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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** Federal Communications Commission DA 96-1790 Before the Federal Communications Commission Washington, D.C. 20554 In re application of) ) U.S. Leo Services, Inc.)File No. 422-DSE-P/L-96 ) For a license to construct and) operate transmit-receive gateway) fixed Earth station facilities for use) with the IRIDIUM System in the) 19.4-19.6 GHz and 29.1-29.3 GHz) bands) ORDER AND AUTHORIZATION Adopted: October 30, 1996 Released: October 30, 1996 By the Chief, International Bureau: 1. U.S. Leo Services, Inc. ("Leo Services"), a wholly-owned subsidiary of Motorola, Inc., requests a license to construct and operate a fixed transmit-receive "gateway" earth station that would comprise an integral element of the IRIDIUM System, Motorola's proposed system for providing non-geostationary, low-earth-orbit (LEO) mobile satellite service. The application, which includes requests for waiver of certain technical requirements, was filed on January 16, 1996 and was placed on public notice on February 21. AT&T, Lockheed Martin Corporation, and TRW, Inc. filed comments on the application, and CellularVision USA, Inc. filed a "Petition to Deny Unconditional Grant". The applicant filed a consolidated opposition and response. We will grant the application in part. I. BACKGROUND INFORMATION 2. As designed, the IRIDIUM System will enable subscribers with hand-held mobile terminals to conduct two-way voice and data communications from anywhere in the world with similarly-equipped subscribers or with telephone users. The system will have four basic components: satellites, mobile transceivers, ground-based satellite-control facilities, and gateway earth stations. The satellite component (or "space segment") will consist of a constellation of 66 satellites in low-earth orbit, networked together and providing continuous global coverage. Each satellite will have radio links with adjacent IRIDIUM satellites and with gateway stations and will use an array of spot beams for transmission to end-users' hand-held mobile transceivers. The gateway earth stations will function as the system's interface with the Public Switched Telephone Network and will control user access and collect billing data. Motorola's business plan calls for establishment of multiple gateways distributed throughout the world, each equipped with multiple tracking earth terminals and switching equipment. 3. The instant application requests authority for construction of an earth station in the vicinity of Tempe, Arizona, to operate as a gateway and to conduct satellite-control functions. It will transmit on frequencies in the 29.1-29.3 GHz range for both purposes and receive feeder- link transmissions from the IRIDIUM satellites in the 19.4-19.6 GHz range. The gateway will initially handle all IRIDIUM calls placed from points anywhere in the United States, pending construction of additional U.S. gateways. The facilities will include three satellite-tracking parabolic antennas and other equipment necessary to establish two-way communication links with the IRIDIUM satellite constellation. 4. The Commission has granted authority for construction of the IRIDIUM satellites. It said when granting that authorization, though, that the time was not yet ripe for assigning feeder- link frequencies unconditionally, as pertinent allocational issues were still under consideration in WRC-95 and other pending proceedings, particularly the Ka Band proceeding. Consistently with the pertinent interim policy announced in the Big LEO Order, the Commission granted conditional, at-your-own-risk authority for Motorola to construct its satellites with a configuration suitable for operation with the requested feeder-link frequencies while withholding authority for it to launch and operate them with that configuration. II. DISCUSSION A. Technical Requirements 5. Subsection 25.204(e) power limit. The applicant asks for a waiver of the limit on compensatory power boosts prescribed in Subsection 25.204(e) of the FCC's rules, which says that earth stations operating on frequencies above 10 GHz may exceed normal power limits by up to 1 dB to compensate for fading during periods of precipitation. U.S. Leo asks for permission to exceed the normal limit by as much as 3 dB during periods of precipitation -- i.e., to exceed the rule's precipitation-period limit by 2 dB -- contending that the increase is warranted in light of the different protection and tracking requirements of low-earth-orbit, non- geostationary satellites. 6. Subsection 25.202(f) spectral emission limits. Subsection 25.202(f) of the FCC's rules specifies limits on spurious emissions, in terms of dB of required attenuation below mean authorized output power. U.S. Leo acknowledges that when the proposed earth stations transmit on two channels at maximum power, intermodulation products, measured at the transmitting antenna, would exceed those limits. It asserts, though, that this condition would occur infrequently and that any interference caused would be brief. It says that the transmitters would operate with maximum power only during periods of excessive attenuation due to rainfall and estimates, based on rainfall-frequency records for the Tempe vicinity, that such periods would amount to only 5 hours per year, approximately. Given the narrow beamwidth of the gateway's transmitting antennae and the apparent velocity of the IRIDIUM spacecraft, U.S. Leo calculates that main-beam to main-beam alignment of the former with any stationary terrestrial or satellite receiver would last for only 7.5 seconds, at most, per occurrence. Hence, in light of the infrequency of severe precipitation in the relevant location and the brevity of intervals of alignment, the applicant contends that the likelihood that maximum power-boost would occur during alignment with any particular space or terrestrial receiving antenna within a year's time is minimal. (U.S. Leo estimates that the probability is on the order of 0.00072 percent.) It maintains, moreover, that the possibility of disruptive interference with reception by other satellites is especially low, because the gateway transmitters would operate on full power only to compensate for unusual atmospheric attenuation, in which event spurious emissions from the uplink would also be attenuated. 7. U.S. Leo therefore proposes to conform to an alternative spurious-emissions suppression standard that permits higher intermodulation levels than the standard specified in Sect. 25.202(f). The proposed emissions mask also specifies different frequency breakpoints, chosen in light of the frequency characteristics of a two-channel FDM transmitter with channel separation ranging from 7.5 to 180 MHz. 8. Applicability of 25.209 and 25.210. U.S. Leo requests issuance of a clarifying statement that the earth-station antenna-performance standards specified in Sect. 25.209 and the technical requirements specified in Sect. 25.210 do not apply to the operation of earth stations for nongeostationary MSS systems. 9. TRW's comments. TRW is the only party that filed comments on these requests. It agrees with U.S. Leo that the cited rules concerning power limits, suppression of spurious emissions, and antenna performance should not be applied to operation of gateway earth stations as components of non-geostationary satellite systems. TRW asserts that the rule-requirements in question are clearly designed with regard to interference situations that could occur between geostationary satellites and earth stations used in conjunction with them and that they are inappropriately quantified for, or inherently inapplicable to, non-geostationary operations. It therefore recommends that we announce in any order granting U.S. Leo's gateway application that we are establishing a waiver policy for the benefit of any applicant for a gateway earth station to be used for communication with non-geostationary satellites. 10. Discussion. We are granting the requested waivers of 25.204(e) and 25.202(f), as we agree with the applicant that some relaxation of those requirements is warranted for earth stations transmitting in the Ka Band to low-earth-orbit NGSO satellites and as we are satisfied that the alternative standards that it proposes are sufficient substitutes for this purpose. 11. We agree in part with U.S. Leo's contention that it should not be compelled to operate in conformance with the strictures in Section 25.209. The requirement in Subsection (a)(1) of that rule section was obviously devised to protect geostationary satellites from long- term interference from earth stations licensed for transmission to adjacent geostationary satellites, and we see no need to impose that restriction on tracking earth stations used to transmit to low-earth-orbit NGSO satellites. The other two principal requirements of Section 209 apply by their terms to all fixed-service earth stations, however, and it is not self-evident that it would serve the public interest to excuse Big LEO licensees from complying with them. Hence, U.S. Leo's appropriate recourse for seeking relief from the requirements in Subsections (a)(2) and (b) of 25.209 is to file a waiver request pursuant to Section 25.133(c). 12. As for Section 25.210, no clarification is necessary here, as all of its requirements are plainly inapplicable by their terms to earth-station operation. B. Conformance with Rules Adopted in Ka Band Proceeding 13. TRW, Lockheed Martin, CellularVision USA, and AT&T all contend that because the applicant is requesting authority for the proposed gateway station to transmit on frequencies between 29.1 and 29.3 GHz any grant of its application prior to resolution of the Ka Band rulemaking in Docket No. 92-297 should be expressly conditioned on the outcome of that proceeding. U.S. Leo disagrees, contending that it is eligible for an unconditional grant because the Commission decided in the Big LEO Report and Order that feeder-link licenses could be unconditionally granted once sufficient spectrum for MSS feeder links has been internationally allocated by the 1995 World Radio Conference. U.S. Leo asserts that precondition has been met by the designation at WRC-95 of the spectrum at 19.3-19.6 GHz and 29.1-29.4 GHz and additional frequencies in the 5, 7, and 15 GHz bands for non-geostationary MSS feeder links, stressing that none of the commenting parties has contended otherwise. It also argues that it will be obliged to comply with any band-sharing plan adopted in the Ka Band proceeding in any case, whether or not its earth-station license is explicitly conditioned on the outcome, therefore contending that inserting such a condition would be superfluous. 14. Discussion. The objection against issuing an unconditional grant prior to the resolution of pertinent issues in the Ka Band proceeding has become moot. Those issues were resolved in a "First Report and Order" released on July 22, 1996, which, among other things, promulgated rules governing use of frequencies in the 29.1-29.5 GHZ range for feeder-link transmission to MSS NGSO satellites from fixed earth stations. U.S. Leo will, of course, be obliged to operate in compliance with the new rules. 15. As part of the band-segmentation/sharing plan that it adopted in the First Report and Order, the Commission ruled that because of the evident infeasibility of co-primary frequency- sharing between IRIDIUM gateway stations and geostationary FSS systems, the feeder uplinks for the IRIDIUM System must be confined to the 150 MHz band between 29.1 and 29.25 GHz. We will therefore grant the application in part, specifying an authorized transmission frequency range of 29.1-29.25 GHz in lieu of the wider one requested. C. Coordination with Lockheed Martin 16. The Lockheed Martin Corporation asserts that its proposed "Astrolink" geostationary FSS system and the U.S. Leo IRIDIUM gateways would transmit in overlapping and/or adjacent frequency bands if one of the alternative band-segmentation plans under consideration in the Ka Band proceeding is adopted. Lockheed contends that it will consequently need to understand "the interference scenario" between the two systems in considerably more detail than can be fathomed from the information furnished in U.S. Leo's gateway application. It therefore urges us to declare in this licensing order that U.S. Leo must enter into frequency coordination "at the appropriate time" with respect to the Astrolink system, particularly if we grant the applicant's request for partial waiver of the 25.202(f) limit on out-of-band emissions. 17. U.S. Leo points out in reply that Subsection 25.203(k) merely requires Big LEO gateway-station applicants to demonstrate that its feeder-uplink transmissions would not cause unacceptable interference to any satellite network that is already authorized to operate in the same frequency band or certify that its operations will conform to existing coordination agreements with such licensees. U.S. Leo contends that inasmuch as Lockheed Martin has not yet received a license for the Astrolink system its request for a coordination requirement is premature. 18. Discussion. Lockheed's concern about co-channel interference is now moot, as there is no overlap between the spectrum band that the First Report and Order allocated for IRIDIUM feeder uplinks (29.1-29.25 GHz) and the band that it allocated for geostationary FSS systems (29.25-30 GHz). We decline to impose a requirement for coordination with GSO/FSS licensees with respect to out-of-band emissions, as Lockheed has not shown that there is any likelihood of interference from out-of-band emissions from the proposed gateway station. C. Regulatory Status 20. U.S. Leo requests a declaratory ruling that its provision of gateway services pursuant to the business plan outlined in its application would not be subject to common-carrier regulation under Title II of the Communications Act. It says that it plans to use the proposed earth-station facilities to provide gateway and system-control service to just one client: U.S. Iridium, L.P., an affiliated company primarily owned by U.S. Leo's parent corporation, Motorola, Inc. It also says that it would provide those services to U.S. Iridium in conjunction with IRIDIUM-System space- segment capacity (which U.S. Leo would obtain under contract from the Motorola space-segment licensee, Motorola Satellite Communications, Inc.). U.S. Iridium, in turn, would resell integrated IRIDIUM service in bulk. U.S. Leo contends that because it would not offer service to the public it would not be operating as a common carrier, as defined in National Association of Regulatory Utility Commissioners v. FCC, and would not be a "telecommunications carrier", as defined in Sect. 3, item (44) of the Communications Act. The applicant stresses, moreover, that the Commission expressly recognized in the Big LEO Report and Order and the CMRS Second Report and Order that it retained discretion under Section 332(c)(5) of the Communications Act to decide whether provision of space-segment capacity to resellers providing commercial MSS to end users should be regulated under Title II and that it concluded in the Big LEO Report and Order that there is no good reason to require Big LEO space-segment capacity to be offered to resellers on a common-carrier basis. 21. Discussion. As the Commission recognized in the Big LEO Report and Order, the provision in 332(c)(1) mandating common-carrier regulation of commercial mobile services does not compel the FCC to regulate provision of "space segment capacity" to providers of commercial mobile services as common carriage, as the proviso in 332(c)(5) preserves its discretion in that regard. More to the point, a proviso in Section 3 (44) of the Communications Act, one of the provisions newly added by the Telecommunications Act of 1996, states that "the Commission shall determine whether the provision of fixed and mobile satellite service shall be treated as common carriage." We read this as a grant of discretion to either impose, or refrain from imposing, common-carrier regulation on the provision of any element of satellite service, including Earth-to-satellite transmission, based on assessment of the public interest. 22. The next question to consider, then, is whether it would best serve the public interest to require U.S. Leo to provide earth-to-satellite feeder links on a common-carrier basis, subject to pertinent Title II requirements. We hold that it would not, in light of considerations similar to those that the Commission noted in concluding that there was no need to compel Big LEO licensees to provide space-segment service components as common carriers and in compliance with Title II. As U.S. Leo will face significant commercial competition from both terrestrial and satellite MSS providers, including other Big LEO licensees, the discipline of the market should obviate any need to resort to intrusive supervision of its commercial practices. Furthermore, as the Commission recognized in the Big LEO Report and Order, it is likely that imposing common-carrier requirements on Big LEO licensees would hamper development of the service. In particular, to compel them to comply with the restriction on foreign involvement that Section 310(b) of the Communications Act prescribes for common carriers could impair their ability to raise capital and gain entry in foreign markets; although this consideration may seem more-obviously relevant to space-segment licensing, we think that it is also has a material bearing on the appropriate regulatory policy for Big LEO gateway stations. III. ORDERING CLAUSES 23. Accordingly, pursuant to authority delegated by 47 C.F.R. 0.261, IT IS ORDERED that Application File No. 422-DSE-P/L-96 IS GRANTED to the extent indicated herein, and U.S. Leo Services, Inc. IS AUTHORIZED to operate a gateway Earth station in accordance with the technical specifications in its application and in compliance with FCC rules, except insofar as those have been waived herein. 24. IT IS FURTHER ORDERED that this authorization is issued with the following conditions: (1) the licensee must obtain a notice of clearance pursuant to 47 C.F.R. 25.113(c) before commencing construction; (2) as required by 47 C.F.R. 25.133, construction of the station must be complete within one year from the release-date of this order, except as the Commission may otherwise order for good cause shown; (3) the licensee must furnish the information requested in Question 18 of the application form: viz., a verified statement as to whether the manufacturer's measurements show that the station's transmitting antennas would operate in accordance with the gain patterns specified in 47 C.F.R. 25.209(a)(2) and (b). 25. IT IS FURTHER ORDERED that the license term will be ten years, beginning on the date when the first transmission on the authorized frequencies from the earth station to a satellite has occurred. 26. This license does not confer any right to operate the station or use the designated frequencies beyond the term thereof or in any manner not authorized herein. No right granted by this authorization shall be transferred, assigned, or disposed of in any manner, voluntarily or involuntarily, or by transfer of control of any corporation holding this authorization, to any person except upon application to the Commission and upon a finding by the Commission that the transaction will serve the public interest, convenience, and necessity. 27. This license is subject to the rights of use or control conferred by 47 U.S.C. 706. FEDERAL COMMUNICATIONS COMMISSION Donald H. Gips Chief, International Bureau