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Proposed Rule2023-16167

Shared Use of the 42-42.5 GHz Band

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Published

July 31, 2023

Issuing agencies

Federal Communications Commission

Abstract

In this document, the Federal Communications Commission (Commission or FCC) seeks comment on how innovative, non-exclusive spectrum access models might be deployed in the 42 GHz band (42-42.5 GHz) to provide increased access to high-band spectrum, particularly by smaller wireless service providers, and to support efficient, intensive use of the band. The Commission also seeks comment on how potential sharing and licensing regimes might lower barriers to entry for smaller or emerging wireless service providers, encourage competition, and prevent spectrum warehousing.

Full Text

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<title>Federal Register, Volume 88 Issue 145 (Monday, July 31, 2023)</title>
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[Federal Register Volume 88, Number 145 (Monday, July 31, 2023)]
[Proposed Rules]
[Pages 49423-49433]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-16167]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 0

[WT Docket No. 23-158; GN Docket No. 14-177; FCC 23-51; FR ID 157853]

Shared Use of the 42-42.5 GHz Band

AGENCY: Federal Communications Commission.

ACTION: Proposed rule; solicitation of comment.

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SUMMARY: In this document, the Federal Communications Commission
(Commission or FCC) seeks comment on how innovative, non-exclusive
spectrum access models might be deployed in the 42 GHz band (42-42.5
GHz) to provide increased access to high-band spectrum, particularly by
smaller wireless service providers, and to support efficient, intensive
use of the band. The Commission also seeks comment on how potential
sharing and licensing regimes might lower barriers to entry for smaller
or emerging wireless service providers, encourage competition, and
prevent spectrum warehousing.

DATES: Comments are due on or before August 30, 2023; reply comments
are due on or before September 29, 2023. Written comments on the
Paperwork Reduction Act proposed information collection requirements
must be submitted by the public, the Office of Management and Budget
(OMB), and other interested parties on or before September 29, 2023.
Written comments on the Initial Regulatory Flexibility Analysis (IRFA)
in this document must have a separate and distinct heading designating
them as responses to the IRFA and must be submitted by the public on or
before August 30, 2023.

ADDRESSES: Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's
rules (47 CFR 1.415, 1.419), interested parties may file comments and
reply comments on or before the dates indicated on the first

[[Page 49424]]

page of this document. Comments may be filed using the Commission's
Electronic Comment Filing System (ECFS). See Electronic Filing of
Documents in Rulemaking Proceedings, 63 FR 24121 (1998). You may submit
comments, identified by WT Docket No. 23-158; and GN Docket 14-177, by
any of the following methods:
<bullet> Electronic Filers: Comments may be filed electronically
using the internet by accessing the ECFS: <a href="http://apps.fcc.gov/ecfs/">http://apps.fcc.gov/ecfs/</a>.
<bullet> Paper Filers:
<bullet> Parties who choose to file by paper must file an original
and one copy of each filing.
<bullet> Filings can be sent by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mall. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
<bullet> 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.
<bullet> U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 45 L Street NE, Washington, DC 20554.
<bullet> 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 and safety
of individuals, and to mitigate the transmission of COVID-19. See FCC
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). <a href="https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy">https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy</a>.
People with Disabilities: To request materials in accessible
formats (braille, large print, computer diskettes, or audio
recordings), please send an email to <a href="/cdn-cgi/l/email-protection#5e181d1d6b6e6a1e383d3d70393128"><span class="__cf_email__" data-cfemail="a5e3e6e6909591e5c3c6c68bc2cad3">[email&#160;protected]</span></a> or call the
Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202)
418-0432 (TTY).

FOR FURTHER INFORMATION CONTACT: Catherine Schroeder of the Wireless
Telecommunications Bureau, Broadband Division, at
<a href="/cdn-cgi/l/email-protection#cb88aabfa3aeb9a2a5aee598a8a3b9a4aeafaeb98bada8a8e5aca4bd"><span class="__cf_email__" data-cfemail="6c2f0d1804091e050209423f0f041e030908091e2c0a0f0f420b031a">[email&#160;protected]</span></a> or 202-418-1956. For additional information
concerning the Paperwork Reduction Act proposed information
requirements contained in this document, send an email to <a href="/cdn-cgi/l/email-protection#20707261604643430e474f56"><span class="__cf_email__" data-cfemail="73232132331510105d141c05">[email&#160;protected]</span></a>
or contact Kathy Williams at (202) 418-2918.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM) in WT Docket No. 23-158 and GN Docket No.
14-177; FCC 23-51, adopted on June 8, 2023, and released on June 9,
2023. The full text of this document is available at <a href="https://docs.fcc.gov/public/attachments/FCC-23-51A1.pdf">https://docs.fcc.gov/public/attachments/FCC-23-51A1.pdf</a>.
Regulatory Flexibility Act: The Regulatory Flexibility Act of 1980,
as amended (RFA), requires an agency to prepare a regulatory
flexibility analysis for notice-and-comment rulemakings, unless the
agency certifies that ``the rule will not, if promulgated, have a
significant economic impact on a substantial number of small
entities.'' The Commission seeks comment on potential rule and policy
changes contained in the NPRM, and accordingly, has prepared an IRFA.
The IRFA for this NPRM in WT Docket No. 23-158 and GN Docket No. 14-177
is set forth below in this document and written public comments are
requested. Comments must be filed by the deadlines for comments on the
NPRM indicated under the DATES section of this document and must have a
separate and distinct heading designating them as responses to the
IRFA. The Commission reminds commenters to file in the appropriate
dockets: WT Docket No. 23-158 and GN Docket No. 14-177.
Paperwork Reduction Act: This document may contain proposed
modified 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 comments on how it
might further reduce the information collection burden for small
business concerns with fewer than 25 employees.
Ex Parte Rules: This proceeding 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. 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). 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). Participants in this
proceeding should familiarize themselves with the Commission's ex parte
rules.

Synopsis

I. Notice of Proposed Rulemaking in WT Docket No. 23-158 and GN Docket
No. 14-177

A. Background

1. As part of a multiyear effort to enable deployment of advanced
wireless services such as 5G, the Commission has made 4.95 gigahertz of
spectrum above 24 GHz available on an exclusively-licensed geographic
area basis. The Commission has already established service and
licensing rules for the 24 GHz, 28 GHz, Upper 37 GHz, 39 GHz, and 47
GHz bands, all of which are available on either a county or a Partial
Economic Area (PEA) basis.\1\ The

[[Page 49425]]

Commission has held three auctions to award licenses in these bands,
the most recent of which was completed in 2020.
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\1\ See Use of Spectrum Bands Above 24 GHz For Mobile Radio
Services, et al., Report and Order and Further Notice of Proposed
Rulemaking, 31 FCC Rcd 8014, 8154, paragraph 403 (2016); Use of
Spectrum Bands Above 24 GHz For Mobile Radio Services, et al.,
Second Report and Order, Second Further Notice of Proposed
Rulemaking, Order on Reconsideration, and Memorandum Opinion and
Order, 32 FCC Rcd 10988 (2017); Use of Spectrum Bands Above 24 GHz
For Mobile Radio Services, et al., Third Report and Order,
Memorandum Opinion and Order, and Third Further Notice of Proposed
Rulemaking, 33 FCC Rcd. 5576 (2018); Use of Spectrum Bands Above 24
GHz For Mobile Radio Services, et al., Fourth Report and Order, 33
FCC Rcd 12168 (2018). See also 47 CFR 30.4, 30.5. When citing to the
Report and Order portions of the 2016 or 2018 documents, the
Commission will refer to the First R&O or Third R&O, respectively.
When citing to the Memorandum Opinion and Order portion of the 2018
document, the Commission will refer to the MO&O. When citing to the
Further Notice of Proposed Rulemaking portion of the 2016 or 2018
document, the Commission will refer to the First FNPRM or Third
FNPRM, respectively.
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2. The Commission also has made available a significant amount of
high-band spectrum for unlicensed use. The rules for unlicensed device
use at 57-64 GHz were expanded in 2016 to include 64-71 GHz, bringing
the total amount of high-band spectrum available on an unlicensed basis
to 14 gigahertz.
3. The 42 GHz band is currently allocated to non-Federal Fixed and
Mobile services on a primary basis; there is no Federal allocation in
the band.\2\ Although the Commission sought comment previously on
proposed service rules for this band among other bands above 24 GHz,
none are currently in place, and the band has no incumbent
licensees.\3\ The lower adjacent 40-42 GHz band has been designated for
satellite use. The upper adjacent 42.5-43.5 GHz band is allocated to
radio astronomy services (RAS) on a primary basis for Federal and non-
Federal use and to the Federal fixed, fixed-satellite (Earth-to-space),
and mobile--except aeronautical mobile--services on a primary basis.\4\
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\2\ 47 CFR 2.106.
\3\ Nine experimental licenses are authorized for testing using
this frequency range. Pursuant to the Commission's rules, operation
of an experimental radio station is permitted only on the condition
that harmful interference is not caused to licensees. If harmful
interference to an established radio service occurs, upon becoming
aware of such harmful interference the Experimental Radio Service
licensee must immediately cease transmissions. See 47 CFR 5.84.
\4\ 47 CFR 2.106. Footnote US211 urges applicants for airborne
or space stations assignments in the 40.5-42.5 GHz band to take all
practicable steps to protect radio astronomy observations in the
42.5-43.5 GHz band from harmful interference. 47 CFR 2.106 n.US211.
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4. The Commission previously sought comment on a proposal to
authorize flexible fixed and mobile operations in the 42 GHz band under
the new part 30 Upper Microwave Flexible Use Service (UMFUS) rules, but
only on the condition that adjacent channel RAS at 42.5-43.5 GHz could
be protected. Specifically, the Commission sought comment and detailed
information on what protections should be established for this adjacent
band--for example, whether out-of-band emission limits into the 42.5-
43.5 GHz band should be established or whether it was necessary to
create a guard band below 42.5 GHz. The Commission also sought comment
on the appropriate band plan for the 42 GHz band, including whether the
band should be licensed as a single channel, split into two channels,
or split into multiple 100 megahertz channels. The Commission proposed
licensing the band geographically using PEAs.
5. Pursuant to the directives in the MOBILE NOW Act,\5\ the
Commission later included in the Third FNPRM, 83 FR 34520 (July 20,
2018), requests for further comment on a regulatory framework to enable
licensed and/or unlicensed uses of the 42 GHz band. The Commission
received 17 comments and six reply comments to the Third FNPRM relating
to the 42 GHz band.
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\5\ MOBILE NOW Act, Public Law 115-141, Div. P, tit. VI, 132
Stat. 1097 (2018), Sec. 604(a), (b)(1), (b)(2) (codified at 47
U.S.C. 1503) (requiring the Commission to publish a Notice of
Proposed Rulemaking to consider service rules to authorize mobile or
fixed terrestrial wireless operations, including for advanced mobile
service operations, in the 42 GHz band).
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B. Shared Use of the 42-42.5 GHz Band

1. Potential Benefits of Shared Licensing
6. Millimeter wave (mmW) \6\ transmissions have a shorter
propagation range than lower-frequency spectrum and are blocked by
walls and other obstacles, making it easier to reuse the same band or
channel within a smaller geographic area. Technological advances such
as MIMO (multiple-input multiple-output) and beamforming antennas offer
additional possibilities for reuse between multiple operators. Given
that the Commission already has offered both traditionally-licensed
spectrum (on a geographic basis) and made spectrum available on a
flexible basis for unlicensed devices in the mmW bands, and that the
characteristics of mmW spectrum lend themselves to sharing and reuse,
the Commission seeks to explore how novel approaches to shared
licensing may support increased efficiency and intensity of use among a
wider range of users within this mmW spectrum.
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\6\ Generally, spectrum between 30 GHz and 300 GHz.
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7. Unlike many other mmW bands, the 42 GHz band has no existing
operations, either federal or non-federal.\7\ This ``greenfield''
spectrum gives the Commission greater flexibility in designing a shared
licensing scheme that may be optimized for future use and can take
advantage of new developments in technology more easily than a band
with existing deployments. The Commission therefore believes that
consideration of alternatives to exclusive geographic area licensing in
the 42 GHz band is appropriate.
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\7\ As of March 31, 2023, nine experimental licenses are
authorized for testing using this frequency range; however, as noted
above, these licenses are issued on a noninterference basis. See 47
CFR 5.84.
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8. Although the Commission has previously sought comment on
licensing the 42 GHz band on the same geographic area basis as the
UMFUS bands such as the 37/39 GHz bands,\8\ those two ranges are
separated by the 40-42 GHz satellite-only band. This separation means
that there appear to be fewer potential synergies to using the same
licensing approach in both bands than if the two could be combined into
a single continuous band.
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\8\ Some commenters supported this approach.
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9. The benefits of potential unlicensed use of the 42 GHz band also
appear to be limited. No commenter previously supported making this
band available on an unlicensed basis, and de Vries suggested that
unlicensed use of the band would not provide adequate protection
against harmful interference. This latter point is significant given
the importance of protecting RAS operations in the adjacent 42.5-43.5
GHz band. Harmful interference from unlicensed devices would likely be
more difficult to resolve, given the additional difficulty relative to
licensed operations of identifying the specific interferer.
10. In light of these considerations, the Commission seeks comment
on applying a shared approach to the 42 GHz band. The Commission asks
commenters to enumerate the benefits or drawbacks of this approach, as
compared with either an exclusive-use licensed \9\ or unlicensed
approach.
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\9\ The Commission notes that it has already established a
record on an exclusive-use licensed approach for the 42 GHz band.
See Third FNPRM, 33 FCC Rcd at 5599, paragraph 54.
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2. Shared Licensing Approaches
11. In this section, the Commission discusses a variety of
potential approaches to licensing the 42 GHz band on a shared basis.
These approaches may have different costs and benefits in different
situations, and some may facilitate certain uses better than others.
The Commission seeks comment on these approaches and on any
alternatives that might better promote its goals of more efficient
spectrum use and lower barriers to spectrum access compared with
traditional exclusive-use licensing in this band.
12. Nationwide non-exclusive licensing. Under this approach,

[[Page 49426]]

currently in use in the 70/80/90 GHz bands, operators would first
obtain a nationwide non-exclusive license from the Commission, and then
coordinate specific deployment sites with a third-party database. This
approach would likely require advance work in identifying and setting
up a database administrator but could facilitate quick and efficient
site registration once established. OTI, focusing on point-to-
multipoint service, supports this licensing regime for the 42 GHz band
(as well as for the Lower 37 GHz band), and it argues that such a
system would reduce costs and facilitate entry and coexistence between
licensees. Charter also supports this approach for the Lower 37 GHz
band, in order to promote greater efficiency.
13. The Commission seeks comment on the potential use of this
nationwide non-exclusive licensing approach for the 42 GHz band. Would
this model best facilitate efficient use of this spectrum? Would it
lower barriers to entry as compared with either traditional exclusive-
use licensing, or the other shared licensing approaches discussed in
this NPRM? Commenters advocating such an approach should also provide
information regarding any limitations that should be placed on users.
For example, should all licensees operating in a common area have
access to the full 500 megahertz or only a portion to preserve the
ability of other licensees to operate in that same area? Should there
be limitations on the size of a service area that could be registered
with a database to promote coexistence and enable access by other
licensees? Should the Commission simply make the band available and
require licensees to cooperate in the selection and use of frequencies
in the band? What are the costs and benefits of taking this approach?
The Commission notes that OTI's proposal focuses on fixed point-to-
multipoint service. Would it be possible to use this approach to
license mobile service as well? What would be the costs or obstacles
associated with identifying and establishing a database administrator?
The Commission seeks comment on these issues and any other
considerations involved with a nationwide non-exclusive model for this
band.
14. Site-based licensing. Alternatively, the Commission could
license the 42 GHz band on a site-by-site basis directly, without the
use of a nationwide non-exclusive license regime or a third-party
database. This approach might provide greater transparency than the use
of third-party databases, because information for each licensed site--
including, for example, construction notifications demonstrating
whether buildout requirements have been met--would be publicly
available in the Commission's Universal Licensing System (ULS). This
would also allow the Commission to be more responsive to potential
disputes, and facilitate easier administration and enforcement of
buildout requirements, without needing to communicate with the third-
party database manager as part of this process.
15. The Commission seeks comment on a potential site-based
licensing approach in this context. Would licensing each individual
site directly be overly burdensome on licensees? Would adopting a site-
based licensing approach facilitate the easier enforcement of buildout
requirements as compared to using a third party database registrar, and
therefore contribute to greater efficiency and less warehousing of this
spectrum? To what extent would the lack of a third-party database
administrator result in logistical hurdles that might increase costs or
decrease efficiency of licensees' operations, or would it be a benefit
to have license issues addressed directly with the Commission? Would
prospective licensees be able to access this spectrum more quickly and
easily under a third-party database approach, versus licensing each
site with the Commission? Would there be additional or different
technical or operational rules needed under either approach, for
example specific rules for resolving coexistence issues under site-
based licensing versus relying on the database for this purpose in a
third-party registration approach? The Commission seeks comment on
these and any other considerations relating to this licensing model.
16. Technology-based sensing. In the context of the Lower 37 GHz
band, Qualcomm proposes that the Commission adopt a technology-based
long-term sensing mechanism for mmW spectrum. Qualcomm suggests that
this approach would allow ``multiple licensees each using any air
interface, to share on a licensed basis the entire . . . band in the
same location, on the same frequencies, and at the same time, by taking
advantage of the highly directional nature of mmW communications.''
\10\ This proposal, which describes technology-based sensing using a
geographic area licensing regime, would require that licensees
coordinate among themselves a measurement window during which all
licensees (except for a priority user in each channel) cease
transmissions for a given time period in order to use long-term sensing
to detect any active receivers, and then transmit afterwards only in
directions where no such receivers are detected. Qualcomm suggests
that, if properly implemented, this system would provide priority
licensees with more reliable protection than other sensing-based
systems such as Listen Before Talk, and would also allow indoor
operation across the entire band without disrupting priority or outdoor
operations, and without requiring a database.
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\10\ Letter from John W. Kuzin, Vice President, Qualcomm, to
Marlene H. Dortch, Secretary, FCC, GN Docket 14-177 et al., at 1
(filed Mar. 18, 2022) (emphasis removed). See also Letter from John
W. Kuzin, Vice President, Qualcomm, to Marlene H. Dortch, Secretary,
FCC, GN Docket 14-177 et al., at 2 (filed Oct. 2, 2021).
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17. The Commission seeks comment on applying this potential
approach to the 42 GHz band, and the attendant costs and benefits of
adopting a technology-based sensing framework. Because Qualcomm
designed this proposal for the Lower 37 GHz band, are there changes
that would need to be made to make it suitable for the 42 GHz band? For
example, would this proposal be viable without a priority user in a
given channel? Similarly, given that Qualcomm's proposal demonstrates
how technology-based sensing operates using geographic license areas,
would adjustments need to be made to the proposal for a different type
of licensing regime? Further, would the measurement and sensing
requirements mean that users of the 42 GHz band could not take
advantage of the equipment ecosystems of existing millimeter-wave
bands? If so, would it increase equipment costs or increase barriers to
entry for smaller or emerging operators? Are there other long-term
sensing systems that should be considered? The Commission seeks comment
on what steps the Commission or industry should take to ensure that, if
adopted, any technology-based sensing protocols are non-proprietary/
open-source or widely available to maximize use and drive innovation.
The Commission seeks comment on these and any other considerations for
this approach.
18. Coordination mechanism. The Commission assumes that any shared
licensing regime will require a coordination mechanism to protect all
licensees from harmful interference. Examples of potential coordination
mechanisms include the third-party database queries used in 70/80/90
GHz, the Spectrum Access Systems (SAS) used in the Citizens Broadband
Radio Service to manage access to spectrum by different classes of
licensed users in the 3550-3700 MHz band, the Automated

[[Page 49427]]

Frequency Coordination (AFC) system recently established in 6 GHz to
facilitate coexistence of unlicensed devices with incumbent operations
and radio astronomy observatories, and equipment-based long-term
sensing like the approach proposed by Qualcomm for the Lower 37 GHz
band. The Commission seeks comment on these and other potential
coordination mechanisms. What are the costs and benefits of each model?
Which model would work best for each potential licensing regime? Are
there concerns specific to the 42 GHz band that might recommend one
coordination mechanism over another?
19. Other Considerations. The Commission seeks general comment on
the sharing and licensing mechanisms described above, as applied to the
42 GHz band. Which model would be most conducive to the intensive and
efficient use of this spectrum? Which model would yield the greatest
benefits, at the least cost? What are the potential barriers to
deployment, operation, or equipment availability under each model? The
Commission also seeks comment on which types of services might be
accommodated by these shared licensing regimes. OTI suggests the
Commission also allow for point-to-multipoint service in this context.
Would it be possible to accommodate both point-to-point and point-to-
multipoint services in the 42 GHz band? Would it also be possible to
accommodate mobile service? Are there specific licensing or sharing
mechanisms that would better facilitate multiple services in the band?
Are there specific technical or licensing requirements or coordination
mechanisms that would better facilitate the inclusion of mobile
service?
20. The Commission seeks comment on whether first-in-time
protections \11\ are necessary or appropriate for each of the shared
licensing regimes discussed above, and if so, what form they should
take. Charter argues that the use of time division duplex (TDD)
synchronization would enable multiple operators to coexist in exactly
the same area. Would requiring TDD synchronization be sufficient to
enable such reuse? If so, would such a system render first-in-time
protections moot? To what extent would the certainty provided by a
first-in-time guarantee be necessary to encourage deployment in this
band? Would the lack of such a guarantee deter investment by potential
licensees? Do the answers to these questions depend on which shared
licensing regime the Commission adopts? Are there licensing mechanisms
(such as technology-based sensing) for which a first-in-time guarantee
would be unnecessary, or more burdensome than beneficial? If the
Commission does not adopt first-in-time protections, what other
mechanisms might resolve situations of congestion or harmful
interference in a particular area? The Commission seeks general comment
on this issue, including on any other potential costs or benefits not
mentioned here.
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\11\ The Commission could, for example adopt a first-come-first-
served licensing or registration scheme in which the first actual
users that are licensed/registered have a right to interference
protection (provided they deploy their systems within the requisite
time period), but they have no right to exclude other users.
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21. The Commission also seeks comment on the appropriate
coordination requirements for site-based licensing or site-based
registration (in conjunction with a nationwide license), should the
Commission adopt it. OTI suggests that site-based licensing (or
registration) should require coordination not only on a site-by-site
basis, but on a sector-by-sector basis, to increase spectrum reuse,
avoid warehousing, and encourage competition. Would this level of
specificity be feasible from a deployment perspective? Would it be
unduly burdensome on licensees who might wish to license or register
multiple sectors at the same site? How prevalent are deployment
scenarios in which operators use only a subset of sectors? Would access
to one sector (or some subset of a full arc) at a particular site
provide smaller or later-deploying operators with a greater opportunity
to deploy alongside other licensees? If the Commission does incorporate
sector-level licensing or registration, what would the appropriate
sector size be? Is it 30-degree sectors, as OTI suggests? Should the
Commission allow licensees or registrants to specify a sector size when
applying or registering? If sector-based licensing is not appropriate
in the 42 GHz band, is there some other way of licensing or registering
sites that might facilitate greater spectrum reuse while still
providing licensees with adequate spectrum access?
22. The Commission also seeks comment on whether there would be any
potential synergies in the instant context with approaches being
considered for the Lower 37 GHz (37-37.6 GHz) band. In 2016, the
Commission adopted rules to permit fixed and mobile terrestrial
operation across the 37 GHz band (37-38.6 GHz) and made the Lower 37
GHz band available for coordinated co-primary sharing between Federal
and non-Federal users, with the non-Federal users licensed by rule. The
Commission indicated that both Federal and non-Federal users would
access the band by registering individual sites through a coordination
mechanism and sought comment on the details of that coordination
mechanism and what functions it should perform. In 2018, the Commission
sought comment on several specific proposals for this coordination
mechanism, including first-come-first-served site-based licensing or
registration in conjunction with several different types of potential
licenses. In addition to OTI, Charter, and Qualcomm, whose proposals
are discussed above, several commenters suggest that Commission base
its rules for Lower 37 GHz on those adopted for the 70/80 GHz bands.
The Commission seeks comment on whether it should adopt a shared
licensing approach for the 42 GHz band that mirrors the Commission's
approach to the Lower 37 GHz band. What would be the benefits or costs
to doing so? Are there other ways to leverage the potential of these
bands together? The Commission notes that unlike the 42 GHz band, the
Lower 37 GHz band must accommodate sharing and coordination between
Federal and non-Federal users.
23. Finally, the Commission also seeks comment on any other model
or mechanism for non-exclusive licensing not discussed here which may
be better suited for the 42 GHz band, or any other relevant
considerations for these or other shared licensing regimes. Commenters
suggesting alternative approaches should do so with as much specificity
as possible, including discussing the potential costs and benefits of
their proposed option as compared with the approaches above and either
an exclusive-use licensed or unlicensed approach. The Commission also
seeks comment on whether it could enable secondary operations in the 42
GHz band, while still ensuring primary licensees protection from
harmful interference.
3. Buildout Requirements
24. In traditional exclusive-use geographic area licensing regimes,
the Commission typically sets buildout requirements in terms of service
coverage of a given percentage of the population of the license area.
For licensing regimes not tied to a particular license area, or where a
license area is shared among multiple licensees, however, this metric
may not be suitable or feasible. The Commission's overarching goal is
to adopt a buildout metric that ensures in each circumstance that
spectrum is meaningfully being put to use in practice. To this end, the
Commission

[[Page 49428]]

seeks comment on the appropriate buildout requirements for potential
licensees under the various approaches described above.
25. One buildout approach could be to require licensees to begin
operations within a specified time. OTI has proposed that an
appropriate timeframe would be 12 months or less from site
registration, after which a licensee would lose any first-in-time
protections for that site. The Commission seeks comment on this
proposal, including any alternative timeframes. The Commission also
seeks comment on whether this approach would be better suited to
certain sharing and licensing regimes, and, conversely, whether it
might be unsuitable or inapplicable to certain others. Recognizing that
the Commission seeks comment above on whether it should adopt first-in-
time protections for this band, if the Commission ultimately do not
adopt such protections as part of the shared licensing regime here,
what other consequence for failing to meet a build-out deadline might
be appropriate? Would any consequence for failure to build out in a
timely manner be necessary in such circumstances?
26. The Commission also seeks general comment on the appropriate
buildout metrics for potential technology-based sharing regimes. If the
Commission ultimately adopts a sharing mechanism where the equipment
itself determines access to spectrum, should it impose any buildout
requirement at all, or is the inherently non-exclusive nature of such a
regime sufficient to ensure efficient use and prevent spectrum
warehousing? The Commission seeks comment on these and any other
considerations for buildout requirements under sharing regimes based on
technology-based long-term sensing, including any potential solutions
not discussed here.
27. The Commission also seeks comment on any other potential
buildout requirement metrics or levels suitable for the sharing
mechanisms discussed in this NPRM. Additionally, to the extent that
commenters have suggestions for other potential sharing or licensing
mechanisms, the Commission encourages them to include suggestions for
corresponding buildout requirements, or other methods of ensuring
efficient spectrum use and preventing spectrum warehousing.
4. License Term and Applicability of Part 30 Technical Rules
28. The Commission previously sought comment on licensing the 42
GHz band under the part 30 UMFUS licensing and technical rules.
Although the Commission is not proposing to adopt an exclusive-use
licensing regime, it does propose to adopt a ten-year license term for
licenses in this band, similar to other part 30 services. The
Commission seeks comment on this proposal, and ask whether there are
additional considerations in adopting a ten-year license term under a
shared licensing approach.
29. The mmW bands the Commission has previously licensed are all
governed by the technical rules found in part 30.\12\ This uniform
treatment facilitates development of a common equipment ecosystem and
easier operator deployment, and is supported generally in the
underlying record in this proceeding.\13\ Inclusion in this uniform
technical regime might allow these benefits to also accrue to the 42
GHz band. If this band is made available under a licensing scheme
significantly different from the other part 30 bands, however, it is
possible that those benefits might be diminished, or costs or other
inefficiencies incurred.
---------------------------------------------------------------------------

\12\ 47 CFR 30.201 through 209.
\13\ No commenters oppose the inclusion of 42 GHz in these
technical rules, or suggest specific variations.
---------------------------------------------------------------------------

30. The Commission seeks comment on the applicability of the part
30 technical rules to the 42 GHz band as licensed under the various
potential sharing regimes outlined above. Should the Commission apply
these existing technical rules for the 42 GHz band, regardless of the
licensing regime it ultimately adopts? Are there changes to the
technical rules might be appropriate or necessary to accommodate shared
licensing? Are there different costs or benefits that may be associated
with the existing part 30 technical rules in this context, which the
Commission has not previously considered?
5. Band Plan
31. In the Third FNPRM, the Commission proposed to license the 42
GHz band as five 100 megahertz channels. Most commenters supported the
Commission's proposal. They noted that a 100 megahertz channel is a
building block for mmW mobile equipment, and that this channel size is
consistent with 3rd Generation Partnership Project (``3GPP'') standards
in the mmW bands. Several commenters also asserted that 100 megahertz
block sizes would facilitate the deployment of 5G services. A few
commenters advocated using 200 MHz channels. For example, TIA argues
that wider channels will better support 5G services.\14\ In response to
the First FNPRM, 81 FR 58269 (August 24, 2016), Qualcomm also supported
a band plan with two 200 megahertz channels.
---------------------------------------------------------------------------

\14\ TIA addressed this issue in its comments to a separate
Further Notice, 83 FR 42089 (Aug. 20, 2018). See Use of Spectrum
Bands Above 24 GHz For Mobile Radio Services, GN Docket 14-177,
Fourth Further Notice of Proposed Rulemaking, 33 FCC Rcd 7674 (2018)
(Fourth FNPRM). See TIA Fourth FNPRM Comments at 5-6, Table 1, 11.
---------------------------------------------------------------------------

32. The Commission again proposes to license the 42 GHz band in
five 100 megahertz channels and seeks comment on this proposal in the
context of the new proposals under consideration here. Would the
benefits previously noted by commenters supportive of 100 megahertz
channels still apply under the sharing regimes discussed above? Would
the increased flexibility of a non-exclusive licensing regime benefit
more from 100 megahertz channels, or from another channel size? Are
there particular sharing or licensing regimes that would benefit most
from a different channel size?
6. Protecting RAS Services at 42.5-43.5 GHz
33. As noted above, in the First FNPRM, the Commission proposed to
authorize flexible mobile and fixed operations in the 42 GHz band,
provided that RAS could be protected in the adjacent 42.5-43.5 GHz
band.\15\ The Commission sought comment on the forms that such
protection should take, e.g., whether it should establish special out-
of-band emission (OOBE) limits into the 42.5-43.5 GHz band or create a
guard band below 42.5 GHz. After noting the National Academy of
Sciences' Committee on Radio Frequencies (CORF) and T-Mobile's
agreement that RAS bands could be protected by limiting UMFUS
operations near an RAS observatory, the Commission renewed its call in
the Third FNPRM for interested parties to provide detailed technical
analysis of the coexistence of RAS with terrestrial mobile operations
that fully supported any proposed methodology. Specifically, the
Commission asked whether its rules should be based on the International
Telecommunication Union Radiocommunication Sector (ITU-R) RA.769
parameters, or alternate protection criteria, and sought comment on
whether to establish coordination zones around relevant RAS facilities.
---------------------------------------------------------------------------

\15\ The adjacent band, 42.5-43.5 GHz, is allocated for Federal
and non-Federal RAS operations and Federal fixed, earth-to-space
satellite and mobile services. 47 CFR 2.106.
---------------------------------------------------------------------------

34. CORF has asserted that frequency lines at 42.519, 42.821,
43.122, and 43.424 GHz are of the greatest importance for the detection
of strong silicon monoxide maser emissions from stars and star forming
regions, which

[[Page 49429]]

facilitates the measurement of stellar temperature, density, wind
velocity and other parameters. The 42 GHz band also is one of the
preferred bands for measuring continuum observations. RAS observations
are currently made at a limited set of observatories around the United
States.\16\ Additionally, according to a report by the National Academy
of Sciences, Engineering, and Medicine, the Next Generation Very Large
Array (ngVLA) is a top priority for U.S. astronomy in the coming decade
and would include new sites predominantly near the current VLA, but
also throughout New Mexico and adjacent states with long baseline
stations in close proximity to existing VLBA stations. Because a
typical radio telescope receives less than 1 percent of one-billionth
of one-billionth of a watt (10<SUP>-</SUP>\20\ W) from a typical cosmic
object, the telescope is particularly vulnerable to in-band emissions,
spurious out-of-band emissions, and emissions producing harmonics,
making protection important. CORF has represented that the detrimental
levels for continuum and spectral line radio astronomy observations for
single dishes are -227 dBW/m\2\/Hz and -210 dBW/m\2\/Hz, respectively,
for the average across the full 1 gigahertz of the 42.5-43.5 GHz band
and the peak level in any single 500 kHz channel, as based upon ITU-R
RA.769, Tables 1 and 2, respectively. For observations using the entire
VLBA, CORF represented that the corresponding limit is -175 dBW/m\2\/
Hz). T-Mobile agreed that the ITU power flux density (PFD) limits are
appropriate to address potential interference to RAS.
---------------------------------------------------------------------------

\16\ RAS observations in this band are currently made at various
U.S. observatories: Green Bank Telescope (GBT), WV; VLA Socorro, NM;
Westford, MA (Haystack); Brewster, WA; Fort Davis, TX; Hancock, NH;
Kitt Peak, AZ; Los Alamos, NM; Mauna Kea, HI; North Liberty, IA;
Owens Valley, CA; Pie Town, NM; St. Croix, VI. CORF FNPRM Comments
at 9 & n.7 (citing 47 CFR 2.106, n.US131).
---------------------------------------------------------------------------

35. Proponents of using the 42 GHz band for flexible terrestrial
wireless use have generally agreed that various practical methods may
be effective at protecting RAS, including use of exclusion zones,
coordination zones, and aggregate emissions limits--particularly
because RAS sites are remotely located. None provide detailed
information or examples showing how these proposed methods would work
in practice.\17\ Regarding whether it is necessary or appropriate to
establish a guard band below 42.5 GHz in order to protect RAS, CORF
stated that a guard band of 200 MHz within the radio horizon around
radio astronomy sites would meet the ITU-R RA.769 protection criteria.
T-Mobile argued that a guard band is unnecessary and the ITU protection
threshold can be met with minimum exclusion distances. In response to
the First FNPRM, some commenters asserted that a guard band would
narrow the usable aspects of the 42 GHz band.\18\ TIA argued it should
be possible to craft UMFUS operating rules that protect adjacent RAS
services via geographic coordination or otherwise, making guard bands
unnecessary, especially since they interfere with the Commission's
channel block plans.
---------------------------------------------------------------------------

\17\ Although they provide no new studies, Nokia and others
direct the Commission to T-Mobile's RAS sharing study, produced for
the 32/47/50 GHz bands and assert this study is well-suited to also
calculating protection zones for RAS sites operating adjacent to the
42 GHz band. CORF agrees this study could be applicable for
calculating coordination distances. The Commission does not find
this study sufficient to establish coordination distances because it
is based on an analysis done with respect to different systems in
the 32 GHz band.
\18\ FWCC urges that any guard band adopted should be limited to
fixed-only operations subject to full fixed service frequency
coordination to control emissions in the direction of RAS sites.
---------------------------------------------------------------------------

36. The Commission agrees with CORF and T-Mobile that RAS bands can
probably be protected by limiting 42 GHz operations near a RAS facility
to reduce the risk of terrestrial interference. Because the Commission
believes that geographic separation of 42 GHz licensed operations and
RAS facilities will provide sufficient protection of RAS facilities, it
does not propose to impose out-of-band emissions limits on licenses in
the 42 GHz band that are tighter than out-of-band-emissions limits on
UMFUS licenses in other mmW bands. Furthermore, the Commission does not
propose to establish coordination zones around RAS facilities because
it believes that compliance with the limits it proposes in this NPRM
will be sufficient to protect RAS observations. The record to date does
not contain sufficient information to determine whether, and if so, at
what distances, coordination zones would be appropriate, but the
Commission invites the submission of such information from commenters.
37. The Commission proposes to require 42 GHz licensees to limit
emissions into the 42.5-43.5 GHz passive band at those relatively few
locations where RAS observatories make observations in this band. The
Commission proposes to adopt the parameters established by ITU-R RA.769
as the interference protection criteria for RAS operations, as
suggested by CORF and T-Mobile. While the Commission believes that
these parameters are extremely conservative, no one has previously
submitted studies suggesting alternative criteria, and the ITU's
analysis indicates compliance with those criteria are likely to protect
the RAS facilities from harmful interference. Given that the
observatories are mostly located in remote areas and signals in this
frequency range are significantly attenuated by terrain and clutter,
the Commission expects that adopting these conservative criteria would
have only a small impact on 42 GHz licensed operations.
38. Therefore, for all 42 GHz licensees operating near designated
RAS facilities, the Commission proposes that: (1) the spectral PFD
received at the RAS sites at the Haystack Observatory (Westford, MA),
the Green Bank Telescope (Green Bank, WV) and the Very Large Array
(Socorro, NM) averaged over the entire 42.5-43.5 GHz frequency range
must not exceed -227 dBW/m\2\/Hz; (2) the spectral PFD received within
any 500 kHz channel within the 42.5-43.5 GHz frequency range for the
three sites noted above must not exceed -210 dBW/m\2\/Hz; and, (3) the
spectral PFD within the 42.5-43.5 GHz frequency range for the Very Long
Baseline Array (VLBA) Stations must not exceed -175 dBW/m\2\/Hz. The
Commission proposes to list the relevant sites in a new footnote to the
United States Table of Frequency Allocations for clarity. The
Commission believes that these limits are sufficient to protect RAS
operations in the adjacent band without establishing a guard band
within the 42 GHz band. The Commission emphasizes that its proposal to
adopt these limits is based on the specific factors present in the 42
GHz band and would not necessarily control future decisions it makes
regarding other frequency bands subject to note US342. In addition to
these requirements, the existing requirements for coordination in the
National Radio Quiet Zone will be maintained.\19\ The Commission seeks
comment on this proposal.
---------------------------------------------------------------------------

\19\ 47 CFR 1.924.
---------------------------------------------------------------------------

C. Costs and Benefits and Diversity, Equity, and Inclusion

39. The Commission invites comment generally on the costs and
benefits associated with the various approaches discussed in this NPRM.
Are there any aspects of the above issues that the Commission has not
considered? Are there any studies, efforts, or analyses that the
Commission should consider? If so, the Commission asks that commenters
identify them and explain why they should be considered.
40. Digital Equity and Inclusion. Finally, the Commission, as part
of its

[[Page 49430]]

continuing effort to advance digital equity for all,\20\ including
people of color, persons with disabilities, persons who live in rural
or Tribal areas, and others who are or have been historically
underserved, marginalized, or adversely affected by persistent poverty
or inequality, invites comment on any equity-related considerations
\21\ and any potential benefits that may be associated with the various
approaches and issues discussed herein. Specifically, the Commission
seeks comment on how the various approaches that the Commission may
consider may promote or inhibit advances in diversity, equity,
inclusion, and accessibility, as well the scope of the Commission's
relevant legal authority.
---------------------------------------------------------------------------

\20\ Section 1 of the Communications Act of 1934 as amended
provides that the FCC ``regulat[es] interstate and foreign commerce
in communication by wire and radio so as to make [such service]
available, so far as possible, to all the people of the United
States, without discrimination on the basis of race, color,
religion, national origin, or sex.'' 47 U.S.C. 151.
\21\ The term ``equity'' is used here consistent with E.O. 13985
as the consistent and systematic fair, just, and impartial treatment
of all individuals, including individuals who belong to underserved
communities that have been denied such treatment, such as Black,
Latino, and Indigenous and Native American persons, Asian Americans
and Pacific Islanders and other persons of color; members of
religious minorities; lesbian, gay, bisexual, transgender, and queer
(LGBTQ+) persons; persons with disabilities; persons who live in
rural areas; and persons otherwise adversely affected by persistent
poverty or inequality. See E.O. 13985, 86 FR 7009, E.O. on Advancing
Racial Equity and Support for Underserved Communities Through the
Federal Government (Jan. 20, 2021).
---------------------------------------------------------------------------

II. Initial Regulatory Flexibility Analysis in WT Docket No. 23-158 and
GN Docket No. 14-177

41. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA),\22\ the Commission has prepared this Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on a substantial number of small entities by the policies and rules
proposed in this NPRM. Written public comments are requested on this
IRFA. Comments must be identified as responses to the IRFA and must be
filed by the deadlines for comments in the NPRM. The Commission will
send a copy of the NPRM including this IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration (SBA).\23\ In addition,
the NPRM and IRFA (or summaries thereof) will be published in the
Federal Register.\24\
---------------------------------------------------------------------------

\22\ See 5 U.S.C. 603. The RFA, 5 U.S.C. 601 through 612, has
been amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, (SBREFA) Public Law 104-121, Title II, 110 Stat. 857
(1996).
\23\ See 5 U.S.C. 603(a).
\24\ See id.
---------------------------------------------------------------------------

A. Need for, and Objectives of, the Proposed Rules

42. In the NPRM, the Commission proposes to increase the Nation's
supply of spectrum for mobile broadband by adopting rules for fixed and
mobile services in the 42-42.5 GHz band. The Commission proposes to
license this spectrum on a shared, non-exclusive basis. This additional
spectrum for mobile use will help ensure that the speed, capacity, and
ubiquity of the nation's wireless networks keeps pace with the
skyrocketing demand for mobile service. It will also make possible new
types of services for consumers and businesses. The Commission seeks
comment on the specific types of licenses under which it should make
this spectrum available, including non-exclusive nationwide licensing,
site-based licensing, and technology-based sensing. The Commission
seeks comment in particular on what licensing models might best
facilitate entry and participation by smaller and emerging entities as
well as comments that provide options for potentially lowering barriers
to entry for smaller or emerging wireless service providers, encourage
competition, and avoid spectrum warehousing.
43. Until recently, the mmW bands were generally considered
unsuitable for mobile applications because of propagation losses at
such high frequencies and the inability of mmW signals to propagate
around obstacles. As increasing congestion has begun to fill the lower
bands and carriers have resorted to smaller and smaller microcells in
order to re-use the available spectrum, the industry is taking another
look at the mmW bands and beginning to realize that at least some of
the presumed disadvantages can be turned to advantages. For example,
short transmission paths and high propagation losses can facilitate
spectrum re-use in microcellular deployments by limiting the amount of
interference between adjacent cells. Furthermore, where longer paths
are desired, the extremely short wavelengths of mmW signals make it
feasible for very small antennas to concentrate signals into highly
focused beams with enough gain to overcome propagation losses. The
short wavelengths of mmW signals also make it possible to build multi-
element, dynamic beam-forming antennas that will be small enough to fit
into handsets--a feat that might never be possible at the lower,
longer-wavelength frequencies below 6 GHz where cell phones operate
today.

B. Legal Basis

44. The proposed action is authorized pursuant to sections 1, 2, 4,
301, 302, 303, 304, 307, 309, and 310 of the Communications Act of
1934, as amended, 47 U.S.C. 151, 152, 154, 301, 302a, 303, 304, 307,
and 309, Sec. 604 of the MOBILE NOW Act, 47 U.S.C. 1503, and Sec.
1.411 of the Commission's Rules, 47 CFR 1.411.

C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply

45. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted.\25\ The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' \26\ In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act.'' \27\ A ``small business concern'' is
one which: (1) is independently owned and operated; (2) is not dominant
in its field of operation; and (3) satisfies any additional criteria
established by the SBA.\28\
---------------------------------------------------------------------------

\25\ 5 U.S.C. 603(b)(3).
\26\ 5 U.S.C. 601(6).
\27\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small-business concern'' in the Small Business Act, 15 U.S.C.
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a
small business applies ``unless an agency, after consultation with
the Office of Advocacy of the Small Business Administration and
after opportunity for public comment, establishes one or more
definitions of such term which are appropriate to the activities of
the agency and publishes such definition(s) in the Federal
Register.''
\28\ 15 U.S.C. 632.
---------------------------------------------------------------------------

46. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. The Commission's actions, over time, may affect small
entities that are not easily categorized at present. The Commission
therefore describes here, at the outset, three broad groups of small
entities that could be directly affected herein.\29\ First, while there
are industry specific size standards for small businesses that are used
in the regulatory flexibility analysis, according to data from the
SBA's Office of Advocacy, in general a small business is an independent
business having fewer than 500 employees.\30\ These types of small
businesses represent 99.9% of all

[[Page 49431]]

businesses in the United States, which translates to 32.5 million
businesses.\31\
---------------------------------------------------------------------------

\29\ See 5 U.S.C. 601(3) through (6).
\30\ See SBA, Office of Advocacy, Frequently Asked Questions,
``What is a small business?,'' <a href="https://cdn.advocacy.sba.gov/wp-content/uploads/2021/11/03093005/Small-Business-FAQ-2021.pdf">https://cdn.advocacy.sba.gov/wp-content/uploads/2021/11/03093005/Small-Business-FAQ-2021.pdf</a>. (Nov
2021).
\31\ Id.
---------------------------------------------------------------------------

47. Next, the type of small entity described as a ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
\32\ The Internal Revenue Service (IRS) uses a revenue benchmark of
$50,000 or less to delineate its annual electronic filing requirements
for small exempt organizations.\33\ Nationwide, for tax year 2020,
there were approximately 447,689 small exempt organizations in the U.S.
reporting revenues of $50,000 or less according to the registration and
tax data for exempt organizations available from the IRS.\34\ Finally,
the small entity described as a ``small governmental jurisdiction'' is
defined generally as ``governments of cities, counties, towns,
townships, villages, school districts, or special districts, with a
population of less than fifty thousand.'' \35\ U.S. Census Bureau data
from the 2017 Census of Governments \36\ indicate there were 90,075
local governmental jurisdictions consisting of general purpose
governments and special purpose governments in the United States.\37\
Of this number, there were 36,931 general purpose governments
(county,\38\ municipal, and town or township \39\) with populations of
less than 50,000 and 12,040 special purpose governments--independent
school districts \40\ with enrollment populations of less than
50,000.\41\ Accordingly, based on the 2017 U.S. Census of Governments
data, the Commission estimates that at least 48,971 entities fall into
the category of ``small governmental jurisdictions.'' \42\
---------------------------------------------------------------------------

\32\ See 5 U.S.C. 601(4).
\33\ The IRS benchmark is similar to the population of less than
50,000 benchmark in 5 U.S.C 601(5) that is used to define a small
governmental jurisdiction. Therefore, the IRS benchmark has been
used to estimate the number of small organizations in this small
entity description. See Annual Electronic Filing Requirement for
Small Exempt Organizations--Form 990-N (e-Postcard), ``Who must
file,'' <a href="https://www.irs.gov/charities-non-profits/annual-electronic-filing-requirement-for-small-exempt-organizations-form-990-n-e-postcard">https://www.irs.gov/charities-non-profits/annual-electronic-filing-requirement-for-small-exempt-organizations-form-990-n-e-postcard</a>. The Commission notes that the IRS data does not provide
information on whether a small exempt organization is independently
owned and operated or dominant in its field.
\34\ See Exempt Organizations Business Master File Extract (E.O.
BMF), ``CSV Files by Region,'' <a href="https://www.irs.gov/charities-non-profits/exempt-organizations-business-master-file-extract-eo-bmf">https://www.irs.gov/charities-non-profits/exempt-organizations-business-master-file-extract-eo-bmf</a>.
The IRS Exempt Organization Business Master File (E.O. BMF) Extract
provides information on all registered tax-exempt/non-profit
organizations. The data utilized for purposes of this description
was extracted from the IRS E.O. BMF data for businesses for the tax
year 2020 with revenue less than or equal to $50,000 for Region 1-
Northeast Area (58,577), Region 2-Mid-Atlantic and Great Lakes Areas
(175,272), and Region 3-Gulf Coast and Pacific Coast Areas (213,840)
that includes the continental U.S., Alaska, and Hawaii. This data
does not include information for Puerto Rico.
\35\ See 5 U.S.C. 601(5).
\36\ See 13 U.S.C. 161. The Census of Governments survey is
conducted every five (5) years compiling data for years ending with
``2'' and ``7''. See also Census of Governments, <a href="https://www.census.gov/programs-surveys/cog/about.html">https://www.census.gov/programs-surveys/cog/about.html</a>.
\37\ See U.S. Census Bureau, 2017 Census of Governments--
Organization Table 2. Local Governments by Type and State: 2017
[CG1700ORG02], <a href="https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html">https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html</a>. Local governmental jurisdictions are made up
of general purpose governments (county, municipal and town or
township) and special purpose governments (special districts and
independent school districts). See also tbl.2. CG1700ORG02 Table
Notes_Local Governments by Type and State_2017.
\38\ See id. at Table 5. County Governments by Population-Size
Group and State: 2017 [CG1700ORG05], <a href="https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html">https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html</a>. There were 2,105 county
governments with populations less than 50,000. This category does
not include subcounty (municipal and township) governments.
\39\ See id. at Table 6. Subcounty General-Purpose Governments
by Population-Size Group and State: 2017 [CG1700ORG06], <a href="https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html">https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html</a>.
There were 18,729 municipal and 16,097 town and township governments
with populations less than 50,000.
\40\ See id. at Table 10. Elementary and Secondary School
Systems by Enrollment-Size Group and State: 2017 [CG1700ORG10],
<a href="https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html">https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html</a>. There were 12,040 independent school districts
with enrollment populations less than 50,000. See also Table 4.
Special-Purpose Local Governments by State Census Years 1942 to 2017
[CG1700ORG04], CG1700ORG04 Table Notes_Special Purpose Local
Governments by State_Census Years 1942 to 2017.
\41\ While the special purpose governments category also
includes local special district governments, the 2017 Census of
Governments data does not provide data aggregated based on
population size for the special purpose governments category.
Therefore, only data from independent school districts is included
in the special purpose governments category.
\42\ This total is derived from the sum of the number of general
purpose governments (county, municipal and town or township) with
populations of less than 50,000 (36,931) and the number of special
purpose governments--independent school districts with enrollment
populations of less than 50,000 (12,040), from the 2017 Census of
Governments--Organizations Tables 5, 6 & 10.
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48. Fixed Microwave Services. Fixed microwave services include
common carrier,\43\ private-operational fixed,\44\ and broadcast
auxiliary radio services.\45\ They also include the UMFUS,\46\
Millimeter Wave Service (70/80/90 GHz),\47\ Local Multipoint
Distribution Service (LMDS),\48\ the Digital Electronic Message Service
(DEMS),\49\ 24 GHz Service,\50\ Multiple Address Systems (MAS),\51\ and
Multichannel Video Distribution and Data Service (MVDDS),\52\ where in
some bands licensees can choose between common carrier and non-common
carrier status.\53\ Wireless Telecommunications Carriers (except
Satellite) \54\ is the closest industry with a SBA small business size
standard applicable to these services. The SBA small size standard for
this industry classifies a business as small if it has 1,500 or fewer
employees.\55\ U.S. Census Bureau data for 2017 show that there were
2,893 firms that operated in this industry for the entire year.\56\ Of
this number, 2,837 firms employed fewer than 250 employees.\57\ Thus
under the SBA size standard, the Commission estimates that a majority
of fixed microwave service licensees can be considered small.
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\43\ See 47 CFR part 101, subparts C and I.
\44\ See id. Subparts C and H.
\45\ Auxiliary Microwave Service is governed by part 74 of Title
47 of the Commission's Rules. See 47 CFR part 74. Available to
licensees of broadcast stations and to broadcast and cable network
entities, broadcast auxiliary microwave stations are used for
relaying broadcast television signals from the studio to the
transmitter, or between two points such as a main studio and an
auxiliary studio. The service also includes mobile TV pickups, which
relay signals from a remote location back to the studio.
\46\ See 47 CFR part 30.
\47\ See 47 CFR part 101, subpart Q.
\48\ See id. Subpart L.
\49\ See id. Subpart G.
\50\ See id.
\51\ See id. Subpart O.
\52\ See id. Subpart P.
\53\ See 47 CFR 101.533 and 101.1017.
\54\ See U.S. Census Bureau, 2017 NAICS Definition, ``517312
Wireless Telecommunications Carriers (except Satellite),'' <a href="https://www.census.gov/naics/?input=517312&year=2017&details=517312">https://www.census.gov/naics/?input=517312&year=2017&details=517312</a>.
\55\ See 13 CFR 121.201, NAICS Code 517312 (as of 10/1/22, NAICS
Code 517112).
\56\ See U.S. Census Bureau, 2017 Economic Census of the United
States, Employment Size of Firms for the U.S.: 2017, Table ID:
EC1700SIZEEMPFIRM, NAICS Code 517312, <a href="https://data.census.gov/cedsci/table?y=2017&n=517312&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false">https://data.census.gov/cedsci/table?y=2017&n=517312&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false</a>.
\57\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard.
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49. The Commission's small business size standards with respect to
fixed microwave services involve eligibility for bidding credits and
installment payments in the auction of licenses for the various
frequency bands included in fixed microwave services. When bidding
credits are adopted for the auction of licenses in fixed microwave
services frequency bands, such credits may be available to several
types of small businesses based average gross revenues (small, very
small and entrepreneur) pursuant to the competitive bidding rules
adopted in conjunction with the requirements for the auction and/or as
identified in part 101 of the Commission's rules for the

[[Page 49432]]

specific fixed microwave services frequency bands.\58\
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\58\ See 47 CFR 101.538(a)(1) through (3), 101.1112(b) through
(d), 101.1319(a)(1) through (2), and 101.1429(a)(1) through (3).
---------------------------------------------------------------------------

50. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time the Commission is not
able to estimate the number of licensees with active licenses that
would qualify as small under the SBA's small business size standard.
51. Radio and Television Broadcasting and Wireless Communications
Equipment Manufacturing. This industry comprises establishments
primarily engaged in manufacturing radio and television broadcast and
wireless communications equipment.\59\ Examples of products made by
these establishments are: transmitting and receiving antennas, cable
television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and
broadcasting equipment.\60\ The SBA small business size standard for
this industry classifies businesses having 1,250 employees or less as
small.\61\ U.S. Census Bureau data for 2017 show that there were 656
firms in this industry that operated for the entire year.\62\ Of this
number, 624 firms had fewer than 250 employees.\63\ Thus, under the SBA
size standard, the majority of firms in this industry can be considered
small.
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\59\ See U.S. Census Bureau, 2017 NAICS Definition, ``334220
Radio and Television Broadcasting and Wireless Communications
Equipment Manufacturing,'' <a href="https://www.census.gov/naics/?input=334220&year=2017&details=334220">https://www.census.gov/naics/?input=334220&year=2017&details=334220</a>.
\60\ Id.
\61\ See 13 CFR 121.201, NAICS Code 334220.
\62\ See U.S. Census Bureau, 2017 Economic Census of the United
States, Employment Size of Firms for the U.S.: 2017, Table ID:
EC1700SIZEEMPFIRM, NAICS Code 334220, <a href="https://data.census.gov/cedsci/table?y=2017&n=334220&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false">https://data.census.gov/cedsci/table?y=2017&n=334220&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false</a>.
\63\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard.
---------------------------------------------------------------------------

52. Satellite Telecommunications. This industry comprises firms
``primarily engaged in providing telecommunications services to other
establishments in the telecommunications and broadcasting industries by
forwarding and receiving communications signals via a system of
satellites or reselling satellite telecommunications.'' \64\ Satellite
telecommunications service providers include satellite and earth
station operators. The SBA small business size standard for this
industry classifies a business with $38.5 million or less in annual
receipts as small.\65\ U.S. Census Bureau data for 2017 show that 275
firms in this industry operated for the entire year.\66\ Of this
number, 242 firms had revenue of less than $25 million.\67\
Additionally, based on Commission data in the 2021 Universal Service
Monitoring Report, as of December 31, 2020, there were 71 providers
that reported they were engaged in the provision of satellite
telecommunications services.\68\ Of these providers, the Commission
estimates that approximately 48 providers have 1,500 or fewer
employees.\69\ Consequently, using the SBA's small business size
standard, a little more than half of these providers can be considered
small entities.
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\64\ See U.S. Census Bureau, 2017 NAICS Definition, ``517410
Satellite Telecommunications,'' <a href="https://www.census.gov/naics/?input=517410&year=2017&details=517410">https://www.census.gov/naics/?input=517410&year=2017&details=517410</a>.
\65\ See 13 CFR 121.201, NAICS Code 517410.
\66\ See U.S. Census Bureau, 2017 Economic Census of the United
States, Selected Sectors: Sales, Value of Shipments, or Revenue Size
of Firms for the U.S.: 2017, Table ID: EC1700SIZEREVFIRM, NAICS Code
517410, <a href="https://data.census.gov/cedsci/table?y=2017&n=517410&tid=ECNSIZE2017.EC1700SIZEREVFIRM&hidePreview=false">https://data.census.gov/cedsci/table?y=2017&n=517410&tid=ECNSIZE2017.EC1700SIZEREVFIRM&hidePreview=false</a>.
\67\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard. The Commission also notes that according to the U.S.
Census Bureau glossary, the terms receipts and revenues are used
interchangeably, see <a href="https://www.census.gov/glossary/#term_ReceiptsRevenueServices">https://www.census.gov/glossary/#term_ReceiptsRevenueServices</a>.
\68\ Federal-State Joint Board on Universal Service, Universal
Service Monitoring Report at 26, Table 1.12 (2021), <a href="https://docs.fcc.gov/public/attachments/DOC-379181A1.pdf">https://docs.fcc.gov/public/attachments/DOC-379181A1.pdf</a>.
\69\ Id.
---------------------------------------------------------------------------

53. Wireless Telecommunications Carriers (except Satellite). This
industry comprises establishments engaged in operating and maintaining
switching and transmission facilities to provide communications via the
airwaves.\70\ Establishments in this industry have spectrum licenses
and provide services using that spectrum, such as cellular services,
paging services, wireless internet access, and wireless video
services.\71\ The SBA size standard for this industry classifies a
business as small if it has 1,500 or fewer employees.\72\ U.S. Census
Bureau data for 2017 show that there were 2,893 firms in this industry
that operated for the entire year.\73\ Of that number, 2,837 firms
employed fewer than 250 employees.\74\ Additionally, based on
Commission data in the 2021 Universal Service Monitoring Report, as of
December 31, 2020, there were 797 providers that reported they were
engaged in the provision of wireless services.\75\ Of these providers,
the Commission estimates that 715 providers have 1,500 or fewer
employees.\76\ Consequently, using the SBA's small business size
standard, most of these providers can be considered small entities.
---------------------------------------------------------------------------

\70\ See U.S. Census Bureau, 2017 NAICS Definition, ``517312
Wireless Telecommunications Carriers (except Satellite),'' <a href="https://www.census.gov/naics/?input=517312&year=2017&details=517312">https://www.census.gov/naics/?input=517312&year=2017&details=517312</a>.
\71\ Id.
\72\ See 13 CFR 121.201, NAICS Code 517312 (as of 10/1/22, NAICS
Code 517112).
\73\ See U.S. Census Bureau, 2017 Economic Census of the United
States, Employment Size of Firms for the U.S.: 2017, Table ID:
EC1700SIZEEMPFIRM, NAICS Code 517312, <a href="https://data.census.gov/cedsci/table?y=2017&n=517312&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false">https://data.census.gov/cedsci/table?y=2017&n=517312&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false</a>.
\74\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard.
\75\ Federal-State Joint Board on Universal Service, Universal
Service Monitoring Report at 26, Table 1.12 (2021), <a href="https://docs.fcc.gov/public/attachments/DOC-379181A1.pdf">https://docs.fcc.gov/public/attachments/DOC-379181A1.pdf</a>.
\76\ Id.
---------------------------------------------------------------------------

54. All Other Telecommunications. This industry is comprised of
establishments primarily engaged in providing specialized
telecommunications services, such as satellite tracking, communications
telemetry, and radar station operation.\77\ This industry also includes
establishments primarily engaged in providing satellite terminal
stations and associated facilities connected with one or more
terrestrial systems and capable of transmitting telecommunications to,
and receiving telecommunications from, satellite systems.\78\ Providers
of internet services (e.g. dial-up ISPs) or Voice over internet
Protocol (VoIP) services, via client-supplied telecommunications
connections are also included in this industry.\79\ The SBA small
business size standard for this industry classifies firms with annual
receipts of $35 million or less as small.\80\ U.S. Census Bureau data
for 2017 show that there were 1,079 firms in this industry that

[[Page 49433]]

operated for the entire year.\81\ Of those firms, 1,039 had revenue of
less than $25 million.\82\ Based on this data, the Commission estimates
that the majority of ``All Other Telecommunications'' firms can be
considered small.
---------------------------------------------------------------------------

\77\ See U.S. Census Bureau, 2017 NAICS Definition, ``517919 All
Other Telecommunications,'' <a href="https://www.census.gov/naics/?input=517919&year=2017&details=517919">https://www.census.gov/naics/?input=517919&year=2017&details=517919</a>.
\78\ Id.
\79\ Id.
\80\ See 13 CFR 121.201, NAICS Code 517919 (as of 10/1/22, NAICS
Code 517810).
\81\ See U.S. Census Bureau, 2017 Economic Census of the United
States, Selected Sectors: Sales, Value of Shipments, or Revenue Size
of Firms for the U.S.: 2017, Table ID: EC1700SIZEREVFIRM, NAICS Code
517919, <a href="https://data.census.gov/cedsci/table?y=2017&n=517919&tid=ECNSIZE2017.EC1700SIZEREVFIRM&hidePreview=false">https://data.census.gov/cedsci/table?y=2017&n=517919&tid=ECNSIZE2017.EC1700SIZEREVFIRM&hidePreview=false</a>.
\82\ Id. The available U.S. Census Bureau data does not provide
a more precise estimate of the number of firms that meet the SBA
size standard. The Commission also notes that according to the U.S.
Census Bureau glossary, the terms receipts and revenues are used
interchangeably, see <a href="https://www.census.gov/glossary/#term_ReceiptsRevenueServices">https://www.census.gov/glossary/#term_ReceiptsRevenueServices</a>.
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D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities

55. The Commission expects the proposed rules in the NPRM will
impose new or additional reporting or recordkeeping and/or other
compliance obligations on small entities as well as other licensees and
applicants. At this time however, the Commission is not in a position
to determine whether, if adopted, its proposals and the matters upon
which it seeks comment will require small entities to hire
professionals to comply and cannot quantify the cost of compliance with
the potential rule changes discussed herein.
56. Depending on the licensing model the Commission ultimately
adopts for the 42 GHz band, applicants for licenses may be required to
coordinate their proposed operations with other licensees and
applicants. Under the relevant licensing models, such coordination
would be necessary to ensure that neighboring operations will not
interfere with each other. The Commission seeks comment on the cost to
small entities for this potential coordination with operations.
57. Small entities and other applicants in the 42 GHz band may be
required to meet buildout requirements. Depending on the type of
buildout requirement the Commission ultimately adopts, licensees may be
required to provide information to the Commission on the facilities
they have constructed, the nature of the service they are providing,
and the extent to which they are providing coverage in their license or
registered site area. Any performance or buildout requirements the
Commission adopts will be structured to ensure that spectrum is being
put into use and to encourage rapid deployment of next generation
wireless services, including 5G, which would benefit small entities and
the industry as a whole. The Commission seeks comment as to the
potential equipment, operational and implementation costs to small
entities working towards complying with these buildout requirements.

E. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered

58. The RFA requires an agency to describe any significant,
specifically small business, alternatives that it has considered in
reaching its proposed approach, which may include the following four
alternatives (among others): ``(1) the establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance and
reporting requirements under the rule for such small entities; (3) the
use of performance rather than design standards; and (4) an exemption
from coverage of the rule, or any part thereof, for such small
entities.'' \83\
---------------------------------------------------------------------------

\83\ 5 U.S.C. 603(a)(1) through (4).
---------------------------------------------------------------------------

59. The Commission believes the potential licensing models on which
it seeks comment would facilitate access to spectrum by small
businesses and a wide variety of other entities. However, to assist in
the Commission's evaluation of the economic impact on small entities as
a result of actions that have been proposed in the NPRM, and to better
explore options and alternatives, the Commission has sought comment
from the parties. Of particular interest are those comments providing
insight as to whether any of the costs associated with any potential
performance or buildout requirements can be alleviated for small
businesses. The Commission expects to more fully consider the economic
impact and alternatives for small entities following the review of
comments filed in response to the NPRM.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules

60. None.

III. Ordering Clauses

61. Accordingly, it is ordered, pursuant to sections 1, 2, 4, 301,
302, 303, 304, 307, 309, and 310 of the Communications Act of 1934, 47
U.S.C. 151, 152, 154, 301, 302a, 303, 304, 307, and 309, Sec. 604 of
the MOBILE NOW Act, 47 U.S.C. 1503, and Sec. 1.411 of the Commission's
Rules, 47 CFR 1.411, that this Notice of Proposed Rulemaking is hereby
adopted.
62. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.

Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2023-16167 Filed 7-28-23; 8:45 am]
BILLING CODE 6712-01-P

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