistence is feasible between those conducting two-way
mobile operations and existing and future DBS receivers. They maintain
that terrestrial operators could apply existing technology profiles and
newly available ultra-high resolution imagery, neither of which was
available in 2002, with modest adjustments to terrestrial site
locations and radio frequency design parameters. The Commission seeks
comment on whether, and to what extent, the MVDDS 5G Coalition's
proposed licensing of two-way, mobile operations in the band, and its
proposed elimination of the EIRP limit, would substantially redefine
the scope of DBS operators' obligations and potential burdens under the
current regime. If flexible use is authorized in the band, should the
burden of avoiding or correcting for interference to existing or future
DBS subscribers be revised? Or should two-way and/or mobile licensees
be subject to the same requirements for protecting DBS subscribers that
currently apply to other services in the band? How could other
factors--such as geographic separation, transmitter power constraints
on terrestrial operations, and other siting parameters
[[Page 13272]]
for flexible-use base stations--minimize the risk of interference to
DBS users?
22. The MVDDS 5G Coalition asserts that sharing between two-way,
higher EIRP mobile operations and DBS, is possible through careful
selection of areas to deploy mobile broadband, modest adjustments to
radiofrequency design parameters, elimination of interference through
geographic separation, absorption in the clutter, transmitter power
constraints on terrestrial operations, and other mechanisms. The
Commission seeks comment on whether such an approach is feasible, both
as a technical and a practical manner. The Commission seeks comment on
the costs and benefits of such an approach.
23. The MVDDS 5G Coalition also suggests that keeping terrestrial
signals below the applicable EPFD limit at all DBS antenna locations
generally could avoid harmful interference to existing DBS subscribers
regardless of the EIRP or whether the operations are fixed or mobile,
or one- or two-way.\49\ Do commenters agree? AT&T notes that DBS
customers can install dishes anywhere on their premises and sometimes
even on moving vehicles, and that DBS operators do not have access to
granular location data for their receive terminal installations. Does
the Coalition's proposed solution resolve that concern? Can cell-site
EIRP or location be engineered to mitigate any potential interference?
What are appropriate EIRP considerations for base and mobile stations?
Given that all DBS earth stations look toward the southern sky for
communication with GSO space stations orbiting at the equatorial plane,
and given that high-gain antennas are necessary for base stations, can
base station location and/or antenna orientation be situated to provide
greater protection to DBS earth stations? What is the impact of base
station height with respect to interference? Will lower base station
height reduce the potential for interference to both DBS and NGSO? What
are the potential costs associated with this solution?
---------------------------------------------------------------------------
\49\ See MVDDS 5G Coalition Petition at 19; MVDDS 5G Coalition
Comments at 6 & n.21 (citing Coexistence 1 at 4). AT&T had argued
that there may be potential statutory issues including whether
proposed two-way, mobile use of the band would require an
independent technical analysis showing that DBS would be protected.
AT&T Opposition at 2 & n.4 (citing section 1012 of the LOCAL TV
Act). In December 2018, however, this provision the LOCAL TV Act was
stricken. Public Law 106-553, 114 Stat. 2762, 265-66 sec. 1012
Prevention of Interference to Direct Broadcast Satellite Services,
stricken by Public Law 115-334, 132 Stat. 4490, 4777-78 sec. 6603
Amendments to Local TV Act.
---------------------------------------------------------------------------
24. AT&T counters that although one-way services currently
permitted under MVDDS licenses may coexist with DBS, two-way mobile
service would create an untenable interference environment for DBS
subscribers. Specifically, AT&T contends that enabling two-way, mobile
use--which would include transient signals from unpredictable locations
and angles--would make it impossible to model and avoid interference to
DBS receivers, and that it would be ``exceptionally difficult for the
DBS operator to trace or identify'' the cause of interference as the
signal moved. The Commission seeks comment on this view.
25. Protecting NGSO FSS Operations. SpaceX asserts the technical
studies submitted by the MVDDS 5G Coalition demonstrate that ``while
coexistence between DBS and 5G MVDDS would prove feasible within
limits, coexistence between NGSO FSS and 5G MVDDS would not prove
feasible, without substantial constraints on one or both services,''
and that ``MVDDS licensees cannot deploy two way 5G services in the
12.2-12.7 GHz band without overwhelming NGSO FSS operations, even under
the current rules, notwithstanding new 5G deployment architectures and
newly available high-resolution ground-obstacle data.'' SpaceX also
points out that one such 2016 study assumes ``an overly optimistic 30dB
of NGSO user antenna discrimination toward the horizon and still
determines that extreme interference (C/I = 0dB) into the NGSO receiver
will occur from a single 5G mobile device that is 1,000 meters away
operating at EIRP of 23dBm per 24MHz in free space conditions.'' SpaceX
argues that ``[e]xtending this analysis to a more relevant threshold of
I/N of -6 to -12dB yields the conclusion that a single 5G mobile device
could cause interference at a distance of greater than 10km in free
space conditions,'' and that ``[m]ore than one 5G mobile device in the
vicinity would increase this distance.'' Accordingly, SpaceX asks how
DISH would ensure that its 5G mobile users are always tens of
kilometers from the nearest NGSO user antenna on the ground, or
approximately 10 kilometers away for single 5G mobile devices, with
larger separation distances necessary for multiple 5G devices?
Furthermore, it asks if such separation distances are really a
practical solution as NGSO FSS users become ubiquitously deployed in
the near future? Finally, it inquires if under this scheme, 5G
operations in an area would cease operations if notified by an NGSO
operator of observed interference?
26. DISH asserts that technological developments in the satellite
industry may have increased the degree to which NGSO FSS constellations
and flexible use, including two-way mobile service, may coexist.
Specifically, DISH maintains that current-generation NGSO FSS
constellations possess geostationary-like functions and properties that
could prove more compatible with flexible use than last-generation NGSO
earth stations. DISH asserts that to the extent NGSO FSS satellites
maintain a highly elliptical orbit and time their active operations to
align with the perigee of their orbit in a manner intended to simulate
the operation of a GSO system,\50\ such operations presumably would be
in a better position to coexist with flexible use operations than a
standard NGSO FSS system. DISH further contends that, given the large
number of satellites contemplated by these systems, an NGSO FSS antenna
should be expected to operate with a much narrower field of view as
opposed to one encompassing all realistic azimuths and elevation
angles. Thus, DISH asserts that, at some level of concentration, large
numbers of NGSO FSS satellites could operate for interference purposes
like fixed DBS licensees, because the receiving earth stations would be
directed at a limited number of proximate points in low-Earth orbit
instead of at a nearly limitless array of different points throughout
the sky.
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\50\ A highly elliptical orbit is a highly eccentrical orbit
with a low perigee and a high apogee. Perigee is the point in a
satellite's orbit closest to the earth, while apogee is the point in
orbit farthest from the earth. The orbital pattern follows the curve
on an ellipse.
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27. The Commission seeks comment on the technical analyses
submitted to date, as well as further information and studies related
to the feasibility, costs, and benefits of sharing among these
services. To what extent does NGSO satellite systems operate in a
manner described by DISH? In other words, do all NGSO systems operate
in highly elliptical orbits or with earth stations pointed toward fixed
locations in the sky? If not, are there plans for NGSO system operators
to modify their systems in this manner? What would be the implication
on latency for end users if NGSO FSS systems were modified to highly
elliptical orbits? What is the practical range of azimuth and elevation
angles over which NGSO earth stations are expected to operate? SpaceX
notes that existing NGSO FSS systems are authorized to operate down to
10-degree elevation angles in the U.S. and questions whether
terrestrial uses could be added to the band while still protecting NGSO
licensees that use these elevation angles. What level of
[[Page 13273]]
NGSO FSS satellite concentration would ensure that NGSO receiving earth
stations would be directed at a limited number of proximate points in
low-Earth orbit? How many earth stations do NGSO operators expect to
deploy? What methods can base and mobile stations use to avoid causing
harmful interference to NGSO receive stations? Commenters that contend
that coexistence is feasible should address whether, given the existing
technical rules, sufficient spectrum will be available to support new
terrestrial service and describe the potential costs associated with
any solution.
28. The Commission notes that NGSO interests and various other
parties argue that expanding terrestrial rights to include flexible
use, including two-way, mobile service in the 12 GHz band, could create
harmful interference that would jeopardize their offerings, and
undermine the investments that they have made in the band. The
Commission seeks comment on the appropriate technical criteria that
would be necessary to protect NGSO FSS from harmful interference from
higher-power, two-way mobile operations. Would the existing
interference criteria in the MVDDS rules be sufficient? \51\ How would
an NGSO FSS operator or subscriber identify the source of any
interference received in the event that mobile operations are
authorized in the band? SpaceX argues that, because the Commission has
permitted blanket authorizations for earth stations in the band
(enabling millions of consumer earth stations to ubiquitously
proliferate), it would be impossible to track these consumer
deployments in real-time, much less prevent harmful interference to
them by transient and unpredictable mobile operations. SpaceX also
points out that the sharing studies submitted by the MVDDS Coalition
confirm that 5G use would clearly overwhelm NGSO FSS operations. Given
the potential for NGSO FSS operations to provide much needed service in
rural and other underserved areas, The Commission seeks comment on the
costs and benefits of adding terrestrial two-way mobile services to the
band.
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\51\ See 47 CFR 101.113(a) n.11, (f)(1); 101.147(p). See also 47
CFR 101.105(a)(4)(i) (limiting the PFD level beyond 3 km from an
MVDDS station to -135 dBW/m\2\ in any 4 kHz measured and/or
calculated at the surface of the earth), 101.129(b) (prohibiting
location of MVDDS transmitting antennas within 10 km of any
qualifying NGSO FSS receiver absent mutual agreement of the
licensees).
---------------------------------------------------------------------------
29. In response to the assertions from SpaceX and other NGSO
operators about the potential for harmful interference, DISH argues
that NGSO FSS service is not dependent on the 12 GHz band; it contends
that, ``[i]f the FCC were to repurpose the 12 GHz band for terrestrial
5G services, SpaceX would retain nearly 97% of all spectrum and nearly
94% of all space-to-earth spectrum made available for its proposed NGSO
FSS system.'' In response, several NGSO operators argue that the
entirety of the two gigahertz of spectrum from 10.7 GHz to 12.7 GHz
currently licensed to several NGSO FSS operators for downlink
operations is necessary for NGSO FSS deployment. SpaceX argues there
are additional constraints in the other portions of 10.95-12.2; for
example, 10.95-11.7 has further non-harmful interference protections
due to terrestrial being primary, which could affect consumer earth
stations in this portion of the band. Others argue that harmful
interference to NGSO operators in the 500 megahertz of the 12 GHz band
would negatively affect NGSO operators' ability to split equally the
remaining 1.5 gigahertz of spectrum during in-line interference events.
The Commission seeks comment on these views, but reiterate that it is
focused on protecting incumbent licensees, including incumbent NGSO
operators, from harmful interference in this proceeding.
30. Other Technical Means of Protecting Satellite Incumbents. One
additional approach to protecting incumbents would be to restrict new
terrestrial operations to indoor use. The Commission has adopted this
approach to permit unlicensed devices to share spectrum with licensed
services in several bands.\52\ Such indoor devices could be used for
providing internet connectivity as well as connecting internet-of-
things devices in both consumer and industrial applications. The
Commission's Technological Advisory Council 5G/IoT/O-RAN working group
recommended that the Commission consider private spectrum for
enterprise internet-of-things devices in locations such as confined
geographic areas, buildings, and campuses. Could indoor 12 GHz
unlicensed devices meet this need? Would restricting new terrestrial
devices to indoor uses enable them to co-exist with satellite services?
What power level would the indoor devices need to be limited to avoid
causing harmful interference to satellite services (and would it be
materially higher than if the Commission assumes outdoor use for the
new terrestrial operations)? What would be the costs and benefits of
this approach?
---------------------------------------------------------------------------
\52\ 47 CFR 15.407(d)(3); Unlicensed Use of the 6 GHz Band,
Report and Order and Further Notice of Proposed Rulemaking, 35 FCC
Rcd 3852, 3888-89, paras. 98-103(2020); Use of the 5.850-5.925 GHz
Band, First Report and Order, Further Notice of Proposed Rulemaking,
and Order of Proposed Modification, ET Docket No. 19-138, FCC 20-
164, para. 61 (adopted Nov. 18, 2020).
---------------------------------------------------------------------------
2. Assigning New Terrestrial Use Rights
31. The Commission next seeks comment on how it should assign any
new terrestrial service rights. Given that MVDDS licensees themselves
have terrestrial usage rights in large geographic areas across the
United States, the Commission seeks comment on three approaches to
authorize any new terrestrial rights in the band: (1) Modifying the
licenses of existing licensees under section 316 of the Communications
Act, (2) auctioning off overlay licenses in the band, and (3)
authorizing underlay use of the band.
32. First, should the Commission consider modifying existing
incumbent licenses using its section 316 authority to allow increased
terrestrial operational flexibility? In this band, because there are
several types of existing incumbents--DBS, MVDDS, and NGSO--there are
several potential options for expanding terrestrial rights. One option
would be to expand the rights of existing terrestrial licensees to
allow them to provide 5G terrestrial services. For instance, when the
Commission authorized mobile use in the 28 GHz band, it granted mobile
rights to existing fixed licensees, after finding that such an approach
would expedite service, and that separating ``fixed'' and ``mobile''
rights into different bundles could create unnecessary complexity and
potential for interference. Similarly, the Commission has modified
other licenses in the past to increase the flexibility afforded to
incumbents to put spectrum to its highest and best use.\53\ Do similar
reasons support modifying the MVDDS licenses to incorporate greater
flexibility? Or are there distinctions that suggest the Commission
should adopt a different approach here?
---------------------------------------------------------------------------
\53\ See, e.g., Service Rules for Advanced Wireless Services in
the 2000-2020 MHz and 2180-2200 MHz Bands (2 GHz bands), WT Docket
Nos. 12-70 and 04-356, ET Docket No. 10-142, Report and Order and
Order of Proposed Modification, 27 FCC Rcd 16102, 16220-22, 16224,
paras. 319-21, 331-32, (2012) (modifying incumbent MSS licensees to
allow widespread terrestrial authorizations); Amendment of Part 27
of the Commission's Rules to Govern the Operation of Wireless
Communications Services in the 2.3 GHz Band, WT Docket No. 07-293,
Report and Order and Second Report and Order, 25 FCC Rcd 11710,
11712, 11723, paras. 2, 29 (2010) (modifying rules to enable the
deployment of mobile broadband services by incumbent terrestrial
licensees).
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33. Another option would be to grant flexible terrestrial use
rights to the incumbent satellite operators. As
[[Page 13274]]
SpaceX notes, the Commission granted terrestrial rights to the AWS-4
band to existing satellite licensees based on an assumption that
closely coordinated satellite and terrestrial operations would be
necessary to overcome interference issues. Would affording flexible use
rights to incumbent satellite operators best ensure that these services
do not experience harmful interference?
34. Under the current regulatory regime in the band, DBS operators
have priority over the other services, including both MVDDS and NGSO
licensees. Should the Commission grant flexible terrestrial use rights
to DBS licensees based on their priority status? One of the potential
challenges to such an approach, however, involves the different ways in
which DBS rights and terrestrial rights are generally assigned. While
the DBS operators have exclusive rights to transmit from each of their
orbital slots, they have non-exclusive rights in terms of geographic
coverage (i.e., they jointly share the right to transmit across the
United States using the 12.2-12.7 GHz band). In contrast, in order to
encourage investment and innovation by terrestrial licensees, the
Commission generally assigns new terrestrial use licenses on an
exclusive geographic basis. Given that each DBS operator in the band
uses the full 12 GHz band on a shared basis with the other DBS
operator, if the Commission awarded flexible terrestrial use rights to
both incumbents, how should the flexible terrestrial use rights be
awarded? Could the Commission leave this matter to commercial
negotiations between the parties? If so, would such an approach lead to
an efficient outcome? If the Commission cannot rely solely on
negotiation between the DBS operators, how would it reconcile conflicts
between the DBS operators over how to apportion terrestrial rights? The
Commission notes that, under section 309(j) of the Communications Act
of 1934, as amended, if mutually exclusive applications for initial
licenses are received, it must use competitive bidding to resolve the
mutual exclusivity. The Commission seeks comment on whether, and how,
the process of negotiating and assigning terrestrial rights to DBS
operators could occur without triggering this requirement.
35. Alternatively, the Commission could grant flexible terrestrial
use rights to NGSO operators in addition to DBS operators. The
Commission notes that this option would create at least two
complications. First, there would need to be negotiations between a
significantly larger number of operators--there are currently only two
DBS operators, while there have been six NGSO authorizations granted
for use of the 12 GHz band. Second, the apportionment of terrestrial
rights would be further complicated by the fact that one set of
operators (DBS) currently has superior rights to the other set of
operators (NGSO). Could the Commission rely on commercial negotiations
to achieve an efficient outcome between these operators, and if not,
would it be possible to resolve differences in a manner that both
comports with section 309(j) and achieves an efficient and expeditious
outcome?
36. Second, should the Commission auction overlay licenses for the
band? Some commenters argue that this approach would ensure that the
new flexible-use licenses are assigned to entities that are capable of
rapidly deploying in the band. If the Commission was to adopt this
overlay license approach, it expects that new licensees would not be
able to deploy operations that would cause harmful interference to
incumbent operations absent an agreement to the contrary. What rights,
if any, should overlay licensees have to relocate incumbent operations?
Specifically, should the Commission authorize only voluntary relocation
of incumbent operations, either for a limited period or in perpetuity?
\54\ Or should the Commission allow mandatory relocation of such
operations, either immediately or after some period of time to allow
negotiations? If the Commission was to authorize mandatory relocation,
should the new licensees be responsible for finding or consolidating
incumbent operations (while ensuring such operators can continue with
substantially similar operations and are held harmless financially)? Or
should the Commission designate some portion of the 12 GHz band or
another spectrum band for such relocation? What parameters would the
Commission need to put down to ensure efficient use of new overlay
licenses while protecting incumbents? Would a transition mechanism like
the one used in 3.7-4.2 GHz, including accelerated relocation payments
for incumbents to encourage them to voluntarily make the spectrum
available for two-way mobile flexible use in an expeditious manner, be
appropriate for some or all incumbents in this band? \55\
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\54\ In the 900 MHz Report and Order, the Commission realigned
the band and established a transition mechanism based primarily on
negotiations between prospective broadband licensees and existing
narrowband incumbent licensees. Review of the Commission's Rules
Governing the 896-901/935-940 MHz Band, Report and Order, Order of
Proposed Modification, and Orders, WT Docket No. 17-200, FCC 20-67,
(May 14, 2020).
\55\ See 47 CFR 27.1411-27.1424, Expanding Flexible Use of the
3.7 to 4.2 GHz Band, GN Docket No. 18-122, Report and Order and
Order of Proposed Modification, 35 FCC Rcd 2343 (2020). See also
AT&T Aug. 6, 2020 Ex Parte at 6.
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37. Third, should new terrestrial operations come in the form of an
underlay? Under this type of approach, any additional terrestrial
operations likely would need to be authorized at low power and would
need to operate on an opportunistic basis, not causing harmful
interference to--nor seeking protection from harmful interference by--
the incumbent primary services in the band. For example, if the
technical analysis were to show only that low-power, two-way operations
were feasible, would a low-power, unlicensed underlay make the most
sense, as advocated by Public Knowledge? Specifically, Public Knowledge
argues that making 500 megahertz of spectrum available on an unlicensed
or licensed-by-rule basis could allow for new Wi-Fi 6 uses which the
Commission has previously supported in the 6 GHz proceeding. If the
Commission adopts such an approach, could it rely on its traditional
part 15 rules for such an underlay? Alternatively, should the
Commission consider the auctioning of underlay licenses or licensing
underlay use by rule? The Commission notes that any users of such an
underlay would be required to fully protect all DBS, NGSO FSS, and
MVDDS operations. Given this requirement, the Commission seeks comment
on the costs and benefits of an underlay approach.
38. In deciding how to assign new terrestrial rights, the
Commission notes that several commenters contend that MVDDS licensees
have failed to provide meaningful commercial service in the band. As a
construction requirement, MVDDS licensees must make a showing of
substantial service at the end of five years into the license period
and ten years into the license period.\56\ The Commission established a
safe harbor for MVDDS of actual delivery of service to customers via
four separate transmitting locations per million
[[Page 13275]]
population in their license area.\57\ The Commission is aware of only
one current wide-area commercial MVDDS deployment, in Albuquerque, New
Mexico.\58\ Apart from the showing for the Albuquerque license, other
licensees report meeting the Commission's substantial service
construction requirement for each license based on the safe harbor for
MVDDS. Although MVDDS licensees point out that they met the required
construction benchmarks and claim that they have plans for future
service, these licensees also contend that the current technical rules
for MVDDS are prohibitively restrictive. Should the Commission delay
expanding flexible-use rights in the 12 GHz band until such time as the
Bureau resolves any issues associated with MVDDS licensee's substantial
showing filings, as suggested by SpaceX? While the Commission expects
that the Bureau will carefully examine the licensees' filings for
compliance with the applicable rules, it also seeks comment on the
current status of MVDDS network construction. In what areas are MVDDS
licensees currently providing services and in what areas do licensees
anticipate offering services in the near term?
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\56\ 47 CFR 101.1413(b) (``The substantial service requirement
is defined as a service that is sound, favorable, and substantially
above a level of mediocre service which might minimally warrant
renewal.''). At the end of each period, ``the Commission will
consider factors such as: (1) whether the licensee's operations
service niche markets or focus on serving populations outside of
areas serviced by other MVDDS licensees; (2) whether the licensee's
operations serve populations with limited access to
telecommunications services; and (3) a demonstration of service to a
significant portion of the population or land area of the licensed
area.'' Id.
\57\ See Amendment of Parts 2 and 25 of the Commission's Rules
to Permit Operation of NGSO FSS Systems Co-Frequency with GSO and
Terrestrial Systems in the Ku-Band Frequency Range, Memorandum
Opinion and Order and Second Report and Order, ET Docket No. 98-206,
17 FCC Rcd 9612, para. 177 (2002).
\58\ The MVDDS licensee in Albuquerque, New Mexico, reports that
it has deployed a large-scale broadband internet service offering
that reaches more than 900,000 people (or approximately 50 percent
of the population) in the Albuquerque geographic license area. See
RS Access, LLC, ULS File No. 0008742312, Required Notification for
Call Sign WQAR 561, Substantial Service Showing Supplement at 43-49.
``To build a high-speed, high-power broadband network, RSA/MDS
required a waiver from the FCC of certain MVDDS operating
constraints--namely, the EIRP levels.'' Id. at 43 (note omitted). RS
Access states that the waiver allows a single transmitter to
replicate the service quality of multiple MVDDS transmitters
operating elsewhere without a waiver. Id. at 43.
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3. Approaches to Sharing
39. If coexistence among the co-primary services, i.e., DBS, NGSO
FSS, MVDDS incumbents, and the proposed flexible-use service (i.e.,
two-way, mobile service) is technically feasible without resulting in
harmful interference to any incumbent service, the Commission next
seeks comment on the appropriate means to facilitate such shared use.
The Commission recognizes that its technical analysis as well as public
interest considerations will guide its approach to sharing, and it
seeks comment on whether particular approaches to sharing depend on
certain results of its technical analysis (for example, is one approach
more appropriate than another if it kept a maximum EIRP for terrestrial
operations?).
40. Service-Rule Sharing. The Commission first seeks comment on
whether the operating parameters proposed by the MVDDS 5G Coalition--
specifically modifying the power levels available to terrestrial
operations and modifying some of the coordination requirements--are
sufficient to enable new terrestrial operations. What are the maximum
power levels and the most flexibility that could be granted to new
terrestrial operations with simple service-rule sharing while still
protecting incumbents from harmful interference? Commenters should
discuss the potential benefits and value of terrestrial operations
under these conditions.
41. Geographic Sharing. Would geographic sharing protect and
facilitate use of DBS and NGSO FSS in some areas without precluding new
flexible-use deployment elsewhere? Would geographic sharing allow
higher-power terrestrial operations in certain areas rather than
others? How should such geographic sharing be structured? Do
subscribers of satellite services typically receive these services in
more rural areas? What are the propagation characteristics of this band
with respect to mobile system coverage? What is the cell size? Like
other, higher-frequency 5G bands, will cell size be limited to a few
hundred meters based on line-of-site conditions? Can smaller sized
cells provide the flexibility necessary to mitigate any potential
interference with respect to DBS (or NGSO) satellite service operations
either before or after deployment of the network? What are the
potential costs and benefits of geographic sharing?
42. According to AT&T, the MVDDS 5G Coalition's proposal would
result in ``some fixed, low-power base stations in `unique geographic
conditions' away from the millions of DBS users sprinkled through
virtually every community, perhaps in `urban canyons' or other places
where satellites might not reach.'' The Commission seeks comment on
this view.
43. Dynamic Sharing Between Full Power Terrestrial and Satellite.
Federated Wireless claims that ``industry [has] confidence in the
ability of dynamic spectrum sharing technologies to enable new and
innovative uses in [ ] spectrum, while protecting incumbent
operations.'' Parties such as DISH, DSA, Federated Wireless, Public
Knowledge, RS Access, and WeLink argue that new dynamic spectrum
sharing techniques, such as spectrum access systems (SASs) that were
developed for the Citizens Broadband Radio Service and the automated
frequency coordination (AFC) approach established for unlicensed access
in the 6 GHz band, could facilitate increased terrestrial use of the 12
GHz band. How could dynamic sharing mechanisms facilitate continued use
by DBS, NGSO FSS, and MVDDS incumbents, while also accommodating
potential new uses such as two-way mobile service?
44. What improvements have there been in dynamic spectrum
technology that might enable flexible use and sharing among these
services? For example, are database-based coordination systems
sophisticated enough to account for earth stations' receiving data from
both thousands of NGSO satellites as well as DBS receivers, thus
permitting mobile terrestrial use while preventing harmful interference
to all incumbent users? How would such a system work? Is there any
history of successful dynamic spectrum sharing involving widely
deployed satellites and ubiquitous terrestrial services?
45. How long would it take to develop an automated frequency
coordination mechanism for the services in this band? To what extent
could the Commission leverage existing technologies (either the SASs
created for the 3.5 GHz band or the AFC being developed for the 6 GHz
band) to perform these functions? Would an entirely new system need to
be developed? To the extent the Commission could repurpose an existing
system, what benefits or trade-offs would there be between using an
existing system versus creating an entirely new dynamic-use system
specifically tailored to the 12 GHz band? Would such a spectrum sharing
system be able to satisfy the spectrum access needs for all the current
and potential future satellite and terrestrial operators? If so, would
it be worth the cost and burden of such a system to the respective
services?
46. If the Commission choose a dynamic sharing approach, it would
propose to follow the existing prioritization of services for
protection, with DBS continuing to receive the highest protection,
followed by NGSO FSS and MVDDS. How should the Commission assign
priority under this approach to new terrestrial operations? And should
the Commission assign priority between NGSO FSS and MVDDS uses? Should
the Commission continue to apply a ``first-in-time''
[[Page 13276]]
approach in the context of a more dynamic sharing environment?
47. The Commission seeks comment on how a dynamic sharing mechanism
would incorporate legacy DBS consumer equipment? AT&T has expressed
concern that DBS is unlike a fixed service because DBS receivers are
deployed ubiquitously, with some installed on vehicles and thus
effectively mobile, and because exact geographic coordinates are not
known.\59\ Could these conditions be remedied and could the Commission
seek information to obtain greater granularity of location, information
on DBS end-user equipment, the height of such equipment at the
installation location and any technical aspects relevant for
coordination? How would a dynamic frequency sharing coordination
mechanism determine the presence and potential for interference from
terrestrial services to DBS? How would such a mechanism incorporate
legacy NGSO FSS consumer terminals? If current DBS or NGSO FSS end-user
equipment or databases are not able to support some type of
coordination mechanism, should the Commission adopt a requirement to
incorporate such equipment going forward? Should legacy equipment be
grandfathered and allowed to operate until a specified end date? The
Commission notes that to receive protection from new proposed MVDDS
transmitters, NGSO FSS licensees must already maintain a database of
fixed subscriber earth stations, in a format that can be readily shared
with MVDDS licensees.\60\ Would such a database similarly facilitate
protection from new terrestrial mobile two-way services? How should the
Commission address any consumer privacy concerns, or protection of
proprietary and confidential business information, that might arise
from the use of one or more databases to facilitate shared use among
competing services? \61\
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\59\ AT&T Oct. 16, 2020 Ex Parte at 2. According to AT&T, DBS
receivers are tied to subscriber addresses, not specific
coordinates, and subscribers have the right to move their dish from
one location to another on their property without no notification
requirement. Id.
\60\ See, e.g., 47 CFR 25.139(a) (requiring NGSO FSS licensees
to maintain a subscriber database in a format that can be readily
shared with MVDDS licensees for the purpose of determining
compliance with the MVDDS transmitting antenna spacing requirement
relating to qualifying existing NGSO FSS subscriber receivers set
forth in Sec. 101.129); 101.103(f)(1) (prior to the construction or
addition of an MVDDS transmitting antenna, the MVDDS licensee shall
provide notice of intent to construct the proposed antenna site to
NGSO FSS licensees operating in the 12 GHz band and maintain an
internet website of all existing transmitting sites and transmitting
antennas that are scheduled for operation within one year, including
the ``in-service'' dates); 101.129(b) (MVDDS licensees must not
locate transmitting antennas within 10 km of any qualifying NGSO FSS
receiver); 101.1440(b) (for each proposed transmitter, MVDDS
licensees must conduct a survey to determine the location of all DBS
customers of record that may potentially be affected by the
introduction of its MVDDS service).
\61\ SpaceX Jan. 6, 2021 Ex Parte, Attach. A at 2-3.
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48. If the Commission decides to give priority to new terrestrial
flexible-use services, vis-[agrave]-vis NGSO FSS or MVDDS, should it
consider an approach similar to that taken in the 3.5 GHz band, in
which it auctioned Priority Access Licenses (PALs) to promote
innovative use while protecting incumbents? Federated Wireless argues
that the auction of PALs in 3.5 GHz band could serve as a model for how
to facilitate shared use in the 12 GHz band. SpaceX, however, argues
that there are important distinctions between the 3.5 GHz band and the
12 GHz band that make it infeasible to auction PALs in this band. For
example, SpaceX asserts that there are far fewer earth stations in the
3.5 GHz band than the 12 GHz band because FSS use in the former is
limited to international inter-continental systems and is subject to
case-by-case electromagnetic compatibility analysis. In addition,
according to SpaceX, blanket earth station licensing in 12 GHz means
that there are many more receivers in the band that cannot be
adequately tracked (including DBS receivers). The Commission seeks
comment on these views.
49. More broadly, how would dynamic spectrum sharing affect
existing services? Would it reduce the incentives of existing operators
to invest in deployment? During the period in which a sharing
technology was developed, would it prevent the band from being put to
its most productive use? Or would it facilitate new investment and
innovation in this band?
50. Opportunistic Use of the Band. Are there other approaches the
Commission could adopt to enable operation of opportunistic use of the
12 GHz band? What technical and operational rules would be needed to
ensure such systems do not cause harmful interference to incumbent
systems? Considering the spectral needs of DBS, MVDDS, NGSO FSS, would
there be usable spectrum in enough geographic areas to allow for more
than de minimis opportunistic use? Would there be enough interest in
such use to spur equipment manufacturing? Commenters that believe there
is a potential approach should specifically address the potential value
created through sharing and costs of the proposed solution.
51. DSA argues that the Commission could promote far more intensive
use of the band by authorizing coordinated access to vacant 12 GHz
spectrum on a secondary basis. It contends that such an approach would
``provide spectrum-as-infrastructure to fixed wireless ISPs and other
broadband network providers [that operate] in underserved'' areas,
including rural and tribal communities. DSA argues that the Commission
could adopt rules for opportunistic access to locally vacant spectrum
in the 12 GHz band that operate in much the same way as the 3.5 GHz
band rules authorize General Authorized Access (GAA) to unused PAL
spectrum. Should coordinated, shared use of the band for high-capacity
fixed wireless services be authorized on an opportunistic, unlicensed,
or licensed-by-rule basis?
52. Could the 12 GHz band support opportunistic use of unused
spectrum on a localized basis, such as for high-capacity fixed wireless
in rural and less densely populated areas? What technical and
operational rules would be needed for such usage to ensure that
incumbent services are protected from harmful interference? Would the
benefits of opportunistic use outweigh the costs, such as the
complexity it would create and the coordination burden it would place
on incumbents?
53. Could such operation be permitted based on sensing technology
or a database (such as a SAS)? What provisions would be needed under
either type of regime to prevent harmful interference to other
services?
B. Maintaining the Current Framework
54. Next, the Commission seeks comment on whether the costs of
accommodating new services in the band, including the potential for
adverse impact or additional burden on existing services, exceed the
benefits. Several commenters argue that the existing rules and services
in the band allow for intense and efficient use of this spectrum, and
that changes to the band are therefore unnecessary. For example,
SpaceX's Starlink system has commenced testing of its service in
multiple states, and SpaceX asserts it will begin commercial broadband
service to rural users by the end of 2020. SpaceX cites support from
several organizations for its Starlink system, such as the Hoh Indian
Tribe in Washington who has stated that ``because of NGSO service, the
tribe `finally has broadband, distributed to its community in only a
matter of weeks' and that the Commission should `maintain the careful
and successful balance that allows the 12 GHz frequency band to provide
this
[[Page 13277]]
service.' '' SpaceX was a winning bidder in the Rural Digital
Opportunity Fund Phase I auction, where it won $888.5 million to deploy
high-speed broadband to unserved homes and businesses over a ten-year
period. SpaceX claims that its service is capable of providing
downlink/uplink speeds of 103/42 megabits-per-second and a consistently
observed median latency of 30 milliseconds. According to SpaceX, making
changes to the band potentially could threaten its planned operations
while doing little to close the digital divide. How might this
uncertainty affect future investment in new systems, whether in 12 GHz
or in other frequency bands? What actions can the Commission take in
this proceeding to ensure that the locations successfully bid for
through the RDOF process get access to the broadband internet access
service committed to through that program? SpaceX further claims that
NGSO systems have the potential to provide low latency 5G backhaul
using 12 GHz band spectrum. Could maintaining the current framework
allow NGSO-provided backhaul to proliferate? Alternatively, would
allowing terrestrial mobile service in the band harm NGSOs' ability to
provide backhaul? If terrestrial mobile and satellite-based backhaul
services cannot both be provided in the band, then which service would
best serve the public interest?
55. AT&T has repeatedly argued that adopting the proposals of the
MVDDS 5G Coalition would not adequately protect DBS operations in the
12 GHz band, which potentially could result in ``an untenable
interference environment'' for the tens of millions of DBS subscribers
receiving programming via the 12 GHz Band. DISH, which is the other DBS
provider in the band, disagrees and contends that MVDDS 5G Coalition's
two technical studies have demonstrated that geographic separation,
transmitter power constraints on MVDDS operations, and other siting
parameters, as well as absorption due to clutter, can ensure that
interference from terrestrial base stations to DBS users would rarely,
if ever, occur. If the Commission maintains the current framework, then
NGSO FSS and Fixed Service would continue to operate on a co-primary,
non-harmful interference basis to DBS.\62\ In that case, neither DBS
nor NGSO FSS would be subjected to the uncertainty of new rules adopted
for the band. Are the potential benefits of further action to
facilitate flexible use for terrestrial services in the 12 GHz band
outweighed by the potential uncertainty and the costs caused by
granting terrestrial, flexible-use rights in this band? Should the
Commission conclude that the appropriate balance between satellite and
terrestrial use has already been struck by the framework currently in
place, such that few or no revisions to the service rules are required?
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\62\ Under the approach that the Commission adopted for NGSO FSS
and MVDDS sharing, first in-time NGSO FSS receivers and first in-
time MVDDS transmitting systems are afforded more and easier use of
the shared 12 GHz band than subsequent deployments. The Commission
concluded that such a result is equitable and consistent with the
co-primary status of NGSO FSS and MVDDS. See MVDDS Second Report &
Order, 17 FCC Rcd at 9659, para. 111; see also OneWeb Order, 32 FCC
Rcd at 5370 para. 8.
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56. As noted above, the Commission has made a substantial amount of
spectrum available for 5G services in the period since the 5G MVDDS
Coalition filed its Petition. In particular, since that time, the
Commission completed the post-auction transition of the 600 MHz band,
making 70 megahertz of low-band spectrum available for 5G. The
Commission completed three auctions of millimeter-wave spectrum,
putting nearly five gigahertz of high-band spectrum into the market. At
least one nationwide service provider has characterized this spectrum
as instrumental to its 5G deployment plans. As for mid-band spectrum,
the Commission has repurposed 480 megahertz between 3550 and 3980 MHz
and is on track to potentially repurpose an additional adjacent 100
megahertz in the 3.45 GHz band.\63\ Have intervening developments over
the past four years, including the Commission's work to make additional
spectrum resources available for 5G and the number of NGSO systems that
have been authorized to operate using 12 GHz band spectrum, counsel
against making changes to the current framework for the 12 GHz band?
The Commission values the public interest benefits that could flow from
NGSOs offering an affordable solution for delivering high-speed
internet services to communities that might be more expensive to serve
through other technologies. How should the potential public interest
benefits of those services be balanced by the Commission as it proceeds
with this rulemaking?
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\63\ Auction of Priority Access Licenses in the 3550-3650 MHz
Band Closes; Winning Bidders Announced for Auction 105, Public
Notice, 35 FCC Rcd 9287 (2020); Expanding Flexible Use in the 3.7-
4.2 GHz Band, Report and Order, Order Proposing Modification, 35 FCC
Rcd 2343 (2020), Facilitating Shared Use in the 3100-3550 MHz Band,
Report and Order and Further Notice of Proposed Rulemaking, 35 FCC
Rcd 11078 (2020).
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57. The Commission noted in the OneWeb Order, 32 FCC Rcd 5366
(2017), that NGSO FSS operators have access to other frequency bands,
``such that even if NGSO FSS systems were precluded entirely from the
12.2-12.7 GHz band,'' OneWeb would still retain a measure of
flexibility to provide its proposed services. Given the proliferation
of NGSO authorizations and ongoing deployments, the Commission seeks
comment on whether this remains the case, as well as the costs and
benefits of maintaining the current framework. Additionally, the
Commission adopted similar, though not identical, conditions in the
various NGSO authorizations for use of the 12 GHz band. The Commission
seeks comment on the various conditions included in the NGSO
authorizations and what effect (if any) these variations should have on
its analysis.
58. If the Commission maintains the current framework, should it
make any revisions to the MVDDS technical rules within the existing
regulatory framework so as to facilitate more robust terrestrial
operations without causing harmful interference to satellite operations
in the band? \64\ The Commission notes that it contemplated that MVDDS
service providers might petition for waivers of the technical rules and
that, in denying a petition for reconsideration to increase the power
limit for all MVDDS licenses, it was not prejudging whether a rationale
for higher EIRP and EPFD limits in rural areas might have some
technical merit in certain very specific circumstances. The Commission
also stated that after it gained experience with MVDDS operations, it
would entertain requests to modify the general EPFD and EIRP limits, if
such experience provided sufficient justification for such action. The
Commission invites comment on whether there are any other changes it
could adopt in revising its existing rules that would improve the
efficiency of incumbent use of the band.
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\64\ See, e.g., Wireless Telecommunications Bureau Seeks Comment
on Petitions of Seven Licensees for Waiver of Multichannel Video
Distribution and Data Service Technical Rules, WT Docket No. 15-218,
Public Notice, 30 FCC Rcd 9953 (WTB BD 2015) (petitioners seek
waivers of 47 CFR 101.113 note 11, 101.147(p), 101.1407, and
101.1411(a), to use the 12 GHz band for two-way, point-to-point
operation at an EIRP up to 55 dBm).
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III. Ordering Clauses
59. It is ordered, pursuant to the authority found in sections 1,
2, 3, 4, 5, 7, 301, 302, 303, 304, 307, 309, 310, and 316 of the
Communications Act of 1934, 47 U.S.C. 151, 152, 153, 154, 155, 157,
301, 302, 303, 304, 307, 309, 310, and
[[Page 13278]]
316, and Sec. Sec. 1.407 and 1.411 of the Commission's rules, 47 CFR
1.407, 1.411, the petition for rulemaking filed by the MVDDS 5G
Coalition, RM-11768, is granted to the extent discussed herein and
otherwise terminated, and this NPRM in the captioned docket(s) is
adopted.
60. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this NPRM, including the IRAF, to the Chief Counsel for
Advocacy of the Small Business Administration.
Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2021-04115 Filed 3-5-21; 8:45 am]
BILLING CODE 6712-01-P