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Caption11#Xv6X@CX@##b6X@C@#102OQ6CDocument Style=(5Qܺ*5ںOQEF#$23q[103OQ6CDocument Style=(5Qܺ*5ںOQE*%&   104OQ6CDocument Style=(5Qܺ*5ںOQE0' (    105OQ6CDocument Style=(5Qܺ*5ںOQE) * . 2eecpp8106OQ6CDocument Style=(5Qܺ*5ںOQE +, 107OQ6CDocument Style=(5Qܺ*5ںOQE -. 108OQ6CDocument Style=(5Qܺ*5ںOQE/0` ` ` 109OQ6CDocument Style=(5Qܺ*5ںOQE12` ` ` 25Z&110OQ6CTechnical Document StyleQܺ*5ںOQE43$4     111OQ6C X- X   )K X-w  #XP\  P6Q3XP#Federal Communications Commission`(# FCC 96390 ă  yxdddy )Պ+2 Before the w Federal Communications Commission  X-Washington, D.C. 20554 ă  X-In the Matter of R#XP\  P6Q3XP#) R)  Xv-Allocation of Spectrum Below 5 GHzR)hET Docket No. 9432 Transferred from Federal Government UseR)  X -  FOURTH REPORT AND ORDER TP  X -X` hp x (#%'0*,.8135@8:and could reduce availability to some segments of the population if applied to all DataPCS  X- xdevices.J {O-ԍ See Apple Comments at 45.J Apple states that it would serve the public to ascertain the maximum level of spurious  x=emissions from DataPCS devices that can be tolerated by the NAIC and develop an approach  xto assure that this level is not exceeded while imposing the smallest burden possible on Data xyPCS. Apple states that it and NAIC representatives have had preliminary discussions aimed at  xresolving these open questions and urges the Commission not to impose any new technical  x[requirements, because the parties will develop a mutually acceptable sharing approach. Apple  xstates that the airborne ban on DataPCS devices near Puerto Rico can only be imposed upon  xusers rather than manufacturers, because it is not practical for a manufacturer to design a device  Xg- xto cease operations at a particular location.Eg~ {O!-ԍ See Apple Reply at 3.E Although Apple agrees that DataPCS should not  xibe operated in a manner that interferes with the NAIC, it opposes a specific regulatory prohibition on such interference.  X - ` nx21.` ` The Part 15 Coalition asserts that no Part 15 rule changes are necessary to protect  xspace research operations at the NAIC. The Part 15 Coalition claims that the National Research  xCouncil (NRC) was mainly concerned with interference from the fixed and mobile services, not",-(-(ZZ;"  X- xKfrom unlicensed device operations.T {Oy-ԍ See Part 15 Coalition Comments at 8.T Finally, ARRL states that amateur operations will not cause  xinterference to the NAIC, but if such interference were to occur, reliance can be placed on the  xsuccessful history the NAIC and amateurs have of solving interference problems. Kaplan states  xthat amateurs should not be prohibited from airborne or spacetoearth operations in order to  X-protect astronomy operations.IZ {O-ԍ See Kaplan Comments at 5.I  Xv- ` x22.` ` Decision. We are encouraged by the comments in this proceeding which generally  xyagree that space research operations are important and which show a willingness by entities to  xprotect such operations. The record indicates that operations of DataPCS devices in the 2390 xk2400 MHz band from aircraft while airborne could interfere with the operations of the NAIC,  x?which operates a planetary research radar at 2380 MHz. None of the commenters in this  xproceeding have indicated that there is a current demand for airborne operations in this band.  xAccordingly, we will adopt our proposed ban of airborne use of all unlicensed devices in the  x23902400 MHz band in the entire United States. We do this because airborne operations in this  xband could cause interference to the extremely sensitive receivers at the NAIC from distances up  xto 800 miles. It is generally impracticable to prohibit only airborne operations within 800 miles  xof the NAIC and expect users of unlicensed devices to be aware of when they are within the  xprohibited area. As a result, we find that only a complete ban on the use of unlicensed devices  xzin the 23902400 MHz band from aircraft while airborne will suffice to protect space research  xoperations at the NAIC. We will, however, consider waiver requests on a casebycase basis by  xusers who desire to engage in airborne operations in this band and who can demonstrate that they  x>will not operate within 800 miles of the NAIC. We delegate authority to the Chief, Office of  x=Engineering and Technology to rule on such waiver requests in the first instance. Further, we  xagree with Apple that manufacturers should not be held responsible for designing devices to cease  xoperations while traveling in aircraft; rather, it will be the responsibility of the user to control  xwhen and where the device is used. However, we believe that Part 15 operations at 24022417  xMHz are sufficiently removed from 2380 MHz and are subject to sufficient restrictions on  X- xyspurious emissions as not to warrant a similar airborne restriction.1 yO2- xԍ We note that Part 15 devices are not permitted to operate in the 23102390 MHz band, and our rules limit  {O-the amount of spurious emissions which Part 15 devices are permitted to cause in that band. See 47 C.F.R.  15.205. 1 As to amateur operations,  x=we will not impose a formal restriction on airborne usage. We believe such a restriction would  xserve no useful purpose, given that airborne usage by amateur operators in the 23902400 MHz  xband is extremely rare, that the NAIC has not indicated that such a restriction is needed, and that  xamateur operators and the NAIC share a highly successful history of informal cooperation in  xresolving interference concerns. We also decline to adopt limitations on the terrestrial use of  xthese bands by DataPCS devices, other Part 15 devices, or amateur operations. Because  xunlicensed devices are of low power, and are typically nomadic in nature, we find it unlikely that  x>they will cause significant interference to the NAIC when they are operated on the ground.  xAmateur operations have a history of mutually satisfactory coordination with space research" F,-(-(ZZ"  xoperations, and we see no reason why this should not continue. Therefore, we see no immediate  xneed for restrictions on terrestrial operations in either the 23902400 MHz or the 24022417 MHz  xLbands. We note, however, that in ET Docket No. 962 we are currently considering whether to  xestablish a radio astronomy coordination zone around the NAIC facility in Arecibo, Puerto Rico,  X-and we may revisit this issue in that proceeding. {O- x;ԍ See Amendment to Establish a Radio Astronomy Coordination Zone in Puerto Rico, Notice of Proposed Rule Making, ET Docket No. 962, 11 FCC Rcd 1716, 61 Fed. Reg. 10709 (March 15, 1996).  Xv- ` ~x23.` ` We deny Cornell's and CORF's request to modify Section 15.321 of our rules to  x\protect the NAIC from Part 15 pointtopoint data links and their request that any fixed user  x/within 10 miles of the NAIC be required to coordinate such operations, as we believe these  xactions are unnecessary. That is, we note that all Part 15 devices must operate on a non X -interference basis and that there is no need to modify Part 15 to specify this requirement further.H  " {O -ԍ See 47 C.F.R.  15.5.H  X -C.xCombined Operations.  X - ` x24.` ` In the First R&O and Second NPRM, we noted that the existing Part 15 rules  xZeffectively preclude operations that would combine the 23902400 MHz band with the superjacent  x24002483.5 MHz band into a single, large Part 15 band. We therefore sought comment on  xwhether some allowance should be made to accommodate operations that combine the use of  x these two bands. We also asked that parties pursuing combined use of the bands provide  xirecommendations on appropriate technical standards to be used for such operations. Five parties  xaddress this issue in their comments. AT&T recommends that the two bands be combined, and  xstates that creating a single band from 23902483.5 MHz could create capability for improving  xthe performance by DataPCS and spread spectrum devices. AT&T stresses that such action  xwould allow spread spectrum devices to operate in spectrum further removed from that used by  xindustrial, scientific, and medical devices, centered at 2450 MHz, which can cause harmful  X- xZinterference to unlicensed devices.I! {O*-ԍ See AT&T Comments at 23.I AT&T suggests requiring asynchronous DataPCS devices  X- xin the 24002483.5 MHz band to conform to the rules governing that band,V"F {O-ԍ See 47 C.F.R.  15.247, 15.249.V and other Part 15  xdevices in the 23902400 MHz portion of the band to likewise conform to the rules governing  X- xthat band.^# {O #-ԍ See 47 C.F.R.  15.319, 15.321, 15.323.^ AT&T states that combined use in this manner would induce industry to invest in  Xi-equipment development.D$ij  {O%-ԍ See AT&T Reply at 3.D "R $,-(-(ZZ"Ԍ X- ` x25.` ` Apple states that if we were to permit devices operating only under the rules  xgoverning the 24002483.5 MHz band to operate in the 23902400 MHz band, isochronous  xdevices would soon monopolize the band, rendering it of little value to DataPCS devices, which  X- x[operate under a spectrum etiquette.J% {O4-ԍ See Apple Comments at 23.J Apple agrees, however, with AT&T's band combination  X- xyidea, provided that devices in each portion of the band adhere to the relevant technical rules.E&Z {O-ԍ See Apple Reply at 2.E  xARRL opposes combining the 23902400 MHz and 24002483.5 MHz bands, arguing that the  xissue has not been discussed previously in this proceeding, and that while DataPCS and the  xyamateur service can share the 23902400 MHz band, opening the band to nonDataPCS Part 15  XH- xdevices would be detrimental to both services.G'H {O -ԍ See ARRL Comments at 7.G ARRL asserts that there is no need to combine  xthe bands, and that any combination of the bands should be addressed, if at all, in the upcoming  xproceeding to allocate the bands 24002402 MHz and 24172450 MHz when they are transferred  xfrom Government use. Compaq agrees that there is no need to combine the 23902400 MHz and  x>24002483.5 MHz bands, and states that other Part 15 devices do not have communications  xprotocols compatible with DataPCS protocols. Compaq argues that such sharing should  x0generally be forbidden, and that the Commission should issue waivers to this rule upon  X - x.appropriate showing of technical compatibility.I( ~ {O-ԍ See Compaq Comments at 5.I AMSAT points out that the DataPCS rules  xwere designed specifically with sharing in mind, and that this is not true in the case of other Part  Xy-15 devices.N)y {O:-ԍ See AMSAT Comments at 3.N  XK- ` x26.` ` Decision. Under our current rules, DataPCS devices and other Part 15 devices  x>may operate in both the 23902400 MHz and 24002483.5 MHz bands, provided each device  xconforms to the technical rules of the particular band in which it operates. We agree with Apple  x[that nonDataPCS Part 15 applications would generally not meet the technical requirements of  x[the 23902400 MHz band. Thus, if we were to combine the two bands, we would have to apply  xOeither the nonDataPCS rules to the entire band, which would hinder or preclude the  xdevelopment of DataPCS, or apply the DataPCS rules to the entire band, which would sharply  xlimit its utility to Part 15 devices. On the other hand, we find no reason to prevent nonData xPCS Part 15 devices that do meet the technical requirements of the 23902400 MHz band from  xoperating there, nor to limit DataPCS devices to that band only. For this reason, DataPCS and  xzother Part 15 devices may operate in either the 23902400 MHz band or the 24002483.5 MHz  xband, if they adhere to the rules governing the band in which they operate. A device complying  xwith the technical requirements of both the 23902400 MHz and the 24002483.5 MHz band is  x<allowed to operate in either band under our current rules. No commenter supports restricting this"" ),-(-(ZZ"  xflexibility, and we see no reason to change our standards, which currently allow maximum operational freedom consistent with the prevention of harmful interference.  X-D.xOther Issues.  X- ` x27.` ` Several parties with interests in unlicensed devices requested that the allocation for  xunlicensed devices in this proceeding be upgraded to a primary allocation or that these devices  xyreceive some sort of additional rights to the spectrum. Some amateur comments requested that  xguard bands be established around their operations in order to protect amateur stations from  xinterference caused by unlicensed devices. Finally, one party expressed concern that electronic  xequipment that can eavesdrop on the operation of wireless telephones and other data communications devices might be outlawed.  X - ` Bx28.` ` Comments. Cylink Corporation (Cylink), Motorola, the Part 15 Coalition, UTC,  xand the Consumer Electronics Group of the Electronics Industries Association (EIA) support an  xincreased allocation status for unlicensed device operations. Motorola argues that the market has  xya negative perception of unlicensed DataPCS devices because its nonallocated, atsufferance  X}- xstatus does not protect the service.M*} {O-ԍ See Motorola Comments at 24.M Motorola contends that an alternative to a primary allocation  xfor DataPCS would be to define a parameter under which DataPCS devices are presumed not  XO- xto cause interference.I+ZOZ {OZ- xԍ See Motorola Comments at 12. Specifically, Motorola recommends that the DataPCS device parameter be  xan average Equivalent Isotropically Radiated Power (EIRP) of 25 milliwatts or less measured in a 1 megahertz bandwidth over a period of one second.I Motorola argues that this would permit DataPCS to operate without the  xthreat of an amateur licensee requesting cessation of such operations. In its reply comments,  xAT&T states that Part 15 operations may need to be made coprimary in order to ensure their  xright to share with amateur operations. However, AT&T urges, if the Commission is not now  xprepared to increase the allocation status of unlicensed devices, it should leave itself open to such  X-a change in the future.D,| {O -ԍ See AT&T Reply at 4.D  X- ` x29.` ` Similarly, the Part 15 Coalition supports the creation of a "Part 16" which would  xLprovide unlicensed devices the protection of primary status. The Part 15 Coalition argues that  xthe creation of "Part 16" would provide a longterm stable regulatory environment for unlicensed  xoperations. The Part 15 Coalition states that this protection becomes increasingly important as  x[Part 15 devices become more sophisticated and ubiquitous. Additionally, the Part 15 Coalition  xrequests that Part 15 devices be afforded increased interference protection from ISM devices  xsharing the 24002483.5 MHz band by requiring ISM operations to take measures to minimize  X - xinband interference.T-  {O&-ԍ See Part 15 Coalition Comments at 6.T UTC agrees with the proposal to create a Part 16, stating that unlicensed"  -,-(-(ZZ["  xdevices needed by utilities and pipelines require significant capital expenditures, and that  X-interference protection is necessary to justify such expenditures.F. {Ob-ԍ See UTC Comments at 3.F  X- ` 2x30.` ` ARRL opposes an increase in the allocation status of Part 15 devices in the 2402 x2417 MHz band because significant interference to amateur operations from ISM devices already  xKexists in this band, and low power Part 15 devices are the only operations that can share the band  xiwith amateur and ISM operations without increasing mutual interference to an unacceptable level.  xLikewise, SCRRBA argues that giving Part 15 devices primary status would effectively eliminate  XH- xthe amateur service in this band.I/HZ {OS -ԍ See SCRRBA Comments at 4.I AMSAT is also opposed to the establishment of a Part 16  X1-operation on this spectrum.N01 {O -ԍ See AMSAT Comments at 4.N  X - ` x31.` ` In its reply comments, ARRL argues that supporters of primary status for  xunlicensed devices do not suggest that it is necessary for interference concerns; rather primary  xstatus is allegedly needed so that consumers of Part 15 devices perceive their devices as reliable  xkand protected from interference. ARRL asserts that there is no evidence that Part 15 device  xconsumers have developed a negative perception toward such devices under the current rules, nor  xis there evidence that amateurs have arbitrarily claimed interference. ARRL argues that users of  xthese devices benefit from their unlicensed status; in fairness they cannot at the same time request  Xb- xprotection from interference or entitlement to interfere with licensed services.D1b~ {O-ԍ See ARRL Reply at 8.D Similarly,  xAMSAT argues that although these devices do not have priority in the bands in which they are  xused, their users do benefit because the devices do not have to be licensed, can operate with some  xdegree of frequency agility and bandwidth variability, and can be used for an infinite number of  xMpurposes without eligibility requirements imposed upon the user. AMSAT also states that  xentitling unlicensed operations to the benefits of licensed operations, without any of the  x?obligations attendant to licensed use, would increase the administrative burdens on the  X- xCommission.J2 {O-ԍ See AMSAT Comments at 67.J Finally, ARRL argues that Part 15 operations cannot receive primary status under  xthe current language in the Communications Act of 1934, as amended, claiming that the only  xauthority the Commission has to permit unlicensed devices is restricted to radio control devices  X|-and the Citizens' Band Radio Service.r3| {O#-ԍ See ARRL Comments at 8; see generally 47 U.S.C.  307(e).r  XN- ` x32.` ` A few amateur comments request that a guard band be established to protect  xLamateur satellite operations at 24002410 MHz. Specifically, Kaplan and the Northern Amateur"7 4 3,-(-(ZZ"  xLRelay Council of California, Inc. (NARCC) request that the 23992400 MHz and 24102411 MHz  xKbands be designated as guard bands. AMSAT requests that the guard band cover the 24002410  xMHz band or at least the 24002402 MHz band. Additionally, NARCC claims that it is uncertain  x<how DataPCS will effect amateur operations and therefore recommends that portions of the band  x-be allocated exclusively for amateur and Part 15 operations, and another portion could be opened  xto all three services: the amateur service, DataPCS, and other Part 15 devices. Apple replies  xthat these arguments do not address sharing standards or propose restrictions on any particular  xpotential interference source; rather, they seek to reverse an allocation that is already made and  XH-therefore should not be considered.E4H {O -ԍ See Apple Reply at 5.E  X - ` x 33.  ` ` Finally, the NCPA expresses concern that Part 15 and DataPCS manufacturers will  xseek to outlaw electronic equipment that can eavesdrop on the operation of wireless telephones  xand other data communications devices operating in the 23902400 MHz and 24022417 MHz  xbands. NCPA contends that amateurs use such equipment to communicate in these bands and  xxthe equipment should not be prohibited, urging the Commission to protect the right of any person  xto purchase equipment capable of receiving signals in the 23902417 MHz band. NCPA also  x=argues that the protection given to unlicensed users makes it difficult for amateur operators to  xdetermine sources of interference problems because encrypted unlicensed signals are difficult to  xtrack. Additionally, NCPA argues that amateurs are required to identify their transmitters, but  xno provision exists for unlicensed operators to identify themselves. NCPA requests that business  X4-users be required to transmit occasional unencrypted identification.I54Z {O?-ԍ See NCPA Comments at 23.I  X- ` x!34.` ` Decision. Regarding requests that unlicensed devices receive an increase in  xallocation status or additional rights to the spectrum, we do not believe this is the appropriate  xproceeding to address this issue. The allocation status of the 23902400 MHz and 24022417  X- x]MHz bands was determined in the First R&O and Second NPRM. Further, we note that  xZunlicensed devices enjoy a certain flexibility with their unlicensed status and are being effectively  xused under existing rules. In this regard, we deny Motorola's proposal to establish an operating  xOparameter under which Part 15 devices would be presumed not to cause interference.  xAccordingly, we will not grant unlicensed devices additional rights to the spectrum at this time;  xhowever, if problems develop, we will consider this issue at that time. Finally, we deny the Part  x{15 Coalition's request that additional regulations be placed on ISM operations to protect  xunlicensed operations because unlicensed operations have successfully shared spectrum with ISM  xoperations in the past. Adding further regulations for ISM operations would unnecessarily restrict those operations, with dubious benefit to Part 15 operations.  X - ` nx"35.` ` Regarding amateur requests for the establishment of guard bands, we believe that  X!- xsuch requests would effectively change the allocation adopted in the First R&O and Second  X"- xNPRM. The guard bands requested in the comments would effectively preclude unlicensed device"" 5,-(-(ZZ!"  xoperations from spectrum that was allocated for such purposes. The interested parties would have  xhad to file a petition for reconsideration to the allocation, rather than comments to the notice  X-portion of the First R&O and Second NPRM to warrant Commission consideration of such action.  X- ` x#36.` ` Finally, regarding NCPA's concern that Part 15 and DataPCS manufacturers will  xseek to outlaw electronic equipment that can eavesdrop on the wireless operations, we note that  Xx- xit is already unlawful to eavesdrop on wireless telephone and similar communications devices.Q6x {O-ԍ See 18 U.S.C.  25102521.Q  xAdditionally, we will not require that unlicensed device users transmit an identification signal  xbecause we find such actions unnecessary. The record in this proceeding demonstrates that  xunlicensed device interference to amateur operations is the exception, not the norm, and the establishment of unwarranted changes to Part 15 is not in the public interest.  X -    X -H IV. ORDERING CLAUSE ă  X - ` Tx$37.` ` IT IS ORDERED that Parts 15 and 97 of the Commission's Rules ARE  x{AMENDED as specified in Appendix B, effective 30 days after publication in the Federal  X{- xRegister. Authority for issuance of this Fourth Report and Order is contained in Sections 4(i),  x302, 303(g), 303(r), 309(j), 332(a), and 403 of the Communications Act of 1934, as amended,  x47 U.S.C. 154(i), 302, 303(g), 303(r), 309(j), 332(a), and 403, and Section 115(a) of the  xNational Telecommunications and Information Administration Organization Act, 47 U.S.C.  925(a).  X-xz V. PROCEDURAL MATTERS ă  V-Regulatory Flexibility Analysis  X- ` ~x%38.` ` A Final Regulatory Flexibility Act Statement is contained in Appendix C of this  Xi-Fourth Report and Order.  V=-Contact Persons  X- ` _x&39.` ` For further information concerning this proceeding, contact Tom Derenge at (202) 4182451, or Sean White at (202) 4182453, Office of Engineering and Technology. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhWilliam F. Caton x` `  hhActing Secretary"n$Z6,-(-(ZZF#"  a<  #|\  P6G;iP#Appendix A:  a < NTIA Spectrum Reallocation Plan#Xj\  P6G;3XP#ѐTP T ddx !ddx( ( ( """T  z  g " lBand Identified for jReallocation (MHz)wg"Reallocation Statuswg"MReallocation Schedulez q  gh "*13901400h"7`Exclusiveh"January 1999q q w"*14271432Yh"7`ExclusiveYh"January 1999q q "*16701675 h"BMixed h"January 1999q q Y"*17101755; h"BMixed; h" XR -January 1999 /2004q q  "*23002310 h"7`Exclusive h"6Immediateq q ; "*23902400h"7`Exclusiveh"1Reallocation Completeq q  "*24002402h"7`Exclusiveh"6Immediateq q "*24022417h"7`Exclusiveh"1Reallocation Completeq q "*24172450ph"BMixedph"6Immediateq q "*36503700h"BMixedh"January 1999q q p"*46354660Rh"7`ExclusiveRh"January 1997q    h " ZD 46604685"7`Exclusive"1Reallocation Complete   R X- "6,-(-(ZZp"  a< #|\  P6G;iP#Appendix B: Final Rules #Xj\  P6G;3XP#у A. Part 15 of Title 47 of the Code of Federal Regulation is amended as follows:  X- PART 15 RADIO FREQUENCY DEVICES 1. The authority citation for Part 15 continues to read as follows:  Xi- Authority: Secs. 4, 302, 303, 304, 307 and 624A of the Communications Act of 1934, as  XR-amended, 47 U.S.C. 154, 302, 303, 304, 307 and 544A. 2. Section 15.321 is amended by adding paragraph (g) to read as follows:  X -  15.321 Specific requirements for asynchronous devices operating in the 19101920  X -MHz and 23902400 MHz bands.  X-*x*` ` * ** (g) Operation of devices in the 23902400 MHz band from aircraft while airborne is prohibited, in order to protect space research operations at the National Astronomy and Ionospheric Center at Arecibo, Puerto Rico. B. Part 97 of Title 47 of the Code of Federal Regulation is amended as follows:  X- PART 97 AMATEUR RADIO SERVICE 1. The authority citation for Part 97 continues to read as follows:  X- Authority: 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303. Interpret or apply 48 Stat. 10641068, 10811105, as amended; 47 U.S.C. 151155, 301609, unless otherwise  Xo-noted. 2. Section 97.303(j)(2) is revised to read as follows:  X-  97.303 Frequency sharing requirements.  X -*x*` ` * ** (j) In the 13 cm band:  X"-*x*` ` * ** (2) In the United States, the 23002310 MHz segment is allocated to the amateur service on a cosecondary basis with the Government fixed and mobile services. In this segment, the fixed and mobile services must not cause harmful interference to the amateur service. The 23902400 MHz and 24022417 MHz segments are allocated to the amateur service on a primary basis. No amateur station transmitting in the 24002450 MHz segment is protected"D'6,-(-(ZZ&" from interference due to the operation of industrial, scientific, and medical devices on 2450 MHz.  X-*x*` ` * **"6,-(-(ZZ"  X-=  Appendix C: Final Regulatory Flexibility Analysis ă x1. As required by Section 603 of the Regulatory Flexibility Act, 5 U.S.C.  603  X-(RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the First Report  X-and Order and Second Notice of Proposed Rule Making, (First R&O and Second NPRM), ET  X-Docket No. 9432.E7 yO -ԍ See 10 FCC Rcd 4769 (1995).E The Commission sought written public comments on proposals in the  Xz-First R&O and Second NPRM, including the IRFA. The Commission's Final Regulatory Flexibility Analysis (FRFA) in this Fourth Report and Order conforms to the RFA, as amended by the Contract With America Advancement Act of 1996 (CWAAA), Pub. L. No.  X7-104121, 110 Stat. 847 (1996).87X yO@ - x,ԍ Subtitle II of the CWAAA is "The Small Business Regulatory Enforcement Fairness Act of 1996" (SBREFA),  {O -codified at 5 U.S.C.  601 et seq.   X <x2. N eed for and Objectives of the Rule: This action is taken in response to the  X -ReconciliationJ!p Budget Act,9  yOW-ԍ Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 10366, 107 Stat 312 (enacted August 10, 1993). which required the Secretary of Commerce to identify 200 megahertz of spectrum, currently allocated for use by Federal Government agencies, that could be transferred for private sector use, and in response to the ensuing Preliminary Spectrum  X -Reallocation Report published by the Department of Commerce,: B yO-  ԍxSee Spectrum Reallocation Final Report, U.S. Department of Commerce, NTIA, Special Publication 9532, February 1995. which identified such  X-spectrum. The First Report and Order and Second Notice of Proposed Rule Making in this proceeding allocated the 23902400 MHz band to the Amateur Radio Service and DataPCS, the 24022417 MHz band to the Amateur Radio Service, and the 46604685 MHz band to the Fixed and Mobile Services. It also inquired as to whether we should prohibit aeronautical use of DataPCS or other unlicensed devices to protect space research operations at the National Astronomy and Ionospheric Center (NAIC) at Arecibo, Puerto Rico, as well as whether we should allow DataPCS devices to operate in the 24002483.5 MHz band where other unlicensed devices operate, and vice versa. The allocation of DataPCS spectrum is intended to provide enhanced communication service to the American public, while also creating new jobs, fostering economic growth, and increasing access to communications for industry and  X-the public. The upgrade to primary status of the amateur allocation in this spectrum will encourage amateur operators to use this spectrum. Therefore, the Commission adopts rules prohibiting the use of DataPCS devices in the 23902400 MHz band while airborne, in order to protect space research operations at the NAIC. x  XA<x3. Summary of Significant Issues Raised by Public Comments in Response to the  X+<IRFA: No comments directly responded to the IRFA. In general comments on the First  X-R&O and Second NPRM, however, some commenters raised an issue that might affect small":,-(-(ZZ" entities. Some commenters argued that merging the 23902400 MHz band with the superjacent 24002483.5 MHz band into a single, large band for nonDataPCS devices would make the spectrum more useful to manufacturers and users of unlicensed spread spectrum equipment, some of whom may be small entities. Because DataPCS devices are asynchronous devices and follow a special spectrum sharing etiquette, while other Part 15 unlicensed devices are typically isochronous and do not adhere to a spectrum sharing etiquette, the Commission determined that combining the bands presented a significant danger of delaying or hampering the growth of DataPCS through interference from other unlicensed  XH-devices. Manufacturers and users of DataPCS devices may also be small entities, and the Commission declined to combine the bands because of the potential for mutual harmful interference between DataPCS devices and other unlicensed devices.  X <x4. Description and Estimate of the Number of Small Entities to Which the Rules  X <Will Apply:  The rule adopted in this Fourth Report and Order will apply to any small entity using DataPCS devices while airborne in the continental United States. Because DataPCS is as yet undeveloped, no meaningful estimate of the number or description of such small entities is possible. Since the Regulatory Flexibility Act amendments were not in effect until the record in this proceeding was closed, the Commission was unable to request an estimate of the number of small businesses that may be affected. xHowever, as DataPCS operations evolve, and until the Commission establishes a pertinent definition of small entities, the applicable definition will be under the Small Business Association (SBA) rules applicable to Communications Services, Not Elsewhere  X-Classified. This definition provides that a small entity is expressed as one with $11.0 million  X-or less in annual receipts.u; yOS-ԍ 13 C.F.R.  121.201, Standard Industrial Classification (SIC) Code 4899.u According to Census Bureau data, there are 848 firms that fall under the category of Communications Services, Not Elsewhere Classified. Of those, approximately 775 reported annual receipts of $11 million or less and qualify as small  X-entities.H<XX yO-  ԍxU.S. Bureau of the Census, U.S. Department of Commerce, 1992 Census of Transportation,  x,Communications, and Utilities, UC92S1, Subject Series, Establishment and Firm Size, Table 2D, Employment Size of Firms: 1992, SIC Code 4899 (issued May 1995).H  Xg<x5.  Summary of Projected Reporting, Recordkeeping, and Other Compliance  XQ<Requirements: The rule adopted in this Fourth Report and Order imposes no reporting or recordkeeping requirements. The rule also requires no affirmative compliance action by any entity to which it applies. Rather, the rule operates as a prohibition on the use of DataPCS devices in the 23902400 MHz band while airborne in the continental United States. We do not predict that any compliance costs, administrative or otherwise, will be imposed on entities subject to this rule. "!x<,-(-(ZZ "  X<x6. Significant Alternatives and Steps Taken to Minimize the Economic Impact on a  X<Substantial Number of Small Entities Consistent with the Stated Objectives:  The Commission believes that this allocation of DataPCS spectrum will facilitate the creation of new jobs and economic growth. At the suggestion of commenters, the Commission considered and rejected a complete ban on all use of unlicensed devices in the vicinity of the  X-NAIC. The Commission rejected this alternative as excessively burdensome to small entities using DataPCS, while of little benefit in protecting space research operations at the NAIC. The Commission also considered and agreed with a recommendation by Apple that manufacturers should not be held responsible for designing DataPCS devices to cease  X3-operations while traveling in aircraft.D=3 yO -ԍ See, decision at para. 22.D We believe that this would place an unnecessary burden on the manufacturer and we believe that it will be the responsibility of the user to control when and where the device is used. DataPCS operations are nascent, and it is not possible to determine the impact this action will have on small businesses, because we have no data on the number of small businesses likely to use DataPCS.  X <x 7. Report to Congress:  The Commission shall send a copy of this Final Regulatory Flexibility Analysis, along with this Fourth Report and Order, in a report to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.  801(a)(1)(A). A copy of this FRFA will also be published in the Federal Register. "X=,-(-(ZZD"  X-" Appendix D: Commenting Parties ă The following parties filed comments to the 2nd NPRM addressing the 23902400 MHz and 24022417 MHz bands: 1. American Radio Relay League, Inc. 2. Apple Computer, Inc. 3. AT&T Corp. 4. William A. Burns 5. Compaq Computer Corporation 6. Consumer Electronics Group of the Electronic Industries Association 7. Cornell University 8. Cylink Corporation 9. James S. Kaplan 10. Motorola, Inc. 11. Committee on Radio Frequencies of the National Academy of Sciences 12. Northern Amateur Relay Council of California, Inc. 13. Northern California Packet Association 14. The Part 15 Coalition 15. Radio Amateur Satellite Corporation 16. San Bernardino Microwave Society 17. Southern California Repeater and Remote Base Association 18. UTC 19. Nathan Williams The following parties filed reply comments to the 2nd NPRM addressing the 23902400 MHz and 24022417 MHz bands. 1. American Radio Relay League, Inc. 2. Apple Computer Corporation 3. AT&T Corp. 4. Consumer Electronics Group of the Electronic Industries Association 5. Mike Cheponis 6. Northern California Packet Association 7. Radio Amateur Satellite Corporation