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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 ) Amendment of the Commission's ) ET Docket No. 96-2 Rules to Establish a Radio Astronomy ) RM-8165 Coordination Zone in Puerto Rico ) MEMORANDUM OPINION AND ORDER Adopted: June 29, 1998 Released: July 2, 1998 By the Commission: I. INTRODUCTION 1. By this action, the Commission clarifies its rules regarding the Arecibo Radio Astronomy Observatory (Observatory) Coordination Zone that covers the islands of Puerto Rico, Desecheo, Mona, Vieques, and Culebra within the Commonwealth of Puerto Rico (the Puerto Rican Islands). This action is taken in response to a petition for reconsideration filed by the Puerto Rico Telephone Company (PRTC). The action will promote efficient coordination between the Observatory and service applicants in the Coordination Zone. II. BACKGROUND 2. In the Report and Order (R&O) in this proceeding, we established a Coordination Zone that covers the Puerto Rican Islands. The policies that we established regarding the Coordination Zone require that: 1) applicants for new radio facilities in various communications services must provide notification of their proposed operations to the Observatory no later than the time their license applications are submitted to us; 2) applicants for modified radio facilities in these services must provide notification of their proposed operations to the Observatory no later than the time their license applications are submitted to us, but only if the modified facilities pose an interference threat to the operations of the Observatory; and 3) applicants for new radio facilities in commercial wireless services in which individual station licenses are not issued must provide notification of their proposed operations to the Observatory at least 45 days in advance of their proposed operations if their facilities pose an interference threat to the operations of the Observatory. 3. In the R&O, we provided the Observatory 20 days to file comments with us regarding each service applicant's potential for interference, and applicants are responsible for making reasonable efforts to accommodate the interference concerns of the Observatory. We did not establish interference standards, but required the operator of the Observatory -- Cornell University (Cornell) -- to provide interference guidelines to service applicants so that applicants may consider protection to the Observatory in the early design phase of radio facilities. 4. PRTC filed a petition for reconsideration of the R&O, in which it urges us to reconsider three aspects of this decision. First, PRTC contends, we have inappropriately left control of interference standards to Cornell. PRTC argues that we should establish specific standards or, alternatively, require Cornell to develop standards and submit them to us for review. Second, PRTC urges us to place restrictions on what "reasonable efforts" will be required to satisfy Cornell in a given instance. PRTC contends that the record in the proceeding is not clear as to whether even as significant a change to a broadcast station's operating parameters as mandatory time-sharing of frequencies with the Observatory would be deemed "reasonable" by the Commission. Finally, PRTC urges us to reconsider our decision to apply coordination filing requirements to commercial wireless services for which we award licenses for geographic service areas but not for individual operating facilities. PRTC argues that it is inconsistent to create a duty to file notifications with Cornell when such licensees are not required to file any information with us, and that the Notice of Proposed Rule Making (NPRM) in this proceeding gave no notice that we were considering creating such a duty. No oppositions or other comments were filed regarding PRTC's petition. III. DISCUSSION A. Interference Standards 5. The services covered by the Coordination Zone encompass a broad range of power levels and frequencies, and factors such as terrain and propagation characteristics further complicate interference evaluations; therefore, developing accurate interference standards would be very time-consuming and difficult. This is true whether we or Cornell attempts to develop such standards -- accordingly, neither of PRTC's proposals in this regard appears feasible. However, as discussed in the R&O, interference guidelines may significantly lessen coordination problems, and Cornell has pledged to develop such guidelines. 6. We therefore remain convinced that a guideline approach is preferable to a standards approach. We find it efficient for Cornell to develop guidelines because it has gained expertise over many years through informal coordination with service applicants in the Coordination Zone. PRTC contends that permitting Cornell to develop guidelines accords Cornell too much power, but we note that service applicants or licensees who believe that Cornell's guidelines are overly stringent may challenge them before the Commission, which remains the sole entity that has the authority to rule on service licensing issues. We reiterate our statement in the R&O that telecommunications service providers in Puerto Rico provide highly important services that must be maintained. Further, we believe it is in Cornell's self-interest to develop realistic guidelines so as to avoid unnecessary disputes with service applicants. Accordingly, we are affirming our decision and requiring Cornell to establish interference guidelines for each service in the Coordination Zone. B. Reasonable Efforts 7. In the R&O, we stated that "reasonable efforts [to minimize interference from various telecommunications services to the Observatory] will vary from case-to-case, dependent on the degree of harm to the Observatory's operations and the extent of the change needed to prevent such harm" and "to attempt to set forth a general definition of the term 'reasonable efforts' is extremely difficult, if not impossible." While we appreciate PRTC's desire for a general definition of this term, each situation will have its own unique aspects, and in the event of any disputes, we will evaluate what is reasonable on a case-by-case basis. Accordingly, we are denying PRTC's request to place general restrictions on the types of reasonable efforts that will be required of service applicants in the Coordination Zone. 8. However, while what is reasonable in each individual situation will vary, we can alleviate PRTC's specific concern regarding time-sharing of frequencies. As we stated in the R&O: "We also observe that adoption of a Coordination Zone would neither allocate additional spectrum for RAS [Radio Astronomy Service] use, nor provide the Observatory additional rights to spectrum allocated to other services." Requiring service providers in the Coordination Zone to time-share spectrum with the Observatory would provide it "additional rights to spectrum allocated to other services." Accordingly, we are clarifying that involuntary time-sharing of frequencies between the Observatory and licensed services will not be mandated. This clarification does not prohibit voluntary time-sharing arrangements between the Observatory and a service provider. For example, a radio or television station might reach an agreement with the Observatory not to transmit between the hours of 2-5 A.M., except in the case of an emergency. C. Commercial Wireless Services in Which Licensees Do Not Receive Individual Station Licenses 9. We disagree with PRTC's argument that we gave no notice in the NPRM that commercial wireless services not licensed on a per-site basis would be included. The intent of our proposal was to create an inclusive Coordination Zone. In the NPRM we stated: "We believe that the sensitivity of the Observatory's equipment and the many types of services that could cause interference to it necessitates that applicants for Part 5, 21, 22, 23, 24, 25, 26, 73, 74, 78, 80, 87, 90, 94, 95, and 97 services in the Coordination Zone, with certain exceptions as discussed below, notify the Observatory of their proposed operations" (footnote omitted). Four of these Parts (22, 24, 26, and 90) include commercial wireless services in which the rules permit licensees to construct new base station sites without notifying us, and a fifth rule part including such commercial wireless services (Part 27) was established subsequent to the NPRM. Further, the issue of commercial wireless services in which licensees do not receive individual station licenses was specifically addressed by parties commenting on the NPRM. Accordingly, adequate notice of this issue was given on including in the Coordination Zone commercial wireless services in which individual station licenses are not issued. 10. Regarding the substantive issue raised by PRTC of including such commercial wireless services in our coordination requirements, we stress that licensees of such services are required to notify the Observatory only when a new transmitter may cause harmful interference to the operations of the Observatory. We will continue to rely upon each operator to determine when a transmitter may pose an interference threat to the operations of the Observatory. We note that operators in these services must comply with the notification requirements when new transmitters are introduced. We cannot exclude the possibility that in some circumstances the introduction of a new or modified transmitter in a geographically- licensed service could result in harmful interference to the Observatory. Accordingly, we find that in those circumstances notification to the Observatory must take place. To make this policy explicit in the rules, we are adopting clarifying language for Parts 22, 24, 26, 27, and 90. 11. Finally, in the Rules Appendix to the R&O, the amended rules of Part 97 inadvertently omitted language specifying that a licensee is required to make reasonable efforts to resolve or mitigate any potential interference problems with the Observatory and that a licensee must notify the Observatory of new or modified facilities at least 20 days in advance of planned operation. Accordingly, we are adding that language to Part 97 -- see  97.203(h) and 97.205(h) -- to conform these rules to the decisions made in the R&O. IV. PROCEDURAL INFORMATION 12. Final Regulatory Flexibility Certification. As required by Section 603 of the Regulatory Flexibility Act (RFA), 5 U.S.C.  603, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM. We sought written comments on the proposals in the NPRM, including the IRFA. No commenting parties raised issues specifically in response to the IRFA, and a Final Regulatory Flexibility Analysis was included in the R&O. The rules adopted in this Memorandum Opinion and Order (MO&O) provide clarification of the rules adopted in the R&O. We therefore certify pursuant to section 605(b) of the RFA that the rules adopted in the MO&O do not have a significant economic impact on a substantial number of small entities. We shall provide a copy of this certification to the Chief Counsel for Advocacy of the SBA, and shall include it in the report to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. The certification will also be published in the Federal Register. 13. Accordingly, IT IS ORDERED that Parts 22, 24, 26, 27, 90, and 97 of our Rules ARE AMENDED as specified in the Appendix, effective 30 days after publication of a summary of this document and the rule changes in the Federal Register. IT IS FURTHER ORDERED that the petition for reconsideration filed by the Puerto Rico Telephone Company IS GRANTED to the extent indicated herein, and otherwise IS DENIED. This action is authorized by Sections 4(i), 303(f), 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. Section 154(i), 303(f), 303(g), and 303(r). FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary APPENDIX: FINAL RULES A. Part 22 of Chapter I of Title 47 of the Code of Federal Regulations is amended as follows: 1. The authority citation in Part 22 continues to read: AUTHORITY: 47 U.S.C. 154, 303, unless otherwise noted. 2. Section 22.369(d) is amended to read as follows:  22.369 Quiet zones and Arecibo Coordination Zone. * * * * * (d) * * * (1) Carriers planning to construct and operate a new Public Mobile Services station at a permanent fixed location on the islands of Puerto Rico, Desecheo, Mona, Vieques or Culebra in services in which individual station licenses are issued by the FCC; planning to construct and operate a new Public Mobile Services station at a permanent fixed location on these islands that may cause interference to the operations of the Arecibo Observatory in services in which individual station licenses are not issued by the FCC; or planning a modification of any existing Public Mobile Services station at a permanent fixed location on these islands that would increase the likelihood of causing interference to the operations of the Arecibo Observatory must notify the Interference Office, Arecibo Observatory, Post Office Box 995, Arecibo, Puerto Rico 00613, in writing or electronically (e-mail address: prcz@naic.edu), of the technical parameters of the planned operation. Carriers may wish to use the interference guidelines provided by Cornell University as guidance in designing facilities to avoid interference to the Observatory. The notification must include identification of the geographical coordinates of the antenna location (NAD-83 datum), the antenna height, antenna directivity (if any), proposed channel and FCC Rule Part, type of emission, and effective isotropic radiated power. (2) In services in which individual station licenses are issued by the FCC, the notification required in paragraph (d)(1) of this section should be sent at the same time the application is filed with the FCC, and at least 20 days in advance of the applicant's planned operation. The application must state the date that notification in accordance with paragraph (d)(1) was made. In services in which individual station licenses are not issued by the FCC, the notification required in paragraph (d)(1) of this section should be sent at least 45 days in advance of the applicant's planned operation. In the latter services, the Interference Office must inform the FCC of a notification by an applicant within 20 days if the Office plans to file comments or objections to the notification. After the FCC receives an application from a service applicant or is informed by the Interference Office of a notification from a service applicant, the FCC will allow the Interference Office a period of 20 days for comments or objections in response to the application or notification. (3) If an objection to any planned service operation is received during the 20-day period from the Interference Office, the FCC will take whatever action is deemed appropriate. B. Part 24 of Chapter I of Title 47 of the Code of Federal Regulations is amended as follows: 1. The authority citation in Part 24 continues to read: AUTHORITY: 47 U.S.C. 154, 301, 302, 303, 309, and 332, unless otherwise noted. 2. Section 24.18 is amended to read as follows:  24.18 Notification to the Arecibo Observatory. (a) The requirements in this section are intended to minimize possible interference at the Arecibo Observatory in Puerto Rico. Licensees must make reasonable efforts to protect the Observatory from interference. Licensees planning to construct and operate a new station at a permanent fixed location on the islands of Puerto Rico, Desecheo, Mona, Vieques or Culebra in services in which individual station licenses are issued by the FCC; planning to construct and operate a new station at a permanent fixed location on these islands that may cause interference to the operations of the Arecibo Observatory in services in which individual station licenses are not issued by the FCC; or planning a modification of any existing station at a permanent fixed location on these islands that would increase the likelihood of causing interference to the operations of the Arecibo Observatory must notify the Interference Office, Arecibo Observatory, Post Office Box 995, Arecibo, Puerto Rico 00613, in writing or electronically (e-mail address: prcz@naic.edu), of the technical parameters of the planned operation. Carriers may wish to use the interference guidelines provided by Cornell University as guidance in designing facilities to avoid interference to the Observatory. The notification must include identification of the geographical coordinates of the antenna location (NAD-83 datum), the antenna height, antenna directivity (if any), proposed channel and FCC Rule Part, type of emission, and effective isotropic radiated power. (b) In services in which individual station licenses are issued by the FCC, the notification required in paragraph (a) of this section should be sent at the same time the application is filed with the FCC, and at least 20 days in advance of the applicant's planned operation. The application must state the date that notification in accordance with paragraph (a) was made. In services in which individual station licenses are not issued by the FCC, the notification required in paragraph (a) of this section should be sent at least 45 days in advance of the applicant's planned operation. In the latter services, the Interference Office must inform the FCC of a notification by an applicant within 20 days if the Office plans to file comments or objections to the notification. After the FCC receives an application from a service applicant or is informed by the Interference Office of a notification from a service applicant, the FCC will allow the Interference Office a period of 20 days for comments or objections in response to the application or notification. (c) If an objection to any planned service operation is received during the 20-day period from the Interference Office, the FCC will take whatever action is deemed appropriate. C. Part 26 of Chapter I of Title 47 of the Code of Federal Regulations is amended as follows: 1. The authority citation in Part 26 continues to read: AUTHORITY: 47 U.S.C. Sections 154, 301, 302, 303, 309, and 332, unless otherwise noted. 2. Section 26.105 is amended to read as follows:  26.105 Notification to the Arecibo Observatory. (a) The requirements in this section are intended to minimize possible interference at the Arecibo Observatory in Puerto Rico. Licensees must make reasonable efforts to protect the Observatory from interference. Licensees planning to construct and operate a new station at a permanent fixed location on the islands of Puerto Rico, Desecheo, Mona, Vieques or Culebra in services in which individual station licenses are issued by the FCC; planning to construct and operate a new station at a permanent fixed location on these islands that may cause interference to the operations of the Arecibo Observatory in services in which individual station licenses are not issued by the FCC; or planning a modification of any existing station at a permanent fixed location on these islands that would increase the likelihood of causing interference to the operations of the Arecibo Observatory must notify the Interference Office, Arecibo Observatory, Post Office Box 995, Arecibo, Puerto Rico 00613, in writing or electronically (e-mail address: prcz@naic.edu), of the technical parameters of the planned operation. Carriers may wish to use the interference guidelines provided by Cornell University as guidance in designing facilities to avoid interference to the Observatory. The notification must include identification of the geographical coordinates of the antenna location (NAD-83 datum), the antenna height, antenna directivity (if any), proposed channel and FCC Rule Part, type of emission, and effective isotropic radiated power. (b) In services in which individual station licenses are issued by the FCC, the notification required in paragraph (a) of this section should be sent at the same time the application is filed with the FCC, and at least 20 days in advance of the applicant's planned operation. The application must state the date that notification in accordance with paragraph (a) was made. In services in which individual station licenses are not issued by the FCC, the notification required in paragraph (a) of this section should be sent at least 45 days in advance of the applicant's planned operation. In the latter services, the Interference Office must inform the FCC of a notification by an applicant within 20 days if the Office plans to file comments or objections to the notification. After the FCC receives an application from a service applicant or is informed by the Interference Office of a notification from a service applicant, the FCC will allow the Interference Office a period of 20 days for comments or objections in response to the application or notification. (c) If an objection to any planned service operation is received during the 20-day period from the Interference Office, the FCC will take whatever action is deemed appropriate. D. Part 27 of Chapter I of Title 47 of the Code of Federal Regulations is amended as follows: 1. The authority citation in Part 27 continues to read: AUTHORITY: 47 U.S.C. Sections 154, 301, 302, 303, 307, 309, and 332, unless otherwise noted. 2. Section 27.62 is added to read as follows:  27.62 Notification to the Arecibo Observatory. (a) The requirements in this section are intended to minimize possible interference at the Arecibo Observatory in Puerto Rico. Licensees must make reasonable efforts to protect the Observatory from interference. Licensees planning to construct and operate a new station at a permanent fixed location on the islands of Puerto Rico, Desecheo, Mona, Vieques or Culebra in services in which individual station licenses are issued by the FCC; planning to construct and operate a new station at a permanent fixed location on these islands that may cause interference to the operations of the Arecibo Observatory in services in which individual station licenses are not issued by the FCC; or planning a modification of any existing station at a permanent fixed location on these islands that would increase the likelihood of causing interference to the operations of the Arecibo Observatory must notify the Interference Office, Arecibo Observatory, Post Office Box 995, Arecibo, Puerto Rico 00613, in writing or electronically (e-mail address: prcz@naic.edu), of the technical parameters of the planned operation. Carriers may wish to use the interference guidelines provided by Cornell University as guidance in designing facilities to avoid interference to the Observatory. The notification must include identification of the geographical coordinates of the antenna location (NAD-83 datum), the antenna height, antenna directivity (if any), proposed channel and FCC Rule Part, type of emission, and effective isotropic radiated power. (b) In services in which individual station licenses are issued by the FCC, the notification required in paragraph (a) of this section should be sent at the same time the application is filed with the FCC, and at least 20 days in advance of the applicant's planned operation. The application must state the date that notification in accordance with paragraph (a) was made. In services in which individual station licenses are not issued by the FCC, the notification required in paragraph (a) of this section should be sent at least 45 days in advance of the applicant's planned operation. In the latter services, the Interference Office must inform the FCC of a notification within 20 days if the Office plans to file comments or objections to the notification. After the FCC receives an application from a service applicant or is informed by the Interference Office of a notification from a service applicant, the FCC will allow the Interference Office a period of 20 days for comments or objections in response to the application or notification. (c) If an objection to any planned service operation is received during the 20-day period from the Interference Office, the FCC will take whatever action is deemed appropriate. E. Part 90 of Title 47 of the Code of Federal Regulations is amended as follows: 1. The authority citation for Part 90 continues to read as follows: AUTHORITY: Sections 4, 303, and 332, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303, and 332, unless otherwise noted. 2. Section 90.177(f) is amended to read as follows:  90.177 Protection of certain radio receiving locations. * * * * * (f) Licensees planning to construct and operate a new station at a permanent fixed location on the islands of Puerto Rico, Desecheo, Mona, Vieques or Culebra in services in which individual station licenses are issued by the FCC; planning to construct and operate a new station at a permanent fixed location on these islands that may cause interference to the operations of the Arecibo Observatory in services in which individual station licenses are not issued by the FCC; or planning a modification of any existing station at a permanent fixed location on these islands that would increase the likelihood of causing interference to the operations of the Arecibo Observatory must notify the Interference Office, Arecibo Observatory, Post Office Box 995, Arecibo, Puerto Rico 00613, in writing or electronically (e-mail address: prcz@naic.edu), of the technical parameters of the planned operation. Carriers may wish to use the interference guidelines provided by Cornell University as guidance in designing facilities to avoid interference to the Observatory. The notification must include identification of the geographical coordinates of the antenna location (NAD-83 datum), the antenna height, antenna directivity (if any), proposed channel and FCC Rule Part, type of emission, and effective isotropic radiated power. (1) In services in which individual station licenses are issued by the FCC, the notification required in paragraph (f) of this section should be sent at the same time the application is filed with the FCC, and at least 20 days in advance of the applicant's planned operation. The application must state the date that notification in accordance with paragraph (f) was made. In services in which individual station licenses are not issued by the FCC, the notification required in paragraph (f) of this section should be sent at least 45 days in advance of the applicant's planned operation. In the latter services, the Interference Office must inform the FCC of a notification within 20 days if the Office plans to file comments or objections to the notification. (2) After the FCC receives an application from a service applicant or is informed by the Interference Office of a notification from a service applicant, the FCC will allow the Interference Office a period of 20 days for comments or objections in response to the application or notification. The applicant will be required to make reasonable efforts in order to resolve or mitigate any potential interference problem with the Arecibo Observatory and to file either an amendment to the application or a modification application, if appropriate. If the FCC determines that an applicant has satisfied its responsibility to make reasonable efforts to protect the Observatory from interference, its application may be granted. (3) * * * F. Part 97 of Title 47 of the Code of Federal Regulations is amended as follows: 1. The authority citation in Part 97 continues to read: AUTHORITY: 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303. Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47 U.S.C. 151-155, 301-609, unless otherwise noted. 2. Section 97.203(h) is amended to read as follows:  97.203 Beacon station. * * * * * (h) The provisions of this paragraph do not apply to repeaters that transmit on the 1.2 cm or shorter wavelength bands. Before establishing a repeater within 16 km (10 miles) of the Arecibo Observatory or before changing the transmitting frequency, transmitter power, antenna height or directivity of an existing repeater, the station licensee must give notification thereof at least 20 days in advance of planned operation to the Interference Office, Arecibo Observatory, Post Office Box 995, Arecibo, Puerto Rico 00613, in writing or electronically, of the technical parameters of the proposal. Licensees who choose to transmit information electronically should e-mail to: prcz@naic.edu (1) * * * (2) If an objection to the proposed operation is received by the FCC from the Arecibo Observatory, Arecibo, Puerto Rico, within 20 days from the date of notification, the FCC will consider all aspects of the problem and take whatever action is deemed appropriate. The licensee will be required to make reasonable efforts in order to resolve or mitigate any potential interference problem with the Arecibo Observatory. 3. Section 97.205(h) is added to read as follows:  97.205 Repeater station. * * * * * (h) The provisions of this paragraph do not apply to repeaters that transmit on the 1.2 cm or shorter wavelength bands. Before establishing a repeater within 16 km (10 miles) of the Arecibo Observatory or before changing the transmitting frequency, transmitter power, antenna height or directivity of an existing repeater, the station licensee must give notification thereof at least 20 days in advance of planned operation to the Interference Office, Arecibo Observatory, Post Office Box 995, Arecibo, Puerto Rico 00613, in writing or electronically, of the technical parameters of the proposal. Licensees who choose to transmit information electronically should e-mail to: prcz@naic.edu (1) * * * (2) If an objection to the proposed operation is received by the FCC from the Arecibo Observatory, Arecibo, Puerto Rico, within 20 days from the date of notification, the FCC will consider all aspects of the problem and take whatever action is deemed appropriate. The licensee will be required to make reasonable efforts in order to resolve or mitigate any potential interference problem with the Arecibo Observatory.