Service Rules for the 698-806 MHz Band, Revision of the Commission's Rules Regarding Public Safety Spectrum Requirements, and a Declaratory Ruling on Reporting Requirement under the Commission's Anti-Collusion Rule, 48814-48868 [07-4123]
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Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 0, 1, 2, 27, and 90
[WT Docket No. 06–150; CC Docket No. 94–
102, WT Docket No. 01–309, WT Docket No.
03–264, WT Docket No. 06–169; PS Docket
No. 06–229; WT Docket No. 96–86; WT
Docket No. 07–166; FCC No. 07–132]
Service Rules for the 698–806 MHz
Band, Revision of the Commission’s
Rules Regarding Public Safety
Spectrum Requirements, and a
Declaratory Ruling on Reporting
Requirement under the Commission’s
Anti-Collusion Rule
Federal Communications
Commission.
ACTION: Final rule.
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AGENCY:
SUMMARY: In this document, the Federal
Communications Commission (FCC)
adopts final rules governing wireless
licenses in the 698–806 MHz Band (i.e.,
the 700 MHz Band). This spectrum is
currently occupied by television
broadcasters and is being made
available for wireless services, including
public safety and commercial services,
as a result of the digital television
(‘‘DTV’’) transition.
DATES: Effective October 23, 2007,
except for the amendments to §§ 27.14,
27.15, 27.50, and 90.176 which contain
information collection requirements that
have not been approved by the Office of
Management and Budget (OMB). The
Commission will publish a document in
the Federal Register announcing the
effective date.
FOR FURTHER INFORMATION CONTACT: Paul
Moon at (202) 418–1793,
paul.moon@fcc.gov, Mobility Division,
Wireless Telecommunications Bureau;
Peter Trachtenberg at (202) 418–7369, at
peter.trachtenberg@fcc.gov, Spectrum
and Competition Policy Division,
Wireless Telecommunications Bureau;
Jeff Cohen at (202) 418–0799,
jeff.cohen@fcc.gov, Public Safety and
Homeland Security Bureau.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Second
Report and Order, WT Docket No. 06–
150; CC Docket No. 94–102, WT Docket
No. 01–309, WT Docket No. 03–264, WT
Docket No. 06–169; PS Docket No. 06–
229; WT Docket No. 96–86; WT Docket
No. 07–166; FCC No. 07–132, adopted
July 31, 2007 and released August 10,
2007. The full text of the Second Report
and Order is available for public
inspection on the Commission’s Internet
site at https://www.fcc.gov. It is also
available for inspection and copying
during regular business hours in the
FCC Reference Center (Room CY–A257),
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445 12th Street, SW., Washington, DC
20554. The full text of this document
also may be purchased from the
Commission’s duplication contractor,
Best Copy and Printing Inc., Portals II,
445 12th St., SW., Room CY–B402,
Washington, DC 20554; telephone (202)
488–5300; fax (202) 488–5563; e-mail
FCC@BCPIWEB.COM.
Synopsis
In this Second Report and Order, the
Commission establishes rules governing
wireless licenses in the 698–806 MHz
Band (herein, the ‘‘700 MHz Band’’).
This spectrum currently is occupied by
television broadcasters in TV Channels
52–69. It is being made available for
wireless services, including public
safety and commercial services, as a
result of the digital television (‘‘DTV’’)
transition. In passing the Digital
Television Transition and Public Safety
Act of 2005 (‘‘DTV Act’’), Congress
accelerated the DTV transition by
providing a date certain, February 17,
2009, for the end of the transition.1 The
Commission has been considering rules
related to the use of this spectrum in
three ongoing proceedings: (1) The 700
MHz Commercial Services proceeding,
71 FR 48506 (2006),2 (2) the 700 MHz
Guard Bands proceeding, 71 FR 57455,3
and (3) the 700 MHz Public Safety
proceeding, 72 FR 1201 (2007); 71 FR
17786 (2006).4 Recognizing the
1 See Deficit Reduction Act of 2005, Pub. L. 109–
171, 120 Stat. 4 (2006) (‘‘DRA’’). Title III of the DRA
is the DTV Act.
2 See Service Rules for the 698–749, 747–762 and
777–792 MHz Bands, WT Docket No. 06–150,
Revision of the Commission’s rules to Ensure
Compatibility with Enhanced 911 Emergency
Calling Systems and Section 68.4(a) of the
Commission’s rules Governing Hearing AidCompatible Telephones, CC Docket No. 94–102, WT
Docket No. 01–309, Notice of Proposed Rule
Making, Fourth Further Notice of Proposed Rule
Making, and Second Further Notice of Proposed
Rule Making, 71 FR 48506 (2006) (700 MHz
Commercial Services NPRM).
3 See Former Nextel Communications, Inc. Upper
700 MHz Guard Band Licenses and Revisions to
Part 27 of the Commission’s Rules, Development of
Operational, Technical and Spectrum Requirements
for Meeting Federal, State and Local Public Safety
Communications Requirements Through the Year
2010, WT Docket Nos. 06–169 and 96–86, Notice of
Proposed Rule Making, 71 FR 57455 (2006) (700
MHz Guard Bands NPRM).
4 See Implementing a Nationwide, Broadband,
Interoperable Public Safety Network in the 700
MHz Band, Development of Operational, Technical
and Spectrum Requirements for Meeting Federal,
State and Local Public Safety Communications
Requirements Through the Year 2010, PS Docket
No. 06–229, WT Docket No. 96–86, Ninth Notice of
Proposed Rulemaking, 72 FR 1201 (2007) (2006)
(700 MHz Public Safety Ninth NPRM); Development
of Operational, Technical and Spectrum
Requirements for Meeting Federal, State and Local
Public Safety Communications Requirements
Through the Year 2010, WT Docket No. 96–86,
Eighth Notice of Proposed Rulemaking, 71 FR
17786 (2006) (700 MHz Public Safety Eighth
NPRM).
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interrelationship of these proceedings,
the Commission recently combined
these proceedings and in April 2007
issued a single Report and Order and
Further Notice of Proposed Rulemaking
(the 700 MHz Report and Order, 72 FR
27688 (2007), and 700 MHz Further/
NPRM, FR 24238 (2007), respectively)
addressing all three proceedings.5
Accordingly, the Commission addresses
the rules regarding access to 700 MHz
Band spectrum and the provision of
service across the country, as well as
opportunities for broadband service for
Public Safety users in this Second
Report and Order.
I. Discussion
A. Commercial 700 MHz Band,
Including 700 MHz Guard Bands
1. Band Plan
a. Commercial Spectrum (Excluding
Guard Bands Spectrum)
1. In the 700 MHz Report and Order,
the Commission determined that a
balanced mix of geographic service area
licenses—CMAs, EAs, and REAGs—
would be appropriate for the
commercial 700 MHz Band licenses that
will be auctioned. The Commission
reaffirms that determination for all of
this commercial spectrum except for
that associated with the 10-megahertz
commercial license (comprised of
paired 5-megahertz blocks) which will
be auctioned on a nationwide basis for
use as part of the 700 MHz Public/
Private Partnership with the Public
Safety Broadband Licensee. The
Commission further determines that a
mix of spectrum block sizes, including
one large 22-megahertz block
(comprised of paired 11-megahertz
blocks), is appropriate for the 700 MHz
Band licenses that remain to be
auctioned.
5 Service Rules for the 698–746, 747–762 and
777–792 MHz Bands, WT Docket No. 06–150,
Revision of the Commission’s rules to Ensure
Compatibility with Enhanced 911 Emergency
Calling Systems, CC Docket No. 94–102, Section
68.4(a) of the Commission’s rules Governing
Hearing Aid-Compatible Telephones, WT Docket
No. 01–309, Biennial Regulatory Review—
Amendment of Parts 1, 22, 24, 27, and 90 to
Streamline and Harmonize Various Rules Affecting
Wireless Radio Services, WT Docket 03–264,
Former Nextel Communications, Inc. Upper 700
MHz Guard Band Licenses and Revisions to Part 27
of the Commission’s rules, WT Docket No. 06–169,
Implementing a Nationwide, Broadband,
Interoperable Public Safety Network in the 700
MHz Band, PS Docket No. 06–229, Development of
Operational, Technical and Spectrum Requirements
for Meeting Federal, State and Local Public Safety
Communications Requirements Through the Year
2010, WT Docket No. 96–86, Report and Order and
Further Notice of Proposed Rulemaking, 22 FCC
Rcd 8064 (2007) (700 MHz Report and Order and
700 MHz Further NPRM, respectively).
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2. The Commission will license three
commercial blocks of paired spectrum—
one 12-megahertz block (comprised of
paired 6-megahertz blocks) licensed on
a CMA basis, one 12-megahertz block
(comprised of paired 6-megahertz
blocks) on an EA basis, and one 22megahertz block (comprised of paired
11-megahertz blocks) on a REAG basis—
as well as one 6-megahertz block of
unpaired spectrum on an EA basis.
First, the Commission will license one
additional 12-Megahertz Spectrum
Block (comprised of paired 6-Megahertz
blocks) in the 700 MHz Band on a CMA
basis, to be located in the B Block of the
Lower 700 MHz Band immediately
adjacent to the existing CMA-based
licenses. Second, the Commission will
license a 22-megahertz block (comprised
of paired 11-Megahertz blocks) on a
REAG basis located in the C Block in the
Upper 700 MHz Band. Third, the
Commission will license a 12-Megahertz
block (comprised of paired 6-megahertz
blocks) on an EA basis located in Block
A of the Lower 700 MHz Band. Finally,
the Commission adopts EAs for the
unpaired 6-megahertz E Block of the
Lower 700 MHz Band.
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b. Guard Bands Spectrum
3. The Commission adopts a revised
band plan for the 700 MHz Guard Bands
spectrum and the Upper 700 MHz Band,
which includes features of Cyren Call’s
additional band plan proposal and the
July 6, 2007 Guard Bands Proposal.
Additionally, the Commission
determines that it lacks legal authority
to adopt the Broadband Optimization
Plan (BOP), Critical Infrastructure
Industries (CII), or the Ericsson
proposals because they propose a
reallocation of commercial spectrum to
public safety, and assignment of
commercial licenses from the
Commission’s auction inventory
without competitive bidding. The
Commission also rejects the most recent
Ericsson band plan proposal, as well as
the Access Spectrum/Pegasus
Alternative Proposal and the Cyren Call
proposals to the extent they are
inconsistent with the Commission’s
actions in this Second Report and
Order.
(a) Revisions to Upper 700 MHz Band
Plan for Guard Bands
4. The Commission adopts the July 6,
2007 Guard Bands Proposal based on
the agreement of all Guard Band
licensees except PTPMS II, whose two
Guard Band B Block licenses the
Commission grandfathers, and whose
one Guard Band A Block license the
Commission repacks into the
reconfigured Guard Band A Block. The
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Commission concludes that the existing
Guard Band B Block is no longer needed
as a guard band to protect the adjacent
700 MHz public safety users, and to the
extent possible, should be consolidated
with the remaining commercial
spectrum for more efficient and effective
use. The Commission finds that the
public interest is best served by
adoption of features of the Cyren Call
and July 6, 2007 proposals because it
removes the ‘‘repacked’’ Guard Band A
Block from the critical juncture between
the Upper 700 MHz D Block and the
public safety broadband spectrum,
which together will be used as the
foundation for the 700 MHz Public/
Private Partnership.
5. Funding for Public Safety
Reconfiguration. The Commission finds
that the proximity of the public safety
broadband spectrum to the adjacent D
block will provide significant benefits to
the D Block licensee. Accordingly, the
Commission concludes that the D Block
licensee must pay the costs of
consolidating the 700 MHz public safety
narrowband channels to the upper half
of the 700 MHz Public Safety Band.
6. License Modifications. The
Commission finds that the public
interest, convenience, and necessity will
be served by relocating all existing
Guard Band A licenses to the
reconfigured Guard Band A Block
located at 757–758 MHz and 787–788
MHz. With the exception of PTPMS II,
which holds one A Block license and
two B Block licenses, the license
modifications that the Commission
effects today are consensual.
7. These license modifications are
consistent with Sections 337 and 309 of
the Act, because the 4 megahertz of
remaining Guard Bands spectrum
remains commercial spectrum subject to
auction. Specifically, the 2 megahertz
from 746–747 MHz and 776–777 MHz
will be added to, and auctioned as part
of, the Upper 700 MHz Band C Block in
the forthcoming 700 MHz Band auction.
The lower portion of the reconfigured
commercial Guard Band B Block at 775–
776 MHz will provide a necessary guard
band between public safety narrowband
communications and adjacent
commercial services. The Commission
will be able to determine other potential
uses of this spectrum, and the related
portion of the B Block at 805–806 MHz,
at a future date.
8. Spectrum Use Agreements.
Pursuant to Section 309(f) of the Act,
the Commission hereby grants Access
Spectrum 180-day special temporary
authorizations for MEAs 20, 26, 32, 37,
44, and 52 for the current Guard Band
A Block (746–747 MHz, 776–777 MHz).
In the event that Access Spectrum
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cannot complete the transition of the CII
system during the 180-day period, it
may seek an appropriate extension of
the STA upon a proper showing.
Because the Commission modifies
(repack and relocate) the Guard Band A
Block MEA licenses held by Access
Spectrum, Pegasus, and Dominion upon
the effective date of this Second Report
and Order, the six STA grants to Access
Spectrum will be granted upon the
effective date as well.
9. PTPMS II. To ensure that critical
interoperable public safety
communications are uniform
throughout the continental United
States, the Commission hereby modifies
PTPMS II’s Guard Band A Block license
in Buffalo (MEA 003), pursuant to
Sections 316, 301, 303, and 4(i) of the
Act, to operate in the same geographic
area but in the reconfigured A Block at
757–758 MHz and 787–788 MHz. The
Commission also modifies PTPMS II’s B
Block licenses in Des Moines—Quad
Cities (MEA 021) and El Paso—
Albuquerque (MEA 039) by shifting
them down by 1 megahertz, so that
PTPMS II is authorized to operate at
761–763 MHz and 791–793 MHz. These
modifications should not burden
PTPMS II because it does not have any
operations associated with the three
licenses.
10. As a result of the foregoing
modifications, the new nationwide
Upper 700 MHz Band D Block license,
at 758–763 MHz and 788–793 MHz, will
be authorized in Des Moines—Quad
Cities (MEA 021) and El Paso—
Albuquerque (MEA 039) on a secondary
basis to PTPMS II. As such, the D Block
licensee may not cause interference to
primary operations of PTPMS II or claim
protection from harmful interference
from any operations of PTPMS II in
those MEAs. The D Block licensee must
cease operations on the spectrum
assigned to PTPMS II in these two
markets if it poses an interference
problem to PTPMS II. In the event that
PTPMS II, or a successor or an assign of
PTPMS II, elects to cancel either of its
grandfathered licenses, or if either
license cancels automatically, or is
terminated by the Commission, then the
licensed geographic area will revert,
without further action by the
Commission, to the D Block licensee.
This reversionary interest will include
the right to operate under the D Block
technical rules.
11. Further, the Commission
grandfathers PTPMS II’s two B Block
licenses without any renewal
expectancy, and does not extend the
term of its licenses as the Commission
has for the reconfigured Guard Band A
Block licenses. The Commission will
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afford PTPMS II’s Guard Band A Block
license the modified (less stringent)
technical rules that the Commission
adopts below for all other Guard Band
A Block licenses.
12. Accordingly, pursuant to Section
316 of the Act and Section 1.87 of the
Commission’s rules, PTPMS II has 30
days from the effective date of this
Second Report and Order to protest the
foregoing license modifications.
Additionally, as stated in their July 6,
2007 Ex Parte, the other Guard Bands
licensees have waived their protest
rights.
(b) Broadband Optimization Plan (BOP),
Critical Infrastructure Industries (CII)
and Ericsson Proposals
13. For the reasons discussed in the
700 MHz Further NPRM, the
Commission denies the BOP and CII
proposals. Further, the Commission
concludes that the additional Ericsson
band plan proposal is not in the public
interest.
2. Service Rules
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a. Commercial Services (Excluding
Guard Bands and Upper 700 MHz D
Block)
(i) Performance Requirements
14. In order to better promote access
to spectrum and the provision of
service, especially in rural areas, the
Commission replaces the current
‘‘substantial service’’ requirements for
the 700 MHz Band licenses that have
not been auctioned with significantly
more stringent performance
requirements. These requirements
include the use of interim and end-ofterm benchmarks, with geographic area
benchmarks for CMA and EA licenses,
and population benchmarks for REAG
licenses. Licensees must meet the
interim requirement within four years of
the end of the DTV transition (i.e.,
February 17, 2013). Failure to meet the
interim requirement will result in a twoyear reduction in license term, as well
as possible enforcement action,
including forfeitures. The Commission
also reserves the right to impose a
proportional reduction in the size of the
license area of a licensee that fails to
meet its interim benchmarks. Licensees
that fail to meet the end-of-term
benchmarks will be subject to a ‘‘keepwhat-you-use’’ rule, under which the
licensee will lose its authorization for
unserved portions of its license area,
which will be returned to the
Commission for reassignment. They
may also be subject to potential
enforcement action, including possible
forfeitures or cancellation of license.
The Commission also imposes certain
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reporting requirements intended to help
the Commission monitor build-out
progress during the license term. The
Commission expects that licensees will
take these construction requirements
seriously and proceed toward providing
service with utmost diligence. As such,
the Commission does not envision
granting waivers or extensions of
construction periods except where
unavoidable circumstances beyond the
licensee’s control delay construction.
15. Specific Performance
Requirements for CMA and EA Licenses.
The Commission concludes that, for
licenses based on CMAs and EAs,
licensees must provide signal coverage
and offer service to: (1) At least 35
percent of the geographic area of their
license within four years of the end of
the DTV transition, and (2) at least 70
percent of the geographic area of their
license at the end of the license term. In
determining the relevant geographic
area, the Commission concludes that, in
applying geographic benchmarks, the
Commission should not generally
consider the relevant area of service to
include government lands. CMA or EA
licensees that fail to meet the interim
requirement within their license areas
will have their license terms reduced by
two years, from ten to eight years, thus
requiring these licensees to meet the
end-of-term benchmark at an
accelerated schedule. For those CMAs
or EAs in which the end-of-term
performance requirements have not
been met, the unused portion of the
license will terminate automatically
without Commission action and will
become available for reassignment by
the Commission subject to the ‘‘keepwhat-you-use’’ rules described below.
16. To the extent the licensee employs
a signal level and provides service to
land that is owned or leased by
government, the licensee may count this
land area and coverage as part of its
service area for purposes of measuring
compliance with the build-out
benchmark, but it also must add the
covered government land to the total
geographic area used for measurement
purposes.
17. Specific Performance
Requirements for REAG Licenses. The
Commission concludes that, for licenses
based on REAGs, licensees must provide
signal coverage and offer service to: (1)
At least 40 percent of the population of
the license area within four years, and
(2) at least 75 percent of the population
of the license area by the end of the
license term. Licensees must use the
most recently available U.S. Census
Data at the time of measurement to meet
these population based build-out
requirements.
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18. In addition, for licenses based on
REAGs, the Commission will apply its
performance requirements on an EA
basis. Accordingly, to meet their
benchmarks, REAG licensees must
provide signal coverage and offer
service to at least 40 percent of the
population in each EA in its license area
within four years and 75 percent of the
population of each of these EAs at the
end of the license term. REAG licensees
that fail to meet the interim requirement
in any EA within their license areas will
have their license term for the entire
REAG reduced by two years, from ten to
eight years, thus requiring these
licensees to meet the end-of-term
benchmark at an accelerated schedule.
In applying the end-of-term coverage
requirement to REAG licensees, the
Commission will evaluate the licensee’s
coverage on an EA-by-EA basis. For
those EAs in which the end-of-term
performance requirements have not
been met, the unused portion of the
license will terminate automatically
without Commission action and will
become available for reassignment by
the Commission subject to the ‘‘keepwhat-you-use’’ regime described below.
19. Reporting Requirements. In
connection with the performance
requirements adopted in this Second
Report and Order, the Commission
adopts an interim reporting requirement
that will obligate licensees to provide
the Commission with information
concerning the status of their efforts to
meet the performance requirements and
the manner in which their spectrum is
being utilized. In addition, this
information will be useful to monitor
whether further assessment of the rules
or other actions are necessary in the
event spectrum is being stockpiled or
warehoused, or if it is otherwise not
being made available despite existing
demand. All licensees will file the first
of these reports at the end of the second
year following the end of the DTV
Transition, i.e., February 17, 2011.
Licensees that do not meet their interim
benchmarks will file their second report
following the sixth year after the end of
the DTV Transition, i.e., February 17,
2015, while licensees that do meet their
interim benchmarks will have until the
end of the seventh year to file, i.e.,
February 17, 2016. For licensees that do
not meet their interim benchmarks and
have their license terms reduced, the
second report will be filed at the end of
the sixth year following the end of the
DTV Transition, i.e., February 17, 2015.
The information to be reported will
include a description of the steps the
licensee has taken toward meeting its
construction obligations in a timely
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manner, including the technology or
technologies and service(s) being
provided and the areas in which those
services are available.
20. Procedures for Implementation.
Licensees must demonstrate compliance
with the Commission’s interim and endof-term construction benchmarks by
filing a construction notification with
the Commission within 15 days of the
relevant benchmark certifying that they
have met the Commission’s performance
requirements or, if they have not met
the Commission’s performance
requirements, they must file a
description and certification of the areas
for which they are providing service.
The information contained in the
licensee’s construction notification must
include electronic coverage maps and
other supporting documentation. The
Commission recognizes that
demonstrations of coverage may vary
across licensees. Accordingly, the
Commission delegates to the Wireless
Bureau the responsibility for
establishing the specifications for filing
maps and other documents (e.g., file
format and appropriate data) needed to
determine a licensee’s geographic
coverage area. The Commission
recognizes that coverage determinations
may need to be made on a case-by-case
basis so as to account for the potentially
wide variety of services and
technologies that may be offered in the
band.
21. The electronic coverage maps
must clearly and accurately depict the
boundaries of each EA or CMA in the
licensee’s service territory, and the areas
where the licensee is providing signal
coverage and offering service. If the
licensee’s signal does not provide
service to the entire EA or CMA, the
map must clearly and accurately display
the boundaries of the area or areas
within each EA or CMA not being
served.
22. In addition to filing electronic
coverage maps, each licensee must file
supporting documentation certifying the
type of service it is providing for each
EA or CMA within its license service
territory and the type of technology it is
utilizing to provide this service for each
EA or CMA in its service territory. The
supporting documentation also must
provide the assumptions used by the
licensee to create the coverage maps,
including the propagation model and
the signal strength necessary to provide
service with the licensee’s technology.
23. When the licensee files its
construction notification, including its
coverage maps and supporting
documentation, the public will be given
an opportunity to review and comment
on the construction notification,
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including the maps provided by the
licensee and the technical assumptions
used to create the maps. After
examining the notification and public
comments, Commission staff will make
a final determination as to what areas
within EAs and CMAs are, and are not,
deemed ‘‘served.’’ If the Commission
determines that a licensee meets the
applicable interim benchmark, it will
not have its license term reduced by two
years. Likewise, if the Commission
determines that a licensee meets its
applicable end of term benchmark
requirement, the licensee will be
deemed to have met the Commission’s
construction build-out requirement.
24. Under the Commission’s ‘‘keepwhat-you-use’’ rule, if a licensee fails to
meet its end of term benchmark, its
authorization to operate will terminate
automatically without Commission
action for those geographic areas in
which the licensee is not providing
service, and those unserved areas will
become available for reassignment by
the Commission. The Commission will
update its Universal Licensing System
records to reflect those geographic areas
for which the licensee retains authority
to operate, as well as those geographic
areas that will be made available for
reassignment.
25. For purposes of reassigning these
licenses, the Wireless Bureau is
delegated authority to announce by
public notice that these licenses will be
made available and establish a 30-day
window during which third parties may
file license applications to serve these
areas. During this 30-day period, the
licensee that failed to serve the area may
not file an application to regain the
license authorization for that area.
Applications filed by third parties that
propose areas overlapping with other
applications will be deemed mutually
exclusive, and will be resolved through
an auction. The Wireless Bureau, by
public notice, may specify a limited
period before the filing of short-form
applications (FCC Form 175) during
which applicants may enter into a
settlement to resolve their mutual
exclusivity.
26. Following this 30-day period, the
original licensee and third parties can
file license applications for remaining
unserved areas where licenses have not
been issued or there are no pending
applications. If the original licensee or
a third party files an application, that
application will be placed on public
notice for 30 days. If no mutually
exclusive application is filed, the
application will be granted, provided
that a grant is found to be in the public
interest. If a mutually exclusive
application is filed, it will be resolved
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through an auction. The Wireless
Bureau, by public notice, may specify a
limited period before the filing of shortform applications (FCC Form 175)
during which applicants may enter into
a settlement to resolve their mutual
exclusivity.
27. A licensee obtaining spectrum that
was lost through the Commission’s
‘‘keep-what-you-use’’ rule will have one
year from the date it is issued a license
to complete its construction and provide
signal coverage and offer service to the
entire new license area. If the licensee
fails to meet this construction
requirement, its license will
automatically cancel without
Commission action and it will not be
eligible to apply to provide service to
this area on the same frequencies at any
future date.
28. Under the Commission’s ‘‘keepwhat-you-use’’ rules, the Commission
will determine whether an area is
unserved by applying a de minimis
standard similar to that applied to
cellular service, which provides that the
geographic service area to be made
available to new entrants must include
a contiguous area of at least 130 square
kilometers (50 square miles). Areas
smaller than this will not be deemed
unserved by the Commission, because
auctioning and licensing smaller areas
to new licensees could result in harmful
interference to incumbent licensees.
Accordingly, unserved areas that are
smaller than 130 square kilometers will
continue to be a part of the licensee’s
license area. In those geographic areas
that the Commission deems as served,
the licensee will retain its exclusive
spectrum rights, including the ability to
transfer and lease these areas. The
licensee also will have the opportunity
to expand its service into the unused
parts of its original license area.
(ii) Partitioning and Disaggregation
29. Partitioning. Under the
Commission’s modifications of the
Section 27.15(d) rules relating to
geographic partitioning of new 700 MHz
Commercial Services licenses, the
Commission establishes two options for
partitioners and partitionees with regard
to the newly adopted performance
requirements discussed above.
30. Under the first option, the
partitioner and partitionee must each
certify to the Commission that they will
share responsibility for meeting the
performance requirements for the entire
original geographic license area. Under
this option, the partitioner, partitionee,
or both the partitioner and partitionee
working together, can meet the four-year
and end-of-term construction
benchmarks for the entire geographic
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license area. If the parties fail to meet
the four-year benchmark, they will each
have their license term reduced by two
years. If the parties meet the end-of-term
construction benchmarks, they will
retain the ability to continue to build
out the unserved portion of their license
areas. Parties that fail to meet the endof-term benchmarks will be subject to a
‘‘keep-what-you-use’’ rule, under which
they will each lose their authorization
for unserved portions of their license
areas, which will automatically cancel
and return to the Commission for
reassignment.
31. Under the second option, the
partitioner and partitionee must each
certify that it will independently meet
the applicable performance
requirements for its respective
partitioned service area. If the
partitioner or partitionee fails to meet
the four-year build-out requirement for
its respective partitioned service area,
then its license term will be reduced by
two years. If the parties meet the endof-term construction benchmarks, they
will retain the ability to continue to
build out the unserved portion of their
license areas. Parties that fail to meet
the end-of-term benchmarks will be
subject to a ‘‘keep-what-you-use’’ rule,
under which they will lose their
authorization for unserved portions of
their license areas, which will
automatically cancel and return to the
Commission for reassignment.
32. Disaggregation. With regard to the
rules relating to disaggregation of new
700 MHz Commercial Services Band
licenses, the Commission modifies
Section 27.15(d) to provide that the
disaggregator, disaggregatee, or both the
disaggregator and disaggregatee working
together, can meet the four-year and
end-of-term construction benchmarks
for the entire geographic license area. If
either of the parties meets the four-year
build-out requirement, then this
requirement is considered to be satisfied
for both parties. If neither of the parties
meets the four-year build-out
requirement, then each of their license
terms will be reduced by two years.
Similarly, if either of the parties meets
the end-of-term build-out requirement,
then this requirement is considered to
be satisfied for both parties and they
will retain the ability to continue to
build out the unserved portion of their
license areas. However, parties that fail
to meet the end-of-term benchmarks
will be subject to an automatic ‘‘keepwhat-you-use’’ rule, under which they
will lose their authorization for
unserved portions of their license areas,
which will automatically cancel and
return to the Commission for
reassignment.
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(iii) Open Platforms for Devices and
Applications
33. The Commission determines that
for one commercial spectrum block in
the 700 MHz Band—the Upper 700 MHz
Band C Block (700 MHz C Block)—the
Commission will require licensees to
allow customers, device manufacturers,
third-party application developers and
others to use or develop the devices and
applications of their choice, subject to
certain conditions, so long as they meet
all applicable regulatory requirements
and comply with reasonable conditions
related to management of the wireless
network (i.e., do not cause harm to the
network), as described further below.
The Commission concludes, however,
that it would not serve the public
interest to mandate, at this time,
requirements for open platforms for
devices and applications for all
unauctioned commercial 700 MHz
spectrum, or to impose broader
openness requirements, such as
wholesale or interconnection
requirements, for the 700 MHz C Block.
34. Scope of Requirement for open
platforms for devices and applications.
700 MHz C Block licensees subject to
this requirement will not be allowed to
disable features or functionality in
handsets, such as ‘‘locking’’ handsets to
prevent their transfer from one system
to another, where such action is not
related to reasonable network
management and protection, or
compliance with applicable regulatory
requirements. In addition, 700 MHz C
Block licensees may not establish
network standards that block Wi-Fi
access, MP3 playback ringtone
capability, or other services that
compete with wireless service
providers’ own offerings. Standards for
third-party applications or devices that
are more stringent than those used by
the provider itself would likewise be
prohibited. In addition, 700 MHz C
Block licensees cannot exclude
applications or devices solely on the
basis that such applications or devices
would unreasonably increase
bandwidth demands. The Commission
emphasizes that 700 MHz C Block
licensees may not impose any
discriminatory charges (one-time or
recurring) or conditions on customers
who seek to use devices or applications
outside of those provided by the
licensee. Further, 700 MHz C Block
licensees may not deny access to a
customer’s device solely because that
device makes use of other wireless
spectrum bands, such as cellular or PCS
spectrum. However, in accepting a
multi-band device on its network, a 700
MHz C Block licensee is not required to
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extend the requirement for open
platforms for devices and applications
to other spectrum bands on which the
provider operates.
35. Reasonable network requirements
permitted. The Commission emphasizes
that it is not requiring wireless service
providers to allow the unrestricted use
of any devices or applications on their
networks. Wireless service providers
may continue to use their own
certification standards and processes to
approve use of devices and applications
on their networks so long as those
standards are confined to reasonable
network management. For example,
providers are free to choose their air
interface technology, and to deny
service to devices or applications that
cannot operate on the same technology,
and may restrict particular non-carrier
devices and applications on their
networks, specifically to ensure the
safety and integrity of their networks. In
particular, it is reasonable for wireless
service providers to maintain network
control features that permit dynamic
management of network operations,
including the management of devices
operating on the network, and to restrict
use of the network to devices
compatible with these network control
features. Standards to ensure that
network performance will not be
significantly degraded would also be
appropriate.
36. The Commission does not specify
a particular process for 700 MHz C
Block licensees to develop reasonable
network management and openness
standards, but the Commission requires
certain minimum steps to ensure that
device manufacturers and application
developers have the ability to design
products for this spectrum in a timely
manner. Specifically, a 700 MHz C
Block licensee must publish standards
no later than the time at which it makes
such standards available to any
preferred vendors (i.e., vendors with
whom provider has a relationship to
design products for the provider’s
network). The 700 MHz C Block
licensee must also provide to potential
customers notice of the customers’
rights to request the attachment of a
device or application to the licensee’s
network, and notice of the licensee’s
process for customers to make such
requests, including the relevant network
criteria. These network standards are
expected to be non-proprietary, such
that the standards would be open to any
third party vendors and that the
standards applied to third parties will
be no more restrictive than those
applied to the provider’s preferred
vendors. Providers must also establish a
reasonable process for expeditiously
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reviewing requests from manufacturers,
application developers and consumers
to employ devices and applications on
their networks. If a provider denies such
a request, it must offer a specific
explanation and an opportunity for
amendment of the request to
accommodate the provider’s concerns.
37. The Commission encourages the
development of industry-wide standards
by an appropriate standards-setting
body at the earliest possible date.
38. Other regulatory requirements
continue. The requirement to provide an
open platform for devices and
applications the Commission is
imposing shall not override wireless
service providers’ obligations to ensure
that their networks and devices comply
with applicable regulatory requirements
(e.g., power and emission limits, E911,
CALEA, etc.). For example, with respect
to E911, if a network provider accepts
a non-carrier device or application and
if the device or application
subsequently causes a violation of the
Commission’s rules, the Commission
will apply the same third-party liability
provisions as in the wireline context.
39. The Commission finds that a
wireless carrier’s obligations under its
hearing aid compatibility rule, section
20.19 of the Commission’s rules, are not
affected by the openness obligations for
700 MHz C Block licensees. Under the
Commission’s rules, the extent of a
carrier’s compliance with the hearing
aid compatibility obligations is not
affected by handsets that connect to its
network but it does not itself ‘‘offer’’ to
its subscribers. Thus, the need to
comply with section 20.19 of the
Commission’s rules would not justify a
provider’s refusal to connect a device.
Further, the Commission declines to
alter its hearing aid compatibility
obligations to specifically impose an
obligation on 700 MHz C Block
licensees to ensure the hearing aid
compatibility of handsets that are
connected to the network but not
offered by the provider.
40. Enforcement processes. The
Commission intends to vigorously
enforce the requirement to provide an
open platform for devices and
applications adopted for 700 MHz C
Block licensees. The Commission will
take appropriate enforcement action
where necessary pursuant to the
remedies available under its statutory
authority, including forfeitures, license
revocations, and cease-and-desist
orders. A person or entity who believes
a 700 MHz C Block licensee’s refusal to
attach a proposed device or application
is a violation of the open platform rules
adopted may file a complaint pursuant
to the Commission’s enforcement rules,
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including the Commission’s formal and
informal complaint processes, where
applicable. The Commission sets forth
certain presumptions for these
complaints. Specifically, once a
complainant sets forth a prima facie
case that the 700 MHz C Block licensee
has refused to attach a device or
application in violation of the open
platform requirements adopted, the
licensee shall have the burden of proof
to demonstrate that it has adopted
reasonable network standards and
reasonably applied those standards in
the complainant’s case. Further, where
the 700 MHz C Block licensee bases its
network restrictions on industry-wide
consensus standards, the restrictions are
afforded a presumption of
reasonableness. The Commission
commits to rule on any complaints filed
within 180 days of receipt of such
complaints. Interested parties also may
file a petition for declaratory ruling
where a particular practice has broad
market impact. Through review of
complaints and other relevant
information, the Commission will
monitor the ability of consumers, device
manufacturers, and application
developers to use or develop devices
and applications for 700 MHz C Block
networks.
Band D Block licensee to meet OOBE
limits with respect to the public safety
broadband spectrum.
44. The D Block licensee will still,
however, be required to satisfy the 76
and 65 + 10 log P OOBE limits with
respect to the narrowband portion of the
public safety spectrum. Additionally,
the Commission shall not require the D
Block licensee and Public Safety
Broadband Licensee to coordinate with
one another to address potential
overload interference, even though such
licensees will be authorized on adjacent
spectrum, because under the public/
private partnership, as discussed above,
the D Block licensee and Public Safety
Broadband Licensee will be sharing the
same infrastructure.
(iv) Use of Dynamic Spectrum
Management Techniques
41. In response to Google’s first
request, the Commission affirms that
nothing in the Commission’s rules
generally prohibits 700 MHz licensees
from using dynamic spectrum
management practices. In response to
Google’s second suggestion, the
Commission declines to mandate the
use of dynamic spectrum management
practices for 700 MHz Band licensees.
42. The Commission concludes that
licensees should retain significant
flexibility with regard to the precise
mechanisms they utilize when it comes
to managing spectrum access to the
network and among users. Of course, to
the extent any licensee believes that the
specific spectrum management
mechanisms that Google proposes is
appropriate or preferable, it is free to
choose to utilize these mechanisms,
consistent with the Commission’s
guidance above.
b. 700 MHz Guard Bands
(v) Protection of 700 MHz Public Safety
Operations
43. The Commission shall continue to
require Upper 700 MHz Band C Block
licensees to meet the 76 + 10 log P and
65 + 10 log P out-of-band emission
(OOBE) limits with respect to the public
safety bands. However, the Commission
will not require the Upper 700 MHz
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(vi) Licensee Eligibility
45. The Commission declines to
impose eligibility restrictions for the
licenses in the 700 MHz Band. Given
the number of actual wireless providers
and potential broadband competitors, it
is unlikely that incumbent local
exchange carriers (ILECs), cable
providers, or large wireless carriers
would be able to behave in an
anticompetitive manner as a result of
any potential acquisition of 700 MHz
spectrum.
(i) Treatment of Reconfigured A Block
46. Because the reconfigured Guard
Band A Block will now be located at
757–758/787–788 MHz between the
Upper 700 MHz Band C and D Blocks,
and will no longer be adjacent to public
safety narrowband spectrum, the
Commission concludes that it is no
longer necessary to apply the adjacent
channel power (ACP) emissions criteria
to the A Block. Instead, the Commission
will apply OOBE limits, which are
consistent with emission limits
applicable to the C Block. Thus, A Block
licensees are required to attenuate outof-band by at least 43 +10log P dB.
Further, the Commission finds that
heightened OOBE criteria should
continue to apply in order to provide
adequate protection to public safety.
Therefore A Block transmitter power
must be attenuated to at least 76 + 10log
P dB, in a 6.25 kilohertz bandwidth for
base stations at 763 MHz, and 65 +
10log P dB for mobile units at 793 MHz.
47. Frequency Coordination and the
Cellular Architecture Prohibition. The
Commission will no longer apply
sections 27.601(d) and 27.2(b) (requiring
guard band users to employ frequency
coordination procedures in cooperation
with 700 MHz public safety
coordinators, and prohibiting the use of
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a. Anonymous Bidding
Bureau to propose and seek comment on
detailed anonymous bidding procedures
for the upcoming auction of the 700
MHz Band licenses consistent with
these conclusions, including how
anonymous bidding would impact a
potential re-auction of one or more
spectrum blocks if the reserve prices for
the individual blocks are not met, and
any additional continuation or
alteration to the anonymous bidding
rules necessary to preserve the integrity
of the subsequent auction.
52. The Commission concludes that
the public interest will be served if the
upcoming auction of new 700 MHz
Band licenses for which service rules
are established today is conducted using
anonymous bidding procedures. The
Commission further concludes that
implementation of anonymous bidding
procedures during the upcoming
auction of new 700 MHz Band licenses
should not be contingent on a preauction measurement of likely
competition based on an eligibility ratio.
The Commission has delegated to the
Wireless Bureau authority to establish
auction procedures based on comment
solicited shortly prior to the auction.
Consistent with that authority, the
Commission delegates to the Wireless
Bureau the discretion to adopt specific
procedures implementing these
conclusions, taking into account the
further record developed during our
standard pre-auction process for
establishing auction procedures and the
possibility that alternative licenses may
be offered at auction as described below.
53. Additionally, the Commission
concludes that the record regarding the
available 700 MHz Band licenses and
the Commission’s recent experience
with anonymous bidding in other
auctions indicate that the Commission’s
statutory mandates under Section
309(j)(3) of the Act would be better
served by adopting anonymous bidding
procedures for the upcoming auction of
700 MHz Band licenses. Such
procedures should withhold from
public release until after the auction
closes any information that may
indicate specific applicants’ interests in
the auction, including information such
as their license selections and the
identities of bidders placing bids or
taking other bidding-related actions,
such as withdrawals. The Commission
further concludes that the
implementation of anonymous bidding
procedures in the upcoming auction of
new 700 MHz Band licenses should not
be contingent on the likely level of
auction competition indicated by preauction bidder eligibility. Accordingly,
the Commission directs the Wireless
b. Declaratory Ruling on Anti-Collusion
Rule Reporting Requirement
54. To further its policy of preventing
collusive behavior in Commission
auctions, the Commission clarifies by
declaratory ruling and conforming
textual edit the obligation that
applicants in Commission auctions have
to report any communications of bids or
bidding strategies that are prohibited by
Section 1.2105(c)(1) of the
Commission’s rules. Pursuant to Section
1.2105(c)(6), any applicant that makes
or receives such a communication shall
report such communication in writing
to the Commission immediately, and in
no case later than five business days
after the communication occurs. As
noted in the Commission’s Order
adopting Section 1.2105(c)(6), the
Commission cannot ‘‘take on the
impossible task of screening all
applicant communications’’ and,
therefore, ‘‘the responsibility for
identifying potentially unauthorized
communications [must fall] on auction
applicants.’’ The reports provided by
applicants are essential to the
Commission’s ability to enforce its rule.
Absent such reports, parties might find
it easy to evade enforcement for
extended periods of time, and possibly
altogether.
55. Accordingly, the reporting
requirement ‘‘obligate[s] parties to
notify the Commission of
communications that appear to violate
the anti-collusion rule and to allow the
Commission to determine whether a
violation has occurred.’’ Consistent with
this purpose, applicants have a
continuous obligation to make such
reports extending beyond the five
business days after the communication
occurs. This declaratory ruling, and the
conforming modification of Section
1.2105(c)(6) of the Commission’s rules,
expressly states the continuing nature of
this obligation. The Commission can
and will enforce the obligation so long
as it remains unfulfilled. The
Commission emphasizes the continuing
nature of the duty to report to preclude
any attempt to evade the obligation by
waiting out the expiration of the statute
cellular architectures in the Guard
Bands) to reconfigured A Block licenses.
48. Removal of the 746–747 MHz A
Block Guard Band. The Commission
finds that it is unnecessary to retain the
A Block Guard Band at 746–747 MHz to
shield Upper 700 MHz Band C Block
operations from interference from high
power operations allowed in the Lower
700 MHz Band C Block.
subsequent license terms will be 10
years. However, the Commission will
retain the existing license terms for the
grandfathered PTPMS II B Block
licenses, rather than extending them to
match the other commercial licensees.
Furthermore, the Commission does not
provide a renewal expectancy to the
PTPMS II B Block licenses, the terms of
which will expire in 2015.
(ii) Treatment of Reconfigured B Block
49. The Commission finds that it
would not be prudent to make any
changes that would introduce the
possibility of increased interference to
adjacent public safety operations. Any
future operations in the Guard Band B
Block will continue to be bound by the
Commission’s existing Guard Bands
technical rules requiring frequency
coordination and prohibiting the use of
cellular system architectures. These
continued technical restrictions on the
B Block can be fully taken into account
as the Commission considers future uses
for the block. The Commission will,
however, create additional flexibility by
providing operations in the reconfigured
B Block the option of employing either
the existing ACP limits set forth in
Section 27.53(d) of the Commission’s
rules, or the same OOBE limits used by
other commercial licensees to protect
public safety, i.e., 76 + 10log P dB per
6.25 kHz for base stations, and 65 +
10log P dB per 6.25 kHz for mobile
units.
3. Auctions-Related Issues
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(iii) Treatment of PTPMS II Licenses
50. To ensure interoperability in
border areas with Canada, the
Commission is modifying the PTPMS II
licenses by relocating its Guard Band A
Block license to 757–758 MHz and 787–
788 MHz along with the ‘‘repacked’’
Guard Band A Block licenses, and by
shifting its Guard Band B Block licenses
down 1 megahertz to 761–763 MHz and
791–793 MHz. Although PTPMS II has
elected to remain under the existing
terms of its licenses, the Commission
concludes that, for purposes of
regulatory parity, the Commission
should apply to the PTPMS II A Block
licenses the same technical rules that
will apply to the reconfigured A Block
licenses. The Commission also
concludes that the existing B Block
technical rules continue to apply to
PTPMS II’s B Block licenses given their
adjacency with public safety spectrum.
(iv) License Terms
51. The license terms for the A Block
licenses, including the PTPMS II A
Block licenses, shall extend to 10 years
after the end of the DTV transition,
through February 17, 2019, and
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of limitations applicable for the
enforcement of forfeitures and to
reinforce the Commission’s ability to
detect collusion, which is critical to the
Commission’s ability to enforce and
thereby discourage collusive behavior in
Commission auctions.
c. Package Bidding
56. The Commission concludes that
package bidding with respect to licenses
in the Upper 700 MHz Band C Block
would serve the public interest by
reducing the exposure problem that
might otherwise inhibit bidders seeking
to create a nationwide footprint.
Accordingly, the Commission directs
the Wireless Bureau, pursuant to its
delegated authority and pre-auction
process, to propose and implement
detailed package bidding procedures for
the auction of the Upper 700 MHz Band
C Block licenses, taking into account the
goals the Commission has articulated for
package bidding and the concerns raised
in this record. More specifically, the
Wireless Bureau should propose an
auction design that includes package
bidding for the C Block licenses to
facilitate the entry of a new nationwide
competitor, without causing undue
difficulty for bidders that are not
interested in a nationwide license. The
Wireless Bureau should also explore the
use of package bidding for any blocks
subject to re-auction in the event that a
reserve price is not met.
57. The Wireless Bureau, consistent
with its delegated authority and preauction process, may revise its proposal
prior to implementation in the auction.
In order to facilitate compliance with
the statutory deadlines applicable to the
auction of 700 MHz Band licenses, the
Wireless Bureau has delegated authority
to conduct an auction without package
bidding for the Upper 700 MHz Band C
Block licenses in the event that
currently unforeseen difficulties make it
impracticable to implement package
bidding for the C Block consistent with
the goals the Commission has
articulated here. Finally, consistent with
its conclusions today, the Commission
directs the Wireless Bureau to adopt
procedures for the auction of licenses in
other blocks of 700 MHz Band spectrum
without the use of package bidding.
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d. ‘‘New Entrant’’ Bidding Credit
58. The Commission concludes that it
is not necessary to compound the
discounts already offered to small new
entrants by existing designated entity
bidding credits, or to offer large,
nationwide new entrants significant
discounts on their bids.
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e. Reserve Prices
59. The Commission concludes that it
should provide for separate aggregate
reserve prices for each block of licenses
to promote the Commission’s statutory
objective of recovering for the public a
portion of the value of the public
spectrum resource. If the auction results
for the licenses in any block satisfy the
aggregate reserve for that block, all
licenses in the block will be assigned
based on the auction results, subject to
completion of the licensing process,
including review of applicants’
qualifications. The separate aggregate
reserve prices should, taken together,
reflect current assessments of the
potential market value of this spectrum
based on various factors including, but
not limited to, the characteristics of this
band and the value of other recently
auctioned licenses, such as licenses for
Advanced Wireless Services. In
addition, the view of Congress as to the
value of this spectrum, as reflected by
the Congressional mandates for
proceeds from the auction, should be
given appropriate consideration.
60. In the event that licenses are not
assigned because the applicable blockspecific aggregate reserve is not met, the
Commission provides for a prompt
auction of alternative, less restrictive
licenses for the A, B, C, and E Blocks,
subject to the same applicable reserves.
The Commission’s rules also provide for
the possibility of re-offering the D Block
license in a subsequent auction.
61. Block-Specific Aggregate Reserve
Price. The Commission concludes that
the public interest requires a separate
aggregate reserve price for each block of
the 700 MHz Band licenses subject to
competitive bidding in the upcoming
auction. The reserve prices will be in
addition to, and separate and apart
from, any minimum opening bid
amounts that may be established for
purposes of the upcoming auction. If the
aggregate reserve is met for any block,
all licenses in that block that receive
winning bids will be eligible for
licensing subject to the completion of
the Commission’s review of long-form
license applications.
62. The Commission also concludes
that it is appropriate to assess interest in
licenses in this context on a block-byblock basis. The Commission directs the
Wireless Bureau to adopt and publicly
disclose block-specific aggregate reserve
prices, pursuant to its existing delegated
authority and its regular pre-auction
process, consistent with the
Commission’s conclusions. Given the
Commission’s intent that the reserve
prices should maximize the possibility
of recovering an appropriate portion of
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the value of the public spectrum
resource while enabling licensing as
promptly as possible, the Wireless
Bureau should establish the particular
amounts of the block-specific aggregate
reserves by taking into account a
conservative estimate of market value
based on auction results for AWS–1
spectrum licenses. More specifically,
the Wireless Bureau should consider the
following factors when setting the
block-specific aggregate reserves. The
detailed rules regarding the D Block
license, the D Block licensee’s required
construction of a network to be shared
by public safety service users, and the
resulting limitations on the flexibility of
the D Block licensee, should be given
substantial weight in assessing the D
Block’s value. Based solely on
geographic area and spectrum block
size, AWS–1 auction results might
suggest a D Block reserve of $1.7 billion.
However, in light of the D Block license
conditions essential to the public safety
purpose of the public/private
partnership, it might be appropriate to
expect the D Block licensee to
contribute only about 75 percent to 80
percent of such an amount, or about
$1.33 billion. In addition, when
determining relative valuation of other
blocks, the Wireless Bureau should
consider the relative valuation of
differing blocks in the recent auction of
AWS–1 licenses.
63. Subsequent Auction of Alternative
Licenses. The Commission recognizes
that it is possible that the auction results
may not satisfy one or more of the
block-specific reserves. In that event,
the Commission establishes a process to
enable the assignment of alternative
licenses for the A, B, C, and E Blocks of
the 700 MHz Band as soon as possible
in order to promote the speedy
deployment of services utilizing 700
MHz Band spectrum. Under the
Commission’s rules, the license for the
D Block may also be re-offered in a
subsequent auction..
64. The Commission also establishes
a process to enable the assignment of
alternative licenses as soon as possible
in the event that the relevant blockspecific aggregate reserve price is not
met when those licenses are first
offered. Specifically, the Commission
will offer the more flexible, less
conditioned licenses described below in
the A, B, C, and E Blocks as soon as
possible after the first auction. Given the
unique character of the D Block license
conditions, the Commission leaves open
the possibilities of reevaluating those
conditions or of promptly offering that
license again in a subsequent auction, in
the event the D Block-specific reserve is
not met.
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65. The Commission also provides
that the auction of alternative licenses
shall be subject to the same applicable
reserve prices as the initial auction of
licenses. The Wireless Bureau has
delegated authority, however, to
determine the appropriate means of
reapportioning the reserve associated
with the C Block in light of the
Commission’s determination to split the
block into two blocks should a reauction occur. This assures both that
any initial and subsequent auctions will
be as similar as possible (other than
with respect to particular license terms)
and also that the final assignment of the
licenses will be based only on which
licenses are able to serve the statutory
goal of recovering a portion of the value
of the public spectrum resource fixed in
advance of the auction. Therefore, the
Commission anticipates that the reserve
price for the C Block would be
approximately $4.6 billion.
66. Performance Requirements for
Alternative Licenses. The Commission
concludes that a failure of the auction
results for the A, B, and E Block licenses
to satisfy the applicable block-specific
aggregate reserve should result in a
prompt offering of alternative licenses
for the relevant block(s) that are subject
to performance requirements with the
population benchmark regime the
Commission has adopted for the C Block
licenses.
67. Changes to Alternative C Block
Licenses. The Commission concludes
that in the event that auction results for
conditioned Upper 700 MHz C Block
licenses do not satisfy the aggregate
reserve price for the C Block, the
Commission will offer as soon as
possible licenses for the C Block
without the open platform conditions.
The Commission will also modify the C
Block band plan. The Commission will
reconfigure the bandwidth of the
licenses to create two paired blocks of
6 and 5 megahertz each, which the
Commission will label the C1 and C2
Blocks. Further, the Commission will
license the C1 Block based on EAs and
the C2 Block based on REAGs.
68. D Block License. The Commission
concludes that it should not alter the
conditions it has adopted today for the
D Block license based solely on auction
results. The Commission believes that a
D Block-specific aggregate reserve of
approximately $1.33 billion is
appropriate given the Commission’s
goal of enabling the recovery of a
portion of the value of the spectrum
while also permitting licensing to
proceed as quickly as possible. If,
however, the D Block-specific aggregate
reserve is not met, the Commission
concludes that it should leave open the
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possibility of re-offering the license on
the same terms in a subsequent auction,
as well as the possibility of reevaluating all or some of the applicable
license conditions.
69. Auction Procedures. The
Commission directs the Wireless Bureau
to adopt for the auction of 700 MHz
Band licenses, consistent with its
delegated authority and pursuant to its
routine pre-auction process, procedures
that will enable a prompt subsequent
auction of alternative licenses for any
block in the event that the relevant
block-specific aggregate reserve price is
not met. This order’s provisions with
respect to the procedures for the initial
auction, including with respect to
anonymous and package bidding, will
continue to apply in any subsequent
auction. Furthermore, the same
applicable reserve prices for each block
of licenses shall apply in both the initial
and subsequent auctions, recognizing
that the Wireless Bureau will be
required to determine how to allocate
the block-specific reserve price for the C
Block upon reauction under the split
block plan. The Commission directs the
Wireless Bureau, consistent with its
delegated authority to adopt procedures
that will comply with this order and
preserve the integrity of any necessary
reauction.
70. The Commission directs the
Wireless Bureau to establish procedures
that limit qualified bidders in a
subsequent auction of alternative
licenses to those bidders that qualify to
bid in the upcoming auction offering
700 MHz Band licenses in all of these
blocks. Additionally, the Commission
finds that the applicable ‘‘down
payment deadline’’ for purposes of the
Commission’s anti-collusion rule shall
be the ‘‘down payment deadline’’
established for the subsequent auction.
In addition, because licenses for the
same spectrum will be offered in both
auctions, and the auctions will take
place relatively close in time, the
Commission concludes that the purpose
of the Commission’s anti-collusion rule
requires that the provisions of that rule
continue to apply until the down
payment deadline for the subsequent
auction. To assure that bidders will
have sufficient bidding eligibility to
pursue various bidding strategies, the
Commission directs the Wireless Bureau
to propose and adopt procedures that
give applicants an opportunity to obtain
bidding eligibility specifically for the
alternative licenses, in addition to the
initial licenses.
71. The Wireless Bureau also should
consider any additional procedures
within its delegated authority that may
enhance the effectiveness of the
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Commission’s auction of 700 MHz Band
licenses in either the initial or
subsequent auction. In this regard, the
Commission directs the Wireless Bureau
to consider what procedures may be
appropriate to deter bidders from
actions that might thwart the
assignment of licenses in either auction.
f. Statutory Deposit Deadline
72. The Commission will deposit
payments made by successful bidders
towards their respective winning bids
for their licenses—including upfront
payments, deposits, and final payments
held on deposit pending the completion
of licensing—as of the deposit deadline,
June 30, 2008, even in instances where
the licensing process for those licenses
has not yet been completed.
B. 700 MHz Public Safety Spectrum
73. 700 MHz Public Safety Spectrum.
The Commission adopts a revised band
plan for the 700 MHz Public Safety
Band. The Commission designates the
lower five-megahertz paired (ten
megahertz total) segment of the 700
MHz Public Safety Band for broadband
communications. The Commission
consolidates the public safety
narrowband operations in the upper
paired 6-megahertz blocks (twelve
megahertz total) of the 700 MHz Public
Safety Band. The Commission adopts a
one-megahertz paired guard band (768–
769/798–799 MHz) between the
broadband and narrowband segments.
The Commission further concludes that
in order to maximize the benefits of the
700 MHz Public/Private Partnership to
deploy a nationwide, interoperable
broadband communications network,
narrowband operations presently in
channels 63 and 68 (and the upper one
megahertz of channels 64 and 69) must
be cleared no later than the DTV
transition date.
74. The Commission requires the
Upper 700 MHz Band D Block licensee
to pay the costs associated with
relocating public safety narrowband
operations to the consolidated channels,
in recognition of the significant benefits
that will accrue to the D Block licensee.
To facilitate the relocation, the
Commission requires every 700 MHz
Band public safety licensee, whether
holding individual narrowband
authorizations or operating pursuant to
a State License, to provide the following
information: (1) The total number of
narrowband mobile and portable
handsets in operation in channels 63
and 68, and the upper one megahertz of
channels 64 and 69, (2) the total number
of narrowband base stations serving
these handsets in operation, (3) contact
information for each identified set of
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handsets and base stations, as
appropriate, (4) the areas of operation of
the mobile and portable units (such as
defined by the jurisdictional boundaries
of the relevant public safety
departments), and (5) the location, in
latitude and longitude, of the base
stations, all as of August 30, 2007. This
information must be filed with the
Commission by October 23, 2007 and
must include a certification, signed by
an authorized party, stating that the
information provided therein is true,
complete, correct, and made in good
faith. The Public Safety and Homeland
Security Bureau will issue a public
notice in advance of the effective date
announcing the deadline for this
certification requirement.
75. The Commission prohibits
authorization, whether pursuant to
individual license or State License, of
any new narrowband operations in
channels 63 and 68, or in the upper one
megahertz of channels 64 and 69, as of
August 30, 2007. The Commission
cautions that any equipment deployed
in these frequencies subsequent to
August 30, 2007 will be ineligible for
relocation funding.
76. The Commission requires all
Regional Planning Committees with
approved plans or plans on file to
submit amended plans consistent with
the decisions herein by November 23,
2007.
77. Public Safety Broadband Licensee.
The Commission concludes that the
public interest is best served by
establishing a single nationwide Public
Safety Broadband License for the 700
MHz public safety broadband spectrum.
The Commission will assign this license
to a single Public Safety Broadband
Licensee that will be responsible for
implementing the 700 MHz public
safety nationwide interoperable
broadband network. This network will
serve to provide public safety entities
access to new broadband technologies
across the country. Further, the
Commission provides that the Upper
700 MHz D Block Licensee will gain
access to the 700 MHz public safety
broadband spectrum on a secondary
preemptible basis through a spectrum
leasing arrangement with the Public
Safety Broadband Licensee.
78. The Commission adopts its
proposal to license the 700 MHz public
safety broadband spectrum as a 10megahertz block (comprised of paired,
5-megahertz blocks) under a nationwide
geographic area license, and the
Commission will assign this license to
the Public Safety Broadband Licensee.
The Commission establishes a variety of
eligibility criteria for this entity and sets
out a variety of responsibilities,
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including negotiating the Network
Sharing Agreement with the winning
bidder of the Upper 700 MHz Band D
Block license. The Commission
delegates authority to the Chief of the
PSHSB to issue a public notice within
thirty days of the release of this Second
Report and Order soliciting applications
for the Public Safety Broadband
Licensee. The public notice shall
specify the baseline criteria the
Commission establishes herein, and
describe the procedures and other
requirements for submitting
applications. The Commission will
select the Public Safety Broadband
Licensee and grant to it the Public
Safety Broadband License consistent
with the requirements and
considerations set forth herein.
700 MHz Public/Private Partnership
1. Adoption of the 700 MHz Public/
Private Partnership
79. The Commission designates the D
Block in the Upper 700 MHz Band to be
licensed to a commercial entity on a
nationwide basis for the purpose of
entering into the 700 MHz Public/
Private Partnership with the Public
Safety Broadband Licensee, and the
Commission adopts a number of
conditions, requirements, and
procedures to safeguard services to
public safety entities and address
concerns about the success of the
partnership, as discussed more fully
below.
2. Essential Components of Public/
Private Partnership
a. Shared Wireless Broadband Network
80. In order to have a successful
public/private partnership with a shared
nationwide interoperable broadband
network infrastructure that meets the
needs of public safety, the Commission
adopts certain network requirements.
The public/private partnership network
will serve as the nation’s public safety
wireless broadband network
infrastructure, so it must meet the
requirements of a public safety
communications network. Accordingly,
the Commission requires that the
network incorporate, at a minimum, the
following:
• Specifications for a broadband
technology platform that provides
mobile voice, video, and data capability
that is seamlessly interoperable across
agencies, jurisdictions, and geographic
areas. The platform should also include
current and evolving state-of-the-art
technologies reasonably made available
in the commercial marketplace with
features beneficial to the public safety
community (e.g., increased bandwidth).
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• Sufficient signal coverage to ensure
reliable operation throughout the
service area consistent with typical
public safety communications systems
(i.e., 99.7 percent or better reliability).
• Sufficient robustness to meet the
reliability and performance
requirements of public safety. To meet
this standard, network specifications
must include features such as hardening
of transmission facilities and antenna
towers to withstand harsh weather and
disaster conditions, and backup power
sufficient to maintain operations for an
extended period of time.
• Sufficient capacity to meet the
needs of public safety, particularly
during emergency and disaster
situations, so that public safety
applications are not degraded (i.e.,
increased blockage rates and/or
transmission times or reduced data
speeds) during periods of heavy usage.
In considering this requirement, the
Commission expects the network to
employ spectrum efficient techniques,
such as frequency reuse and sectorized
or adaptive antennas.
• Security and encryption consistent
with state-of-the-art technologies.
• A mechanism to automatically
prioritize public safety communications
over commercial uses on a real-time
basis and to assign the highest priority
to communications involving safety of
life and property and homeland security
consistent with the requirements
adopted in this Second Report and
Order.
• Operational capabilities consistent
with features and requirements
specified by the Public Safety
Broadband Licensee that are typical of
current and evolving state-of-the-art
public safety systems (such as
connection to the PSTN, push-to-talk,
one-to-one and one-to-many
communications, etc.).
• Operational controls of the network
by the Public Safety Broadband
Licensee to the extent necessary to
ensure public safety requirements are
met.
• The Public Safety Broadband
Licensee shall have the right to
determine and approve the
specifications of public safety
equipment that is used on the network,
and the right to purchase its own
subscriber equipment from any vendor
it chooses, to the extent such
specifications and equipment are
consistent with reasonable network
control requirements established in the
NSA.
• A requirement, as explained more
fully herein, that the Upper 700 MHz D
Block licensee make available to the
Public Safety Broadband Licensee at
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least one handset that would be suitable
for public safety use and include an
integrated satellite solution capable of
operating both on the 700 MHz public
safety spectrum and on satellite
frequencies.
81. These requirements are to be
implemented by the parties through the
NSA, which will also include the
detailed specifications of the network
that the D Block licensee will construct.
By allowing the parties to determine
specific details, including the
technologies that will be used, subject to
approval by the Commission, the
Commission provides them with
flexibility to evaluate the cost and
performance of all available solutions
while ensuring that the shared wireless
broadband network has all the
capabilities and attributes needed for a
public safety broadband network.
b. Spectrum Use
82. The Commission permits the
Public Safety Broadband Licensee to
provide access on a secondary and
preemptible basis to this spectrum,
pursuant to the spectrum lease specified
herein, for the purpose of enabling
commercial operations within the band
devoted to primary public safety
broadband use. The Upper 700 MHz D
Block licensee will gain access to this
public safety broadband spectrum by
means of a spectrum leasing
arrangement with the Public Safety
Broadband Licensee. The Commission
also places additional conditions
regarding the use of the D Block
spectrum, including a requirement that
the D Block licensee provide the Public
Safety Broadband Licensee with priority
access to the D Block license spectrum
during emergencies.
83. In addition, the Commission
concludes that Section 337(a)(1) does
not prohibit the Public Safety
Broadband Licensee from entering into
the lease for commercial operations, on
a limited and preemptible basis as
specified herein, of spectrum that is
allocated for public safety services.
Further, the Commission finds that
Section 337(a)(2), which directs the
Commission to allocate 36 megahertz
‘‘for commercial use,’’ does not prohibit
the Commission from requiring the D
Block licensee to provide public safety
users with priority access to D Block
license spectrum in an emergency.
Priority service, although provided to
public safety, will still be commercial,
and will not appreciably impair the D
Block licensee’s ability to provide
commercial services to other parties.
84. Commercial Operations in Public
Safety Spectrum on a Secondary Basis.
The Commission permits the leasing of
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the Upper 700 MHz Band spectrum
currently allocated for public safety
services to commercial providers on a
secondary, unconditionally preemptible
basis. The Public Safety Broadband
Licensee will be required to lease the
public safety spectrum for use by the D
Block licensee on a secondary basis
pursuant to the requirements set forth in
the NSA and established in this Second
Report and Order. Thus, under the 700
MHz Public/Private Partnership
framework adopted here, the D Block
licensee will be obligated to construct a
broadband network capable of operating
on the public safety broadband
spectrum for the benefit of the Public
Safety Broadband Licensee, and the
Public Safety Broadband Licensee will
be obligated to permit secondary
commercial operations on the public
safety broadband spectrum pursuant to
the spectrum leasing arrangement.
85. The Commission will require that
this spectrum leasing arrangement take
the form of a long-term spectrum
manager leasing arrangement for the full
term of the license. By limiting the D
Block licensee’s secondary use of the
Public Safety Broadband Licensee’s
spectrum to leased access under a
spectrum manager leasing arrangement,
subject to the conditions the
Commission is placing on the nature of
that access, the Commission thus
ensures that the Public Safety
Broadband Licensee has the regulatory
means (and obligation) to preserve the
fundamental public safety function of
the band. Moreover, the Public Safety
Broadband Licensee’s ultimate control
over the D Block licensee’s use of this
band, coupled with the operational
flexibility accorded the D Block licensee
under a spectrum manager leasing
arrangement, should provide an
appropriate balance between
commercial and public safety operations
in the public safety broadband
spectrum. Specifically, the spectrum
manager leasing arrangement permits
the D Block licensee to construct a
network to serve its business needs, yet
preserves the network infrastructure
required for primary public safety use in
the Public Safety Broadband Licensee’s
band.
86. As further conditions on the
spectrum leasing arrangement
authorized here, the D Block licensee’s
commercial operations in the public
safety spectrum must not cause
interference to primary users (i.e.,
public safety users) and must accept
interference from primary users at all
times. To help ensure that commercial
secondary use complies with these
limitations, in the public safety
broadband spectrum the Commission
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will require that the network be
designed so as to automatically assign
priority to public safety users, to the
exclusion and/or immediate preemption
of any commercial use on a dynamic,
real-time priority basis, and that
network specifications are sufficient to
guarantee that public safety users suffer
no harmful interference or interruption
or degradation of service due to
commercial operations in the public
safety broadband spectrum.
87. Priority Public Safety Access to
Commercial Spectrum During
Emergencies. As part of its
responsibilities in managing the shared
wireless broadband network, the
Commission requires the D Block
licensee to provide the Public Safety
Broadband Licensee with priority
access, during emergencies, to the
spectrum associated with the D Block
license (in addition to the 700 MHz
public safety broadband spectrum). In
determining what constitutes an
emergency, the Commission agrees with
Frontline that the definition of an
‘‘emergency’’ for this purpose should be
left to negotiation between the parties.
The Commission requires the parties to
define ‘‘emergency’’ for purposes of
priority access to D Block license
spectrum as part of the NSA.
88. The Commission recognizes that
there may be occasions when the parties
are unable to agree that an emergency
situation requires priority access to the
D Block license spectrum, especially in
circumstances that do not clearly fall
within the definition of ‘‘emergency’’
negotiated by the parties in the NSA. On
these occasions, the Public Safety
Broadband Licensee may request that
the Commission declare, on an
expedited basis, that particular
circumstances warrant emergency
priority access. In order to facilitate this
process and ensure a prompt response,
the Commission delegates authority to
the Defense Commissioner to decide
these requests and amends Section
0.181 of the Commission’s rules to
reflect this new duty.
89. Under emergency conditions, all
public safety entities in the affected area
will have real-time access, as needed, to
all D Block license spectrum on a
priority basis over commercial traffic
and will preempt ongoing commercial
traffic to the extent necessary. In this
regard, the Commission requires the D
Block licensee to provide appropriate
warnings to its commercial customers
about the potential interruption of their
service during emergencies due to
preemption by public safety users. The
NSA should address how the D Block
licensee will satisfy this obligation,
including, for example, encouraging the
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use of devices that can access spectrum
other than the D Block. The NSA must
also recognize that emergency 911 calls
from commercial users also play a
critical role in safeguarding public
safety and should be accorded some
level of priority, which may be lower
priority than public safety
communications but will not be subject
to interruption of ongoing calls by
public safety users and will have
priority over all other commercial uses.
90. Secondary Markets Rules. In
permitting the Public Safety Broadband
Licensee to enter into this spectrum
leasing arrangement subject to the
conditions set out in this order, the
Commission waives the spectrum
leasing policies and rules insofar as they
prohibit public safety licensees from
entering into spectrum leasing
arrangements for commercial
operations.
c. Performance Requirements
91. The Commission adopts specific
performance requirements that include
three population-based build-out
benchmarks that cover the nationwide D
Block license area. Specifically, the
Commission will require the D Block
licensee to provide signal coverage and
offer service to at least 75 percent of the
population of the nationwide D Block
license area by the end of the fourth
year, 95 percent of the population of the
nationwide license area by the end of
the seventh year, and 99.3 percent of the
population of the nationwide license
area by the end of the tenth year. To
meet these requirements, the D Block
licensee must use the most recently
available U.S. Census Data. The
Commission concludes that the buildout requirements being imposed will
ensure that public safety needs are met.
92. In order to ensure that less
populous areas are not neglected in the
D Block licensee’s build-out efforts, the
Commission adopts certain additional
measures to encourage coverage in those
areas. Accordingly, the Commission
requires that the D Block licensee meet
the Commission’s initial population
benchmarks based on a build-out
schedule specified in the NSA
consistent with the public safety needs.
The Commission also requires the D
Block licensee to offer at least one
handset suitable for public safety use
that includes an integrated satellite
solution pursuant to the terms,
conditions, and timeframes set forth in
the NSA.
93. The Commission’s three
population-based construction
benchmarks will take effect beginning
on February 17, 2009. This is the
statutorily imposed DTV transition date
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and is the same date that build-out
obligations for the other unauctioned
commercial 700 MHz Band licensees
will begin to take effect. Thus, the
Commission’s four, seven, and ten year
construction benchmarks for the D
Block licensee will be calculated as
starting from February 17, 2009. Use of
this date provides regulatory parity and
it recognizes that the DTV transition
will not be completed until this date.
The Commission notes that the D Block
licensee may begin constructing its
system prior to February 17, 2009, and
may begin operating its system prior to
that date so long as it provides
appropriate interference protection to
incumbent co-channel and adjacent
channel broadcasters.
94. The Commission will apply the
three population-based construction
benchmarks over the nationwide D
Block license area. Accordingly, the D
Block licensee must employ a signal
level sufficient to provide adequate
service to the relevant percentage of the
population over the nationwide D Block
license area. Moreover, the Commission
requires that the network and signal
levels employed to meet these
benchmarks be adequate for public
safety use, as defined in the Shared
Wireless Broadband Network subsection herein and further defined by
the NSA, and that the services made
available be appropriate for public
safety entities in those areas. In
particular, the Commission requires as a
mandatory provision of the NSA that
the D Block licensee and Public Safety
Broadband Licensee negotiate inclusion
into the build-out schedule coverage of
major highways and interstates, as well
as incorporated communities with a
population in excess of 3,000, as
suggested by APCO, IACP and IAFC. In
addition, to the extent that the D Block
licensee chooses to provide commercial
services to population levels in excess
of the relevant benchmarks, the D Block
licensee will be required to make the
same level of service available to public
safety entities.
95. In certain limited circumstances,
the Commission will permit the D Block
licensee to modify these populationbased construction benchmarks where
the D Block licensee and the Public
Safety Broadband Licensee reach
agreement and the full Commission
gives its prior approval for a
modification. As with other commercial
700 MHz Band licensees, the D Block
licensee will be required to demonstrate
compliance with the Commission’s
adopted benchmarks by filing with the
Commission within 15 days of passage
of the relevant benchmarks a
construction notification comprised of
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maps and other supporting documents
certifying that they have met the
Commission’s performance
requirements. The construction
notification, including the coverage
maps and supporting documents, must
be truthful and accurate and not omit
material information that is necessary
for the Commission to make a
determination of compliance with the
Commission’s performance
requirements. However, unlike the other
commercial licenses and because of the
nature of the partnership established
herein, the D Block licensee will not be
subject to a ‘‘keep-what-you-use’’ rule.
Rather, the Commission will strictly
enforce these build-out requirements
and, if the D Block licensee fails to meet
a construction benchmark, the
Commission may cancel its license,
depending on the circumstances.
d. Network Sharing Agreement (NSA)
and Mandatory Provisions
96. The Commission establishes that
the relationship between the Public
Safety Broadband Licensee and the D
Block licensee will be governed by the
Network Sharing Agreement (NSA) to be
negotiated by the parties, and such other
separate agreements as the Commission
may require or allow, and the
Commission provides that compliance
with the terms of the NSA shall be a
regulatory condition of the D Block
license. Breach of this licensing
condition may, at the determination of
the Commission, result in remedies
including, but not limited to,
cancellation and subsequent award of
the license. The Commission also
requires all the parties to negotiate in
good faith and finds that many of the
details of their agreement are
appropriately left to them to negotiate
and reach agreement on (subject to
ultimate Commission approval of the
NSA). In the discussion that follows,
certain elements that the Commission
requires the parties to address in the
NSA are enumerated.
97. Rights and Obligations Under the
Public/Private Partnership. The NSA
must incorporate all of the substantive
rights and obligations of the parties that
the Commission has established in this
Second Report and Order that are
relevant to the Public/Private
Partnership. Once the NSA is approved
by the Commission and executed by the
parties, assuming all other licensing
requirements are met, the Commission
will grant the D Block license to the
winning bidder and compliance with
the terms and conditions of the NSA
will be license conditions for both the
D Block license and the Public Safety
Broadband License. The Commission
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requires the parties to submit an
executed NSA within 10 business days
of the Commission’s approval of the
agreement, and if the parties fail to
submit the NSA, the Commission will
deny granting the D Block license until
the NSA is submitted.
98. Term of Agreement. The NSA
must have a term not to exceed 10 years
from February 17, 2009, which
coincides with the term of the D Block
license established elsewhere in this
Second Report and Order. At the
conclusion of the initial, and
subsequent, term of the agreement, the
NSA may be renewed along with the D
Block license, subject to Commission
approval. The Commission finds it
appropriate to ensure that consideration
of whether to renew the D Block license
and whether to renew or modify the
NSA whose performance is a condition
of that license should occur at the same
time.
99. Service Fees. The Commission
finds that all service fees for public
safety service should be specified in the
NSA, including any applicable fees for
normal network service and fees for
priority access to the D Block in an
emergency. The Commission finds that
the parties should be left to negotiate
reasonable rates in good faith, taking
into account all appropriate factors,
including but not limited to the public/
private nature of the partnership. The
Commission expects, however, that the
parties will negotiate a fee structure for
priority access to the D Block in an
emergency that will protect public
safety users from incurring unforeseen
(and unbudgeted) payment obligations
in the event that a serious emergency
necessitates preemption for a sustained
period. The Commission also
encourages the parties to negotiate a fee
agreement that incorporates financial
incentives for the commercial licensee
based on the number of public safety
entities and localities that subscribe to
the service.
100. The Commission also expects
that fees will be such that public safety
entities are able to afford the services
that they require for their public safety
functions, and that the terms will best
serve the public interest goals
established in this Second Report and
Order regarding the public/private
partnership. Should it prove necessary,
the Commission has established various
remedies to resolve disputes over NSA
terms, and the Commission can exercise
one of these options to ensure that fees
charged are reasonable.
101. Detailed Build-Out Schedule.
The NSA must include a detailed buildout schedule that is consistent with the
mandatory national build-out and
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performance benchmarks that the
Commission has established for the D
Block licensee elsewhere in this Second
Report and Order. The Commission
expects the NSA to identify the specific
areas of the country that will be built
out by each of the construction
deadlines that the Commission has
established. Because the Commission
must ensure that smaller towns and
rural areas are not neglected in the D
Block licensee’s build-out efforts, the
Commission requires the D Block
licensee to meet the Commission’s
initial population benchmarks by not
exclusively concentrating on building
out high population areas. In this
regard, the Commission agrees with
public safety commenters to the extent
that the Commission requires the parties
to include in the NSA coverage for
major highways and interstates, as well
as such additional areas that are
necessary to provide coverage for all
incorporated communities with a
population in excess of 3,000, unless the
Public Safety Broadband Licensee and
the D Block licensee jointly determine,
in consultation with a relevant
community, that such additional
coverage will not provide significant
public benefit. The Commission also
requires an estimated cost for each
specified area of the build-out, which
will assist the Commission in efforts to
ensure that the build-out schedule is
achieved.
102. Modifications to the NSA. The
Commission obligates the parties to act
in good faith in all dealings with each
other and to abide by the terms of the
agreement. The NSA must specify that
any major modifications to the terms of
the NSA, related agreements or
documents, or such other agreements as
the Commission may require or allow,
require not only the agreement of the
parties, but also prior Commission
approval. All other modifications
require prior approval by the Chiefs of
the Wireless Bureau and the Public
Safety and Homeland Security Bureau
on delegated authority.
e. License Term and Renewal
Expectancy for the Public/Private
Partnership
103. Consistent with the decision
made for other commercial licensees in
the 700 MHz Report and Order, the
Commission decides that a term not to
exceed 10 years from February 17, 2009,
should be used for initial authorization
in the D Block license. The D Block
license would be auctioned as a single,
nationwide license to provide for
commercial service in the ‘‘D Block,’’
and to build and operate a joint
broadband public safety and
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commercial network for public safety
use.
104. At the end of the 10 year term,
the D Block licensee will be allowed to
apply for license renewal, although its
renewal will be subject to its success in
meeting the material requirements set
forth in the NSA as well as all other
license conditions, including meeting
the performance benchmark
requirements. Because the initial NSA
term will expire at the same time, the D
Block licensee must also file a renewed
or modified NSA for Commission
approval at the time of its license
renewal application. Given these
detailed license renewal requirements,
the Commission declines to impose a
separate substantial service showing.
105. The material requirements set
forth in the NSA are conditions of the
D Block license, including the network
build-out schedule and satisfaction of
the agreed-upon public safety
specifications regarding the network
construction and operations, in order to
obtain a renewal of the license.
Regarding the D Block license renewal
application, the Commission finds the
material requirements in the NSA to be
those requirements that are the
‘‘essence’’ of the agreement between the
parties, including but not limited to the
build-out schedule for the public safety
network and other provisions that serve
the fundamental purpose of the NSA, as
well as any time limits on the
performance of those provisions.
f. Public Safety Satellite Support
106. The Commission requires that
the D Block licensee make available to
public safety users at least one handset
that includes a seamlessly integrated
satellite solution. The Commission does
not require that this handset use any
specific technology, only that it be
capable of operating both on the 700
MHz public safety spectrum and on the
satellite frequency bands and/or systems
of the satellite service providers with
which the Public Safety Broadband
Licensee has contracted for satellite
service. The Commission does not,
however, require that the D Block
licensee incorporate support for satellite
communications into the infrastructure
of the shared terrestrial network.
107. The Commission expects that the
D Block licensee, satellite companies,
and handset manufacturers will take
steps to facilitate the development of
handsets with seamlessly integrated
satellite solutions. However, the
Commission does not establish an
immediate obligation upon the D Block
licensee to make satellite-capable
handsets available. Rather, the
Commission will require the D Block
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licensee to begin offering at least one
handset suitable for public safety use
that includes a seamlessly integrated
satellite solution pursuant to the terms,
conditions, and timeframes set forth in
the NSA.
108. The Commission declines to
mandate the incorporation of support
for satellite communications by the D
Block licensee into the infrastructure of
the shared network. The Commission
believes that the D Block licensee and
the Public Safety Broadband Licensee
will be in the best position to determine
whether and when satellite support
within the terrestrial infrastructure is
appropriate, and by what method it
should be implemented, such as by
negotiating a side-agreement with
existing satellite service providers to use
their excess capacity for public safety
communications.
g. Local Public Safety Build-Out and
Operation
109. The Commission concludes that
no public safety entity will be required
to use the 700 MHz public safety
broadband network, and that any
participation in the 700 MHz
nationwide public safety network by
individual public safety entities will be
entirely voluntary. The Commission
also concludes, however, that the Upper
700 MHz Band D Block licensee should
have the exclusive right to build and
operate the shared wireless broadband
network using the 700 MHz public
safety broadband spectrum, except that
the Commission permits public safety
entities to construct local broadband
networks in the 700 MHz public safety
spectrum in two limited circumstances
subject to conditions specified below.
The Commission further concludes that
public safety entities should have a
limited right to build out wideband
networks, again with conditions and
restrictions.
110. Rights to Early Build-out in Areas
with a Build-out Commitment. First, in
an area where the D Block licensee has,
in the NSA, committed to build out by
a certain date, but where a public safety
entity wishes a more immediate buildout, the public safety entity may, with
the pre-approval of the Public Safety
Broadband Licensee, have the network
constructed in that area at the public
safety entity’s own expense. The
network must be capable of operating on
the shared, interoperable broadband
network that operates on both the D
Block licensee’s commercial block and
the public safety 700 MHz broadband
spectrum, and must meet all of the same
requirements and specifications as the
shared network required under the
NSA.
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111. The Commission authorizes two
options for implementing the early
build-out of an area of the broadband
network at the discretion of the public
safety entity. Under the first option, the
public safety entity (or the Public Safety
Broadband Licensee acting on its behalf)
may construct the network in that area.
Upon construction, it must transfer the
network to the D Block licensee, which
shall integrate that network into the
shared national broadband network
constructed pursuant to the NSA. Under
the second option, the public safety
entity may require the D Block licensee
to construct the network in that area
earlier than scheduled, but the public
safety entity must provide all funds
necessary for the early construction of
the network, including any and all
additional resource and personnel costs.
As with the first option, upon
construction, the D Block licensee will
operate and manage the network as an
integrated part of the larger shared
national broadband network.
112. In either case, the Public Safety
Broadband Licensee, the D Block
licensee, and the public safety entity
must, prior to any construction,
negotiate an amendment to the NSA
regarding this part of the network,
specifying ownership rights, fees, and
other terms, which may be distinct from
the analogous terms governing the
shared national broadband network.
Absent agreement to the contrary, the
amendment must provide that by a date
no later than the build-out date
specified for that area in the NSA, the
D Block licensee will receive full
ownership rights and will in turn
compensate the public safety entity (or
the Public Safety Broadband Licensee,
where appropriate) for the construction
of the network. The right to
compensation for the build-out shall be
limited, again absent agreement to the
contrary, to the cost that would have
been incurred had the D Block licensee
constructed the network itself in
accordance with the original terms and
specifications of the NSA.
113. The Commission points out that
early build-out in this scenario is a right
to construct only. Operations may not
commence on the network until the
network is transferred to the D Block
licensee. Operations on early build-out
networks would then be conducted
under the authority of the Public Safety
Broadband Licensee’s license, in the
same manner as any network operations
that occur following construction by the
D Block licensee under the build-out
schedule contained in the NSA.
114. Starting on the date of
compensation for build-out, or on the
build-out due date of the NSA if there
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is no specified date of compensation,
the D Block licensee may include the
early build-out for purposes of
determining whether it has met its
national build-out benchmarks and the
build-out requirements of the NSA.
115. The Commission notes that the
National Capital Region (NCR) has
commenced construction and operation
of a broadband network in the 700 MHz
Band pursuant to an experimental
license and has been granted a waiver
in anticipation of its application for a
license to operate such system. The NCR
consists of eighteen jurisdictions: The
District of Columbia, Montgomery and
Prince Georges Counties of Maryland,
and the cities of Gaithersburg, Rockville,
Takoma Park, Bowie, College Park, and
Greenbelt; Arlington, Fairfax, Loudon
and Prince William Counties of
Virginia, and the cities of Alexandria,
Falls Church, Town of Leesburg,
Manassas, and Manassas Park. Although
NCR cannot now obtain a license, as
such license will be held by the Public
Safety Broadband Licensee, nothing
herein should be construed as
preventing or limiting NCR’s ability to
continue to operate the broadband
network they have built within the 700
MHz broadband allocation (subject to
NCR properly obtaining a grant of a
request for Special Temporary Authority
for such continued operation) until such
time as the NCR network is integrated
into the nationwide, interoperable
broadband network in accordance with
the build-out plan set forth in the NSA.
116. The Commission advises the
Public Safety Broadband Licensee to
consult NCR in negotiating the build-out
date for the nationwide, interoperable
network, as the build-out plan in the
NSA should allow NCR a reasonable
time to make any modifications
necessary to incorporate its network
into the nationwide, interoperable
broadband network by the date set forth
in the NSA for build out of the portion
of the nationwide, interoperable
broadband network in the NCR. NCR
will, of course, be expected to comply
with the requirements set forth herein
for public safety entities exercising the
right to early build out, and NCR shall
be entitled to the same rights and
compensation as set forth herein for
public safety entities electing to exercise
their right to early build out.
117. The Spectrum Coalition would
have the Commission give local public
safety entities, including NCR, the
ability to ‘‘opt-out’’ of the national,
interoperable broadband network, yet
operate individual systems in the 700
MHz Band. The Commission flatly
rejects such arguments; local public
safety entities do not have to participate
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in the nationwide network, but they
may not ‘‘opt-out’’ in favor of using the
700 MHz broadband spectrum for
individual networks. As a general
matter, as we have discussed above,
there are numerous benefits to having a
single Public Safety Broadband
Licensee.
118. Rights to Build Out and Operate
In Areas without a Build-out
Commitment. The Commission
acknowledges that, even under the
stringent population-based build-out
requirements that the Commission is
adopting, there will be areas of the
nation in which the NSA does not
require the D Block licensee to build out
the shared broadband network. In such
areas, under the policies and procedures
discussed below, the Commission
provides that a public safety entity may
build out and operate a separate,
exclusive network in the 700 MHz
public safety broadband spectrum at any
time, provided the public safety entity
has received the approval of the Public
Safety Broadband Licensee and operates
its independent network pursuant to a
spectrum leasing arrangement into
which the public safety entity has
entered with the Public Safety
Broadband Licensee.
119. Under this option, the public
safety entity need not obtain any
agreement with the D Block licensee.
The Public Safety Broadband Licensee
must, however, provide the D Block
licensee with notice of the public safety
entity’s intent to construct in that area
within 30 days of receipt of a request
from a public safety entity wishing to
exercise this option, and shall inform
the D Block licensee of the public safety
entity’s anticipated build-out date(s).
This affords the D Block licensee the
opportunity, in conjunction with the
Public Safety Broadband Licensee, to
reconsider whether the NSA should be
revised to include a commitment to
build out the area that the public safety
entity has identified. Further, if within
30 days of receiving such notice the D
Block licensee certifies in writing to the
Public Safety Broadband Licensee that it
will build out the shared network in the
area, within a reasonable time of the
anticipated build-out date(s), as
determined by the Public Safety
Broadband Licensee, then the public
safety entity shall not have the option of
building out and operating its own
separate exclusive network in the area.
Under this circumstance, the D Block
licensee, working with the Public Safety
Broadband Licensee, must then adopt
an appropriate amendment to the NSA,
and such commitment would become
enforceable against the D Block licensee
as part of its build-out requirements.
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The Commission also notes that, as an
alternative in such cases, the public
safety entity would be able to complete
early build-out under the procedures
discussed above.
120. If the public safety entity pursues
this option to build out a separate
network, the Public Safety Broadband
Licensee and public safety entity, as its
spectrum lessee, must file a spectrum
leasing arrangement with the
Commission prior to the public safety
entity commencing any operations. The
Commission will require that the
spectrum leasing arrangement take the
form of a spectrum manager leasing
arrangement under the Commission’s
spectrum leasing rules. The Commission
will not permit such arrangements to
take the form of long-term de facto
transfer spectrum leasing arrangements.
The Commission believes that it is
necessary that the Public Safety
Broadband Licensee retain not only de
jure control of all of the spectrum
associated with the Public Safety
Broadband License, even in areas not
scheduled for build-out, but also de
facto control of the spectrum leased for
use by public safety entities. As a result,
the Commission finds it essential that,
as provided under the spectrum
manager leasing rules and as
distinguished from the long-term de
facto transfer leasing arrangement, the
Public Safety Broadband Licensee
maintain actual oversight and working
knowledge of its spectrum lessees’
activities in order to ensure compliance
with all requirements of the
Communications Act, the Commission’s
rules, and the obligations set forth in
this Second Report and Order.
121. In addition to compliance with
the Commission’s spectrum leasing
requirements, the public safety
spectrum lessee must ensure that the
following conditions are met: (1) The
network must provide broadband
operations; (2) the network must be
fully interoperable with the shared
national broadband network required by
the NSA; (3) the network must be
available for use by any public safety
agency in the area; and (4) the network
must satisfy any other terms or
conditions required by the Public Safety
Broadband Licensee. These conditions
specifically must be included in the
spectrum manager lease agreement
entered between the Public Safety
Broadband Licensee and the public
safety entity. Consistent with Section
90.551 of the Commission’s rules, which
contains the general 700 MHz public
safety spectrum construction
requirements, the lease agreement
between the parties must specify that
the public safety entity must construct
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and place into operation its network
within one year of the effective date of
the spectrum manager leasing
arrangement, and if not, then the Public
Safety Broadband Licensee will
terminate the spectrum leasing
arrangement pursuant to the
Commission’s rules. The separate
network need not, however, meet the
other specifications of the D Block
licensee’s shared national network. In
particular, absent agreement of the
public safety entity, the Public Safety
Broadband Licensee, and the D Block
licensee, the separate network may not
operate using any spectrum associated
with the D Block license. Finally, as
required by the Commission’s spectrum
leasing rules, the Public Safety
Broadband Licensee must notify the
Commission of the spectrum manager
leasing arrangement as part of the
Commission’s spectrum manager lease
notification procedures. The notice
must identify the public safety entity
leasing the spectrum and the particular
areas of spectrum leased as part of this
build-out option.
122. The Commission emphasizes that
under no conditions may a public safety
entity construct a network using 700
MHz public safety broadband spectrum
in an area absent the approval of the
Public Safety Broadband Licensee.
Nothing in this determination should be
construed, however, to prohibit the
Public Safety Broadband Licensee from
being responsive to requests from
localities to opt out and provide
separate network services pursuant to a
spectrum lease approved by the Public
Safety Broadband Licensee and the
Commission.
123. Conditions for Waiver to Allow
Limited and Temporary Wideband
Operations. The Commission prohibits
wideband operations in the public
safety allocation of the 700 MHz Band,
subject to the limited exceptions set
forth herein. The Commission will
require public safety entities seeking to
deploy wideband systems to satisfy the
following conditions and restrictions.
124. First, wideband operations in the
700 MHz public safety spectrum will be
permitted only upon grant of a properly
supported request for waiver of the
requirement to conform to the band plan
the Commission adopts herein, i.e., one
that permits only broadband or
narrowband operations. In the interests
of ensuring the integrity of the public/
private partnership for construction of a
nationwide broadband, interoperable
network, the Commission finds it
necessary to consider requests to deploy
wideband only in a waiver context.
Requests for waiver to conduct
wideband operations must be
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accompanied by an application for
authorization.
125. Second, any petition for waiver
must be accompanied by a letter from
the Public Safety Broadband Licensee,
confirming that the proposed wideband
deployment is not inconsistent with the
broadband deployment plan for the
affected or adjacent service areas. The
Commission encourages public safety
entities seeking such waivers to
cooperate with the Public Safety
Broadband Licensee to reach agreement
on the conditions, if any, to be placed
on any wideband deployment,
including the appropriate plan for
transition to the nationwide broadband,
interoperable network. All requests for
waiver must include any agreed-upon
conditions and transition plan.
126. Third, except as discussed
below, the Commission will restrict
grants of waiver to the deployment of a
wideband system in the consolidated
narrowband spectrum or the internal
public safety guard band. The
Commission must limit any wideband
operations in this manner in order to
ensure the full preservation of the
broadband segment. The Commission
also believes that the regional planning
committees will continue to serve an
important role in overseeing and
crafting appropriate spectrum use; to
that end, petitions for waiver in the
narrowband spectrum must also include
a letter from the appropriate regional
planning committee or state licensee
confirming that the proposed wideband
deployment will not disrupt any
regional or state planning efforts that are
underway. The Commission encourages
the Public Safety Broadband Licensee to
coordinate with the applicable regional
planning committee or state licensee
when these entities are asked to
consider any wideband deployment in
the narrowband portion of the public
safety spectrum, to ensure proper
coordination with existing and pending
narrowband applications.
127. If there are instances where
spectrum in the narrowband segment or
internal guard band is unavailable for
wideband operations, the Commission
will permit submission of request for
waiver to operate in the upper 1.25
megahertz of the broadband allocation.
The Commission emphasizes, however,
that applicants seeking waiver relief to
deploy wideband networks in the public
safety broadband spectrum face a very
high hurdle. As a threshold
requirement, the Commission will
consider requests for waiver to conduct
wideband operations in the broadband
allocation only upon submission of a
substantially supported, detailed
technical showing demonstrating why
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there is insufficient spectrum in the
narrowband allocation or internal guard
band to support the desired wideband
operations. As with requests to conduct
wideband operations in the narrowband
segment or internal guard band, any
request for waiver to conduct wideband
operations in the upper 1.25 megahertz
of the broadband allocation must be
accompanied by a letter from the Public
Safety Broadband Licensee confirming
that the proposed wideband deployment
is not inconsistent with the broadband
deployment plan for the affected or
adjacent service areas, and all requests
for waiver must reflect any conditions
and transition plan agreed upon by the
petitioner and the Public Safety
Broadband Licensee. The public safety
entity seeking to establish wideband
operations in the broadband segment
must have first issued a request for
proposal (RFP) that permitted interested
parties to submit broadband proposals
that are technically consistent with the
Public Safety Broadband Licensee
network. Finally, the wideband
applicant must include with its waiver
request proof that responses to the RFP
proposing a broadband network were
more costly, provided less coverage as
measured by throughput at the network
edge, or were otherwise inferior to the
accepted wideband proposal.
128. Notwithstanding anything herein
to the contrary, the Commission will not
entertain any request for waiver seeking
to permit wideband operations in the
broadband segment in areas scheduled
for broadband deployment within the
first three years of the build-out plan for
the national public safety broadband
network. In addition, consistent with
the waiver discussion herein, the
Commission will not grant any waiver
request for any wideband deployment in
the broadband segment that does not
include a detailed plan, accompanied by
attestation, specifying how and by what
date the wideband applicant will
integrate its proposed wideband system
into the national broadband network.
The Commission shall condition any
waiver relief for wideband operations in
the broadband segment upon acceptance
of the applicant’s integration plan. As a
further condition of any wideband
operations proposed in the broadband
segment, the Commission will require
all devices operating on the wideband
system to be designed such that they
also must be interoperable with the
nationwide, broadband network. In
order to ensure that the Commission’s
goals for the deployment of the
nationwide broadband network are met,
the authority granted for any wideband
operations in the broadband segment
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will expire automatically upon the D
Block licensee’s initiation of service in
areas where wideband has been
deployed. Further, any Grandfathered
Wideband STA operations or wideband
authority granted by waiver in the
public safety segment of the 700 MHz
Band shall be secondary to primary
narrowband or broadband applications,
as applicable. Finally, as a condition of
the grant of waiver allowing deployment
of a wideband system in the broadband
segment, a public safety entity must
certify in its application and waiver
request its acknowledgement that it may
not seek reimbursement for any costs
involved in converting the wideband
system to the national broadband
network upon completion of the
broadband network in the subject area.
129. License terms for wideband
operations granted under waiver—
whether they are in the narrowband,
internal guard band, or broadband
segments of the 700 MHz public safety
spectrum—will be limited to no more
than five years, and may be granted for
less time depending on the particular
circumstances presented. The
Commission must receive requests for
renewal of the license granted pursuant
to waiver request not less than 180 days
prior to expiration of the license.
Renewal requests must include a
showing that continued operation of the
wideband system is in the public
interest. Renewal requests for wideband
operations in the broadband segment
also must be accompanied by a letter
from the Public Safety Broadband
Licensee confirming that continuing
wideband operations are not
inconsistent with the broadband
deployment plan for the affected or
adjacent service areas. The license term
for any renewal of waiver will not
exceed three years and a wideband
waiver licensee may only receive a
single extension. Any renewal of a
wideband authorization shall continue
to be on a secondary basis only to
primary narrowband or broadband
applications, as applicable. Finally, in
light of the waiver process described
above, the Commission finds it
unnecessary to adopt any particular
wideband interoperability standard.
3. Safeguards Relating to the Public/
Private Partnership
a. Rules for Establishment, Execution
and Application of the NSA
130. The Commission specifically
conditions the D Block license on the
following requirements to ensure the
establishment and execution of the NSA
in a timely manner while safeguarding
the public interest.
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131. Approval of NSA as PreCondition for Granting the D Block
license. Because the terms of the NSA
are critical to the success of the
partnership, the D Block license will not
be issued until the Commission has
approved the NSA and following such
approval, the parties execute the NSA
and file an executed copy with the
Commission.
132. The Commission recognizes that
the D Block licensee will be subject to
an aggressive build-out schedule, and an
applicant for the license may wish to
commence certain initial construction
activities prior to the grant of an
authorization. The Commission does not
prohibit the winning bidder of the D
Block license from engaging in network
build-out during the NSA negotiation
period and prior to grant of the license,
but to ensure that such build-out does
not frustrate the interests of public
safety or preempt the negotiations
regarding the appropriate build-out
schedule, the Commission requires that
any such build-out occur only with the
approval of the Public Safety Broadband
Licensee. Similar to service rules for
other spectrum licenses, such
construction is conducted at the sole
risk of the applicant, is subject to the
Commission’s authority to provide
notification to stop such build-out, and
cannot result in commercial operation
unless and until the Commission has
granted the D Block license.
133. Timeframe for Negotiation. The
Commission requires the parties to
commence negotiations on the terms of
the NSA on the date that the winning
bidder of the D Block license files its
long form application or the date on
which the Commission designates the
Public Safety Broadband Licensee,
whichever is later, and the Commission
further requires the parties to conclude
negotiations not later than six months
after the commencement date. As soon
as the parties have reached an
agreement on all the terms of the NSA,
but not later than five days after the six
month period for negotiation has
expired, they must submit for
Commission approval the NSA together
with all agreements and other
documents referred to in the NSA,
including the agreement reached on the
broadband technology standard. The
Commission will act on the NSA within
60 days of receipt. If the parties have not
reached agreement on all terms of the
NSA by the end of the six-month period,
they must notify the Commission not
later than five days after the expiration
of the six-month period of the terms
agreed upon, the nature of the
remaining issues and each party’s
position on each issue (whether in the
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form of final best offers, or a
characterization of the parties jointly on
the positions of the parties and reason
for impasse), whether additional
negotiation is likely to produce an
agreement, and, if so, a proposed
deadline for completing the agreement.
134. Requirement of Good Faith. The
Commission requires the parties to
negotiate in good faith the specific terms
of the NSA pursuant to the conditions,
requirements, and guidance established
in this Second Report and Order. The
Commission also requires the parties to
act in good faith in the performance of
the NSA. To provide additional
assurance that negotiations are
proceeding in good faith, and except as
explicitly set forth herein, the
Commission will oversee the
negotiation of the NSA, and will play an
active role in the resolution of any
disputes among the relevant parties
(including the winning bidder for the D
Block; its wholly owned subsidiary; the
D Block licensee; the Operating
Company; the Network Assets Holder;
and the Public Safety Broadband
Licensee), both resulting from the
negotiations and once the parties are
operating under the terms of the NSA.
135. Progress Reports During
Negotiations. The winning bidder for
the D Block license shall file an initial
report within 10 days of the
commencement of the negotiations
period certifying that active and good
faith negotiations have begun, providing
the date on which they commenced, and
providing a schedule of the initial dates
on which the parties intend to meet for
active negotiations, covering at a
minimum the first 30-day period. The
Commission requires that two members
of the Commission’s staff, one from the
Wireless Bureau, and one from the
Public Safety and Homeland Security
Bureau, be present at all stages of the
negotiation of the NSA as neutral
observers. The Commission does not
intend, however that the staff act as
arbitrators. Disputes must still come to
the Commission for resolution.
Beginning three months from the
triggering of the six-month negotiation
period, the winning bidder for the D
Block license and the Public Safety
Broadband Licensee must jointly
provide detailed reports, on a monthly
basis and subject to a request for
confidential treatment, on the progress
of the negotiations throughout the
remainder of the negotiations. These
reports should include descriptions of
all material issues that the parties have
yet to resolve. The monthly reports will
enable the Commission to identify any
areas of significant disagreement
between the winning bidder for the D
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Block license and the Public Safety
Broadband Licensee. The Commission
also reserves the right to require the
parties to meet with Commission staff to
discuss their negotiations or reports at
any time during the negotiation process.
136. If the Commission determines
that parties are unlikely to reach an
agreement or they violate certain
obligations (e.g., good faith negotiation
obligations), the Commission (or the
Bureaus) may take, on its own motion,
actions pertaining to dispute resolution
before the NSA approval, described
elsewhere in this Second Report and
Order, without waiting for the sixmonth negotiation period to fully
elapse.
137. Resolution of Negotiation
Disputes. Either upon notice of a
dispute at the end of the six-month
negotiation period, or on their own
motion at any time, if the Chiefs of
PSHSB and WTB determine that
negotiations have reached a likely
impasse, the Commission delegates
authority to the Chiefs of PSHSB and
WTB to take certain actions jointly in
the public interest to adjudicate the
dispute. As appropriate, these actions
may include but are not limited to one
or more of the following: (1) Granting
additional time for negotiation; (2)
issuing a decision on the disputed
issues and requiring the submission of
a draft agreement consistent with their
decision; (3) directing the parties to
further brief the remaining issues in full
for immediate Commission decision;
and/or (4) immediate denial of the longform application filed by the winning
bidder for the D Block license. Remedies
shall not, however, include ordering
private third-party arbitration. In the
event that the long-form application
filed by the winning bidder for the D
Block license is denied, the winning
bidder for the D Block license will be
deemed to have defaulted under Section
1.2109(c) of the Commission’s rules, it
will be liable for the default payment set
forth in § 1.2104(g), and the full
Commission, at its discretion, shall
decide whether to offer a new license
for the spectrum to existing or new
applicants, offer a new license to the
other highest bidders (in descending
order) at their final bids, or choose any
other process within the Commission’s
statutory authority to reassign the
license, in light of the public interest
goals served by the Public/Private
Partnership.
138. The Commission believes that it
would be inappropriate to have issues
regarding the use of public safety
spectrum resolved by a private party
and precludes that option as a remedy.
The Commission finds, however, that
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the Commission should not at this time
preclude the option of disputes being
adjudicated by the Commission. Rather,
providing the Commission with
discretion to choose from a range of
remedies will enable the Commission to
choose the most appropriate option in
the context of the specific concerns
raised by the parties.
139. Licensing Rules and Procedures
Applicable to the D Block license.
Except as provided herein, the
Commission’s competitive bidding rules
applicable to other commercial licenses
in the 700 MHz Bands will apply to the
winning bidder for the Public/Private
Partnership License, including the
practices and procedures listed in Part
1 of the Commission’s rules. For
example, the down payment
requirement, the obligation of the
winning bidder for the D Block license
to file a ‘‘long form’’ license application,
and the consequences of a default prior
to grant of the license will be in
accordance with Sections 1.2104,
1.2105, 1.2106, 1.2107, and 1.2109 of
the Commission’s rules.
140. If the long form application is
denied, the procedures under Section
1.2109 of the Commission’s rules will
generally apply. The Commission may
complete review of the long form
application and deny the application
without regard to the NSA, if the
application is deficient or the grant of
the license would otherwise be
inconsistent with the Commission’s
rules. The Commission further clarifies
that if the winning bidder for the D
Block license fails to comply with the
procedures the Commission establishes
for negotiation or dispute resolution,
fails to receive final Commission
approval of an NSA, or fails to execute
an approved NSA, (a) it shall be
disqualified from holding the D Block
license, (b) the license application will
be denied, and (c) it will be deemed to
have defaulted and will be subject to all
payments and obligations under Section
1.2109 of the Commission’s rules.
141. Process for Final Approval. The
Commission will review and approve
the NSA. To facilitate our review, the
Commission may seek input from the
parties, or invite public comment on the
proposed NSA, subject to redactions to
protect a legitimate need for
confidentiality. After conducting its
review, the Commission may approve
the NSA in its entirety, approve it with
modifications, or require the parties to
address additional terms or re-draft
existing terms within a specified
timeframe. Following approval with or
without modifications, the parties shall
execute the NSA and submit a copy of
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the executed NSA to the Commission
within 10 days of approval.
b. Ongoing Conditions for the Protection
of Public Safety Service
142. Requirements Relating to
Organization and Structure of the
Public/Private Partnership. To support
continued construction and operation of
the shared wireless broadband network
by reducing the risk that the D Block
license or the network assets will be
drawn into a bankruptcy proceeding,
the Commission requires the winning
bidder for the D Block license to form
separate special purpose entities, which
will be bankruptcy remote, to hold the
D Block license and the network assets,
respectively. The Commission also
requires the winning bidder of the D
Block licensee to form another vehicle
that will also be a bankruptcy remote,
special purpose entity (Operating
Company). The D Block licensee will
lease the spectrum rights associated
with the D Block license to the
Operating Company pursuant to the
Commission’s spectrum leasing rules.
The spectrum leasing arrangement will
be for the entire term of the D Block
license and will be renewable, provided
that the Commission renews the
underlying D Block license. These
license transactions will occur following
the granting of the D Block license and
should follow existing Commission
procedures applicable to such
transactions. The Operating Company
will also be leased secondary use rights
associated with the primary license held
by the Public Safety Broadband
Licensee. To ensure that these
requirements have been met, the D
Block auction winner shall submit the
proposed organizational structure to the
Commission and demonstrate to the
Commission’s satisfaction that each of
the constituent entities is appropriately
bankruptcy remote. Finally, it shall be a
condition of the D Block license and the
Public Safety Broadband License that all
special purpose entities and any leasing
or other commercial agreements created
to implement the public/private
partnership will be subject to the Act
and the Commission’s rules and
regulations, and the parties to the NSA
shall acknowledge such regulatory
authority in a form acceptable to the
Commission.
143. The D Block licensee and other
entities authorized and required in this
Second Report and Order or the NSA
will have the obligation to build out the
nationwide, shared interoperable
broadband network operating on the
spectrum associated with the D Block
license and the Public Safety Broadband
License.
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144. In connection with establishing
the bankruptcy remote special purpose
entities required hereunder, the
Commission requires the issuance of
one or more legal opinion letters, at the
cost of the winning bidder of the D
Block license, from bankruptcy counsel
chosen by the winning bidder of the D
Block license and acceptable to the
Commission, and such other parties as
the Commission may designate, that
clearly states, subject only to customary
assumptions, limitations and
qualifications that none of the winning
bidder, the Operating Company, or any
party to the NSA or other related
agreements will be substantively
consolidated with any entity. The scope
of this opinion letter shall also cover
such other opinions as the Commission
may request.
145. Prohibition on Discontinuance of
Public Safety Operations. The
Commission prohibits the D Block
licensee from discontinuing or
degrading the broadband network
service provided to the Public Safety
Broadband Licensee or to public safety
entities unless either at the request of
the entity or entities in question or it
has first obtained the approval of the
Commission. Further, the D Block
licensee must notify the affected public
safety entity or entities and the Public
Safety Broadband Licensee at least 30
days prior to any unrequested
discontinuance or degradation of
network service.
146. Failure to Comply with the NSA
or the Commission’s Rules. The
Commission establishes rules to address
how the Commission will remedy
failures by either the D Block licensee
or the Public Safety Broadband Licensee
to comply with the NSA or the
Commission’s rules. First, with regard to
the D Block licensee, the Commission
has conditioned the D Block license on
compliance with the NSA. Failure to
comply with the Commission’s rules or
the terms of the NSA may warrant
cancelling the D Block license,
depending on the circumstances, and
awarding it to a new licensee. In
particular, the full Commission will
decide whether to cancel and reassign
the D Block license in the event that the
D Block licensee either cannot or will
not fulfill the critical responsibilities
that are being given to it.
147. In the event that the Commission
determines that the D Block license
must be cancelled consistent with the
Act and the requirements herein, an
order shall be issued cancelling the
license and announcing the process for
awarding rights to the spectrum to a
new licensee. However, pending the
award to a new licensee, the Operating
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Company will be issued a special
temporary authority (STA) to continue
to provide both commercial and public
safety service in the Public/Private
Partnership spectrum.
148. To further ensure that services to
public safety are not threatened by
cancellation, or otherwise, the NSA
shall require, in a separate agreement,
the granting of (a) an irrevocable and
assignable right of first refusal if the
network and network assets are
otherwise to be sold; and (b) an
irrevocable and assignable option in
favor of the Public Safety Broadband
Licensee to acquire the network and all
network assets if and whenever the D
Block license is cancelled or terminated,
by reason of default or for any other
reason, for a consideration equivalent to
the fair market value (FMV) of the
tangible and intangible assets sold. This
option shall be senior to, and have
priority over, any other right, claim, or
interest in or to the network or the
network assets. An event of default
includes any default of the D Block
licensee of a material obligation under
the NSA, as determined by the
Commission. Valuation will be
performed pursuant to a FMV
methodology to be agreed upon by the
parties and set forth in the NSA.
Valuation shall be performed
immediately following the occurrence of
a triggering event and completed within
a reasonable time thereafter. The NSA
must further provide that, in the event
that the D Block license is awarded to
a new entity, the Public Safety
Broadband Licensee’s right to purchase
the network assets shall be reassigned to
the new D Block licensee. Thereafter,
the Public Safety Broadband Licensee’s
right to purchase shall be extinguished
unless and until a new triggering event
described above occurs, as the primary
purpose of the right, to enable a smooth
transition in the event of a default,
would be achieved, and because
maintaining the right might adversely
impact the incentive of the new D Block
licensee to invest in its network.
149. The Commission provides that,
in the event that the D Block license is
cancelled, the Commission may choose
any process within the Commission’s
statutory authority to reassign the
license, in light of the public interest
goals served by the Public/Private
Partnership. Upon grant of a new
license, the Commission, or the Bureaus
acting on delegated authority, shall, in
coordination with the former licensee
and the new licensee, as well as the
Public Safety Broadband Licensee,
establishes the terms and timing under
which the temporary authorization shall
be cancelled and the new D Block
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licensee assume the construction and
operation of the network. This decision
shall take into account, among other
factors, any exercise by the new licensee
of its right to purchase the network
assets.
150. With regard to the Public Safety
Broadband Licensee, in the event that
the Public Safety Broadband Licensee
fails to adhere to the terms of the NSA,
or comply with the Commission’s rules
or any requirements contained in this
Second Report and Order, to an extent
giving rise to license cancellation, the
Commission delegates authority to the
Chiefs, PSHSB and WTB jointly to
determine an appropriate remedy. The
potential remedies include, but are not
limited to, cancelling the license,
assigning the license to another entity,
directing the Public Safety Broadband
Licensee to transfer the assignable
option to purchase the assets at fair
market value, ordering specific
performance, or ordering removal and
replacement of individual officers,
directors or member organizations of the
Public Safety Broadband Licensee.
151. Resolution of Disputes after
Grant of the D Block license. The
Commission finds that the Commission
should assume primary responsibility
and jurisdiction for adjudicating
intractable disputes that arise once the
parties are operating pursuant to the
terms of the NSA. While the
Commission strongly encourages the
parties to first attempt to resolve any
disagreements themselves through
voluntary means, the parties to the NSA
may at any time bring a complaint based
on a claim that the other party has
deviated from the terms of the NSA, or
a petition for a declaratory ruling to
resolve the proper interpretation of an
NSA term or provision. The
Commission emphasizes that these shall
be the exclusive remedies for claims
seeking the interpretation of the NSA in
the first instance. The Commission may,
however, as an alternative to
adjudicating the issues, require the
parties to first seek a settlement to the
dispute or authorize them to resolve the
dispute through litigation or other
means, particularly if the dispute is
found to involve no significant public
concerns, and the Commission will
consider any request by the parties to
authorize such means.
152. In the event the Commission
decides to adjudicate the issues, the
Commission provides that the
Commission will have full authority to
interpret not only the Commission’s
rules but all of the provisions of the
NSA. The Commission further provides
that, if the Commission finds a material
breach of the NSA, it may apply any
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remedy or enforcement mechanism
within its authority. As with
adjudication of disputes during the NSA
negotiation process, the Chiefs of
PSHSB and WTB are delegated joint
responsibility for adjudicating any
disputes that arise during performance
of the NSA. Bureau level adjudications
of NSA disputes must be completed
within 45 days. The parties may seek
review by the Commission of any
bureau-level adjudication. Finally, the
Commission establishes that, if a breach
of the NSA occurs but is not brought to
the Commission for resolution, the
Commission retains authority to apply
all appropriate remedies on its own
initiative at any time after the breach
occurs.
153. Reporting Obligations. Once the
NSA is approved by the Commission
and executed by the parties, the parties
must jointly file quarterly reports with
the Commission. These reports must
include detailed information on the
areas where broadband service has been
deployed, how the specific
requirements of public safety are being
met, audited financial statements,
which public safety entities (e.g., police,
fire departments) are using the
broadband network in each area of
operation; what types of applications
(e.g., voice, data, video) are in use in
each area of operation to the extent
known; and the number of declared
emergencies in each area of operation.
The Commission anticipates that this
information will be readily available
from the billing systems used for the
shared network, and reserve the right to
specify additional information that the
quarterly reports must include at a later
date. The D Block licensee and Public
Safety Broadband Licensee also have
joint responsibility to register the base
station locations with the Commission,
providing basic technical information,
including geographic location. Such
registrations may be filed with a request
for confidential treatment by the
Commission. In this regard, the
Commission delegates to the Wireless
Bureau authority to adopt rules and
procedures to implement this
requirement, as well as authority to
modify ULS to accept such filings and
to issue a public notice describing any
such modifications and relevant filing
procedures. The Commission delegates
to the Wireless Bureau the authority to
adopt filing rules and procedures not
inconsistent with this Second Report
and Order to facilitate these reporting
obligations.
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4. Other Issues
a. Bidding Credits
154. In order to encourage the widest
range of potentially qualified applicants
to participate in bidding for the D Block
license, the Commission will provide
eligible bidders for the D Block license
with the existing 15 and 25 percent
bidding credits, as the credits may be
necessary to create incentives for
investors to provide innovative small
businesses with the capital necessary to
compete for the D Block license at
auction. Pursuant to the Commission’s
existing small business size standards,
eligible bidders with average
attributable gross revenues for the last
three years not exceeding $15 million or
$40 million, respectively, may be
eligible for bidding credits of 25 percent
or 15 percent, respectively.
b. License Partitioning, Disaggregation,
Assignment, and Transfer
155. The Commission decides to
prohibit geographic partitioning and
spectrum disaggregation for the D Block
licensee. The Public Safety Broadband
Licensee is also prohibited from
partitioning and disaggregation. The
Commission recognizes that the
Commission’s existing Secondary
Markets rules governing transfers and
assignments would be applicable to the
D Block licensee, providing further
flexibility to the licensee. Thus, the D
Block licensee would be permitted to
assign or transfer its licensee subject to
the Commission review and prior
approval.
c. Commercial Service Issues
(i) Wholesale and Open Access
Proposals
II. Procedural Matters
156. The Commission declines to
restrict the D Block licensee to operating
exclusively on a ‘‘wholesale’’ or ‘‘open
access’’ basis. Instead, the Commission
provides the D Block licensee with
flexibility to provide wholesale or retail
services or other types of access to its
network that comply with the
Commission’s rules and the NSA.
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(ii) Roaming Proposal
157. The Commission concludes that
it should defer to the broader context of
the pending roaming proceeding the
determination of whether there are
public interest benefits in also requiring
automatic roaming to be provided by
other commercial licensees. The
Commission will therefore not at this
time impose any special roaming
requirements on the D Block licensee.
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(iii) Applicability of CALEA, E911, and
Other Requirements
158. The Commission declines to
categorically exempt services offered by
the D Block licensee from E911, CALEA,
and other regulatory requirements.
Instead, the Commission clarifies that
E911, CALEA, and other regulatory
requirements will apply to services
provided using Public/Private
Partnership spectrum to the extent and
only to the extent that these
requirements apply to similar services
provided elsewhere in the 700 MHz
Band. The Commission has only
recently concluded that the E911
requirements established in Section
20.18 of the Commission’s rules will
apply to all commercial mobile radio
services, including such services
throughout the 700 MHz Band, that
meet the functional criteria in Section
20.18(a), and the Commission sees no
reason to revisit that decision. The
Commission defers any further
examination of regulatory applicability
to a more concrete and particular
context, e.g., if service providers seek
clarification regarding the applicability
of a specific regulatory requirement to
their specific service.
159. The Commission also notes that,
even though the D Block license for
spectrum in the ‘‘D Block’’ band will be
issued pursuant to Part 27 of the
Commission’s rules, the licensee will be
required to comply with other rule
parts, which are applicable to the other
commercial 700 MHz bands, unless
otherwise stated in this Second Report
and Order. Some of these rule parts will
be applicable by virtue of the fact that
they apply to all licensees and others
will apply depending on the type of
services the D Block licensee provides.
A. Regulatory Flexibility Act
160. As required by the Regulatory
Flexibility Act of 1980, as amended
(RFA),6 an Initial Regulatory Flexibility
Analysis (IRFA) was included in the 700
MHz Further Notice 7 in WT Docket No.
6 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601–
612, has been amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
(SBREFA), Pub. L. 104–121, Title II, 110 Stat. 857
(1996).
7 See Service Rules for the 698–746, 747–762 and
777–792 MHz Bands, WT Docket No. 06–150,
Revision of the Commission’s Rules to Ensure
Compatibility with Enhanced 911 Emergency
Calling Systems, CC Docket No. 94–102, Section
68.4(a) of the Commission’s Rules Governing
Hearing Aid-Compatible Telephones, WT Docket
No. 01–309, Biennial Regulatory Review—
Amendment of Parts 1, 22, 24, 27, and 90 to
Streamline and Harmonize Various Rules Affecting
Wireless Radio Services, WT Docket 03–264,
Former Nextel Communications, Inc. Upper 700
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48833
06–150, WT Docket No. 01–309; WT
Docket No. 06–169, WT Docket No. 03–
264, CC Docket No. 94–102, PS Docket
No. 06–229, and WT Docket No. 96–86.8
The Commission sought written public
comment on the proposals in these
dockets, including comment on the
IRFA. This Final Regulatory Flexibility
Analysis (FRFA) conforms to the RFA.9
161. Although Section 213 of the
Consolidated Appropriations Act of
2000 provides that the RFA shall not
apply to the rules and competitive
bidding procedures for frequencies in
the 746–806 MHz Band,10 the
Commission believes that it would serve
the public interest to analyze the
possible significant economic impact of
the proposed policy and rule changes in
this band on small entities. Accordingly,
this FRFA contains an analysis of this
MHz Guard Band Licenses and Revisions to Part 27
of the Commission’s Rules, WT Docket No. 06–169,
Implementing a Nationwide, Broadband,
Interoperable Public Safety Network in the 700
MHz Band, PS Docket No. 06–229, Development of
Operational, Technical and Spectrum Requirements
for Meeting Federal, State and Local Public Safety
Communications Requirements Through the Year
2010, WT Docket No. 96–86, Report and Order and
Further Notice of Proposed Rulemaking, 22 FCC
Rcd 8064 (2007) (700 MHz Report and Order and
700 MHz Further NPRM, respectively).
8 See Service Rules for the 698–749746, 747–762
and 777–792 MHz Bands, WT Docket No. 06–150,
Revision of the Commission’s Rules to Ensure
Compatibility with Enhanced 911 Emergency
Calling Systems, CC Docket No. 94–102, and
Section 68.4(a) of the Commission’s Rules
Governing Hearing Aid-Compatible Telephones,
WT Docket No. 01–309, Notice of Proposed Rule
Making, Fourth Further Notice of Proposed Rule
Making, and Second Further Notice of Proposed
Rule Making, 21 FCC Rcd 9345, 9394 (2006) (‘‘700
MHz Commercial Services Notice’’); Former Nextel
Communications, Inc. 01–309, Biennial Regulatory
Review—Amendment of Parts 1, 22, 24, 27, and 90
to Streamline and Harmonize Various Rules
Affecting Wireless Radio Services, WT Docket 03–
264, Former Nextel Communications, Inc. Upper
700 MHz Guard Band Licenses and Revisions to
Part 27 of the Commission’s Rules, Development of
Operational, Technical and Spectrum Requirements
for Meeting Federal, State and Local Public Safety
Communications Requirements Through the Year
2010, WT Docket Nos. 06–169 and 96–86, Notice of
Proposed Rule Making, 21 FCC Rcd 10413, 10440
(2006) (‘‘700 MHz Guard Bands Notice’’);
Implementing a Nationwide, Broadband,
Interoperable Public Safety Network in the 700
MHz Band, PS Docket No. 06–229, Development of
Operational, Technical and Spectrum Requirements
for Meeting Federal, State and Local Public Safety
Communications Requirements Through the Year
2010, WT Docket No. 96–86, Ninth Report and
Order and Further Notice of Proposed Rule Making,
22 FCC Rcd 14837, 14853 (2006) (‘‘8064 (2007) (700
MHz Public Safety Ninth Report and Order and 700
MHz Further NPRM’’, respectively).
9 See 5 U.S.C. 604.
10 In particular, this exemption extends to the
requirements imposed by Chapter 6 of Title 5,
United States Code, Section 3 of the Small Business
Act (15 U.S.C. 632) and Sections 3507 and 3512 of
Title 44, United States Code. Consolidated
Appropriations Act 2000, Pub. L. 106–113, 113 Stat.
2502, Appendix E, Sec. 213(a)(4)(A)–(B); see 145
Cong. Rec. H12493–94 (Nov. 17, 1999); 47 U.S.C.A.
337 note at Sec. 213(a)(4)(A)–(B).
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impact in connection with all spectrum
that falls within the scope of this
Second Report and Order, including
spectrum in the 746–806 MHz Band.
1. Need for, and Objectives of, the Rules
162. In the Second Report and Order,
the Commission takes a number of steps
to facilitate access to spectrum and the
provision of service to consumers,
especially those in rural areas, and to
simplify and clarify our rules related to
the commercial 700 MHz spectrum. It
designates a spectrum block in the
upper portions of the commercial
spectrum for a commercial licensee that
will be part of a public/private
partnership (the ‘‘700 MHz Public/
Private Partnership’’) with a national
public safety broadband licensee for the
public safety broadband spectrum
(hereinafter, the Public Safety
Broadband Licensee). The Commission
reconfigures the 700 MHz Public Safety
Band, to promote the development of
nationwide interoperable broadband
services for public safety users. The
Commission also changes the location of
the existing 700 MHz Guard Band
licenses, provides for a one megahertz
shift of the other commercial spectrum
blocks in the Upper 700 MHz Band and
the 700 MHz Public Safety Band, and
reduces the size of the Guard Band B
Block to make two additional megahertz
of commercial spectrum available for
auction.
163. The band plan provides a
balanced mix of geographic service area
licenses and spectrum block sizes for
the 62 megahertz of commercial
spectrum to be auctioned. The
Commission determined that it will
auction two 12-megahertz spectrum
blocks (comprised of paired 6-megahertz
blocks), one licensed by Cellular Market
Areas (CMAs) and one by Economic
Areas (EAs); one 22-megahertz spectrum
block (paired 11-megahertz blocks) by
Regional Economic Area Groupings
(REAGs); and one 6-megahertz unpaired
spectrum block by EAs. It also
designates one 10-megahertz spectrum
block (paired 5-megahertz blocks), the
Upper 700 MHz Band D Block, to be
licensed on a nationwide basis and used
as part of the 700 MHz Public/Private
Partnership between this commercial
licensee and the Public Safety
Broadband Licensee that will be
assigned the public safety broadband
spectrum.
164. In addition, the Commission
replaces the current ‘‘substantial
service’’ requirements for 700 MHz
Band commercial licenses that have not
been auctioned with significantly more
stringent performance requirements,
and makes unserved areas available to
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third parties who wish to provide
service to these areas. By adopting these
more rigorous requirements, the
Commission ensures that the 700 MHz
Commercial Services licensees put the
spectrum to use throughout the course
of their license terms and serve the
majority of users in their license areas
Additionally, for one commercial
spectrum block in the 700 MHz Band—
the Upper 700 MHz C Block (700 MHz
C Block)—the Commission imposes
requirements on those licensees to
provide open platforms for devices and
applications, and concludes that it
would not serve the public interest at
this time to mandate broader openness
requirements.
165. The Second Report and Order
also revises the 700 MHz band plan
with respect to the Upper 700 MHz
Guard Bands, such that all existing A
Block licenses relocate to a reconfigured
A Block between the C and D Blocks,
pursuant to an agreement between all
but one of the Guard Bands licensees.
As part of this agreement, the existing
B Block licenses are relinquished, and
the B Block is reconfigured from 4 to 2
megahertz and located immediately
above the public safety narrowband
spectrum. The reconfigured B Block
serves as a guard band to protect the
public safety narrowband channels, and
remains empty as a commercial
allocation at this time. With respect to
the Guard Bands licensee that did not
participate in the agreement, its one A
Block license and two B Block licenses
are grandfathered, with minor
modifications to facilitate the overall
revised band plan. In addition to these
band plan issues with respect to the
Guard Bands, the Second Report and
Order also revises the service rules with
respect to the reconfigured A Block,
bringing it largely into parity with the
adjacent Commercial Services spectrum
given the new spectral location and its
relationship to the rest of the band
including the public safety spectrum.
166. Further, the Second Report and
Order seeks to achieve broadband
communications capabilities consistent
with a nationwide interoperability
standard for public safety. The
Commission expects that modern public
safety services will increasingly depend
on the advanced communications
capabilities afforded by wireless
broadband technologies, which should
enable first responders to perform their
vital safety-of-life and other critical
roles. The Second Report and Order redesignates the wideband spectrum to
broadband use consistent with a
nationwide interoperability standard,
and prohibits wideband operations on a
going forward basis in the newly
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designated broadband spectrum. The
Second Report and Order also
consolidates the narrowband spectrum
to the top of the Public Safety Band,
locates the broadband spectrum at the
bottom of the Public Safety Band, and
divides these segments with an internal
guard band. This reconfiguration
reduces the amount of spectrum
necessary to separate and protect the
public safety broadband and
narrowband allocations, and facilitates
partnerships between public safety
broadband operations and adjacent
commercial broadband technologies,
thereby optimizing the 700 MHz public
safety band plan. Finally, in order to
promote the rapid deployment of a
nationwide, interoperable broadband
public safety network, the Second
Report and Order creates a single
nationwide geographic area Public
Safety Broadband License which will be
administered by a single Public Safety
Broadband Licensee.
167. With regard to auctions-related
issues, the Commission decides to
utilize anonymous bidding to enhance
the effectiveness of the auction of 700
MHz licenses, as well as allow package
bidding for the Upper 700 MHz Band C
Block, and decides not to grant a ‘‘new
entrant’’ bidding credit for the 700 MHz
Band licenses. The Commission also
declines to impose eligibility
restrictions for the licenses in the 700
MHz Band. Finally, the Commission
will offer bidding credits in the D Block,
as described fully below.
2. Summary of Significant Issues Raised
by Public Comments in Response to the
IRFA
168. No comments specifically
addressed the IRFAs from any of the
respective proceedings. We have
nonetheless addressed small entity
issues found in comments in this FRFA.
3. Description and Estimate of the
Number of Small Entities to Which the
Rules Will Apply
169. The RFA directs agencies to
provide a description of, and, where
feasible, an estimate of, the number of
small entities that may be affected by
the proposed rules, if adopted.11 The
RFA generally defines the term ‘‘small
entity’’ as having the same meaning as
the terms ‘‘small business,’’ ‘‘small
organization,’’ and ‘‘small governmental
jurisdiction.’’ 12 In addition, the term
‘‘small business’’ has the same meaning
as the term ‘‘small business concern’’
11 5
12 5
U.S.C. 604(a)(3).
U.S.C. 601(6).
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under the Small Business Act.13 A
‘‘small business concern’’ is one which:
(1) Is independently owned and
operated; (2) is not dominant in its field
of operation; and (3) satisfies any
additional criteria established by the
Small Business Administration (SBA).14
170. Small Businesses. Nationwide,
there are a total of approximately 22.4
million small businesses, according to
SBA data.15
171. Small Organizations.
Nationwide, there are approximately 1.6
million small organizations.16
172. Governmental Entities. The term
‘‘small governmental jurisdiction’’ is
defined as ‘‘governments of cities,
towns, townships, villages, school
districts, or special districts, with a
population of less than fifty
thousand.’’ 17 As of 2002, there were
approximately 87,525 governmental
jurisdictions in the United States.18 This
number includes 38,967 county
governments, municipalities, and
townships, of which 37,373
(approximately 95.9%) have
populations of fewer than 50,000, and of
which 1,594 have populations of 50,000
or more. Thus, we estimate the number
of small governmental jurisdictions
overall to be 85,931 or fewer.
173. Wireless Service Providers. The
SBA has developed a small business
size standard for wireless firms within
the two broad economic census
categories of ‘‘Paging’’ 19 and ‘‘Cellular
and Other Wireless
Telecommunications.’’ 20 Under both
categories, the SBA deems a wireless
business to be small if it has 1,500 or
fewer employees. For the census
category of Paging, Census Bureau data
for 2002 show that there were 807 firms
in this category that operated for the
entire year.21 Of this total, 804 firms had
13 5 U.S.C. 601(3) (incorporating by reference the
definition of ‘‘small-business concern’’ in the Small
Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C.
601(3), the statutory definition of a small business
applies ‘‘unless an agency, after consultation with
the Office of Advocacy of the Small Business
Administration and after opportunity for public
comment, establishes one or more definitions of
such term which are appropriate to the activities of
the agency and publishes such definition(s) in the
Federal Register.’’
14 15 U.S.C. 632.
15 See SBA, Programs and Services, SBA
Pamphlet No. CO–0028, at page 40 (July 2002).
16 Independent Sector, The New Nonprofit
Almanac & Desk Reference (2002).
17 5 U.S.C. 601(5).
18 U.S. Census Bureau, Statistical Abstract of the
United States: 2006, Section 8, pages 272–273,
Tables 415 and 417.
19 13 CFR 121.201, NAICS code 517211.
20 13 CFR 121.201, NAICS code 517212.
21 U.S. Census Bureau, 2002 Economic Census,
Subject Series: Information, ‘‘Establishment and
Firm Size (Including Legal Form of Organization,’’
Table 5, NAICS code 517211 (issued Nov. 2005).
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employment of 999 or fewer employees,
and three firms had employment of
1,000 employees or more.22 Thus, under
this category and associated small
business size standard, the majority of
firms can be considered small. For the
census category of Cellular and Other
Wireless Telecommunications, Census
Bureau data for 2002 show that there
were 1,397 firms in this category that
operated for the entire year.23 Of this
total, 1,378 firms had employment of
999 or fewer employees, and 19 firms
had employment of 1,000 employees or
more.24 Thus, under this second
category and size standard, the majority
of firms can, again, be considered small.
174. When identifying small entities
that could be affected by the
Commission’s new rules, this FRFA
provides information describing
auctions results, including the number
of small entities that were winning
bidders. However, the number of
winning bidders that qualify as small
businesses at the close of an auction
does not necessarily reflect the total
number of small entities currently in a
particular service. The Commission
does not generally require that licensees
later provide business size information,
except in the context of an assignment
or transfer of control application where
unjust enrichment issues are implicated.
175. 700 MHz Guard Band Licenses.
The Commission previously adopted
size standards for ‘‘small businesses’’
and ‘‘very small businesses’’ for
purposes of determining their eligibility
for special provisions such as bidding
credits and installment payments.25 A
small business in this service is an
entity that, together with its affiliates
and controlling principals, has average
gross revenues not exceeding $40
million for the preceding three years.26
Additionally, a ‘‘very small business’’ is
an entity that, together with its affiliates
and controlling principals, has average
gross revenues that are not more than
$15 million for the preceding three
years.27 SBA approval of these
22 Id. The census data do not provide a more
precise estimate of the number of firms that have
employment of 1,500 or fewer employees; the
largest category provided is for firms with ‘‘1000
employees or more.’’
23 U.S. Census Bureau, 2002 Economic Census,
Subject Series: Information, ‘‘Establishment and
Firm Size (Including Legal Form of Organization,’’
Table 5, NAICS code 517212 (issued Nov. 2005).
24 Id. The census data do not provide a more
precise estimate of the number of firms that have
employment of 1,500 or fewer employees; the
largest category provided is for firms with ‘‘1000
employees or more.’’
25 See Service Rules for the 746–764 MHz Bands,
and Revisions to Part 27 of the Commission’s rules,
Second Report and Order, 15 FCC Rcd 5299 (2000).
26 Id. at 5343 para. 108.
27 Id.
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48835
definitions is not required.28 An auction
of 52 Major Economic Area (MEA)
licenses commenced on September 6,
2000, and closed on September 21,
2000.29 Of the 104 licenses auctioned,
96 licenses were sold to nine bidders.
Five of these bidders were small
businesses that won a total of 26
licenses. A second auction of 700 MHz
Guard Band licenses commenced on
February 13, 2001, and closed on
February 21, 2001. All eight of the
licenses auctioned were sold to three
bidders. One of these bidders was a
small business that won a total of two
licenses.30
176. Upper 700 MHz Band Licenses.
The Commission released a Report and
Order authorizing service in the Upper
700 MHz band.31 An auction for these
licenses, previously scheduled for
January 13, 2003, was postponed.32
177. Lower 700 MHz Band Licenses.
The Commission adopted criteria for
defining three groups of small
businesses for purposes of determining
their eligibility for special provisions
such as bidding credits.33 The
Commission has defined a small
business as an entity that, together with
its affiliates and controlling principals,
has average gross revenues not
exceeding $40 million for the preceding
three years.34 A very small business is
defined as an entity that, together with
its affiliates and controlling principals,
has average gross revenues that are not
more than $15 million for the preceding
three years.35 Additionally, the Lower
700 MHz Band has a third category of
small business status that may be
claimed for Metropolitan/Rural Service
Area (MSA/RSA) licenses. The third
category is entrepreneur, which is
defined as an entity that, together with
its affiliates and controlling principals,
has average gross revenues that are not
more than $3 million for the preceding
28 Id. at 5343 para. 108 n.246 (for the 746–764
MHz and 776–704 MHz bands, the Commission is
exempt from 15 U.S.C. 632, which requires Federal
agencies to obtain SBA approval before adopting
small business size standards).
29 See ‘‘700 MHz Guard Bands Auction Closes:
Winning Bidders Announced,’’ Public Notice, 15
FCC Rcd 18026 (2000).
30 See ‘‘700 MHz Guard Bands Auctions Closes:
Winning Bidders Announced,’’ Public Notice, 16
FCC Rcd 4590 (WTB 2001).
31 Service Rules for the 746–764 and 776–794
MHz Bands, and Revisions to Part 27 of the
Commission’s Rules, Second Memorandum
Opinion and Order, 16 FCC Rcd 1239 (2001).
32 See ‘‘Auction of Licenses for 747–762 and 777–
792 MHz Bands (Auction No. 31) Is Rescheduled,’’
Public Notice, 16 FCC Rcd 13079 (WTB 2003).
33 See Reallocation and Service Rules for the 698–
746 MHz Spectrum Band (Television Channels 52–
59), Report and Order, 17 FCC Rcd 1022 (2002).
34 Id. at 1087–88 para. 172.
35 Id.
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Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations
three years.36 The SBA has approved
these small size standards.37 An auction
of 740 licenses (one license in each of
the 734 MSAs/RSAs and one license in
each of the six Economic Area
Groupings (EAGs)) commenced on
August 27, 2002, and closed on
September 18, 2002. Of the 740 licenses
available for auction, 484 licenses were
sold to 102 winning bidders. Seventytwo of the winning bidders claimed
small business, very small business or
entrepreneur status and won a total of
329 licenses.38 A second auction
commenced on May 28, 2003, and
closed on June 13, 2003, and included
256 licenses: 5 EAG licenses and 476
CMA licenses.39 Seventeen winning
bidders claimed small or very small
business status and won sixty licenses,
and nine winning bidders claimed
entrepreneur status and won 154
licenses.40
178. Public Safety Radio Licensees. As
a general matter, public safety radio
licensees include police, fire, local
government, forestry conservation,
highway maintenance, and emergency
medical services.41 The SBA rules
contain a small business size standard
for cellular and other wireless
telecommunications companies that
encompasses business entities engaged
in wireless communications employing
36 Id.
at 1088 para. 173.
Letter to Thomas Sugrue, Chief, Wireless
Telecommunications Bureau, Federal
Communications Commission, from Aida Alvarez,
Administrator, SBA, dated August 10, 1999.
38 See ‘‘Lower 700 MHz Band Auction Closes,’’
Public Notice, 17 FCC Rcd 17272 (WTB 2002).
39 See ‘‘Lower 700 MHz Band Auction Closes,’’
Public Notice, 18 FCC Rcd 11873 (WTB 2003).
40 Id.
41 See subparts A and B of Part 90 of the
Commission’s Rules, 47 CFR 90.1–90.22. Police
licensees include 26,608 licensees that serve state,
county, and municipal enforcement through
telephony (voice), telegraphy (code), and teletype
and facsimile (printed material). Fire licensees
include 22,677 licensees comprised of private
volunteer or professional fire companies, as well as
units under governmental control. Public Safety
Radio Pool licensees also include 40,512 licensees
that are state, county, or municipal entities that use
radio for official purposes. There are also 7,325
forestry service licensees comprised of licensees
from state departments of conservation and private
forest organizations that set up communications
networks among fire lookout towers and ground
crews. The 9,480 state and local governments are
highway maintenance licensees that provide
emergency and routine communications to aid
other public safety services to keep main roads safe
for vehicular traffic. Emergency medical licensees
(1,460) use these channels for emergency medical
service communications related to the delivery of
emergency medical treatment. Another 19,478
licensees include medical services, rescue
organizations, veterinarians, persons with
disabilities, disaster relief organizations, school
buses, beach patrols, establishments in isolated
areas, communications standby facilities, and
emergency repair of public communications
facilities.
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37 See
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no more than 1,500 persons.42
According to Census Bureau data for
2002, in this category there were 8,863
firms that operated for the entire year.43
Of this total, 401 firms had 100 or more
employees, and the remainder had
fewer than 100 employees.44 With
respect to local governments, in
particular, since many governmental
entities as well as private businesses
comprise the licensees for these
services, we include under public safety
services the number of government
entities affected.
179. Wireless Communications
Equipment Manufacturers: Radio and
Television Broadcasting and Wireless
Communications Equipment
Manufacturing. While these entities are
merely indirectly affected the
Commission’s actions, the Commission
describes them to achieve a fuller
record. The Census Bureau defines this
category as follows: ‘‘This industry
comprises establishments primarily
engaged in manufacturing radio and
television broadcast and wireless
communications equipment. Examples
of products made by these
establishments are: Transmitting and
receiving antennas, cable television
equipment, GPS equipment, pagers,
cellular phones, mobile
communications equipment, and radio
and television studio and broadcasting
equipment.’’ 45 The SBA has developed
a small business size standard for Radio
and Television Broadcasting and
Wireless Communications Equipment
Manufacturing, which is: All such firms
having 750 or fewer employees.46
According to Census Bureau data for
2002, there were a total of 1,041
establishments in this category that
operated for the entire year.47 Of this
42 See 13 CFR 121.201 (NAICS code 517212); U.S.
Census Bureau, 2002 Economic Census, Subject
Series: Information, ‘‘Employment Size of
Establishments for the United States: 2002,’’ Table
2, NAICS code 517212.
43 U.S. Census Bureau, 2002 Economic Census,
Subject Series: Information, ‘‘Employment Size of
Establishments for the United States: 2002,’’ Table
2, NAICS code 517212.
44 Id.
45 U.S. Census Bureau, 2002 NAICS Definitions,
‘‘334220 Radio and Television Broadcasting and
Wireless Communications Equipment
Manufacturing’’; https://www.census.gov/epcd/
naics02/def/NDEF334.HTM#N3342.
46 13 CFR 121.201, NAICS code 334220.
47 U.S. Census Bureau, American FactFinder,
2002 Economic Census, Industry Series, Industry
Statistics by Employment Size, NAICS code 334220
(released May 26, 2005); https://
factfinder.census.gov. The number of
‘‘establishments’’ is a less helpful indicator of small
business prevalence in this context than would be
the number of ‘‘firms’’ or ‘‘companies,’’ because the
latter take into account the concept of common
ownership or control. Any single physical location
for an entity is an establishment, even though that
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total, 1,010 had employment of less than
500, and an additional 13 had
employment of 500 to 999.48 Thus,
under this size standard, the majority of
firms can be considered small.
180. Software Publishers. While these
entities are merely indirectly affected by
our action, we are describing them to
achieve a fuller record. These
companies may design, develop or
publish software and may provide other
support services to software purchasers,
such as providing documentation or
assisting in installation. The companies
may also design software to meet the
needs of specific users.49 The SBA has
developed a small business size
standard of $23 million or less in
average annual receipts for the category
of Software Publishers.50 For Software
Publishers, Census Bureau data for 2002
indicate that there were 6,155 firms in
the category that operated for the entire
year.51 Of these, 7,633 had annual
receipts of under $10 million, and an
additional 403 firms had receipts of
between $10 million and $24,999,999.
For providers of Custom Computer
Programming Services, the Census
Bureau data indicate that there were
32,269 firms that operated for the entire
year.52 Of these, 31,416 had annual
receipts of under $10 million, and an
additional 565 firms had receipts of
between $10 million and $24,999,999.
Consequently, we estimate that the
majority of the firms in this category are
small entities that may be affected by
our action.
4. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements for Small Entities
181. The projected reporting,
recordkeeping, and other compliance
requirements resulting from the Second
Report and Order will apply to all
entities in the same manner. The
Commission believes that applying the
same rules equally to all entities in this
location may be owned by a different establishment.
Thus, the numbers given may reflect inflated
numbers of businesses in this category, including
the numbers of small businesses. In this category,
the Census breaks-out data for firms or companies
only to give the total number of such entities for
2002, which was 929.
48 Id. An additional 18 establishments had
employment of 1,000 or more.
49 See U.S. Census Bureau, ‘‘2002 NAICS
Definitions: 511210 Software Publishers’’; https://
www.census.gov/epcd/naics02/def/NDEF511.HTM.
50 13 CFR 121.201, NAICS code 511210.
51 U.S. Census Bureau, 2002 Economic Census,
Subject Series: Information, ‘‘Establishment and
Firm Size (Including Legal Form of Organization),’’
Table 4, NAICS code 511210 (issued Nov. 2005).
52 U.S. Census Bureau, 2002 Economic Census,
Subject Series: Professional, Scientific, and
Technical Services, ‘‘Establishment and Firm Size
(Including Legal Form of Organization),’’ Table 4,
NAICS code 541511 (issued Nov. 2005).
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Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations
context promotes fairness. The
Commission does not believe that the
costs and/or administrative burdens
associated with the rules will unduly
burden small entities. The revisions the
Commission adopts should benefit
small entities by giving them more
information, more flexibility, and more
options for gaining access to valuable
wireless spectrum.
182. Performance Requirements. In
this Second Report and Order, the
Commission replaces the current
‘‘substantial service’’ requirements for
the 700 MHz Band commercial licenses
that have not been auctioned with
significantly more stringent
performance requirements. These
include the use of interim and end-ofterm benchmarks, with geographic area
benchmarks for licenses based on CMAs
and EAs, and population benchmarks
for licenses based on REAGs. Licensees
must meet the interim requirement
within four years of the end of the DTV
transition. Failure to meet the interim
requirement will result in a two-year
reduction in license term, as well as
possible enforcement action, including
forfeitures. Licensees that fail to meet
the end-of-term benchmarks will be
subject to a ‘‘keep-what-you-use’’ rule,
under which the licensee will lose its
authorization for unserved portions of
its license area, which will be
automatically returned to the
Commission for reassignment.
183. Licensees must demonstrate
compliance with the Commission’s
interim and end-of-term construction
benchmarks by filing a construction
notification with the Commission
within 15 days of the passage of the
relevant benchmark certifying that they
have met our performance requirements.
However, if they have not met the
Commission’s performance
requirements, they must file a
description and certification of the areas
for which they are providing service.
The information contained in the
licensee’s construction notification must
include electronic coverage maps and
other supporting documentation. The
electronic coverage maps must clearly
and accurately depict the boundaries of
each EA or CMA in the licensee’s
service territory, and the areas where
the licensee’s signal strength is
sufficient to provide service to users. In
addition to filing electronic coverage
maps, each licensee must file
supporting documentation certifying the
type of service it is providing for each
EA or CMA within its license service
territory.
184. Guard Band Issues. The Second
Report and Order relocates the A Block
away from the public safety narrowband
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spectrum with respect to the upper half
of the original paired A Block.
Accordingly, the reconfigured A Block
no longer serves as a guard band to
protect the public safety spectrum from
commercial operations. The existing
frequency coordination requirement,
which was created to protect public
safety operations from Guard Bands
operations, is therefore eliminated with
respect to the reconfigured A Block.
185. Open Platforms for Devices and
Applications. In this Second Report and
Order, the Commission adopts a
requirement for the 700 MHz C Block
licensees to provide open platforms for
devices and applications. 700 MHz C
Block licensees must allow customers,
device manufacturers, third-party
application developers and others to use
or develop the devices and applications
of their choosing on the 700 MHz C
Block network so long as they meet all
applicable regulatory requirements and
comply with reasonable conditions
related to the management of the
wireless network. The Commission does
not, at this time, specify a particular
process for wireless service providers to
develop reasonable network
management and openness standards,
including through participation in
standards setting organizations. The
Commission expects licensees to
publish their standards once adopted,
which will be non-proprietary, such that
they would be open to any third party
vendors and that the standards applied
to third parties will be no more
restrictive than those applied to the
provider’s preferred vendors.
186. The Commission also requires
700 MHz C Block licensees to provide
to potential customers notice of the
customers’ rights to request the
attachment of a device or application to
the licensee’s network, and notice of the
licensee’s process for customers to make
such requests, including the relevant
network criteria. In addition, 700 MHz
C Block licensees are required to
establish a reasonable process for
expeditiously reviewing and processing
requests to employ devices and
applications on the licensee’s network
and offer a specific explanation for
denial of any such request, and an
opportunity for amendment of the
request to accommodate the provider’s
concerns.
187. The Commission also provides
for its existing complaint procedures to
be invoked if a violation of this
requirement occurs. Once a complainant
sets forth a prima facie case that the 700
MHz C Block licensee has refused to
attach a device or application in
violation of the requirement or has
otherwise violated the rule, the 700
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48837
MHz C Block licensee shall have the
burden of proof to demonstrate that it
has adopted reasonable network
standards and reasonably applied those
standards in the complainant’s case.
The Commission commits to rule on
these complaints within 180 days.
188. Public Safety Broadband. The
Second Report and Order re-designates
the wideband spectrum to broadband
use consistent with a nationwide
interoperability standard, and prohibits
wideband operations on a going forward
basis. The Commission will only grant
limited exceptions to this rule through
a waiver process. As a result of the
decision to prohibit wideband
operations outside of this waiver
process, Regional Planning Committee
plans already approved or on file with
the Commission will require
amendment. The Second Report and
Order also consolidates the narrowband
channels to the top of the public safety
band, locates the broadband spectrum at
the bottom of the public safety band,
divides these segments with an internal
guard band, and creates a single Public
Safety Broadband License/Licensee to
promote the rapid deployment of a
nationwide, interoperable broadband
public safety network. The relocation of
public safety narrowband operations in
the consolidated channels will entail
some additional reporting,
recordkeeping and compliance efforts
by existing public safety entities with
regard to the number and location of
their affected narrowband handsets and
base stations. The Second Report and
Order does not otherwise propose any
additional reporting, recordkeeping or
other compliance requirements.
5. Steps Taken To Minimize Significant
Economic Impact on Small Entities, and
Significant Alternatives Considered
189. The RFA requires an agency to
describe in the IRFA any significant
alternatives that it has considered in
reaching its proposed approach, which
may include (among others) the
following four alternatives: (1) The
establishment of differing compliance or
reporting requirements or timetables
that take into account the resources
available to small entities; (2) the
clarification, consolidation, or
simplification of compliance or
reporting requirements under the rule
for small entities; (3) the use of
performance, rather than design,
standards; and (4) an exemption from
coverage of the rule, or any part thereof,
for small entities.53 The Commission
hereby incorporates by reference the
discussion in the Second Report and
53 5
U.S.C. 603(c).
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Order of our consideration of the impact
on small entities of the rules the
Commission adopts here.
190. Band Plan Issues. The Second
Report and Order revises the 700 MHz
band plan for the commercial services
and public safety services in a manner
that will improve the opportunity of
small entities to obtain valuable
wireless spectrum by providing smaller
licensing areas that better meet the
needs of small entities. The
Commission’s goals for the 700 MHz
Band are to promote dissemination of
licenses among a wide variety of
applicants, including small entities,
accommodate the competing need for
both large and small licensing areas,
meet the various needs expressed by
potential entrants seeking access to
spectrum and incumbents seeking
additional spectrum, and provide for
large spectrum blocks that can facilitate
broadband deployment in the band. To
achieve these goals the revised plan
provides for two 12-megahertz spectrum
blocks (comprised of paired 6-megahertz
blocks), one licensed by CMAs and one
by EAs; one 22-megahertz spectrum
block (paired 11-megahertz blocks) by
REAGs; and one 6-megahertz unpaired
spectrum block by EAs. The revision
also designates one 10-megahertz
spectrum block (paired 5-megahertz
blocks), the Upper 700 MHz D Block, to
be licensed on a nationwide basis and
used as part of the 700 MHz Public/
Private Partnership.
191. Providing for an additional 700
MHz Band spectrum block licensed on
a CMA basis (the B Block) will increase
the opportunity of small entities to
obtain smaller license areas that meet
their needs while avoiding the
transaction costs associated with
obtaining access to spectrum in the
secondary market, costs that are
incurred when these small providers
must arrange the terms by which
another licensee grants access to its
spectrum by means of partitioning,
disaggregation, or spectrum leasing.
192. In addition, the Commission
adopts EAs as the geographic service
area for licenses in Block A of the Lower
700 MHz Band, making 176 licenses
available in this block. The Commission
also adopts EAs for the unpaired 6megahertz E block of the Lower 700
MHz Band which further enhances the
mix of geographic sizes for licenses in
the band. These decisions will also
create opportunities for small entities to
acquire licenses for small geographic
service areas in the Lower 700 MHz
Band.
193. Frequency Coordination and the
Guard Bands. The service area
definition for the Upper 700 MHz Guard
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Bands is the MEA, which is a smaller
license area and therefore can provide
greater opportunities for small entrants
than larger service area definitions such
as the REAG. Accordingly, among the
licensed Guard Bands and the lessees
currently using their spectrum, there
may be a significant number of small
entities. Additionally, continued
operations in the Guard Bands A Block
may continue to involve a significant
number of small entities through
Secondary Markets arrangements. Since
the Second Report and Order removes
the requirement for all A Block
operations to be frequency coordinated
with public safety entities, any small
entity engaged in ownership of, or
operations on, the A Block will find the
frequency coordination burden lifted to
their significant benefit.
194. Performance Requirements. In
this Second Report and Order, the
Commission adopts stringent
performance requirements for the 700
MHz Commercial Services licenses in
order to promote the provision of
innovative services to consumers
throughout the license areas, including
in rural areas. With regard to
geographic-based benchmarks for
licenses based on CMAs and EAs, the
Commission seeks to promote service
across as much of the geographic area of
the country as is practicable. Parties that
seek to acquire licenses based on CMAs
and EAs may be small and rural
providers that are less likely to provide
regional or nationwide service, but they
nonetheless play an important role in
bringing new services to consumers in
many of these more rural areas.
195. The use of small license areas
such as CMAs will create opportunities
for small and rural businesses and will
foster the deployment of competitive
wireless broadband services in rural
areas. Because the Commission adopts
smaller geographic license areas such as
CMAs to facilitate the provision of
service, including broadband, in rural
areas, it also adopts performance
requirements that are designed to ensure
that service is offered to consumers in
these areas. Because of the 700 MHz
band’s excellent propagation
characteristics and suitability for
delivering advanced wireless services to
rural areas, the Commission establishes
benchmarks that require build-out to a
significant portion of the geographic
area in those markets. In addition, the
performance requirements adopted here
will discourage larger entities from
purchasing spectrum for the purpose of
warehousing it and thus may provide
small entities with a greater chance of
obtaining valuable spectrum.
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196. In the Second Report and Order,
the Commission adopts populationbased benchmarks for REAG licensees
with large geographic areas in order to
facilitate the deployment of advanced
services on a nationwide or regional
basis. Because of the significant capital
investment and logistical challenges
associated with building a regional or
nationwide system without existing
infrastructure, population benchmarks,
rather than geographic benchmarks, will
best allow a potential new entrant to
achieve the economies of scale needed
for a viable business model, while also
ensuring that a majority of the
population in a given region may have
access to these services. Moreover, the
performance requirements adopted here
will discourage larger entities from
purchasing spectrum for the purpose of
warehousing it and thus may provide
small entities with a greater chance of
obtaining valuable spectrum.
197. Additionally, the ‘‘keep-whatyou-use’’ rule is pro-competitive and
provides another method for smaller
license areas to be made available to
small businesses, thus promoting access
to spectrum and the provision of
service, especially in rural areas. This
rule ensures that spectrum covering
areas that are not adequately built out is
returned to the Commission and others
are given an opportunity to acquire
licenses for this spectrum. Because the
license areas returned to the
Commission under the ‘‘keep-what-youuse’’ rule are likely to be smaller in
nature, this rule will provide small
entities with an additional opportunity
to obtain valuable wireless spectrum.
198. Although the Commission
recognizes that the performance and
reporting requirements for the 700 MHz
Commercial Services licenses places
burdens on both large and small
businesses alike, these requirements
will further several important policy
objectives including taking advantage of
the excellent propagation characteristics
of the spectrum in the 700 MHz Band
enabling broader coverage at lower
costs, promoting the provision of
innovative services to consumers
throughout the license areas, including
rural areas, and allowing large license
areas to be served at lower infrastructure
costs. Moreover, the inclusion of interim
benchmark reporting requirements
ensures that licensees provide service to
consumers as early as possible. Because
of the importance of these requirements,
we do not believe that they should be
applied on a differential basis to large
and small business. Neither do we
believe that such requirements will
impose an unacceptable burden on
small entities.
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199. License Terms. The Second
Report and Order extends the license
terms of all the existing A Block
licensees, given the changed
circumstances of the band plan and
service rules, as the licensees are
relocated to the reconfigured A Block.
This license term extension will benefit
any Guard Bands licensees, and any
lessees currently using their spectrum,
that may be small entities as they will
have more flexibility in the use of their
spectrum with a longer period of time
within which to make use of the
spectrum.
200. Partitioning and Disaggregation.
In this Second Report and Order, the
Commission concludes that Section
27.15(d) of its rules regarding
partitioning and disaggregation should
be amended to clarify how the
performance obligations will apply to
the partitioning and disaggregation of
the 700 MHz Commercial Services
licenses that remain to be auctioned.
These modifications seek to continue to
provide flexibility to licensees and third
parties to enter into partitioning and
disaggregation arrangements that will
facilitate the provision of new services
to consumers, including consumers in
unserved and underserved areas.
201. Under the modifications of the
Section 27.15(d) rule relating to
geographic partitioning of new 700 MHz
Commercial Services licenses, the
Commission establishes two options for
partitioners and partitionees with regard
to the newly adopted performance
requirements. Under the first option, the
partitioner and partitionee must each
certify to the Commission that they will
share responsibility for meeting the
performance requirements for the entire
geographic license area. If the parties
meet the end-of-term construction
benchmarks, they will retain the ability
to continue to build out the unserved
portion of their license areas. Parties
that fail to meet the end-of-term
benchmarks will be subject to a ‘‘keepwhat-you-use’’ rule, under which they
will lose their authorization for
unserved portions of their license areas,
which will automatically cancel and
return to the Commission for
reassignment. This option enables
parties to share the cost of meeting the
stricter build-out benchmarks as
required by the Commission under its
new performance requirements, while
ensuring that build-out will occur over
the original license area to the same
extent as it would have occurred had
the licensee never partitioned the
license. Under the second option, the
partitioner and partitionee must each
certify that it will independently meet
the applicable performance
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requirements for its respective
partitioned service area. If the
partitioner or partitionee fails to meet
the four-year build-out requirement for
its respective area, then its license term
will be reduced by two years. If the
parties meet the end-of-term
construction benchmarks, they will
retain the ability to continue to build
out the unserved portion of their license
areas. Parties that fail to meet the endof-term benchmarks will be subject to an
automatic ‘‘keep-what-you-use’’ rule,
under which they will lose their
authorization for unserved portions of
their license areas, which will
automatically cancel and return to the
Commission for reassignment. This
option provides a way for partitioners
and partitionees to ensure that their
licenses will not be affected by the other
party’s conduct with regard to meeting
the applicable performance
requirements.
202. Under the modifications of the
Section 27.15(d) rule relating to
disaggregation of new 700 MHz
Commercial Services band licenses, the
Commission provides that the
disaggregator, disaggregate, or both the
disaggregator and disaggregate working
together, can meet the four-year and
end-of-term construction benchmarks
for the entire geographic license area. If
either party meets the performance
requirement, then the requirement will
be satisfied for both parties. If neither
party meets the four-year build-out
requirement, then each of their license
terms will be reduced by two years. If
either of the parties meets the end-ofterm build-out requirement, then this
requirement is considered to be satisfied
for both parties. Those parties that meet
the end-of-term construction
benchmarks will retain the ability to
continue to build out the unserved
portion of their license areas. Parties
that fail to meet the end-of-term
benchmarks will be subject to an
automatic ‘‘keep-what-you-use’’ rule,
under which they will lose their
authorization for unserved portions of
their license areas, which will
automatically cancel and return to the
Commission for reassignment.
203. Partitioning and disaggregation
allow smaller or newly-formed entities
to enter the market for the first time,
because they will be able to negotiate for
portions of original licenses at costs that
are proportionately less than the entire
license. Moreover, these modifications
provide the opportunity for small
businesses to enter into partitioning and
disaggregation agreements that would
enable them to share the cost of meeting
the more stringent performance
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48839
requirements for the unauctioned
commercial 700 MHz Band spectrum.
204. Open Platforms for Devices and
Applications. In order to promote
innovation in the 700 MHz Band from
the outset, the Commission is imposing
certain conditions on the 700 MHz C
Block to provide open platforms for
devices and applications. The C Block—
a large 22-megahertz block (comprised
of paired 11-megahertz blocks)—is of
sufficient size and scope to provide an
environment conducive for the
development and deployment of 4G
services designed to compete with other
broadband alternatives, and to provide
an opportunity for innovators and
entrepreneurs to develop equipment
and applications that require substantial
bandwidth to realize their full potential.
The requirements should also provide
sufficient potential market penetration
to attract investment and achieve
economies of scale in the equipment
marketplace. In addition, we believe
that the open platform requirement for
devices and applications will provide
additional opportunities for small
entities to participate in the device and
application market, since such a
requirement will make it easier for
customers, device manufacturers, thirdparty application developers, and others
to use or develop devices and
applications made by small entities on
the network of the C Block licensee.
205. In adopting this requirement for
the 700 MHz C Block, the Commission
has taken a targeted, focused approach
to achieve benefits to consumers. In
particular, the Commission declines to
impose additional openness
requirements on the 700 MHz C Block,
including wholesale and
interconnection requirements. In
addition, the Commission declines at
this time to impose the requirement to
provide open platforms for devices and
applications or other openness
obligations broadly in the 700 MHz
Band, or in other spectrum bands.
206. Licensee Eligibility. The
Commission declines to impose
eligibility restrictions for the licenses in
the 700 MHz band. The record does not
demonstrate that open eligibility is
likely to result in substantial
competitive harm in the provision of
broadband services. There are numerous
actual and potential broadband service
providers, and currently, consumers can
obtain broadband service from wireline
providers, cable companies, satellite,
and wireless providers. Given this
number of providers, it is unlikely that
incumbent local exchange carriers, cable
providers, or large wireless carriers
would be able to behave in an
anticompetitive manner as a result of
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any potential acquisition of 700 MHz
spectrum. Furthermore, there are
potential competitive benefits to not
imposing eligibility requirements. First,
allowing incumbents to hold 700 MHz
band licenses will provide opportunities
for these carriers to extend service into
rural and hard-to-serve areas, which is
a major goal the Commission seeks to
achieve. Also, an incumbent service
provider may already be a rural provider
and to limit their eligibility would be
contrary to the Commission’s goals. We
also do not believe that imposing
eligibility restrictions for licenses in the
700 MHz band is necessary to provide
small entities with the opportunity to
obtain such licenses. As discussed
above, among other things, the smaller
licensing areas made available here will
increase opportunities for small entities.
207. Anonymous Bidding. In response
to its request for comments on whether
to use anonymous bidding (or ‘‘limited
information’’) procedures in the auction
of the new 700 MHz band licenses, the
Commission received comments both in
support of and in opposition to such
procedures. One of the supporters is a
small licensee who argued that
anonymous bidding would bring about
a more level playing field between large
and small bidders.54 The Commission
further concludes that the many
uncertainties regarding the technologies
that will be used in the 700 MHz band
will result in the potential anticompetitive use of detailed information
regarding bidding outweighing the
benefit to some bidders of having such
information.
208. The Commission further
concludes that anonymous bidding
should be employed even if the preauction eligibility ratio indicates that
competition in the auction will be
significant. Even in an auction with
many competitors individual bidders
could still use retaliatory bidding
unilaterally to block the market, and it
is important to avoid that from
occurring especially given that the 700
MHz auction is going to offer multiple,
substitutable blocks of licenses for sale,
with prices relatively high, and the
outcome having possible significant
effects on post-auction market structure.
209. The Commission does not
believe that anonymous bidding will
have a detrimental effect on small
entities. First, as discussed in Section
III.A.3.a of the Second Report and
Order, the potential benefit to bidders,
such as small entities, of knowing the
identity of other parties placing bids for
particular licenses appears likely to be
54 See McBride 700 MHz Further NPRM
Comments at 11.
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less in this auction than in past
Commission auctions, in light of the
early stage of development with respect
to new services in these frequencies.
Second, because bidding information
can be used by incumbents to deter or
exclude new entrants, we believe that
anonymous bidding will increase the
opportunities for new entrants,
including small entities, to obtain
licenses.
210. Package Bidding. Commenters
are divided on the issue of package
bidding for the upcoming auction of the
700 MHz band spectrum. While some
commenters support package bidding
because they feel it is essential for a new
entrant seeking to aggregate licenses and
offer service nationwide,55 there are
other commenters who feel that package
bidding will disadvantage bidders not
bidding on packages, which are more
likely to be small entities.56
211. The Commission concludes that
package bidding, with respect to the
Upper 700 MHz Band C Block, would
serve the public interest by reducing the
exposure problem that might otherwise
inhibit bidders seeking to create a
nationwide footprint. Absent package
bidding, the exposure problem creates
an opportunity for competitors to block
a would-be package bidder without
actually competing for all the licenses in
the package.57
212. Minimizing the exposure
problem, by implementing package
bidding, should facilitate the entry of
applicants whose business plans require
the economies of scale that only can be
obtained with nationwide operation.
The Commission further concludes that
package bidding solely with respect to
licenses for the Upper 700 MHz Band C
Block provides sufficient opportunities
to bid with minimal risk of an exposure
problem. However, we limit package
bidding to the C Block so that bidders,
including small entities, who are
unwilling or unable to compete against
package bids will not be deterred from
participating in the auction. The variety
of blocks and licenses that are not
subjected to package bidding will
provide any such bidders, including
small entities, with a wide array of
opportunities.
55 See, e.g., Google 700 MHz Further NPRM
Comments at 7–8.
56 See Aloha 700 MHz Further Notice Comments
at 7–8; Blooston 700 MHz Further Notice Comments
at 10; Cellular South 700 MHz Further Notice
Comments at 16; Leap 700 MHz Further Notice
Comments at 9; MetroPCS 700 MHz Further Notice
Comments at 22; RCA 700 MHz Further Notice
Comments at 18; RTG 700 MHz Further Notice
Comments at 16.
57 Frontline 700 MHz Further Notice Comments,
Exhibit 1 at 22–23.
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213. ‘‘New Entrant’’ Bidding Credit.
The possibility of granting ‘‘new
entrant’’ bidding credits attracted far
less comment than other issues relating
to the auction of the 700 MHz licenses,
and those parties that did respond were
divided on the issue. The Commission
concludes that a ‘‘new entrant’’ bidding
credit for the 700 MHz Band licenses is
not needed to facilitate the entry of new
service providers. The Commission
already offers substantial bidding
credits to small entities, many of which
may be new entrants in the spectrum
services market, and we therefore do not
believe that there is a need for an
additional ‘‘new entrant’’ bidding credit.
In addition, the availability of multiple
licenses in each and every market with
varied geographic sizes, coupled with
the large number of licenses should
offer new ventures, including small
entities, a variety of opportunities to
provide service.
214. Bidding Credits for the 700 MHz
Public/Private Partnership. A number of
small entities have proposed, in their
comments, that the Commission should
offer designated entities bidding credits
with regards to the license that has been
proposed by Frontline.58 In brief, these
commenters maintain that bidding
credits will help potential applicants
overcome efforts by incumbents to
prevent others from winning newly
available licenses.
215. The Commission concludes that
it should provide applicants that are
eligible to be licensed as designated
entities with bidding credits in the
auction of the D Block license,
consistent with the Commission’s prior
decision regarding bidding credits for
700 MHz band licenses and our current
designated entities rules. This decision
will improve the opportunity for small
entities to successfully bid for the D
Block license.
216. Public Safety Broadband. The
Second Report and Order reallocates the
wideband spectrum to broadband use
consistent with a nationwide
interoperability standard, and prohibits
wideband operations within the newly
designated broadband spectrum on a
going forward basis. The public safety
community expressed broad support for
a broadband allocation to enable
advanced communications capabilities.
The availability of a contiguous block of
broadband spectrum, subject to a
nationwide interoperability standard,
enables partnerships with commercial
licensees in adjacent broadband
58 See, e.g., McBride Spectrum Partners, LLC 700
MHz Further Notice Comments at 4–8; Blooston
Rural Carriers 700 MHz Further NPRM Comments
at 7; Council Tree Communications, Inc. 700 MHz
Further Notice Reply Comments at 5–7.
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spectrum. As a result, the band plan
ultimately enables public safety entities
to utilize the 700 MHz band spectrum
in a more cost-effective and spectrally
efficient manner to address their
homeland security and emergency
response roles. In particular, the
Commission believes that the
interoperable broadband network will
be of benefit to smaller governmental
entities that would otherwise be
unlikely to have the resources to
construct such a network. Because the
Commission does not anticipate that
this reallocation will impose additional
economic burdens on public safety, and
is in fact designed to reduce economic
burdens on public safety, the
Commission has taken steps to
minimize any adverse impact of the rule
changes.
217. The Second Report and Order
also consolidates the narrowband
spectrum to the top of the public safety
band and locates the broadband
spectrum at the bottom of the public
safety band, in light of the potentially
significant benefits such reconfiguration
will afford the public safety community.
The alternative would have been to
retain the existing band plan. The
Further NPRM sought comment on how
to implement reconfiguration of the
narrowband channels with minimum
disruption to incumbent operations. The
Second Report and Order
accommodates public safety operations
in the border areas with Canada and
Mexico, and defrays the costs of
relocation by providing that such costs
will be covered by the D Block Licensee.
This defrayal of costs should be of
particular benefit to small governmental
entities, which are less likely to have
the resources to fund such a relocation
on their own. The Commission expects
that the number of entities impacted
and the expected reconfiguration cost
should be relatively minor. In order to
receive reimbursement for the transition
costs, however, affected public safety
entities are required to provide
information regarding the narrowband
radios and base stations that they have
deployed. We do not believe that such
a reporting requirement will place an
unacceptable burden on small
governmental entities.
6. Report to Congress
218. The Commission will send a
copy of the Second Report and Order,
including this FRFA, in a report to be
sent to Congress and the Government
Accountability Office pursuant to the
Congressional Review Act.59 In
addition, the Commission will send a
59 See
5 U.S.C. 801(a)(1)(A).
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15:44 Aug 23, 2007
copy of the Second Report and Order,
including this FRFA, to the Chief
Counsel for Advocacy of the SBA. A
copy of the Second Report and Order
and FRFA (or summaries thereof) will
also be published in the Federal
Register.60
B. Paperwork Reduction Act of 1995
219. The Second Report and Order
contains new or modified information
collection requirements subject to the
Paperwork Reduction Act of 1995
(PRA), Public Law 104–13. It will be
submitted to the Office of Management
and Budget (OMB) for review under
Section 3507(d) of the PRA. OMB, the
general public, and other Federal
agencies are invited to comment on the
new information collection
requirements contained in this
proceeding. Comments should address
the following: (a) Whether the proposed
collection of information is necessary
for the proper performance of the
functions of the Commission, including
whether the information shall have
practical utility; (b) the accuracy of the
Commission’s burden estimates; (c)
ways to enhance the quality, utility, and
clarity of the information collected; and
(d) ways to minimize the burden of the
collection of information on
respondents, including the use of
automated collection techniques or
other forms of information technology.
In addition, the Commission notes that
pursuant to the Small Business
Paperwork Relief Act of 2002, Public
Law 107–198, see 44 U.S.C. 3506(c)(4),
the Commission previously sought
specific comment on how the
Commission might ‘‘further reduce the
information collection burden for small
business concerns with fewer than 25
employees.’’ In this present document,
the Commission has assessed the
potential effects of the various policy
changes with regard to information
collection burdens on small business
concerns, and finds that there are no
results specific to businesses with fewer
than 25 employees. In addition, the
Commission has described impacts that
might affect small businesses, which
includes most businesses with fewer
than 25 employees, in the FRFA in
Appendix C, infra. The Commission
notes, however, that Section 213 of the
Consolidated Appropriations Act 2000
provides that rules governing
frequencies in the 36 megahertz of the
spectrum in the 746–806 MHz Band
allocated for commercial use become
effective immediately upon publication
in the Federal Register without regard
to certain sections of the Paperwork
60 See
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48841
Reduction Act. The Commission is
therefore not inviting comment on any
information collections that concern
those frequencies. The Commission also
notes that it is seeking emergency
processing under the Paperwork
Reduction Act for the information
collection requiring 700 MHz Band
public safety licensees, whether holding
individual narrowband authorizations
or operating pursuant to a State License,
to provide the total number of
narrowband mobile and portable
handsets and narrowband base stations
in operation in channels 63 and 68, and
the upper 1 megahertz of channels 64
and 69, as of August 30, 2007, along
with the related information specified
herein. Public and agency comments
related to this request are due August
31, 2007.
III. Ordering Clauses
220. Accordingly, it is ordered that
pursuant to Sections 1, 4(i), 5, 7, 10,
201, 202, 208, 214, 215, 222(d)(4)(A)–
(C), 222(f), 222(g), 222(h)(1)(A),
222(h)(4)–(5), 229, 251(e)(3), 301, 303,
307, 308, 309, 310, 311, 312, 316, 324,
331, 332, 333, 336, 337, 403, 503, and
610, of the Communications Act of
1934, as amended, 47 U.S.C. 151, 154(i),
155, 157, 160, 201, 202, 208, 214, 215,
222(d)(4)(A)–(C), 222(f), 222(g),
222(h)(1)(A), 222(h)(4)–(5), 251(e)(3),
229, 301, 303, 307, 308, 309, 310, 311,
312, 316, 324, 331, 332, 333, 336, 337,
403, 503, and 610, and Section 102 of
the Communications Assistance for Law
Enforcement Act, 18 U.S.C. 1001, this
Second Report and Order in WT Docket
No. 06–150, CC Docket No. 94–102, WT
Docket No. 01–309, WT Docket No. 03–
264, WT Docket No. 06–169, PS Docket
No. 06–229, and WT Docket No. 96–86
is adopted, and that Part 2, 27, and 90
of the Commission’s rules, 47 CFR Parts
2, 27, and 90, are amended as set forth
in Appendix B. This Second Report and
Order shall become effective October 23,
2007, except for the amendments to
§§ 27.14, 27.15, 27.50, and 90.176 which
contain information collection
requirements that have not been
approved by the Office of Management
and Budget (OMB). The Commission
will publish a document in the Federal
Register announcing the effective date.
221. It is further ordered that,
pursuant to Section 5(c) of the
Communications Act of 1934, as
amended, 47 U.S.C. 5(c), the Wireless
Telecommunications Bureau and Public
Safety and Homeland Security Bureau
are granted delegated authority to
implement the policies set forth in this
Second Report and Order and the rules,
as revised, set forth in Appendix B
hereto.
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222. It is ordered that, pursuant to
Sections 4(i), 309, and 316(a) of the
Communications Act, as amended, 47
U.S.C. 154(i), 309, 316(a), the 700 MHz
Guard Band A Block licenses of Access
700, LLC, Pegasus Guard Band, LLC,
and Dominion 700, Inc. are modified, as
specified in Appendix D, upon the
effective date of this Second Report and
Order.
223. It is ordered that, pursuant to
Sections 4(i), 309, and 316(a) of the
Communications Act, as amended, 47
U.S.C. 154(i), 309, 316(a), Access 700
Holdings, LLC, Pegasus Guard Band,
LLC, and Radiofone Nationwide PCS,
LLC shall surrender their 700 MHz
Guard Band B Block licenses to the
Commission no later than 5 days from
the effective date of this Second Report
and Order.
224. It is ordered that, pursuant to
Sections 4(i), and 309(f) of the
Communications Act, as amended, 47
U.S.C. 154(i), 309(f), Access 700, LLC is
granted special temporary authority for
a period of 180 days, upon the effective
date of this Second Report and Order,
for frequencies 746.000–747.000 and
776.000–777.000 MHz in Major
Economic Areas 20, 26, 32, 37, 44, and
52. The Wireless Telecommunications
Bureau is delegated authority to issue
such authorizations and to resolve any
request for an extension of such
authorizations as specified in this
Second Report and Order.
225. It is ordered that, pursuant to
Sections 4(i), 309, and 316(a) of the
Communications Act, as amended, 47
U.S.C. 154(i), 309, 316(a) and Section
1.87 of the Commission’s rules, 47 CFR
1.87, the 700 MHz Guard Band A Block
license for Station WPRV447, licensed
to PTPMS II Communications, L.L.C.,
will be modified by changing the
authorized frequencies from 746.000–
747.000 and 776.000–777.000 MHz, to
757.000–758.000 and 787.000–788.000
MHz.
226. It is ordered that, pursuant to
Sections 4(i), 309, and 316(a) of the
Communications Act, as amended, 47
U.S.C. 154(i), 309, 316(a) and Section
1.87 of the Commission’s rules, 47 CFR
1.87, the 700 MHz Guard Band B Block
licenses for Stations WPRV448 and
WPRV449, licensed to PTPMS II
Communications, L.L.C., will be
modified by changing the authorized
frequencies from 762.000–764.000 and
792.000–794.000 MHz, to 761.000–
763.000 and 791.000–793.000 MHz.
227. It is ordered that, pursuant to
Sections 309 and 316 of the
Communications Act of 1934, as
amended, 47 U.S.C. 309, 316, the
modifications of Stations WPRV447,
WPRV448, and WPRV449, licensed to
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PTPMS II Communications, L.L.C.,
specified in paragraphs 167 and 168,
supra, shall become final and effective
30 days from the effective date of this
Second Report and Order if no protests
are filed within that period. The
Wireless Telecommunications Bureau is
delegated authority to resolve any such
protests that may arise and to modify
such licenses as specified in this Second
Report and Order.
228. It is ordered, pursuant to
Sections 1 and 4(i) of the
Communications Act, as amended, 47
U.S.C. 151, 154(i), that by October 23,
2007, all 700 MHz Band public safety
licensees, whether holding individual
narrowband authorizations or operating
pursuant to a State License, shall
provide the total number of narrowband
mobile and portable handsets and
narrowband base stations in operation
in channels 63 and 68, and the upper 1
megahertz of channels 64 and 69, as of
August 30, 2007, along with the related
information specified herein.
229. It is further ordered that the
Wireless Telecommunications Bureau
shall send a copy of this Second Report
and Order, by certified mail, return
receipt requested, to Alfred Angelo,
President, PTPMS II Communications,
L.L.C., 340 North Avenue East,
Cranford, New Jersey 07016, and James
H. Barker, Esq., 1001 Pennsylvania
Avenue, NW., Suite 1300, Washington,
DC 20004–2505.
230. It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Second Report and Order,
including the Final Regulatory
Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small
Business Administration.
231. It is further ordered that the
Commission shall send a copy of this
Second Report and Order in a report to
be sent to Congress and the Government
Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).
Organization and functions
(Government agencies), Privacy,
Reporting and recordkeeping
requirements.
47 CFR Part 1
Administrative practice and
procedure, Communications common
carriers, Penalties, Radio, Reporting and
recordkeeping requirements, Satellites,
Telecommunications, Television.
Fmt 4701
47 CFR Part 90
Civil defense, Common carriers,
Emergency medical services, Radio,
Reporting and recordkeeping
requirements.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR parts 0, 1,
2, 27 and 90 as follows:
I
PART 0—COMMISSION
ORGANIZATION
1. The authority citation for part 0
continues to read as follows:
I
Authority: Secs. 5, 48 Stat. 1068, as
amended; 47 U.S.C. 155.
2. Section 0.181 is amended by adding
paragraph (k) to read as follows:
I
§ 0.181
The Defense Commissioner.
*
*
*
*
*
(k) To decide, in response to a request
by the Public Safety Broadband
Licensee whether circumstances
warrant emergency priority access by
first responder public safety entities to
the Upper 700 MHz D Block license
spectrum.
PART 1—PRACTICE AND
PROCEDURE
3. The authority citation for part 1
continues to read as follows:
I
Authority: 15 U.S.C. 79 et seq.; 47 U.S.C.
151, 154(i), 154(j), 155, 157, 225, 303(r), and
309.
4. Section 1.946 is amended by
revising paragraph (c) to read as follows:
47 CFR Part 0
Frm 00030
47 CFR Part 27
Communications common carriers,
Radio, Wireless radio services.
I
List of Subjects
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47 CFR Part 2
Communications equipment, Disaster
assistance, Radio, Reporting and
recordkeeping requirements,
Telecommunications, Television.
Sfmt 4700
§ 1.946 Construction and coverage
requirements.
*
*
*
*
*
(c) Termination of authorizations. If a
licensee fails to commence service or
operations by the expiration of its
construction period or to meet its
coverage or substantial service
obligations by the expiration of its
coverage period, its authorization
terminates automatically (in whole or in
part as set forth in the service rules),
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without specific Commission action, on
the date the construction or coverage
period expires.
*
*
*
*
*
5. Section 1.955 is amended by
revising paragraph (a)(2) to read as
follows:
I
§ 1.955
Terminations of authorizations.
(a) * * *
(2) Failure to meet construction or
coverage requirements. Authorizations
automatically terminate (in whole or in
part as set forth in the service rules),
without specific Commission action, if
the licensee fails to meet applicable
construction or coverage requirements.
See § 1.946(c).
*
*
*
*
*
6. Section 1.2105 is amended by
revising paragraph (c)(6) to read as
follows:
I
§ 1.2105 Bidding application and
certification procedures; prohibition of
collusion.
*
*
*
*
*
(c) * * *
(6) Any applicant that makes or
receives a communication of bids or
bidding strategies prohibited under
paragraph (c)(1) of this section shall
report such communication in writing
to the Commission immediately, and in
no case later than five business days
after the communication occurs. An
applicant’s obligation to make such a
report continues until the report has
been made. Such reports shall be filed
with the Office of the Secretary, and a
copy shall be sent to the Chief of the
Auctions and Spectrum Access
Division, Wireless Telecommunications
Bureau.
7. Section 1.9005 is amended by
revising paragraph (k) to read as follows:
I
§ 1.9005
Included services.
*
*
*
*
*
(k) The Wireless Communications
Service in the 746–763 MHz, 775–793
MHz, and 805–806 MHz bands (part 27
of this chapter);
PART 2—FREQUENCY ALLOCATIONS
AND RADIO TREATY MATTERS;
GENERAL RULES AND REGULATIONS
8. The authority citation for part 2
continues to read as follows:
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I
Authority: 47 U.S.C. 154, 302a, 303, and
336, unless otherwise noted.
9. Section 2.103 is amended by
revising paragraphs (a) introductory text
and (b) introductory text and adding
paragraph (c) to read as follows:
I
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§ 2.103 Federal use of non-Federal
frequencies.
(a) Federal stations may be authorized
to use non-Federal frequencies in the
bands above 25 MHz (except the 763–
775 MHz and 793–805 MHz public
safety bands) if the Commission finds
that such use is necessary for
coordination of Federal and non-Federal
activities: Provided, however, that:
*
*
*
*
*
(b) Federal stations may be authorized
to use channels in the 769–775 MHz,
799–805 MHz and 4940–4990 MHz
public safety bands with non-Federal
entities if the Commission finds such
use necessary; where:
*
*
*
*
*
(c) Federal stations may be authorized
to use channels in the 763–768 MHz
and 793–798 MHz public safety bands
with non-Federal entities where:
(1) The Federal entity obtains the
prior approval of the Public Safety
Broadband Licensee (and such approval
granted by the Public Safety Broadband
Licensee is consistent with the terms
and conditions of the Network Sharing
Agreement under 90.1406 of this
chapter); and
(2) Federal operation is in accordance
with the Commission’s rules governing
operation of this band and conforms to
any conditions agreed upon by the
Commission and NTIA.
PART 27—MISCELLANEOUS
WIRELESS COMMUNICATIONS
SERVICES
10. The authority citation for part 27
continues to read as follows:
I
Authority: 47 U.S.C. 154, 301, 302, 303,
307, 309, 332, 336, and 337 unless otherwise
noted.
11. Section 27.1 is amended by
revising paragraph (b)(2) to read as
follows:
*
*
*
*
*
I
§ 27.1
Basis and purpose.
(b) * * *
(2) 746–763 MHz, 775–793 MHz, and
805–806 MHz.
I 12. Section 27.2 is amended by
revising paragraph (b) to read as follows:
§ 27.2
Permissible communications.
*
*
*
*
*
(b) 775–776 MHz and 805–806 MHz
bands. Operators in the 775–776 MHz
and 805–806 MHz bands may not
employ a cellular system architecture. A
cellular system architecture is defined,
for purposes of this part, as one that
consists of many small areas or cells
(segmented from a larger geographic
service area), each of which uses its own
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48843
base station, to enable frequencies to be
reused at relatively short distances.
*
*
*
*
*
I 13. Section 27.4 is amended by adding
the following definitions in alphabetical
order to read as follows:
§ 27.4
Terms and definitions.
700 MHz Public/Private Partnership.
The public/private partnership
established for the development and
operation of a nationwide, shared
interoperable wireless broadband
network operating on the 758–763 MHz
and 788–793 MHz bands and the 763–
768 MHz and 793–798 MHz bands in
accordance with the Commission’s
rules.
*
*
*
*
*
Network Assets Holder. The Network
Assets Holder is a Special Purpose
Bankruptcy Remote Entity that is
formed to hold the assets of the shared
wireless broadband network associated
with the 700 MHz Public/Private
Partnership, in accordance with the
terms of the Network Sharing
Agreement, such other agreements as
the Commission may require or allow,
and the Commission’s rules.
Network Sharing Agreement (NSA).
An agreement entered into between the
winning bidder, the Upper 700 MHz D
Block licensee, the Network Assets
Holder, the Operating Company, the
Public Safety Broadband Licensee, and
any other related entities that the
Commission may require or allow
regarding the shared wireless broadband
network associated with the 700 MHz
Public/Private Partnership that will
operate on the 758–763 MHz and 788–
793 MHz bands and the 763–768 MHz
and 793–798 MHz bands.
Operating Company. The Operating
Company is a Special Purpose
Bankruptcy Remote Entity that is
formed to build and operate the shared
wireless broadband network associated
with the 700 MHz Public/Private
Partnership, in accordance with the
terms of the Network Sharing
Agreement, such other agreements as
the Commission may require or allow,
and the Commission’s rules.
*
*
*
*
*
Public Safety Broadband License. The
Public Safety Broadband License
authorizes public safety broadband
services in the 763–768 MHz and 793–
798 MHz bands.
Public Safety Broadband Licensee.
The licensee of the Public Safety
Broadband License in the 763–768 MHz
and 793–798 MHz bands.
*
*
*
*
*
Shared Wireless Broadband Network.
Wireless broadband network associated
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with the 700 MHz Band Public/Private
Partnership that operates on the 758–
763 MHz and 788–793 MHz bands and
the 763–768 MHz and 793–798 MHz
bands pursuant to the terms of the
Network Sharing Agreement, such other
agreements as the Commission may
require or allow, and the Commission’s
rules.
Special Purpose Bankruptcy Remote
Entity. A ‘‘special purpose entity’’ is a
legal entity created for a special limited
purpose, in this context primarily to
hold the Upper 700 MHz D Block
license or the network assets, or to
conduct the construction or operation of
the shared wireless broadband network
associated with the 700 MHz Public/
Private Partnership. A special purpose
entity is ‘‘bankruptcy remote’’ if that
entity is unlikely to become insolvent as
a result of its own activities, is
adequately insulated from the
consequences of a related party’s
insolvency, and contains certain
characteristics which enhance the
likelihood that it will not become the
subject of an insolvency proceeding.
*
*
*
*
*
Upper 700 MHz D Block license. The
Upper 700 MHz D Block license is the
nationwide license associated with the
758–763 MHz and 788–793 MHz bands.
Upper 700 MHz D Block licensee. The
Special Purpose Bankruptcy Remote
Entity to which the Upper 700 MHz D
Block license must be transferred upon
execution of the Network Sharing
Agreement. References herein to the
rights and obligations of the Upper 700
MHz D Block licensee include the
exercise or discharge of such rights or
obligations, respectively, by related
entities as are provided for in the NSA
or otherwise as authorized by the
Commission.
*
*
*
*
*
I 14. Section 27.5 is amended by
revising paragraph (b) to read as follows:
§ 27.5
Frequencies.
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*
*
*
*
*
(b) 746–763 MHz, 775–793 MHz, and
805–806 MHz bands. The following
frequencies are available for licensing
pursuant to this part in the 746–763
MHz, 775–793 MHz, and 805–806 MHz
bands:
(1) Two paired channels of 1
megahertz each are available for
assignment in Block A in the 757–758
MHz and 787–788 MHz bands.
(2) Two paired channels of 1
megahertz each are available for
assignment in Block B in the 775–776
MHz and 805–806 MHz bands.
(3) Two paired channels of 11
megahertz each are available for
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15:44 Aug 23, 2007
Jkt 211001
assignment in Block C in the 746–757
MHz and 776–787 MHz bands. In the
event that no licenses for two channels
in this Block C are assigned based on
the results of the first auction in which
such licenses were offered because the
auction results do not satisfy the
applicable reserve price, the spectrum
in the 746–757 MHz and 776–787 MHz
bands will instead be made available for
assignment at a subsequent auction as
follows:
(i) Two paired channels of 6
megahertz each available for assignment
in Block C1 in the 746–752 MHz and
776–782 MHz bands.
(ii) Two paired channels of 5
megahertz each available for assignment
in Block C2 in the 752–757 MHz and
782–787 MHz bands.
(4) Two paired channels of 5
megahertz each are available for
assignment in Block D in the 758–763
MHz and 788–793 MHz bands.
*
*
*
*
*
I 15. Section 27.6 is amended by
revising paragraphs (a) introductory
text, (b), (c), and (e) to read as follows:
§ 27.6
Service Areas.
(a) WCS service areas include
Economic Areas (EAs), Major Economic
Areas (MEAs), Regional Economic Area
Groupings (REAGs), cellular markets
comprising Metropolitan Statistical
Areas (MSAs) and Rural Service Areas
(RSAs), and a nationwide area. MEAs
and REAGs are defined in the Table
immediately following paragraph (a)(1)
of this section. Both MEAs and REAGs
are based on the U.S. Department of
Commerce’s EAs. See 60 FR 13114
(March 10, 1995). In addition, the
Commission shall separately license
Guam and the Northern Mariana
Islands, Puerto Rico and the United
States Virgin Islands, American Samoa,
and the Gulf of Mexico, which have
been assigned Commission-created EA
numbers 173–176, respectively. The
nationwide area is composed of the
contiguous 48 states, Alaska, Hawaii,
the Gulf of Mexico, and the U.S.
territories. Maps of the EAs, MEAs,
MSAs, RSAs, and REAGs and the
Federal Register Notice that established
the 172 EAs are available for public
inspection and copying at the Reference
Information Center, Consumer and
Governmental Affairs Bureau, Federal
Communications Commission, 445 12th
Street, SW., Washington, DC 20554.
*
*
*
*
*
(b) 746–763 MHz, 775–793 MHz, and
805–806 MHz bands. WCS service areas
for the 746–763 MHz, 775–793 MHz,
and 805–806 MHz bands are as follows.
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Frm 00032
Fmt 4701
Sfmt 4700
(1) Service areas for Block A in the
757–758 MHz and 787–788 MHz bands
and Block B in the 775–776 MHz and
805–806 MHz bands are based on Major
Economic Areas (MEAs), as defined in
paragraphs (a)(1) and (a)(2) of this
section.
(2) Service areas for Block C in the
746–757 MHz and 776–787 MHz bands
are based on Regional Economic Area
Groupings (REAGs) as defined by
paragraph (a) of this section. In the
event that no licenses with respect to
service areas for Block C in the 746–757
MHz and 776–787 MHz bands are
assigned based on the results of the first
auction in which such licenses are
offered because the auction results do
not satisfy the applicable reserve price,
then service areas for the spectrum at
746–757 MHz and 776–787 MHz will
instead be available for assignment as
follows:
(i) Service areas for Block C1 in the
746–752 MHz and 776–782 MHz bands
are based on Economic Areas (EAs) as
defined in paragraph (a) of this section.
(ii) Service areas for Block C2 in the
752–757 MHz and 782–787 MHz bands
are based on Regional Economic Area
Groupings (REAGs) as defined by
paragraph (a) of this section.
(3) Service area for Block D in the
758–763 MHz and 788–793 MHz bands
is a nationwide area as defined in
paragraph (a)(1) of this section.
(c) 698–746 MHz band. WCS service
areas for the 698–746 MHz band are as
follows.
(1) Service areas for Block A in the
698–704 MHz and 728–734 MHz bands
and Block E in the 722–728 MHz band
are based on Economic Areas (EAs) as
defined in paragraph (a) of this section.
(2) Service areas for Block B in the
704–710 MHz and 734–740 MHz bands
and Block C in the 710–716 MHz and
740–746 MHz bands are based on
cellular markets comprising
Metropolitan Statistical Areas (MSAs)
and Rural Service Areas (RSAs) as
defined by Public Notice Report No.
CL–92–40 ‘‘Common Carrier Public
Mobile Services Information, Cellular
MSA/RSA Markets and Counties,’’
dated January 24, 1992, DA 92–109, 7
FCC Rcd 742 (1992), with the following
modifications:
(i) The service areas of cellular
markets that border the U.S. coastline of
the Gulf of Mexico extend 12 nautical
miles from the U.S. Gulf coastline.
(ii) The service area of cellular market
306 that comprises the water area of the
Gulf of Mexico extends from 12 nautical
miles off the U.S. Gulf coast outward
into the Gulf.
(3) Service areas for Block D in the
716–722 MHz band are based on
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Economic Area Groupings (EAGs) as
defined by the Federal Communications
Commission. See 62 FR 15978 (April 3,
1997) extended with the Gulf of Mexico.
See also paragraphs (a)(1) and (a)(2) of
this section and 62 FR 9636 (March 3,
1997), in which the Commission created
an additional four economic area-like
areas for a total of 176. Maps of the
EAGs and the Federal Register notice
that established the 172 Economic Areas
(EAs) are available for public inspection
and copying at the Reference Center,
Room CY A–257, 445 12th St., SW.,
Economic area groupings
EAG001
EAG002
EAG003
EAG004
EAG005
EAG006
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Note 2 to paragraph (c)(3)(i): Economic
Areas are defined by the Regional Economic
Analysis Division, Bureau of Economic
Analysis, U.S. Department of Commerce
February 1995 and extended by the Federal
Communications Commission, see 62 FR
9636 (March 3, 1997).
(ii) For purposes of paragraph (c)(3)(i)
of this section, EA 176 (the Gulf of
Mexico) will be divided between
EAG003 (the Southeast EAG) and
EAG005 (the Central/Mountain EAG) in
accordance with the configuration of the
Eastern/Central and Western Planning
Area established by the Mineral
Management Services Bureau of the
Department of the Interior (MMS). That
portion of EA 176 contained in the
Eastern and Central Planning Areas as
defined by MMS will be included in
EAG003; that portion of EA 176
contained in the Western Planning Area
as defined by MMS will be included in
EAG005. Maps of these areas may be
found on the MMS Web site: https://
www.gomr.mms.gov/homepg/offshore/
offshore.html.
*
*
*
*
*
(e) The paired 1392–1395 and 1432–
1435 MHz bands. Service areas for the
paired 1392–1395 and 1432–1435 MHz
bands are as follows. Service areas for
Block A in the 1392–1393.5 MHz and
1432–1433.5 MHz bands and Block B in
the 1393.5–1395 MHz and 1433.5–1435
MHz bands are based on Economic Area
Groupings (EAGs) as defined in
paragraph (c)(3) of this section.
*
*
*
*
*
I 16. Section 27.11 is amended by
revising paragraphs (c) and (d) to read
as follows:
*
*
Initial authorization.
*
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*
*
15:44 Aug 23, 2007
Economic areas
Northeast .......................................
Mid-Atlantic ....................................
Southeast .......................................
Great Lakes ...................................
Central/Mountain ...........................
Pacific ............................................
Note 1 to paragraph (c)(3)(i): Economic
Area Groupings are defined by the Federal
Communications Commission; see 62 FR
15978 (April 3, 1997) extended with the Gulf
of Mexico.
§ 27.11
Washington, DC 20554. These maps and
data are also available on the FCC Web
site at https://www.fcc.gov/oet/info/
maps/areas/.
(i) There are 6 EAGs, which are
composed of multiple EAs as defined in
the table below:
Name
...........................................
...........................................
...........................................
...........................................
...........................................
...........................................
Jkt 211001
1–11, 54.
12–26, 41, 42, 44–53, 70.
27–40, 43, 69, 71–86, 88–90, 95, 96, 174, 176 (part).
55–68, 97, 100–109.
87, 91–94, 98, 99, 110–146, 148, 149, 152, 154–159, 176 (part).
147, 150, 151, 153, 160–173, 175.
(c) 746–763 MHz, 775–793 MHz, and
805–806 MHz bands. Initial
authorizations for the 746–763 MHz,
775–793 MHz, and 805–806 MHz bands
shall be for paired channels of 1, 5, 6,
or 11 megahertz of spectrum in
accordance with § 27.5(b).
(1) Authorizations for Block A,
consisting of two paired channels of 1
megahertz each, will be based on those
geographic areas specified in
§ 27.6(b)(1).
(2) Authorizations for Block B,
consisting of two paired channels of 1
megahertz each, will be based on those
geographic areas specified in
§ 27.6(b)(1).
(3) Authorizations for Block C,
consisting of two paired channels of 11
megahertz each, will be based on those
geographic areas specified in
§ 27.6(b)(2). In the event that no licenses
granting authorizations for Block C,
consisting of two paired channels of 11
megahertz each, are assigned based on
the results of the first auction in which
such licenses are offered because the
auction results do not satisfy the
applicable reserve price, then the
authorizations for the spectrum in the
746–757 MHz and 776–787 MHz bands
will instead be as follows:
(i) Authorizations for Block C1,
consisting of two paired channels of 6
megahertz each in the 746–752 MHz
and 776–782 MHz bands, will be based
on those geographic areas specified in
§ 27.6(b)(2)(i).
(ii) Authorizations for Block C2,
consisting of two paired channels of 5
megahertz each in the 752–757 MHz
and 782–787 MHz bands, will be based
on those geographic areas specified in
§ 27.6(b)(2)(ii).
(4) The authorization for Block D,
consisting of two paired channels of 5
megahertz each, will be based on the
geographic area specified in § 27.6(b)(3).
(d) 698–746 MHz band. Initial
authorizations for the 698–746 MHz
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band shall be for 6 or 12 megahertz of
spectrum in accordance with § 27.5(c).
(1) Authorizations for Block A,
consisting of two paired channels of 6
megahertz each, will be based on those
geographic areas specified in
§ 27.6(c)(1).
(2) Authorizations for Block B,
consisting of two paired channels of 6
megahertz each, will be based on those
geographic areas specified in
§ 27.6(c)(2).
(3) Authorizations for Block C,
consisting of two paired channels of 6
megahertz each, will be based on those
geographic areas specified in
§ 27.6(c)(2).
(4) Authorizations for Block D,
consisting of an unpaired channel block
of 6 megahertz, will be based on those
geographic areas specified in
§ 27.6(c)(3).
(5) Authorizations for Block E,
consisting of an unpaired channel block
of 6 megahertz, will be based on those
geographic areas specified in
§ 27.6(c)(1).
*
*
*
*
*
17. Section 27.13 is amended by
revising the paragraph heading and the
first and second sentence in paragraph
(b) to read as follows:
I
§ 27.13
License period.
*
*
*
*
*
(b) 698–763 MHz and 776–793 MHz
bands. Initial authorizations for the
698–763 MHz and 776–793 MHz bands
will extend for a term not to exceed ten
years from February 17, 2009, except
that initial authorizations for a part 27
licensee that provides broadcast
services, whether exclusively or in
combination with other services, will
not exceed eight years. Initial
authorizations for the 775–776 MHz and
805–806 MHz bands shall not exceed
January 1, 2015. * * *
*
*
*
*
*
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§ 27.14
Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations
[Amended]
18. Amend § 27.14 as follows:
a. Revise paragraph (a).
b. Remove paragraph (f).
c. Redesignate paragraph (e) as
paragraph (f).
I d. Add new paragraphs (e), (g), (h), (i),
(j), (k), (l), (m), and (n).
I
I
I
I
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§ 27.14 Construction requirements; criteria
for renewal.
(a) AWS and WCS licensees, with the
exception of WCS licensees holding
authorizations for Block A in the 698–
704 MHz and 728–734 MHz bands,
Block B in the 704–710 MHz and 734–
740 MHz bands, Block E in the 722–728
MHz band, Block C in the 746–757 MHz
and 776–787 MHz, and Block D in the
758–763 MHz and 788–793 MHz bands
must, as a performance requirement,
make a showing of ‘‘substantial service’’
in their license area within the
prescribed license term set forth in
§ 27.13. ‘‘Substantial service’’ is defined
as service which is sound, favorable and
substantially above a level of mediocre
service which just might minimally
warrant renewal. Failure by any licensee
to meet this requirement will result in
forfeiture of the license and the licensee
will be ineligible to regain it.
*
*
*
*
*
(e) Comparative renewal proceedings
do not apply to WCS licensees holding
authorizations for the 698–757 MHz,
758–763 MHz, 776–787 MHz, and 788–
793 MHz bands. These licensees must
file a renewal application in accordance
with the provisions set forth in § 1.949
of this chapter, and must make a
showing of substantial service,
independent of its performance
requirements, as a condition for renewal
at the end of each license term.
*
*
*
*
*
(g) WCS licensees holding EA
authorizations for Block A in the 698–
704 MHz and 728–734 MHz bands,
cellular market authorizations for Block
B in the 704–710 MHz and 734–740
MHz bands, and EA authorizations for
Block E in the 722–728 MHz band, if the
results of the first auction in which
licenses for such authorizations are
offered satisfy the reserve price for the
applicable block, shall provide signal
coverage and offer service over at least
35 percent of the geographic area of
each of their license authorizations no
later than February 17, 2013 (or within
four years of initial license grant if the
initial authorization in a market is
granted after February 17, 2009), and
shall provide such service over at least
70 percent of the geographic area of
each of these authorizations by the end
of the license term. In applying these
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geographic benchmarks, licensees are
not required to include land owned or
administered by government as a part of
the relevant service area. Licensees may
count covered government land for
purposes of meeting their geographic
construction benchmark, but are
required to add the covered government
land to the total geographic area used
for measurement purposes. Licensees
are required to include those populated
lands held by tribal governments and
those held by the Federal Government
in trust or for the benefit of a recognized
tribe.
(1) If an EA or CMA licensee holding
an authorization in these particular
blocks fails to provide signal coverage
and offer service over at least 35 percent
of the geographic area of its license
authorization by no later than February
17, 2013 (or within four years of initial
license grant, if the initial authorization
in a market is granted after February 17,
2009), the term of that license
authorization will be reduced by two
years and such licensee may be subject
to enforcement action, including
forfeitures. In addition, such an EA or
CMA licensee may lose authority to
operate in part of the remaining
unserved areas of the license.
(2) If any such EA or CMA licensee
fails to provide signal coverage and offer
service to at least 70 percent of the
geographic area of its license
authorization by the end of the license
term, that licensee’s authorization will
terminate automatically without
Commission action for those geographic
portions of its license in which the
licensee is not providing service, and
those unserved areas will become
available for reassignment by the
Commission. Such licensee may also be
subject to enforcement action, including
forfeitures. In addition, an EA or CMA
licensee that provides signal coverage
and offers service at a level that is below
the end-of-term benchmark may be
subject to license termination. In the
event that a licensee’s authority to
operate in a license area terminates
automatically without Commission
action, such areas will become available
for reassignment pursuant to the
procedures in paragraph (j) of this
section.
(3) For licenses under paragraphs (g),
(h), and (i), of this section, the
geographic service area to be made
available to new entrants must include
a contiguous area of at least 130 square
kilometers (50 square miles), and areas
smaller than a contiguous area of at least
130 square kilometers (50 square miles)
will not be deemed unserved.
(h) WCS licensees holding
authorizations for Block C in the 746–
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757 MHz and 776–787 MHz bands shall
provide signal coverage and offer
service over at least 40 percent of the
population in each EA comprising the
REAG license area no later than
February 17, 2013 (or within four years
of initial license grant, if the initial
authorization in a market is granted
after February 17, 2009), and shall
provide such service over at least 75
percent of the population of each of
these EAs by the end of the license term.
For purposes of compliance with this
requirement, licensees should
determine population based on the most
recently available U.S. Census Data.
(1) If a licensee holding a Block C
authorization fails to provide signal
coverage and offer service over at least
40 percent of the population in each EA
comprising the REAG license area by no
later than February 17, 2013 (or within
four years of initial license grant if the
initial authorization in a market is
granted after February 17, 2009), the
term of the license authorization will be
reduced by two years and such licensee
may be subject to enforcement action,
including forfeitures. In addition, a
licensee that provides signal coverage
and offers service at a level that is below
the interim benchmark may lose
authority to operate in part of the
remaining unserved areas of the license.
(2) If a licensee holding a Block C
authorization fails to provide signal
coverage and offer service over at least
75 percent of the population in any EA
comprising the REAG license area by
the end of the license term, for each
such EA that licensee’s authorization
will terminate automatically without
Commission action for those geographic
portions of its license in which the
licensee is not providing service. Such
licensee may also be subject to
enforcement action, including
forfeitures. In the event that a licensee’s
authority to operate in a license area
terminates automatically without
Commission action, such areas will
become available for reassignment
pursuant to the procedures in paragraph
(j) of this section. In addition, a REAG
licensee that provides signal coverage
and offers service at a level that is below
the end-of-term benchmark within any
EA may be subject to license
termination within that EA.
(i) WCS licensees holding EA
authorizations for Block A in the 698–
704 MHz and 728–734 MHz bands,
cellular market authorizations for Block
B in the 704–710 MHz and 734–740
MHz bands, and EA authorizations for
Block E in the 722–728 MHz band, if the
results of the first auction in which
licenses for such authorizations in
Blocks A, B, and E are offered do not
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satisfy the reserve price for the
applicable block, as well as EA
authorizations for Block C1 in the 746–
752 MHz and 776–782 MHz bands and
REAG authorizations for Block C2 in the
752–757 MHz and 782–787 MHz bands,
are subject to the following:
(1) If a licensee holding a cellular
market area or EA authorization subject
to this paragraph (i) fails to provide
signal coverage and offer service over at
least 40 percent of the population in its
license area by no later than February
17, 2013 (or within four years of initial
license grant, if the initial authorization
in a market is granted after February 17,
2009), the term of that license
authorization will be reduced by two
years and such licensee may be subject
to enforcement action, including
forfeitures. In addition, such licensee
that provides signal coverage and offers
service at a level that is below the
interim benchmark may lose authority
to operate in part of the remaining
unserved areas of the license. For
purposes of compliance with this
requirement, licensees should
determine population based on the most
recently available U.S. Census Data.
(2) If a licensee holding a cellular
market area or EA authorization subject
to this paragraph (i) fails to provide
signal coverage and offer service over at
least 75 percent of the population in its
license area by the end of the license
term, that licensee’s authorization will
terminate automatically without
Commission action for those geographic
portions of its license in which the
licensee is not providing service, and
those unserved areas will become
available for reassignment by the
Commission. Such licensee may also be
subject to enforcement action, including
forfeitures. In the event that a licensee’s
authority to operate in a license area
terminates automatically without
Commission action, such areas will
become available for reassignment
pursuant to the procedures in paragraph
(j) of this section. In addition, such a
licensee that provides signal coverage
and offers service at a level that is below
the end-of-term benchmark may be
subject to license termination. For
purposes of compliance with this
requirement, licensees should
determine population based on the most
recently available U.S. Census Data.
(3) Licensee’s holding an
authorization in Block C2 will be
subject to the requirements in paragraph
(h) of this section.
(j) In the event that a licensee’s
authority to operate in a license area
terminates automatically under
paragraphs (g), (h), or (i) of this section,
such areas will become available for
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15:44 Aug 23, 2007
Jkt 211001
reassignment pursuant to the following
procedures:
(1) The Wireless Telecommunications
Bureau is delegated authority to
announce by public notice that these
license areas will be made available and
establish a 30-day window during
which third parties may file license
applications to serve these areas. During
this 30-day period, licensees that had
their authority to operate terminate
automatically for unserved areas may
not file applications to provide service
to these areas. Applications filed by
third parties that propose areas
overlapping with other applications will
be deemed mutually exclusive, and will
be resolved through an auction. The
Wireless Telecommunications Bureau,
by public notice, may specify a limited
period before the filing of short-form
applications (FCC Form 175) during
which applicants may enter into a
settlement to resolve their mutual
exclusivity, subject to the provisions of
§ 1.935 of this chapter.
(2) Following this 30-day period, the
original licensee and third parties can
file license applications for remaining
unserved areas where licenses have not
been issued or for which there are no
pending applications. If the original
licensee or a third party files an
application, that application will be
placed on public notice for 30 days. If
no mutually exclusive application is
filed, the application will be granted,
provided that a grant is found to be in
the public interest. If a mutually
exclusive application is filed, it will be
resolved through an auction. The
Wireless Telecommunications Bureau,
by public notice, may specify a limited
period before the filing of short-form
applications (FCC Form 175) during
which applicants may enter into a
settlement to resolve their mutual
exclusivity, subject to the provisions of
§ 1.935 of this chapter.
(3) The licensee will have one year
from the date the new license is issued
to complete its construction and provide
signal coverage and offer service over
100 percent of the geographic area of the
new license area. If the licensee fails to
meet this construction requirement, its
license will automatically terminate
without Commission action and it will
not be eligible to apply to provide
service to this area at any future date.
(k) WCS licensees with authorizations
in the spectrum blocks enumerated in
paragraphs (g), (h), or (i), of this section,
including any licensee that obtained its
license pursuant to the procedures set
forth in paragraph (j) of this section,
shall demonstrate compliance with
performance requirements by filing a
construction notification with the
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48847
Commission, within 15 days of the
expiration of the relevant benchmark, in
accordance with the provisions set forth
in § 1.946(d) of this chapter. The
licensee must certify whether it has met
the relevant performance requirement.
All licensees must file a description and
certification of the areas for which they
are providing service. The construction
notifications must include electronic
coverage maps, supporting technical
documentation and any other
information as the Wireless
Telecommunications Bureau may
prescribe by public notice.
(l) WCS licensees with authorizations
in the spectrum blocks enumerated in
paragraphs (g), (h), or (i), of this section,
excluding any licensee that obtained its
license pursuant to the procedures set
forth in paragraph (j), of this section,
shall file interim reports with the
Commission that provide the
Commission, at a minimum, with
information concerning the status of
their efforts to meet the performance
requirements applicable to their
authorizations in such spectrum blocks
and the manner in which that spectrum
is being utilized. The information to be
reported will include the date the
license term commenced, a description
of the steps the licensee has taken
toward meeting its construction
obligations in a timely manner,
including the technology or
technologies and service(s) being
provided, and the areas within their
license areas in which those services are
available. These licensees shall file their
first interim report with the Commission
no later than February 17, 2011 and no
sooner than 30 days prior to this date.
Licensees that meet their interim
benchmarks shall file a second interim
report with the Commission no later
than February 17, 2016 and no sooner
than 30 days prior to this date.
Licensees that do not meet their interim
benchmarks shall file their second
interim report no later than on February
17, 2015 and no sooner than 30 days
prior to this date.
(m) The WCS licensee holding the
authorization for the D Block at 758–763
MHz and 788–793 MHz (the Upper 700
MHz D Block licensee) shall comply
with the following construction
requirements.
(1) The Upper 700 MHz D Block
licensee shall provide a signal coverage
and offer service over at least 75 percent
of the population of the nationwide
Upper 700 MHz D Block license area
within four years from February 17,
2009, 95 percent of the population of
the nationwide license area within
seven years, and 99.3 percent of the
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Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations
population of the nationwide license
area within ten years.
(2) The Upper 700 MHz D Block
licensee may modify, to a limited
degree, its population-based
construction benchmarks with the
agreement of the Public Safety
Broadband Licensee and the prior
approval of the Commission, where
such a modification would better serve
to meet commercial and public safety
needs.
(3) The Upper 700 MHz D Block
licensee shall meet the population
benchmarks based on a performance
schedule specified in the Network
Sharing Agreement, taking into account
performance pursuant to § 27.1327 as
appropriate under that rule, and using
the most recently available U.S. Census
Data. The network and signal levels
employed to meet these benchmarks
must be adequate for public safety use,
as defined in the Network Sharing
Agreement, and the services made
available must include those
appropriate for public safety entities
that operate in those areas. The
schedule shall include coverage for
major highways and interstates, as well
as such additional areas that are
necessary to provide coverage for all
incorporated communities with a
population in excess of 3,000, unless the
Public Safety Broadband Licensee and
the Upper 700 MHz D Block licensee
jointly determine, in consultation with
a relevant community, that such
additional coverage will not provide
significant public benefit.
(4) The Upper 700 MHz D Block
licensee shall demonstrate compliance
with performance requirements by filing
a construction notification with the
Commission within 15 days of the
expiration of the relevant benchmark, in
accordance with the provisions set forth
in § 1.946(d) of this chapter. The
licensee must certify whether it has met
the relevant performance requirement
and must file a description and
certification of the areas for which it is
providing service. The construction
notifications must include the
following:
(i) Certifications of the areas that were
scheduled for construction and service
by that date under the Network Sharing
Agreement for which it is providing
service, the type of service it is
providing for each area, and the type of
technology it is utilizing to provide this
service.
(ii) Electronic coverage maps and
supporting technical documentation
providing the assumptions used by the
licensee to create the coverage maps,
including the propagation model and
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the signal strength necessary to provide
service.
(n) At the end of its license term, the
Upper 700 MHz D Block licensee must,
in order to renew its license, make a
showing of its success in meeting the
material requirements set forth in the
Network Sharing Agreement as well as
all other license conditions, including
the performance benchmark
requirements set forth in this section.
§ 27.15
[Amended]
19. Amend § 27.15 by revising
paragraph (d) to read as follows:
I
§ 27.15 Geographic partitioning and
spectrum disaggregation.
*
*
*
*
*
(d) Compliance with construction
requirements—(1) Partitioning. (i)
Except for WCS licensees holding
authorizations for Block A in the 698–
704 MHz and 728–734 MHz bands,
Block B in the 704–710 MHz and 734–
740 MHz bands, Block E in the 722–728
MHz band, Blocks C, C1, and C2 in the
746–757 MHz and 776–787 MHz bands,
and Block D in the 758–763 MHz and
788–793 MHz bands, the following rules
apply to WCS and AWS licensees
holding authorizations for purposes of
implementing the construction
requirements set forth in § 27.14. Parties
to partitioning agreements have two
options for satisfying the construction
requirements set forth in § 27.14. Under
the first option, the partitioner and
partitionee each certifies that it will
independently satisfy the substantial
service requirement for its respective
partitioned area. If a licensee
subsequently fails to meet its substantial
service requirement, its license will be
subject to automatic cancellation
without further Commission action.
Under the section option, the partitioner
certifies that it has met or will meet the
substantial service requirement for the
entire, pre-partitioned geographic
service area. If the partitioner
subsequently fails to meet its substantial
service requirement, only its license
will be subject to automatic cancellation
without further Commission action.
(ii) For WCS licensees holding
authorizations for Block A in the 698–
704 MHz and 728–734 MHz bands,
Block B in the 704–710 MHz and 734–
740 MHz bands, Block E in the 722–728
MHz band, and Blocks C, C1, and C2 in
the 746–757 MHz and 776–787 MHz
bands, the following rules apply for
purposes of implementing the
construction requirements set forth in
§ 27.14. Parties to partitioning
agreements have two options for
satisfying the construction requirements
set forth in § 27.14. Under the first
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option, the partitioner and partitionee
each certifies that they will collectively
share responsibility for meeting the
construction requirement for the entire
pre-partition geographic license area. If
the partitioner and partitionee
collectively fail to meet the construction
requirement, then both the partitioner
and partitionee will be subject to the
consequences enumerated in § 27.14(g)
and (h) for this failure. Under the
second option, the partitioner and
partitionee each certifies that it will
independently meet the construction
requirement for its respective
partitioned license area. If the
partitioner or partitionee fails to meet
the construction requirement for its
respective partitioned license area, then
the consequences for this failure shall
be those enumerated in § 27.14(g) and
(h).
(2) Disaggregation. (i) Except for WCS
licensees holding authorizations for
Block A in the 698–704 MHz and 728–
734 MHz bands, Block B in the 704–710
MHz and 734–740 MHz bands, Block E
in the 722–728 MHz band, and Blocks
C, C1, and C2 in the 746–757 MHz and
776–787 MHz bands, and Block D in the
758–763 MHz and 788–793 MHz bands,
the following rules apply to WCS and
AWS licensees holding authorizations
for purposes of implementing the
construction requirements set forth in
§ 27.14. Parties to disaggregation
agreements have two options for
satisfying the construction requirements
set forth in § 27.14. Under the first
option, the disaggregator and
disaggregatee each certifies that it will
share responsibility for meeting the
substantial service requirement for the
geographic service area. If the parties
choose this option and either party
subsequently fails to satisfy its
substantial service responsibility, both
parties’ licenses will be subject to
forfeiture without further Commission
action. Under the second option, both
parties certify either that the
disaggregator or the disaggregatee will
meet the substantial service requirement
for the geographic service area. If the
parties choose this option, and the party
responsible subsequently fails to meet
the substantial service requirement,
only that party’s license will be subject
to forfeiture without further
Commission action.
(ii) For WCS licensees holding
authorizations for Block A in the 698–
704 MHz and 728–734 MHz bands,
Block B in the 704–710 MHz and 734–
740 MHz bands, Block E in the 722–728
MHz band, and Blocks C, C1, and C2 in
the 746–757 MHz and 776–787 MHz
bands, the following rules apply for
purposes of implementing the
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construction requirements set forth in
§ 27.14. If either the disaggregator or the
disaggregatee meets the construction
requirements set forth in § 27.14, then
these requirements will be considered to
be satisfied for both parties. If neither
the disaggregator nor the disaggregatee
meets the construction requirements,
then both parties will be subject to the
consequences enumerated in § 27.14(g)
and (h) for this failure.
I 20. Add § 27.16 to subpart B to read
as follows:
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§ 27.16 Network access requirements for
Block C in the 746–757 and 776–787 MHz
bands.
(a) Applicability. This section shall
apply only to the authorizations for
Block C in the 746–757 and 776–787
MHz bands assigned and only if the
results of the first auction in which
licenses for such authorizations are
offered satisfied the applicable reserve
price.
(b) Use of devices and applications.
Licensees offering service on spectrum
subject to this section shall not deny,
limit, or restrict the ability of their
customers to use the devices and
applications of their choice on the
licensee’s C Block network, except:
(1) Insofar as such use would not be
compliant with published technical
standards reasonably necessary for the
management or protection of the
licensee’s network, or
(2) As required to comply with statute
or applicable government regulation.
(c) Technical standards. For purposes
of paragraph (b)(1) of this section:
(1) Standards shall include technical
requirements reasonably necessary for
third parties to access a licensee’s
network via devices or applications
without causing objectionable
interference to other spectrum users or
jeopardizing network security. The
potential for excessive bandwidth
demand alone shall not constitute
grounds for denying, limiting or
restricting access to the network.
(2) To the extent a licensee relies on
standards established by an
independent standards-setting body
which is open to participation by
representatives of service providers,
equipment manufacturers, application
developers, consumer organizations,
and other interested parties, the
standards will carry a presumption of
reasonableness.
(3) A licensee shall publish its
technical standards, which shall be nonproprietary, no later than the time at
which it makes such standards available
to any preferred vendors, so that the
standards are readily available to
customers, equipment manufacturers,
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application developers, and other
parties interested in using or developing
products for use on a licensee’s
networks.
(d) Access requests. (1) Licensees
shall establish and publish clear and
reasonable procedures for parties to seek
approval to use devices or applications
on the licensees’ networks. A licensee
must also provide to potential
customers notice of the customers’
rights to request the attachment of a
device or application to the licensee’s
network, and notice of the licensee’s
process for customers to make such
requests, including the relevant network
criteria.
(2) If a licensee determines that a
request for access would violate its
technical standards or regulatory
requirements, the licensee shall
expeditiously provide a written
response to the requester specifying the
basis for denying access and providing
an opportunity for the requester to
modify its request to satisfy the
licensee’s concerns.
(e) Handset locking prohibited. No
licensee may disable features on
handsets it provides to customers, to the
extent such features are compliant with
the licensee’s standards pursuant to
paragraph (b)of this section, nor
configure handsets it provides to
prohibit use of such handsets on other
providers’ networks.
(f) Burden of proof. Once a
complainant sets forth a prima facie
case that the C Block licensee has
refused to attach a device or application
in violation of the requirements adopted
in this section, the licensee shall have
the burden of proof to demonstrate that
it has adopted reasonable network
standards and reasonably applied those
standards in the complainant’s case.
Where the licensee bases its network
restrictions on industry-wide consensus
standards, such restrictions would be
presumed reasonable.
I 21. Section 27.50 is amended by
revising paragraphs (b)(1) through
(b)(12), (c)(5), (c)(7), (c)(8), (c)(11), and
by revising tables 1, 2, 3, and 4 at the
end of the section.
§ 27.50
Power and antenna height limits.
*
*
*
*
*
(b) * * *
(1) Fixed and base stations
transmitting a signal in the 757–758 and
775–776 MHz bands must not exceed an
effective radiated power (ERP) of 1000
watts and an antenna height of 305 m
height above average terrain (HAAT),
except that antenna heights greater than
305 m HAAT are permitted if power
levels are reduced below 1000 watts
PO 00000
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48849
ERP in accordance with Table 1 of this
section.
(2) Fixed and base stations
transmitting a signal in the 746–757
MHz, 758–763 MHz, 776–787 MHz, and
788–793 MHz bands with an emission
bandwidth of 1 MHz or less must not
exceed an ERP of 1000 watts and an
antenna height of 305 m HAAT, except
that antenna heights greater than 305 m
HAAT are permitted if power levels are
reduced below 1000 watts ERP in
accordance with Table 1 of this section.
(3) Fixed and base stations located in
a county with population density of 100
or fewer persons per square mile, based
upon the most recently available
population statistics from the Bureau of
the Census, and transmitting a signal in
the 746–757 MHz, 758–763 MHz, 776–
787 MHz, and 788–793 MHz bands with
an emission bandwidth of 1 MHz or less
must not exceed an ERP of 2000 watts
and an antenna height of 305 m HAAT,
except that antenna heights greater than
305 m HAAT are permitted if power
levels are reduced below 2000 watts
ERP in accordance with Table 2 of this
section.
(4) Fixed and base stations
transmitting a signal in the 746–757
MHz, 758–763 MHz, 776–787 MHz, and
788–793 MHz bands with an emission
bandwidth greater than 1 MHz must not
exceed an ERP of 1000 watts/MHz and
an antenna height of 305 m HAAT,
except that antenna heights greater than
305 m HAAT are permitted if power
levels are reduced below 1000 watts/
MHz ERP accordance with Table 3 of
this section.
(5) Fixed and base stations located in
a county with population density of 100
or fewer persons per square mile, based
upon the most recently available
population statistics from the Bureau of
the Census, and transmitting a signal in
the 746–757 MHz, 758–763 MHz, 776–
787 MHz, and 788–793 MHz bands with
an emission bandwidth greater than 1
MHz must not exceed an ERP of 2000
watts/MHz and an antenna height of 305
m HAAT, except that antenna heights
greater than 305 m HAAT are permitted
if power levels are reduced below 2000
watts/MHz ERP in accordance with
Table 4 of this section.
(6) Licensees of fixed or base stations
transmitting a signal in the 746–757
MHz, 758–763 MHz, 776–787 MHz, and
788–793 MHz bands at an ERP greater
than 1000 watts must comply with the
provisions set forth in paragraph (b)(8)
of this section and § 27.55(c).
(7) Licensees seeking to operate a
fixed or base station located in a county
with population density of 100 or fewer
persons per square mile, based upon the
most recently available population
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statistics from the Bureau of the Census,
and transmitting a signal in the 746–757
MHz, 758–763 MHz, 776–787 MHz, and
788–793 MHz bands at an ERP greater
than 1000 watts must:
(i) coordinate in advance with all
licensees authorized to operate in the
698–763 MHz, 775–793, and 805–806
MHz bands within 120 kilometers (75
miles) of the base or fixed station;
(ii) coordinate in advance with all
regional planning committees, as
identified in § 90.527 of this chapter,
with jurisdiction within 120 kilometers
(75 miles) of the base or fixed station.
(8) Licensees authorized to transmit in
the 746–757 MHz, 758–763 MHz, 776–
787 MHz, and 788–793 MHz bands and
intending to operate a base or fixed
station at a power level permitted under
the provisions of paragraph (b)(6) of this
section must provide advanced notice of
such operation to the Commission and
to licensees authorized in their area of
operation. Licensees who must be
notified are all licensees authorized to
operate in the 763–775 MHz and 793–
805 MHz bands under part 90 of this
chapter within 75 km of the base or
fixed station and all regional planning
committees, as identified in § 90.527 of
this chapter, with jurisdiction within 75
km of the base or fixed station.
Notifications must provide the location
and operating parameters of the base or
fixed station, including the station’s
ERP, antenna coordinates, antenna
height above ground, and vertical
antenna pattern, and such notifications
must be provided at least 90 days prior
to the commencement of station
operation.
(9) Control stations and mobile
stations transmitting in the 746–757
MHz, 758–763 MHz, 776–793 MHz, and
805–806 MHz bands and fixed stations
transmitting in the 787–788 MHz and
805–806 MHz bands are limited to 30
watts ERP.
(10) Portable stations (hand-held
devices) transmitting in the 746–757
MHz, 758–763 MHz, 776–793 MHz, and
805–806 MHz bands are limited to 3
watts ERP.
(11) For transmissions in the 757–758,
775–776, 787–788, and 805–806 MHz
bands, maximum composite transmit
power shall be measured over any
interval of continuous transmission
using instrumentation calibrated in
terms of RMS-equivalent voltage. The
measurement results shall be properly
adjusted for any instrument limitations,
such as detector response times, limited
resolution bandwidth capability when
compared to the emission bandwidth,
etc., so as to obtain a true maximum
composite measurement for the
VerDate Aug<31>2005
15:44 Aug 23, 2007
Jkt 211001
emission in question over the full
bandwidth of the channel.
(12) For transmissions in the 746–757,
758–763, 776–787, and 788–793 MHz
bands, licensees may employ equipment
operating in compliance with either the
measurement techniques described in
paragraph (b)(11) of this section or a
Commission-approved average power
technique. In both instances, equipment
employed must be authorized in
accordance with the provisions of
§ 27.51.
(c) * * *
(5) Licensees seeking to operate a
fixed or base station located in a county
with population density of 100 or fewer
persons per square mile, based upon the
most recently available population
statistics from the Bureau of the Census,
and transmitting a signal at an ERP
greater than 1000 watts must:
(i) coordinate in advance with all
licensees authorized to operate in the
698–763 MHz, 775–793, and 805–806
MHz bands within 120 kilometers (75
miles) of the base or fixed station;
(ii) coordinate in advance with all
regional planning committees, as
identified in §§ 90.527 of this chapter,
with jurisdiction within 120 kilometers
(75 miles) of the base or fixed station.
*
*
*
*
*
(7) A licensee authorized to operate in
the 710–716, 716–722, or 740–746 MHz
bands, or in any unpaired spectrum
blocks within the 698–746 MHz band,
may operate a fixed or base station at an
ERP up to a total of 50 kW within its
authorized, 6 MHz spectrum block if the
licensee complies with the provisions of
§ 27.55(b). The antenna height for such
stations is limited only to the extent
required to satisfy the requirements of
§ 27.55(b).
(8) Licensees intending to operate a
base or fixed station at a power level
permitted under the provisions of
paragraph (c)(6) of this section must
provide advanced notice of such
operation to the Commission and to
licensees authorized in their area of
operation. Licensees who must be
notified are all licensees authorized
under this part to operate on an adjacent
spectrum block within 75 km of the base
or fixed station. Notifications must
provide the location and operating
parameters of the base or fixed station,
including the station’s ERP, antenna
coordinates, antenna height above
ground, and vertical antenna pattern,
and such notifications must be provided
at least 90 days prior to the
commencement of station operation.
*
*
*
*
*
(11) Licensees may employ equipment
operating in compliance with either the
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Frm 00038
Fmt 4701
Sfmt 4700
measurement techniques described in
paragraph (b)(11) of this section or a
Commission-approved average power
technique. In both instances, equipment
employed must be authorized in
accordance with the provisions of
§ 27.51.
*
*
*
*
*
TABLE 1 TO § 27.50.—PERMISSIBLE
POWER AND ANTENNA HEIGHTS FOR
BASE AND FIXED STATIONS IN THE
757–758 AND 775–776 MHZ BANDS
AND FOR BASE AND FIXED STATIONS
IN THE 698–757 MHZ, 758–763
MHZ, 776–787 MHZ AND 788–793
MHZ BANDS TRANSMITTING A SIGNAL WITH AN EMISSION BANDWIDTH
OF 1 MHZ OR LESS
Antenna height (AAT) in
meters
(feet)
Above 1372 (4500) ...............
Above 1220 (4000) To 1372
(4500) ................................
Above 1067 (3500) To 1220
(4000) ................................
Above 915 (3000) To 1067
(3500) ................................
Above 763 (2500) To 915
(3000) ................................
Above 610 (2000) To 763
(2500) ................................
Above 458 (1500) To 610
(2000) ................................
Above 305 (1000) To 458
(1500) ................................
Up to 305 (1000) ..................
Effective radiated power
(ERP)
(watts)
65
70
75
100
140
200
350
600
1000
TABLE 2 TO § 27.50.—PERMISSIBLE
POWER AND ANTENNA HEIGHTS FOR
BASE AND FIXED STATIONS IN THE
698–757 MHZ, 758–763 MHZ,
776–787 MHZ AND 788–793 MHZ
BANDS TRANSMITTING A SIGNAL
WITH AN EMISSION BANDWIDTH OF 1
MHZ OR LESS
Antenna height (AAT) in
meters
(feet)
Above 1372 (4500) ...............
Above 1220 (4000) To 1372
(4500) ................................
Above 1067 (3500) To 1220
(4000) ................................
Above 915 (3000) To 1067
(3500) ................................
Above 763 (2500) To 915
(3000) ................................
Above 610 (2000) To 763
(2500) ................................
Above 458 (1500) To 610
(2000) ................................
Above 305 (1000) To 458
(1500) ................................
E:\FR\FM\24AUR3.SGM
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Effective radiated power
(ERP)
(watts)
130
140
150
200
280
400
700
1200
Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations
TABLE 2 TO § 27.50.—PERMISSIBLE
POWER AND ANTENNA HEIGHTS FOR
BASE AND FIXED STATIONS IN THE
698–757 MHZ, 758–763 MHZ,
776–787 MHZ AND 788–793 MHZ
BANDS TRANSMITTING A SIGNAL
WITH AN EMISSION BANDWIDTH OF 1
MHZ OR LESS—Continued
Antenna height (AAT) in
meters
(feet)
Up to 305 (1000) ..................
Effective radiated power
(ERP)
(watts)
Above 1372 (4500) ...............
Above 1220 (4000) To 1372
(4500) ................................
Above 1067 (3500) To 1220
(4000) ................................
Above 915 (3000) To 1067
(3500) ................................
Above 763 (2500) To 915
(3000) ................................
Above 610 (2000) To 763
(2500) ................................
Above 458 (1500) To 610
(2000) ................................
Above 305 (1000) To 458
(1500) ................................
Up to 305 (1000) ..................
rfrederick on PROD1PC67 with RULES4
15:44 Aug 23, 2007
Above 763 (2500) To 915
(3000) ................................
Above 610 (2000) To 763
(2500) ................................
Above 458 (1500) To 610
(2000) ................................
Above 305 (1000) To 458
(1500) ................................
Up to 305 (1000) ..................
280
400
700
1200
2000
I
I
140
§ 27.53
200
350
600
1000
Effective radiated power
(ERP) per
MHz
(watts/MHz )
Above 1372 (4500) ...............
Above 1220 (4000) To 1372
(4500) ................................
Above 1067 (3500) To 1220
(4000) ................................
Above 915 (3000) To 1067
(3500) ................................
VerDate Aug<31>2005
Effective radiated power
(ERP) per
MHz
(watts/MHz )
22. Amend § 27.53 as follows:
a. Revise paragraph (c) introductory
Effective radi- text and paragraphs (c)(1) through (c)(4).
ated power
I b. Redesignate paragraphs (d) through
(ERP) per
(m) as paragraphs (e) through (n).
MHz
I c. Add new paragraph (d).
(watts/MHz)
I d. Revise newly redesignated
65 paragraph (e) introductory text.
I e. Redesignate newly redesignated
70 paragraphs (e)(1) through (e)(4) as
paragraphs (e)(6) through (e)(9).
75 I f. Add new paragraphs (e)(1) through
(e)(5).
100 I g. Revise newly redesignated
paragraph (f).
TABLE 4 TO § 27.50.—PERMISSIBLE
POWER AND ANTENNA HEIGHTS FOR
BASE AND FIXED STATIONS IN THE
698–757 MHZ, 758–763 MHZ,
776–787 MHZ AND 788–793 MHZ
BANDS TRANSMITTING A SIGNAL
WITH AN EMISSION BANDWIDTH
GREATER THAN 1 MHZ
Antenna height (AAT) in
meters
(feet)
Antenna height (AAT) in
meters
(feet)
2000
TABLE 3 TO § 27.50.—PERMISSIBLE
POWER AND ANTENNA HEIGHTS FOR
BASE AND FIXED STATIONS IN THE
698–757 MHZ, 758–763 MHZ,
776–787 MHZ AND 788–793 MHZ
BANDS TRANSMITTING A SIGNAL
WITH AN EMISSION BANDWIDTH
GREATER THAN 1 MHZ
Antenna height (AAT) in
meters
(feet)
TABLE 4 TO § 27.50.—PERMISSIBLE
POWER AND ANTENNA HEIGHTS FOR
BASE AND FIXED STATIONS IN THE
698–757 MHZ, 758–763 MHZ,
776–787 MHZ AND 788–793 MHZ
BANDS TRANSMITTING A SIGNAL
WITH AN EMISSION BANDWIDTH
GREATER THAN 1 MHZ—Continued
130
140
150
200
Jkt 211001
Emission limits.
*
*
*
*
*
(c) For operations in the 746–758
MHz band and the 776–788 MHz band,
the power of any emission outside the
licensee’s frequency band(s) of
operation shall be attenuated below the
transmitter power (P) within the
licensed band(s) of operation, measured
in watts, in accordance with the
following:
(1) On any frequency outside the 746–
758 MHz band, the power of any
emission shall be attenuated outside the
band below the transmitter power (P) by
at least 43 + 10 log (P) dB;
(2) On any frequency outside the 776–
788 MHz band, the power of any
emission shall be attenuated outside the
band below the transmitter power (P) by
at least 43 + 10 log (P) dB;
(3) On all frequencies between 763–
775 MHz and 793–805 MHz, by a factor
not less than 76 + 10 log (P) dB in a 6.25
kHz band segment, for base and fixed
stations;
(4) On all frequencies between 763–
775 MHz and 793–805 MHz, by a factor
not less than 65 + 10 log (P) dB in a 6.25
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48851
kHz band segment, for mobile and
portable stations;
*
*
*
*
*
(d) For operations in the 758–763
MHz and 788–793 MHz bands, the
power of any emission outside the
licensee’s frequency bands of operation
shall be attenuated below the
transmitter power (P) within the
licensed band(s) of operation, measured
in watts, in accordance with the
following:
(1) On all frequencies between 769–
775 MHz and 799–805 MHz, by a factor
not less than 76 + 10 log (P) dB in a 6.25
kHz band segment, for base and fixed
stations;
(2) On all frequencies between 769–
775 MHz and 799–805 MHz, by a factor
not less than 65 + 10 log (P) dB in a 6.25
kHz band segment, for mobile and
portable stations;
(3) On any frequency between 775–
788 MHz, above 805 MHz, and below
758 MHz, by at least 43 + 10 log (P) dB;
(4) Compliance with the provisions of
paragraphs (d)(1) and (d)(2) of this
section is based on the use of
measurement instrumentation such that
the reading taken with any resolution
bandwidth setting should be adjusted to
indicate spectral energy in a 6.25 kHz
segment;
(5) Compliance with the provisions of
paragraph (d)(3) of this section is based
on the use of measurement
instrumentation employing a resolution
bandwidth of 100 kHz or greater.
However, in the 100 kHz bands
immediately outside and adjacent to the
frequency block, a resolution bandwidth
of at least 30 kHz may be employed.
(e) For operations in the 775–776
MHz and 805–806 MHz bands,
transmitters must comply with either
paragraphs (e)(1) to (e)(5) of this section
or the ACP emission limitations set
forth in paragraphs (e)(6) to (e)(9) of this
section.
(1) On all frequencies between 763–
775 MHz and 793–805 MHz, the power
of any emission outside the licensee’s
frequency bands of operation shall be
attenuated below the transmitter power
(P) within the licensed band(s) of
operation, measured in watts, by a factor
not less than 76 + 10 log (P) dB in a 6.25
kHz band segment, for base and fixed
stations;
(2) On all frequencies between 763–
775 MHz and 793–805 MHz, the power
of any emission outside the licensee’s
frequency bands of operation shall be
attenuated below the transmitter power
(P) within the licensed band(s) of
operation, measured in watts, by a factor
not less than 65 + 10 log (P) dB in a 6.25
kHz band segment, for mobile and
portable stations;
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Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations
(3) On any frequency outside the 775–
776 MHz and 805–806 MHz bands, the
power of any emission shall be
attenuated outside the band below the
transmitter power (P) within the
licensed band(s) of operation, measured
in watts, by at least 43 + 10 log (P) dB;
(4) Compliance with the provisions of
paragraphs (e)(1) and (e)(2) of this
section is based on the use of
measurement instrumentation such that
the reading taken with any resolution
bandwidth setting should be adjusted to
indicate spectral energy in a 6.25 kHz
segment;
(5) Compliance with the provisions of
paragraph (e)(3) of this section is based
on the use of measurement
instrumentation employing a resolution
bandwidth of 100 kHz or greater.
However, in the 100 kHz bands
immediately outside and adjacent to the
frequency block, a resolution bandwidth
of at least 30 kHz may be employed.
*
*
*
*
*
(f) For operations in the 746–763
MHz, 775–793 MHz, and 805–806 MHz
bands, emissions in the band 1559–1610
MHz shall be limited to ¥70 dBW/MHz
equivalent isotropically radiated power
(EIRP) for wideband signals, and ¥80
dBW EIRP for discrete emissions of less
than 700 Hz bandwidth. For the purpose
of equipment authorization, a
transmitter shall be tested with an
antenna that is representative of the
type that will be used with the
equipment in normal operation.
*
*
*
*
*
23. Section 27.55 is amended by
revising the section heading and
paragraphs (a)(2) and (c) to read as
follows:
I
rfrederick on PROD1PC67 with RULES4
§ 27.55
Power strength limits.
(a) * * *
(2) 698–758 and 775–787 MHz bands:
40 dBµV/m.
*
*
*
*
*
(c) Power flux density limit for
stations operating in the 746–757 MHz,
758–763 MHz, 776–787 MHz, and 788–
793 MHz bands. For base and fixed
stations operating in the 746–757 MHz,
758–763 MHz, 776–787 MHz, and 788–
793 MHz bands in accordance with the
provisions of § 27.50(b)(6), the power
flux density that would be produced by
such stations through a combination of
antenna height and vertical gain pattern
must not exceed 3000 microwatts per
square meter on the ground over the
area extending to 1 km from the base of
the antenna mounting structure.
24. Section 27.57 is amended by
revising paragraph (b) to read as follows:
I
VerDate Aug<31>2005
15:44 Aug 23, 2007
Jkt 211001
§ 27.57
International coordination.
*
*
*
*
*
(b) Operation in the 698–763 MHz,
775–793 MHz, and 805–806 MHz bands
is subject to international agreements
between Mexico and Canada. Unless
otherwise modified by international
treaty, licenses must not cause
interference to, and must accept harmful
interference from, television broadcast
operations in Mexico and Canada.
*
*
*
*
*
I 25. Section 27.60 is revised to read as
follows:
§ 27.60 TV/DTV interference protection
criteria.
Base, fixed, control, and mobile
transmitters in the 698–763 MHz, 775–
793 MHz, and 805–806 MHz frequency
bands must be operated only in
accordance with the rules in this section
to reduce the potential for interference
to public reception of the signals of
existing TV and DTV broadcast stations
transmitting on TV Channels 51 through
68.
(a) D/U ratios. Licensees must choose
site locations that are a sufficient
distance from co-channel and adjacent
channel TV and DTV stations, and/or
must use reduced transmitting power or
transmitting antenna height such that
the following minimum desired signalto-undesired signal ratios (D/U ratios)
are met.
(1) The minimum D/U ratio for cochannel stations is:
(i) 40 dB at the hypothetical Grade B
contour (64 dBµV/m) (88.5 kilometers
(55 miles)) of the TV station;
(ii) For transmitters operating in the
698–746 MHz frequency band, 23 dB at
the equivalent Grade B contour (41
dBµV/m) (88.5 kilometers (55 miles)) of
the DTV station; or
(iii) For transmitters operating in the
746–763 MHz, 775–793 MHz, and 805–
806 MHz frequency bands, 17 dB at the
equivalent Grade B contour (41 dBµV/
m) (88.5 kilometers (55 miles)) of the
DTV station.
(2) The minimum D/U ratio for
adjacent channel stations is 0 dB at the
hypothetical Grade B contour (64 dBµV/
m) (88.5 kilometers (55 miles)) of the TV
station or ¥23 dB at the equivalent
Grade B contour (41 dBµV/m) (88.5
kilometers (55 miles)) of the DTV
station.
(b) TV stations and calculation of
contours. The methods used to calculate
TV contours and antenna heights above
average terrain are given in §§ 73.683
and 73.684 of this chapter. Tables to
determine the necessary minimum
distance from the 698–763 MHz, 775–
793 MHz, and 805–806 MHz station to
PO 00000
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Fmt 4701
Sfmt 4700
the TV/DTV station, assuming that the
TV/DTV station has a hypothetical or
equivalent Grade B contour of 88.5
kilometers (55 miles), are located in
§ 90.309 of this chapter and labeled as
Tables B, D, and E. Values between
those given in the tables may be
determined by linear interpolation.
Distances for station parameters greater
than those indicated in the tables
should be calculated in accordance with
the required D/U ratios, as provided in
paragraph (a) of this section. The
locations of existing and proposed
TV/DTV stations during the period of
transition from analog to digital TV
service are given in part 73 of this
chapter and in the final proceedings of
MM Docket No. 87–268.
(1) Licensees of stations operating
within the ERP and HAAT limits of
§ 27.50 must select one of four methods
to meet the TV/DTV protection
requirements, subject to Commission
approval:
(i) Utilize the geographic separation
specified in Tables B, D, and E of
§ 90.309 of this chapter, as appropriate;
(ii) When station parameters are
greater than those indicated in the
tables, calculate geographic separation
in accordance with the required D/U
ratios, as provided in paragraph (a) of
this section;
(iii) Submit an engineering study
justifying the proposed separations
based on the parameters of the land
mobile station and the parameters,
including authorized and/or applied for
facilities, of the TV/DTV station(s) it is
trying to protect; or,
(iv) Obtain written concurrence from
the applicable TV/DTV station(s). If this
method is chosen, a copy of the
agreement must be submitted with the
application.
(2) The following is the method for
geographic separations. (i) Base and
fixed stations that operate in the 746–
763 MHz, 775–787 MHz, and 788–793
MHz bands having an antenna height
(HAAT) less than 152 m. (500 ft.) shall
afford protection to co-channel and
adjacent channel TV/DTV stations in
accordance with the values specified in
Table B (co-channel frequencies based
on 40 dB protection) and Table E
(adjacent channel frequencies based on
0 dB protection) in § 90.309 of this
chapter. Base and fixed stations that
operate in the 698–746 MHz band
having an antenna height (HAAT) less
than 152 m. (500 ft.) shall afford
protection to adjacent channel DTV
stations in accordance with the values
specified in Table E in § 90.309 of this
chapter, shall afford protection to cochannel DTV stations by providing 23
dB protection to such stations’
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Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations
equivalent Grade B contour (41
dBµV/m), and shall afford protection to
co-channel and adjacent channel TV
stations in accordance with the values
specified in Table B (co-channel
frequencies based on 40 dB protection)
and Table E (adjacent channel
frequencies based on 0 dB protection) in
§ 90.309 of this chapter. For base and
fixed stations having an antenna height
(HAAT) between 152–914 meters (500–
3,000 ft.) the effective radiated power
must be reduced below 1 kilowatt in
accordance with the values shown in
the power reduction graph in Figure B
in § 90.309 of this chapter. For heights
of more than 152 m. (500 ft.) above
average terrain, the distance to the radio
path horizon will be calculated
assuming smooth earth. If the distance
so determined equals or exceeds the
distance to the hypothetical or
equivalent Grade B contour of a cochannel TV/DTV station (i.e., it exceeds
the distance from the appropriate Table
in § 90.309 of this chapter to the
relevant TV/DTV station), an
authorization will not be granted unless
it can be shown in an engineering study
(see paragraph (b)(1)(iii) of this section)
that actual terrain considerations are
such as to provide the desired
protection at the actual Grade B contour
(64 dBµV/m for TV and 41 dBµV/m for
DTV stations) or unless the effective
radiated power will be further reduced
so that, assuming free space attenuation,
the desired protection at the actual
Grade B contour (64 dBµV/m for TV and
41 dBµV/m coverage contour for DTV
stations) will be achieved. Directions for
calculating powers, heights, and
reduction curves are listed in § 90.309 of
this chapter for land mobile stations.
Directions for calculating coverage
contours are listed in § 73.683 through
73.685 of this chapter for TV stations
and in § 73.625 of this chapter for DTV
stations.
(ii) Control, fixed, and mobile stations
(including portables) that operate in the
787–788 MHz and 805–806 MHz bands
and control and mobile stations
(including portables) that operate in the
698–757 MHz, 758–763 MHz, 776–787
MHz, and 788–793 MHz bands are
limited in height and power and
therefore shall afford protection to cochannel and adjacent channel TV/DTV
stations in the following manner:
(A) For control, fixed, and mobile
stations (including portables) that
operate in the 787–788 MHz and 805–
806 MHz bands and control and mobile
stations (including portables) that
operate in the 746–757 MHz, 758–763
MHz, 776–787 MHz, and 788–793 MHz
bands, co-channel protection shall be
afforded in accordance with the values
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specified in Table D (co-channel
frequencies based on 40 dB protection
for TV stations and 17 dB for DTV
stations) in § 90.309 of this chapter.
(B) For control and mobile stations
(including portables) that operate in the
698–746 MHz band, co-channel
protection shall be afforded to TV
stations in accordance with the values
specified in Table D (co-channel
frequencies based on 40 dB protection)
and to DTV stations by providing 23 dB
protection to such stations’ equivalent
Grade B contour (41 dBµV/m).
(C) For control, fixed, and mobile
stations (including portables) that
operate in the 787–788 MHz and 805–
806 MHz bands and control and mobile
stations (including portables) that
operate in the 698–757 MHz, 758–763
MHz, 776–787 MHz, and 788–793 MHz
bands, adjacent channel protection shall
be afforded by providing a minimum
distance of 8 kilometers (5 miles) from
all adjacent channel TV/DTV station
hypothetical or equivalent Grade B
contours (adjacent channel frequencies
based on 0 dB protection for TV stations
and ¥23 dB for DTV stations).
(D) Since control, fixed, and mobile
stations may affect different TV/DTV
stations than the associated base or
fixed station, particular care must be
taken by applicants/licensees to ensure
that all appropriate TV/DTV stations are
considered (e.g., a base station may be
operating within TV Channel 62 and the
mobiles within TV Channel 67, in
which case TV Channels 61, 62, 63, 66,
67 and 68 must be protected). Control,
fixed, and mobile stations shall keep a
minimum distance of 96.5 kilometers
(60 miles) from all adjacent channel
TV/DTV stations. Since mobiles and
portables are able to move and
communicate with each other, licensees
must determine the areas where the
mobiles can and cannot roam in order
to protect the TV/DTV stations.
Note to § 27.60: The 88.5 km (55mi) Grade
B service contour (64 dBµV/m) is based on
a hypothetical TV station operating at an
effective radiated power of one megawatt, a
transmitting antenna height above average
terrain of 610 meters (2000 feet) and the
Commission’s R–6602 F(50,50) curves. See
§ 73.699 of this chapter. Maximum facilities
for TV stations operating in the UHF band are
5 megawatts effective radiated power at an
antenna HAAT of 610 meters (2,000 feet). See
§ 73.614 of this chapter. The equivalent
contour for DTV stations is based on a 41
dBµV/m signal strength and the distance to
the F(50,90) curve. See § 73.625 of this
chapter.
26. Section 27.70 is amended by
revising paragraph (a) introductory text
and paragraphs (b)(1) and (b)(2) to read
as follows:
I
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§ 27.70
48853
Information exchange.
(a) Prior notification. Public safety
licensees authorized to operate in the
763–775 MHz and 793–805 MHz bands
may notify any licensee authorized to
operate in the 746–757, 758–763, 776–
787, or 788–793 MHz bands that they
wish to receive prior notification of the
activation or modification of the
licensee’s base or fixed stations in their
area. Thereafter, the 746–757, 758–763,
776–787, or 788–793 MHz band licensee
must provide the following information
to the public safety licensee at least 10
business days before a new base or fixed
station is activated or an existing base
or fixed station is modified:
*
*
*
*
*
(b) * * *
(1) Allow a public safety licensee to
advise the 746–757, 758–763, 776–787,
or 788–793 MHz band licensee whether
it believes a proposed base or fixed
station will generate unacceptable
interference;
(2) Permit 746–757, 758–763, 776–
787, and 788–793 MHz band licensees
to make voluntary changes in base or
fixed station parameters when a public
safety licensee alerts them to possible
interference; and,
*
*
*
*
*
I 27. Section 27.303 (a) is amended by
revising paragraph (a) introductory text
to read as follows:
§ 27.303 Upper 700 MHz commercial and
public safety coordination zone.
(a) General. CMRS operators are
required, prior to commencing
operations on fixed or base station
transmitters on the 776–787 MHz and
788–793 MHz bands that are located
within 500 meters of existing or planned
public safety base station receivers, to
submit a description of their proposed
facility to a Commission-approved
public safety coordinator.
*
*
*
*
*
I 28. Section 27.501 is revised to read
as follows:
§ 27.501 746–763 MHz, 775–793 MHz, and
805–806 MHz bands subject to competitive
bidding.
Mutually exclusive initial
applications for licenses in the 746–763
MHz, 775–793 MHz, and 805–806 MHz
bands are subject to competitive
bidding. The general competitive
bidding procedures set forth in part 1,
subpart Q of this chapter will apply
unless otherwise provided in this
subpart.
I 29. Section 27.601 is amended by
revising paragraph (c)(1) introductory
text to read as follows:
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§ 27.601 Authority and coordination
requirements.
*
*
*
*
*
(c) * * *
(1) A Guard Band licensee, or a
spectrum lessee operating at 775–776
MHz and 805–806 MHz pursuant to a
spectrum lease arrangement under
§§ 1.9030 and 1.9035 of this chapter,
must notify Commission-recognized
public safety frequency coordinators for
the 700 MHz Public Safety band and
adjacent-area Guard Band licensees
within one business day after the
licensee or the spectrum lessee has:
*
*
*
*
*
I 30. Add subpart N to part 27 as
follows:
Subpart N—700 MHz Public/Private
Partnership
Sec.
27.1301 Purpose and scope.
27.1303 Upper 700 MHz D Block license
conditions.
27.1305 Shared wireless broadband
network.
27.1307 Spectrum use in the network.
27.1308 Organization and structure of the
700 MHz public/private partnership.
27.1310 Network sharing agreement.
27.1315 Establishment, execution, and
application of the network sharing
agreement.
27.1320 Failure to comply with the NSA or
the Commission’s rules.
27.1325 Resolution of disputes after grant of
the upper 700 MHz D block license.
27.1327 Construction requirements; criteria
for renewal.
27.1330 Local public safety build-out and
operation.
27.1333 Geographic partitioning, spectrum
disaggregation, license assignment, and
transfer.
27.1335 Prohibition on discontinuance of
public safety operations.
27.1340 Reporting obligations.
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§ 27.1301
Purpose and scope.
The purpose of this subpart, in
conjunction with subpart AA of part 90,
is to establish rules and procedures
relating to the 700 MHz Public/Private
Partnership entered between the
winning bidder for the Upper 700 MHz
D Block license, the Upper 700 MHz D
Block licensee, the Network Assets
Holder, the Operating Company, the
Public Safety Broadband Licensee, and
other related entities as the Commission
may require or allow. Pursuant to this
partnership, the Upper 700 MHz D
Block licensee and the Operating
Company will be responsible for
constructing and operating a
nationwide, shared interoperable
wireless broadband network used to
provide a commercial service and a
broadband network service for public
safety entities. The shared network
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assets will be held by the Network
Assets Holder and the Shared Wireless
Broadband Network will operate on
both the commercial spectrum licensed
to the Upper 700 MHz D Block licensee
and the public safety broadband
spectrum licensed to the Public Safety
Broadband Licensee. This subpart of the
part 27 rules sets forth specific
provisions relating to the Upper 700
MHz D Block license, the Upper 700
MHz D Block licensee, and other related
entities as the Commission may require
or allow with respect to the 700 MHz
Public/Private Partnership. Subpart AA
of the part 90 rules sets forth related
provisions applicable to the Public
Safety Broadband License and the
Public Safety Broadband Licensee with
respect to the 700 MHz Public/Private
Partnership.
§ 27.1303 Upper 700 MHz D Block license
conditions.
(a) The winning bidder at auction of
the license for Block D in the 758–763
MHz and 788–793 MHz bands will be
granted the Upper 700 MHz D Block
license only after this winning bidder
has entered, with the Public Safety
Broadband Licensee and other related
entities as the Commission may require
or allow, into the Network Sharing
Agreement (NSA) that has been
approved by the Commission, has
executed such other agreements as the
Commission may require or allow, and
has met all other necessary conditions
pertaining to the award of this license.
(b) The Upper 700 MHz D Block
licensee shall comply with all of the
applicable requirements set forth in this
part and subpart, including the
construction requirements set forth in
§ 27.14, and shall comply with the terms
of the NSA and such other agreements
as the Commission may require or
allow.
(c) The Upper 700 MHz D Block
licensee shall have the exclusive right to
build and operate the shared wireless
broadband network, except as set forth
in §§ 20.1330 and 90.1430 of this
chapter.
(d) The Upper 700 MHz D Block
licensee must not discontinue, reduce,
or impair service to public safety users
unless and until, pursuant to
Commission procedures, it has obtained
prior authorization from the
Commission.
(e) The Upper 700 MHz D Block
licensee must provide the Public Safety
Broadband Licensee with priority access
during emergencies, as specified in the
NSA.
(f) These conditions and requirements
will apply to any related entities that
the Commission may require or allow,
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as provided for in the NSA or otherwise
as authorized by the Commission.
§ 27.1305
network.
Shared wireless broadband
The Shared Wireless Broadband
Network developed by the 700 MHz
Public/Private Partnership must be
designed to meet requirements
associated with a nationwide, public
safety broadband network. At a
minimum, the network must
incorporate the following features:
(a) Design for operation over a
broadband technology platform that
provides mobile voice, video, and data
capability that is seamlessly
interoperable across public safety local
and state agencies, jurisdictions, and
geographic areas, and that includes
current and evolving state-of-the-art
technologies reasonably made available
in the commercial marketplace with
features beneficial to the public safety
community.
(b) Sufficient signal coverage to
ensure reliable operation throughout the
service area consistent with typical
public safety communications systems.
(c) Sufficient robustness to meet the
reliability and performance
requirements of public safety.
(d) Sufficient capacity to meet the
needs of public safety.
(e) Security and encryption consistent
with state-of-the-art technologies.
(f) A mechanism to automatically
prioritize public safety communications
over commercial uses on a real-time
basis consistent with the requirements
of § 27.1307.
(g) Operational capabilities consistent
with features and requirements that are
typical of current and evolving state-ofthe-art public safety systems.
(h) Operational control of the network
by the Public Safety Broadband
Licensee to the extent necessary to
ensure that public safety requirements
are met.
§ 27.1307
Spectrum use in the network.
(a) Spectrum use. The shared wireless
broadband network developed by the
700 MHz Public/Private Partnership
will operate using spectrum associated
with the Upper 700 MHz D Block
license in the 758–763 MHz and 788–
793 MHz bands and the Public Safety
Broadband License in the adjacent 763–
768 MHz and 793–798 MHz bands.
(b) Access to spectrum in the 758–763
MHz and 788–793 MHz bands. The
Upper 700 MHz D Block licensee shall
lease the spectrum rights associated
with the Upper 700 MHz D Block
license to the Operating Company,
pursuant to the Commission’s spectrum
leasing rules. The spectrum leasing
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arrangement shall be a long-term de
facto transfer leasing arrangement for
the entire remaining term of the Upper
700 MHz D Block license. If the Upper
700 MHz D Block license is renewed,
the parties will be required to renew
this spectrum leasing arrangement as
well.
(c) Access to spectrum in the 763–768
MHz and 793–798 MHz bands. The
Public Safety Broadband Licensee,
which holds the Public Safety
Broadband License pursuant to part 90
rules, must lease the spectrum usage
rights associated with this license,
pursuant to a spectrum manager leasing
arrangement set forth in part 1 subpart
X, to the Upper 700 MHz D Block
licensee and the Operating Company for
the entire remaining term of the Public
Safety Broadband License to effectuate
the 700 MHz Public/Private Partnership.
The Upper 700 MHz D Block licensee
and the Operating Company are the only
entities that are eligible to lease the
spectrum usage rights associated with
the Public Safety Broadband License to
operate on the 763–768 and 793–798
MHz bands. If the Upper 700 MHz D
Block license is cancelled, this spectrum
leasing arrangement will automatically
terminate.
(d) Commercial operations in the 763–
768 MHz and 793–798 MHz bands.
Commercial operations in the 763–768
MHz and 793–798 MHz bands through
the spectrum manager leasing
arrangement shall not cause harmful
interference to primary users (i.e.,
public safety users) and cannot claim
protection from harmful interference
from the primary public safety
operations in the 763–768 MHz and
793–798 MHz bands. The network
providing commercial operations in the
763–768 MHz and 793–798 MHz bands
through the spectrum manager leasing
arrangement must be designed to
automatically assign priority to public
safety users, to the exclusion and/or
immediate preemption of any
commercial use on a dynamic, real-time
priority basis, and to guarantee that
public safety users suffer no harmful
interference or interruption or
degradation of service due to
commercial operations in the 763–768
MHz and 793–798 MHz bands.
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§ 27.1308 Organization and structure of
the 700 MHz public/private partnership.
(a) The Upper 700 MHz D Block
licensee, the Network Assets Holder and
such other related entities as the
Commission may require or allow shall
be formed by the winning bidder of the
Upper 700 MHz D Block license. The
Upper 700 MHz D Block licensee, the
Network Assets Holder, and related
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entities as the Commission may require
or allow must be Special Purpose
Bankruptcy Remote Entities formed to
hold the license, to hold the shared
network assets, or for such other
purpose as the Commission may require
or allow. The winning bidder of the
Upper 700 MHz D Block license shall
also form the Operating Company,
which must also be a Special Purpose
Bankruptcy Remote Entity. Upon
issuance of the Upper 700 MHz D Block
license, the winning bidder will assign
all of its rights and obligations under the
NSA to the Upper 700 MHz D Block
licensee, Network Assets Holder, the
Operating Company, and any other
related entities that the Commission
may require or allow.
(b) The Upper 700 MHz D Block
licensee and other related entities as the
Commission may require or allow shall
have the obligation to build out the
Shared Wireless Broadband Network, as
provided for in the NSA or otherwise as
authorized by the Commission.
§ 27.1310
Network sharing agreement.
The relationship between the Upper
700 MHz D Block licensee, the Public
Safety Broadband Licensee, and related
entities as the Commission may require
or allow will be governed by the
Network Sharing Agreement (NSA) and
such other separate agreements as the
Commission may require or allow that
are negotiated and entered into between
the parties. The NSA must, at a
minimum, include the following terms:
(a) All of the substantive rights and
obligations of the parties relating to the
NSA, as established by the Commission
concerning the 700 MHz Public/Private
Partnership.
(b) Network specifications that
comply with § 27.1305.
(c) The definition of ‘‘emergency’’ for
purposes of emergency priority access.
(d) All service fees to be imposed for
services to public safety, including fees
for normal network service and fees for
priority access to the D Block spectrum
in an emergency.
(e) A detailed build-out schedule
consistent with § 27.1327, including
coverage of major highways and
interstates, as well as incorporated
communities with a population in
excess of 3,000.
(f) The right of the Public Safety
Broadband Licensee to determine and
approve the specifications of public
safety equipment used on the network
and the right to purchase its own
subscriber equipment from any vendor
it chooses, to the extent such
specifications and equipment are
consistent with reasonable network
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48855
control requirements established in the
NSA.
(g) The Upper 700 MHz D Block
licensee must offer at least one handset
suitable for public safety use that
includes a seamlessly integrated
satellite solution pursuant to the terms,
conditions, and timeframes set forth in
the NSA.
(h) Any major modification of the
terms of the NSA, related agreements or
documents, or such other agreements as
the Commission may require or allow
must be submitted to the Commission
for prior approval. All other
modifications must be submitted to the
Chiefs of the Wireless
Telecommunications Bureau and the
Public Safety and Homeland Security
Bureau for prior approval.
(i) The NSA shall require, in a
separate agreement, the granting of an
irrevocable and assignable right of first
refusal to purchase the network assets if
and whenever such assets are otherwise
to be sold and an irrevocable and
assignable option in favor of the Public
Safety Broadband Licensee to purchase
the network and all network assets if
and whenever the Upper 700 MHz D
Block license is cancelled or terminated,
by reason of default or for any other
reason, for a consideration equivalent to
the fair market value of the tangible and
intangible assets sold. This right and
option shall be senior to, and have
priority over, any other right, claim, or
interest in or to the network or the
network assets. The NSA shall also
include a fair market valuation
methodology to determine the fair
market value of the shared wireless
broadband network assets.
(j) The NSA must have a term, not to
exceed 10 years from February 17, 2009,
that coincides with the terms of the
Upper 700 MHz D Block license and the
Public Safety Broadband License.
§ 27.1315 Establishment, execution, and
application of the network sharing
agreement.
The following requirements and
processes relate to the establishment,
execution, and application of the NSA:
(a) Approval of NSA as pre-condition
for granting the Upper 700 MHz D Block
License. The Commission shall not grant
the Upper 700 MHz D Block license
until the winning bidder for the Upper
700 MHz D Block license has negotiated
the NSA and such other agreements as
the Commission may require or allow
with the Public Safety Broadband
Licensee, and the NSA and related
agreements or documents have been
approved by the Commission and
executed by the required parties. Parties
to the NSA must also include the Upper
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700 MHz D Block licensee, the Network
Assets Holder, and the Operating
Company, as these entities are defined
in § 27.4.
(b) Requirement of negotiation.
Negotiation of an NSA between the
winning bidder for the Upper 700 MHz
D Block license and the Public Safety
Broadband Licensee must commence by
the date the winning bidder files its long
form application or the date on which
the Commission designates the Public
Safety Broadband Licensee, whichever
is later, and must conclude within six
months of that date. Parties to this
negotiation are required to negotiate in
good faith. Two members of the
Commission staff, one from the Wireless
Telecommunications Bureau and one
from the Public Safety and Homeland
Security Bureau, shall be present at all
stages of the negotiation as neutral
observers.
(c) Reporting requirements. The
winning bidder for the Upper 700 MHz
D Block license must file a report with
the Commission within 10 business
days of the commencement of the
negotiation period certifying that active
and good faith negotiations have begun,
providing the date on which they
commenced, and providing a schedule
of the initial dates on which the parties
intend to meet for active negotiations,
covering at a minimum the first 30-day
period. Beginning three months from
the triggering of the six-month
negotiation period, the winning bidder
for the Upper 700 MHz D Block license
and the Public Safety Broadband
Licensee must jointly provide detailed
reports, on a monthly basis and subject
to a request for confidential treatment,
on the progress of the negotiations
throughout the remainder of the
negotiations. These reports must
include descriptions of all material
issues that the parties have yet to
resolve.
(d) Submission of final agreement. As
soon as the parties have reached an
agreement on all the terms of the NSA,
related agreements or documents, and
such other agreements as the
Commission may require or allow, but
not later than five business days after
the six-month period for negotiation has
expired, they must submit the NSA
together with all agreements and related
documents referenced in the NSA, for
review and approval by the full
Commission. The Commission will act
on the NSA within 60 days of receipt.
The Commission may approve the NSA
in its entirety, approve with
modifications, or require the parties to
address additional terms or re-draft
existing terms within a specified
timeframe. After the NSA is approved,
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the parties must execute the NSA and
such other agreements as the
Commission may require or allow, and
submit executed copies to the
Commission within 10 business days of
approval.
(e) Submission of disputed issues. If
the parties have not reached agreement
on all terms of the NSA and related
agreements by the end of the six-month
period, they must notify the
Commission not later than five business
days after the expiration of the sixmonth period of the terms on which
they have agreed, the nature of the
remaining issues, each party’s position
on each issue, whether additional
negotiation is likely to produce an
agreement, and, if so, a proposed
deadline for reaching agreement on the
NSA. Authority is delegated jointly to
the Chiefs of the Wireless
Telecommunications Bureau and the
Public Safety and Homeland Security
Bureau to resolve any remaining
disputes.
(f) Resolution of disputes. Actions to
resolve disputes may include, but are
not limited to:
(1) Granting additional time for
negotiation;
(2) Issuing a decision on the disputed
issues and requiring the submission of
a draft agreement consistent with the
decision;
(3) Directing the parties to further
brief the remaining issues in full for
immediate Commission decision; and/or
(4) Immediate denial of the long-form
application filed by the winning bidder
for the Upper 700 MHz D Block license.
(g) Default by winning bidder for
Upper 700 MHz D Block license. If the
winning bidder for the Upper 700 MHz
D Block fails to comply with negotiation
or dispute resolution requirements or
fails to execute a Commission-approved
NSA, its long form application will be
denied. If the long form application of
the winning bidder of the Upper 700
MHz D Block license is denied for any
reason, including as a consequence of
an action taken pursuant to paragraphs
(e) and (f) of this section, it will be
deemed to have defaulted under
§ 1.2109(c) of this chapter, and will be
liable for the default payment specified
in § 1.2104(g) of this chapter.
§ 27.1320 Failure to comply with the NSA
or the Commission’s rules.
(a) Failure to comply with the
Commission’s rules or the terms of the
NSA may warrant cancelling the Upper
700 MHz D Block license and awarding
it to a new licensee. In the event the
Upper 700 MHz D Block license is
cancelled, the Commission shall issue
an order cancelling the license and
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announcing the process for awarding
rights to the spectrum to a new licensee.
Pending the award to a new licensee,
the Commission shall issue the
Operating Company a special temporary
authority to prevent interruption of
services provided over the Shared
Wireless Broadband Network. The
Operating Company must continue to
provide both commercial service and
services to public safety during the
transition. Upon grant of a new license,
the Commission shall establish the
terms and timing under which the
special temporary authorization shall be
cancelled and the new Upper 700 MHz
D Block licensee assumes the
construction and operation of the
network.
(b) If the Commission cancels or
terminates the Upper 700 MHz D Block
license, a fair market valuation of the
shared wireless broadband network
assets shall be performed immediately,
pursuant to the fair market valuation
methodology set forth in the NSA. In the
event that the Upper 700 MHz D Block
license is awarded to a new entity, the
Public Safety Broadband Licensee’s
option to purchase the network and all
network assets if and whenever the
Upper 700 MHz D Block license is
cancelled or terminated and its right of
first refusal to purchase the network
assets if and whenever such assets are
otherwise to be sold shall be assigned to
the new Upper 700 MHz D Block
licensee and the new Network Assets
Holder.
§ 27.1325 Resolution of disputes after
grant of the upper 700 MHz D block license.
(a) The Upper 700 MHz D Block
licensee, the Operating Company, the
Network Assets Holder and the Public
Safety Broadband Licensee may at any
time bring a complaint to the
Commission based on a claim that
another party to the NSA has deviated
from the terms of the NSA, or a petition
for a declaratory ruling to resolve the
proper interpretation of an NSA term or
provision. The Commission also may at
any time, on its own motion, determine
to address any material breach or
interpret any NSA term or provision.
(b) The Commission shall have
primary responsibility and jurisdiction
for adjudicating disputes that arise
following execution of the NSA. The
Commission may, however, require the
parties to first seek a settlement to the
dispute or authorize the parties to
resolve the dispute through litigation or
other means. Breach of license terms,
the NSA, or the Commission’s rules may
result in cancellation of the Upper 700
MHz D Block license, the Public Safety
Broadband License, or both.
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(c) The Chiefs of the Public Safety and
Homeland Security Bureau and the
Wireless Telecommunications Bureau
are delegated joint responsibility for
adjudicating disputes.
§ 27.1327 Construction requirements;
criteria for renewal.
(a) The Upper 700 MHz D Block
licensee shall comply with the
applicable construction requirements of
§ 27.14.
(b) The Upper 700 MHz D Block
licensee shall comply with the
applicable procedures and criteria for
license renewal of § 27.14.
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§ 27.1330 Local public safety build-out and
operation.
(a) The Upper 700 MHz D Block
licensee and the Operating Company
through its lease arrangements shall,
except in the two limited circumstances
set forth herein, have the exclusive right
to build and operate the Shared
Wireless Broadband Network.
(b) Rights to early build-out in areas
with a build-out commitment. In an area
where the Upper 700 MHz D Block
licensee has committed, in the NSA, to
build out by a certain date, a public
safety entity may, with the pre-approval
of the Public Safety Broadband Licensee
and subject to the requirements set forth
herein, construct a broadband network
in that area at its own expense so long
as the network is capable of operating
on the Shared Wireless Broadband
Network and meets all the requirements
and specifications of the network
required under the NSA.
(1) Options for early build-out in
areas with a build-out commitment. In
order to obtain authorization to
construct a broadband network as set
forth in paragraph (b) of this section, the
requesting public safety entity must
agree to one of the following:
(i) To, on its own, or through the
Public Safety Broadband Licensee acting
on its behalf, construct the network at
its own expense, and upon completion
of construction transfer the network to
the Upper 700 MHz D Block licensee,
which shall then integrate that network
into the Shared Wireless Broadband
Network constructed pursuant to the
NSA; or
(ii) To, in agreement with the Upper
700 MHz D Block licensee, provide all
funds necessary for the Upper 700 MHz
D Block licensee to complete the early
construction of the network, including
any and all additional resource and
personnel costs, allowing the Upper 700
MHz D Block licensee at all times to
own, operate, and manage the network
as an integrated part of the Shared
Wireless Broadband Network.
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15:44 Aug 23, 2007
Jkt 211001
(2) Negotiation of amendment to NSA.
Under either early build out option set
forth in paragraph (b)(1) of this section,
the Public Safety Broadband Licensee,
the Upper 700 MHz D Block licensee,
and the public safety entity must, prior
to any construction, negotiate an
amendment to the NSA regarding this
part of the network, specifying
ownership rights, fees, and other terms,
which may be distinct from the
analogous terms governing the Shared
Wireless Broadband Network, and such
amendment must be approved by the
Commission.
(i) Such amendment must provide the
terms under which the Upper 700 MHz
D Block licensee shall receive full
ownership rights and shall compensate
the public safety entity (or the Public
Safety Broadband Licensee, where
appropriate) for the construction of the
network; and shall, absent agreement to
the contrary, provide for such transfer
and compensation to occur prior to the
scheduled build out date for such
network in the NSA.
(ii) Any right to compensation from
the Upper 700 MHz D Block licensee
related to such early build-out shall be
limited to the cost that would have been
incurred had the Upper 700 MHz D
Block licensee constructed the network
itself in accordance with the original
terms and specifications of the NSA, as
reasonably determined by the parties
and negotiated as part of the NSA
amendment required in paragraph (b)(2)
of this section. Such costs shall not
include costs attributable solely to
advancing the date of construction or
otherwise expediting the construction
process.
(3) Operations. The public safety
entity may not commence operations on
the network until ownership of the
network has been transferred to the
Upper 700 MHz D Block licensee.
Further, no operations shall be allowed
except those authorized and conducted
pursuant to the authority of the Public
Safety Broadband License.
(4) Attribution of early build-out to
national benchmarks. Upon completion
of construction, transfer of ownership to
the Upper 700 MHz D Block licensee,
and compensation as required herein, if
applicable, the Upper 700 MHz D Block
licensee may include the network
constructed pursuant to the early buildout provisions herein for purposes of
determining whether it has met its
national build-out benchmarks and the
build-out requirements of the NSA.
(5) Rights to build out and operate in
areas without a build-out commitment.
In areas for which the NSA does not
require the Upper 700 MHz D Block
licensee to build out the Shared
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48857
Wireless Broadband Network, a public
safety entity may build out and operate
a separate, exclusive network in the 700
MHz public safety broadband spectrum
at any time, provided the public safety
entity has received the written approval
of the Public Safety Broadband Licensee
and operates its independent network
pursuant to a spectrum leasing
arrangement into which the public
safety entity has entered with the Public
Safety Broadband Licensee.
(i) Such leasing arrangement shall not
require the approval or consent of the
Upper 700 MHz D Block licensee;
however, the Public Safety Broadband
Licensee must provide the Upper 700
MHz D Block licensee with notice of the
public safety entity’s intent to construct
in that area within 30 days of receipt of
a request from a public safety entity
seeking to exercise this option, and shall
inform the Upper 700 MHz D Block
licensee of the public safety entity’s
anticipated build-out date(s).
(ii) Should the Upper 700 MHz D
Block licensee, within 30 calendar days
from receipt of notice of the public
safety entity’s intent to construct in that
area, certify in writing to the Public
Safety Broadband Licensee that it will
build out the shared network in the area
within a reasonable time of the
anticipated build-out date(s), as
determined by the Public Safety
Broadband Licensee, the Public Safety
Broadband Licensee shall not allow the
public safety entity to build and operate
its own separate exclusive network in
that area, provided that the Upper 700
MHz D Block licensee and the Public
Safety Broadband Licensee execute an
amendment to the NSA indicating the
Upper 700 MHz D Block licensee’s
commitment to build the network in
that area. Such commitment shall
become enforceable against the Upper
700 MHz D Block licensee as part of its
overall build-out requirements.
(iii) If the Upper 700 MHz D Block
licensee does not exercise its option to
commit to build out the network in the
requested area within 30 calendar days
of receipt of notice of the public safety
entity’s intent to construct in such area,
the Public Safety Broadband Licensee
and the public safety entity may
proceed with a spectrum leasing
arrangement, which must be filed with
the Commission prior to the public
safety entity commencing any
operations. The spectrum leasing
arrangement must take the form of a
spectrum manager leasing arrangement
under the rules specified in § 1.9020 of
this chapter, and incorporate the
following conditions:
(A) The network must provide
broadband operations;
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(B) The network must be fully
interoperable with the Shared Wireless
Broadband Network;
(C) The network must be available for
use by any public safety entity in the
area;
(D) The network must satisfy any
other terms or conditions required by
the Public Safety Broadband Licensee;
and
(E) The public safety entity must
construct and place into operation its
network within one year of the effective
date of the spectrum manager leasing
arrangement. If the public safety entity
fails to place the network into operation
within one year, the Public Safety
Broadband Licensee shall terminate the
spectrum leasing arrangement pursuant
to § 1.9020(h)(3) of this chapter. The
public safety entity may also seek
extended implementation authority
from the Commission pursuant to the
requirements of § 90.629 of this chapter.
(6) Except as set forth herein, the
separate network is not required to meet
the other specifications of the Shared
Wireless Broadband Network. Absent
agreement of the public safety entity,
the Public Safety Broadband Licensee,
and the Upper 700 MHz D Block
licensee, the separate network may not
operate using any spectrum associated
with the Upper 700 MHz D Block
license.
(7) The Public Safety Broadband
Licensee must file with the Commission
any spectrum manager leasing
arrangement as specified in § 1.9020(e)
of this chapter; such filing shall identify
the public safety entity leasing the
spectrum, the particular areas of
spectrum leased as part of this build-out
option, and the specific network
infrastructure and equipment deployed
on such leased spectrum.
§ 27.1333 Geographic partitioning,
spectrum disaggregation, license
assignment and transfer.
rfrederick on PROD1PC67 with RULES4
The Upper 700 MHz D Block licensee,
the Operating Company and the
Network Assets Holder are prohibited
from discontinuing or degrading the
broadband network service provided to
the Public Safety Broadband Licensee or
Jkt 211001
Reporting obligations.
(a) The Upper 700 MHz D Block
licensee and the Public Safety
Broadband Licensee shall jointly file
quarterly reports with the Commission.
These reports shall include audited
financial statements, how the specific
requirements of public safety are being
met, detailed information on the areas
where broadband service has been
deployed, which public safety entities
are using the broadband network in
each area of operation, what types of
applications are in use in each area of
operation, and the number of declared
emergencies in each area of operation.
(b) The Upper 700 MHz D Block
licensee and Public Safety Broadband
Licensee have joint responsibility to
register the base station locations with
the Commission, providing basic
technical information, including
geographic location.
PART 90—PRIVATE LAND MOBILE
RADIO SERVICES
31. The authority citation for part 90
continues to read as follows:
I
Authority: Sections 4(i), 11, 303(g), 303(r),
and 332(c)(7) of the Communications Act of
1934, as amended, 47 U.S.C. 154(i), 161,
303(g), 303(r), and 332(c)(7).
32. Section 90.5 is amended by
revising paragraphs (k), (l), and (m), and
adding paragraph (n) to read as follows:
I
Other applicable rule parts.
*
§ 27.1335 Prohibition on discontinuance of
public safety operations.
15:44 Aug 23, 2007
§ 27.1340
§ 90.5
(a) The 700 MHz Upper D Block
license may not be partitioned or
disaggregated.
(b) The 700 MHz Upper D Block
licensee will be permitted to assign or
transfer its licensee subject to
Commission review and prior approval.
The Upper 700 MHz D Block license
assignment or transfer applications are
precluded from overnight processing.
VerDate Aug<31>2005
to public safety entities unless either at
the request of the public safety entity or
entities in question or with the preapproval of the Commission. The Upper
700 MHz D Block licensee shall notify
the affected public safety entity or
entities and the Public Safety
Broadband Licensee at least 30 days
prior to any unrequested discontinuance
or degradation of network service.
*
*
*
*
(k) Part 27 contains rules relating to
miscellaneous wireless communications
services.
(l) Part 51 contains rules relating to
interconnection.
(m) Part 68 contains technical
standards for connection of private land
mobile radio equipment to the public
switched telephone network.
(n) Part 101 governs the operation of
fixed microwave services.
I 33. Section 90.7 is amended by adding
the following definitions in alphabetical
order to read as follows:
§ 90.7
Definitions.
700 MHz Public/Private Partnership.
The public/private partnership
established for the development and
PO 00000
Frm 00046
Fmt 4701
Sfmt 4700
operation of a nationwide, shared
interoperable wireless broadband
network operating on the 758–763 MHz
and 788–793 MHz bands and the 763–
768 MHz and 793–798 MHz bands in
accordance with the Commission’s
rules.
*
*
*
*
*
Network Assets Holder. The Network
Assets Holder is a Special Purpose
Bankruptcy Remote Entity that is
formed to hold the assets of the shared
wireless broadband network associated
with the 700 MHz Public/Private
Partnership, in accordance with the
terms of the Network Sharing
Agreement, such other agreements as
the Commission may require or allow,
and the Commission’s rules.
Network Sharing Agreement (NSA).
An agreement entered into between the
winning bidder, the Upper 700 MHz D
Block licensee, the Network Assets
Holder, the Operating Company, the
Public Safety Broadband Licensee, and
any other related entities that the
Commission may require or allow
regarding the shared wireless broadband
network associated with the 700 MHz
Public/Private Partnership that will
operate on the 758–763 MHz and 788–
793 MHz bands and the 763–768 MHz
and 793–798 MHz bands.
*
*
*
*
*
Operating Company. The Operating
Company is a Special Purpose
Bankruptcy Remote Entity that is
formed to build and operate the shared
wireless broadband network associated
with the 700 MHz Public/Private
Partnership, in accordance with the
terms of the Network Sharing
Agreement, such other agreements as
the Commission may require or allow,
and the Commission’s rules.
*
*
*
*
*
Public Safety Broadband License. The
Public Safety Broadband License
authorizes public safety broadband
services in the 763–768 MHz and 793–
798 MHz bands on a primary basis.
Public Safety Broadband Licensee.
The licensee of the Public Safety
Broadband License in the 763–768 MHz
and 793–798 MHz bands.
*
*
*
*
*
Shared Wireless Broadband Network.
Wireless broadband network associated
with the 700 MHz Band Public/Private
Partnership that operates on the 758–
763 MHz and 788–793 MHz bands and
the 763–768 MHz and 793–798 MHz
bands pursuant to the terms of the
Network Sharing Agreement, such other
agreements as the Commission may
require or allow, and the Commission’s
rules.
*
*
*
*
*
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Special Purpose Bankruptcy Remote
Entity. A ‘‘special purpose entity’’ is a
legal entity created for a special limited
purpose, in this context primarily to
hold the Upper 700 MHz D Block
license or the network assets, or to
conduct the construction or operation of
the Shared Wireless Broadband Network
associated with the 700 MHz Public/
Private Partnership. A special purpose
entity is ‘‘bankruptcy remote’’ if that
entity is unlikely to become insolvent as
a result of its own activities, is
adequately insulated from the
consequences of a related party’s
insolvency, and contains certain
characteristics which enhance the
likelihood that it will not become the
subject of an insolvency proceeding.
*
*
*
*
*
Upper 700 MHz D Block license. The
Upper 700 MHz D Block license is the
nationwide license associated with the
758–763 MHz and 788–793 MHz bands.
Upper 700 MHz D Block licensee. The
Special Purpose Bankruptcy Remote
Entity to which the Upper 700 MHz D
Block license must be transferred upon
execution of the Network Sharing
Agreement. References herein to the
rights and obligations of the Upper 700
MHz D Block licensee include the
exercise or discharge of such rights or
obligations, respectively, by related
entities as are provided for in the NSA
or otherwise as authorized by the
Commission.
*
*
*
*
*
I 34. Section 90.18 is added to read as
follows:
§ 90.18 Public Safety 700 MHz Nationwide
Broadband Network.
The 763–768/793–798 MHz band is
dedicated to a broadband public safety
communications system with a
nationwide level of interoperability. A
nationwide license for this spectrum is
held by a single entity, the Public Safety
Broadband Licensee, which must enter
into the 700 MHz Public/Private
Partnership with the licensee of the
adjacent Upper 700 MHz D Block
license, pursuant to a Network Sharing
Agreement and such other agreements
as the Commission may require. The
specific provisions relating to the 700
MHz Public/Private Partnership are set
forth in subpart AA of this part and
subpart N of part 27. The Public Safety
700 MHz Nationwide Broadband
Network is established in the Second
Report and Order in PS Docket No. 06–
229.
35. Section 90.20 is amended by
revising the entries for ‘‘470 to 512’’ and
‘‘763 to 775; ‘‘806 to 817’’ by removing
the entry for ‘‘764 to 776’’; and by
adding entries for ‘‘763 to 775’’ and
‘‘793 to 805’’ in the frequency or band
table in paragraph (c)(3) and by revising
paragraph (d)(77) is to read as follows:
I
§ 90.20
*
Public Safety Pool.
*
*
*
(c) * * *
(3) Frequencies.
*
PUBLIC SAFETY POOL FREQUENCY TABLE
Frequency or band
470
763
793
806
to
to
to
to
*
512
775
805
817
Class of station(s)
*
*
...................................................................
...................................................................
...................................................................
...................................................................
*
*
rfrederick on PROD1PC67 with RULES4
§ 90.155 Time in which station must be
placed in operation.
(a) All stations authorized under this
part, except as provided in §§ 90.528,
90.529, 90.629, 90.631(f), 90.665,
90.685, and 90.1209, must be placed in
operation within twelve (12) months
from the date of grant or the
authorization cancels automatically and
must be returned to the Commission.
*
*
*
*
*
I 37. Section 90.175 is amended by
revising the paragraph heading in
paragraph (e), revising paragraphs (j)
(10), through (j)(11) and (12) and adding
paragraph (j)(18) to read as follows:
§ 90.175 Frequency coordination
requirements.
*
*
*
VerDate Aug<31>2005
*
*
16:24 Aug 23, 2007
*
*
Base or mobile ............................................................
Base, mobile ...............................................................
Mobile ..........................................................................
......do ..........................................................................
*
(d) * * *
(77) Subpart R of this part contains
rules for assignment of channels in the
763–775 MHz and 793–805 MHz bands.
*
*
*
*
*
I 36. Section 90.155 is amended by
revising paragraph (a) to read as follows:
Jkt 211001
Limitations
*
PO 00000
Frm 00047
Fmt 4701
*
Sfmt 4700
*
68
77
77
69
*
(e) For frequencies between 470–512
MHz, 769–775/799–805 MHz, 806–824/
851–869 MHz and 896–901/935–940
MHz: * * *
*
*
*
*
*
(j) * * *
(10) Applications for mobile stations
operating in the 470–512 MHz band,
799–805 MHz band, or above 800 MHz
if the frequency pair is assigned to a
single system on an exclusive basis in
the proposed area of operation.
(11) Applications for add-on base
stations in multiple licensed systems
operating in the 470–512 MHz, 769–775
MHz band, or above 800 MHz if the
frequency pair is assigned to a single
system on an exclusive basis.
(12) Applications for control stations
operating below 470 MHz, 769–775/
799–805 MHz, or above 800 MHz and
meeting the requirements of § 90.119(b).
*
*
*
*
*
(18) Applications for base, mobile, or
control stations in the 763–768 MHz
and 793–798 MHz bands.
I 38. Section 90.176 is amended by
revising the section heading and
Coordinator
*
PX
PX
*
revising the heading to paragraph (c) to
read as follows:
§ 90.176 Coordinator notification
requirements on frequencies below 512
MHz or at 769–775/799–805 MHz.
*
*
*
*
*
(c) Frequencies in the 769–775/799–
805 MHz band. * * *
*
*
*
*
*
I 39. Section 90.179 is amended by
revising paragraph (g) to read as follows:
§ 90.179
Shared use of radio stations.
*
*
*
*
*
(g) Notwithstanding paragraph (a) of
this section, licensees authorized to
operate radio systems on Public Safety
Pool frequencies designated in § 90.20
may share their facilities with Federal
Government entities on a non-profit,
cost-shared basis. Such a sharing
arrangement is subject to the provisions
of paragraphs (b), (d), and (e) of this
section, and § 2.103(c) concerning
approval of the Public Safety Broadband
Licensee for Federal operations in the
763–768 MHz and 793–798 MHz bands.
State governments authorized to operate
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radio systems under § 90.529 may share
the use of their systems (for public
safety services not made commercially
available to the public) with any entity
that would be eligible for licensing
under § 90.523 and Federal Government
entities.
*
*
*
*
*
I 40. Section 90.205 is amended by
redesignating paragraphs (j) through (r)
as paragraphs (k) through (s) by adding
new paragraph (j), and revising newly
redesignated paragraph (k) to read as
follows:
§ 90.205
Power and antenna height limits.
*
*
*
*
*
(j) 763–775 MHz and 793–805 MHz.
Power and height limitations are
specified in §§ 90.541 and 90.542.
(k) 806–824 MHz, 851–869 MHz, 896–
901 MHz and 935–940 MHz. Power and
height limitations are specified in
§ 90.635
*
*
*
*
*
I 41. Part 90 is amended by revising the
heading to subpart R as follows:
Subpart R—Regulations Governing the
Licensing and Use of Frequencies in
the 763–775 and 793–805 MHz Bands
42. Section 90.521 is amended by
revising the first sentence to read as
follows:
I
§ 90.521
Scope.
This subpart sets forth the regulations
governing the licensing and operations
of all systems operating in the 763–775
MHz and 793–805 MHz frequency
bands. * * *
*
*
*
*
*
I 43. Section 90.523 is amended by
revising the introductory text and
adding paragraph (e) to read as follows:
rfrederick on PROD1PC67 with RULES4
§ 90.523
Eligibility.
This section implements the
definition of public safety services
contained in 47 U.S.C. 337(f)(1). The
following are eligible to hold
Commission authorizations for systems
operating in the 763–775 MHz and 793–
805 MHz frequency bands:
*
*
*
*
*
(e) The minimum eligibility
requirements for the Public Safety
Broadband Licensee in the 763–768
MHz and 793–798 MHz bands are as
follows:
(1) No commercial interest may be
held in the Public Safety Broadband
Licensee, and no commercial interest
may participate in the management of
the Public Safety Broadband Licensee;
(2) The Public Safety Broadband
Licensee must be a non-profit
organization;
VerDate Aug<31>2005
15:44 Aug 23, 2007
Jkt 211001
(3) The Public Safety Broadband
Licensee must be as broadly
representative of the public safety radio
user community as possible; and
(4) The Public Safety Broadband
Licensee must be in receipt of written
certifications from no less than ten
geographically diverse state and local
governmental entities (the authorizing
entities), with at least one certification
from a state government entity and one
from a local government entity,
verifying that—
(i) They have authorized the Public
Safety Broadband Licensee to use
spectrum at 763–768 MHz and 793–798
MHz to provide the authorizing entities
with public safety services; and
(ii) The authorizing entities’ primary
mission is the provision of public safety
services.
I 44. Revise § 90.525 to read as follows:
§ 90.525 Administration of interoperability
channels.
(a) States are responsible for
administration of the Interoperability
channels in the 769–775 MHz and 799–
805 MHz frequency bands. Base and
control stations must be licensed
individually. A public safety entity
meeting the requirements of § 90.523
may operate mobile or portable units on
the Interoperability channels in the
769–775 MHz and 799–805 MHz
frequency bands without a specific
authorization from the Commission
provided it holds a part 90 license. All
persons operating mobile or portable
units under this authority are
responsible for compliance with part 90
of these rules and other applicable
federal laws.
(b) License applications for
Interoperability channels in the 769–775
MHz and 799–805 MHz frequency
bands must be approved by a state-level
agency or organization responsible for
administering state emergency
communications. States may hold the
licenses for Interoperability channels or
approve other qualified entities to hold
such licenses. States may delegate the
approval process for interoperability
channels to another entity, such as
regional planning committees.
I 45. Add § 90.528 to subpart R to read
as follows:
§ 90.528
Public Safety Broadband License.
(a) The 763–768/793–798 MHz bands
are allocated on a nationwide basis for
public safety broadband operations and
licensed to a single Public Safety
Broadband Licensee. The 768–769/798–
799 MHz bands also are licensed to the
Public Safety Broadband Licensees as
guard bands. The license area of the
Public Safety Broadband License
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Frm 00048
Fmt 4701
Sfmt 4700
consists of the contiguous 48 states,
Alaska, Hawaii, Gulf of Mexico, and the
U.S. territories.
(b) The Public Safety Broadband
License authorizes construction and
operation of base stations anywhere
within the area authorized by the
license, except as follows:
(1) A station is required to be
individually licensed if:
(i) International agreements require
coordination;
(ii) Submission of an environmental
assessment is required under § 1.1307 of
this chapter; or
(iii) The station would affect areas
identified in § 1.924 of this chapter.
(2) Any antenna structure that
requires notification to the Federal
Aviation Administration (FAA) must be
registered with the Commission prior to
construction under § 17.4 of this
chapter.
(c) Mobile and portable devices may
operate without individual license
under the authority of the Public Safety
Broadband License.
(d) The term of the Public Safety
Broadband License shall not exceed ten
years from February 17, 2009. The
Public Safety Broadband Licensee is
entitled to a renewal expectancy barring
violations of law, rules or policy
warranting denial of renewal.
(e) The Public Safety Broadband
License may not be partitioned or
disaggregated.
(f) The Public Safety Broadband
Licensee may not voluntarily assign or
transfer control of the Public Safety
Broadband License.
(g) Quarterly reporting of financial
and operational information. The Public
Safety Broadband Licensee shall submit,
on a quarterly basis, a full financial
accounting to the Commission, in a
format to be set forth in the Network
Sharing Agreement, and as approved by
the Commission. Such quarterly
financial reports shall be filed with the
Commission, with a copy to the Chiefs
of the Wireless Telecommunications
and the Public Safety and Homeland
Security Bureaus.
I 46. Amend § 90.531 as follows:
I a. Revise the introductory text to the
section.
I b. Revise paragraph (a), (b)
introductory text, and the table that
follows.
I c. Remove and reserve paragraphs (c)
and (d)(2).
I d. Revise paragraph (e).
I e. Add paragraphs (f) and (g).
§ 90.531
Band plan.
This section sets forth the band plan
for the 763–775 MHz and 793–805 MHz
public safety bands.
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(a) Base and mobile use. The 763–775
MHz band may be used for base, mobile
or fixed (repeater) transmissions. The
793–805 MHz band may be used only
for mobile or fixed (control)
transmissions.
(b) Narrowband segments. There are
two band segments that are designated
for use with narrowband emissions.
Each of these narrowband segments is
divided into 960 channels having a
channel size of 6.25 kHz as follows:
§ 90.535 Modulation and spectrum usage
efficiency requirements.
between the government of the United
States and the government of Canada or
the government of the United States and
the government of Mexico, as
applicable, regarding non-broadcast use
of the 763–775 MHz and 793–805 MHz
bands.
I 48. Section 90.535 is amended by
revising the introductory text and
paragraph (a) to read as follows:
§ 90.542
limits.
rfrederick on PROD1PC67 with RULES4
Transmitters designed to operate in
769–775 MHz and 799–805 MHz
frequency bands must meet the
following modulation standards:
(a) All transmitters in the 769–775
MHz and 799–805 MHz frequency
bands must use digital modulation.
Mobile and portable transmitters may
have analog modulation capability only
as a secondary mode in addition to its
primary digital mode. Mobile and
Frequency range
Channel Nos. portable transmitters that only operate
on the low power channels designated
769–775 MHz .......................
1–960 in §§ 90.531(b)(3), 90.531(b)(4), are
799–805 MHz .......................
961–1920
exempt from this digital modulation
requirement.
*
*
*
*
*
*
*
*
*
*
(f) Internal guard band. The internal
I 49. Section 90.537 is amended by
guard band (768–769/798–799 MHz) is
revising paragraph (a) to read as follows:
reserved.
(g) Broadband. The 763–768 MHz and
§ 90.537 Trunking requirement.
793–798 MHz bands are allocated for
(a) General use channels. All systems
broadband communications pursuant to
using six or more narrowband channels
the Public Safety Broadband License.
in the 769–775 MHz and 799–805 MHz
I 47. Section 90.533 is amended by
frequency bands must be trunked
revising the introductory text and
paragraphs (a) and (c) to read as follows: systems, except for those described in
paragraph (b) of this section.
§ 90.533 Transmitting sites near the U.S./
*
*
*
*
*
Canada or U.S./Mexico border.
I 50. Section 90.539 is amended by
This section applies to each license to revising the introductory text to read as
operate one or more public safety
follows:
transmitters in the 763–775 MHz and
§ 90.539 Frequency stability.
793–805 MHz bands, at a location or
locations North of Line A (see § 90.7) or
Transmitters designed to operate in
within 120 kilometers (75 miles) of the
769–775 MHz and 799–805 MHz
U.S.-Mexico border, until such time as
frequency bands must meet the
agreements between the government of
frequency stability requirements in this
the United States and the government of section.
Canada or the government of the United *
*
*
*
*
States and the government of Mexico, as
I 51. Section 90.541 is amended by
applicable, become effective governing
revising the introductory text to read as
border area non-broadcast use of these
follows:
bands. Public safety licenses are granted
subject to the following conditions:
§ 90.541 Transmitting power limits.
(a) Public safety transmitters
The transmitting power of base,
operating in the 763–775 MHz and 793– mobile, portable and control stations
805 MHz bands must conform to the
operating in the 769–775 MHz and 799–
limitations on interference to Canadian
805 MHz frequency bands must not
television stations contained in
exceed the maximum limits in this
agreement(s) between the United States
section, and must also comply with any
and Canada for use of television
applicable effective radiated power
channels in the border area.
limits in § 90.545.
*
*
*
*
*
*
*
*
*
*
(c) Conditions may be added during
I 52. Add § 90.542 to subpart R to read
the term of the license, if required by
as follows:
the terms of international agreements
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Jkt 211001
Broadband transmitting power
(a) The following power limits apply
to the 763–768/793–798 MHz band:
(1) Fixed and base stations
transmitting a signal in the 763–768
MHz band with an emission bandwidth
of 1 MHz or less must not exceed an
ERP of 1000 watts and an antenna
height of 305 m HAAT, except that
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Sfmt 4700
48861
antenna heights greater than 305 m
HAAT are permitted if power levels are
reduced below 1000 watts ERP in
accordance with Table 1 of this section.
(2) Fixed and base stations located in
a county with population density of 100
or fewer persons per square mile, based
upon the most recently available
population statistics from the Bureau of
the Census, and transmitting a signal in
the 763–768 MHz band with an
emission bandwidth of 1 MHz or less
must not exceed an ERP of 2000 watts
and an antenna height of 305 m HAAT,
except that antenna heights greater than
305 m HAAT are permitted if power
levels are reduced below 2000 watts
ERP in accordance with Table 2 of this
section.
(3) Fixed and base stations
transmitting a signal in the 763–768
MHz band with an emission bandwidth
greater than 1 MHz must not exceed an
ERP of 1000 watts/MHz and an antenna
height of 305 m HAAT, except that
antenna heights greater than 305 m
HAAT are permitted if power levels are
reduced below 1000 watts/MHz ERP
accordance with Table 3 of this section.
(4) Fixed and base stations located in
a county with population density of 100
or fewer persons per square mile, based
upon the most recently available
population statistics from the Bureau of
the Census, and transmitting a signal in
the 763–768 MHz band with an
emission bandwidth greater than 1 MHz
must not exceed an ERP of 2000 watts/
MHz and an antenna height of 305 m
HAAT, except that antenna heights
greater than 305 m HAAT are permitted
if power levels are reduced below 2000
watts/MHz ERP in accordance with
Table 4 of this section.
(5) Licensees of fixed or base stations
transmitting a signal in the 763–768
MHz band at an ERP greater than 1000
watts must comply with the provisions
set forth in paragraph (b) of this section.
(6) Control stations and mobile
stations transmitting in the 763–768
MHz band and the 793–798 MHz band
are limited to 30 watts ERP.
(7) Portable stations (hand-held
devices) transmitting in the 763–768
MHz band and the 793–798 MHz band
are limited to 3 watts ERP.
(8) For transmissions in the 763–768
MHz and 793–798 MHz bands, licensees
may employ equipment operating in
compliance with either of the following
measurement techniques:
(i) The maximum composite transmit
power shall be measured over any
interval of continuous transmission
using instrumentation calibrated in
terms of RMS-equivalent voltage. The
measurement results shall be properly
adjusted for any instrument limitations,
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such as detector response times, limited
resolution bandwidth capability when
compared to the emission bandwidth,
etc., so as to obtain a true maximum
composite measurement for the
emission in question over the full
bandwidth of the channel.
(ii) A Commission-approved average
power technique.
TABLE 1 TO § 90.542(A).—PERMISSIBLE
POWER
AND
ANTENNA
HEIGHTS FOR BASE AND FIXED STATIONS IN THE 763–768 MHZ BAND
TRANSMITTING A SIGNAL WITH AN
EMISSION BANDWIDTH OF 1 MHZ OR
LESS
Antenna height (AAT) in meters
(feet)
Effective radiated power
(ERP)
(watts)
Above 1372 (4500) ...............
Above 1220 (4000) To 1372
(4500) ................................
Above 1067 (3500) To 1220
(4000) ................................
Above 915 (3000) To 1067
(3500) ................................
Above 763 (2500) To 915
(3000) ................................
Above 610 (2000) To 763
(2500) ................................
Above 458 (1500) To 610
(2000) ................................
Above 305 (1000) To 458
(1500) ................................
Up to 305 (1000) ..................
65
70
75
100
140
200
350
600
1000
TABLE 2 TO § 90.542(A).—PERMISSIBLE
POWER
AND
ANTENNA
HEIGHTS FOR BASE AND FIXED STATIONS IN THE 763–768 MHZ BAND
TRANSMITTING A SIGNAL WITH AN
EMISSION BANDWIDTH OF 1 MHZ OR
LESS
rfrederick on PROD1PC67 with RULES4
Antenna height (AAT) in meters
(feet)
Effective radiated power
(ERP)
(watts)
Above 1372 (4500) ...............
Above 1220 (4000) To 1372
(4500) ................................
Above 1067 (3500) To 1220
(4000) ................................
Above 915 (3000) To 1067
(3500) ................................
Above 763 (2500) To 915
(3000) ................................
Above 610 (2000) To 763
(2500) ................................
Above 458 (1500) To 610
(2000) ................................
Above 305 (1000) To 458
(1500) ................................
Up to 305 (1000) ..................
130
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15:44 Aug 23, 2007
140
150
200
280
400
700
1200
2000
Jkt 211001
km from the base of the antenna
mounting structure.
I 53. Amended § 90.543 as follows:
I a. Revise the introductory text.
I b. Amend paragraph (a) by removing
the tables titled ‘‘150 kHz Mobile
Transmitter ACP Requirements’’ and
‘‘150 kHz Base Transmitter ACP
Requirements’’.
Effective radi- I c. Revise paragraph (b)(1).
ated power
I d. Redesignate paragraphs (e) and (f)
(ERP) per
as paragraphs (f) and (g).
MHz
I e. Add a new paragraph (e).
(watts/MHz)
I f. Revise newly redesignated
65 paragraphs (f) and (g).
TABLE 3 TO § 90.542(A).—PERMISSIBLE
POWER
AND
ANTENNA
HEIGHTS FOR BASE AND FIXED STATIONS IN THE 763–768 MHZ BAND
TRANSMITTING A SIGNAL WITH AN
EMISSION BANDWIDTH GREATER
THAN 1 MHZ
Antenna height (AAT) in meters
(feet)
Above 1372 (4500) ...............
Above 1220 (4000) To 1372
(4500) ................................
Above 1067 (3500) To 1220
(4000) ................................
Above 915 (3000) To 1067
(3500) ................................
Above 763 (2500) To 915
(3000) ................................
Above 610 (2000) To 763
(2500) ................................
Above 458 (1500) To 610
(2000) ................................
Above 305 (1000) To 458
(1500) ................................
Up to 305 (1000) ..................
70
75
100
140
200
350
600
1000
TABLE 4 TO § 90.542(A).—PERMISSIBLE
POWER
AND
ANTENNA
HEIGHTS FOR BASE AND FIXED STATIONS IN THE 763–768 MHZ BAND
TRANSMITTING A SIGNAL WITH AN
EMISSION BANDWIDTH GREATER
THAN 1 MHZ
Antenna height (AAT) in meters
(feet)
Effective radiated power
(ERP) per
MHz
(watts/MHz)
Above 1372 (4500) ...............
Above 1220 (4000) To 1372
(4500) ................................
Above 1067 (3500) To 1220
(4000) ................................
Above 915 (3000) To 1067
(3500) ................................
Above 763 (2500) To 915
(3000) ................................
Above 610 (2000) To 763
(2500) ................................
Above 458 (1500) To 610
(2000) ................................
Above 305 (1000) To 458
(1500) ................................
Up to 305 (1000) ..................
130
140
150
200
280
400
700
1200
2000
(b) For base and fixed stations
operating in the 763–768 MHz band in
accordance with the provisions of
paragraph (a)(5) of this section, the
power flux density that would be
produced by such stations through a
combination of antenna height and
vertical gain pattern must not exceed
3000 microwatts per square meter on
the ground over the area extending to 1
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§ 90.543
Emission limitations.
Transmitters designed to operate in
769–775 MHz and 799–805 MHz
frequency bands must meet the
emission limitations in paragraphs (a)
through (d) of this section. Transmitters
operating in 763–768 MHz and 793–798
MHz bands must meet the emission
limitations in (e) of this section.
*
*
*
*
*
(b) * * *
(1) Setting reference level. Set
transmitter to maximum output power.
Using a spectrum analyzer capable of
ACP measurements, set the
measurement bandwidth to the channel
size. For example, for a 6.25 kHz
transmitter set the measurement
bandwidth to 6.25 kHz. Set the
frequency offset of the measurement
bandwidth to zero and adjust the center
frequency of the instrument to the
assigned center frequency to measure
the average power level of the
transmitter. Record this power level in
dBm as the ‘‘reference power level.’’
*
*
*
*
*
(e) For operations in the 763–768
MHz and the 793–798 MHz bands, the
power of any emission outside the
licensee’s frequency band(s) of
operation shall be attenuated below the
transmitter power (P) within the
licensed band(s) of operation, measured
in watts, in accordance with the
following:
(1) On all frequencies between 769–
775 MHz and 799–805 MHz, by a factor
not less than 76 + 10 log (P) dB in a 6.25
kHz band segment, for base and fixed
stations.
(2) On all frequencies between 769–
775 MHz and 799–805 MHz, by a factor
not less than 65 + 10 log (P) dB in a 6.25
kHz band segment, for mobile and
portable stations.
(3) Compliance with the provisions of
paragraphs (e)(1) and (2) of this section
is based on the use of measurement
instrumentation such that the reading
taken with any resolution bandwidth
setting should be adjusted to indicate
spectral energy in a 6.25 kHz segment.
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(f) For operations in the 763–775 MHz
and 793–805 MHz bands, all emissions
including harmonics in the band 1559–
1610 MHz shall be limited to -70 dBW/
MHz equivalent isotropically radiated
power (EIRP) for wideband signals, and
-80 dBW EIRP for discrete emissions of
less than 700 Hz bandwidth. For the
purpose of equipment authorization, a
transmitter shall be tested with an
antenna that is representative of the
type that will be used with the
equipment in normal operation.
(g) When an emission outside of the
authorized bandwidth causes harmful
interference, the Commission may, at its
discretion, require greater attenuation
than specified in this section.
54. Section 90.547 is amended by
revising paragraph (a) introductory text
to read as follows:
I
§ 90.547 Narrowband interoperability
channel capability requirement.
(a) Except as noted in this section,
mobile and portable transmitters
operating on narrowband channels in
the 769–775 MHz and 799–805 MHz
frequency bands must be capable of
operating on all of the designated
nationwide narrowband Interoperability
channels pursuant to the standards
specified in this part.
*
*
*
*
*
55. Section 90.548 is amended by
revising paragraph (a) introductory text
to read as follows:
I
§ 90.548 Interoperability technical
standards.
(a) Transmitters operating on those
narrowband channels in the 769–775
and 799–805 MHz band designated for
interoperability (see § 90.531) shall
conform to the following technical
standards:
*
*
*
*
*
56. Section 90.551 is revised to read
as follows:
I
rfrederick on PROD1PC67 with RULES4
§ 90.551
Construction requirements.
Each station authorized under this
subpart to operate in the 769–775 MHz
and 799–805 MHz frequency bands
must be constructed and placed into
operation within 12 months from the
date of grant of the authorization, except
for State channels. However, licensees
may request a longer construction
period, up to but not exceeding 5 years,
pursuant to § 90.155(b). State channels
are subject to the build-out requirements
in § 90.529.
57. Add subpart AA to part 90 as
follows:
I
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48863
Subpart AA—700 MHz Public/Private
Partnership
allow, with respect to the 700 MHz
Public/Private Partnership.
Sec.
90.1401 Purpose and scope.
90.1403 Public safety broadband license
conditions.
90.1405 Shared wireless broadband
network.
90.1407 Spectrum use in the network.
90.1408 Organization and structure of the
700 MHz public/private partnership.
90.1410 Network sharing agreement.
90.1415 Establishment, execution, and
application of the network sharing
agreement.
90.1420 Failure to comply with the NSA or
the Commission’s rules.
90.1425 Resolution of disputes after grant of
the upper 700 MHz D block license.
90.1430 Local public safety build-out and
operation.
90.1432 Conditions for waiver to allow
limited and temporary wideband
operation in the 700 MHz public safety
spectrum.
90.1435 Prohibition on discontinuance of
public safety operations.
90.1440 Reporting obligations.
§ 90.1403 Public safety broadband license
conditions.
§ 90.1401
Purpose and scope.
The purpose of this subpart, in
conjunction with subpart N of part 27,
is to establish rules and procedures
relating to the 700 MHz Public/Private
Partnership entered between the
winning bidder for the Upper 700 MHz
D Block license, the Upper 700 MHz D
Block licensee, the Network Assets
Holder, the Operating Company, the
Public Safety Broadband Licensee, and
other related entities as the Commission
may require or allow. Pursuant to this
partnership, the Upper 700 MHz D
Block licensee and the Operating
Company will be responsible for
constructing and operating a
nationwide, shared interoperable
wireless broadband network used to
provide a commercial service and a
broadband network service for public
safety entities. The shared network
assets will be held by the Network
Assets Holder, and the Shared Wireless
Broadband Network will operate on
both the commercial spectrum licensed
to the Upper 700 MHz D Block licensee
and the public safety broadband
spectrum licensed to the Public Safety
Broadband Licensee. This subpart of the
part 90 rules sets forth specific
provisions relating to the Public Safety
Broadband License and the Public
Safety Broadband Licensee with respect
to the 700 MHz Public/Private
Partnership. Subpart N of the part 27
rules sets forth related provisions
applicable to the Upper 700 MHz D
Block license, the Upper 700 MHz D
Block licensee and other related entities
as the Commission may require or
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Sfmt 4700
(a) The Public Safety Broadband
Licensee shall comply with all of the
applicable requirements set forth in this
subpart and shall comply with the terms
of the Network Sharing Agreement and
such other agreements as the
Commission may require or allow.
(b) The responsibilities of the Public
Safety Broadband Licensee shall include
the following:
(1) Negotiation of the NSA and such
other agreements as the Commission
may require or allow with the winning
bidder at auction for the Upper 700
MHz D Block license, pursuant to the
requirements set forth in § 90.1410.
(2) General administration of access to
the 763–768 MHz and 793–798 MHz
bands by individual public safety
entities, including assessment of usage
fees and related frequency coordination
duties.
(3) Regular interaction with and
promotion of the needs of the public
safety entities with respect to access and
use of the 763–768 MHz and 793–798
MHz bands, within the technical and
operational confines of the NSA.
(4) Dealings with equipment vendors
on its own or in partnership with the
Upper 700 MHz D Block licensee, as
appropriate, to achieve and pass on the
benefits of economies of scale
concerning network and subscriber
equipment and applications.
(5) Sole authority, which cannot be
waived in the NSA, to approve, in
consultation with the Upper 700 MHz D
Block licensee, equipment and
applications for use by public safety
entities on the public safety broadband
network. State or local entities may seek
review of a decision by the Public Safety
Broadband Licensee not to permit
certain equipment or applications, or
particular specifications for equipment
or applications, from the Chief, Public
Safety and Homeland Security Bureau.
(6) Coordination of stations operating
on 700 MHz public safety broadband
spectrum with 700 MHz public safety
narrowband stations, including
management of the internal public
safety guard band.
(7) Oversight and implementation of
the relocation of narrowband public
safety operations in television channels
63 and 68, and the upper one megahertz
of channels 64 and 69.
(8) Exercise of sole discretion,
pursuant to § 2.103 of this chapter,
whether to permit Federal public safety
agency use of the public safety
broadband spectrum, with any such use
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subject to the terms and conditions of
the NSA.
(9) Review of requests for waiver
submitted by public safety entities to
conduct wideband operations pursuant
to the procedures and restrictions in
connection with such waivers as
described in § 90.1432.
§ 90.1405
network.
Shared wireless broadband
The Shared Wireless Broadband
Network developed by the 700 MHz
Public/Private Partnership must be
designed to meet requirements
associated with a nationwide, public
safety broadband network. At a
minimum, the network must
incorporate the following features:
(a) Design for operation over a
broadband technology platform that
provides mobile voice, video, and data
capability that is seamlessly
interoperable across public safety local
and state agencies, jurisdictions, and
geographic areas, and which includes
current and evolving state-of-the-art
technologies reasonably made available
in the commercial marketplace with
features beneficial to the public safety
community.
(b) Sufficient signal coverage to
ensure reliable operation throughout the
service area consistent with typical
public safety communications systems.
(c) Sufficient robustness to meet the
reliability and performance
requirements of public safety.
(d) Sufficient capacity to meet the
needs of public safety.
(e) Security and encryption consistent
with state-of-the-art technologies.
(f) A mechanism to automatically
prioritize public safety communications
over commercial uses on a real-time
basis consistent with the requirements
of § 90.1407(c).
(g) Operational capabilities consistent
with features and requirements that are
typical of current and evolving state-ofthe-art public safety systems.
(h) Operational control of the network
by the Public Safety Broadband
Licensee to the extent necessary to
ensure that public safety requirements
are met.
rfrederick on PROD1PC67 with RULES4
§ 90.1407
Spectrum use in the network.
(a) Spectrum use. The Shared
Wireless Broadband Network will
operate using spectrum associated with
the Upper 700 MHz D Block license in
the 758–763 MHz and 788–793 MHz
bands and the Public Safety Broadband
License in the adjacent 763–768 MHz
and 793–798 MHz bands.
(b) Access to spectrum in the 763–768
MHz and 793–798 MHz bands. The
Public Safety Broadband Licensee
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15:44 Aug 23, 2007
Jkt 211001
which holds the Public Safety
Broadband License, pursuant to part 90
rules, must lease the spectrum rights
associated with this license, pursuant to
a spectrum manager leasing
arrangement set forth in part 1 subpart
X, to the Upper 700 MHz D Block
licensee and the Operating Company for
the entire remaining term of the Public
Safety Broadband License to effectuate
the 700 MHz Public/Private Partnership.
The Upper 700 MHz D Block licensee
and the Operating Company, are the
only entities that are eligible to lease the
spectrum usage rights associated with
the Public Safety Broadband License to
operate on the 763–768 and 793–798
MHz bands. If the Upper 700 MHz D
Block license is cancelled, this spectrum
leasing arrangement will automatically
terminate.
(c) Commercial operations in the 763–
768 MHz and 793–798 MHz bands.
Commercial operations in the 763–768
MHz and 793–798 MHz bands through
the spectrum manager leasing
arrangement shall not cause harmful
interference to primary users (i.e.,
public safety users) and cannot claim
protection from harmful interference
from the primary public safety
operations in the 763–768 MHz and
793–798 MHz bands. The network
providing commercial operations in the
763–768 MHz and 793–798 MHz bands
through the spectrum manager leasing
arrangement must be designed to
automatically assign priority to public
safety users, to the exclusion and/or
immediate preemption of any
commercial use on a dynamic, real-time
priority basis, and to guarantee that
public safety users suffer no harmful
interference or interruption or
degradation of service due to
commercial operations in the 763–768
MHz and 793–798 MHz bands.
§ 90.1408 Organization and structure of
the 700 MHz public/private partnership.
(a) The Upper 700 MHz D Block
licensee and the Network Assets Holder
and such other related entities as the
Commission may require or allow shall
be formed by the winning bidder of the
Upper 700 MHz D Block license. The
Upper 700 MHz D Block licensee, the
Network Assets Holder, and related
entities as the Commission may require
or allow must be Special Purpose
Bankruptcy Remote Entities formed to
hold the license, to hold the shared
network assets, or for such other
purpose as the Commission may require
or allow. The winning bidder of the
Upper 700 MHz D Block license shall
also form the Operating Company,
which must also be a Special Purpose
Bankruptcy Remote Entity. Upon
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Sfmt 4700
issuance of the Upper 700 MHz D Block
license, the winning bidder will assign
all of its rights and obligations under the
NSA to the Upper 700 MHz D Block
licensee, Network Assets Holder, the
Operating Company, and any other
related entities that the Commission
may require or allow.
(b) The Upper 700 MHz D Block
licensee and other related entities as the
Commission may require or allow shall
have the obligation to build out the
Shared Wireless Broadband Network, as
provided for in the NSA or otherwise as
authorized by the Commission.
§ 90.1410
Network sharing agreement.
The relationship between the Upper
700 MHz D Block licensee, the Public
Safety Broadband Licensee, and related
entities as the Commission may require
or allow will be governed by the
Network Sharing Agreement (NSA) and
such other separate agreements as the
Commission may require or allow that
are negotiated and entered into between
the parties. The NSA must, at a
minimum, include the following terms:
(a) All of the substantive rights and
obligations of the parties relating to the
NSA, as established by the Commission
concerning the 700 MHz Public/Private
Partnership.
(b) Network specifications that
comply with § 27.1305 of this chapter.
(c) The definition of ‘‘emergency’’ for
purposes of emergency priority access.
(d) All service fees to be imposed for
services to public safety, including fees
for normal network service and fees for
priority access to the D Block spectrum
in an emergency.
(e) A detailed build-out schedule
consistent with § 27.1327 of this
chapter, including coverage of major
highways and interstates, as well as
incorporated communities with a
population in excess of 3,000.
(f) The right of the Public Safety
Broadband Licensee to determine and
approve the specifications of public
safety equipment used on the network
and the right to purchase its own
subscriber equipment from any vendor
it chooses, to the extent such
specifications and equipment are
consistent with reasonable network
control requirements established in the
NSA.
(g) The Upper 700 MHz D Block
licensee must offer at least one handset
suitable for public safety use that
includes a seamlessly integrated
satellite solution pursuant to the terms,
conditions, and timeframes set forth in
the NSA.
(h) Any major modification of the
terms of the NSA, related agreements or
documents, or such other agreements as
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the Commission may require or allow
must be submitted to the Commission
for prior approval. All other
modifications must be submitted to the
Chiefs of the Wireless
Telecommunications Bureau and the
Public Safety and Homeland Security
Bureau for prior approval.
(i) The NSA shall require, in a
separate agreement, the granting of an
irrevocable and assignable right of first
refusal to purchase the network assets if
and whenever such assets are otherwise
to be sold and an irrevocable and
assignable option in favor of the Public
Safety Broadband Licensee to purchase
the network and all network assets if
and whenever the Upper 700 MHz D
Block license is cancelled or terminated,
by reason of default or for any other
reason, for a consideration equivalent to
the fair market value of the tangible and
intangible assets sold. This right and
option shall be senior to, and have
priority over, any other right, claim, or
interest in or to the network or the
network assets. The NSA shall also
include a fair market valuation
methodology to determine the fair
market value of the shared wireless
broadband network assets.
(j) The NSA must have a term, not to
exceed 10 years from February 17, 2009,
that coincides with the terms of the
Upper 700 MHz D Block license and the
Public Safety Broadband License.
rfrederick on PROD1PC67 with RULES4
§ 90.1415 Establishment, execution, and
application of the network sharing
agreement.
The following requirements and
processes relate to the establishment,
execution, and application of the NSA:
(a) Approval of NSA as pre-condition
for granting the Upper 700 MHz D Block
License. The Public Safety Broadband
Licensee must negotiate an NSA and
such other agreements as the
Commission may require or allow with
the winning bidder for the Upper 700
MHz D Block license. The NSA and
related agreements or documents must
be approved by the Commission and
then executed by the relevant parties.
Parties to the NSA must also include the
Upper 700 MHz D Block licensee, the
Network Assets Holder, and the
Operating Company, as these entities
are defined in § 90.7.
(b) Requirement of negotiation.
Negotiation of an NSA between the
winning bidder for the Upper 700 MHz
D Block license and the Public Safety
Broadband Licensee must commence by
the date the winning bidder files its long
form application or the date on which
the Commission designates the Public
Safety Broadband Licensee, whichever
is later, and must conclude within six
VerDate Aug<31>2005
15:44 Aug 23, 2007
Jkt 211001
months of that date. Parties to this
negotiation are required to negotiate in
good faith. Two members of the
Commission staff, one from the Wireless
Telecommunications Bureau and one
from the Public Safety and Homeland
Security Bureau, shall be present at all
stages of the negotiation as neutral
observers.
(c) Reporting requirements. Beginning
three months from the triggering of the
six-month negotiation period, the Public
Safety Broadband Licensee and the
winning bidder for the Upper 700 MHz
D Block license must jointly provide
detailed reports, on a monthly basis and
subject to a request for confidential
treatment, on the progress of the
negotiations throughout the remainder
of the negotiations. These reports must
include descriptions of all material
issues that the parties have yet to
resolve.
(d) Submission of final agreement. As
soon as the parties have reached an
agreement on all the terms of the NSA,
related agreements or documents, and
such other agreements as the
Commission may require or allow but
not later than five business days after
the six-month period for negotiation has
expired, they must submit the NSA
together with all agreements and related
documents referenced in the NSA, for
review and approval by the full
Commission. The Commission will act
on the NSA within 60 days of receipt.
The Commission may approve the NSA
in its entirety, approve with
modifications, or require the parties to
address additional terms or re-draft
existing terms within a specified
timeframe. After the NSA is approved,
the parties must execute the NSA and
such other agreements as the
Commission may require or allow and
submit executed copies to the
Commission within 10 business days of
approval.
(e) Submission of disputed issues. If
the parties have not reached agreement
on all terms of the NSA and related
agreements by the end of the six-month
period, they must notify the
Commission not later than five business
days after the expiration of the sixmonth period of the terms on which
they have agreed, the nature of the
remaining issues, each party’s position
on each issue, whether additional
negotiation is likely to produce an
agreement, and, if so, a proposed
deadline for reaching agreement on the
NSA. Authority is delegated jointly to
the Chiefs of the Wireless
Telecommunications Bureau and the
Public Safety and Homeland Security
Bureau to resolve any remaining
disputes.
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48865
(f) Resolution of disputes. Actions to
resolve disputes may include, but are
not limited to:
(1) Granting additional time for
negotiation;
(2) Issuing a decision on the disputed
issues and requiring the submission of
a draft agreement consistent with the
decision;
(3) Directing the parties to further
brief the remaining issues in full for
immediate Commission decision; and/or
(4) Immediate denial of the long-form
application filed by the winning bidder
for the Upper 700 MHz D Block license.
(g) Default by winning bidder for
Upper 700 MHz D Block license. If the
winning bidder for the Upper 700 MHz
D Block fails to comply with negotiation
or dispute resolution requirements or
fails to execute a Commission-approved
NSA, its long form application will be
denied. If the long form application of
the winning bidder of the Upper 700
MHz D Block license is denied for any
reason, including as a consequence of
an action taken pursuant to paragraphs
(e) and (f) of this section, it will be
deemed to have defaulted under
§ 1.2109(c) of this chapter and will be
liable for the default payment specified
in § 1.2104(g) of this chapter.
§ 90.1420 Failure to comply with the NSA
or the Commission’s rules.
(a) Failure to comply with the
Commission’s rules or the terms of the
NSA may warrant cancelling the Public
Safety Broadband License. The potential
remedies also include, but are not
limited to, assigning the license to
another entity, directing the Public
Safety Broadband Licensee to transfer
the assignable right to purchase the
assets at fair market value, ordering
specific performance, or ordering
removal and replacement of individual
officers, directors or member
organizations of the Public Safety
Broadband Licensee.
(b) If the Commission cancels or
terminates the Upper 700 MHz D Block
license, a fair market valuation of the
shared wireless broadband network
assets shall be performed immediately,
pursuant to the fair market valuation
methodology set forth in the NSA. In the
event that the Upper 700 MHz D Block
license is awarded to a new entity, the
Public Safety Broadband Licensee’s
option to purchase the network and all
network assets if and whenever the
Upper 700 MHz D Block license is
cancelled or terminated and its right of
first refusal to purchase the network
assets if and whenever such assets are
otherwise to be sold shall be assigned to
the new Upper 700 MHz D Block
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licensee and the new Network Assets
Holder.
§ 90.1425 Resolution of disputes after
grant of the upper 700 MHz D block license.
(a) The Public Safety Broadband
Licensee, the Operating Company, the
Network Assets Holder, and the Upper
700 MHz D Block licensee may at any
time bring a complaint to the
Commission based on a claim that
another party to the NSA has deviated
from the terms of the NSA, or a petition
for a declaratory ruling to resolve the
proper interpretation of an NSA term or
provision. The Commission also may at
any time, on its own motion, determine
to address any material breach or
interpret any NSA term or provision.
(b) The Commission shall have
primary responsibility and jurisdiction
for adjudicating disputes that arise
following execution of the NSA. The
Commission may, however, require the
parties to first seek a settlement to the
dispute or authorize the parties to
resolve the dispute through litigation or
other means. Breach of license terms,
the NSA, or the Commission’s rules may
result in cancellation of the Public
Safety Broadband License, the Upper
700 MHz D Block license, or both.
(c) The Chiefs of the Public Safety and
Homeland Security Bureau and the
Wireless Telecommunications Bureau
are delegated joint responsibility for
adjudicating disputes.
rfrederick on PROD1PC67 with RULES4
§ 90.1430 Local public safety build-out and
operation.
(a) The Upper 700 MHz D Block
licensee and the Operating Company
through its lease arrangements shall,
except in the two limited circumstances
set forth herein, have the exclusive right
to build and operate the Shared
Wireless Broadband Network.
(b) Rights to early build-out in areas
with a build-out commitment. In an area
where the Upper 700 MHz D Block
licensee has committed, in the NSA, to
build out by a certain date, a public
safety entity may, with the pre-approval
of the Public Safety Broadband Licensee
and subject to the requirements set forth
herein, construct a broadband network
in that area at its own expense so long
as the network is capable of operating
on the Shared Wireless Broadband
Network and meets all the requirements
and specifications of the network
required under the NSA.
(1) Options for early build-out in
areas with a build-out commitment. In
order to obtain authorization to
construct a broadband network as set
forth in paragraph (b) of this section, the
requesting public safety entity must
agree to one of the following:
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Jkt 211001
(i) To, on its own, or through the
Public Safety Broadband Licensee acting
on its behalf, construct the network at
its own expense, and upon completion
of construction, transfer the network to
the Upper 700 MHz D Block licensee,
which shall then integrate that network
into the Shared Wireless Broadband
Network constructed pursuant to the
NSA; or
(ii) To, in agreement with the Upper
700 MHz D Block licensee, provide all
funds necessary for the Upper 700 MHz
D Block licensee to complete the early
construction of the network, including
any and all additional resource and
personnel costs, allowing the Upper 700
MHz D Block licensee at all times to
own, operate, and manage the network
as an integrated part of the Shared
Wireless Broadband Network.
(2) Negotiation of amendment to NSA.
Under either early build out option set
forth in paragraph (b)(1) of this section,
the Public Safety Broadband Licensee,
the Upper 700 MHz D Block licensee,
and the public safety entity must, prior
to any construction, negotiate an
amendment to the NSA regarding this
part of the network, specifying
ownership rights, fees, and other terms,
which may be distinct from the
analogous terms governing the Shared
Wireless Broadband Network, and such
amendment must be approved by the
Commission.
(i) Such amendment must provide the
terms under which the Upper 700 MHz
D Block licensee shall receive full
ownership rights and shall compensate
the public safety entity (or the Public
Safety Broadband Licensee, where
appropriate) for the construction of the
network; and shall, absent agreement to
the contrary, provide for such transfer
and compensation to occur prior to the
scheduled build out date for such
network in the NSA.
(ii) Any right to compensation from
the Upper 700 MHz D Block licensee
related to such early build-out shall be
limited to the cost that would have been
incurred had the Upper 700 MHz D
Block licensee constructed the network
itself in accordance with the original
terms and specifications of the NSA, as
reasonably determined by the parties
and negotiated as part of the required
NSA amendment required in paragraph
(b)(2) of this section. Such costs shall
not include costs attributable solely to
advancing the date of construction or
otherwise expediting the construction
process.
(3) Operations. The public safety
entity may not commence operations on
the network until ownership of the
network has been transferred to the
Upper 700 MHz D Block licensee.
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Further, no operations shall be allowed
except those authorized and conducted
pursuant to the authority of the Public
Safety Broadband Licensee.
(4) Attribution of early build-out to
national benchmarks. Upon completion
of construction, transfer of ownership to
the Upper 700 MHz D Block licensee,
and compensation as required herein, if
applicable, the Upper 700 MHz D Block
licensee may include the network
constructed pursuant to the early buildout provisions herein for purposes of
determining whether it has met its
national build-out benchmarks and the
build-out requirements of the NSA.
(5) Rights to build out and operate in
areas without a build-out commitment.
In areas for which the NSA does not
require the Upper 700 MHz D Block
licensee to build out the Shared
Wireless Broadband Network, a public
safety entity may build out and operate
a separate, exclusive network in the 700
MHz public safety broadband spectrum
at any time, provided the public safety
entity has received the written approval
of the Public Safety Broadband Licensee
and operates its independent network
pursuant to a spectrum leasing
arrangement into which the public
safety entity has entered with the Public
Safety Broadband Licensee.
(i) Such leasing arrangement shall not
require the approval or consent of the
Upper 700 MHz D Block licensee;
however, the Public Safety Broadband
Licensee must provide the Upper 700
MHz D Block licensee with notice of the
public safety entity’s intent to construct
in that area within 30 days of receipt of
a request from a public safety entity
seeking to exercise this option, and shall
inform the Upper 700 MHz D Block
licensee of the public safety entity’s
anticipated build-out date(s).
(ii) Should the Upper 700 MHz D
Block licensee, within 30 calendar days
from receipt of notice of the public
safety entity’s intent to construct in that
area, certify in writing to the Public
Safety Broadband Licensee that it will
build out the shared network in the area
within a reasonable time of the
anticipated build-out date(s), as
determined by the Public Safety
Broadband Licensee, the Public Safety
Broadband Licensee shall not allow the
public safety entity to build and operate
its own separate exclusive network in
that area, provided that the Upper 700
MHz D Block licensee and the Public
Safety Broadband Licensee execute an
amendment to the NSA indicating the
Upper 700 MHz D Block licensee’s
commitment to build the network in
that area. Such commitment shall
become enforceable against the Upper
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Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules and Regulations
700 MHz D Block licensee as part of its
overall build-out requirements.
(iii) If the Upper 700 MHz D Block
licensee does not exercise its option to
commit to build out the network in the
requested area within 30 calendar days
of receipt of notice of the public safety
entity’s intent to construct in such area,
the Public Safety Broadband Licensee
and the public safety entity may
proceed with a spectrum leasing
arrangement, which must be filed with
and approved by the Commission prior
to the public safety entity commencing
any operations. The spectrum leasing
arrangement must take the form of a
spectrum manager leasing arrangement
under the rules specified in § 1.9020 of
this chapter, and incorporate the
following conditions:
(A) The network must provide
broadband operations;
(B) The network must be fully
interoperable with the Shared Wireless
Broadband Network;
(C) The network must be available for
use by any public safety entity in the
area;
(D) The network must satisfy any
other terms or conditions required by
the Public Safety Broadband Licensee;
and
(E) The public safety entity must
construct and place into operation its
network within one year of the effective
date of the spectrum manager leasing
arrangement. If the public safety entity
fails to place the network into operation
within one year, the Public Safety
Broadband Licensee shall terminate the
spectrum leasing arrangement pursuant
to § 1.9020(h)(3) of this chapter. The
public safety entity may also seek
extended implementation authority
from the Commission pursuant to the
requirements of § 90.629.
(6) Except as set forth herein, the
separate network is not required to meet
the other specifications of the Shared
Wireless Broadband Network. Absent
agreement of the public safety entity,
the Public Safety Broadband Licensee,
and the Upper 700 MHz D Block
licensee, the separate network may not
operate using any spectrum associated
with the Upper 700 MHz D Block
license.
(7) The Public Safety Broadband
Licensee must file with the Commission
any spectrum manager leasing
arrangement as specified in § 1.9020(e)
of this chapter; such filing shall identify
the public safety entity leasing the
spectrum, the particular areas of
spectrum leased as part of this build-out
option, and the specific network
infrastructure and equipment deployed
on such leased spectrum.
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Jkt 211001
§ 90.1432 Conditions for waiver to allow
limited and temporary wideband operations
in the 700 MHz public safety spectrum.
(a) Wideband operations in the 700
MHz Public Safety spectrum. Wideband
operations are prohibited in the public
safety allocation of the 700 MHz band
public safety spectrum except where the
Commission has granted a waiver
pursuant to §§ 1.3 and 1.925 of this
chapter and subject to the additional
conditions and requirements specified
in this section. Grants of waiver are
restricted to the deployment of a
wideband system in the consolidated
narrowband portion or the internal
public safety guard band portion of the
public safety broadband spectrum.
Where spectrum in the narrowband
segment or internal guard band segment
is unavailable for wideband operations,
public safety entities may request a
waiver to operate in the upper 1.25
megahertz of the public safety
broadband spectrum.
(b) Any public safety entity seeking to
conduct wideband operations within
the public safety allocation must file a
request for waiver that is accompanied
by an application for authorization and
includes the following information:
(1) A letter from the Public Safety
Broadband Licensee, confirming that the
proposed wideband deployment is not
inconsistent with the broadband
deployment plan for the affected or
adjacent service areas; and
(2) A description of the conditions or
transition requirements, if any, agreed to
between the applicant and the Public
Safety Broadband Licensee.
(c) Additional requirement for
wideband operations in the narrowband
segment and Internal Guard Band. If an
applicant seeks permission to deploy
wideband systems in the narrowband
segment, its waiver request must also
include a letter from the appropriate
regional planning committee or state
licensee confirming that the proposed
wideband deployment will not disrupt
any regional or state planning efforts
that are underway.
(d) Additional requirements and
conditions for wideband operations in
the broadband segment. Permission to
conduct wideband operations in the
broadband segment will be granted only
where spectrum in the narrowband
segment or the internal guard band is
unavailable for wideband operations. In
no event will permission be granted to
conduct wideband operations in
geographic areas scheduled for
broadband deployment within the first
three years of the build-out plan for the
Shared Wireless Broadband Network.
(1) An applicant seeking permission
to deploy wideband systems in the
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Frm 00055
Fmt 4701
Sfmt 4700
48867
broadband segment must have first
issued a request for proposal (RFP) that
permitted interested parties to submit
broadband proposals that are
technically consistent with the Shared
Wireless Broadband Network.
(2) A request for waiver that seeks
permission to deploy wideband systems
in the broadband segment must include
the following information:
(i) A substantially supported, detailed
technical showing demonstrating that
insufficient spectrum in the narrowband
segment or the internal guard band is
available to support the desired
wideband operations;
(ii) A showing that rejected responses
to the required broadband network RFP
were more costly, provided less
coverage as measured by throughput at
the network edge, or were otherwise
inferior to the accepted wideband
proposal; and
(iii) A detailed plan for integration of
such wideband system into the Shared
Wireless Broadband Network. This plan
must specify how and by what date the
wideband applicant will integrate its
proposed wideband system into Shared
Wireless Broadband Network and must
include a certification that the public
safety entity will not seek
reimbursement for any costs involved in
converting the wideband system to
Shared Wireless Broadband Network
upon completion of that network in the
applicant’s geographic area.
(3) Authority to conduct wideband
operations in the broadband segment of
the public safety spectrum will be
subject to the following conditions:
(i) All devices operating on the
wideband system must be designed to
interoperate with Shared Wireless
Broadband Network;
(ii) All waivers will expire
automatically upon the Upper 700 MHz
D Block licensee’s initiation of service
in the service area covered by such
waiver.
(e) Secondary status of wideband
operations. All wideband operations
permitted under this section shall be
secondary to the authorized narrowband
or broadband applications, as
applicable.
(f) License terms for wideband
operations. Any secondary license to
conduct wideband operations in the
public safety spectrum shall have a term
of no more than five years.
(g) Renewal of wideband
authorization. Any request for renewal
of an initial authorization to conduct
wideband operations shall be filed not
less than 180 days prior to expiration of
the license. All renewal requests must
include a showing that continued
operation of the wideband system is in
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rfrederick on PROD1PC67 with RULES4
the public interest and must be
accompanied by a letter from the Public
Safety Broadband Licensee confirming
that continuing wideband operations are
not inconsistent with the broadband
deployment plan for the affected or
adjacent service areas. The license term
for any renewal of a license granted
under the waiver provisions herein shall
not exceed three years. No more than
one license renewal will be granted.
(h) Grandfathered wideband STA
operations. Upon request, the Public
Safety and Homeland Security Bureau
may grant a public safety entity that has
constructed, deployed, and was
operating a wideband system as of July
31, 2007 pursuant to STA to extend the
STA grant for periods of no more than
180 days until, but not later than, six
months following the selection of the
Public Safety Broadband Licensee.
VerDate Aug<31>2005
15:44 Aug 23, 2007
Jkt 211001
§ 90.1435 Prohibition on discontinuance of
public safety operations.
The Upper 700 MHz D Block licensee,
the Operating Company, and the
Network Assets Holder are prohibited
from discontinuing or degrading the
broadband network service provided to
the Public Safety Broadband Licensee or
to public safety entities unless either at
the request of the entity or entities in
question or it has first obtained the
approval of the Commission. The Upper
700 MHz D Block licensee shall notify
the affected public safety entity or
entities and the Public Safety
Broadband Licensee at least 30 days
prior to any unrequested discontinuance
or degradation of network service.
§ 90.1440
Reporting obligations.
(a) The Upper 700 MHz D Block
licensee and the Public Safety
Broadband Licensee shall jointly file
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Frm 00056
Fmt 4701
Sfmt 4700
quarterly reports with the Commission.
These reports shall include audited
financial statements, how the specific
requirements of public safety are being
met, detailed information on the areas
where broadband service has been
deployed, which public safety entities
are using the broadband network in
each area of operation, what types of
applications are in use in each area of
operation, and the number of declared
emergencies in each area of operation.
(b) The Public Safety Broadband
Licensee and the Upper 700 MHz D
Block licensee have joint responsibility
to register the base station locations
with the Commission, providing basic
technical information, including
geographic location.
[FR Doc. 07–4123 Filed 8–23–07; 8:45 am]
BILLING CODE 6712–01–P
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]]>Agencies
[Federal Register Volume 72, Number 164 (Friday, August 24, 2007)]
[Rules and Regulations]
[Pages 48814-48868]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-4123]
[[Page 48813]]
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Part VI
Federal Communications Commission
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47 CFR Parts 0, 1, 2, 27 and 90
Service Rules for the 698-806 MHz Band, Revision of the Commission's
Rules Regarding Public Safety Spectrum Requirements, and a Declaratory
Ruling on Reporting Requirement under the Commission's Anti-Collusion
Rule; Final Rule
Federal Register / Vol. 72, No. 164 / Friday, August 24, 2007 / Rules
and Regulations
[[Page 48814]]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 0, 1, 2, 27, and 90
[WT Docket No. 06-150; CC Docket No. 94-102, WT Docket No. 01-309, WT
Docket No. 03-264, WT Docket No. 06-169; PS Docket No. 06-229; WT
Docket No. 96-86; WT Docket No. 07-166; FCC No. 07-132]
Service Rules for the 698-806 MHz Band, Revision of the
Commission's Rules Regarding Public Safety Spectrum Requirements, and a
Declaratory Ruling on Reporting Requirement under the Commission's
Anti-Collusion Rule
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission (FCC)
adopts final rules governing wireless licenses in the 698-806 MHz Band
(i.e., the 700 MHz Band). This spectrum is currently occupied by
television broadcasters and is being made available for wireless
services, including public safety and commercial services, as a result
of the digital television (``DTV'') transition.
DATES: Effective October 23, 2007, except for the amendments to
Sec. Sec. 27.14, 27.15, 27.50, and 90.176 which contain information
collection requirements that have not been approved by the Office of
Management and Budget (OMB). The Commission will publish a document in
the Federal Register announcing the effective date.
FOR FURTHER INFORMATION CONTACT: Paul Moon at (202) 418-1793,
paul.moon@fcc.gov, Mobility Division, Wireless Telecommunications
Bureau; Peter Trachtenberg at (202) 418-7369, at
peter.trachtenberg@fcc.gov, Spectrum and Competition Policy Division,
Wireless Telecommunications Bureau; Jeff Cohen at (202) 418-0799,
jeff.cohen@fcc.gov, Public Safety and Homeland Security Bureau.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second
Report and Order, WT Docket No. 06-150; CC Docket No. 94-102, WT Docket
No. 01-309, WT Docket No. 03-264, WT Docket No. 06-169; PS Docket No.
06-229; WT Docket No. 96-86; WT Docket No. 07-166; FCC No. 07-132,
adopted July 31, 2007 and released August 10, 2007. The full text of
the Second Report and Order is available for public inspection on the
Commission's Internet site at https://www.fcc.gov. It is also available
for inspection and copying during regular business hours in the FCC
Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC
20554. The full text of this document also may be purchased from the
Commission's duplication contractor, Best Copy and Printing Inc.,
Portals II, 445 12th St., SW., Room CY-B402, Washington, DC 20554;
telephone (202) 488-5300; fax (202) 488-5563; e-mail FCC@BCPIWEB.COM.
Synopsis
In this Second Report and Order, the Commission establishes rules
governing wireless licenses in the 698-806 MHz Band (herein, the ``700
MHz Band''). This spectrum currently is occupied by television
broadcasters in TV Channels 52-69. It is being made available for
wireless services, including public safety and commercial services, as
a result of the digital television (``DTV'') transition. In passing the
Digital Television Transition and Public Safety Act of 2005 (``DTV
Act''), Congress accelerated the DTV transition by providing a date
certain, February 17, 2009, for the end of the transition.\1\ The
Commission has been considering rules related to the use of this
spectrum in three ongoing proceedings: (1) The 700 MHz Commercial
Services proceeding, 71 FR 48506 (2006),\2\ (2) the 700 MHz Guard Bands
proceeding, 71 FR 57455,\3\ and (3) the 700 MHz Public Safety
proceeding, 72 FR 1201 (2007); 71 FR 17786 (2006).\4\ Recognizing the
interrelationship of these proceedings, the Commission recently
combined these proceedings and in April 2007 issued a single Report and
Order and Further Notice of Proposed Rulemaking (the 700 MHz Report and
Order, 72 FR 27688 (2007), and 700 MHz Further/NPRM, FR 24238 (2007),
respectively) addressing all three proceedings.\5\ Accordingly, the
Commission addresses the rules regarding access to 700 MHz Band
spectrum and the provision of service across the country, as well as
opportunities for broadband service for Public Safety users in this
Second Report and Order.
---------------------------------------------------------------------------
\1\ See Deficit Reduction Act of 2005, Pub. L. 109-171, 120
Stat. 4 (2006) (``DRA''). Title III of the DRA is the DTV Act.
\2\ See Service Rules for the 698-749, 747-762 and 777-792 MHz
Bands, WT Docket No. 06-150, Revision of the Commission's rules to
Ensure Compatibility with Enhanced 911 Emergency Calling Systems and
Section 68.4(a) of the Commission's rules Governing Hearing Aid-
Compatible Telephones, CC Docket No. 94-102, WT Docket No. 01-309,
Notice of Proposed Rule Making, Fourth Further Notice of Proposed
Rule Making, and Second Further Notice of Proposed Rule Making, 71
FR 48506 (2006) (700 MHz Commercial Services NPRM).
\3\ See Former Nextel Communications, Inc. Upper 700 MHz Guard
Band Licenses and Revisions to Part 27 of the Commission's Rules,
Development of Operational, Technical and Spectrum Requirements for
Meeting Federal, State and Local Public Safety Communications
Requirements Through the Year 2010, WT Docket Nos. 06-169 and 96-86,
Notice of Proposed Rule Making, 71 FR 57455 (2006) (700 MHz Guard
Bands NPRM).
\4\ See Implementing a Nationwide, Broadband, Interoperable
Public Safety Network in the 700 MHz Band, Development of
Operational, Technical and Spectrum Requirements for Meeting
Federal, State and Local Public Safety Communications Requirements
Through the Year 2010, PS Docket No. 06-229, WT Docket No. 96-86,
Ninth Notice of Proposed Rulemaking, 72 FR 1201 (2007) (2006) (700
MHz Public Safety Ninth NPRM); Development of Operational, Technical
and Spectrum Requirements for Meeting Federal, State and Local
Public Safety Communications Requirements Through the Year 2010, WT
Docket No. 96-86, Eighth Notice of Proposed Rulemaking, 71 FR 17786
(2006) (700 MHz Public Safety Eighth NPRM).
\5\ Service Rules for the 698-746, 747-762 and 777-792 MHz
Bands, WT Docket No. 06-150, Revision of the Commission's rules to
Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC
Docket No. 94-102, Section 68.4(a) of the Commission's rules
Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309,
Biennial Regulatory Review--Amendment of Parts 1, 22, 24, 27, and 90
to Streamline and Harmonize Various Rules Affecting Wireless Radio
Services, WT Docket 03-264, Former Nextel Communications, Inc. Upper
700 MHz Guard Band Licenses and Revisions to Part 27 of the
Commission's rules, WT Docket No. 06-169, Implementing a Nationwide,
Broadband, Interoperable Public Safety Network in the 700 MHz Band,
PS Docket No. 06-229, Development of Operational, Technical and
Spectrum Requirements for Meeting Federal, State and Local Public
Safety Communications Requirements Through the Year 2010, WT Docket
No. 96-86, Report and Order and Further Notice of Proposed
Rulemaking, 22 FCC Rcd 8064 (2007) (700 MHz Report and Order and 700
MHz Further NPRM, respectively).
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I. Discussion
A. Commercial 700 MHz Band, Including 700 MHz Guard Bands
1. Band Plan
a. Commercial Spectrum (Excluding Guard Bands Spectrum)
1. In the 700 MHz Report and Order, the Commission determined that
a balanced mix of geographic service area licenses--CMAs, EAs, and
REAGs--would be appropriate for the commercial 700 MHz Band licenses
that will be auctioned. The Commission reaffirms that determination for
all of this commercial spectrum except for that associated with the 10-
megahertz commercial license (comprised of paired 5-megahertz blocks)
which will be auctioned on a nationwide basis for use as part of the
700 MHz Public/Private Partnership with the Public Safety Broadband
Licensee. The Commission further determines that a mix of spectrum
block sizes, including one large 22-megahertz block (comprised of
paired 11-megahertz blocks), is appropriate for the 700 MHz Band
licenses that remain to be auctioned.
[[Page 48815]]
2. The Commission will license three commercial blocks of paired
spectrum--one 12-megahertz block (comprised of paired 6-megahertz
blocks) licensed on a CMA basis, one 12-megahertz block (comprised of
paired 6-megahertz blocks) on an EA basis, and one 22-megahertz block
(comprised of paired 11-megahertz blocks) on a REAG basis--as well as
one 6-megahertz block of unpaired spectrum on an EA basis. First, the
Commission will license one additional 12-Megahertz Spectrum Block
(comprised of paired 6-Megahertz blocks) in the 700 MHz Band on a CMA
basis, to be located in the B Block of the Lower 700 MHz Band
immediately adjacent to the existing CMA-based licenses. Second, the
Commission will license a 22-megahertz block (comprised of paired 11-
Megahertz blocks) on a REAG basis located in the C Block in the Upper
700 MHz Band. Third, the Commission will license a 12-Megahertz block
(comprised of paired 6-megahertz blocks) on an EA basis located in
Block A of the Lower 700 MHz Band. Finally, the Commission adopts EAs
for the unpaired 6-megahertz E Block of the Lower 700 MHz Band.
b. Guard Bands Spectrum
3. The Commission adopts a revised band plan for the 700 MHz Guard
Bands spectrum and the Upper 700 MHz Band, which includes features of
Cyren Call's additional band plan proposal and the July 6, 2007 Guard
Bands Proposal. Additionally, the Commission determines that it lacks
legal authority to adopt the Broadband Optimization Plan (BOP),
Critical Infrastructure Industries (CII), or the Ericsson proposals
because they propose a reallocation of commercial spectrum to public
safety, and assignment of commercial licenses from the Commission's
auction inventory without competitive bidding. The Commission also
rejects the most recent Ericsson band plan proposal, as well as the
Access Spectrum/Pegasus Alternative Proposal and the Cyren Call
proposals to the extent they are inconsistent with the Commission's
actions in this Second Report and Order.
(a) Revisions to Upper 700 MHz Band Plan for Guard Bands
4. The Commission adopts the July 6, 2007 Guard Bands Proposal
based on the agreement of all Guard Band licensees except PTPMS II,
whose two Guard Band B Block licenses the Commission grandfathers, and
whose one Guard Band A Block license the Commission repacks into the
reconfigured Guard Band A Block. The Commission concludes that the
existing Guard Band B Block is no longer needed as a guard band to
protect the adjacent 700 MHz public safety users, and to the extent
possible, should be consolidated with the remaining commercial spectrum
for more efficient and effective use. The Commission finds that the
public interest is best served by adoption of features of the Cyren
Call and July 6, 2007 proposals because it removes the ``repacked''
Guard Band A Block from the critical juncture between the Upper 700 MHz
D Block and the public safety broadband spectrum, which together will
be used as the foundation for the 700 MHz Public/Private Partnership.
5. Funding for Public Safety Reconfiguration. The Commission finds
that the proximity of the public safety broadband spectrum to the
adjacent D block will provide significant benefits to the D Block
licensee. Accordingly, the Commission concludes that the D Block
licensee must pay the costs of consolidating the 700 MHz public safety
narrowband channels to the upper half of the 700 MHz Public Safety
Band.
6. License Modifications. The Commission finds that the public
interest, convenience, and necessity will be served by relocating all
existing Guard Band A licenses to the reconfigured Guard Band A Block
located at 757-758 MHz and 787-788 MHz. With the exception of PTPMS II,
which holds one A Block license and two B Block licenses, the license
modifications that the Commission effects today are consensual.
7. These license modifications are consistent with Sections 337 and
309 of the Act, because the 4 megahertz of remaining Guard Bands
spectrum remains commercial spectrum subject to auction. Specifically,
the 2 megahertz from 746-747 MHz and 776-777 MHz will be added to, and
auctioned as part of, the Upper 700 MHz Band C Block in the forthcoming
700 MHz Band auction. The lower portion of the reconfigured commercial
Guard Band B Block at 775-776 MHz will provide a necessary guard band
between public safety narrowband communications and adjacent commercial
services. The Commission will be able to determine other potential uses
of this spectrum, and the related portion of the B Block at 805-806
MHz, at a future date.
8. Spectrum Use Agreements. Pursuant to Section 309(f) of the Act,
the Commission hereby grants Access Spectrum 180-day special temporary
authorizations for MEAs 20, 26, 32, 37, 44, and 52 for the current
Guard Band A Block (746-747 MHz, 776-777 MHz). In the event that Access
Spectrum cannot complete the transition of the CII system during the
180-day period, it may seek an appropriate extension of the STA upon a
proper showing. Because the Commission modifies (repack and relocate)
the Guard Band A Block MEA licenses held by Access Spectrum, Pegasus,
and Dominion upon the effective date of this Second Report and Order,
the six STA grants to Access Spectrum will be granted upon the
effective date as well.
9. PTPMS II. To ensure that critical interoperable public safety
communications are uniform throughout the continental United States,
the Commission hereby modifies PTPMS II's Guard Band A Block license in
Buffalo (MEA 003), pursuant to Sections 316, 301, 303, and 4(i) of the
Act, to operate in the same geographic area but in the reconfigured A
Block at 757-758 MHz and 787-788 MHz. The Commission also modifies
PTPMS II's B Block licenses in Des Moines--Quad Cities (MEA 021) and El
Paso--Albuquerque (MEA 039) by shifting them down by 1 megahertz, so
that PTPMS II is authorized to operate at 761-763 MHz and 791-793 MHz.
These modifications should not burden PTPMS II because it does not have
any operations associated with the three licenses.
10. As a result of the foregoing modifications, the new nationwide
Upper 700 MHz Band D Block license, at 758-763 MHz and 788-793 MHz,
will be authorized in Des Moines--Quad Cities (MEA 021) and El Paso--
Albuquerque (MEA 039) on a secondary basis to PTPMS II. As such, the D
Block licensee may not cause interference to primary operations of
PTPMS II or claim protection from harmful interference from any
operations of PTPMS II in those MEAs. The D Block licensee must cease
operations on the spectrum assigned to PTPMS II in these two markets if
it poses an interference problem to PTPMS II. In the event that PTPMS
II, or a successor or an assign of PTPMS II, elects to cancel either of
its grandfathered licenses, or if either license cancels automatically,
or is terminated by the Commission, then the licensed geographic area
will revert, without further action by the Commission, to the D Block
licensee. This reversionary interest will include the right to operate
under the D Block technical rules.
11. Further, the Commission grandfathers PTPMS II's two B Block
licenses without any renewal expectancy, and does not extend the term
of its licenses as the Commission has for the reconfigured Guard Band A
Block licenses. The Commission will
[[Page 48816]]
afford PTPMS II's Guard Band A Block license the modified (less
stringent) technical rules that the Commission adopts below for all
other Guard Band A Block licenses.
12. Accordingly, pursuant to Section 316 of the Act and Section
1.87 of the Commission's rules, PTPMS II has 30 days from the effective
date of this Second Report and Order to protest the foregoing license
modifications. Additionally, as stated in their July 6, 2007 Ex Parte,
the other Guard Bands licensees have waived their protest rights.
(b) Broadband Optimization Plan (BOP), Critical Infrastructure
Industries (CII) and Ericsson Proposals
13. For the reasons discussed in the 700 MHz Further NPRM, the
Commission denies the BOP and CII proposals. Further, the Commission
concludes that the additional Ericsson band plan proposal is not in the
public interest.
2. Service Rules
a. Commercial Services (Excluding Guard Bands and Upper 700 MHz D
Block)
(i) Performance Requirements
14. In order to better promote access to spectrum and the provision
of service, especially in rural areas, the Commission replaces the
current ``substantial service'' requirements for the 700 MHz Band
licenses that have not been auctioned with significantly more stringent
performance requirements. These requirements include the use of interim
and end-of-term benchmarks, with geographic area benchmarks for CMA and
EA licenses, and population benchmarks for REAG licenses. Licensees
must meet the interim requirement within four years of the end of the
DTV transition (i.e., February 17, 2013). Failure to meet the interim
requirement will result in a two-year reduction in license term, as
well as possible enforcement action, including forfeitures. The
Commission also reserves the right to impose a proportional reduction
in the size of the license area of a licensee that fails to meet its
interim benchmarks. Licensees that fail to meet the end-of-term
benchmarks will be subject to a ``keep-what-you-use'' rule, under which
the licensee will lose its authorization for unserved portions of its
license area, which will be returned to the Commission for
reassignment. They may also be subject to potential enforcement action,
including possible forfeitures or cancellation of license. The
Commission also imposes certain reporting requirements intended to help
the Commission monitor build-out progress during the license term. The
Commission expects that licensees will take these construction
requirements seriously and proceed toward providing service with utmost
diligence. As such, the Commission does not envision granting waivers
or extensions of construction periods except where unavoidable
circumstances beyond the licensee's control delay construction.
15. Specific Performance Requirements for CMA and EA Licenses. The
Commission concludes that, for licenses based on CMAs and EAs,
licensees must provide signal coverage and offer service to: (1) At
least 35 percent of the geographic area of their license within four
years of the end of the DTV transition, and (2) at least 70 percent of
the geographic area of their license at the end of the license term. In
determining the relevant geographic area, the Commission concludes
that, in applying geographic benchmarks, the Commission should not
generally consider the relevant area of service to include government
lands. CMA or EA licensees that fail to meet the interim requirement
within their license areas will have their license terms reduced by two
years, from ten to eight years, thus requiring these licensees to meet
the end-of-term benchmark at an accelerated schedule. For those CMAs or
EAs in which the end-of-term performance requirements have not been
met, the unused portion of the license will terminate automatically
without Commission action and will become available for reassignment by
the Commission subject to the ``keep-what-you-use'' rules described
below.
16. To the extent the licensee employs a signal level and provides
service to land that is owned or leased by government, the licensee may
count this land area and coverage as part of its service area for
purposes of measuring compliance with the build-out benchmark, but it
also must add the covered government land to the total geographic area
used for measurement purposes.
17. Specific Performance Requirements for REAG Licenses. The
Commission concludes that, for licenses based on REAGs, licensees must
provide signal coverage and offer service to: (1) At least 40 percent
of the population of the license area within four years, and (2) at
least 75 percent of the population of the license area by the end of
the license term. Licensees must use the most recently available U.S.
Census Data at the time of measurement to meet these population based
build-out requirements.
18. In addition, for licenses based on REAGs, the Commission will
apply its performance requirements on an EA basis. Accordingly, to meet
their benchmarks, REAG licensees must provide signal coverage and offer
service to at least 40 percent of the population in each EA in its
license area within four years and 75 percent of the population of each
of these EAs at the end of the license term. REAG licensees that fail
to meet the interim requirement in any EA within their license areas
will have their license term for the entire REAG reduced by two years,
from ten to eight years, thus requiring these licensees to meet the
end-of-term benchmark at an accelerated schedule. In applying the end-
of-term coverage requirement to REAG licensees, the Commission will
evaluate the licensee's coverage on an EA-by-EA basis. For those EAs in
which the end-of-term performance requirements have not been met, the
unused portion of the license will terminate automatically without
Commission action and will become available for reassignment by the
Commission subject to the ``keep-what-you-use'' regime described below.
19. Reporting Requirements. In connection with the performance
requirements adopted in this Second Report and Order, the Commission
adopts an interim reporting requirement that will obligate licensees to
provide the Commission with information concerning the status of their
efforts to meet the performance requirements and the manner in which
their spectrum is being utilized. In addition, this information will be
useful to monitor whether further assessment of the rules or other
actions are necessary in the event spectrum is being stockpiled or
warehoused, or if it is otherwise not being made available despite
existing demand. All licensees will file the first of these reports at
the end of the second year following the end of the DTV Transition,
i.e., February 17, 2011. Licensees that do not meet their interim
benchmarks will file their second report following the sixth year after
the end of the DTV Transition, i.e., February 17, 2015, while licensees
that do meet their interim benchmarks will have until the end of the
seventh year to file, i.e., February 17, 2016. For licensees that do
not meet their interim benchmarks and have their license terms reduced,
the second report will be filed at the end of the sixth year following
the end of the DTV Transition, i.e., February 17, 2015. The information
to be reported will include a description of the steps the licensee has
taken toward meeting its construction obligations in a timely
[[Page 48817]]
manner, including the technology or technologies and service(s) being
provided and the areas in which those services are available.
20. Procedures for Implementation. Licensees must demonstrate
compliance with the Commission's interim and end-of-term construction
benchmarks by filing a construction notification with the Commission
within 15 days of the relevant benchmark certifying that they have met
the Commission's performance requirements or, if they have not met the
Commission's performance requirements, they must file a description and
certification of the areas for which they are providing service. The
information contained in the licensee's construction notification must
include electronic coverage maps and other supporting documentation.
The Commission recognizes that demonstrations of coverage may vary
across licensees. Accordingly, the Commission delegates to the Wireless
Bureau the responsibility for establishing the specifications for
filing maps and other documents (e.g., file format and appropriate
data) needed to determine a licensee's geographic coverage area. The
Commission recognizes that coverage determinations may need to be made
on a case-by-case basis so as to account for the potentially wide
variety of services and technologies that may be offered in the band.
21. The electronic coverage maps must clearly and accurately depict
the boundaries of each EA or CMA in the licensee's service territory,
and the areas where the licensee is providing signal coverage and
offering service. If the licensee's signal does not provide service to
the entire EA or CMA, the map must clearly and accurately display the
boundaries of the area or areas within each EA or CMA not being served.
22. In addition to filing electronic coverage maps, each licensee
must file supporting documentation certifying the type of service it is
providing for each EA or CMA within its license service territory and
the type of technology it is utilizing to provide this service for each
EA or CMA in its service territory. The supporting documentation also
must provide the assumptions used by the licensee to create the
coverage maps, including the propagation model and the signal strength
necessary to provide service with the licensee's technology.
23. When the licensee files its construction notification,
including its coverage maps and supporting documentation, the public
will be given an opportunity to review and comment on the construction
notification, including the maps provided by the licensee and the
technical assumptions used to create the maps. After examining the
notification and public comments, Commission staff will make a final
determination as to what areas within EAs and CMAs are, and are not,
deemed ``served.'' If the Commission determines that a licensee meets
the applicable interim benchmark, it will not have its license term
reduced by two years. Likewise, if the Commission determines that a
licensee meets its applicable end of term benchmark requirement, the
licensee will be deemed to have met the Commission's construction
build-out requirement.
24. Under the Commission's ``keep-what-you-use'' rule, if a
licensee fails to meet its end of term benchmark, its authorization to
operate will terminate automatically without Commission action for
those geographic areas in which the licensee is not providing service,
and those unserved areas will become available for reassignment by the
Commission. The Commission will update its Universal Licensing System
records to reflect those geographic areas for which the licensee
retains authority to operate, as well as those geographic areas that
will be made available for reassignment.
25. For purposes of reassigning these licenses, the Wireless Bureau
is delegated authority to announce by public notice that these licenses
will be made available and establish a 30-day window during which third
parties may file license applications to serve these areas. During this
30-day period, the licensee that failed to serve the area may not file
an application to regain the license authorization for that area.
Applications filed by third parties that propose areas overlapping with
other applications will be deemed mutually exclusive, and will be
resolved through an auction. The Wireless Bureau, by public notice, may
specify a limited period before the filing of short-form applications
(FCC Form 175) during which applicants may enter into a settlement to
resolve their mutual exclusivity.
26. Following this 30-day period, the original licensee and third
parties can file license applications for remaining unserved areas
where licenses have not been issued or there are no pending
applications. If the original licensee or a third party files an
application, that application will be placed on public notice for 30
days. If no mutually exclusive application is filed, the application
will be granted, provided that a grant is found to be in the public
interest. If a mutually exclusive application is filed, it will be
resolved through an auction. The Wireless Bureau, by public notice, may
specify a limited period before the filing of short-form applications
(FCC Form 175) during which applicants may enter into a settlement to
resolve their mutual exclusivity.
27. A licensee obtaining spectrum that was lost through the
Commission's ``keep-what-you-use'' rule will have one year from the
date it is issued a license to complete its construction and provide
signal coverage and offer service to the entire new license area. If
the licensee fails to meet this construction requirement, its license
will automatically cancel without Commission action and it will not be
eligible to apply to provide service to this area on the same
frequencies at any future date.
28. Under the Commission's ``keep-what-you-use'' rules, the
Commission will determine whether an area is unserved by applying a de
minimis standard similar to that applied to cellular service, which
provides that the geographic service area to be made available to new
entrants must include a contiguous area of at least 130 square
kilometers (50 square miles). Areas smaller than this will not be
deemed unserved by the Commission, because auctioning and licensing
smaller areas to new licensees could result in harmful interference to
incumbent licensees. Accordingly, unserved areas that are smaller than
130 square kilometers will continue to be a part of the licensee's
license area. In those geographic areas that the Commission deems as
served, the licensee will retain its exclusive spectrum rights,
including the ability to transfer and lease these areas. The licensee
also will have the opportunity to expand its service into the unused
parts of its original license area.
(ii) Partitioning and Disaggregation
29. Partitioning. Under the Commission's modifications of the
Section 27.15(d) rules relating to geographic partitioning of new 700
MHz Commercial Services licenses, the Commission establishes two
options for partitioners and partitionees with regard to the newly
adopted performance requirements discussed above.
30. Under the first option, the partitioner and partitionee must
each certify to the Commission that they will share responsibility for
meeting the performance requirements for the entire original geographic
license area. Under this option, the partitioner, partitionee, or both
the partitioner and partitionee working together, can meet the four-
year and end-of-term construction benchmarks for the entire geographic
[[Page 48818]]
license area. If the parties fail to meet the four-year benchmark, they
will each have their license term reduced by two years. If the parties
meet the end-of-term construction benchmarks, they will retain the
ability to continue to build out the unserved portion of their license
areas. Parties that fail to meet the end-of-term benchmarks will be
subject to a ``keep-what-you-use'' rule, under which they will each
lose their authorization for unserved portions of their license areas,
which will automatically cancel and return to the Commission for
reassignment.
31. Under the second option, the partitioner and partitionee must
each certify that it will independently meet the applicable performance
requirements for its respective partitioned service area. If the
partitioner or partitionee fails to meet the four-year build-out
requirement for its respective partitioned service area, then its
license term will be reduced by two years. If the parties meet the end-
of-term construction benchmarks, they will retain the ability to
continue to build out the unserved portion of their license areas.
Parties that fail to meet the end-of-term benchmarks will be subject to
a ``keep-what-you-use'' rule, under which they will lose their
authorization for unserved portions of their license areas, which will
automatically cancel and return to the Commission for reassignment.
32. Disaggregation. With regard to the rules relating to
disaggregation of new 700 MHz Commercial Services Band licenses, the
Commission modifies Section 27.15(d) to provide that the disaggregator,
disaggregatee, or both the disaggregator and disaggregatee working
together, can meet the four-year and end-of-term construction
benchmarks for the entire geographic license area. If either of the
parties meets the four-year build-out requirement, then this
requirement is considered to be satisfied for both parties. If neither
of the parties meets the four-year build-out requirement, then each of
their license terms will be reduced by two years. Similarly, if either
of the parties meets the end-of-term build-out requirement, then this
requirement is considered to be satisfied for both parties and they
will retain the ability to continue to build out the unserved portion
of their license areas. However, parties that fail to meet the end-of-
term benchmarks will be subject to an automatic ``keep-what-you-use''
rule, under which they will lose their authorization for unserved
portions of their license areas, which will automatically cancel and
return to the Commission for reassignment.
(iii) Open Platforms for Devices and Applications
33. The Commission determines that for one commercial spectrum
block in the 700 MHz Band--the Upper 700 MHz Band C Block (700 MHz C
Block)--the Commission will require licensees to allow customers,
device manufacturers, third-party application developers and others to
use or develop the devices and applications of their choice, subject to
certain conditions, so long as they meet all applicable regulatory
requirements and comply with reasonable conditions related to
management of the wireless network (i.e., do not cause harm to the
network), as described further below. The Commission concludes,
however, that it would not serve the public interest to mandate, at
this time, requirements for open platforms for devices and applications
for all unauctioned commercial 700 MHz spectrum, or to impose broader
openness requirements, such as wholesale or interconnection
requirements, for the 700 MHz C Block.
34. Scope of Requirement for open platforms for devices and
applications. 700 MHz C Block licensees subject to this requirement
will not be allowed to disable features or functionality in handsets,
such as ``locking'' handsets to prevent their transfer from one system
to another, where such action is not related to reasonable network
management and protection, or compliance with applicable regulatory
requirements. In addition, 700 MHz C Block licensees may not establish
network standards that block Wi-Fi access, MP3 playback ringtone
capability, or other services that compete with wireless service
providers' own offerings. Standards for third-party applications or
devices that are more stringent than those used by the provider itself
would likewise be prohibited. In addition, 700 MHz C Block licensees
cannot exclude applications or devices solely on the basis that such
applications or devices would unreasonably increase bandwidth demands.
The Commission emphasizes that 700 MHz C Block licensees may not impose
any discriminatory charges (one-time or recurring) or conditions on
customers who seek to use devices or applications outside of those
provided by the licensee. Further, 700 MHz C Block licensees may not
deny access to a customer's device solely because that device makes use
of other wireless spectrum bands, such as cellular or PCS spectrum.
However, in accepting a multi-band device on its network, a 700 MHz C
Block licensee is not required to extend the requirement for open
platforms for devices and applications to other spectrum bands on which
the provider operates.
35. Reasonable network requirements permitted. The Commission
emphasizes that it is not requiring wireless service providers to allow
the unrestricted use of any devices or applications on their networks.
Wireless service providers may continue to use their own certification
standards and processes to approve use of devices and applications on
their networks so long as those standards are confined to reasonable
network management. For example, providers are free to choose their air
interface technology, and to deny service to devices or applications
that cannot operate on the same technology, and may restrict particular
non-carrier devices and applications on their networks, specifically to
ensure the safety and integrity of their networks. In particular, it is
reasonable for wireless service providers to maintain network control
features that permit dynamic management of network operations,
including the management of devices operating on the network, and to
restrict use of the network to devices compatible with these network
control features. Standards to ensure that network performance will not
be significantly degraded would also be appropriate.
36. The Commission does not specify a particular process for 700
MHz C Block licensees to develop reasonable network management and
openness standards, but the Commission requires certain minimum steps
to ensure that device manufacturers and application developers have the
ability to design products for this spectrum in a timely manner.
Specifically, a 700 MHz C Block licensee must publish standards no
later than the time at which it makes such standards available to any
preferred vendors (i.e., vendors with whom provider has a relationship
to design products for the provider's network). The 700 MHz C Block
licensee must also provide to potential customers notice of the
customers' rights to request the attachment of a device or application
to the licensee's network, and notice of the licensee's process for
customers to make such requests, including the relevant network
criteria. These network standards are expected to be non-proprietary,
such that the standards would be open to any third party vendors and
that the standards applied to third parties will be no more restrictive
than those applied to the provider's preferred vendors. Providers must
also establish a reasonable process for expeditiously
[[Page 48819]]
reviewing requests from manufacturers, application developers and
consumers to employ devices and applications on their networks. If a
provider denies such a request, it must offer a specific explanation
and an opportunity for amendment of the request to accommodate the
provider's concerns.
37. The Commission encourages the development of industry-wide
standards by an appropriate standards-setting body at the earliest
possible date.
38. Other regulatory requirements continue. The requirement to
provide an open platform for devices and applications the Commission is
imposing shall not override wireless service providers' obligations to
ensure that their networks and devices comply with applicable
regulatory requirements (e.g., power and emission limits, E911, CALEA,
etc.). For example, with respect to E911, if a network provider accepts
a non-carrier device or application and if the device or application
subsequently causes a violation of the Commission's rules, the
Commission will apply the same third-party liability provisions as in
the wireline context.
39. The Commission finds that a wireless carrier's obligations
under its hearing aid compatibility rule, section 20.19 of the
Commission's rules, are not affected by the openness obligations for
700 MHz C Block licensees. Under the Commission's rules, the extent of
a carrier's compliance with the hearing aid compatibility obligations
is not affected by handsets that connect to its network but it does not
itself ``offer'' to its subscribers. Thus, the need to comply with
section 20.19 of the Commission's rules would not justify a provider's
refusal to connect a device. Further, the Commission declines to alter
its hearing aid compatibility obligations to specifically impose an
obligation on 700 MHz C Block licensees to ensure the hearing aid
compatibility of handsets that are connected to the network but not
offered by the provider.
40. Enforcement processes. The Commission intends to vigorously
enforce the requirement to provide an open platform for devices and
applications adopted for 700 MHz C Block licensees. The Commission will
take appropriate enforcement action where necessary pursuant to the
remedies available under its statutory authority, including
forfeitures, license revocations, and cease-and-desist orders. A person
or entity who believes a 700 MHz C Block licensee's refusal to attach a
proposed device or application is a violation of the open platform
rules adopted may file a complaint pursuant to the Commission's
enforcement rules, including the Commission's formal and informal
complaint processes, where applicable. The Commission sets forth
certain presumptions for these complaints. Specifically, once a
complainant sets forth a prima facie case that the 700 MHz C Block
licensee has refused to attach a device or application in violation of
the open platform requirements adopted, the licensee shall have the
burden of proof to demonstrate that it has adopted reasonable network
standards and reasonably applied those standards in the complainant's
case. Further, where the 700 MHz C Block licensee bases its network
restrictions on industry-wide consensus standards, the restrictions are
afforded a presumption of reasonableness. The Commission commits to
rule on any complaints filed within 180 days of receipt of such
complaints. Interested parties also may file a petition for declaratory
ruling where a particular practice has broad market impact. Through
review of complaints and other relevant information, the Commission
will monitor the ability of consumers, device manufacturers, and
application developers to use or develop devices and applications for
700 MHz C Block networks.
(iv) Use of Dynamic Spectrum Management Techniques
41. In response to Google's first request, the Commission affirms
that nothing in the Commission's rules generally prohibits 700 MHz
licensees from using dynamic spectrum management practices. In response
to Google's second suggestion, the Commission declines to mandate the
use of dynamic spectrum management practices for 700 MHz Band
licensees.
42. The Commission concludes that licensees should retain
significant flexibility with regard to the precise mechanisms they
utilize when it comes to managing spectrum access to the network and
among users. Of course, to the extent any licensee believes that the
specific spectrum management mechanisms that Google proposes is
appropriate or preferable, it is free to choose to utilize these
mechanisms, consistent with the Commission's guidance above.
(v) Protection of 700 MHz Public Safety Operations
43. The Commission shall continue to require Upper 700 MHz Band C
Block licensees to meet the 76 + 10 log P and 65 + 10 log P out-of-band
emission (OOBE) limits with respect to the public safety bands.
However, the Commission will not require the Upper 700 MHz Band D Block
licensee to meet OOBE limits with respect to the public safety
broadband spectrum.
44. The D Block licensee will still, however, be required to
satisfy the 76 and 65 + 10 log P OOBE limits with respect to the
narrowband portion of the public safety spectrum. Additionally, the
Commission shall not require the D Block licensee and Public Safety
Broadband Licensee to coordinate with one another to address potential
overload interference, even though such licensees will be authorized on
adjacent spectrum, because under the public/private partnership, as
discussed above, the D Block licensee and Public Safety Broadband
Licensee will be sharing the same infrastructure.
(vi) Licensee Eligibility
45. The Commission declines to impose eligibility restrictions for
the licenses in the 700 MHz Band. Given the number of actual wireless
providers and potential broadband competitors, it is unlikely that
incumbent local exchange carriers (ILECs), cable providers, or large
wireless carriers would be able to behave in an anticompetitive manner
as a result of any potential acquisition of 700 MHz spectrum.
b. 700 MHz Guard Bands
(i) Treatment of Reconfigured A Block
46. Because the reconfigured Guard Band A Block will now be located
at 757-758/787-788 MHz between the Upper 700 MHz Band C and D Blocks,
and will no longer be adjacent to public safety narrowband spectrum,
the Commission concludes that it is no longer necessary to apply the
adjacent channel power (ACP) emissions criteria to the A Block.
Instead, the Commission will apply OOBE limits, which are consistent
with emission limits applicable to the C Block. Thus, A Block licensees
are required to attenuate out-of-band by at least 43 +10log P dB.
Further, the Commission finds that heightened OOBE criteria should
continue to apply in order to provide adequate protection to public
safety. Therefore A Block transmitter power must be attenuated to at
least 76 + 10log P dB, in a 6.25 kilohertz bandwidth for base stations
at 763 MHz, and 65 + 10log P dB for mobile units at 793 MHz.
47. Frequency Coordination and the Cellular Architecture
Prohibition. The Commission will no longer apply sections 27.601(d) and
27.2(b) (requiring guard band users to employ frequency coordination
procedures in cooperation with 700 MHz public safety coordinators, and
prohibiting the use of
[[Page 48820]]
cellular architectures in the Guard Bands) to reconfigured A Block
licenses.
48. Removal of the 746-747 MHz A Block Guard Band. The Commission
finds that it is unnecessary to retain the A Block Guard Band at 746-
747 MHz to shield Upper 700 MHz Band C Block operations from
interference from high power operations allowed in the Lower 700 MHz
Band C Block.
(ii) Treatment of Reconfigured B Block
49. The Commission finds that it would not be prudent to make any
changes that would introduce the possibility of increased interference
to adjacent public safety operations. Any future operations in the
Guard Band B Block will continue to be bound by the Commission's
existing Guard Bands technical rules requiring frequency coordination
and prohibiting the use of cellular system architectures. These
continued technical restrictions on the B Block can be fully taken into
account as the Commission considers future uses for the block. The
Commission will, however, create additional flexibility by providing
operations in the reconfigured B Block the option of employing either
the existing ACP limits set forth in Section 27.53(d) of the
Commission's rules, or the same OOBE limits used by other commercial
licensees to protect public safety, i.e., 76 + 10log P dB per 6.25 kHz
for base stations, and 65 + 10log P dB per 6.25 kHz for mobile units.
(iii) Treatment of PTPMS II Licenses
50. To ensure interoperability in border areas with Canada, the
Commission is modifying the PTPMS II licenses by relocating its Guard
Band A Block license to 757-758 MHz and 787-788 MHz along with the
``repacked'' Guard Band A Block licenses, and by shifting its Guard
Band B Block licenses down 1 megahertz to 761-763 MHz and 791-793 MHz.
Although PTPMS II has elected to remain under the existing terms of its
licenses, the Commission concludes that, for purposes of regulatory
parity, the Commission should apply to the PTPMS II A Block licenses
the same technical rules that will apply to the reconfigured A Block
licenses. The Commission also concludes that the existing B Block
technical rules continue to apply to PTPMS II's B Block licenses given
their adjacency with public safety spectrum.
(iv) License Terms
51. The license terms for the A Block licenses, including the PTPMS
II A Block licenses, shall extend to 10 years after the end of the DTV
transition, through February 17, 2019, and subsequent license terms
will be 10 years. However, the Commission will retain the existing
license terms for the grandfathered PTPMS II B Block licenses, rather
than extending them to match the other commercial licensees.
Furthermore, the Commission does not provide a renewal expectancy to
the PTPMS II B Block licenses, the terms of which will expire in 2015.
3. Auctions-Related Issues
a. Anonymous Bidding
52. The Commission concludes that the public interest will be
served if the upcoming auction of new 700 MHz Band licenses for which
service rules are established today is conducted using anonymous
bidding procedures. The Commission further concludes that
implementation of anonymous bidding procedures during the upcoming
auction of new 700 MHz Band licenses should not be contingent on a pre-
auction measurement of likely competition based on an eligibility
ratio. The Commission has delegated to the Wireless Bureau authority to
establish auction procedures based on comment solicited shortly prior
to the auction. Consistent with that authority, the Commission
delegates to the Wireless Bureau the discretion to adopt specific
procedures implementing these conclusions, taking into account the
further record developed during our standard pre-auction process for
establishing auction procedures and the possibility that alternative
licenses may be offered at auction as described below.
53. Additionally, the Commission concludes that the record
regarding the available 700 MHz Band licenses and the Commission's
recent experience with anonymous bidding in other auctions indicate
that the Commission's statutory mandates under Section 309(j)(3) of the
Act would be better served by adopting anonymous bidding procedures for
the upcoming auction of 700 MHz Band licenses. Such procedures should
withhold from public release until after the auction closes any
information that may indicate specific applicants' interests in the
auction, including information such as their license selections and the
identities of bidders placing bids or taking other bidding-related
actions, such as withdrawals. The Commission further concludes that the
implementation of anonymous bidding procedures in the upcoming auction
of new 700 MHz Band licenses should not be contingent on the likely
level of auction competition indicated by pre-auction bidder
eligibility. Accordingly, the Commission directs the Wireless Bureau to
propose and seek comment on detailed anonymous bidding procedures for
the upcoming auction of the 700 MHz Band licenses consistent with these
conclusions, including how anonymous bidding would impact a potential
re-auction of one or more spectrum blocks if the reserve prices for the
individual blocks are not met, and any additional continuation or
alteration to the anonymous bidding rules necessary to preserve the
integrity of the subsequent auction.
b. Declaratory Ruling on Anti-Collusion Rule Reporting Requirement
54. To further its policy of preventing collusive behavior in
Commission auctions, the Commission clarifies by declaratory ruling and
conforming textual edit the obligation that applicants in Commission
auctions have to report any communications of bids or bidding
strategies that are prohibited by Section 1.2105(c)(1) of the
Commission's rules. Pursuant to Section 1.2105(c)(6), any applicant
that makes or receives such a communication shall report such
communication in writing to the Commission immediately, and in no case
later than five business days after the communication occurs. As noted
in the Commission's Order adopting Section 1.2105(c)(6), the Commission
cannot ``take on the impossible task of screening all applicant
communications'' and, therefore, ``the responsibility for identifying
potentially unauthorized communications [must fall] on auction
applicants.'' The reports provided by applicants are essential to the
Commission's ability to enforce its rule. Absent such reports, parties
might find it easy to evade enforcement for extended periods of time,
and possibly altogether.
55. Accordingly, the reporting requirement ``obligate[s] parties to
notify the Commission of communications that appear to violate the
anti-collusion rule and to allow the Commission to determine whether a
violation has occurred.'' Consistent with this purpose, applicants have
a continuous obligation to make such reports extending beyond the five
business days after the communication occurs. This declaratory ruling,
and the conforming modification of Section 1.2105(c)(6) of the
Commission's rules, expressly states the continuing nature of this
obligation. The Commission can and will enforce the obligation so long
as it remains unfulfilled. The Commission emphasizes the continuing
nature of the duty to report to preclude any attempt to evade the
obligation by waiting out the expiration of the statute
[[Page 48821]]
of limitations applicable for the enforcement of forfeitures and to
reinforce the Commission's ability to detect collusion, which is
critical to the Commission's ability to enforce and thereby discourage
collusive behavior in Commission auctions.
c. Package Bidding
56. The Commission concludes that package bidding with respect to
licenses in the Upper 700 MHz Band C Block would serve the public
interest by reducing the exposure problem that might otherwise inhibit
bidders seeking to create a nationwide footprint. Accordingly, the
Commission directs the Wireless Bureau, pursuant to its delegated
authority and pre-auction process, to propose and implement detailed
package bidding procedures for the auction of the Upper 700 MHz Band C
Block licenses, taking into account the goals the Commission has
articulated for package bidding and the concerns raised in this record.
More specifically, the Wireless Bureau should propose an auction design
that includes package bidding for the C Block licenses to facilitate
the entry of a new nationwide competitor, without causing undue
difficulty for bidders that are not interested in a nationwide license.
The Wireless Bureau should also explore the use of package bidding for
any blocks subject to re-auction in the event that a reserve price is
not met.
57. The Wireless Bureau, consistent with its delegated authority
and pre-auction process, may revise its proposal prior to
implementation in the auction. In order to facilitate compliance with
the statutory deadlines applicable to the auction of 700 MHz Band
licenses, the Wireless Bureau has delegated authority to conduct an
auction without package bidding for the Upper 700 MHz Band C Block
licenses in the event that currently unforeseen difficulties make it
impracticable to implement package bidding for the C Block consistent
with the goals the Commission has articulated here. Finally, consistent
with its conclusions today, the Commission directs the Wireless Bureau
to adopt procedures for the auction of licenses in other blocks of 700
MHz Band spectrum without the use of package bidding.
d. ``New Entrant'' Bidding Credit
58. The Commission concludes that it is not necessary to compound
the discounts already offered to small new entrants by existing
designated entity bidding credits, or to offer large, nationwide new
entrants significant discounts on their bids.
e. Reserve Prices
59. The Commission concludes that it should provide for separate
aggregate reserve prices for each block of licenses to promote the
Commission's statutory objective of recovering for the public a portion
of the value of the public spectrum resource. If the auction results
for the licenses in any block satisfy the aggregate reserve for that
block, all licenses in the block will be assigned based on the auction
results, subject to completion of the licensing process, including
review of applicants' qualifications. The separate aggregate reserve
prices should, taken together, reflect current assessments of the
potential market value of this spectrum based on various factors
including, but not limited to, the characteristics of this band and the
value of other recently auctioned licenses, such as licenses for
Advanced Wireless Services. In addition, the view of Congress as to the
value of this spectrum, as reflected by the Congressional mandates for
proceeds from the auction, should be given appropriate consideration.
60. In the event that licenses are not assigned because the
applicable block-specific aggregate reserve is not met, the Commission
provides for a prompt auction of alternative, less restrictive licenses
for the A, B, C, and E Blocks, subject to the same applicable reserves.
The Commission's rules also provide for the possibility of re-offering
the D Block license in a subsequent auction.
61. Block-Specific Aggregate Reserve Price. The Commission
concludes that the public interest requires a separate aggregate
reserve price for each block of the 700 MHz Band licenses subject to
competitive bidding in the upcoming auction. The reserve prices will be
in addition to, and separate and apart from, any minimum opening bid
amounts that may be established for purposes of the upcoming auction.
If the aggregate reserve is met for any block, all licenses in that
block that receive winning bids will be eligible for licensing subject
to the completion of the Commission's review of long-form license
applications.
62. The Commission also concludes that it is appropriate to assess
interest in licenses in this context on a block-by-block basis. The
Commission directs the Wireless Bureau to adopt and publicly disclose
block-specific aggregate reserve prices, pursuant to its existing
delegated authority and its regular pre-auction process, consistent
with the Commission's conclusions. Given the Commission's intent that
the reserve prices should maximize the possibility of recovering an
appropriate portion of the value of the public spectrum resource while
enabling licensing as promptly as possible, the Wireless Bureau should
establish the particular amounts of the block-specific aggregate
reserves by taking into account a conservative estimate of market value
based on auction results for AWS-1 spectrum licenses. More
specifically, the Wireless Bureau should consider the following factors
when setting the block-specific aggregate reserves. The detailed rules
regarding the D Block license, the D Block licensee's required
construction of a network to be shared by public safety service users,
and the resulting limitations on the flexibility of the D Block
licensee, should be given substantial weight in assessing the D Block's
value. Based solely on geographic area and spectrum block size, AWS-1
auction results might suggest a D Block reserve of $1.7 billion.
However, in light of the D Block license conditions essential to the
public safety purpose of the public/private partnership, it might be
appropriate to expect the D Block licensee to contribute only about 75
percent to 80 percent of such an amount, or about $1.33 billion. In
addition, when determining relative valuation of other blocks, the
Wireless Bureau should consider the relative valuation of differing
blocks in the recent auction of AWS-1 licenses.
63. Subsequent Auction of Alternative Licenses. The Commission
recognizes that it is possible that the auction results may not satisfy
one or more of the block-specific reserves. In that event, the
Commission establishes a process to enable the assignment of
alternative licenses for the A, B, C, and E Blocks of the 700 MHz Band
as soon as possible in order to promote the speedy deployment of
services utilizing 700 MHz Band spectrum. Under the Commission's rules,
the license for the D Block may also be re-offered in a subsequent
auction..
64. The Commission also establishes a process to enable the
assignment of alternative licenses as soon as possible in the event
that the relevant block-specific aggregate reserve price is not met
when those licenses are first offered. Specifically, the Commission
will offer the more flexible, less conditioned licenses described below
in the A, B, C, and E Blocks as soon as possible after the first
auction. Given the unique character of the D Block license conditions,
the Commission leaves open the possibilities of reevaluating those
conditions or of promptly offering that license again in a subsequent
auction, in the event the D Block-specific reserve is not met.
[[Page 48822]]
65. The Commission also provides that the auction of alternative
licenses shall be subject to the same applicable reserve prices as the
initial auction of licenses. The Wireless Bureau has delegated
authority, however, to determine the appropriate means of
reapportioning the reserve associated with the C Block in light of the
Commission's determination to split the block into two blocks should a
re-auction occur. This assures both that any initial and subsequent
auctions will be as similar as possible (other than with respect to
particular license terms) and also that the final assignment of the
licenses will be based only on which licenses are able to serve the
statutory goal of recovering a portion of the value of the public
spectrum resource fixed in advance of the auction. Therefore, the
Commission anticipates that the reserve price for the C Block would be
approximately $4.6 billion.
66. Performance Requirements for Alternative Licenses. The
Commission concludes that a failure of the auction results for the A,
B, and E Block licenses to satisfy the applicable block-specific
aggregate reserve should result in a prompt offering of alternative
licenses for the relevant block(s) that are subject to performance
requirements with the population benchmark regime the Commission has
adopted for the C Block licenses.
67. Changes to Alternative C Block Licenses. The Commission
concludes that in the event that auction results for conditioned Upper
700 MHz C Block licenses do not satisfy the aggregate reserve price for
the C Block, the Commission will offer as soon as possible licenses for
the C Block without the open platform conditions. The Commission will
also modify the C Block band plan. The Commission will reconfigure the
bandwidth of the licenses to create two paired blocks of 6 and 5
megahertz each, which the Commission will label the C1 and C2 Blocks.
Further, the Commission will license the C1 Block based on EAs and the
C2 Block based on REAGs.
68. D Block License. The Commission concludes that it should not
alter the conditions it has adopted today for the D Block license based
solely on auction results. The Commission believes that a D Block-
specific aggregate reserve of approximately $1.33 billion is
appropriate given the Commission's goal of enabling the recovery of a
portion of the value of the spectrum while also permitting licensing to
proceed as quickly as possible. If, however, the D Block-specific
aggregate reserve is not met, the Commission concludes that it should
leave open the possibility of re-offering the license on the same terms
in a subsequent auction, as well as the possibility of re-evaluating
all or some of the applicable license conditions.
69. Auction Procedures. The Commission directs the Wireless Bureau
to adopt for the auction of 700 MHz Band licenses, consistent with its
delegated authority and pursuant to its routine pre-auction process,
procedures that will enable a prompt subsequent auction of alternative
licenses for any block in the event that the relevant block-specific
aggregate reserve price is not met. This order's provisions with
respect to the procedures for the initial auction, including with
respect to anonymous and package bidding, will continue to apply in any
subsequent auction. Furthermore, the same applicable reserve prices for
each block of licenses shall apply in both the initial and subsequent
auctions, recogniz
