FCC: Unlicensed NII Devices in the 5 GHz Frequency Range

Published by the Government Accountability Office on 1997-02-14.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

      United States
GAO   General Accounting Office
      Washington, D.C. 20548

      Office of the General Counsel


      February 14, 1997

      The Honorable John McCain
      The Honorable Ernest F. Hollings
      Ranking Minority Member
      Committee on Commerce, Science, and Transportation
      United States Senate

      The Honorable Thomas J. Bliley, Jr.
      The Honorable John D. Dingell
      Ranking Minority Member
      Committee on Commerce
      House of Representatives

      Subject:   Federal Communications Commission: Unlicensed NII Devices in the
                 5 GHz Frequency Range

      Pursuant to section 801(a)(2)(A) of title 5, United States Code, this is our report on
      a major rule promulgated by the Federal Communications Commission (FCC),
      entitled "Unlicensed NII Devices in the 5 GHz Frequency Range" (ET Docket No. 96-
      102, FCC 97-5). We received the rule on January 31, 1997. It was published in the
      Federal Register as a final rule on January 31, 1997. 62 Fed. Reg. 4649.

      The final rule makes available 300 megahertz of spectrum at 5.15-5.35 GHz and
      5.725-5.825 GHz for use by a new category of unlicensed equipment called
      Unlicensed National Information Infrastructure (U-NII) devices. The U-NII devices
      will provide short-range, high speed wireless digital communications on an
      unlicensed basis. The FCC anticipates that the U-NII devices will support the
      creation of new wireless local area networks and will facilitate wireless access to
      the National Information Infrastructure.

      Enclosed is our assessment of the FCC's compliance with the procedural steps
      required by section 801(a)(1)(B)(i) through (iv) of title 5 with respect to the rule.
      Our review indicates that the FCC complied with the applicable requirements.

If you have any questions about this report, please contact James Vickers, Assistant
General Counsel, at (202) 512-8210. The official responsible for GAO evaluation
work relating to the Federal Communications Commission is John Anderson,
Director of Transportation and Telecommunications Issues. Mr. Anderson can be
reached at (202) 512-2834.

Robert P. Murphy
General Counsel


cc: Mr. Andrew S. Fishel
    Managing Director
    Federal Communications Commission

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       ANALYSIS UNDER 5 U.S.C. § 801(a)(1)(B)(i)-(iv) OF A MAJOR RULE
                                ISSUED BY
                     (ET Docket No. 96-102, FCC 97-5)

(i) Cost-benefit analysis

The FCC stated in its submission to us that it was not required to prepare and did
not prepare a cost-benefit analysis of the rule.

(ii) Agency actions relevant to the Regulatory Flexibility Act, 5 U.S.C. §§ 603-605,
607 and 609

Section 603: Initial Regulatory Flexibility Analysis

The proposed rulemaking, 61 Fed. Reg. 24750 (May 16, 1996), incorporated an initial
regulatory flexibility analysis of the expected impact on small entities.

The analysis provides the information required by paragraphs 603(b)(1) through
(b)(3). It describes the reasons for the proposed agency action, and its objectives
and legal basis. It also describes the small entities (radio manufacturers and
suppliers of radio equipment) to which the proposed rule will apply. It states that
there are no reporting or recordkeeping requirements and that the rule does not
overlap, duplicate, or conflict with any other federal rules. Finally, the analysis
states that the FCC is unaware of any other alternatives which could provide
sufficient spectrum in the immediate future but invites comments on this point.

Section 604: Final Regulatory Flexibility Analysis

The preamble to the final rule contains the full text of the Final Regulatory
Flexibility Analysis. 62 Fed. Reg. 4652. This analysis includes the information
required by paragraph 604(a) by summarizing and evaluating comments received.

Based on comments which contend that making 350 megahertz (as proposed)
available would interfere with the interests of incumbent or future operations such
as mobile satellite service and amateur radio parties, the FCC concludes that 300
megahertz is appropriate for the U-NII devices to operate. Additionally, the FCC
did not adopt "safe harbor" rules at this time, as suggested by some commenters, to
avoid interference. However, the situation will be monitored and if interference
problems do arise, the "safe harbor" issue will be addressed in future rulemaking.

The analysis uses both quantifiable and general descriptions of the effects of the
rule on small entities and to assist in the participation of small entities in the
rulemaking, the FCC made available a complete copy of the proposed and final
rulemaking materials via the Internet.

(iii) Agency actions relevant to sections 202-205 of the Unfunded Mandates Reform
Act of 1995, 2 U.S.C. §§ 1532-1535

As an independent regulatory agency, the FCC is not subject to title II of the
Unfunded Mandates Reform Act of 1995.

(iv) Other relevant information or requirements under acts and executive orders

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

The FCC promulgated this rule under the notice and comment procedures of
5 U.S.C. § 553. A notice of proposed rulemaking was published on May 16, 1996,
following adoption by the FCC on April 25, 1996. 61 Fed. Reg. 24749.

The FCC received 52 comments and 26 reply comments. The FCC responds to the
concerns expressed in the comments, especially those comments from incumbent
and potential users of the spectrum regarding the feasibility of spectrum sharing
between the new unlicensed devices and incumbent and proposed primary services,
in the Report and Order. These responses are summarized in the preamble to the
rule in the Federal Register.

Paperwork Reduction Act, 44 U.S.C. §§ 3501-3520

The final rule contains no new information collections subject to the Office of
Management and Budget's approval under the Paperwork Reduction Act.

Statutory authorization for the rule

The final rule is authorized by sections 4(i), 303(c), 303(f), 303(g) and 303(r) of the
Communications Act of 1934, as amended. 47 U.S.C. §§ 154(i), 303(c), 303(f), 303(g)
and 303(r). These provisions authorize the FCC to make such rules and regulations
as may be necessary to encourage more effective use of radio as in the public

Executive Order No. 12866

The rule, promulgated by an independent regulatory agency, is not subject to the
review requirements of Executive Order No. 12866.

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The FCC did not identify any other statutes or executive orders imposing
requirements on the rulemaking.

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