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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) AIRCELL, INC. ) ) Petition, Pursuant to Section 7 of the Act,) For a Waiver of the Airborne Cellular Rule,) or, in the Alternative, for a Declaratory Ruling) ) ORDER Adopted: December 24, 1998 Released: December 24, 1998 By the Acting Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. AirCell, Inc. (AirCell) has over a period of years developed and tested a system comprised of modified cellular telephones and specially equipped ground stations designed to provide airborne cellular service to airborne mobile terminals installed on board general aviation aircraft without causing harmful interference to terrestrial cellular systems. On October 31, 1997, AirCell filed a petition requesting that the Commission waive, inter alia, section 22.925 of the Commission's rules, which prohibits the airborne use of all cellular telephones, to enable AirCell to offer an airborne cellular service to general aviation aircraft as a cellular reseller. In the alternative, AirCell asks that the Commission issue a declaratory ruling that AirCell's specially designed mobile terminals are not "cellular telephones" within the meaning of section 22.925. 2. In July 1998, AirCell and a number of cellular licensees entering into resale agreements with AirCell (cellular partners) filed an amendment to the AirCell request, establishing that the cellular partners have joined in the waiver request, thereby agreeing to modifications to their existing cellular licenses to authorize this secondary use of their licensed spectrum. For the reasons set forth below, the Wireless Telecommunications Bureau (Bureau) conditionally grants AirCell's request for waiver of section 22.925 of our rules, and will permit the cellular partners to furnish system capacity for the provision of cellular service on a secondary, conditional basis to airborne terminal units using the AirCell-developed technology. Based on the substantial record of this proceeding, the Bureau finds that the public interest benefits accruing from AirCell's airborne cellular service, in particular the enhancement of navigational safety of general aviation aircraft, outweigh what the Bureau believes is the minimal risk that such service will cause harmful interference to terrestrial cellular services. II. BACKGROUND 3. Office of Engineering and Technology Proceeding. AirCell has developed and tested several specially engineered ground stations and approximately 30 airborne mobile cellular terminals that are installed aboard general aviation aircraft pursuant to an experimental authorization. The AirCell mobile terminal consists of a standard detached handset cellular mobile telephone, with certain firmware modifications and packaged in a standard avionics box. The AirCell terminal also incorporates a specially designed aircraft antenna. AirCell terminals operate in the same frequency range as other cellular telephones (825 to 894 MHz). AirCell ground stations are collocated at the cell sites of cellular licensees who have entered into partnership with AirCell. Customer traffic from the mobile units is interconnected with the public switched network through the existing cellular switch of the AirCell partner. 4. AirCell has operated under various experimental authorizations and special temporary authorizations since 1992. On December 24, 1994, OET granted AirCell a Part 5 authorization, call sign KI2XCS, authorizing operation as an experimental radio station. On May 30, 1997, in response to oppositions filed by a number of cellular licensees operating on the same channel block as AirCell's partners, OET requested information from AirCell about its compliance with the terms of its experimental license and Part 5 rules, and imposed limitations on AirCell's experimental operations pending the results of field testing with the opposing cellular operators. Subsequently, AirCell jointly conducted field tests with AT&T Wireless (AT&T Wireless), GTE Wireless Corp. (GTE) and BellSouth Cellular Corp. (BellSouth) on July 10-11, 1997, using four cell sites in Texas and Oklahoma. AirCell filed a test report prepared by a consulting firm under contract to AirCell that it believes supports the conclusion that normal operation of the AirCell system produces very low signal strengths with little possibility of interfering with cellular base station receivers. AirCell filed a request with OET on October 9, 1997, seeking removal of the technical and operational limitations that had been placed on AirCell's experimental authorization. Opponents of the AirCell experimental license contested the AirCell request, arguing that their evaluation of the test results showed that the AirCell system could cause interference. 5. On February 11, 1998, OET lifted the limitations on AirCell's experimental authorization and stated that, although there is a possibility that AirCell's airborne mobile terminals could cause co-channel interference to cellular systems, it believed that this interference potential is limited to rural areas, the probability of such interference occurring is low and, if it occurred, would be transitory due to the mobility of the airborne terminals. While OET did not modify the scope of AirCell's experimental license to the extent requested by AirCell, OET did restore AirCell's authority to conduct a limited marketing study and increased the maximum permitted number of AirCell mobile units from 250 to 1800. On March 12, 1998, BellSouth, GTE, Southwestern Bell Mobile Systems (SBMS) and AirTouch Communications (AirTouch) jointly sought Commission review of OET's February 11, 1998 decision. That matter is currently pending. 6. Wireless Telecommunications Bureau Proceeding. On October 9, 1997, AirCell filed the captioned petition requesting that the Commission waive section 22.925, prohibiting operation of cellular telephones aboard any type of aircraft while the aircraft is in flight. In its petition for waiver, AirCell also seeks a waiver of sections 22.905(a) (assigning channel blocks exclusively to one licensee) and 22.911 (defining a cellular geographic service area), as well as waivers of "any other rules" that the Commission concludes must be waived to permit commercial deployment of AirCell service. In the alternative, AirCell requests that the Commission issue a declaratory ruling that AirCell mobile units do not constitute "cellular telephones" within the meaning of section 22.925. On October 31, 1997, the Bureau issued a public notice requesting comment on AirCell's waiver request. Numerous rounds of comments, responsive pleadings and ex parte submissions, including technical studies and analyses, both in support and in opposition, have been filed in response to AirCell's petition for waiver. 7. On July 31, 1998, AirCell jointly amended its petition for waiver with cellular partners entering into resale agreements with AirCell. AirCell and its cellular partners represented that they would work together to resolve any harmful interference caused to non-participating cellular carriers, and that the AirCell cellular partner would shut down an AirCell mobile terminal or cease AirCell operation from the relevant ground station in the event of unresolved harmful interference. 8. The AirCell System. The design of the AirCell system is based on the difference in the ambient radio frequency noise level between heavily populated areas and sparsely populated areas. By locating its ground stations in quieter areas, it is able to operate the airborne transmitters at a very low power level. AirCell's system has a number of features that are designed to address interference issues. AirCell believes that its system is designed specifically to avoid causing significant interference to terrestrial cellular systems. According to AirCell's petition, the forward link voice and control channels transmit from ground station sites at approximately the same power levels used by cellular base stations. To reduce the likelihood of interference for the reverse link transmissions, the AirCell airborne mobile terminals operate with lower transmitter power than ordinary cellular telephones. Typically, AirCell mobile terminals transmit at power output levels of 5 milliwatts or less. The AirCell system was designed to use horizontal wave polarization as opposed to the vertical polarization used by most conventional cellular systems to further decrease the likelihood that the system will cause interference. AirCell states that because terrestrial cell site transmit and receive antennas are for the most part designed for vertical polarization, horizontal wave polarization provides a degree of additional isolation between the AirCell system's signals and those of terrestrial systems. Further, AirCell states that it utilizes non-standard control channels, as well as specially shaped antenna patterns in order to afford additional protection from interference to non-participating cellular systems. Frequency coordination with non-participating cellular licensees would further reduce the potential for interference. 9. AirCell argues that its system will offer unique, cost-effective public safety benefits not now available to the general aviation sector. AirCell states that its air-ground voice and data link will provide potentially life-saving voice and data communications, including real-time weather and air traffic data, to the general aviation industry. Governmental entities expert in air traffic safety, such as the Federal Aviation Administration and the National Transportation Safety Board, also believe that a system permitting general aviation aircraft to have access to up to the minute weather information will reduce the incidence of air safety hazards. AirCell indicates that it is requesting the waiver only to allow the cellular partners to serve the airborne mobile units, and does not seek a separate allocation of spectrum for these operations. AirCell states that all airborne cellular mobile operation would be on a secondary basis to terrestrial cellular systems. AirCell asserts that it will be a facilities-based reseller of the cellular service as already provided by the participating cellular licensees. AirCell states that participating cellular licensees will operate the AirCell ground station equipment and the system will operate only on the channel block licensed to the cellular partners. AirCell estimates that its system could eventually consist of approximately 150 cellular ground stations across the country. III. DISCUSSION 10. Section 22.119(a) of the Commission's rules, 47 C.F.R.  22.119(a), provides that the Commission "may grant a request for waiver if it is shown that: (1) the underlying purpose of the rule(s) would not be served or would be frustrated by application to the instant case, and that a grant of the requested waiver would be in the public interest; or (2) in view of unique or unusual factual circumstances of the instant case, application of the rule(s) would be inequitable, unduly burdensome or contrary to the public interest, or that the applicant has no reasonable alternative." Further, section 1.3 of the Commission's rules allows the Commission to grant a waiver request upon a showing of good cause. Courts have sanctioned the Commission's exercise of its authority to grant a waiver request when special circumstances warrant a deviation from the general rule and such deviation serves the public interest. Here, the Bureau believes that AirCell has demonstrated unique and special circumstances, and that a waiver of section 22.925 would be in the public interest. 11. In 1991, the Commission modified former rule section 22.911 to prohibit the airborne use of cellular telephones. In Airborne Use of Cellular Telephones, the Commission prohibited such use because the record demonstrated that ordinary cellular telephone use in airborne aircraft poses interference concerns. As noted in the Airborne Use of Cellular Telephones, a key technical characteristic of cellular network design is frequency reuse: the assigning of the same channels to multiple, nonadjacent cells within a market. An ordinary cellular telephone in use aboard an airborne aircraft will have a much greater transmitting range than it would on the ground because of the elevation's enhancement to propagational characteristics associated with line of sight. Combining the considerably enhanced line of site with frequency reuse, the signal from an ordinary airborne cellular telephone is capable of being simultaneously received at a much larger number of cell sites than the signal from a cellular telephone in terrestrial use, thereby increasing the risk for harmful interference. Because of the greater potential for harmful interference posed by the airborne use of cellular telephones that are indistinguishable from those in terrestrial use, the Commission determined that the prohibition set forth in section 22.925 was necessary. 12. AirCell does not challenge the validity of section 22.925 and agrees that ordinary cellular telephone use in airborne aircraft can indeed result in harmful interference. In its petition for waiver, however, AirCell asserts that the concerns which caused the Commission to ban the use of ordinary cellular telephones aboard airborne aircraft are not present with respect to the cellular telephones specially designed to operate airborne on the AirCell system. AirCell maintains that it has designed and developed its communications system to ensure that interference protection will be afforded to existing cellular licensees and that data from test flights of the AirCell system demonstrate that the AirCell system will operate without causing harmful interference to terrestrial cellular operations. AirCell asserts that, because its system is specifically designed to eliminate significant interference, the underlying purpose of section 22.925 is not served by strict application of the rule. 13. AirCell's unconditional acceptance of secondary status with respect to the primary terrestrial operations of cellular licensees is a significant factor in our evaluation of whether a waiver is warranted here. Section 2.104(d)(4) of the Commission's rules mandates that secondary users may not cause harmful interference to primary users. Accordingly, the AirCell cellular partners are expressly prohibited from causing harmful interference to non-participating cellular licensees. AirCell cellular partners would be further required to cure all harmful interference caused by AirCell operations or operation at the relevant AirCell ground station would be required to cease immediately. Moreover, AirCell cellular partners may not assert the claim that Aircell's secondary operations are in anyway entitled to protection from the signals of non- participating cellular licensees. As the licensees with primary status in this band, the non-participating cellular licensees would not be under any obligation to alter their operations in any way. 14. Although commenters opposing AirCell's petition for waiver argue that the technical data shows that harmful interference will occur, we find that, based on our analysis of the record, such a conclusion can only be drawn from data collected while the AirCell system was operating with key elements of its interference reduction features disabled. We believe that the AirCell airborne mobile terminal's potential for interference should be evaluated according to its performance under normal operating conditions. Under normal operating conditions, the record fully supports the conclusion that because of the low power, special antennas and other features unique to the AirCell mobile unit, the risk of harmful interference that use of an ordinary cellular telephones in an airborne aircraft poses has been addressed. Our review of the technical data and analyses submitted by the various parties leads us to conclude that AirCell has sufficiently demonstrated that its unique technology and system design reduces the possibility of interference to co-channel cellular licensees during normal operation. The technical data indicates that the AirCell system will normally transmit at very low power levels and leads us to believe that the AirCell system will, in all likelihood, not affect or degrade the service of cellular systems. We believe, based on the record of this proceeding, that AirCell's contribution to the overall radio noise level is comparable to that of the existing sources of noise that cellular system planners must routinely overcome. Although the record demonstrates that, in unusual circumstances, a very marginal quality call in a quiet, rural area might be affected, we believe such an event would be a very infrequent occurrence that can likely be avoided altogether by careful channel selection. In light of the interference- reducing design of the AirCell equipment, as well as the interference protection that AirCell's secondary operations must provide to the terrestrial operation of cellular licensees, we conclude that the harm that section 22.925 was designed to prevent will most likely not occur from the operation of the AirCell system, and that special circumstances exist here which justify a waiver of the general rule. 15. Moreover, we believe that a waiver of section 22.925 is warranted here because the public safety benefits that will result from authorizing the use of AirCell technology serve the public interest. Commenters indicate that Aircell will provide safety-related voice communications between pilots and emergency personnel, and can be used to uplink in-cockpit, up-to-the-minute weather and air traffic information as well as potentially provide in-flight monitoring of airframe and engine operations, serving to better inform ground personnel of aircraft operations. While we acknowledge that, although unlikely, there is nonetheless a possibility of interference in certain atypical circumstances, we believe that the public benefits derived from AirCell operation outweigh the small likelihood that harmful interference will actually occur. Though some of the commenters opposing the waiver request dispute the public interest benefits of the AirCell system, we are persuaded that the AirCell system will enhance public safety by offering the public greater access to in-flight safety-related data such as real-time weather, navigation and air traffic information. 16. Federal agencies that are primarily charged with aviation safety have indicated that the availability of technology such as AirCell's would have significant public safety benefits. For example, the National Transportation Safety Board (NTSB) has noted that there is a lack of an economically feasible data link which precludes general aviation's in-flight access to graphic display of potential weather hazards. While the NTSB does not specifically endorse the AirCell system, it states that the availability of a low-cost airborne cellular radio data link has the potential to reduce accidents in general aviation operations. Similarly, the Federal Aviation Administration (FAA) has indicated that information such as graphic weather, terminal and enroute traffic information as well as airport and runway status can be up-linked, and notes that a low cost data link for general aviation will have a substantial impact on improving aviation safety. Further, the National Association of State Aviation Officials (NASAO), an organization representing state government aviation agencies that was established, inter alia, to ensure uniformity of safety measures, agrees with the importance of improved access to in-cockpit weather, navigation and air traffic information, stating that an affordable and accurate communications and data link technology is vital to aviation safety. In light of the conclusions by these aviation safety experts, as well as other entities concerned with safety precautions for the aviation industry, the Bureau believes that the public interest supports authorizing AirCell's secondary operations. The Bureau's assessment of this record leads us to conclude that strictly applying section 22.925 would be contrary to the public interest by denying the persons flying in general aviation aircraft an affordable and readily accessible means for obtaining important safety-related information. 17. Moreover, the Commission has repeatedly indicated that it is under a statutory mandate to make services available which are in the public interest, convenience and necessity. This mandate includes the public interest obligation to promote the efficient use of spectrum resource, as well as to promote new technologies and make available new services to the public. The Bureau believes that grant of the AirCell waiver will likely result in more efficient use of spectrum by allowing cellular licensees to utilize the excess capacity on their systems. Further, AirCell's voice and data link promotes competition by providing small aircraft and general aviation consumers an alternative to existing air-ground services. We agree with commenters that authorization of the AirCell system may help to promote efficiency in the management of scarce spectrum resources, generate alternative service offerings for cellular licensees, and yield these competing benefits to consumers. 18. Certain commenters have raised procedural issues which they argue preclude us from granting a waiver in this situation. We disagree, however, with an argument advanced by one commenter that a recent Commission notice of proposed rulemaking establishes a legal standard that precludes grant of this particular waiver. In Northpoint, the Commission requested comment on, inter alia, a petition for rulemaking by Northpoint Technology to permit secondary terrestrial use of the 12.2-12.7 GHz band for the retransmission of local television and provision of one-way data services by direct broadcast satellite (DBS) operators and their affiliates. In that proceeding, opponents of the Northpoint petition questioned whether the Northpoint technology could operate without causing harmful interference to the primary DBS users of the band. The Commission requested further technical analysis and comment, stating that Northpoint had not provided sufficient information or analysis to demonstrate conclusively that its technology would not cause harmful interference. One commenter argues that, as a result of Northpoint, the Commission now requires that there must be a conclusive showing that harmful interference will not be caused to the primary users of a band before a secondary use of the spectrum will be authorized. The Bureau does not read Northpoint to establish such a new and higher standard for grant of a waiver to permit secondary operations in a band. In Northpoint, the Commission simply indicated that it did not have a sufficient record to evaluate the waiver petition properly, hence the request for further technical comment. There is no indication that the Commission intended in Northpoint to depart from established precedent defining the standard for grant of a waiver and, for the first time, set the bar for waivers involving a secondary use of spectrum higher than any other type of waiver. Despite the facial similarity between the proceedings, Northpoint has no bearing on the matter before us. Unlike the situation in Northpoint, we believe that the substantial record of technical data and analyses submitted by the parties in response to the AirCell waiver request are sufficient to enable us to make a fully supported and informed determination regarding the merits of the AirCell waiver. 19. AirCell opponents also argue that this matter should not be resolved through the use of a waiver but should instead be subject to a rulemaking proceeding. Some commenters argue that authorizing AirCell operation by waiver rather than through rulemaking undercuts normal licensing processes and obligations to comply with the Commission's rules that are critical expectations imposed on all cellular licensees. For example, Airtouch contends that by authorizing the AirCell system pursuant to a waiver, AirCell would not be subject to obligations that all licensees are expected to meet, such as the rule provisions protecting the integrity of other cellular licensees. We believe, however, that these concerns are unfounded. We are expressly issuing this conditional waiver for the secondary use as defined by this record directly to the cellular licensees participating in the AirCell system. AirCell's cellular partners are unquestionably subject to normal licensing procedures and, by this action, we emphasize that all of AirCell's cellular partners, as a central part of their existing obligations to operate their systems in compliance with Part 22 rules, are primarily responsible for ensuring that AirCell's operations do not interfere with those of the primary co-channel licensees. In the event that interference does occur, we hold AirCell's cellular partners solely responsible for promptly correcting such interference. 20. Commenters also argue that this proceeding should be in a notice and comment rulemaking because AirCell's proposal for its "service" requires a formal reallocation of spectrum, that it is possible that other entities may seek similar waivers and that there is a need to ensure that there is sufficient spectrum for other such applicants. These arguments, however, presume that the AirCell system proposes a new air- ground telecommunications service, that the Bureau is authorizing more than a conditional waiver based on this record, and that the AirCell system and the Bureau's action have a far broader applicability than the terms of this secondary conditional grant contemplates. We do not believe that an allocation of spectrum is necessary because the AirCell waiver request does not contemplate the need to create an entirely new service or issue any type of new license; the AirCell request proposes an alternative mode of cellular service that will be accommodated on existing licensed cellular spectrum. Moreover, our decision is based on the record before us solely as it relates to the AirCell system. There is nothing in the record that indicates a more generic interest in similar technology nor are we able, on the record, to predict future interest by different entities in proposing a similar service. Further we do not have a record before us that would support the possible need to ensure that future applicants are accommodated. To clarify and reiterate, the Bureau decision is premised solely on the record generated by AirCell's unique proposed use. Other proposals must be considered on their own merit, based on a separate record, at such time as they are presented to the Bureau. 21. Another procedural issue raised by commenters is the argument that by granting a waiver, we are indirectly modifying the licenses of non-participating cellular carriers without notice and opportunity to participate in a hearing. In Western Broadcasting Co., v. FCC, the Court of Appeals for the District of Columbia Circuit noted that section 316 of the Communications Act, as amended, provides that a licensee has a right to participate in a hearing where it is alleged that a new or modified grant will create objectionable interference, and thereby an indirect modification, to an existing license. We agree with commenters that section 316 of the Communications Act as well as section 1.87 of the Commission's rules require that notice and an opportunity for hearing be provided in the event that the Commission deems it necessary to modify a primary license. This notwithstanding, commenters' argument is misplaced. Neither section 316 of the Communications Act nor section 1.87 of the Commission's rules apply here because we are not modifying, directly or indirectly, the licenses of non-participating cellular licensees. We emphasize that any operation of AirCell technology is authorized on a secondary basis only. Nothing in this waiver grant modifies, in any way, the existing rights or obligations of non-participating cellular licensees. Non-participating cellular licensees are not required to accept harmful interference, nor are they required to alter their operations to accommodate AirCell operations in any way. Here, there can be no indirect modifications triggering a section 316 or section 1.87 notice and hearing requirement because authorization of the AirCell system is predicated on the demonstrated lack of harmful interference. 22. We note that the Court of Appeals for the District of Columbia Circuit in Wait Radio indicated that the Commission's "discretion to proceed in difficult areas through general rules is intimately linked to the existence of a safety valve procedure for consideration of an application for exemption based on special circumstances." We find that the unique and special circumstances required to justify a waiver of section 22.925 exist where the AirCell system, operated in accordance with its secondary status and pursuant to the recommended guidelines set forth in Appendix B, does not produce the harm that section 22.925 is designed to prevent, i.e. harmful interference. We note that the issue of whether the AirCell technology causes harmful interference to cellular systems that do not participate in the system has been a contentious one and we have seriously considered arguments put forward by those opposing AirCell's petition for waiver. The Bureau reiterates that authorization of the AirCell system is on a secondary basis only. No provision in this order or in the conditions that govern AirCell's proposed operations, should be interpreted to require any licensee not participating in the AirCell system to alter its operations in any way. Instead, all harmful interference caused by AirCell operation must be cured immediately or operation at the offending AirCell ground station must cease. Accordingly, in light of our conclusion that proper operation of the AirCell system sufficiently diminishes the risk of harmful interference to cellular systems, we believe that it is appropriate to grant relief in the form of a limited waiver. 23. This waiver and the authority to operate the AirCell equipment are subject to all technical and operating conditions listed in Appendix A of this order. We note in particular that in Condition 4 we are establishing a procedure for non-participating cellular licensees to bring evidence to the Commission that the operation of the AirCell system is resulting in certain interference to their operations, even if such interference does not rise to the level of harmful interference. If such evidence is presented, the commission may terminate or modify the authority set forth in this waiver if the complaint is not satisfactorily resolved in a timely fashion. We are adopting this provision because of our concern that the AirCell system not detrimentally affect non- participating licensees and the difficulty of proving that disruptions to service are attributable to any particular cause. We also note that in Condition 7 we are limiting AirCell operation to channels that are used for analog cellular service or are unused in the area in question. Although it is possible that the AirCell system does not interfere with digital cellular systems, we cannot reach that conclusion at this time based on the record in this waiver proceeding. Finally, we are setting in Condition 6 a notification distance at 168 miles, which was suggested by GTE. We believe that this is a conservative distance based on the guidelines given in Appendix B. 24. We have also set out, in Appendix B, a number of technical and operational parameters that we believe will further aid participants in the AirCell system in complying with the obligations imposed pursuant to their secondary status. From a review of the technical data in the record, we believe that these guidelines will permit effective operation of the AirCell system while also helping to prevent harmful interference from occurring to cellular systems. We caution, however, that the parameters enumerated in Appendix B are not intended to be mandatory or exhaustive. Our decision is based on conclusions drawn from the current record in this proceeding. In the event that circumstances change, the technical and operational parameters must also change to ensure that the AirCell participants continue to operate in full compliance with their secondary status. 25. This waiver is issued directly to the cellular licensees who have signed agreements to become participants in the AirCell system and are made parties in this proceeding by virtue of the July 31, 1998 amendment. Any future cellular licensee seeking to participate in the AirCell system must file with the Commission a request for waiver, with an attachment stating its intention to participate in the AirCell system. The attachment must include a statement acknowledging that the licensee agrees to the terms of this waiver and conditions set forth herein. 26. As a final matter, AirCell, as part of its petition for waiver, requests that the Commission waive section 22.905(a) and section 22.911 of the Commission's rules. Section 22.905(a) assigns a channel block exclusively to a licensee for use in that licensee's CGSA. We do not believe that a waiver of section 22.905(a) is necessary as AirCell will operate as a reseller on channels already licensed to AirCell cellular partners, and because waiver of section 22.925 is issued directly to the cellular licensees participating in the AirCell system. Our waiver of section 22.925 and decision to authorize operation of the AirCell system does not confer licensee status to AirCell. Channel blocks included within the AirCell system remain exclusively assigned to one licensee: the AirCell partner. Accordingly, we deny the request to waive section 22.905(a). 27. We also deny AirCell's request for waiver of section 22.911 of the Commission's rules. Section 22.911 defines the cellular geographic service area (CGSA) of cellular carriers and sets out the protection afforded to cellular licensees from interference and from capture of subscriber traffic by adjacent systems. We emphasize that our decision to authorize operation of the AirCell equipment in no way diminishes the protections that our rules provide to existing cellular licensees. Cellular licensees not participating in the AirCell system will not be required to accept more interference than Part 22 of the Commission's rules currently permits. Participation in the AirCell system does not alter a carrier's obligation to ensure that it is not causing harmful interference or capturing an adjacent carrier's subscriber traffic. To the contrary, as we have repeatedly noted, supra, the essence of this waiver is that it is issued on a secondary basis which provides that the rights and protections guaranteed to existing licensees must be scrupulously observed. We therefore deny the request for waiver of section 22.911. IV. CONCLUSION 28. Upon review of the extensive record in this proceeding, we are persuaded that AirCell has sufficiently shown that unique circumstances exist which justify a limited waiver of section 22.925 and that a strict application of the Commission's rule prohibiting the airborne use of cellular telephones would be contrary to the public interest. While we are mindful of the interference concerns expressed by a number of commenters, we believe that proper operation of the AirCell system will not be prejudicial to cellular licensees. We believe that we have developed an operating scheme that will enable AirCell to offer its air-ground voice and data link system to the public while also preserving non-participating carriers the protection from harmful interference guaranteed them in our rules. We conclude that authorizing the operation of the AirCell system will provide greater access to public safety information and better serves the public interest than strict application of section 22.925. 29. As set forth in Condition 9 in Appendix A, we are issuing this waiver for a duration of two years. Competitive forces are accelerating the conversion of cellular service from analog to digital, and further technological advances in cellular telephones may alter some of the assumptions on which the AirCell system operates. AirCell's technology may also evolve during the next two years. We believe that after some operating experience is gained, we will be able to determine whether an extension of this waiver authority is warranted. V. PROCEDURAL MATTERS 30. Because items in this order pertain to the collection of information, we will seek approval from the Office of Management and Budget (OMB) for the proposed collection as required by the Paperwork Reduction Act of 1995. Members of the public are not required to respond to a collection of information sponsored by the Federal government, and the government may not conduct or sponsor a collection, unless the information collection contains a currently valid OMB control number. Accordingly, cellular licensees will not be required to submit information until we have obtained such approval. We will notify the public once we have obtained approval for the proposed information collection. VI. ORDERING CLAUSES 31. Accordingly, IT IS ORDERED, pursuant to sections 1.3 and 22.119(a) of the Commission's rules, 47 C.F.R.  1.3, 22.119(a), that AirCell, Inc.'s request for rule waiver of section 22.925 of the Commission's rules, 47 C.F.R.  22.925, IS GRANTED, subject to the terms and conditions set forth herein, and its request in all other respects, IS DENIED. 32. This action is taken pursuant to the authority delegated in section 0.331 of the Commission's rules, 47 C.F.R.  0.331. FEDERAL COMMUNICATIONS COMMISSION Gerald Vaughan Acting Chief, Wireless Telecommunications Bureau APPENDIX A Special Conditions Authority to provide cellular service to airborne terminals pursuant to this Order is subject to the following conditions derived from the record of this proceeding: 1. Secondary service. Cellular service provided to airborne terminals is deemed a secondary service and as such will be held subject to the provisions of section 2.104(d)(4) of the Commission's rules (47 C.F.R.  2.104(d)(4)). 2. Contact. A contact point capable of shutting down, either individually or collectively, the ground stations that provide cellular service to airborne terminals, must be available at all times. The telephone number of this contact point must be provided to notified licensees (see condition number 6). 3. Duty to provide information. Cellular licensees providing cellular service to airborne terminals must promptly provide upon request by the Commission any information relating to any complaint of interference. Such information could include, but is not be limited to, call records for specific ground stations including abnormal terminations and information regarding channel usage. Records of such information must be retained for at least 30 days. 4. Harmful interference. Harmful interference, for the purpose of this condition, is defined as the serious degradation, obstruction, or repeated interruption of cellular service. See c.f. definition of "harmful interference" in section 2.1 of the Commission's rules (47 C.F.R.  2.1). Any cellular licensee providing cellular service to airborne terminals must immediately take action to resolve any instance of harmful interference, where factual evidence (e.g. time of incident and channel coincide) shows that the instance is likely to have occurred as a result of the operation of ground stations or airborne terminals under its control. In addition and notwithstanding the foregoing, any cellular licensee providing cellular service to airborne terminals must promptly take action to resolve any complaint concerning the effect of unwanted energy on reception in a cellular radiotelephone system, manifested by a measured degradation in actual performance relative to that normally attained in the absence of such unwanted energy where factual evidence shows that such effect is likely to be occurring as a result of the operation of ground stations or airborne terminals under its control. See c.f. definition of "interference" in section 2.1 of the Commission's rules. Factual evidence means actual operational data (such as abnormal terminations or other relevant performance measures), collected over a substantial continuous period, which shows degradation of performance on channels used for airborne service as compared to other channels in service using the same antenna. The Commission may terminate or modify authority for any cellular licensee to provide cellular service to airborne terminals from any or all ground stations under the control of that licensee, without opportunity for a hearing, if any valid complaint under this condition is not satisfactorily resolved in a timely fashion. 5. Operational requirements. Airborne terminals may transmit only when in communication with a ground station. Airborne terminals must be designed such that unintended interoperation with co-block terrestrial cellular systems is prevented. 6. Ground station channel selection. Each ground station may use no more than six paired channels taken from those specified as communication channels in Section 22.905 of the Commission's rules (47 C.F.R.  22.905). Licensees providing cellular service to airborne terminals must notify appropriate co-block licensees at least 30 days prior to commencement of testing or initiation of service of each ground station. The purpose of such notification is to provide the notified licensees an opportunity to participate in determining which channels are to be used at the ground station. Appropriate licensees to be notified are those having one or more co-block transmitter sites located within 270 kilometers (168 miles) of the proposed ground station. Notification must contain relevant technical details including the geographical coordinates of the ground station antenna site, the channels proposed to be used, and the designed communication range of the ground station to airborne mobile terminals. If a notified licensee fails to respond within 30 days, the notifying cellular licensee may consider this to be concurrence with the channel selection set forth in the notification. This latter 30-day period begins on the date of receipt of the notification by the licensee being notified. 7. Co-channel technology limitation. Channels that may be used at each ground station are limited to those that either are (1) unused by the parties with whom coordination is required, or (2) are used by the parties with whom coordination is required to provide compatible analog cellular service as defined in Section 22.933 of the Commission's rules (47 C.F.R.  22.933), unless all of the parties with whom coordination is required agree to allow the use at a particular ground station of channels that they are using to provide service using an alternative technology. 8. International limitation. Until such time as appropriate arrangements between the U.S. Government and the governments of Canada and Mexico, respectively, are agreed to concerning cellular service to airborne mobile terminals, the following restriction applies: No ground station may be established at that will enable cellular service to airborne mobile terminals on aircraft while such aircraft are in flight over Canada or Mexico. 9. Duration of waiver. One year after the date of grant of the waiver allowing cellular licensees to provide cellular service to airborne terminals in accordance with these conditions, cellular licensees may each submit a comprehensive report to assist the Commission in evaluating whether continuation of the waiver is in the public interest. Reports from participating licensees should include a description of their experiences with the provision of cellular service to airborne terminals, including feasibility, quality of service, customer satisfaction, incidents of interference, if any, and how any such incidents were successfully resolved. Unless the Commission shall determine otherwise as a result of evaluation of these reports, the waiver will terminate two years after the date of grant. APPENDIX B Illustrative Technical and Operational Characteristics GROUND STATIONS  located in rural, low-noise areas  use of low-loss components to maximize receive sensitivity  transmitter effective radiated power does not exceed 500 Watts  typical service range to airborne terminals is 135 kilometers (84 miles)  uptilted antenna is employed  electromagnetic waves emitted are horizontally polarized AIRBORNE MOBILE TERMINALS  transmitter is permanently installed in the aircraft  installation is inspected by authorized representative of manufacturer  transmits only when in communication with a ground station  unintended interoperation with co-block cellular base stations is prevented  transmitter output power is dynamically controlled by ground station  transmitter output power never exceeds 19 dBm  transmitter output power rarely exceeds 11 dBm  uses external permanently installed antenna  antenna is essentially omnidirectional in the horizontal plane  antenna exhibits conical null directly below aircraft  electromagnetic waves emitted are horizontally polarized during normal flight  incorporates standard cellular telephone for use only when aircraft on ground