Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band, 29582-29623 [E8-11247]
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Federal Register / Vol. 73, No. 99 / Wednesday, May 21, 2008 / Proposed Rules
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 0, 1, 2, 27, 90
[WT Docket No. 06–150; PS Docket No. 06–
229; FCC 08–128]
Service Rules for the 698–746, 747–762
and 777–792 MHz Bands, Implementing
a Nationwide, Broadband,
Interoperable Public Safety Network in
the 700 MHz Band
Federal Communications
Commission.
ACTION: Proposed rule.
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AGENCY:
SUMMARY: In the Second Further Notice
of Proposed Rulemaking (Second
FNPRM), the Commission seeks
comment on clarifications or revisions
to the rules governing the Public Safety
Broadband Licensee and the Upper 700
MHz D Block licensee. The Commission
seeks comment on whether to continue
to require these licensees to enter into
a 700 MHz Public/Private Partnership
for the purpose of enabling the
construction of a nationwide,
interoperable broadband network, and if
so, what clarifications or revisions to
adopt to the rules governing the
licensees and the 700 MHz Public/
Private Partnership. Further, the
Commission seeks comment on what
rules to adopt if it determines that the
public/private partnership obligation
should not be retained. This Second
Further Notice is another step in the
Commission’s ongoing efforts to develop
a regulatory framework in which to
meet current and future public safety
communications needs.
DATES: Written comments are due on or
before June 20, 2008, and reply
comments are due on or before July 7,
2008.
ADDRESSES: You may submit comments,
identified by WT Docket No. 06–150
and PS Docket No. 06–229, by any of the
identified methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Federal Communications
Commission’s Web Site: https://
www.fcc.gov/cgb/ecfs/. Follow the
instructions for submitting comments.
• Mail: Follow the instructions for
paper filers below.
• People with Disabilities: Contact the
Commission to request reasonable
accommodations (accessible format
documents, sign language interpreters,
CART, etc.) by e-mail: FCC504@fcc.gov
or phone: 202–418–0530 or TTY: 202–
418–0432.
For detailed instructions for
submitting comments and additional
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information on the rulemaking process,
see the SUPPLEMENTARY INFORMATION
section of this document.
FOR FURTHER INFORMATION CONTACT:
Peter Trachtenberg at (202) 418–7369, at
peter.trachtenberg@fcc.gov, Spectrum
and Competition Policy Division,
Wireless Telecommunications Bureau;
Jeffrey S. 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
Further Notice of Proposed Rulemaking,
WT Docket No. 06–150, PS Docket No.
06–229, adopted on May 14, 2008 and
released May 14, 2008. The full text of
the Second Further Notice of Proposed
Rulemaking 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 the Second Report and Order, 72
FR 48814, August 24, 2007, the
Commission adopted rules for the
establishment of a mandatory public/
private partnership (the 700 MHz
Public/Private Partnership) in the upper
portions of the 698–806 MHz band (700
MHz Band) as the means for promoting
the rapid construction and deployment
of a nationwide, interoperable
broadband public safety network that
would serve public safety and homeland
security needs. Specifically, the
Commission required that the winning
bidder of the commercial license in the
Upper 700 MHz D Block (758–763/788–
793 MHz) (D Block) enter into the 700
MHz Public/Private Partnership with
the nationwide licensee of the public
safety broadband spectrum (763–768/
793–798 MHz) (Public Safety Broadband
Licensee) to enable construction of this
interoperable broadband network,
which would span both the commercial
D Block and public safety spectrum. In
the recently concluded auction of
commercial 700 MHz licenses, bidding
for the D Block license did not meet the
applicable reserve price of $1.33 billion
and, pursuant to the Commission’s
rules, there was no winning bid for that
license. Accordingly, in this Second
FNPRM, the Commission revisits its
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decisions concerning the 700 MHz
Public/Private Partnership—considering
revisions to this partnership as well as
alternative rules the Commission should
adopt in the event the D Block licensee
is no longer required to enter into a
mandatory public/private partnership.
First, the Commission considers
whether to adopt clarifications and
revisions to the public safety component
of the 700 MHz Public/Private
Partnership to better promote its public
interest goals. In particular, the
Commission seeks comment regarding
what entities are eligible under Section
337 of the Communications Act as
amended and the Commission’s rules to
use the public safety spectrum in the
shared wireless broadband network as
public safety users rather than as
commercial users, and whether such
users should be required to use or
subscribe to the shared network. The
Commission also seeks comment on
possible clarifications of or changes to
the rules governing the structure and
criteria of the Public Safety Broadband
Licensee, whether to clarify further the
requirement that the Public Safety
Broadband Licensee must be a nonprofit organization, what measures to
adopt to provide adequate Commission
oversight, whether providing a
nationwide, interoperable broadband
network might be more effectively and
efficiently accomplished by allowing
State governments to assume
responsibility for coordinating the
participation of the public safety
providers in their jurisdictions, and
whether the Commission should rescind
the current Public Safety Broadband
License and seek new applicants.
In addition, the Commission seeks
comment on whether it remains in the
public interest to require a public/
private partnership between the
nationwide D Block licensee and the
Public Safety Broadband Licensee for
the purpose of creating a nationwide,
interoperable broadband network for
both commercial and public safety
network services. To ensure a thorough
consideration of the Commission’s
options in the event that it does
continue to require a public/private
partnership between these licensees, the
Commission seeks comment broadly on
possible revisions to the 700 MHz
Public/Private Partnership, including
revisions regarding the respective
obligations of the D Block licensee and
the Public Safety Broadband Licensee.
In particular, it seeks comment on the
following issues: (1) The technical
requirements of the shared wireless
broadband network to be constructed by
the D Block licensee, (2) the rules
governing public safety priority access
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to the D Block spectrum during
emergencies, and whether the
Commission should continue to require
the D Block licensee to provide such
access; (3) the D Block performance
requirements and license term; (4) the
respective roles and responsibilities of
the D Block licensee and Public Safety
Broadband Licensee in connection with
the 700 MHz Public/Private Partnership
and the shared wireless broadband
network; (5) the various fees associated
with the shared network; (6) the process
for negotiating and establishing the
Network Sharing Agreement, including
the consequences of a failure to reach
agreement; (7) certain auction-related
issues, including whether to restrict
who may participate in the new auction
of the D Block license, whether and how
to set any reserve price for such an
auction, whether to adopt an exception
to the impermissible material
relationship rule for the determination
of designated entity eligibility with
respect to arrangements for the lease or
resale (including wholesale) of the
spectrum capacity of the D Block
license, and whether the Commission
should modify the auction default
payment rules with respect to the D
Block winning bidder; and (8) rules
governing the relocation of the public
safety narrowband operations. In this
Second FNPRM, the Commission
includes an appendix that serves as a
possible framework for establishing the
technical requirements for the 700 MHz
Public/Private Partnership shared
wireless broadband network. This
appendix is intended to solicit detailed
comment and result in a final set of
technical requirements that will provide
greater certainty for bidders for the D
Block license while ensuring that the
network meets public safety’s needs; the
appendix is not intended to prejudge
any of the issues identified for comment
in the Second FNPRM. Finally, the
Commission seeks comment on any
other revisions or clarifications that may
be appropriate with regard to the 700
MHz Public/Private Partnership,
including whether to license the D
Block and public safety broadband
spectrum on a nationwide or adopt a
regional geographic service area basis
such as Regional Economic Area
Grouping (REAG).
In addition to considering possible
revisions to the 700 MHz Public/Private
Partnership, the Commission considers
its options if the D Block is licensed
without this 700 MHz Public/Private
Partnership condition. For any
circumstances where the Commission
determines that the 700 MHz Public/
Private Partnership condition on the D
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Block should not be retained, it seeks
comment on revisions to the rules that
would be appropriate with respect to
the D Block license as well as revisions
with regard to the Public Safety
Broadband License that would ensure
the development and deployment of a
nationwide interoperable broadband
network for public safety users. With
respect to the D Block, the Commission
seeks comment in particular on the
service rules that should apply in this
event, including the appropriate
geographic license area, performance
requirements, technical limits, and
whether to adopt alternate conditions,
such as an open access or wholesale
requirement. The Commission seeks
comments on the appropriate revisions
to the rules that would still enable the
Commission to achieve the goal of a
nationwide, interoperable public safety
broadband network. For example, the
Commission seeks comment on: (1)
Whether the Commission should adopt,
possibly with modifications, the
approach proposed in the Public Safety
Ninth Notice of Proposed Rulemaking,
72 FR 1201, January 10, 2007, which,
among other aspects, would allow
commercial providers to enter into
voluntary arrangements with the Public
Safety Broadband Licensee to provide
public safety services through access to
their commercial network infrastructure
and/or through new network build-out
in exchange for preemptible access to
public safety spectrum; (2) whether to
require the adoption of a common
broadband standard, and permit
regional, state and local entities to build
public safety broadband networks built
to that standard, either through a
spectrum lease with the Public Safety
Broadband Licensee or by reassigning
the public safety broadband spectrum
for regional, state, or local licensing; (3)
whether the Commission, in the absence
of the public/private partnership,
should continue to obligate the D Block
winner to fund the relocation of those
public safety narrowband systems
operating in the lower portion of the
public safety spectrum; and (4) whether,
in the absence of a public safety/private
partnership, there are viable options for
funding network construction.
The Commission initiates this Second
FNPRM with the following principles
and goals: (1) To identify concerns in
the existing structure of the 700 MHz
Public/Private Partnership to inform the
Commission’s decision making going
forward; (2) to promote wireless
innovation and broadband network
penetration while meeting the
communications needs of the first
responder community in a
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commercially viable manner; (3) to
facilitate public safety access to a
nationwide, interoperable broadband
network in a timely manner; (4) to
identify funding opportunities for the
public safety community to realize the
promise of a broadband
communications infrastructure with a
nationwide level of interoperability; and
(5) to maximize the commercial and
public safety benefits of this unique
piece of 700 MHz spectrum. The
Commission invites comment broadly
on these principles and goals, as well as
the other subjects discussed. While this
Second FNPRM raises a number of
specific questions, it should not be seen
as providing any limitation on the
issues that the Commission seeks
comment upon. The Commission is
interested in any and all perspectives
from interested parties on how it can
develop rules and procedures that will
achieve the multiple goals enumerated
above.
Discussion
I. Introduction
1. In the Second Report and Order, we
adopted rules for the establishment of a
mandatory public/private partnership
(‘‘the 700 MHz Public/Private
Partnership’’) in the upper portions of
the 698–806 MHz band (‘‘700 MHz
Band’’) as the means for promoting the
rapid construction and deployment of a
nationwide, interoperable broadband
public safety network that would serve
public safety and homeland security
needs.1 Specifically, we required that
the winning bidder of the commercial
license in the Upper 700 MHz D Block
(758–763/788–793 MHz) (‘‘D Block’’)
enter into the 700 MHz Public/Private
Partnership with the nationwide
licensee of the public safety broadband
spectrum (763–768/793–798 MHz)
1 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
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, Declaratory Ruling on
Reporting Requirement under Commission’s Part 1
Anti-Collusion Rule, WT Docket No. 07–166,
Second Report and Order, 22 FCC Rcd 15289 (2007)
(Second Report and Order) recon. pending.
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(‘‘Public Safety Broadband Licensee’’) to
enable construction of this interoperable
broadband network, which would span
both the commercial D Block and public
safety spectrum. As essential
components of this partnership, the D
Block licensee would be chiefly
responsible for the construction and
operation of a state-of-the-art shared
wireless broadband network that would
be used by public safety users as well
as commercial users. In exchange for
taking on these responsibilities, the D
Block licensee would gain access to the
public safety broadband spectrum for
use by its commercial customers on a
secondary preemptible basis. In turn,
public safety users, through the Public
Safety Broadband Licensee, would
benefit from obtaining access to a stateof-the-art broadband network on their
700 MHz spectrum that would
incorporate their unique requirements,
which would not otherwise be possible
given the limited availability of public
funding.2 In Auction 73, the recently
concluded auction of commercial 700
MHz licenses, bidding for the D Block
license did not meet the applicable
reserve price of $1.33 billion and,
pursuant to the Commission’s rules,
there was no winning bid for that
license.3 In the D Block Post-Auction
Order released shortly after the close of
Auction 73, we determined not to reoffer the D Block license immediately in
order to ‘‘provide additional time to
consider options with respect to the D
Block spectrum.’’4 Accordingly, in this
Second FNPRM of Proposed
Rulemaking (‘‘Second FNPRM’’), we
revisit our decisions concerning the 700
MHz Public/Private Partnership—
considering revisions to this partnership
as well as alternative rules we should
adopt in the event the D Block licensee
is no longer required to enter into a
mandatory public/private partnership.
2. First, we consider clarifications and
revisions to the public safety component
of the 700 MHz Public/Private
Partnership that would better promote
2 Id.
at 15295 para. 13, 15431 para. 396.
auction of these 700 MHz licenses,
designated Auction 73, began on January 24, 2008,
and concluded March 18, 2008. See https://
wireless.fcc.gov/auctions/default.htm?job=auction_
summary&id=73.
4 Auction of the D Block License in the 758–763
and 788–793 MHz Bands, AU Docket No. 07–157,
Order, FCC 08–91, para. 3 (rel. Mar. 20, 2008) (D
Block Post-Auction Order). In the Second Report
and Order, the Commission decided that, if the
reserve price for the D Block was not satisfied in
the initial auction results, the Commission might
either re-offer the license on the same terms in an
immediate second auction, or re-evaluate the
license conditions. See Second Report and Order,
22 FCC Rcd at 15404 para. 314.
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our public interest goals.5 More
specifically, we seek comment on
whether, under Section 337 of the
Communications Act of 1934, as
amended (‘‘Act’’),6 and Section 90.523
of the Commission’s rules,7 only entities
that are providing public safety services,
as defined in the Act, are eligible to use
the public safety spectrum portion of
the shared network established under
the 700 MHz Public/Private Partnership,
and whether such entities should be
required to subscribe to the network. We
also seek comment on whether to clarify
the requirement that the Public Safety
Broadband Licensee be a non-profit
organization and specify that entities
associated with the public safety
component of the 700 MHz Public/
Private Partnership, apart from outside
advisors or counsel with no debt or
equity relationship to the Public Safety
Broadband Licensee, may not be forprofit entities. We seek comment on
these and other clarifications or changes
to the structure of the Public Safety
Broadband Licensee and the criteria
adopted in the Second Report and
Order.
3. In addition, we seek comment on
possible modifications to the various
rules governing the D Block licensee
and the Public Safety Broadband
Licensee within the framework of the
700 MHz Public/Private Partnership (as
revised or clarified). First, we seek
comment on whether it remains in the
public interest to require a public/
private partnership between the
nationwide D Block licensee and the
Public Safety Broadband Licensee for
the purpose of creating a nationwide,
interoperable broadband network for
both commercial and public safety
network services. Next, to ensure a
thorough consideration of the
Commission’s options in the event that
we do continue to require a public/
private partnership between these
licensees, we seek comment on a broad
set of possible revisions to the 700 MHz
Public/Private Partnership, including
revisions regarding the respective
obligations of the D Block licensee and
the Public Safety Broadband Licensee.
In particular, we seek comment on the
following issues: (1) The technical
requirements of the shared wireless
broadband network to be constructed by
the D Block licensee, (2) the rules
governing public safety priority access
5 We use the term ‘‘700 MHz Public/Private
Partnership’’ to refer specifically to a mandatory
public/private partnership between the D Block
licensee and the Public Safety Broadband Licensee,
along the general lines initially set forth in the
Second Report and Order.
6 47 U.S.C. 337.
7 47 CFR 90.523.
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to the D Block spectrum during
emergencies; (3) the D Block
performance requirements and license
term; (4) the respective roles and
responsibilities of the D Block licensee
and Public Safety Broadband Licensee
in connection with the 700 MHz Public/
Private Partnership and the shared
wireless broadband network, including
whether the Public Safety Broadband
Licensee may assume responsibilities
akin to a ‘‘mobile virtual network
operator’’ 8; (5) the various fees
associated with the shared network; (6)
the process for negotiating and
establishing the Network Sharing
Agreement, including the consequences
of a failure to reach agreement; (7)
certain auction-related issues, including
whether to restrict who may participate
in the new auction of the D Block
license, how to determine any reserve
price for such an auction, whether to
adopt an exception to the impermissible
material relationship rule for the
determination of designated entity
eligibility with respect to arrangements
for the lease or resale (including
wholesale) of the spectrum capacity of
the D Block license, and whether we
should modify the auction default
payment rules with respect to the D
Block winning bidder; and (8) relocation
of the public safety narrowband
operations. Finally, we seek comment
on other revisions or clarifications that
may be appropriate with regard to the
700 MHz Public/Private Partnership,
including whether to license the D
Block and public safety broadband
spectrum on a nationwide or adopt a
regional geographic service area basis
such as Regional Economic Area
Grouping (REAG).9
4. In addition to considering possible
revisions to the 700 MHz Public/Private
Partnership, we consider our options if
the D Block is licensed without this 700
MHz Public/Private Partnership
condition. We note that there are several
circumstances where such options
might be relevant. First, we might
determine that we should not re-auction
the D Block with the 700 MHz Public/
Private Partnership condition, and
instead immediately conduct an auction
to license the D Block without such a
8 A mobile virtual network operator is a nonfacility-based mobile service provider that resells
service to the public for profit. See Implementation
of Section 6002(B) of the Omnibus Budget
Reconciliation Act of 1993, WT Docket No. 05–71,
Tenth Report, 20 FCC Rcd 15908, 15920 para. 27
(2005).
9 As licensing the D Block on a REAG basis would
result in issuing multiple D Block licenses,
references herein to ‘‘the’’ D Block license and
licensee should be understood to incorporate
reference to any of multiple D Block licenses or
licensees and vice versa, as appropriate.
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condition. In addition, we might
conclude that, even if we should retain
the 700 MHz Public/Private Partnership
condition in the next D Block auction,
the condition should be removed if the
next D Block auction fails to produce a
winning bidder, or the winning bidder
defaults or fails to negotiate a successful
Network Sharing Agreement with the
Public Safety Broadband Licensee.
Therefore, for any circumstances where
we determine that the 700 MHz Public/
Private Partnership condition on the D
Block should not be retained, we seek
comment on revisions to the rules that
would be appropriate with respect to
the D Block license as well as revisions
with regard to the Public Safety
Broadband License that would ensure
the development and deployment of a
nationwide interoperable broadband
network for public safety users.
5. Finally, we note that, in adopting
the Second Report and Order, we took
an innovative approach to addressing a
vitally important problem: Promoting
interoperability, on a nationwide basis,
for public safety communications. We
intended that the mandatory public/
private partnership model between two
nationwide licensees—the commercial
D Block licensee and the non-profit
Public Safety Broadband Licensee—
would facilitate access for public safety
to a robust, advanced communications
infrastructure and produce economies of
scale inherent in a nationwide footprint.
Importantly, we also found that this
approach was the best means available
to address the issue of funding for
construction of a public safety
communications infrastructure, which
has proven a significant impediment to
date. At the same time, however, we
anticipated that the partnership would
involve a balance between the
commercial partner’s obligation to
construct a shared network
infrastructure and the commercial
partner’s secondary access to the 700
MHz public safety broadband spectrum.
By partnering these two spectrum
assets, we intended to promote
spectrum efficiency and innovation.
Thus, we aimed to have the 700 MHz
Public/Private Partnership between the
D Block licensee and the Public Safety
Broadband Licensee be complementary,
and we designed this framework to
strike the appropriate balance such that
the maximum benefits accrued to both
parties.
6. Although the initial sale of the D
Block license did not result in a
winning bidder, these goals remain. In
reexamining our approach to the D
Block following Auction 73, we
continue to proceed with these
objectives in mind. Accordingly, we
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initiate this Second FNPRM with the
following principles and goals:
• To identify concerns in the existing
structure of the 700 MHz Public/Private
Partnership to inform our decision
making going forward;
• To promote wireless innovation and
broadband network penetration while
meeting the communications needs of
the first responder community in a
commercially viable manner;
• To facilitate public safety access to
a nationwide, interoperable broadband
network in a timely manner;
• To identify funding opportunities
for the public safety community to
realize the promise of a broadband
communications infrastructure with a
nationwide level of interoperability; and
• To maximize the commercial and
public safety benefits of this unique
piece of 700 MHz spectrum.
7. We invite comment broadly on
these principles and goals, as well as the
specific subjects discussed herein.
While today’s item raises a number of
specific questions, it should not be seen
as providing any limitation on the
public safety issues that we seek
comment upon. We are interested in any
and all perspectives from interested
parties on how the Commission can
develop rules and procedures that will
achieve the multiple goals enumerated
above. Finally, before ultimately
adopting final rules in response to this
Second FNPRM, we plan to present for
public comment, in a subsequent
FNPRM of Proposed Rulemaking, a
detailed proposal regarding the specific
proposed rules.10
II. Background
8. In the Second Report and Order,
released August 10, 2007, we adopted a
band plan and service rules affecting the
upper portions of the 700 MHz Band in
order to promote the creation of a
nationwide, interoperable broadband
public safety network through the
establishment of the 700 MHz Public/
Private Partnership. Specifically, with
regard to the public safety spectrum in
the 700 MHz Band, we designated the
lower half of this spectrum (the 763–768
MHz and 793–798 MHz bands) for
public safety broadband
communications, and we consolidated
existing narrowband allocations to the
upper half of the spectrum (the 769–775
MHz and 799–805 MHz bands).11 We
10 In
this subsequent Further Notice of Proposed
Rulemaking, we plan to seek comment on an
expedited basis, with comments due fourteen days
after publication in the Federal Register, and reply
comments due twenty-one days after such
publication.
11 See Second Report and Order, 22 FCC Rcd at
15406. We also created an internal guard band in
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also created a single nationwide license
for the public safety broadband
spectrum, and we specified the criteria,
selection process, and responsibilities of
the licensee assigned this spectrum, the
Public Safety Broadband Licensee.12 We
required, for example, that no
commercial interest may be held in the
Public Safety Broadband Licensee, that
no commercial interest may participate
in the management of the licensee, and
that the licensee must be a non-profit
organization.13 With regard to the
commercial spectrum in the 700 MHz
Band, we designated one block—the D
Block (the 758–763 MHz and 788–793
MHz bands) located adjacent to the
public safety broadband spectrum
block—for use as part of the 700 MHz
Public/Private Partnership. As set forth
in the Second Report and Order, we
required the D Block licensee, working
with the Public Safety Broadband
Licensee in a public/private
partnership, to construct and operate a
nationwide network shared by both
commercial and public safety users.14
9. The 700 MHz Public/Private
Partnership. In the Second Report and
Order, we determined that promoting
commercial investment in the build-out
of a shared network infrastructure for
both commercial and public safety users
through the 700 MHz Public/Private
Partnership would address ‘‘the most
significant obstacle to constructing a
public safety network—the limited
availability of public funding.’’ 15 We
concluded that providing for a shared
infrastructure using the D Block and the
public safety broadband spectrum
would help achieve significant cost
efficiencies. We noted that this would
allow public safety agencies ‘‘to take
advantage of commercial, off-the-shelf
technology and otherwise benefit from
commercial carriers’ investments in
research and development of advanced
wireless technologies.’’ 16 We also stated
that this approach could benefit the
public safety community by providing it
with access to an additional 10
megahertz of broadband spectrum
during emergencies, when it is needed
most. Most importantly, it was our view
that this particular public/private
partnership approach would provide all
of these benefits on a nationwide basis
and thus provide the most practical
means of speeding deployment of a
the 768–769 MHz and 798–799 MHz bands located
between the broadband and narrowband
allocations. Id.
12 See id.
13 See id. at 15421.
14 Id. at 15428.
15 Id. at 15431.
16 Id. (citing Sprint Nextel 700 MHz Further
Notice Comments at 7–8).
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nationwide, interoperable, broadband
network for public safety service that is
designed to meet their needs in times of
crisis. At the same time, we pointed out
that the 700 MHz Public/Private
Partnership would provide the D Block
licensee with rights to operate
commercial services in the 10 megahertz
of public safety broadband spectrum on
a secondary, preemptible basis, which
would both help to defray the costs of
build-out and ensure that the spectrum
is used efficiently.17
10. We established various features of
the 700 MHz Public/Private Partnership.
First, we set forth the essential
components of this partnership.18 In
particular, we specified certain
parameters for the shared wireless
broadband network, including features
relating to the technology platform,
signal coverage, robustness and
reliability, capacity, security,
operational capabilities and control, and
certain equipment specifications.19
With regard to the spectrum shared by
the common network, we required that
the Public Safety Broadband Licensee
lease the public safety broadband
spectrum for commercial use by the D
Block licensee on a secondary,
preemptible basis and provided that the
public safety entities would have
priority access to the D Block spectrum
during emergencies.20 We also
established certain minimal
performance requirements relating to
construction and build-out of the shared
700 MHz Public/Private Partnership
network.21
11. Next, we established that the
terms of the 700 MHz Public/Private
Partnership would be governed both by
Commission rules and by a Network
Sharing Agreement (‘‘NSA’’) to be
negotiated by the winning bidder for the
D Block license and the Public Safety
Broadband Licensee.22 Throughout the
Second Report and Order we identified
certain elements that the parties were
required to address in the NSA. These
included, for instance, the details of
certain mandatory network
specifications established in the order
and a detailed build-out schedule as
jointly agreed upon by the Public Safety
Broadband Licensee and the D Block
licensee.23 We also determined that the
NSA should include, among other
things, specification of all service fees
that public safety entities would pay
with respect to access and use of the
shared network, both in terms of fees
applicable for normal network service
and fees for priority access to the D
Block spectrum in an emergency.24
12. We established rules governing
the establishment of the NSA to ensure
timely completion of the negotiations
and to resolve any disputes that may
arise.25 Among other rules, we required
the winning bidder of the D Block
license and the Public Safety Broadband
Licensee to negotiate in good faith, and
we provided that the D Block license
application would not be granted until
the parties obtained Commission
approval of the agreement, executed,
and then filed the NSA with the
Commission.26 We also required the
negotiations to begin by a date certain
and conclude within six months.
Further, we specified rules to govern in
the event of a negotiation dispute.
Specifically, we provided that if, at the
end of the six month negotiation period,
or on their own motion at any time, the
Chiefs of the Public Safety and
Homeland Security Bureau (‘‘PSHSB’’)
and the Wireless Telecommunications
Bureau (‘‘WTB’’) found that negotiations
had reached an impasse, they could take
a variety of actions to resolve any
disputes, including but not limited to
issuing a decision on the disputed
issues and requiring the submission of
a draft agreement consistent with their
decision.27
13. Narrowband Relocation. In the
Second Report and Order, we found
that, in order to maximize the benefits
of the 700 MHz Public/Private
Partnership to deploy a nationwide,
interoperable broadband
communications network, the current
700 MHz narrowband public safety
operations must be consolidated and
cleared no later than the DTV transition
date.28 To effectuate the consolidation
of the narrowband channels, we
required the D Block licensee to pay the
costs of relocating narrowband radios to
the newly consolidated portion of the
band and capped the disbursement
amount for such relocation costs at $10
million.29 We also cautioned that any
narrowband equipment deployed in the
764–770 MHz and 794–800 MHz bands
(channels 63 and 68), or in the 775–776
MHz and 805–806 MHz bands (the
upper one megahertz of channels 64 and
69), more than 30 days following the
adoption date of the Second Report and
17 Id.
18 Id.
24 Id.
19 Id.
at 15432.
at 15432, 15433–44.
20 Id. at 15432, 15434–43.
21 Id. at 15432, 15443–46.
22 Id. at 15432, 15447–49.
23 Id. at 15448–49.
25 Id.
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at 15448–49.
at 15448.
26 Id. at 15448.
27 Id. at 15465.
28 Id. at 15410.
29 Id. at 15412.
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Order would be ineligible for relocation
funding.30 In addition, we prohibited
authorization of any new narrowband
operations in that spectrum, as of 30
days following the adoption date of the
Second Report and Order.31
14. Rules for an Auction to License
the D Block. In addition to adopting
service rules for the 700 MHz
commercial spectrum, including the D
Block, we also made several
determinations regarding the auction of
the 700 MHz commercial licenses. In
particular, we concluded that blockspecific aggregate reserve prices should
be established for each commercial
license block—the A, B, C, D, and E
Blocks—to be auctioned in Auction 73,
and directed WTB to adopt and publicly
disclose those reserve prices prior to the
auction, pursuant to its existing
delegated authority and consistent with
our directions.32 For the D Block, we
concluded that WTB should consider
certain factors in setting the D Block
reserve price, including the 700 MHz
Public/Private Partnership conditions,
which might suggest a reserve price of
$1.33 billion. We provided that, in the
event that bids for the D Block license
did not meet the reserve price, we
would leave open the possibility of
offering the license on the same terms
or re-evaluating the D Block license
conditions.33
15. In an effort to encourage the
widest range of potentially qualified
applicants to participate in bidding for
the D Block license, in the Second
Report and Order, we enabled eligible
applicants for this license to seek
designated entity bidding credits for
small businesses as a means to create
incentives for investors to provide
innovative small businesses with the
capital necessary to compete for the D
Block license at auction.34 We
subsequently decided to waive, on our
own motion, the application of our
‘‘impermissible material relationship’’
rule 35 for purposes of determining an
applicant’s or licensee’s designated
entity eligibility solely with respect to
arrangements for lease or resale
(including wholesale) of the spectrum
capacity of the D Block license.36 Given
the unique characteristics of the
regulations governing the D Block
30 Id.
at 15412.
31 Id.
32 See
id. at 15400.
id. at 15404.
34 47 CFR 27.502.
35 47 CFR 1.2110(b)(3)(iv)(A).
36 See generally Waiver of Section
1.2110(b)(3)(iv)(A) of the Commission’s Rules for
the Upper 700 MHz Band D Block License, Order,
22 FCC Rcd 20354 (2007) (D Block Waiver Order)
recon. pending.
33 See
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license, we concluded that a waiver of
the impermissible material relationship
rule served the public interest.37
16. Petitions for Reconsideration. Ten
parties filed petitions for
reconsideration seeking review of
various aspects of the Second Report
and Order.38 Three of the petitions
sought reconsideration of the rules
governing the 700 MHz Public/Private
Partnership specifically,39 and two
petitioners sought reconsideration of the
aggregate reserve prices set for the
commercial license blocks, including
the D Block.40 These petitioners
presented related arguments in the preauction process.41 After considering the
arguments, WTB established reserve
prices consistent with the direction of
the Second Report and Order.42 Two
other parties filed petitions seeking
reconsideration of some or all of the
requirements regarding public safety
narrowband relocation, and also filed
requests for waiver of some of these
requirements.43 All of the petitions
remain pending.
37 Id.
at 20354.
Inc. Petition for Reconsideration and
Clarification, WT Docket No. 06–150; PS Docket No.
06–229 (filed Sept. 24, 2007); Blooston Rural
Carriers Petition for Partial Reconsideration and/or
Clarification (filed Sept. 24, 2007); Petition for
Reconsideration of the Ad Hoc Public Interest
Spectrum Coalition (filed Sept. 24, 2007); Cyren
Call Communications Corporation Petition for
Reconsideration and for Clarification (filed Sept. 24,
2007); Frontline Wireless, LLC Petition for
Reconsideration (filed Sept. 24, 2007); Pierce
Transit Petition for Reconsideration (filed Sept. 24,
2007); Rural Telecommunications Group, Inc.
Petition for Reconsideration (filed Sept. 24, 2007);
Commonwealth of Virginia Petition for
Reconsideration (filed Sept. 24, 2007); NTCH, Inc.
Petition for Partial Reconsideration (filed Sept. 21,
2007); MetroPCS Communications, Inc. Petition for
Clarification and Reconsideration (filed Sept. 20,
2007).
39 See AT&T Petition for Reconsideration; Cyren
Call Petition for Reconsideration; Frontline Petition
for Reconsideration. The Frontline September 20,
2007 Request also seeks changes to the rules
governing the 700 MHz Public/Private Partnership.
See Request to Further Safeguard Public Safety
Service by Frontline Wireless, WT Docket No. 06–
150 (filed Sept. 20, 2007) (Frontline September 20,
2007 Request).
40 See Frontline Petition for Reconsideration;
MetroPCS Petition for Reconsideration.
41 See Auction of 700 MHz Band Licenses
Scheduled for January 24, 2008; Notice and Filing
Requirements, Minimum Opening Bids, and other
Procedures for Auctions 73 and 76, Public Notice,
22 FCC Rcd 18141, 18194–95 (2007) (Auction 73/
76 Procedures Public Notice).
42 See id. at 18193–96.
43 See Commonwealth of Virginia Petitions for
Reconsideration; Pierce Transit Petition for
Reconsideration. Pierce Transit and Virginia have
been granted limited waiver relief. See
Implementation of 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, Order, 22 FCC
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17. Auction 73. The auction of 700
MHz Band licenses, designated Auction
73, commenced on January 24, 2008,
and closed on March 18, 2008.44 While
the bids for licenses associated with the
other 700 MHz Band blocks (the A, B,
C, and E Blocks) exceeded the
applicable reserve prices, bids for the D
Block license did not meet the reserve
price and there was no winning bid for
that license.45
18. D Block Post-Auction Order. On
March 20, 2008, we determined that we
would not proceed immediately to reauction the D Block license.46 We made
this decision in order to provide
additional time to consider our various
options with respect to the D Block
spectrum.47
19. Inspector General’s Report. On
April 25, 2008, the Office of Inspector
General (OIG) issued a report on its
investigation relating to allegations
relating to whether certain statements
made by an advisor to the Public Safety
Broadband Licensee to potential bidders
for the D Block license in Auction 73,
particularly those regarding the
spectrum lease payments that the Public
Safety Broadband Licensee would
request from the D Block licensee for
use of public safety spectrum, had the
effect of deterring various companies
from bidding on the D Block.48 The OIG
determined that the statements in
question were ‘‘not the only factor in the
companies’ decision not to bid on the D
Block.’’ Rather, it concluded that ‘‘the
uncertainties and risks associated with
the D Block, including, but not limited
to, the negotiation framework with [the
Public Safety Broadband Licensee], the
potential for default payment if
negotiations failed, and the costs of the
build-out and the operations of the
network, taken together, deterred each
of the companies from bidding on the D
Block.’’ 49
Rcd 20290 (2007); 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; Request for Waiver of Pierce Transit, PS
Docket No. 06–229, WT Docket No. 96–86, Order,
23 FCC Rcd 433 (PSHSB 2008).
44 See https://wireless.fcc.gov/auctions/
default.htm?job=auction_summary&id=73.
45 See id.; see also ‘‘Auction of 700 MHz Band
Licenses Closes,’’ Public Notice, DA 08–595 (rel.
Mar. 20, 2008) (700 MHz Auction Closing Public
Notice).
46 See D Block Post-Auction Order at para. 5.
47 See id.
48 See Office of Inspector General Report, from
Kent R. Nilsson, Inspector General, to Chairman
Kevin J. Martin (OIG rel. Apr. 25, 2008) (OIG
Report).
49 OIG Report at 2.
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III. Discussion
20. In this Second FNPRM, we revisit
our decisions concerning the public
safety broadband spectrum, the 700
MHz Public/Private Partnership, and the
shared wireless broadband network it is
intended to create, as we move toward
a new auction to license the D Block
spectrum in the near future.50
21. First, in reevaluating the 700 MHz
Public/Private Partnership in light of the
results of Auction 73, we find it
appropriate to consider clarifications
and revisions to the public safety
component of the partnership that
would better promote our public
interest goals. More specifically, in
section A, we seek comment on our
proposed clarifications regarding the
entities that are eligible to use the
public safety spectrum in the shared
wireless broadband network as public
safety users rather than as commercial
users. We also seek comment on
possible clarifications of or changes to
the rules governing the structure and
criteria of the Public Safety Broadband
Licensee,51 including whether to clarify
further the requirement that the Public
Safety Broadband Licensee must be a
non-profit organization.
22. In section B, we seek comment on
possible changes to the rules requiring
and governing the 700 MHz Public/
Private Partnership. As noted above, we
seek comment on whether the 700 MHz
Public/Private Partnership between the
D Block licensee and the Public Safety
Broadband Licensee, with appropriate
revisions and clarifications, would best
serve the public interest in ensuring the
development of a nationwide,
interoperable broadband network for
public safety users. We therefore
explore a variety of possible revisions to
the 700 MHz Public/Private Partnership
to provide greater assurance to potential
bidders for the D Block license that the
shared wireless broadband network will
be commercially viable and to help
ensure that this partnership will be
successful in making a nationwide,
interoperable, broadband network
available to public safety users. We also
seek comment on issues related to the
negotiation of the Network Sharing
Agreement. In addition, we request
comment on select issues relating to
auctioning the D Block license,
including eligibility to participate in the
50 As noted above, before ultimately adopting
final rules in response to this Second FNPRM, we
plan to present for public comment, in a subsequent
FNPRM of Proposed Rulemaking, a detailed
proposal regarding the specific proposed rules.
51 See 47 U.S.C. 316 (permitting the Commission
to modify any license if, in the judgment of the
Commission, such action will promote the public
interest, convenience, or necessity).
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auction, a reserve price, and potential
default payments. Finally, we seek
comment on issues relating to
narrowband relocation and on whether
to continue to license the D Block on a
nationwide basis or adopt a regional
geographic service area basis such as
REAGs.
23. Finally, in section C, we examine
our options in the event we decide not
to condition the D Block on the
establishment of the 700 MHz Public/
Private Partnership with the Public
Safety Broadband Licensee, either
immediately in the next auction or if the
next auction fails to produce a winning
bidder. First, we seek comment on
various revisions that might be
appropriate with respect to the D Block
spectrum. Then we invite comment on
what additional revisions might be
appropriate with regard to the Public
Safety Broadband License in order to
ensure the development and
deployment of a nationwide
interoperable broadband network for
public safety users.
A. The Public Safety Broadband License
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1. Eligible Users of the Public Safety
Spectrum in the Shared Network
24. Background. To meet anticipated
public safety and homeland security
needs, we proposed a comprehensive
plan in the Second Report and Order to
promote the rapid deployment of a
nationwide, interoperable, broadband
public safety network. This plan was
based on taking ‘‘a centralized and
national approach to maximize public
safety access to interoperable,
broadband spectrum in the 700 MHz
Band.’’ 52 In particular, we required that
a single, nationwide public safety
broadband license be assigned to the
Public Safety Broadband Licensee. That
licensee would be responsible for
negotiating a Network Sharing
Agreement with the winning bidder of
the D Block licensee, pursuant to which
the D Block licensee would construct
and operate a shared, nationwide 700
MHz interoperable broadband network
that serves the public safety entities
seeking access to the network, and the
D Block licensee would, in turn, gain
access to the 700 MHz public safety
broadband spectrum for use by its
commercial users on a secondary
preemptible basis.53
25. The eligibility rules for the 700
MHz public safety band, including both
the narrowband and broadband
segments, are contained in Section
52 See Second Report and Order, 22 FCC Rcd at
15419.
53 See id. at 15419.
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90.523 of our rules.54 By linking
eligibility to the provision of statutorilydefined ‘‘public safety services,’’
Section 90.523 attempts to ensure
compliance with the statutory mandate
of Section 337(a)(1) of the
Communications Act, which requires
the Commission to allocate 24
megahertz of spectrum between 746
MHz and 806 MHz for ‘‘public safety
services.’’ 55 The statutory definition of
‘‘public safety services,’’ which is set
forth in Section 337(f) of the Act,
provides as follows:
(f) Definitions
For purposes of this section:
(1) Public safety services
The term ‘‘public safety services’’ means
services—
(A) The sole or principal purpose of which
is to protect the safety of life, health, or
property;
(B) That are provided—
(i) By State or local government entities; or
(ii) By nongovernmental organizations that
are authorized by a governmental entity
whose primary mission is the provision of
such services; and
(C) That are not made commercially
available to the public by the provider.56
26. The eligibility rules of Section
90.523 that apply to the narrowband
licensees of the 700 MHz public safety
band limit operations to the provision of
public safety services, as defined in
Section 337(f)(1). Thus, all such
licensees are either state or local
governmental entities 57 or authorized
non-governmental organizations
(NGOs),58 which provide services that
are not made commercially available to
the public and are for the sole or
principal purpose of protecting the
safety of life, health, or property.59
27. With respect to the broadband
licensee—i.e., the Public Safety
Broadband Licensee—the Commission
crafted eligibility requirements that
were also intended to limit operations to
the statutorily defined public safety
services in order to ensure that the band
remained allocated to such services, as
required by Section 337(a)(1), and to
focus the Public Safety Broadband
Licensee exclusively upon the needs of
public safety entities that stand to
benefit from the interoperable
broadband network.60 Specifically, we
required that the Public Safety
Broadband Licensee satisfy the
following eligibility criteria: (1) No
54 47
CFR 90.523.
U.S.C. 337(a)(1).
56 47 U.S.C. 337(f).
57 See 47 CFR 90.523(a).
58 See 47 CFR 90.523(b).
59 See 47 CFR 90.523(a)–(d).
60 Second Report and Order, 22 FCC Rcd at
15421.
55 47
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commercial interest may be held in this
licensee, and no commercial interest
may participate in the management of
the licensee, (2) the licensee must be a
non-profit organization, (3) the licensee
must be as broadly representative of the
public safety radio user community as
possible, including the various levels
(e.g., state, local, county) and types (e.g.,
police, fire, rescue) of public safety
entities, and (4) to ensure that the Public
Safety Broadband Licensee is qualified
to provide public safety services, an
organization applying for the Public
Safety Broadband License was required
to submit written certifications from a
total of at least ten geographically
diverse state and local governmental
entities, with at least one certification
from a state government entity and one
from a local government entity.61 The
written certifications from these state
and local governmental entities were
required to verify that: (1) They have
authorized the applicant to use
spectrum at 763–768 MHz and 793–798
MHz to provide the authorizing entity
with public safety services; and (2) the
authorizing entities’ primary mission is
the provision of public safety services.62
28. Discussion. As a preliminary
matter, our review of the eligibility
provisions that apply to the narrowband
licensees and those that apply to the
Public Safety Broadband Licensee have
led us to identify two elements of the
statutory definition of ‘‘public safety
services’’ that the rules do not appear to
apply explicitly enough to the Public
Safety Broadband Licensee: (a) The
Section 337(f)(1)(A) element that
requires the ‘‘sole or principal purpose
[of the services to be for the] protect[ion
of] the safety of life, health, or
property,’’ and (2) the Section
337(f)(1)C) element that bars such
services from being ‘‘made
commercially available to the public by
the provider.’’ 63 In addition, there is
some degree of ambiguity as to the
applicability of the narrowband
eligibility provisions in Sections
90.953(a)–(d) to the Public Safety
Broadband Licensee. Accordingly, we
seek comment on whether to make
minor amendments to Section 90.523 to
(a) clarify that the services provided by
the Public Safety Broadband Licensee
must conform to all the elements of the
Section 337(f)(1) definition of ‘‘public
safety services,’’ and (b) clearly
delineate the differences and overlap in
the respective eligibility requirements of
61 See
47 CFR 90.523(e).
47 CFR 90.523(e)(i), (ii).
63 47 U.S.C. 337(f)(1)(A), (C).
62 See
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the narrowband licensees and the Public
Safety Broadband Licensee.
29. As discussed in more detail
below, it would appear that, under
Section 337 of the Act and in
furtherance of the policies that have led
to the creation of the Public Safety
Broadband Licensee, the eligible users
of the public safety broadband network
that are represented by the Public Safety
Broadband Licensee should be restricted
to entities that would be eligible to hold
licenses under Section 90.523. Thus,
only entities providing public safety
services, as defined in the Act, would be
eligible to use the public safety
spectrum of the shared network of the
700 MHz Public/Private Partnership on
a priority basis, pursuant to the
representation of the Public Safety
Broadband Licensee. Accordingly, we
also seek comment on whether all other
users of the shared network, including
critical infrastructure users, should
consequently be treated as commercial
users who would obtain access to
spectrum only through commercial
services provided solely by the D Block
licensee.
30. Eligible Users of the Public Safety
Broadband Network. As the licensee of
the broadband portion of spectrum
within the 700 MHz public safety band,
the Public Safety Broadband Licensee
occupies a somewhat unique position
insofar as it will not use its licensed
spectrum to serve its own
communications needs. Rather, the
Public Safety Broadband Licensee will
ensure the provision of public safety
service by providing spectrum access to
others via the nationwide shared public/
private network.64 Thus, the question of
whether the Public Safety Broadband
Licensee’s service qualifies as a ‘‘public
safety service’’ under Section 337(f)(1)
will turn (in part) on the nature of the
spectrum use by the entities that it
permits to gain access to the network.
To the extent that these entities are
public safety entities that use this access
to provide themselves with
communications services in furtherance
of their mission to protect the safety of
life, health or property, the Public
Safety Broadband Licensee’s services
related to the public safety broadband
spectrum would fall well within the
Section 337(f)(1) definition of ‘‘public
safety services’’ and would comport
with the Commission’s obligation under
Section 337(a)(1) to allocate a certain
amount of spectrum to such services.
31. We note that, pursuant to the
statutory definition, a service can still
be considered a ‘‘public safety service’’
64 See Second Report and Order, 22 FCC Rcd at
15426.
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even if its purpose is not solely for
protecting the safety of life, health or
property, so long as this remains its
‘‘principal’’ purpose.65 Accordingly, the
service provided by the Public Safety
Broadband Licensee—providing public
safety entities access to the spectrum for
safety-of-life/health/property
communications operations—could
conceivably include the provision of
spectrum access to public safety entities
for uses that do not principally involve
the protection of life, health or property,
so long as it can be said that the
principal purpose of the Public Safety
Broadband Licensee’s services is to
protect the safety of life, health or
property.
32. Taken to an extreme, this
reasoning could even permit the Public
Safety Broadband Licensee to provide
spectrum access to small numbers of
entities with no connection to public
safety under the rationale that the bulk
of the Public Safety Broadband
Licensee’s services would remain that of
providing the public safety entities
access to spectrum for use in
safeguarding life, health or property.
Moreover, the Public Safety Broadband
Licensee could arguably leave entire
pockets within its nationwide service
area served only by such non-public
safety entities, based on this same
rationale that the small amount of nonpublic safety use—relative to the nature
of the overall use across the country—
does not alter the fact that the principal
purpose of the service remains public
safety. Such a result appears patently
inconsistent with the spirit of Section
337(f)(1)(A), and we seek comment on
whether, or to what degree, the Public
Safety Broadband Licensee would be
statutorily precluded by that subsection
from representing and allowing any
entity to use the network for services
that are not principally for public safety
purposes. We also seek comment on
whether there are other grounds—
specifically, the authorization
requirement of Section 337(f)(1)(B)(ii)
and policy reasons—for prohibiting the
Public Safety Broadband Licensee from
providing network access to non-public
safety entities or from permitting public
safety entities that it represents to use
the network for services that do not
have as their principal purpose the
protection of the safety of life, heath or
property. With respect to Section
337(f)(1)(B)(ii), we observe that, in order
for the Public Safety Broadband
Licensee’s services to meet the public
safety services definition, the Public
Safety Broadband Licensee, as a
nongovernmental organization, must
65 See
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receive authorization from ‘‘a
governmental entity whose primary
mission is the provision of [public
safety] services.’’ We believe it unlikely
that the intended scope of the
authorization from such governmental
entity or entities would include
providing spectrum access, even on an
occasional or limited basis, to entities
that provide no public safety services.66
On the policy front, the finite amount of
spectrum available to the public safety
community—particularly for
interoperability purposes—strongly
argues against any provision of
spectrum access by the Public Safety
Broadband Licensee to entities the sole
or principal purpose of which is not the
protection of the safety of life, health, or
property. For these reasons, we seek
comment on whether the public interest
would be served by prohibiting the
Public Safety Broadband Licensee from
providing an entity with access to the
network if that entity fails to meet the
eligibility requirements of Section
90.523 of our rules.
33. We seek comment on which types
of public safety users can be expected to
use the national public safety broadband
network (rather than legacy or new local
networks) and on what timeframes.
Which public safety communication
functions (e.g., voice, remote data
access, video upload, video download,
photo download) are likely to migrate to
the new broadband network (in the
short- and- or long-term) and which will
remain on existing networks? What
factors will local jurisdictions weigh
when making such decisions?
34. We seek comment on the extent to
which the public safety broadband
network will or should be interoperable
with existing voice and data networks.
How can the Commission encourage
interoperability with legacy public
safety systems and should
interoperability with existing voice and
data networks be a mandatory feature of
the new broadband network? Can the
use of multi-mode handsets (that
support legacy networks and the new
public safety broadband network)
enhance interoperability? How can the
Commission encourage or mandate the
development and use of such handsets?
How would any proposed policies in
this regard affect the cost of handsets
and network construction/operation?
How does the use of 10 or 20 megahertz
of shared spectrum affect the
throughput of the broadband network
and the functions it can support? What
throughput can reasonably be expected
on a network with this amount of
spectrum? What functionalities can only
66 47
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be supported on a network with
additional spectrum?
35. We also seek comment on issues
arising from the possibility that in some
areas a local jurisdiction may not elect
to make use of the public safety
broadband network. How extensive are
such areas likely to be in the short- and
long-term? Should the D Block licensee
be permitted to use the entire 20
megahertz of shared spectrum for
commercial service in such areas?
Should the local jurisdiction receive
compensation in these instances? Could
such compensation discourage local
jurisdictions to ever make use of the
public safety broadband network?
Would restriction of such compensation
to use in purchasing public safety
equipment such as radios for the public
safety broadband network be an
appropriate policy? What incentives can
the Commission give the D Block
licensee to encourage and facilitate use
of the broadband network by local
jurisdictions?
36. Potential Pool of Users of the
Public Safety Broadband Network. We
seek comment on the number of public
safety providers in the country that have
no interoperable broadband network.
What is the size of the potential pool of
public safety providers that may work
with the Public Safety Broadband
Licensee? We also seek comment on the
extent to which some public safety
providers already have established
interoperable broadband networks. We
especially encourage comment from
parties that may have an inventory or
database that collects this information.
Where have such networks been
established, and under what types of
arrangements? To what extent are
current interoperable public safety
systems able to obtain lower prices and/
or superior quality for commercially
available, off-the-shelf technologies?
Have public safety and commercial
operations been developed on shared/
parallel systems, and if so, how have
they addressed network security issues?
We further seek comment on how
previously developed systems have
addressed issues such as network
reliability, including hardening of the
network, provisions for back up power,
etc. How do such developed networks
envision connecting to an interoperable,
nationwide network? Finally, to the
extent some public safety providers
already have established interoperable
broadband networks, might these
providers have less incentive to
participate with the Public Safety
Broadband Licensee? If this is the case,
how might the rules established in this
proceeding help provide a nationwide,
interoperable network?
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37. Mandatory Usage of the Public
Safety Broadband Network. While we
seek comment above regarding what
users of the network are eligible to
receive service from the public safety
spectrum, we also seek comment on
whether such eligible public safety
users should be required to subscribe to
the network for service, at reasonable
rates or be subject to some alternative
obligation or condition promoting
public safety network usage in order to
provide greater certainty to the D Block
licensee. For example, should we
require the purchase of a minimum
number of minutes and, if so, on whom
and in what way would this obligation
be imposed? We seek comment on
whether any such obligation should be
conditioned on the availability of
government funding for access, for
example, through interoperability grant
money from the United States
Department of Homeland Security, and
whether we should require public safety
users to pay for access with such
money. We ask further questions below
regarding whether and how we should
regulate the fees charged to public safety
users for network access. Would it be
possible to ensure that small public
safety providers pay a ‘‘Most Favored
Nation’’ rate for broadband services, or
for equipment? How should the
Commission ensure that smaller public
safety entities can participate in the
network?
38. We note that the State of Arizona
used a grant from the Department of
Homeland Security (‘‘DHS’’) to build a
broadband network for both public
safety and commercial purposes using
WiFi technology.67 This network serves
a portion of the I–19 corridor running
north of the Mexican border, a sparsely
populated area that previously had little
or no coverage for commercial or public
safety communications.68 We seek
comment on this and similar programs,
especially those instituted by State
agencies, and by both large and small
municipalities. What specifications
(e.g., reliability of service, network
hardening, etc.) have been required for
this and similar projects to promote
broadband communications for public
safety providers 69 What lessons have
67 See https://www.dhs.gov/xnews/releases/
press_release_0515.shtm (last visited May 12,
2008).
68 See https://gita.state.az.us/tech_news/2006/
7_19_06.htm (last visited May 12, 2008).
69 We note, however, that use of Part 15 devices
may not be appropriate for mission-critical public
safety communications, in light of the requirement
for Part 15 devices to accept interference from other
Part 15 devices and from licensed operations. See,
e.g., Continental Airlines Petition for Declaratory
Ruling Regarding the Over-the-Air Reception
Devices (OTARD) Rules, ET Docket No. 05–247,
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been learned from these projects, and
how might these lessons be applied to
a variety of public safety providers,
including those in very rural areas and
those in urban areas? For example, do
network congestion issues make sharing
between commercial and public safety
users more of a challenge in urban areas,
and are such concerns lessened in rural
areas?
2. Provisions Regarding the Public
Safety Broadband Licensee
a. Non-Profit Status
39. Background. Among other criteria
for eligibility to hold the Public Safety
Broadband License that we established
in the Second Report and Order, we
provided that no commercial interest
may be held in the Public Safety
Broadband Licensee, that no
commercial interest may participate in
the management of the licensee, and
that the licensee must be a non-profit
organization.70 We indicated, however,
that, as part of its administration of
public safety access to the shared
wireless broadband network, the Public
Safety Broadband Licensee might assess
‘‘usage fees to recoup its expenses and
related frequency coordination
duties.’’ 71
40. Discussion. With respect to the
requirements that the Public Safety
Broadband Licensee must be a nonprofit organization, we seek comment
on whether to clarify this non-profit
requirement by specifying that the
Public Safety Broadband Licensee and
all of its members (in whatever form
they may hold their legal or beneficial
interests in the Public Safety Broadband
Licensee) must be non-profit entities.
We further seek comment on whether to
clarify that the Public Safety Broadband
Licensee may not obtain debt or equity
financing from any source, whether debt
or equity, unless such source is also a
non-profit entity. We also seek comment
more generally on whether the
Commission should restrict the Public
Safety Broadband Licensee’s business
relationships pre- and post-auction with
commercial entities, and if so, what
relationships should and should not be
permitted.
41. We do anticipate that the Public
Safety Broadband Licensee may contract
with attorneys, engineers, accountants,
and other similar advisors or service
providers to fulfill its responsibilities to
represent the interests of the public
safety community, as required by the
Memorandum Opinion and Order, 21 FCC Rcd
13201, 13214 (2006).
70 See Second Report and Order, 22 FCC Rcd at
15421.
71 Id. at 15426.
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Commission. Under the approach on
which we seek comment above, capital
or operational funding mechanisms for
the Public Safety Broadband Licensee
involving private equity firms or other
commercial or financial entities would
not be permitted, unless they are nonprofit entities and are controlled, if at
all, by non-profit entities, in order to
ensure that the financial considerations
of the Public Safety Broadband Licensee
remain aligned with serving the public
safety community, and that no ‘‘forprofit’’ incentives inadvertently
influence the Public Safety Broadband
Licensee’s priorities. We seek comment
on these restrictions. In particular, are
the restrictions on financing warranted
to ensure that the Public Safety
Broadband Licensee is not unduly
influenced by for-profit motives or
outside commercial influences in
carrying out its official functions within
the 700 MHz Public/Private
Partnership? If so, in what ways might
we allow necessary financing while still
ensuring the independence of the Public
Safety Broadband Licensee?
Specifically, should we allow working
capital financing from commercial
banks and, if so, should we restrict the
assets of the Public Safety Broadband
Licensee that can be pledged as security
for such a loan? Are there other types
of loans or alternative funding sources
that we should allow the Public Safety
Broadband Licensee to employ? How
can the Commission establish incentivecompatible rules for the Public Safety
Broadband Licensee and parties with
which it may have a relationship, such
as advisors, contractors, and investors?
42. More generally, we seek comment
on the best way to fund Public Safety
Broadband Licensee operations. For
example, should the D Block licensee or
license winner be required to pay the
Public Safety Broadband Licensee’s
administrative costs? If so, should we
limit the D Block licensee’s maximum
obligations in this regard, and what
would be a reasonable cap or limitation
on expenses? Assuming governmentallocated funding were available, would
this be the best solution for funding the
Public Safety Broadband Licensee? In
addition, we seek comment on the
extent to which we can adopt incentivecompatible rules for the Public Safety
Broadband Licensee and the public
safety providers it represents. What set
of rules would encourage most or all
public safety providers to collaborate
with the Public Safety Broadband
Licensee to establish a nationwide,
interoperable broadband network?
Under what circumstances might some
public safety providers choose not to
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participate in a relationship with the
Public Safety Broadband Licensee? 72
43. We seek comment on whether the
Commission has legal authority to use
the Universal Service Fund to support
the Public Safety Broadband Licensee’s
operational expenses.73 If the
Commission has legal authority to do so,
should it exercise this authority? What
degree of support would be appropriate?
Similarly, can the Commission facilitate
funding of the Public Safety Broadband
Licensee’s operational expenses through
entities such as the
Telecommunications Development
Fund? 74
44. We also seek comment on how
any excess revenue generated by the
fees or other sources of financing
obtained by the Public Safety
Broadband Licensee from non-profit
entities should be used. First, we seek
comment on whether any excess
revenues should be permitted at all. If
we do allow any excess revenue
generation, should we limit this
amount? How should we determine
what that amount should be? Should we
allow the Public Safety Broadband
Licensee to hold a certain amount of
excess income as a reserve against
possible future budget shortfalls or
should we require that excess income be
used for the direct benefit of the public
safety users of the network, such as for
the purchase of handheld devices?
Should we further specify what would
be a ‘‘direct benefit’’ or permissible use
of such funds? In this regard, we note
that the quarterly financial accounting
we required in the Second Report and
Order will enable the Commission to
continually monitor the finances of the
Public Safety Broadband Licensee.75
45. Finally, we seek comment on
whether the Public Safety Broadband
Licensee may legitimately incur certain
reasonable and customary expenses
incurred by a business, consistent with
the constitution of the Public Safety
Broadband Licensee and the nature of
its obligations as established by the
Commission.
b. Other Essential Components
46. Background. In the Second Report
and Order, we instituted certain
minimum criteria that the Public Safety
Broadband Licensee must meet in order
to ensure that it ‘‘focuses exclusively on
the needs of public safety entities that
stand to benefit from the interoperable
72 See Second Report and Order, 22 FCC Rcd at
15454.
73 See, e.g., 47 U.S.C. 254(c)(1), (h).
74 See, e.g., 47 U.S.C. 614.
75 Second Report and Order, 22 FCC Rcd at
15425.
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broadband network.’’ 76 To that end, we
established certain criteria for the Public
Safety Broadband Licensee eligibility,
including a requirement that the Public
Safety Broadband Licensee must be
broadly representative of the public
safety community.77 Further, we
required that the Public Safety
Broadband Licensee be governed by a
voting board consisting of eleven
members, one each from the nine
organizations representative of public
safety, and two at-large members
selected by the Public Safety and
Homeland Security Bureau and the
Wireless Telecommunications Bureau,
jointly on delegated authority.78 On
reconsideration, we revised and
expanded the voting board, and
increased the at-large membership to
four.79
47. In the Second Report and Order,
we further required that certain
procedural safeguards be incorporated
into the articles of incorporation and
bylaws of the Public Safety Broadband
Licensee.80 For example, in the Second
Report and Order we specified that the
term of the Public Safety Broadband
Licensee officers would be two years,
and that election would be by a twothirds majority vote. A two-thirds
majority was also required for certain
other Public Safety Broadband Licensee
decisions, including amending the
articles of incorporation or bylaws. In
76 Id.
at 15421–22.
at 15421–25.
78 The nine organizations included: the
Association of Public Safety Communications
Officials (APCO); the National Emergency Number
Association (NENA); the International Association
of Chiefs of Police (IACP); the International
Association of Fire Chiefs (IAFC); the National
Sheriffs’ Association; the International City/County
Management Association (ICMA); the National
Governor’s Association (NGA); the National Public
Safety Telecommunications Council (NPSTC); and
the National Association of State Emergency
Medical Services Officials (NASEMSO). Second
Report and Order, 22 FCC Rcd at 15422–23.
79 On reconsideration, we removed NPSTC and
included the Forestry Conservation
Communications Association (FCCA), the American
Association of State Highway and Transportation
Officials (AASHTO), and the International
Municipal Signal Association (IMSA), and added
two additional at-large positions. Service Rules for
the 698–746, 747–762 and 777–792 MHz Bands,
WT Docket No. 96–86, Order on Reconsideration,
22 FCC Rcd 19935 (2007). The Chiefs of the Public
Safety and Homeland Security Bureau and Wireless
Telecommunications Bureau jointly appointed to
the voting board the American Hospital Association
(AHA), the National Fraternal Order of Police
(NFOP), the National Association of State 9–1–1
Administrators (NASNA), and the National
Emergency Management Association (NEMA). See
‘‘Public Safety and Homeland Security Bureau and
Wireless Telecommunications Bureau Announce
the Four At-Large Members of the Public Safety
Broadband Licensee’s Board of Directors,’’ Public
Notice, 22 FCC Rcd 19475 (2007).
80 Second Report and Order, 22 FCC Rcd at
15423–26.
77 Id.
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addition, we recognized that
Commission oversight in the affairs of
the Public Safety Broadband Licensee
would be necessary and appropriate in
light of the nature of the public safety
broadband spectrum licensed to the
Public Safety Broadband Licensee as a
national asset, and in furtherance of the
Commission’s role in ensuring the
protection and efficient use of such
asset for the benefit of the safety of the
public.81 Meaningful oversight in this
respect requires a level of transparency,
and to that end we required the Public
Safety Broadband Licensee to submit
certain reports to the Commission,
including quarterly financial
disclosures.82
48. Discussion. In light of the scope of
the subjects discussed elsewhere herein
addressing a number of aspects of the
700 MHz Public/Private Partnership
between the D Block licensee and the
Public Safety Broadband Licensee, we
believe it appropriate to reexamine the
structure of the Public Safety Broadband
Licensee and the criteria adopted in the
Second Report and Order to ensure they
are most optimal for establishing and
sustaining a partnership with a
commercial entity, as well as efficiently
and equitably conducting the business
of the Public Safety Broadband
Licensee. We seek comment on whether
we should reevaluate any of these
criteria, whether we should clarify or
increase the Commission’s oversight of
the Public Safety Broadband Licensee,
and, aside from retaining its nationwide
scope, whether we should make other
changes to the license or license
eligibility criteria. We further seek
comment on how the Commission can
ensure an oversight role for Congress,
both in the operations of the Public
Safety Broadband Licensee and the 700
MHz Public/Private Partnership. Should
Congress designate some of the Public
Safety Broadband Licensee’s board
members?
49. Articles of Incorporation and Bylaws. Specifically, with respect to the
articles of incorporation and bylaws, we
seek comment on the adequacy of the
provisions specified. Should we require
additional provisions, and if so, what
should they be? Should we amend or
eliminate any of the current
requirements? Should we require a
unanimous vote in certain instances?
For example, should a unanimous vote
be required for a major undertaking of
the Public Safety Broadband Licensee?
What would such an undertaking
include? In the alternative, should we
require a supermajority vote in such
81 Id.
82 Id.
at 15426.
at 15426.
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instances instead of a unanimous vote?
In addition, should we provide for
Commission review of decisions
requiring a unanimous or supermajority
vote, or should the Commission make
certain decisions for the Public Safety
Broadband Licensee if unanimity or
supermajority is not achieved?
50. With respect to the voting board,
we seek comment on the composition of
the board, and its size. Should we
include additional or fewer entities? If
so, what qualifications should we
require of such entities? We also seek
comment on whether we should
eliminate altogether the requirement of
inclusion of specific voting board
members. If we eliminate this
requirement, how should we ensure that
broad representation of the public safety
community is adequately addressed?
With respect to the leadership of the
board, should we revise the terms of the
officers? Should we require a
unanimous vote for appointment of
officers? Should we require a rotating
chairmanship among the voting board
members? Should the Commission
appoint a chairperson if unanimous
consent cannot be attained?
51. Commission oversight. We also
seek comment on how the Commission
can better exercise oversight over the
activities of the Public Safety Broadband
Licensee and the commercial partner. Is
quarterly financial reporting adequate,
or are additional disclosures by the
Public Safety Broadband Licensee or
commercial partner necessary? What
additional measures, if any, should the
Commission take to ensure the
appropriate level of oversight? For
example, should Commission approval
of certain activities be required before
the Public Safety Broadband Licensee
may undertake them? For example,
should Commission approval be
required before the Public Safety
Broadband Licensee enters into
contracts of a particular duration or
cumulative dollar amount? Should we
require or reserve the right to have
Commission staff attend meetings of the
voting board?
52. Role of State Governments. We
seek comment on whether providing a
nationwide, interoperable broadband
network might be more effectively and
efficiently accomplished by allowing
State governments (or other entities that
have or plan interoperable networks for
the benefit of public safety) to assume
responsibility for coordinating the
participation of the public safety
providers in their jurisdictions. To the
extent commenters believe the State
governments should assume such a role,
we seek comment on the proper
relationship between the State
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governments and the Public Safety
Broadband Licensee and on our
authority to establish such a role for
State governments. Should the Public
Safety Broadband Licensee be
authorized to choose a minimum
standard for any public safety
broadband operation, with the State
governments given the responsibility to
work with public safety providers to
implement operations in their
jurisdictions? Would such an approach
allow State governments wanting
higher-grade networks to implement
separately these more-advanced
systems, while those wanting networks
at the minimum standard avoid what
they may consider unnecessary
expenses? Are State governments better
situated to address implementation
challenges that cross public safety
jurisdictions (e.g., coordinating use by
sheriffs departments in neighboring
counties) as well as intra-jurisdictional
challenges (e.g., coordinating use by the
police versus fire departments)? On the
other hand, if different jurisdictions
chose different grades of networks,
would there be a lack of economies of
scale and thus higher equipment costs
for all public safety users?
53. Reissuance of the Public Safety
Broadband License and selection
process. In light of the changes
contemplated above and the
corresponding changes contemplated
with respect to the D Block, we seek
comment on whether we should rescind
the current 700 MHz Public Safety
Broadband License and seek new
applicants. If so, should we use the
same procedures as before, i.e.,
delegating authority to the Chief, Public
Safety and Homeland Security Bureau
to solicit applications, specifying any
changed criteria that may be adopted
following this Second FNPRM, and
having the Commission select the
licensee? Are there considerations other
than those above or previously
considered that should be taken into
account in selecting the licensee?
Recognizing the need to identify the
licensee quickly to enable the effective
development of the 700 MHz Public/
Private Partnership, what mechanism
should the Commission use to assign
the license if there is more than one
qualified applicant?
B. Possible Revisions/Clarifications
Relating to the 700 MHz Public/Private
Partnership
54. As a preliminary matter, we seek
comment on whether the public interest
would best be served by the
development of a nationwide,
interoperable wireless broadband
network for both commercial and public
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safety services through the 700 MHz
Public/Private Partnership between the
D Block licensee and the Public Safety
Broadband Licensee, and whether we
should therefore continue to require that
the D Block licensee and Public Safety
Broadband Licensee enter into the 700
MHz Public/Private Partnership. Below,
we consider in detail the Commission’s
options in the event that we continue
this requirement. We seek comment on
a broad set of possible revisions to the
700 MHz Public/Private Partnership,
including revisions and/or clarifications
with regard to the respective obligations
of the D Block licensee and the Public
Safety Broadband Licensee.
55. First, we address the terms of the
700 MHz Public/Private Partnership,
including (1) what the D Block licensee
is required to construct; and (2) the
operational roles of the D Block licensee
and Public Safety Broadband Licensee
once the network is constructed. With
regard to network construction
requirements, we seek comment on (1)
the technical specifications of the
network; (2) whether to provide public
safety users with access to D Block
spectrum during emergencies and, if so,
under what terms; and (3) the build-out
obligations of the D Block licensee, and
whether such obligations should be
revised in conjunction with a
modification to the D Block license
term. Regarding operational roles, we
seek comment on the respective roles
and responsibilities of the D Block
licensee and Public Safety Broadband
Licensee with regard to the operation of
the network, including the management
of users on the network, and we seek
comment regarding service or spectrum
usage fees.
56. Next, we address the procedures
by which the winning bidder of the D
Block license will enter into a Network
Sharing Agreement (NSA) with the
Public Safety Broadband Licensee that
will further define and govern the 700
MHz Public/Private Partnership.
Specifically, we seek comment on
possible revisions to the rules relating to
both the negotiation of the NSA and the
dispute resolution procedures
applicable in the event the parties are
unable to reach agreement on NSA
terms. In particular, we seek comment
on whether, following a default due to
the failure of a winning bidder for the
D Block license to execute an NSA with
the Public Safety Broadband Licensee,
we either should offer the license to the
party with the next highest bid, in
descending order, or promptly auction
alternative license(s) for the D Block
spectrum without the 700 MHz Public/
Private Partnership conditions and
subject to alternative service rules.
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57. We then seek comment on a
number of issues related to the auction
of the D Block license, including (1)
whether to restrict who may participate
in the new auction of the D Block
license; (2) how to determine any
reserve price for such an auction; (3)
whether to adopt an exception to the
impermissible material relationship rule
for the determination of designated
entity eligibility with respect to
arrangements for the lease or resale
(including wholesale) of the spectrum
capacity of the D Block license; and (4)
whether we should modify the auction
default payment rules with respect to
the D Block winning bidder. We also
seek comment on the rules governing
the relocation of public safety
narrowband operations and the D Block
license winner’s obligations to fund that
relocation, and on any other revisions
that may be appropriate with regard to
the 700 MHz Public/Private Partnership.
Finally, we seek comment on other
revisions or clarifications that may be
appropriate with regard to the 700 MHz
Public/Private Partnership, including
whether to license the D Block and
public safety broadband spectrum on a
nationwide or REAG basis.
1. The 700 MHz Public/Private
Partnership
a. Network/System Requirements
58. Assuming that we determinate
that we should continue to require the
700 MHz Public/Private Partnership, in
this section, we seek comment on
whether to adopt changes to the
requirements of the network that the D
Block licensee is required to construct,
and whether to modify the required
schedule for that construction.83 We
seek comment on what changes will
best serve the Commission’s goal of
making a broadband, interoperable
network available on a nationwide basis
to public safety entities, which requires
providing sufficient assurances to
bidders for the D Block license that the
required shared network will be
commercially viable. We also are
seeking comment below on the costs to
build and operate such a broadband,
interoperable network, including the
specific costs necessary to meet public
safety needs and the additional costs of
covering remote areas.
(i) Technical Requirements for the
Shared Wireless Broadband Network
59. Background. In the Second Report
and Order, we found that in order to
ensure a successful public/private
partnership between the D Block
83 47
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licensee and the Public Safety
Broadband Licensee, with a shared
nationwide interoperable broadband
network infrastructure that meets the
needs of public safety, we must adopt
certain technical network
requirements.84 Accordingly, among
other requirements, we mandated that
the network incorporate the following
technical specifications:
• 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).
• 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, we
expect 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.85
60. We required that the parties
determine more specifically what these
technical specifications would be and
implement them through the NSA. In
addition, we required that the parties
determine and implement other detailed
specifications of the network that the D
Block licensee would construct.86 We
determined that allowing the parties to
determine specific details, including the
technologies that would be used, subject
to approval by the Commission, would
provide the parties with flexibility to
84 Second Report and Order, 22 FCC Rcd at
15433.
85 Id.
86 Id. at 15434.
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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.87
61. Discussion. We seek comment on
whether we should clarify or modify
any aspect of the technical network
requirements adopted in the Second
Report and Order or otherwise establish
with more detail the technical
requirements of the network. To guide
the discussion that follows, and to
enable more focused comment that
better assists the Commission as we
address these technical requirements,
we attach as an appendix a possible
technical framework (‘‘Technical
Appendix’’) that identifies in greater
detail potential technical parameters for
the shared wireless broadband network.
We thus seek detailed comment on this
Technical Appendix, as well as on the
following discussion points.
62. Would clarifications in this regard
provide appropriate additional
certainty, prior to re-auction, regarding
the obligations of the D Block licensee
and the costs of the network that this
licensee would be expected to
construct? Would such specification
enhance the abilities of the winning
bidder of the D Block license and the
Public Safety Broadband Licensee to
negotiate the NSA? Would
modifications provide greater assurance
that the required network would be
economically viable? Conversely, would
greater specificity hinder the NSA
negotiations or otherwise inadvertently
impact the success of the 700 MHz
Public/Private Partnership?
63. We seek comment on whether, as
a general matter, maintaining parties’
flexibility to negotiate most details of
the network specifications would best
serve the public interest goals of the
partnership. We seek comment on what
technical requirements should be
specified in advance, rather than being
left to be negotiated after the auction,
and whether there are any critical
aspects of the network, either in the
existing requirements or beyond those
already addressed, that it would be
beneficial to specify or clarify in the
rules in order to increase bidder
certainty regarding the cost of the D
Block obligations. In addition, are there
network specifications that would be
particularly difficult to negotiate in the
absence of further clarification by the
Commission?
64. Are any changes to requirements
needed to reflect the practical
differences between the architecture of
87 Id.
at 15426.
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traditional local wireless public safety
systems and the architecture of
nationwide commercial broadband
network systems? If so, we seek
comment on what requirements,
modifications, or clarifications we
should adopt. Conversely, we seek
comment on whether to require national
standardization in the implementation
of these network requirements, and the
extent to which national standardization
will help the network to achieve
efficiency and economies of scale and
scope.
65. We also welcome comments on
other specifications we required of the
network. These included:
• 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 the 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 control of the network
by the Public Safety Broadband
Licensee to the extent necessary to
ensure public safety requirements are
met; and
• A requirement to make available at
least one handset that would be suitable
for public safety use and include an
integrated satellite solution, rendering
the handset capable of operating both on
the 700 MHz public safety spectrum and
on satellite frequencies.88
66. Commenters with proposals
should provide detailed information
regarding their proposed technical
network specifications, and the extent to
which such proposals are typical of
current wireless public safety or
commercial systems. For example, with
regard to any particular network
requirement, are there any established
public safety standards in the
broadband context? To what extent have
these standards been implemented in
commercial networks? Commenters
should also discuss how such proposals
will ensure that the goals of the 700
MHz Public/Private Partnership are met,
in particular by enabling the creation of
88 Id. at 15433–34. We seek comment on the
responsibilities of the D Block licensee with regard
to the operation of the shared network elsewhere
herein.
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a viable commercial network that
addresses the unique needs of the
public safety community.
67. We seek comment on how the
technical specifications of existing or
anticipated future public safety
networks differ from existing or
anticipated commercial networks.
Commenters are encouraged to be as
specific as possible in answering these
questions, providing detailed technical
data where possible. How different are
the technical specifications of existing
or anticipated public safety networks
from other public safety networks? How
do the technical requirements of
different public safety networks differ
based upon factors such as intended
user base and local morphology (e.g.,
urban vs. rural environments; fire,
police, emergency medical service, and
other first responders; in-building vs.
outdoor usage; high-speed vehicular vs.
pedestrian public safety users, etc.)?
How do these technical requirements
differ based upon factors such as type of
use (mission-critical voice and data
versus non-mission-critical
communications)? What purposes, if
any, do public safety users make of
commercial wireless networks today for
mission-critical and/or non-missioncritical communications? How distinct
in practice is the line between missioncritical and non-mission-critical
communications? How do network
construction and operation costs vary
among different types of public safety
networks and between public safety and
commercial networks? To what extent
can a commercial provider make use of
publicly-owned or leased property, and
how could use of such facilities affect
the cost of constructing and operating a
public safety broadband network?
68. We seek comment on the payment
and funding models employed by public
safety users when building and
operating dedicated public safety
networks (e.g., construction and
operation by municipal employees,
construction and operation by private
subcontractors). Similarly, we seek
comment on the payment and funding
models employed by public safety users
when they rely upon commercial
wireless services. Are fees assessed
based on usage, number of users, or
other factors? What provisions are
typically made for unanticipated
demand for services and how are these
reconciled with fixed budgets? Again,
commenters are encouraged to be as
specific as possible in answering these
questions, providing specific cost data
or concrete numerical estimates where
possible.
69. We note that the Public Safety
Spectrum Trust (‘‘PSST’’), after it was
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designated Public Safety Broadband
Licensee by the Commission, released
what it referred to as a Bidders
Information Document (‘‘BID’’), which,
it stated, was offered to provide ‘‘highlevel information regarding the PSST’s
expectations of the D Block partner in
building and operating the shared
Public/Private network’’ and ‘‘to define
and detail certain expectations that the
PSST has for this partnership.’’ 89 We
emphasize that the BID has no formal
legal role in the development of the
nationwide, broadband public safety
network under the existing rules and we
express no view on the positions taken
by the PSST as reflected in the BID. We
take this opportunity, however, to seek
comment on the impact of the BID on
the previous auction, whether any
particular aspects of the PSST’s
‘‘expectations’’ were of particular
concern to potential bidders or of
particular importance to public safety
entities, whether the release of the BID
was helpful in clarifying costs, what
role the BID played in pre-auction
discussions and what formal role, if any,
that a document similar to the BID such
as a statement of requirements should
play in establishing or clarifying the
technical requirements of the
nationwide, broadband public safety
network under revised rules. We note,
for example, that one commercial entity
has suggested that the Public Safety
Broadband Licensee should be required
to release a statement of requirements
before auction, and that the statement of
requirements should constrain the
elements that the Public Safety
Broadband Licensee can require in the
shared network.90 We seek comment on
this suggestion.
70. With these questions and issues in
mind, we seek comment on whether the
Commission should itself establish in a
detailed and comprehensive fashion the
technical obligations of the D Block
licensee with regard to the network, and
if so, what specifications it should
adopt. For example, we seek comment
on whether the attached Technical
Framework could, following comment
on its specific components, provide for
establishing an appropriate set of
requirements for the shared wireless
broadband network. We also seek
comment on a number of particular
technical issues, as set forth below.
89 See Letter from Harlin R. McEwen, Chairman,
Public Safety Spectrum Trust to Prospective D
Block Bidders (Nov. 30, 2007) (available at
https://www.psst.org/documents/BID2_0.pdf) at 3.
The PSST released an initial version of this
document on November 15, 2007, and released
version 2.0, the final version, on November 30,
2007. See https://www.psst.org/bidsummary.jsp.
90 See AT&T Petition for Reconsideration at 4–5.
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71. Specification for broadband
technology platform. We seek comment
on whether we should modify or further
clarify any aspect of the broadband
technology platform specifications
provided in the Second Report and
Order. Would clarifying that the D Block
winning bidder has the right to make
the final technical determinations with
regard to the network platform serve the
public interest? Should the Commission
specify the precise public safety services
and applications that must be carried or
that need not be carried, beyond typical
broadband applications (e.g., Internet
access, video, multimedia), such as
cellular telephony, dispatch voice
service, push-to-talk, etc., and if so,
what should they be? Should we
establish limits on the obligation to
accommodate applications similar to
those established in the C Block? For
example, should we provide that there
is no obligation to carry customized
applications where accommodating
such applications would require
modifying network infrastructure or
back-office systems? 91 What impact
might any of these determinations have
on the utility of the network for public
safety purposes?
72. We ask commenters to provide
detailed information regarding any
proposed broadband platform solution.
How can we establish a set of
requirements that will meet public
safety’s needs while providing
prospective bidders with sufficient
certainty that it will be possible to
construct a system that is economically
viable? How can we best meet this
objective without impeding flexibility
regarding network design or
inadvertently deterring potential
bidders from participating in the
auction?
73. Reliability. We seek comment on
whether we should modify any aspect of
the reliability standard established in
the Second Report and Order. Should
we eliminate the specific requirement of
99.7 percent network reliability and
impose only the general requirement of
‘‘reliable operation throughout the
service area consistent with typical
public safety communications,’’ leaving
the specific level of reliability to
negotiations? Should we specify a
different level of reliability, such as 95
percent reliability over 95 percent of a
defined area? 92 Does the latter standard
better reflect a typical level of reliability
in public safety communications
systems? Further, is the typical level of
91 See
Second Report and Order, 22 FCC Rcd at
15371 n.502.
92 See Cyren Call Petition for Reconsideration at
8; Frontline Petition for Reconsideration at 23.
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reliability in public safety systems a
relevant factor for cellularized
broadband systems? Are there any realworld examples of reliability based on
cellularized broadband systems used by
public safety?
74. We also seek comment on
whether, in the event we continue to
require a specific level of reliability, we
should nevertheless expressly provide
that the parties have flexibility to
mutually agree to a different level in
particular geographic areas. Are there
specific provisions related to reliability
that would create unreasonable
challenges in establishing the network?
If so, what limitations should we
establish? Finally, we seek comment on
how the reliability standard impacts the
performance requirement, e.g., might it
effectively transform the populationbased performance requirements into
geographic benchmarks?
75. Robustness and hardening. We
seek comment on whether to further
specify or modify the requirements of
the network regarding robustness and
hardening. For example, should we
further specify the particular
environmental conditions (temperature
range, wind, vibration, etc.) that the
installations must be designed to
withstand? Should we specify the
minimal number of hours that base
stations and network equipment must
be capable of operating in the event of
a power outage? Should we require an
onsite power generator and a specific
supply of fuel for each base station?
Should we simply provide that the
network must meet the same
requirements regarding backup power
applicable to commercial mobile radio
service providers, given that these
requirements were themselves
established to meet homeland security
and public safety goals? 93 Should we
address whether and to what extent
redundant infrastructure must be
provided, such as provisions for
overlapping cell sites that could provide
backup coverage in an emergency, and
if so, how would such provisions
impact the viability of the system and
its cost? Should we establish minimum
obligations to have access to backup
equipment and systems, such as cellular
systems on wheels, or minimum
timeframes for system restoration?
Alternatively or additionally, should we
establish ceilings on the extent of
robustness and hardening that may be
required of the D Block licensee?
93 See, e.g., Recommendations of the Independent
Panel Reviewing the Impact of Hurricane Katrina on
Communications Networks, EB Docket No. 06–119,
WC Docket No. 06–63, Order on Reconsideration,
22 FCC Rcd 18013 (2007).
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76. We also seek comment on whether
these requirements should be subject to
variation. Should we specify
circumstances in which the robustness
and hardening obligations may vary,
such as to account for local zoning
restrictions, geography, or patterns of
weather? Should we alternatively
specify that the extent and
circumstances of variation will be left to
the parties to negotiate? Commenters
advocating particular requirements
relative to robustness and hardening
should also explain how their proposals
compare to the standards for current
public safety wireless systems.
77. Capacity, throughput, and quality
of service. As stated in the Second
Report and Order, NPSTC contended
that capacity is a key consideration,
arguing that ‘‘the Commission should
require a detailed capacity plan as one
of the central elements in the negotiated
agreement * * *’’ 94 Should we further
specify the minimum levels of capacity
or throughput (i.e. data transmission
rates), or ceilings on such levels, that
the network must provide? If so, how
should such levels be defined? Should
they vary by geographic location, or
other conditions? Should we establish
other quality of service parameters, such
as resource reservation and session
control mechanisms? What means
should be made available by the D Block
licensee to enable public safety to
monitor the quality of service in an
unobtrusive way and without the
addition of significant cost to the
network? Should the means be
nationally standardized and/or be
limited to those provided by the D Block
licensee? Is there a need for a formal
process to address future increases in
demand?
78. As we have emphasized
throughout this Second FNPRM, one of
the key elements of the 700 MHz Public/
Private Partnership is the D Block
licensee’s access to the public safety
broadband spectrum on a secondary
basis to defray the cost of building a
nationwide network serving both
commercial and public safety users. We
thus invite comment as to whether there
are any particular services or
applications that might be too
inefficient or far removed from typical
public safety communications needs, or
that may overburden or otherwise not be
viable for a broadband network, such
that they may frustrate this key element
by excessively limiting or precluding
the secondary access to this spectrum
contemplated in the Second Report and
94 Second Report and Order, 22 FCC Rcd at 15433
¶ 404 (quoting NPSTC 700 MHz Further Notice
Comments at 13).
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Order. For example, would it be
appropriate to prohibit or restrict use of
the network for continuous or routine
video surveillance from fixed locations
as being an inefficient or inappropriate
use of the capacity of the shared
wireless broadband network? 95 Would
such use create undue uncertainty
concerning network availability for
either the D Block licensee or for public
safety users? If there are such concerns,
how else should they be addressed? Are
other frequencies available to public
safety users more appropriate for fixed
video applications? Could such
networks be made interoperable with
the public safety broadband network
using 700 MHz spectrum? What are the
relative costs of using alternative
frequencies? What cost savings, if any,
would there be to incorporating video
into the 700 MHz network as compared
to allowing individual jurisdictions to
develop their own fixed video wireless
networks? Should we set certain
parameters to determine or predict
capacity needs of public safety users?
We could, for example, base the
capacity needs on the levels of authority
within the public safety community, the
existence or absence of an ‘‘emergency’’
(further discussed below), or type, time,
or location of communication. Are there
any technical, operational, or cost-based
means to monitor or regulate capacity
needs of certain public safety entities?
Should we require the Public Safety
Broadband Licensee to forecast public
safety use on a regular basis (monthly,
quarterly), or otherwise provide the
assistance needed for the D Block
licensee to make such predictions?
Commenters proposing any limits to
address such capacity concerns should
provide detailed information on how
such limitations could be implemented
without compromising public safety.
Would payment obligations of public
safety users for network use be
sufficient incentive for users to
voluntarily limit use? Would a rate-ofreturn or cost-plus pricing mechanism
provide the appropriate incentives?
Alternatively, should we vary the
obligations of the D Block licensee, its
right to recover costs from public safety,
or other terms of the NSA, based on the
95 See, e.g., ‘‘DC OCTO Wireless Broadband
Network Wins Police Chiefs’ Technology Award,’’
https://newsroom.dc.gov/show.aspx/agency/octo/
section/2/release/6342 (stating that the DC wireless
broadband network is designed to provide, among
other applications, ‘‘remote video surveillance’’);
see also https://govtsecurity.com/
state_local_security/close_watch/ (stating, with
regard to Baltimore, Maryland, video surveillance
system, that ‘‘[m]any of the city’s surveillance
cameras and all of its housing cameras are wireless’’
and that ‘‘[w]ireless camera signals from groups of
cameras are brought back to a fiber node * * *.’’).
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extent to which the public safety
broadband spectrum is available for
commercial operations? Or is it
sufficient to clarify that the parties may
negotiate such variations?
79. Security and encryption. Should
we provide greater specificity regarding
what the D Block licensee must provide
with regard to security and encryption,
or establish an alternate requirement?
Should we identify further what
constitutes ‘‘state-of-the-art’’ security
and encryption technology? Should we
limit the requirement to technical
network solutions or standards for
security and encryption implemented
on a nationwide basis? We seek
comment on the costs and practical
challenges of implementing such
measures in the public/private network
to be constructed by the D Block
licensee, particularly in the event that
we permit local variation in the security
solutions and standards.
80. Combined use of spectrum. We
seek comment on whether, in order to
provide the D Block licensee with
appropriate flexibility to achieve an
efficient and effective implementation
of the 700 MHz Public/Private
Partnership obligations, we should
amend our rules to clarify that the D
Block licensee may construct and
operate the shared wireless broadband
network using the entire 20 megahertz
of D Block spectrum and public safety
broadband spectrum as a combined,
blended resource. In particular, we seek
comment on whether, in designing and
operating the shared network, the 10
megahertz of D Block spectrum and the
10 megahertz of public safety broadband
spectrum may be combined, in effect,
into a single and integrated 20
megahertz pool of fungible spectrum
that may be assigned to users without
regard to whether a public safety user is
being assigned frequencies in the D
Block or a commercial user is being
assigned frequencies in the public safety
broadband spectrum, so long as the
network provides commercial and
public safety users with service that is
consistent with the respective capacity
and priority rights of the D Block license
and Public Safety Broadband License
and with our rules. For example, such
a network would have to guarantee that
public safety users have priority access
to at least 10 megahertz of spectrum
capacity consistent with the 10
megahertz associated with the Public
Safety Broadband License, but, at any
particular time, the network might be
using frequencies associated with either
the D Block license or the Public Safety
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Broadband License to provide that
capacity.96
81. We seek comment on whether
permitting the combined use of
spectrum in this fashion would provide
for a more efficient and effective use of
spectrum, whether it provides further
flexibility to evaluate and use all
available wireless broadband
technologies to build and operate the
network and thus promote our ultimate
goal of making available a nationwide
interoperable broadband network for
public safety users. We also seek
comment on whether such combined
use would be consistent with the
different rights and obligations
associated with the D Block license and
the Public Safety Broadband License,
respectively, and whether, in light of
these and other considerations, it would
be in the public interest to allow such
use. Commenters should also discuss
whether permitting such combined use
of the spectrum associated with these
two licenses would be consistent with
the requirements of Sections 337(a) and
(f) and the Commission rules allotting
specific frequencies for use by the
Public Safety Broadband Licensee and
the D Block licensee.
82. Power flux density, and related
notification, and coordination
requirements. In the text of the Second
Report and Order, we indicated that we
would not adopt any power flux density
(PFD) limit requirement in the public
safety broadband segment, based on the
limited record received on this issue.97
We also noted that, should additional
facts be presented, we might revisit this
issue.98 The applicable rules adopted by
the Second Report and Order, however,
require the Public Safety Broadband
Licensee to meet a PFD limit when
operating base stations at power levels
above 1 kW ERP.99 In light of this
discrepancy between the text of the
order and the rules, we seek comment
on whether we should retain this PFD
requirement for the public safety
broadband spectrum.100 Further, we
note that Verizon Wireless (‘‘Verizon’’)
filed a petition for reconsideration of the
96 We note that, under current rules for the 700
MHz Public/Private Partnership, public safety users
would be entitled in emergencies to the full
combined 20 megahertz of capacity on a priority
basis. Elsewhere in this Second Further Notice, we
seek comment on whether to eliminate or clarify
this requirement.
97 See id., 22 FCC Rcd at 15417 para. 358.
98 Id.
99 See 47 CFR. 90.542(a)(5), (b).
100 This requirement had initially been imposed
on Upper 700 MHz C and D Block licensees to
protect public safety narrowband licensees from
interference.
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First Report and Order 101 with regard to
certain of the notification and
coordination obligations placed on
commercial 700 MHz licensees.102 First,
Verizon requests that we eliminate the
PFD/notification requirement for Upper
700 MHz C and D Block licensees when
operating base stations at power levels
above 1 kW ERP in non-rural areas. And
second, with respect to Upper 700 MHz
C and D Block licensees operating in
rural areas, Verizon requests that such
licensees: (1) Should only have to
coordinate with adjacent block licensees
(i.e., not all other 700 MHz licensees)
when seeking to operate at power levels
greater than 1 kW ERP; (2) should be
permitted to use a power level of ‘‘1 kW
ERP and 1 kW/MHz ERP’’ as the trigger
for coordination instead of 1 kW
ERP; 103 and finally, (3) should be
subject to a PFD/notification
requirement, rather than a coordination
requirement, when operating base
stations at power levels greater than 1
kW ERP and 1 kW/MHz ERP.104 In light
of this petition, we seek comment on
whether to apply any or all of Verizon’s
proposed rule changes to the public
safety broadband spectrum.
83. Other technical requirements. As
noted above, we also seek comment on
whether to establish, modify, or clarify
the requirements with regard to any
other critical aspect of the network that
may significantly affect its commercial
viability or its ability to meet the needs
of public safety. For example, should we
further specify the technical
requirements and standards with regard
to interoperability or network
availability?
101 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
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) (First Report and Order).
102 Petition for Reconsideration of Verizon
Wireless, WT Docket No. 06–150 (filed June 14,
2007) (Verizon Petition).
103 Upper 700 MHz C and D Block licensees may
operate base stations at power levels up to 2 kW/
MHz ERP in rural areas.
104 Verizon Petition at 8–12.
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(ii) Priority Public Safety Access to
Commercial Spectrum During
Emergencies
84. Background. In addition to
requiring that the network meet certain
technical specifications, we also
required that the D Block licensee
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). At the same time, we noted
that the potential disruption of
commercial service in the D Block,
while appropriate in an emergency
situation, must be limited to the most
serious occasions in order to avoid
jeopardizing the commercial viability of
the 700 MHz Public/Private Partnership.
To balance these competing concerns,
we thus required the parties to define
‘‘emergency’’ for purposes of priority
access to D Block license spectrum as
part of the NSA.105 We also provided
that in the event that 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, the
Public Safety Broadband Licensee may
request that the Commission declare, on
an expedited basis, that particular
circumstances warrant emergency
priority access.106
85. Discussion. We seek comment on
whether we should continue to require
that the D Block licensee provide the
Public Safety Broadband Licensee with
priority access, during emergencies, to
the spectrum associated with the D
Block license. We seek comment on
whether this obligation is essential to
ensure that the network capacity will
meet public safety wireless broadband
needs, or whether removing the
obligation could significantly improve
the chances that this proceeding will
succeed in achieving our goal of making
available to public safety users a
nationwide, interoperable, broadband
network that incorporates the greater
levels of reliability, robustness, security,
and other features required for public
safety services.
86. If we continue to require that the
D Block licensee provide the Public
Safety Broadband Licensee with priority
access, during emergencies, to the
spectrum associated with the D Block
license, we seek comment on whether
105 Second Report and Order, 22 FCC Rcd at
15441–42 ¶ 426.
106 Id. at 15442. We delegated authority to the
Defense Commissioner to decide these requests. See
47 CFR 0.181.
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we should provide more clarity on the
circumstances that would constitute an
‘‘emergency’’ for this purpose. If so, we
ask whether any or all of the following
events should define an ‘‘emergency:’’
• The declaration of a state of
emergency by the President or a state
governor.
• The issuance of an evacuation order
by the President or a state governor
impacting areas of significant scope.
• The issuance by the National
Weather Service of a hurricane or flood
warning likely to impact a significant
area.
• The occurrence of other major
natural disasters, such as tornado
strikes, tsunamis, earthquakes, or
pandemics.
• The occurrence of manmade
disasters or acts of terrorism of a
substantial nature.
• The occurrence of power outages of
significant duration and scope.
• The elevation of the national threat
level, as determined by the Department
of Homeland Security, to either orange
or red for any portion of the United
States, or the elevation of the threat
level in the airline sector or any portion
thereof, as determined by the
Department of Homeland Security, to
red.
87. Are there any other events, or
modifications to the above, that would
assist in removing uncertainty in
reaching a definition of ‘‘emergency?’’
Would this proposed definition of
‘‘emergency’’ be too burdensome on the
D Block licensee? If we adopted some or
all of the above event-defining
emergencies, should we permit the
parties to the NSA to propose different
or additional scenarios that should be
considered emergencies? Further,
should we make explicit that priority
access in emergency situations be
limited to the geographic and/or
jurisdictional area directly affected by
the emergency? Should we establish
time limits on the duration of priority
access? If so, how should such time
limits be based? Alternatively, should
we establish limits on the priority
access given to the D Block spectrum
capacity, for example by limiting public
safety’s priority access to D Block
spectrum capacity in emergencies to 50
percent?
(iii) Performance Requirements Relating
to Construction of the Network
88. Background. In the Second Report
and Order, we decided that the D Block
license would be issued for a period of
10 years and imposed unique
performance requirements for the D
Block license in connection with the
construction of the shared wireless
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broadband network. Specifically, we
required 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 by the
end of the seventh year, and 99.3
percent by the end of the tenth year.107
We further specified that ‘‘the network
and signal levels employed to meet
these benchmarks be adequate for
public safety use * * * and that the
services made available be appropriate
for public safety entities in those
areas.’’ 108
89. Certain other requirements were
imposed to further ensure coverage of
highways and certain other areas such
as incorporated communities with a
population in excess of 3000.109 We
concluded that these build-out
requirements ‘‘will ensure that public
safety needs are met.’’ 110 We also
required, however, that, ‘‘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.’’ 111
90. Discussion. We seek comment on
whether we should revise the
performance requirements that we
imposed on the D Block licensee with
regard to building out the nationwide,
interoperable broadband network and, if
so, how those requirements should be
revised. We also invite comment on
whether to extend the license term for
that license, and possibly the Public
Safety Broadband License, if we
determine to provide for construction
benchmarks that extend past the initial
license term that we established for the
D Block license.
91. We seek comment on whether we
should retain the existing end-of-term
population benchmark of 99.3 percent
or whether instead we should adopt a
lower population benchmark that is
equal to or more aggressive than the 75
percent benchmark that is applicable to
the C Block. We note that each of the
top four nationwide carriers is currently
providing coverage to approximately 90
percent or more of the U.S.
population.112 Given that existing
commercial wireless infrastructure
already covers approximately 90 percent
of the population, we seek comment on
107 Second Report and Order, 22 FCC Rcd at
15445.
108 Id. at 15446.
109 See id. at 15445, 15446.
110 Id. at 15445.
111 Id. at 15446.
112 UBS Warburg Investment Research, U.S.
Wireless 411, at 17 (Mar. 18, 2008).
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whether it is reasonable to expect that
the D Block licensee would be able to
meet at least a 90 percent of the
population coverage requirement or
more, or whether some other coverage
requirement is appropriate.
92. Based on extrapolations from one
estimate in the record, it appears that
reducing the population coverage level
from 99.3 to 98 percent would result in
a potential cost savings for the D Block
licensee of approximately $3.1 billion in
capital expenditures and reducing the
coverage level to 95 percent would
result in a potential cost savings of
approximately $6.1 billion in capital
expenditures.113 Even assuming that a
more reasonable estimate of potential
cost savings may amount to around half
these figures, reducing the coverage
level to 98 percent would result in a
potential cost savings of approximately
$1.6 billion and reducing the coverage
level to 95 percent would result in a
potential cost savings of around $3.1
billion.114 We seek comment on these
specific estimates, as well as any other
estimates that commenters can provide
relating to the incremental additional
costs associated with covering each
percentage (in whole or part) of the
113 See Frontline Petition for Reconsideration at
22 (stating that increasing the 10-year coverage
requirement from 99 percent of the population to
99.3 percent added $1 billion in costs to the
network). Commission staff extrapolated from
Frontline’s analysis to estimate potential cost
savings associated with various coverage levels.
First, Commission staff estimated Frontline’s
implied network cost per square mile by taking the
difference in square miles between CONUS
population coverage at 99.3 percent and 99 percent
(149,048 square miles), and then dividing
Frontline’s $1 billion cost savings by this difference
in square miles. Using this methodology,
Commission staff estimated Frontline’s implied
network cost per square mile to be approximately
$6,700. In estimating the difference in square miles
between population coverage at 99 percent and
99.3, Commission staff used U.S. Census-based
population data by county, starting with the county
that has the highest population density, and
working down in counties to arrive at 99 and 99.3
percent of the U.S. population. Using the implied
network cost per square mile derived from the
Frontline data, Commission staff estimated that
reducing the CONUS population coverage level
from 99.3 to 98 percent would result in a reduction
of 913,612 square miles covered by the network.
This reduction in square miles is multiplied by the
implied cost of $6,700 to arrive at potential network
cost savings for the D Block licensee of
approximately $3.1 billion. Similarly, Commission
staff estimated that reducing the CONUS population
coverage level from 99.3 to 95 percent would result
in a reduction of 462,591 square miles covered by
the network. This reduction in square miles is
multiplied by the implied cost of $6,700 to arrive
at potential network cost savings for the D Block
licensee of approximately $6.1 billion.
114 By reducing this estimated implied network
cost per square mile by 50 percent (from $6,700 to
$3,355), Commission staff estimated a potential cost
savings of approximately $1.6 billion if the coverage
level were reduced to 98 percent, and a potential
cost savings of $3.1 billion if the coverage level
were reduced to 95 percent.
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population above 95 percent. We also
note that reducing the population
coverage level for the end-of-term
benchmark from 99.3 percent to 98
percent or 95 percent would also reduce
the geographic area covered by the
network. We estimate, for example, that
under the current 99.3 percent end-ofterm build-out benchmark,
approximately 61 percent of the
geographic area of the country would be
covered by the network. By contrast,
with a 95 percent end-of-term build-out
benchmark, we estimate that
approximately 40 percent of the
geographic area of the country would be
covered.115 We seek comment on these
estimates, or on any related estimates.
93. More generally, we seek comment
on how much a dedicated, nationwide,
interoperable broadband network for
public safety, built to the requirements
outlined in the Second Report and
Order, costs to build and operate. We
seek as much detail on these costs as
commenters can provide. How should
the Commission balance the potential
savings associated with adopting less
stringent performance requirements
with our goal of establishing a
nationwide interoperable public safety
network?
94. As we consider appropriate
construction benchmarks for the D
Block license, we note that for the 22
megahertz C Block we required
licensees to provide signal coverage and
offer service to at least 40 percent of the
population in each EA of the license
area within four years and to at least 75
percent of the population in each EA of
the license area by the end of the tenyear license term.116 Given that the
licenses in the C Block were
successfully auctioned in Auction 73,
and that at least one bidder has put
together a nearly nationwide geographic
footprint with these licenses, we assume
that the D Block licensee should, at the
very minimum, be able to meet these
benchmarks with respect to its
nationwide license. We seek comment
on this assumption.
95. Depending on which performance
benchmarks we may ultimately adopt,
should we include benchmarks that
extend beyond the end of the initial 10
year license term? If so, should we also
extend the term of the D Block license
accordingly? Would doing so make it
easier for the D Block licensee to meet
115 See
Implementation of Section 6002(b) of the
Omnibus Budget Reconciliation Act of 1993;
Annual Report and Analysis of Competitive Market
Conditions with Respect to Commercial Mobile
Services, Twelfth Report, 23 FCC Rcd 2241, at 5
(2008) (Twelfth CMRS Competition Report).
116 Second Report and Order, 22 FCC Rcd at
15351.
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the performance requirements the
Commission adopted? If, for example,
we were to adopt a 15 year license term,
would such a modification increase the
commercial viability of the required
network while still meeting public
safety needs? If we were to adopt a 15
year license term, how should the
interim build-out benchmarks be
modified? We could, for example,
require the D Block licensee to provide
signal coverage and offer service to at
least 50 percent of the population of the
nationwide license area by the end of
the fifth year, 80 percent of the
population of the nationwide license
area by the end of the tenth year, and
95 percent of the population of the
nationwide license area by the end of
the fifteenth year. Would modifying the
license term and performance
requirements in this way, or similar
way, serve the public interest?
Alternatively, if we extend the overall
license term, should we add additional
interim benchmarks to reflect the longer
deployment period? What potential
impact would these revised terms and
benchmarks have on the near-term and
long-term needs of public safety? Would
roaming be a possible solution to
increased coverage needs?
96. We also seek comment on how
making changes to the license term and
performance requirements as described
above would affect other aspects of the
rules that we adopted, such as the
requirement 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 people? 117 In addition,
we seek comment on whether any
aspect of the renewal requirements for
the D Block licensee should be revised.
In the Second Report and Order, we
determined that, at the end of the 10
year license term, the D Block licensee
will be allowed to apply for license
renewal that 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.118 Because
the initial NSA term will expire at the
same time, we also required the D Block
117 We do not revisit our decision to prohibit
geographic partitioning and spectrum
disaggregation for the D Block licensee in the
context of the 700 MHz Public Private Partnership.
We continue to find that such restriction is
necessary to ensure the integrity of the public/
private partnership and nationwide broadband
network.
118 Second Report and Order, 22 FCC Rcd at
15450.
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licensee to file a renewed or modified
NSA for Commission approval at the
time of its license renewal
application.119 Should we make any
changes to these requirements?
97. How will the possibility of NSA
re-negotiation at some point in the
future affect the incentives of public
safety users to develop reliance on the
public safety broadband network? What
steps could provide public safety users
with confidence that using the
broadband network will remain
attractive after potential changes to the
NSA at renewal time? 120 What are the
downsides to such an approach?
98. As discussed above, we are
seeking comment on whether the
license term of the D Block should be
revised. In adopting the ten-year license
term for the Public Safety Broadband
Licensee, we sought to harmonize the
license terms to facilitate the
contemplated leasing arrangement and
build out requirements. Accordingly,
should we determine to extend the term
of the D Block license, we seek
comment on whether we also should
extend the Public Safety Broadband
Licensee term in a corresponding
manner. Further, we determined in the
Second Report and Order that the NSA
was to have a term not to exceed 10
years from February 17, 2009, to
coincide with the term of the D Block
license. Thus, we also ask whether we
should extend the term of the NSA to be
co-extensive with any extended term we
may adopt for the D Block.
99. We also seek comment on whether
we should revise our rules to permit the
D Block licensee to use Mobile Satellite
Service to help it meet its build-out
benchmarks. In the Second Report and
Order, we found that satellite services
can enable public safety users to
communicate in rural and remote areas
that terrestrial services do not reach. We
also stated that satellite technology can
provide the only means of
communicating where terrestrial
communications networks have been
damaged or destroyed by wide-scale
natural or man-made disasters.121 As a
result, we required that the D Block
licensee make available to public safety
users at least one handset that includes
a seamlessly integrated satellite
solution.122 In addition, we strongly
119 Id.
120 See A New Proposal for a Commercially Run
Nationwide Broadband System Serving Public
Safety by Jon M. Peha, Associate Director, Center
for Wireless and Broadband Networking, Professor
of Electrical Engineering and Public, PS Docket No.
06–229, WT Docket No. 96–86 (filed Feb. 27, 2007),
at 9.
121 Second Report and Order at 15452.
122 Id. at 15452.
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encouraged the D Block licensee and the
Public Safety Broadband Licensee to
negotiate large-scale satellite service
agreements that could be used to either
expand or expedite build-out in rural
areas and to replace terrestrial services
where terrestrial facilities are damaged
or destroyed.123
100. In light of the potential for
Mobile Satellite Services to supplement
the D Block licensee’s coverage, we seek
comment in this Second FNPRM on
whether it would serve the public
interest to permit the D Block licensee
to utilize Mobile Satellite Service as a
way to meet, in part, its build-out
requirements. We seek comment on
whether this proposal could better
enable the D Block licensee to meet its
performance requirements by providing
the licensee with additional means for
ensuring that broadband public safety
services are available in remote and
rural areas. If the D Block licensee is
able to make use of Mobile Satellite
Service coverage, we seek comment on
whether satellite coverage would make
it easier to cover gaps in rural areas in
the terrestrial 700 MHz public safety
network. We seek comment on whether
this additional flexibility in
infrastructure deployment would serve
to bolster the availability, robustness,
and survivability of the public safety
communications network. If we permit
the D Block licensee to use Mobile
Satellite Services to help it meet the
build-out benchmarks, we seek
comment on whether we should limit
the extent to which it can rely upon
such services and, if so, how its reliance
on Mobile Satellite Services should be
limited.
101. We also seek comment on
whether the D Block licensee’s
obligation to meet its build-out
requirements should be delayed or
relaxed if the licensee ensures that
handsets with terrestrial and mobile
satellite components are available in
areas that have not been built out with
a terrestrial network, but are covered by
a Mobile Satellite Service footprint.
Alternatively, we seek comment on
whether we should retain the terrestrial
build-out requirement, but provide the
D Block licensee with more flexibility if
it makes terrestrial/mobile satellite
handsets available for public safety use.
We seek comment, for example, on
whether the D Block licensee should be
provided scaled flexibility based on the
substitutability of the satellite offering
for terrestrial services to be used by
public safety users. Factors that we
could consider in assessing such an
offering might include: (1) The
123 Id.
at 15453.
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capabilities of the satellite component
(e.g., voice, data, video, interoperability,
priority/preemption); (2) the availability
of terrestrial/mobile satellite data
devices, in addition to handheld voice
devices; and (3) geographic coverage. To
the extent we determine to lower the
population coverage level for the end-ofterm benchmark from 99.3 percent to 98
percent or 95 percent, is there some
other way than Mobile Satellite Service
to provide service to 99.3 percent of the
population?
102. What would be the marginal cost
to public safety entities of using Mobile
Satellite Service-based communications
services? To what extent would these
marginal costs be comparable to the
marginal cost of using the terrestrial
component of the public safety
broadband network? Is it reasonable to
require the D Block licensee to ensure
some degree of comparability of costs
for public safety end users if the D Block
licensee relies upon Mobile Satellite
Service to fulfill a network build-out
requirement? How could such
comparability be defined and enforced?
103. We also seek comment on
whether there are other terrestrial or
non-terrestrial technologies or services
that the D Block licensee may utilize to
satisfy its performance requirements.124
We reiterate the questions asked of
Mobile Satellite Services above with
regard to other such non-terrestrial
technologies, and we seek comment on
the costs and benefits of such
technologies, particularly in comparison
to Mobile Satellite Service, and whether
permitting the use of such technologies
to satisfy in part the D Block licensee’s
performance requirements would raise
any other issues that should be
addressed by the Commission.
104. We further seek comment on
whether, to reduce the cost of meeting
our build-out requirements, we should
adopt rules to promote or facilitate
access by the D Block licensee to public
safety towers and/or rights of way, and
124 See, e.g., Letter from Gerald Knoblach, CEO,
Space Data Corporation, to Marlene H. Dortch,
Secretary, FCC, AU Docket No. 07–157, ET Docket
No. 04–186, Ex Parte (filed April 29, 2008) (arguing
that wide area technologies such as Space Data’s
SkySite Platforms, which ‘‘create a wireless
network consisting of transceivers on weather
balloons that operate in near space from 60,000 to
100,000 feet,’’ can ‘‘address issues associated with
build-out and landmass coverage for the 700 MHz
D Block. * * *’’); Interoperable Communications:
Hearing Before the H. Subcomm. on
Telecommunications and the Internet, 110th
Congress (2008) (statement of Robert F. Duncan,
Rear Admiral, United States Coast Guard (ret.),
Senior Vice President, Rivada Networks). See also
Letter from Cheryl A. Tritt, Counsel to Space Data
Corp., to Marlene H. Dortch, Secretary, FCC, WT
Docket Nos. 96–86, 05–211, and 06–150, PS Docket
No. 06–229, AU Docket No. 07–157, Ex Parte Notice
(filed Oct. 24, 2007).
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if so, what measures would be
appropriate? We might, for example,
obligate the licensees in the 700 MHz
Public/Private Partnership to make
‘‘reasonable, good-faith efforts to obtain
access’’ to both public safety towers and
public safety rights of way, as earlier
proposed by one party in this
proceeding.125 We seek comment on
this option, and on whether measures
should be adopted to provide public
safety entities with some degree of
obligation or incentive to provide such
access. Commenters proposing such a
measure should also discuss the
Commission’s authority to adopt it.
Alternatively, should we clarify that the
D Block licensee has flexibility to
provide this type of incentive, such as
by agreeing to reduced rates for services
to public safety entities that provide
access to their towers, and otherwise
leave the issue to be negotiated between
the two licensees and the relevant
public safety entities? Are there
impediments that might limit the ability
of public safety entities to enter into
such arrangements? If so, what steps can
the Commission take to address such
impediments that are within its
authority and consistent with the public
interest?
105. Finally, as an alternative
approach for establishing construction
requirements, we seek comment on
whether we should employ a ‘‘two
tiered’’ build out obligation, such that
the D Block licensee would be allowed
to incrementally enhance its network.
Under this approach, the D Block
licensee could satisfy its ‘‘first tier’’
build out requirement by meeting a
subset, or some lower-cost aspects, of
the technical requirements we adopt for
the public-private partnership, and later
enhance the network to meet public
safety needs. The D Block licensee
would then be required to satisfy a
‘‘second tier’’ requirement and fully
upgrade portions of the network to meet
all technical requirements adopted for
the shared wireless broadband network
based on certain temporal and/or public
safety take-rate-based triggering
mechanisms. Would adopting this two
tiered performance requirement serve
our goals to ensure a commercially
viable opportunity for the D Block
licensee to construct a shared wireless
broadband network suitable for public
safety use? If so, what ‘‘first tier’’
requirements or capabilities should the
D Block be required to meet? When
should the D Block licensee be required
to fully upgrade to the entire set of
125 See Notice by Frontline Wireless, LLC, WT
Docket No. 06–150 and 06–169, PS Docket No. 06–
229 (filed Mar. 27, 2007), Draft Rules at 5.
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technical requirements? Should we
specify a certain amount of time
following each construction benchmark,
or after a certain take-rate is achieved by
public safety entities?
b. Respective Roles and Responsibilities
of the D Block Licensee and Public
Safety Broadband Licensee With Regard
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Operations, and Use of the Network
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106. In adopting the 700 MHz Public/
Private Partnership in the Second
Report and Order, we sought to
delineate the respective roles and
responsibilities of the D Block licensee
and the Public Safety Broadband
Licensee in a manner that would ensure
that the construction and operation of a
shared, interoperable broadband
network infrastructure that operated on
the 20 megahertz of spectrum associated
with the D Block license and the Public
Safety Broadband License and that
served both the needs of commercial
and public safety users.126 Under this
plan, the D Block licensee and its
related entities would finance,
construct, and operate the shared
network,127 while the Public Safety
Broadband Licensee would represent
the interests of public safety community
and ensure that the shared network
meets their needs.128
107. In establishing the 700 MHz
Public/Private Partnership, we
determined that promoting commercial
investment in the build-out of a shared
network addressed the most significant
obstacle to constructing a public safety
network—the limited availability of
public funding.129 We concluded that
providing for a shared infrastructure
would help achieve significant cost
efficiencies, provide the public safety
community with priority access to
commercial spectrum during
emergencies, and speed deployment of
a nationwide interoperable broadband
network for public safety. At the same
time, by providing the D Block licensee
with rights to operate commercial
services in the 10 megahertz of public
safety broadband spectrum on a
secondary, preemptible basis, this
partnership would help defray the costs
of build-out and ensure that the
spectrum is used efficiently.130
126 See, e.g., 22 FCC Rcd at 15426 ¶ 383, 15431
¶ 396.
127 See, e.g., id. at 15428 ¶ 386, 15431 ¶¶ 395–
96, 15432 ¶ 399, 15437 ¶ 415, 15441 ¶ 425, 15445–
46 ¶¶ 437–43, 15450 ¶ 457, 15449 ¶ 452, 15467 ¶
517.
128 See, e.g., id. at 15421–25 ¶¶ 373–75, 15426–
27 ¶ 383, 15433–34 ¶ 405, 15437–38 ¶ 416.
129 Id. at 15431 ¶ 396.
130 Id.
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108. We stated that the D Block
licensee would have the ‘‘exclusive
right and obligation to build out the
shared network,’’ using both the
spectrum associated with the D Block
license as well as the public safety
broadband spectrum leased from the
Public Safety Broadband Licensee.131
We determined that providing for
‘‘commercial operations’’ on the public
safety broadband spectrum, on a
secondary and preemptible basis, was
‘‘an integral part of a viable framework
for enabling the 700 MHz Public/Private
Partnership to finance construction of a
nationwide, interoperable public safety
broadband network.’’ 132 We also
afforded the D Block licensee
‘‘operational flexibility’’ in using the
leased spectrum to provide ‘‘an
appropriate balance between the
commercial and public safety operations
in the public safety broadband
spectrum.’’ 133 We stated that the
spectrum leasing component of the
partnership ‘‘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.’’ 134
We considered the D Block licensee’s
commercial operations throughout the
20 megahertz band of spectrum,
including operations on a secondary
basis with regard to public safety
spectrum, as a necessary condition in
order to ‘‘harness private sector
resources to facilitate construction of a
nationwide interoperable public safety
broadband network.’’ 135
109. Meanwhile, in the Second Report
and Order we provided that the Public
Safety Broadband Licensee’s
responsibilities would center around
directly representing the public safety
interests with respect to the 700 MHz
Public/Private Partnership, negotiating
on their behalf with the winning bidder
of D Block license and ensuring that
their interests are met in the NSA.136
Among other things, as discussed above,
we provided that no commercial interest
may be held in the Public Safety
Broadband Licensee, that no
131 Id. at 15432 ¶ 399. See also, e.g., id. at 15450
¶ 457; 47 CFR 27.1303.
132 Id. at 15437 ¶ 416.
133 Id. at 15438 ¶ 417.
134 Id.
135 Id. at 15438 ¶ 419.
136 Id. at 15437 ¶ 416 (role of the Public Safety
Broadband Licensee ‘‘in ensuring that the public/
private network established pursuant to the 700
MHz Public/Private Partnership serves the interests
of public safety’’), 15438 ¶ 417 (Public Safety
Broadband Licensee, through its spectrum leasing
arrangement with the D Block licensee, ‘‘has the
regulatory means (and obligation) to preserve the
fundamental public safety function of the band’’).
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commercial interest may participate in
the management of the licensee, and
that the licensee must be a non-profit
organization.137 We assigned various
general responsibilities that we
considered in keeping with the Public
Safety Broadband Licensee’s
responsibilities, as discussed more fully
below. We afforded the Public Safety
Broadband Licensee ‘‘significant
flexibility and control in connection
with the construction and use of the
nationwide broadband public safety
network,’’ while at the same time we
sought ‘‘to balance that discretion with
the concurrent and separate
responsibilities’’ of the D Block
licensee.138
110. Finally, we provided some
guidance on the service fees that the D
Block licensee could charge public
safety users for their access to the
shared network, both for ‘‘normal
network service’’ using the public safety
broadband spectrum and for priority
access to the D Block spectrum.139 We
required that these fees, to be negotiated
by the winning bidder of the D Block
license and the Public Safety Broadband
Licensee, be specified in the Network
Sharing Agreement.140 In addition, we
indicated that the Public Safety
Broadband Licensee, as part of its
administration of public safety access to
the shared wireless broadband network,
might assess ‘‘usage fees to recoup its
expenses and related frequency
coordination duties.’’ 141
111. Below, we seek comment on
whether we should clarify or revise the
roles and responsibilities relating to the
D Block licensee and the Public Safety
Broadband Licensee. We also seek
comment on whether we should clarify
or revise the guidance or requirements
relating to fees, including both service
fees and spectrum usage fees. Finally,
we seek comment generally on whether
additional revisions or clarifications
regarding the construction, operation,
management, or use of the shared
network would help ensure that the
goals of the 700 MHz Public/Private
Partnership are achieved.
(i) Role and Responsibilities of the D
Block Licensee
112. Background. As discussed above,
the D Block licensee is generally
responsible for financing, construction,
and operation of the shared network,
which will serve both commercial users
and public safety users. Also as noted
above, we considered the D Block
137 Id.
at 15421–22 ¶¶ 373–374.
at 15426 ¶ 383.
139 Id. at 15448–49 ¶¶ 450–52.
140 Id. at 15448 ¶ 450.
141 Id. at 15426 ¶ 383.
138 Id.
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licensee’s ‘‘commercial operations’’
throughout the 20 megahertz band of
spectrum as a necessary condition in
order to ‘‘harness private sector
resources to facilitate construction’’ of
the network.142
113. Discussion. We invite comment
on whether additional clarity with
regard to the role and responsibilities of
the D Block licensee would be helpful
to ensure that the 700 MHz Public/
Private Partnership achieves its goal in
creating a shared, interoperable
broadband network. We further seek
comment on the appropriate extent of
the relationship between the D Block
licensee and individual public safety
entities with regard to either the
establishment of service with those
entities or ongoing customer care and
billing, bearing in mind the role and
responsibilities of the Public Safety
Broadband Licensee, which we discuss
below.
114. As we have indicated, the ability
of the D Block licensee to finance
construction of the shared network is
critical. Have we established sufficient
and appropriate incentives in the 700
MHz Public/Private Partnership that
ultimately will enable the D Block
licensee to finance and construct the
shared network as contemplated? Are
there additional steps we can take, or
further clarifications, that would
improve the likelihood of the success
for this partnership?
115. With respect to management and
operations of the network, we expect
that the D Block licensee will establish
a network operations system to support
the network infrastructure that it
deploys and uses to serve its
commercial customers. Such network
operations functions typically include a
network operations/monitoring center,
billing functions, customer care, and
similar functions. Should these network
operations functions be viewed, much
like the build-out of a common network
infrastructure, as responsibilities to be
assumed solely by the D Block licensee
for the benefit of both its commercial
customers and the public safety users
represented by the Public Safety
Broadband Licensee? If the D Block
licensee were to assume all traditional
network service provider operations,
would this better enable the Public
Safety Broadband Licensee to
administer access to the national public
safety broadband network by individual
public safety entities, coordinate
frequency usage, assess usage fees, and
exercise its sole authority to approve
equipment and applications for use by
public safety entities?
142 Id.
at 15439 ¶ 419.
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116. We also seek comment on the
factors that will affect and determine the
D Block licensee’s commercial
operations and anticipated profitability.
Commenters are encouraged to be as
specific as possible and to provide
detailed projections and figures where
possible. What types of commercial
customers can the licensee be expected
to serve (e.g., critical infrastructure
industries, commercial wireless carriers
seeking additional spectrum or roaming
capacity, commercial wireless
customers, automotive companies and
service providers, large enterprise
customers)? How might current trends
and recent developments in the
commercial wireless market and the
general financial markets affect the D
Block licensee’s financial model?
(ii) Role and Responsibilities of the
Public Safety Broadband Licensee
117. Background. As discussed above,
the Public Safety Broadband Licensee
generally is charged with representing
the interests of the public safety
community to ensure that the shared
interoperable broadband network meets
their needs. In the Second Report and
Order, we assigned the following
responsibilities to the Public Safety
Broadband Licensee concerning its
partnership with the D Block licensee:
• General administration of access to
the national public safety broadband
network by individual public safety
entities, including assessment of usage
fees to recoup its expenses and related
frequency coordination duties.
• Regular interaction with and
promotion of the needs of the public
safety entities that would utilize the
national public safety broadband
network, within the technical and
operational confines of the NSA.
• Use of its national level of
representation of the public safety
community to interface with equipment
vendors on its own or in partnership
with the D Block licensee, as
appropriate, to achieve and pass on the
benefits of economies of scale
concerning network and subscriber
equipment and applications.
• Sole authority, which cannot be
waived in the NSA, to approve, in
consultation with the D Block licensee,
equipment and applications for use by
public safety entities on the public
safety broadband network.
• Responsibility to facilitate
negotiations between the winning
bidder of the D Block license and local
and state entities to build out local and
state-owned lands.143
143 Id.
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118. We also identified several other
of the Public Safety Broadband
Licensee’s responsibilities, which
included:
• Coordination of stations operating
on public safety broadband spectrum
with public safety narrowband stations,
including management of the internal
public safety guard band.
• Oversight and implementation of
the relocation of narrowband public
safety operations in channels 63 and 68,
and the upper 1 megahertz of channels
64 and 69.
• Exercise of sole discretion, pursuant
to Section 2.103 of the Commission’s
rules, whether to permit Federal public
safety agency use of the public safety
broadband spectrum, with any such use
subject to the terms and conditions of
the NSA.
• Responsibility for reviewing
requests for wideband waivers and
including necessary conditions or
limitations consistent with the
deployment and construction of the
national public safety broadband
network.144
119. As noted above, we also
provided that no commercial interest
may be held in the Public Safety
Broadband Licensee, that no
commercial interest may participate in
the management of the licensee, and
that the licensee must be a non-profit
organization.145 We indicated, however,
that, as part of its administration of
public safety access to the shared
wireless broadband network, the Public
Safety Broadband Licensee might assess
usage fees to recoup its expenses and
related frequency coordination
duties.146
120. We afforded the Public Safety
Broadband Licensee flexibility in
overseeing the construction and use of
the nationwide broadband public safety
network, while seeking ‘‘to balance that
discretion with the concurrent and
separate responsibilities’’ of the D Block
licensee.147 In order to fulfill these
obligations, we indicated that the Public
Safety Broadband Licensee should have
‘‘operational control of the network to
the extent necessary to ensure public
safety requirements are met.’’ 148
121. Discussion. As an initial matter,
we seek comment on whether we
should clarify that the Public Safety
Broadband Licensee may not assume
any additional responsibilities other
than those specified by the Commission
in this proceeding. We also seek
144 Id.
145 Id.
at 15421–22 ¶¶ 373–374.
at 15426 ¶ 383.
147 Id. at 15426 ¶ 383.
148 Id. at 15434 ¶ 405.
146 Id.
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comment generally on whether we
should clarify, revise, or eliminate any
of the specific responsibilities listed
above that the Public Safety Broadband
Licensee must assume. We seek
comment in particular on whether to
clarify or revise the division of
responsibility between the Public Safety
Broadband Licensee and the D Block
licensee regarding direct interaction
with individual public safety entities in
the establishment of service to such
entities, the provision of service,
customer care, service billing, or other
matters. What division will best serve
the interests of public safety and the
goals of this proceeding?
122. In addressing these questions, we
ask commenters to consider the unique
role served by the Public Safety
Broadband Licensee by virtue of holding
the single nationwide public safety
license, while not being an actual user
of the network. As evidenced by many
of the responsibilities given to the
Public Safety Broadband Licensee, at a
fundamental level, the Public Safety
Broadband Licensee would in many
respects function much like the way
regional planning committees presently
do in the 700 MHz and 800 MHz bands,
yet with a nationwide scope. For
example, like regional planning
committees, the Public Safety
Broadband Licensee would administer
access to the spectrum, coordinate
spectrum use, interact with and promote
the needs of individual public safety
agencies, and ensure conformance with
applicable technical and operational
rules. One important difference,
however, is that unlike regional
planning committees, the Public Safety
Broadband Licensee is the licensee of
the spectrum that it administers.
Further, the Public Safety Broadband
Licensee has distinct abilities, in that it
may assess usage fees to recoup its
costs, can use its national level of
representation to pass on the benefits of
economies of scale for subscriber
equipment and applications, and holds
sole authority to approve, in
consultation with the D Block licensee,
equipment and applications for public
safety users, and to permit Federal
public safety agency use.
123. In light of these similarities and
differences, we ask whether it would
add clarity to the Public Safety
Broadband Licensee’s role to specify
how it is to carry out these
responsibilities. For example, are there
certain elements of the existing regional
planning committee functions that we
should adopt for the Public Safety
Broadband Licensee? For those
functions distinct from regional
planning committees, should we adopt
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specific rules to govern how the Public
Safety Broadband Licensee is to carry
out such functions? Other
responsibilities listed above are more
specific to the Public Safety Broadband
Licensee’s status as a partner with the
D Block licensee. These include its role
to facilitate negotiations between the D
Block licensee and state and local
agencies for local build-outs, oversight
and implementation of narrowband
relocation, and review of wideband
waiver requests. Thus, while a number
of the Public Safety Broadband Licensee
responsibilities are in a frequency
planning and coordination role, the
Public Safety Broadband Licensee is at
the same time an equal partner with the
D Block licensee with respect to the
overall partnership we envision.
Accordingly, we seek comment on how
the Public Safety Broadband Licensee’s
role as one half of the 700 MHz Public/
Private Partnership should impact how
we modify or clarify the respective
responsibilities of the D Block licensee
and the Public Safety Broadband
Licensee.
124. While the Public Safety
Broadband Licensee may need some
discretion to carry out its partner-related
responsibilities, there may need to be
more specific limits on the nature of this
role. For example, related to the Public
Safety Broadband Licensee
responsibilities discussed herein, we
previously noted that among the shared
wireless broadband network
requirements we adopted in the Second
Report and Order was that the network
infrastructure incorporate operational
control of the network by the Public
Safety Broadband Licensee ‘‘to the
extent necessary’’ to ensure public
safety requirements are met.149 As we
have reiterated throughout this item, the
underlying premise of the 700 MHz
Public/Private Partnership is the
responsibility of the D Block licensee for
construction of a broadband network for
shared commercial and public safety
use. Thus, primary operational control
of the network is inherently the
responsibility of the D Block licensee
(and its related entities), which would
in turn generally provide the operations
and services that enable the Public
Safety Broadband Licensee to ensure
public safety requirements are met.
Conversely, allowing duplication of
some or all of these operational
functions may result in a structure more
akin to a reseller of services, which
could inject an inappropriate
‘‘business’’ or ‘‘profit’’ motive into the
Public Safety Broadband Licensee
structure, detracting from the intended
149 Id.
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primary focus of the Public Safety
Broadband Licensee. Accordingly, we
seek comment on whether to clarify that
none of the responsibilities and
obligations of the Public Safety
Broadband Licensee, either as
previously adopted or as possibly
revised pursuant to this Second
FNPRM, would permit the Public Safety
Broadband Licensee to assume or
duplicate any of the network
monitoring, operations, customer care,
or related functions that are inherent in
the D Block licensee’s responsibilities to
construct and operate the shared
network infrastructure.
125. We further seek comment on
whether to expressly provide that
neither the Public Safety Broadband
Licensee nor any of its advisors, agents,
or service providers may assume
responsibilities akin to a ‘‘mobile virtual
network operator,’’ 150 because such a
role would be contrary to the respective
roles and responsibilities of the D Block
licensee and Public Safety Broadband
Licensee regarding construction,
management, operations, and use of the
shared wireless broadband network,
may unnecessarily add to the costs of
the 700 MHz Public/Private Partnership,
and may otherwise permit ‘‘for profit’’
incentives to influence the operations of
the Public Safety Broadband Licensee.
126. In addition, we seek comment on
whether we should modify Section
2.103 of the Commission’s rules to limit
Federal public safety agency use of the
public safety broadband spectrum to
situations where such use is necessary
for coordination of Federal and nonFederal activities. If so, should
Commission approval be required? That
would ensure that Federal public safety
agencies will be able to interoperate
with state and local public agencies in
the use of 700 MHz public safety
broadband services during incidents of
mutual interest. In other situations,
Federal public safety agencies would, of
course, be able to purchase 700 MHz
wireless broadband services from
commercial service providers using the
D Block, just as they purchase satellite
service from commercial service
providers. How does the proposed
public safety broadband network for
state and local users compare (on a
technical level or in terms of
functionality) with the planned
Integrated Wireless Network (‘‘IWN’’)
150 A mobile virtual network operator is a nonfacility-based mobile service provider that resells
service to the public for profit. See Implementation
of Section 6002(B) of the Omnibus Budget
Reconciliation Act of 1993, WT Docket No. 05–71,
Tenth Report, 20 FCC Rcd 15908, 15920 ¶ 27
(2005).
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for Federal users? 151 What lessons can
the Commission learn from the IWN
program? To what extent should
development of the public safety
broadband network be coordinated with
the agencies responsible for
construction and planning of the IWN
program?
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(iii) Fees
127. Background. In the Second
Report and Order, we provided
guidance concerning the service fees
that the D Block licensee could charge
public safety users for their access to
and use of the public safety broadband
network and, in times of emergency, to
the D Block spectrum.152 We also
discussed the importance of the D Block
licensee’s ability to offer commercial
services using the public safety
broadband spectrum leased from the
Public Safety Broadband Licensee.153
128. We required that all service
fees—including service fees that the D
Block licensee would charge public
safety users for normal network service
using the public safety broadband
spectrum and for their priority access to
the D Block spectrum—be specified in
the Network Sharing Agreement.154 We
stated our expectation, however, that
the winning bidder of the D Block
license and the Public Safety Broadband
Licensee 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.155 We also encouraged the
parties to negotiate a fee agreement that
incorporates financial incentives for the
D Block licensee based on the number
151 The IWN is a collaborative effort by the U.S.
Departments of Justice, Homeland Security, and the
Treasury to provide a consolidated nationwide
Federal wireless communications service that
replaces stovepipe stand-alone component systems,
and supports law enforcement, first responder, and
homeland security requirements with integrated
communications services (voice, data, and
multimedia) in a wireless environment. The IWN
will implement solutions to provide Federal agency
interoperability with appropriate links to state,
local, and tribal public safety, and homeland
security entities. See https://www.usdoj.gov/jmd/
iwn. On April 17, 2007, the Department of Justice
announced that it has selected General Dynamics
C4 Systems to implement wireless communications
services to department field agents as part of the
IWN program. See https://www.usdoj.gov/opa/pr/
2007/April/07_jmd_256.html.
152 Second Report and Order, 22 FCC Rcd at
15448–49 ¶¶ 450–52.
153 Id. at 15437–39 ¶¶ 414–19, 15441 ¶ 425.
154 Id. at 15448 ¶ 450.
155 Id. Elsewhere, we stated that this ‘‘[p]riority
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.’’ Id. at 15437 ¶ 413.
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of public safety entities and localities
that subscribe to the service.156 We
noted that, for the negotiation of
reasonable rates, typical commercial
rates for analogous services may be
useful as a guide, but that the negotiated
rates may in fact be lower than typical
commercial rates for analogous
services.157
129. In addition, we considered the D
Block licensee’s opportunity to provide
commercial services using the public
safety broadband spectrum (on a
secondary, preemptible basis) to be ‘‘an
integral part of a viable framework for
enabling the 700 MHz Public/Private
Partnership to finance construction of a
nationwide, interoperable public safety
broadband network.’’ 158 We also noted
that permitting such access to this
spectrum ‘‘will harness private sector
resources to facilitate the construction’’
of the network.159
130. We did not discuss the
commercial fees that the D Block
licensee might charge subscribers to the
commercial services that it offers using
the shared network. We left that to the
marketplace. As discussed above,
however, we seek comment in this
Second FNPRM on whether all nonpublic safety users of the shared
spectrum—including critical
infrastructure users—should be treated
as commercial users that gain access to
the shared network through the
commercial services provided by the D
Block licensee.160
131. Discussion. We seek comment on
whether we should further clarify,
revise, or specify the service fees that
the D Block licensee may charge public
safety users for access to the shared
network. We also seek comment on
whether we should provide any
guidance on whether the Public Safety
Broadband Licensee may assess
spectrum usage fees for the leasing of
the public safety broadband spectrum to
the D Block licensee or the amount of
any fee permitted. Is there any
additional guidance that we could
provide with regard to fees that the D
Block licensee or Public Safety
Broadband Licensee might assess that
would be helpful in ensuring that the
goals of the 700 MHz Public/Private
Partnership are achieved?
156 Id.
at 15448 ¶ 450.
at 15449 ¶ 451.
158 Id. at 15437 ¶ 416.
159 Id. at 15439 ¶ 419. See also id. at 15438 ¶ 417
(stating that the requirement that the Public Safety
Broadband Licensee lease the public safety
broadband spectrum to the D Block licensee
spectrum ‘‘permits the D Block licensee to construct
a network to serve its business needs. * * *’’).
160 See supra discussion in section III.A.1.
157 Id.
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132. Network service fees. We invite
comment on whether we should
reconsider any aspect of the rules
regarding service fees to be paid by
public safety users, including any
applicable fees for normal network
service and fees for priority access to the
D Block in an emergency. Specifically,
we seek comment on whether we
should clarify any aspect of these
service fees that was left to negotiations.
Did we provide adequate guidance in
the Second Report and Order to enable
the parties to negotiate reasonable rates
for all fees? Or should the Commission
adopt a more detailed fee structure or
formula to facilitate negotiations on this
issue? 161 For example, should we
specify that the D Block licensee is
entitled to charge rate-of-return or costplus rates, taking the incremental costs
of public safety network specifications
and other costs attributable uniquely to
public safety users into account?
Alternatively, would requiring public
safety users to pay the same rates as
commercial users be sufficient? Should
we mandate that public safety users be
entitled to receive the lowest rate that
the D Block licensee offers to its
commercial users for analogous service?
Commenters suggesting that the
Commission adopt a detailed fee
structure should provide detailed
information on their proposals and
discuss how adopting such proposals
would result in just and reasonable rates
and strike the best balance among
competing interests in determining fees.
Would more clearly defining the
circumstances that would constitute an
‘‘emergency,’’ as addressed elsewhere,
impact how fees should be structured
for priority access?
133. We also seek comment on
whether particular uses of the public
safety broadband network by public
safety users should be free and others
fee-based. On what bases can this
distinction be made? Is it practical to
use service- and context-based
distinctions such as between voice and
advanced data services, mission-critical
and non-mission-critical
communications, emergency and nonemergency events, priority and nonpriority access, or similar metrics?
Would it instead be preferable to rely on
technical distinctions, such as a
161 See, e.g., Frontline September 20, 2007,
Request at 3 (proposing a formula that would limit
the amount public safety users could be charged to
that necessary to recover (1) the amortized,
incremental fixed costs of building the network to
public safety standards, plus (2) ongoing operating
expenses for maintaining the network to public
safety standards, minus (3) the amortized value of
secondary use of the Public Safety Broadband
Licensee spectrum by commercial customers).
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specified number of minutes or bits, a
percentage of network capacity, or
similar metrics? Would either approach
give sufficient certainty to public safety
users and/or the commercial D Block
licensee?
134. Spectrum leasing fees associated
with the public safety broadband
spectrum leasing arrangement. In the
Second Report and Order, we did not
specifically address whether the Public
Safety Broadband Licensee, when
leasing access to the public safety
broadband spectrum to the D Block
licensee, may impose any spectrum
usage fees for use of this spectrum. We
seek comment on whether any aspect of
the spectrum leasing arrangement
should be clarified by the Commission,
or whether spectrum usage fees might
be considered reasonable or
unreasonable given the role of the
spectrum leasing arrangement in the 700
MHz Public/Private Partnership. When
we provided guidance in the Second
Report and Order on determining
reasonable network service fees, we
assumed that the network service and
priority access fees may in fact be lower
than typical commercial rates in part to
reflect the value of the D Block
licensee’s access to the public safety
spectrum through leasing. We seek
comment on whether and how any
spectrum usage fees might affect the
reasonableness of service and
emergency access fees discussed above.
Should we prohibit any spectrum usage
fees associated with the spectrum
leasing arrangement? Is the D Block’s
responsibility for building the public
safety broadband network sufficient inkind contribution for use of the public
safety spectrum? If we allow spectrum
usage fees, should we require public
safety users to pay commercial rates for
their access to the shared network?
2. Negotiation of the Network Sharing
Agreement
135. Background. To ensure the
timely establishment and execution of
an NSA that adequately safeguards the
public interest, we provided rules to
govern the process by which the
winning bidder of the D Block license
and the Public Safety Broadband
Licensee would negotiate and establish
the agreement.162 Under these rules, the
parties were required to begin
negotiations on the date that the D Block
winning bidder filed its long form
application and to conclude
negotiations within six months.163 Both
the D Block winning bidder and the
162 See Second Report and Order, 22 FCC Rcd at
15463 ¶ 501, 15466 ¶ 512.
163 See id. at 15464 ¶ 504.
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Public Safety Broadband Licensee were
required to negotiate in good faith, and
were obligated to submit status reports
during the negotiations period.164 To
ensure that the D Block winning bidder
would not stall negotiations to avoid its
obligations to public safety, we
provided that the D Block license would
not be issued until the parties filed an
NSA that had been approved by the
Commission and was subsequently
executed by the parties.165
136. If the parties successfully
negotiated an agreement on all terms
within the six month period, they were
required to submit the NSA to the
Commission for review and approval. In
the event the parties did not reach
agreement on all terms at the end of the
six month negotiation period, or if they
were found to have reached an impasse
at any time, we delegated authority
jointly to the Chiefs of PSHSB and WTB
(the Bureaus) to take a variety of actions
to resolve the disputes, including but
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 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, to be
followed by either re-auction of the
license or some other means of reassignment.166
137. After the release of the Second
Report and Order, the Chiefs of PSHSB
and WTB issued a public notice that,
among other things, clarified how the
Bureaus would exercise their authority
to resolve disputes that arise in the NSA
negotiations.167 They stated: ‘‘We will
not exercise our authority for immediate
denial of the long-form application filed
by the winning bidder for the D Block
license, as a result of any dispute over
the negotiation of the terms of the NSA,
until we take one of two steps: (1)
Issuing a decision on the disputed
issues and requiring the submission of
a draft agreement consistent with our
decision; or (2) referring the issues to
the Commission for an immediate
decision and the Commission issues
such a decision.’’ 168 The Bureaus also
164 See
id. at 15464–65 ¶¶ 505–506.
id. at 15463 ¶ 502.
166 See id. at 15465 ¶ 508.
167 See ‘‘Revised Procedure for Auctions 73 and
76: Additional Default Payment for D Block Set at
Ten Percent of Winning Bid Amount; Disputed
Issues in the Negotiation of Network Sharing
Agreement,’’ Public Notice, 22 FCC Rcd 19320
(2007) (D Block Default Payments PN).
168 Id. at 19322 ¶ 7.
165 See
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noted that ‘‘failure to comply with a
decision by the Commission or the
Bureaus on the disputed issues * * *
will be deemed a default.’’ 169
138. Discussion. We seek comment on
whether and how to modify the rules
governing the negotiation of the NSA,
including dispute resolution, to provide
bidders with greater certainty regarding
their obligations while still protecting
the interests and needs of public safety,
and to ensure that both the D Block
license winner and the Public Safety
Broadband Licensee have incentives to
engage in good faith negotiation and to
reach terms that will reasonably protect
the interests of both sides. In particular,
we seek to provide a process that will
give bidders confidence that the
network the D Block licensee will be
required to construct will be
commercially viable, and provide
assurance to state and local public
safety entities that the resulting network
will meet their needs for broadband
wireless service.
139. To achieve these goals, we seek
a process that provides incentives to
both sides to make a maximum good
faith effort to reach an agreement
consistent with the important
commercial and public safety interests
at stake. As discussed elsewhere in this
Second FNPRM, one way for the
Commission to provide greater certainty
regarding the terms of the NSA would
be to further specify the requirements of
the 700 MHz Public/Private Partnership
in our rules. In this section, we seek
comment on whether we should modify
the NSA negotiation process itself.
140. Any party’s incentives to make a
maximum good faith effort in any
negotiation process are framed by the
consequences of failing to reach
agreement. Below, we seek comment on
whether we should maximize the
incentives for a bidder winning the D
Block license to reach agreement on an
NSA with the Public Safety Broadband
Licensee by providing that, if the parties
do not reach agreement, we promptly
will offer the license to the next highest
bidder, in descending order.
Alternatively, we seek comment on
whether we should maximize the
incentives for both parties to reach
agreement on an NSA by providing that,
if the parties do not reach agreement, we
promptly will offer in a subsequent
auction the license(s) for the D Block
spectrum without the 700 MHz Public/
Private Partnership conditions and
subject to service rules more typical of
commercial wireless services licenses.
Would either of these alternatives offer
an appropriate balance of incentives for
169 See
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the negotiating parties to reach an
agreement?
141. We also seek comment in this
section on other related issues. First, we
seek comment on whether, if the NSA
process fails to produce an agreement
between the parties, there are any
circumstances in which we should
relieve a defaulting D Block license
winning bidder of its obligation to make
default payments. We discuss later the
distinct question of what amounts a
defaulting D Block license winning
bidder should be required to pay, if any,
under these or other circumstances.
Second, in the following subsections,
we seek further comment on whether to
modify the mechanisms for resolving
any disputes that may arise during the
negotiations or otherwise modify the
negotiation process.
142. Action subsequent to failure to
negotiate an NSA. Pursuant to the
Commission’s competitive bidding
rules, in the event of a default by a
winning bidder, the Commission, at its
discretion, may either offer the licenses
to the next highest bidders (in
descending order) at their final bids or
auction new licenses for the
spectrum.170 If the winning bidder does
not execute an NSA with the Public
Safety Broadband Licensee, that
winning bidder will be in default and its
license application will be dismissed.
We seek comment on whether,
following such a default, we should
offer the license to the party with the
next highest bid, in descending order.
The next highest bidder would then
have the option of paying the amount of
its final bid, filing a long-form
application, and entering into a
negotiation process with the Public
Safety Broadband Licensee. If that next
highest bidder declined to exercise that
option, the Commission could offer the
license to the party with the next
highest bid, in descending order, and so
on. Under such circumstances, should
the Commission provide for a shorter
time period for a second attempt to
negotiate an NSA, in light of the first
effort? Or should each D Block bidder be
entitled to the same amount of time to
attempt to negotiate the terms of the
NSA?
143. In the event of a failure to
negotiate the NSA, we also seek
comment on whether, in lieu of offering
the license to the next highest bidder,
we promptly should auction alternative
license(s) for the D Block spectrum
without the 700 MHz Public/Private
170 See 47 CFR 1.2109(b), (c); see Second Report
and Order, 22 FCC Rcd at 15465 ¶ 508 (noting that,
after failure of the parties to negotiate an NSA, the
Commission may reassign the license to the next
highest bidder, citing 47 CFR 1.2109).
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Partnership conditions and subject to
different service rules. This option
limits not only the winning bidder for
the D Block license to one opportunity
to negotiate an NSA but also limits the
Public Safety Broadband Licensee to
one opportunity. Does this limit create
a better or worse set of incentives for the
negotiators, given the public interest in
producing a broadband network to serve
the public safety users?
144. Under each of the foregoing
alternatives, how should the
Commission define a ‘‘failure’’ of the
negotiation process? For instance,
should we require adjudication of any
dispute before deeming the negotiations
a failure and the D Block winning
bidder in default? Should such
adjudication be binding? Or should we
deem the negotiations a failure and the
D Block winning bidder in default
simply if negotiations are at an impasse
after six months, or even sooner if the
parties certify that an impasse exists? If
the consequence of a failure of
negotiations is the auction of the
alternative D Block license(s), should
we make additional provisions for
resolving any impasse between the
parties?
145. We further seek comment on
whether there are any circumstances in
connection with the failure to negotiate
an NSA under which a winning bidder
for the D Block license should be
relieved from making default payments
based on its winning bid. Commenters
also should address the possibility that
relieving the winning bidder from
default obligations while offering the D
Block license to the next highest bidder
might create an incentive for the
winning bidder to bargain with the next
highest bidder and offer to default.
Generally, if we do not adjudicate any
impasse that arises in negotiation,
should we automatically subject the D
Block winning bidder to default
payments when its license application
is dismissed? Or should some finding of
fault on the part of the winning bidder
be a prerequisite of imposing a default
payment? If so, how should such fault
be determined? Should any other
consequences, separate and apart from a
default payment, be imposed on the
defaulting D Block winning bidder
under any of these circumstances?
146. Alternatively, if we provide for
binding adjudication with respect to any
negotiation impasse, should we subject
the D Block license winning bidder to
default payments if either party rejects
the binding decision or only if it the D
Block license winning bidder fails to
comply? Should any other
consequences, separate and apart from a
default payment, be imposed on the
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defaulting D Block winning bidder
under any of these circumstances?
147. Elsewhere in this Second
FNPRM, we seek comment on the rules
we should adopt for the D Block, as well
as the Public Safety Broadband License,
if we offer the license(s) for the D Block
without the 700 MHz Public/Private
Partnership conditions. If we decide
that such licenses should be offered
after a failure to negotiate an NSA,
should that affect the rules we otherwise
might adopt for such license(s)? We
likewise seek comment on whether any
of our Part 1 competitive bidding rules
or other auction procedures would be
inappropriate or should be modified for
an auction of D Block license(s) without
the 700 MHz Public/Private Partnership
conditions that is held subsequent to
negotiations between a winning bidder
and the Public Safety Broadband
Licensee that do not produce an NSA.
148. If we provide that a failure of
negotiations to produce an NSA will
result in a subsequent auction of D
Block license(s) without the 700 MHz
Public/Private Partnership conditions, a
winning bidder might have an incentive
for those negotiations to fail so that it
can bid on license(s) without the 700
MHz Public/Private Partnership
conditions in the subsequent auction.
We seek comment on whether this
theoretical incentive is a practical
concern and, if so, whether we should
adopt either of two potential auction
eligibility rules to mitigate any such
concern.
149. First, we could prohibit a D
Block license winning bidder and
related parties from participating in any
subsequent auction in which any
licenses for the D Block are offered
without the 700 MHz Public/Private
Partnership conditions. We seek
comment on this alternative, and on
whether any such eligibility restriction
should depend on whether the D Block
license winning bidder is at fault for the
failure of the 700 MHz Public/Private
Partnership, e.g., if the D Block license
winning bidder refused to comply with
a Commission adjudication of a
negotiation dispute. Further, should any
such eligibility restriction extend to the
winning bidder’s controlling interests or
other related parties? If so, how should
such parties be defined?
150. Alternatively, we might lift any
auction eligibility restrictions that made
other parties ineligible for the prior
auction of the D Block license with the
700 MHz Public/Private Partnership
conditions. We seek comment in a later
section of this Second FNPRM regarding
whether to restrict parties already
possessing significant access to 700
MHz spectrum from participating in
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auctions of license(s) for the D Block. If
such a restriction applied to an auction
of the D Block license with the 700 MHz
Public/Private Partnership conditions,
we could lift the restriction in a
subsequent auction of licenses without
those conditions. Would doing so
significantly alter the likelihood that the
winning bidder in an initial auction
could win the license again, and would
this offset any potential incentive such
a winning bidder might have for NSA
negotiations to fail following the first
auction?
151. Potential modifications to
dispute resolution mechanisms. We also
seek comment on whether we should
eliminate the option of binding
adjudication of disputed issues and
provide that, in the event of an
intractable dispute, so long as a D Block
bidder has negotiated in good faith, the
Commission will relieve the D Block
winning bidder of its financial
obligations in connection with the
license. Although this option has been
advanced by parties on
reconsideration,171 we are concerned
that it would be difficult for the
Commission to determine when a
disagreement was the product of ‘‘bad
faith’’ negotiations and that this option
may not provide sufficient incentive to
the D Block winning bidder to meet the
needs of public safety. We therefore
invite commenters that advocate this
option to discuss these concerns and
how they might be addressed. For
example, should we establish a specific
standard for what will constitute an act
of bad faith, similar to the standard
incorporated at Section 76.65(b) of our
rules? 172
171 See, e.g., AT&T Petition for Reconsideration
at 8; Cyren Call Petition for Reconsideration at 6,
7; Frontline Petition for Reconsideration at 23.
172 See 47 CFR 76.65(b). Implementing the
requirements of 47 U.S.C. 325(b)(3)(C), this section
provides that television broadcast stations and
multi-channel video programming distributors must
negotiate the terms and conditions of
retransmission consent agreements in good faith. It
establishes the following standard for determining
whether a party has violated its duty to negotiate
in good faith:
(1) Standards. The following actions or practices
violate a broadcast television station’s or
multichannel video programming distributor’s (the
‘‘Negotiating Entity’’) duty to negotiate
retransmission consent agreements in good faith:
(i) Refusal by a Negotiating Entity to negotiate
retransmission consent;
(ii) Refusal by a Negotiating Entity to designate
a representative with authority to make binding
representations on retransmission consent;
(iii) Refusal by a Negotiating Entity to meet and
negotiate retransmission consent at reasonable
times and locations, or acting in a manner that
unreasonably delays retransmission consent
negotiations;
(iv) Refusal by a Negotiating Entity to put forth
more than a single, unilateral proposal;
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152. We further seek comment on
whether, instead of eliminating binding
adjudication, we should modify its
application or scope. For example,
should we limit the issues of
adjudication to the requirements
specified in our rules? If so, what rules
should apply to disputes regarding other
terms? Alternatively, should we adopt a
specific measure, such as a presumption
that a D Block bidder proposal that
otherwise satisfies the Commission’s
stated requirements should be upheld in
adjudication? If so, what demonstration
should we require of the Public Safety
Broadband Licensee to rebut the
presumption? Should we provide that
we will require the parties to the
adjudication to each submit their best
offer and that we will then choose one
submission or the other? Would this
encourage the parties to make proposals
that address each other’s needs?
153. Other modifications to the
process for establishing the NSA. We
also seek comment on whether to adopt
other measures relating to the process
for establishing the NSA. We seek
comment on whether there are any
concerns inherent in the adjudication of
NSA disputes by the Commission. If so,
we seek comment on how such
concerns could be addressed, and
whether there are alternatives to
Commission adjudication that will still
achieve a final agreement in the event
of a dispute.
154. This Second FNPRM generally
seeks comment on whether we should
further clarify or revise requirements
relating to the network as well as the D
Block licensee’s and Public Safety
Broadband Licensee’s respective
responsibilities with regard to the 700
MHz Public/Private Partnership. One
likely effect of such additional clarity
would be to reduce the scope of and
uncertainty relating to issues that need
(v) Failure of a Negotiating Entity to respond to
a retransmission consent proposal of the other
party, including the reasons for the rejection of any
such proposal;
(vi) Execution by a Negotiating Entity of an
agreement with any party, a term or condition of
which, requires that such Negotiating Entity not
enter into a retransmission consent agreement with
any other television broadcast station or
multichannel video programming distributor; and
(vii) Refusal by a Negotiating Entity to execute a
written retransmission consent agreement that sets
forth the full understanding of the television
broadcast station and the multichannel video
programming distributor.
(2) Totality of the circumstances. In addition to
the standards set forth in section 76.65(b)(1), a
Negotiating Entity may demonstrate, based on the
totality of the circumstances of a particular
retransmission consent negotiation, that a television
broadcast station or multichannel video
programming distributor breached its duty to
negotiate in good faith as set forth in section
76.65(a).
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to be negotiated between the parties to
the NSA. Accordingly, we seek
comment on whether, if we adopt such
clarifications, it would be appropriate to
also reduce the length of the NSA
negotiation process, and if so, what
length would be reasonable. We also
invite commenters to suggest other
measures that we might adopt that
would help to give potential bidders
additional certainty regarding the
outcome of the process, or otherwise
reduce the risks of the process for the D
Block winning bidder, or that would
otherwise improve the process. In
considering this issue, commenters
should take into account the availability
of the spectrum as of the DTV transition
date, and the needs of both parties to
access and utilize this spectrum in a
timely manner.
3. Auction-Related Issues
a. Eligibility To Participate in the D
Block Auction
155. Background. In the Second
Report and Order, after considering
whether open eligibility would pose a
significant likelihood of substantial
competitive harm in a specific market,
we declined to restrict eligibility for 700
MHz Band licenses.173 We determined
that the appropriate market to assess
when considering restrictions on
eligibility to hold 700 MHz licenses is
the broadband services market.174
Recognizing the numerous actual and
potential broadband service providers
that exist, we concluded that the record
did not demonstrate that open eligibility
to hold 700 MHz band licenses was
likely to result in substantial
competitive harm in the provision of
broadband services.175 Since our prior
determination, Auction 73 has only
increased the number of potential
providers of broadband service.
156. Discussion. Although there is no
significant likelihood of substantial
competitive harm in the broadband
services market that we need to address
by restricting otherwise eligible parties
from holding the D Block license, the D
Block is intended for uses that extend
beyond commercial broadband services.
Indeed, the requirements of the D Block
create a unique opportunity for a new
type of nationwide network. Such an
opportunity is unlikely to present itself
again in the foreseeable future. It
therefore may serve the public interest
to limit eligibility for participation in
the D Block auction in order to
maximize the possibility that a party
173 Second Report and Order, 22 FCC Rcd at
15383–84 ¶ 256.
174 Id.
175 Id.
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otherwise without significant access to
spectrum potentially suitable for the
provision of mobile wireless broadband
services will have an opportunity to
create a nationwide 700 MHz network
using the D Block.176
157. The Commission has adopted
auction eligibility restrictions in other
circumstances, where limited
opportunities in existing or emerging
services presented potential competitive
concerns but did not warrant restricting
license ownership or spectrum access
beyond the initial auction of the
license.177 Accordingly, we now seek
comment on whether the public interest
would be served by adopting an auction
eligibility restriction with respect to the
license(s) made available for the D
Block.178 More specifically, now that
various parties have already obtained
spectrum access as a result of Auction
73, we seek comment on whether the
public interest would be served by
limiting eligibility to bid on the
license(s) for the D Block to parties that
do not already have significant access to
700 MHz Band spectrum or other
spectrum potentially suitable for the
provision of mobile wireless broadband
services. A restriction limited to
eligibility to bid on the license(s) in a
Commission auction would not restrict
any parties’ ability to acquire the
license(s) or to access D Block spectrum
in the secondary market—through
leasing or wholesaling arrangements,
which are otherwise permissible within
our rules.179 We also seek comment on
176 As we determined in the Second Report and
Order, we are not proposing to change our decision
to prohibit geographic partitioning and spectrum
disaggregation for the D Block licensee. The D Block
licensee would continue to be permitted to assign
or transfer its license subject to Commission review
and prior approval. See Second Report and Order,
22 FCC Rcd at 15475 ¶ 542.
177 See Service Rules for the 746–764 and 776–
794 MHz Bands and Revisions to Part 27 of the
Commission’s Rules, WT Docket No. 99–168,
Second Report and Order, 15 FCC Rcd 5299, 5326
¶ 62 (2000) (700 MHz Guard Bands Second Report
and Order) (adopting auction eligibility restriction
in new service by precluding one party from
winning both licenses in a given area); Revision of
Rules and Policies for the Direct Broadcast Satellite
Service, IB Docket No. 95–168, Report and Order,
11 FCC Rcd 9712, 9736–37, ¶¶ 61–66 (1995)
(imposing an auction eligibility restriction in Direct
Broadcast Satellite (‘‘DBS’’) service by prohibiting
any party with an attributable interest in DBS
channels at a full-CONUS orbital location from
acquiring at auction an attributable interest in the
full-CONUS channels offered at the 110° orbital
location without divesting its prior interest in fullCONUS channels).
178 As discussed elsewhere, we seek comment on
whether the D Block should be comprised of
regional licenses instead of one nationwide license.
179 We would not, however, propose that such
access would be permitted through partitioning or
disaggregation of the D Block spectrum in light of
the unique relationship contemplated and the D
Block licensee’s responsibilities under the 700 MHz
Public/Private Partnership.
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whether any restriction that limits the
ability of otherwise qualified parties to
bid on the license(s) for D Block
spectrum should apply only to the next
auction of any license(s) for D Block
spectrum, or to all future auctions of
such license(s). Should whether the
restriction applies depend in whole or
in part on whether the license(s) are
subject to the 700 MHz Public/Private
Partnership conditions?
158. Generally, restrictions on the
ability of parties to bid for new licenses
based on their existing access to
spectrum may favor new entrants.
Should the auction rules favor new
entrants? If so, how? We seek comment
on how to structure an auction
eligibility restriction to assure that a
party not already able to offer
nationwide or near-nationwide service
using 700 MHz Band spectrum or other
spectrum potentially suitable for the
provision of mobile wireless broadband
services will have the opportunity to
win a D Block license. Should we
preclude from applying for D Block
license(s) parties in which any party
holding a present or future interest
already has sufficient spectrum access,
however that access is defined? Should
we preclude from applying for D Block
license(s) any party with an agreement
to provide future access to D Block
spectrum, e.g., a spectrum lease
agreement, to any party that already has
sufficient spectrum access, however that
access is defined? Given that the
restriction is intended solely to apply to
auction eligibility, and not subsequent
eligibility to hold the license, parties
already having sufficient spectrum
access might obtain an interest in
winning bidders or access to their
spectrum, but only after licensing.
159. With respect to the spectrum
access parties already have, should the
potential restriction be concerned with
only particular spectrum blocks or
bands, or should we consider any
spectrum potentially suitable for the
provision of mobile wireless broadband
services? One party previously proposed
a restriction that would have precluded
the same party from winning in initial
Commission auctions both licenses in
the C Block and the D Block license.180
Should we be concerned only with
parties’ access to the adjacent C Block
or to all 700 MHz spectrum, including
spectrum held in the C and D Blocks of
the Lower 700 MHz Band? What extent
of spectrum access should trigger any
restriction? Should we restrict the
auction eligibility only of those parties
that have nationwide or nearnationwide 700 MHz spectrum access or
180 See
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include parties that have nationwide or
near-nationwide access in other bands?
Should the extent of access be measured
by geographic or population coverage,
or some combination of the two? Should
bandwidth be a factor? What is the
appropriate threshold at which to apply
the restriction?
160. We also seek comment on the
appropriate method of measuring a
party’s spectrum access for this purpose.
Should it be measured solely by the
party’s control of current 700 MHz
license holders and winning bidders? Or
by the party’s equity interest in current
700 MHz Band license holders and
winning bidders? By existing leased
access to 700 MHz Band spectrum
capacity, i.e., leases with respect to
already granted licenses? By existing
leased rights to 700 MHz Band spectrum
capacity, i.e., leases with parties that are
winning bidders but not yet licensees?
Should we include other bands
potentially suitable to the provision of
mobile wireless broadband services? If
so, what method should we use to
measure a party’s access to such bands?
161. While we seek comment on the
appropriate scope of an auction
eligibility restriction, at the same time,
we recognize that restricting eligibility
may adversely impact the ability of
public safety to gain access to an
advanced broadband network as quickly
as possible. In this respect, it may be
desirable to have the broadest pool of
bidders possible in order to maximize
the likelihood of a successful
partnership that will benefit both public
safety and consumers. We seek
comment on how this consideration
should impact our decision on auction
eligibility rules. We also seek comment
on whether the Commission should
apply its spectrum aggregation screen
used for wireless transactions to the D
Block.
b. Reserve Price
162. Background. In the Second
Report and Order, we directed WTB to
adopt and publicly disclose blockspecific aggregate reserve prices,
pursuant to its delegated authority and
its regular pre-auction process,
consistent with our conclusions in the
Second Report and Order.181 Those
conclusions in part directed WTB to
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.182 With respect to the specific
181 Second Report and Order, 22 FCC Rcd at
15400–01 ¶ 304.
182 Id.
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circumstances of the D Block, we
directed WTB to give substantial weight
to 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,
which together, we noted, might make
it appropriate to expect a D Block
licensee to pay only 75 to 80 percent of
an amount based on AWS–1 auction
results, or roughly $1.33 billion.183
Pursuant to our direction, WTB issued
the 700 MHz Auction Comment Public
Notice, in which, among other things,
WTB proposed and sought comment on
reserve prices for all blocks of 700 MHz
licenses offered in Auction 73,
including a $1.33 billion reserve price
for the D Block.184 After reviewing the
record of comments submitted in
response, WTB issued the 700 MHz
Auction Procedures Public Notice,
which adopted and set forth procedures
for Auction 73, including a $1.33 billion
D Block reserve price.185 In Auction 73
bidding, applicants placed bids for
licenses in the A, B, C, and E Blocks that
met, and in some cases significantly
exceeded, the applicable reserve price
adopted pursuant to the Commission’s
direction.186 The single bid for the D
Block did not meet its reserve price.187
163. Discussion. We now seek
comment on whether we should direct
WTB to adopt a different approach to
establishing a reserve price in a new
auction for the D Block license,
pursuant to its delegated authority and
its regular pre-auction process. This
Second FNPRM generally considers
revisions to the rules governing the D
Block license in order to further the
public interest by facilitating the
creation of an interoperable broadband
network that can meet public safety
needs. In light of that public interest, as
well as Auction 73’s success in raising
the revenue anticipated by Congress, we
now seek comment on an appropriate
reserve price, or whether we need a
reserve price, other than a minimum
opening bid, at all, for a new auction for
the D Block license. We seek comment
on the purpose that a reserve price
should serve in the current context, and
what level of reserve price would best
serve that purpose. We seek comment
later in this Second FNPRM regarding
whether to offer regional licenses for the
183 Id.
at 15401 ¶ 305.
73/76 Procedures Public Notice, 22
FCC Rcd at 18195 ¶ 199.
185 Id.
186 See ‘‘Auction of 700 MHz Band Licenses
Closes,’’ Public Notice, DA 08–595 (rel. Mar. 20,
2008) (700 MHz Auction Closing Public Notice).
187 Id.
184 Auction
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D Block in place of a single nationwide
license. In an auction offering multiple
licenses, the Commission could set
either aggregate reserve price(s), as it
did for licenses in the A, B, C, and E
Blocks in the 700 MHz auction, or a
license-specific reserve price.
Commenters should address whether
aggregate or license-specific reserve
prices would best serve the purpose of
any proposed reserve price. In the event
that there is some uncertainty regarding
the relative value of multiple licenses,
an aggregate reserve price applicable to
a set of licenses may allow some
flexibility in relative license prices.
With respect to aggregate reserve prices,
commenters should address whether all
the licenses offered should be subject to
a single aggregate reserve price or
whether subsets of the licenses offered
should be subject to various aggregate
reserve prices. We ask that commenters
provide detailed support for any
suggested reserve prices provided.
Furthermore, would any of the rule
revisions presently contemplated be
likely to increase or decrease the
appropriate reserve price?
164. In addition, we seek comment on
whether we should direct WTB to set
minimum opening bid(s) at the amount
of any separate license specific reserve
price(s), whether for a single nationwide
license or for regional licenses. For
Auction 73, WTB established a
minimum opening bid for the D Block
license below the D Block license
reserve price to facilitate substitution
among licenses in different blocks. If we
conduct an auction with multiple
licenses and aggregate reserve price(s),
should we set the minimum opening
bids of individual licenses such that the
aggregate total of the minimum opening
bids is less than the aggregate reserve
price, to reduce the risk that a mistaken
minimum opening bid will keep bidders
from bidding on a particular license?
However, in the event we set licensespecific reserve prices, whether for a
single nationwide license or regional
licenses, there would be no apparent
benefit from accepting bids below the
license-specific reserve.188 For the next
auction of license(s) for the D Block
spectrum, WTB will establish the
minimum opening bid and any reserve
price for the D Block pursuant to its
delegated authority and its regular preauction process. We ask commenters
addressing the reserve price issues
raised herein to address whether there
is any reason to permit bids below any
reserve price and, if so, the extent to
which their comments on reserve price
188 Auction 73/76 Procedures Public Notice, 22
FCC Rcd at 18199–200 ¶ 212.
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issues presume a particular relationship
between a minimum opening bid and
any reserve price.
c. Designated Entity Eligibility for the D
Block Licensee
165. Background. Under our
designated entity eligibility rules, as
modified in 2006 in the Designated
Entity Second Report and Order, a
business model that involves a
designated entity licensee entering into
arrangements with other entities for the
lease or resale (including wholesaling
arrangements) that involve more than 50
percent of the spectrum capacity of a
license constitutes an impermissible
material relationship and renders the
licensee ineligible for otherwise
available size-based bidding credits.189
On November 15, 2007, however, we
waived, on our own motion, the
application of our impermissible
material relationship rule 190 for
purposes of determining an applicant’s
or licensee’s designated entity eligibility
solely with respect to arrangements for
lease or resale (including wholesale) of
the spectrum capacity of the D Block
license.191 In so doing, we determined
that the unique regulations then
governing the D Block license, which
required the establishment of the 700
MHz Band Public/Private Partnership
subject to a Commission-approved
Network Sharing Agreement 192—
together with the application of the
Commission’s other designated entity
eligibility requirements 193—eliminated
for the D Block license the risks that led
the Commission to adopt the
impermissible material relationship
rule. We found that the D Block rules
subjected the licensee to significant
obligations and substantial Commission
oversight, which when combined with
the continued application of other
designated entity rules led us to
conclude that waiver of the
189 See generally Implementation of the
Commercial Spectrum Enhancement Act and
Modernization of the Commission’s Competitive
Bidding Rules and Procedures, WT Docket No. 05–
211, Second Report and Order and Second Further
Notice of Proposed Rule Making, 21 FCC Rcd 4753
(2006) (Designated Entity Second Report and Order)
recon. pending; Implementation of the Commercial
Spectrum Enhancement Act and Modernization of
the Commission’s Competitive Bidding Rules and
Procedures, WT Docket No. 05–211, Order on
Reconsideration of the Second Report and Order, 21
FCC Rcd 6703 (2006) (Order on Reconsideration of
Designated Entity Second Report and Order); 47
CFR 1.2110(b)(3)(iv)(A).
190 47 CFR 1.2110(b)(3)(iv)(A).
191 See generally D Block Waiver Order.
192 See Second Report and Order, 22 FCC Rcd at
15428–79 ¶¶ 386–553.
193 See Designated Entity Second Report and
Order; Order on Reconsideration of the Designated
Entity Second Report and Order; 47 CFR 1.2110,
1.2111, 1.2112, 1.2114.
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impermissible material relationship rule
served the public interest.
166. Discussion. Now that we are
revisiting the service and auction rules
for the D Block license, we seek
comment regarding whether we should
adopt a service specific exception to our
impermissible material relationship rule
for purposes of determining designated
entity eligibility solely with respect to
arrangements for lease or resale
(including wholesale) of the spectrum
capacity of the D Block license. Could
revised service and auction rules that
we might adopt for the D Block license
continue to present unique
circumstances and regulatory
obligations that warrant an exception to
our impermissible material relationship
rule?
167. If we establish such a service
specific exception to our general
designated entity impermissible
material relationship rule, will our other
designated entity rules sufficiently
ensure that only bona fide small
businesses, exercising control over the D
Block license in accordance with our
rules, will benefit from bidding credits
applicable to that license? 194 For
instance, consistent with the scope of
the D Block Waiver Order, will the
continued application of the controlling
interest rule, attributable material
relationship rule, and the unjust
enrichment rule, as well as all other
designated entity eligibility rules
together with the unique requirements
that will apply to the D Block license
prevent the abuses the impermissible
material relationship rule was designed
to address? Do the terms and conditions
pertaining to the D Block license, both
previously set forth and as discussed in
this Second FNPRM, provide sufficient
assurance that the D Block commercial
licensee’s provision of service for the
benefit of the public will not be
significantly influenced by any party
leasing (or accessing through wholesale
arrangements) fifty percent or more of
the spectrum capacity of the D Block
license? Does the unique relationship
between the D Block licensee and the
Public Safety Broadband Licensee, and
their regulatory obligations to ensure the
ongoing integrity and consistency of
service to the public safety users of the
network, mitigate any potential for such
influence? If, however, the Commission
194 This attribution requirement based on D Block
arrangements will affect the designated entity’s
ongoing eligibility for designated entity benefits.
See, e.g., Designated Entity Second Report and
Order, 21 FCC Rcd at 4759–60 ¶ 15, 4763–65 ¶¶ 25–
30, 4765–68 ¶¶ 31–41; Order on Reconsideration of
Designated Entity Second Report and Order, 21 FCC
Rcd at 6712–13 ¶¶ 24–26; 47 CFR
1.2110(b)(3)(iv)(B), 1.2111(d). See also 47 CFR
1.2110(b)(1)(i), (m), (n).
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chooses to license the D Block without
the 700 MHz Public/Private Partnership,
are there any circumstances in which
we should consider an exception to the
impermissible material relationship
rule?
d. Default Payment
168. Background. The Commission’s
competitive bidding rules provide that if
a winning bidder defaults for any
reason, the bidder is liable for a default
payment.195 In the Second Report and
Order, the Commission provided that
the D Block winning bidder would be
deemed to have defaulted under Section
1.2109(c) of the Commission’s rules and
would be liable for the default payments
set forth in Section 1.2104(g) if it failed
to comply with the procedures
established for negotiation or dispute
resolution in the NSA, including a
failure to comply with a Commission or
Bureau decision in binding
adjudication, as well as under other
circumstances, e.g., if it failed to pay its
winning bid.196 Pursuant to Section
1.2104(g) of those rules, a default
payment is comprised of (1) a
‘‘deficiency payment,’’ based on the
amount, if any, by which a subsequent
winning bid is lower than the defaulted
bid; and (2) an ‘‘additional payment,’’
based on a percentage of the lesser of
the defaulted bid or the subsequent
winning bid.197
169. The Commission’s
implementation of its competitive
bidding authority enables the
assignment of licenses to parties that
value them more highly than others and
are more likely to put the licenses to
efficient and effective use. The failure to
pay a winning bid undermines this
entire process. At a minimum, defaults
delay the assignment of licenses and the
deployment of service. In addition, a
default may impair the ability of the
auction process to assign licenses to
those parties best able to serve the
public. Accordingly, the Commission
requires defaulting bidders (or
withdrawing bidders, in auctions in
which withdrawals are permitted) to
pay the deficiency portion of the default
payment so that bidders are more likely
to submit bids accurately reflecting their
ability to pay, enhancing the efficiency
of the competitive bidding process in
assigning licenses.198
195 47
CFR 1.2109(b), (c).
Second Report and Order, 22 FCC Rcd at
15466 ¶ 511.
197 See 47 CFR 1.2104(g)(2).
198 See Implementation of Section 309(J) of the
Communications Act-Competitive Bidding, Second
Report and Order, 9 FCC Rcd 2348, 2373 ¶ 147
(1994) (Competitive Bidding Second Report and
Order).
196 See
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170. The Commission further requires
an additional payment when a winning
bidder defaults to both discourage
unsupportable bidding and provide an
incentive to bidders wishing to
withdraw previously placed bids to do
so prior to the close of an auction (when
permitted), because, among other things,
a default or disqualification after an
auction prevents other bidders from
winning the license in the initial
auction, thereby delaying the use of the
spectrum to provide service to the
public.199 Originally, the additional
default payment was set at three
percent.200 In 2006, we concluded that
having the discretion to set the
additional payment percentage between
three and 20 percent would help the
Commission ‘‘persuade bidders to be
more realistic in their advance
assessment of how much they can afford
to pay for licenses.’’ 201 For Auction 73,
the additional default payment
percentage for any default on a bid for
the D Block license was set at ten
percent. In auctions where the
Commission accepts single bids on
combinations, or packages, of licenses,
the Commission has fixed the additional
default payment percentage at twentyfive percent.202 The Commission
adopted the higher additional default
percentage in response to the greater
potential significance of such a default.
In auctions with combinatorial bidding,
a bidder’s winning bid may affect not
only the licenses subject to that winning
bid, but the set of bids that wins other
licenses as well.
171. Over the history of the
Commission’s 69 auctions before
Auction 73, the net winning bids placed
by bidders totaled nearly $59 billion, yet
the Commission’s collection of those
bids has totaled far less. The shortfall in
the applicants’ promised payments has
stemmed, in large part, from bidders’
failure to bid consistently with a careful
and realistic assessment of their ability
to pay. This failure has been evidenced
by bidders subsequently filing for
bankruptcy or seeking debt compromise
in lieu of fulfilling their auction
obligations. Historically, the
Commission has found that a bidder’s
inability to render full and timely
payment for its winning bid impairs the
Commission’s assignment of licenses by
competitive bidding by impeding the
199 Id.
at 2374 ¶ 154, 2382–83 ¶ 197.
at 2374 ¶ 154, 2382–83 ¶ 197.
201 Implementation of the Commercial Spectrum
Enhancement Act and Modernization of the
Commission’s Competitive Bidding Rules and
Procedures, WT Docket No. 05–211, Report and
Order, 21 FCC Rcd 891, 903–04 ¶ 31 (2006) (CSEA/
Part 1 Report and Order).
202 47 CFR 1.2104(g)(2)(ii).
200 Id.
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deployment of service to the public and
interfering with the efficiency of the
assignment. To counter the negative
effect of bidders’ failure to honor their
payment obligations, such as in the case
of a post-auction default, we have
sought to assure that the additional
payment portion of the default payment
calculation is sufficient to discourage
defaults resulting from insincere
bidding and to help ensure that licenses
are assigned to financially and
otherwise qualified parties that are able
to use them effectively and efficiently to
provide service.203
172. Discussion. In the present
context, the need to deter default is
substantially increased. The
Commission seeks to license the D
Block spectrum to promote the creation
of a ubiquitous nationwide wireless
network providing interoperable
broadband service to the nation’s public
safety service providers. Delay in
assignment of the license could result in
substantial harm to the public. Much of
this Second FNPRM seeks to reduce the
risk of default, and consequent delay, by
seeking comment on where greater
specificity in the requirements of the
700 MHz Public/Private Partnership
might increase the likelihood of success
in creating the hoped-for public safety
network. At the same time, we seek
comment on whether we should modify
the default payment rules with respect
to a D Block winning bidder. We
recognize that a D Block winning bidder
faces risks of default that are different in
nature, and potentially greater, than
those facing the typical winning bidder
in a Commission auction. We seek
comment on whether a D Block winning
bidder’s consequent exposure to a
potential default payment is excessive
and, if so, on ways to reduce it to an
acceptable level by modifying either the
rules regarding the imposition of a
default payment or the default payment
amount. In particular, we seek comment
regarding the obligation of a D Block
winning bidder to make default
payments in the event that the Bureaus
or the Commission adjudicate a dispute
with respect to the NSA and a D Block
winning bidder will not comply with
the decision on the disputed issues. In
this context, the default payments
provide a strong inducement to a D
Block winning bidder to accept the
adjudicated terms. It is possible,
however, that public safety
representatives aware of a D Block
203 See BDPCS, Inc., Memorandum Opinion and
Order, 15 FCC Rcd 17590, 17598–99 ¶ 15 (2000)
(citing Second Report and Order, 9 FCC Rcd at 2381
¶ 190); see also Competitive Bidding Second Report
and Order, 9 FCC Rcd 2348.
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winning bidder’s incentives may have
greater incentives to make additional
demands in pre-adjudication
negotiations than if the D Block winning
bidder were not facing the threat of
default payments.
173. More specifically, we seek
comment on whether we should modify
the applicable default payment based on
the particular circumstances that lead to
the default, such as after negotiations
fail to produce an NSA. Under such
circumstances, should we cap the
deficiency portion of the default
payment, or direct WTB to apply a
different percentage when calculating
the additional payment portion of the
default payment than it would after a
winning bidder defaults on a postauction payment, or eliminate one of
these components of the default
payment, while retaining the other? We
note that in the event that we conduct
a subsequent auction after negotiations
fail to produce an NSA and offer
license(s) for the D Block that are not
subject to any 700 MHz Public/Private
Partnership conditions, the deficiency
portion of any default payment may
well be zero, given that, if all other
factors are equal, the winning bid(s) in
such a subsequent auction should be
higher. How should we take this
possibility into account?
174. We seek comment on what
specific amount or percentage limits, if
any, would provide the best balance
between maintaining the incentives for
a D Block winning bidder to commit to
its bid amount and the required
negotiating process while limiting the
risk that it may face a choice between
default and accepting NSA terms that
jeopardize the success of its business
plan. Commenters should consider the
possibility that the Commission might
offer multiple regional D Block licenses
subject to combinatorial bidding. Under
such circumstances, should the
Commission continue to retain the
higher additional default payment
percentage for combinatorial auctions,
given the potentially greater effects of a
default by one of multiple winners? We
note generally with respect to the
percentage for the additional payment
portion of the default payment, applying
the ten percent additional payment
previously adopted to a bid equal to the
previous $1.33 billion reserve price
would have resulted in additional
payment portion of the default payment
of $133 million. The Commission has
assessed a total default payment
pursuant to Section 1.2109 that
exceeded $200 million on one prior
occasion. The license in that case was
for Basic Trading Area 347, covering
Phoenix, Arizona and approximately
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one-one hundredth the population
covered by the D Block nationwide
license. However, the largest additional
payment previously assessed as part of
a default payment was less than $6
million.
175. We also seek comment on
whether, in the event that the Public
Safety Broadband Licensee is required
to negotiate multiple times after
separate auctions of the D Block license,
to require a defaulting D Block winning
bidder, either as a substitute for or in
conjunction with any default payments,
to pay the Public Safety Broadband
Licensee’s negotiation costs for
unsuccessful negotiations. If we
establish such an obligation, how
should we define the covered
negotiation costs? Such a payment
might provide some additional
incentive to reach successful
negotiations, and would also ensure
that, in the event the parties did not
reach an agreement, the Public Safety
Broadband Licensee would not be left
financially unable to proceed with
alternatives or to negotiate with a future
licensee.
4. Narrowband Relocation
176. Background. Among other
things, in designating the lower half of
the 700 MHz Public Safety Band (763–
768/793–798 MHz) for broadband
communications, the Second Report
and Order consolidated existing
narrowband allocations to the upper
half of the 700 MHz Public Safety block
(769–775/799–805 MHz).204 To
effectuate the consolidation of the
narrowband channels, we required the
D Block licensee to pay the costs of
relocating narrowband radios from
channels 63 and 68, and the upper one
megahertz of channels 64 and 69, and
capped the disbursement amount for
relocation costs at $10 million.205 We
also cautioned that any narrowband
equipment deployed in channels 63 and
68, or in the upper one megahertz of
channels 64 and 69, more than 30 days
following the adoption date of the
Second Report and Order would be
ineligible for relocation funding.206 In
addition, we prohibited authorization of
any new narrowband operations in that
spectrum, as of 30 days following the
adoption date of the Second Report and
Order.207
177. We found that, in order to
maximize the benefits of the 700 MHz
Public/Private Partnership to deploy a
204 Second Report and Order, 22 FCC Rcd at
15406 ¶ 322.
205 Id. at 15412 ¶ 341.
206 Id. at 15412 ¶ 339.
207 Id.
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nationwide, interoperable broadband
communications network, the current
700 MHz narrowband public safety
operations must be consolidated and
cleared no later than the DTV transition
date.208 We required every public safety
licensee impacted by the consolidation
to file a certification with the
Commission no later than 30 days from
the effective date of the Second Report
and Order, including certain
information to account for ‘‘preprogrammed narrowband radios that
public safety agencies may have already
taken delivery as of the adoption date of
the Second Report and Order and
intend to immediately place into
operation.’’ 209 We emphasized that
such information was ‘‘integral to the
success of the relocation process,’’ and
cautioned public safety entities that
failing to file this information in a
timely manner would result in forfeiture
of reimbursement.210 As ‘‘an additional
measure to define and contain the costs
that would be entitled to
reimbursement,’’ we prohibited any new
authorizations outside of the
consolidated narrowband segment,
stating that such a prohibition would
‘‘ensure that the relocation proceeds in
an orderly manner and without
complications stemming from
additional operations being deployed in
spectrum being reallocated.’’ 211
Moreover, as ‘‘an additional means to
ensure the integrity of the relocation
process,’’ we imposed a $10 million cap
based on the best evidence available in
the record at the time of the Second
Report and Order.212
178. Two parties filed petitions
seeking reconsideration of some or all of
the foregoing requirements in the
Second Report and Order.213 Among
other things, these parties challenged
the adequacy of the $10 million cap on
relocation expenses.214 A number of
other parties also supported revising or
eliminating the relocation cap.215
179. One petitioner also asked that the
Commission make clear that parties who
purchased and began to deploy systems
before the August 30 cut-off date can
continue to deploy those systems after
August 30, and allow full
208 Id.
at 15406 ¶ 322.
at 15411 ¶ 336.
210 Id. at 15411 ¶ 337.
211 Id. at 15412 ¶ 339.
212 Id. at 15412 ¶ 341.
213 See Virginia Petition for Reconsideration;
Pierce Transit Petition for Reconsideration.
214 See Virginia Petition for Reconsideration;
Pierce Transit Petition for Reconsideration.
215 See National Association of
Telecommunications Officers and Advisors
(NATOA) Comments at 9–11; State of Nebraska
(Nebraska) Opposition at 2; Motorola Comments at
1–7.
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209 Id.
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reimbursement for the relocation of all
such systems.216 Another party asks the
Commission to modify the Second
Report and Order to permit continued
authorization and deployment of
statewide radio public safety systems in
Channels 63 and 68 and the upper one
megahertz of Channels 64 and 69
through January 31, 2009, allow the
owner of a statewide radio public safety
system to obtain reimbursement for all
its costs incurred in the installation of
such a system which was in the process
of construction and implementation as
of the date of the Second Report and
Order, and reconsider the $10 million
cap on rebanding costs.217
180. Discussion. Being mindful of the
desire to provide certainty to potential
bidders as to the relocation obligation
that would attach to the winner of this
spectrum, we seek comment on whether
we should revise or eliminate the $10
million cap on relocation expenses. In
commenting, we ask parties to provide
specific data and cost estimates
regarding relocation expenses,
particularly taking into account the
certifications filed in the docket
pursuant to the Second Report and
Order.
181. Given the proposed re-auction of
the D Block and associated timing, we
also seek comment on the date by which
such relocation must be completed.
Should we continue to require
relocation be completed by the DTV
transition date? If not, should we set an
alternative date, and if so, what would
that date be? Should we allow
relocation to occur on a rolling basis,
such that the D Block licensee would be
required to relocate narrowband
operations only as the broadband
network is built out in a particular
market? If so, how much notice should
the D Block licensee be required to give
to a narrowband licensee in advance of
relocation? We also seek comment on
any other viable mechanism for
facilitating relocation, and the
appropriate timing of such an approach.
Should we retain the requirement that
capped costs be deposited in a trust
account to be administered by the
Public Safety Broadband Licensee? If we
eliminate the cap, how would the trust
mechanism function? Should we
continue to require that the Public
Safety Broadband Licensee manage the
reimbursement process for these
licensees? If so, should we require that
public safety entities seeking
reimbursement provide detailed cost
216 See generally Pierce Transit Petition for
Reconsideration.
217 See generally Virginia Petition for
Reconsideration.
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information to the Public Safety
Broadband Licensee? What should such
cost information entail? Should the
Public Safety Broadband Licensee be
afforded discretion in assessing the
soundness of the cost estimates? Can the
Public Safety Broadband Licensee
leverage its status as the nationwide
public safety broadband license holder
to negotiate terms with equipment and
technology vendors to relocate multiple
narrowband operations, and thus
achieve economies of scale? Should the
Public Safety Broadband Licensee have
recourse to the Commission if it
determines that cost estimates provided
by individual public safety entities,
including those passed through by
technology or equipment vendors,
unreasonable?
182. With respect to the August 30,
2007, cut off date for narrowband
deployments outside of the consolidated
narrowband spectrum, we sought to
balance the needs of individual public
safety entities with the necessity of
carrying out a swift and thorough
narrowband relocation process in order
to quickly and efficiently establish the
nationwide, interoperable public safety
broadband network. While we
understand the concerns expressed by
certain parties, we continue to believe
that the cut off date was appropriate and
struck the right balance. Rather,
addressing each such situation on a
case-by-case basis through the waiver
process is a more appropriate
mechanism. Accordingly, we seek
comment on whether extension of the
August 30, 2007, deadline established in
the Second Report and Order would be
inappropriate, and any other issue
related to the reconsideration petitions
filed by Virginia and Pierce Transit.
5. Size of Geographic Areas and Other
Rules and Conditions
183. Size of geographic areas. In the
Second Report and Order, the
Commission determined that the D
Block license would be auctioned as a
single, nationwide license to provide for
commercial service in the D Block to
build and operate a joint broadband
public safety and commercial network
for public safety use.218 We seek
comment on the appropriate geographic
service area for the D Block. Our goal
has been to make a nationwide,
interoperable broadband network
available to state and local public safety
users. We found that creating a
partnership between a single, national
public safety entity and a single D Block
licensee with a nationwide license was
218 700 MHz Second Report and Order, 22 FCC
Rcd at 15315–16 ¶ 62.
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the most practical means of speeding
deployment of the shared network. We
seek comments about whether there is
any reason to change the approach taken
in the Second Report and Order. Would
it best serve the public interest to
continue to license the D Block on a
nationwide basis, or should we choose
regional geographic service areas such
as REAGs?
184. If the D Block were split into
regional licenses, to what extent, if any,
should we modify any of the policies or
rules previously adopted or proposed
herein with respect to a D Block 700
MHz Public/Private Partnership? How
would the Commission ensure that the
primary goal of a national,
interoperable, communications network
for public safety agencies is not
jeopardized? In particular, how would
we ensure interoperability of
communications between public safety
users of different regional networks?
How would we ensure that
interoperable communications
capabilities are extended to first
responders in every region in an
equitable fashion? What obligations
should we adopt to facilitate
coordination between D Block licensees
or to otherwise promote the ability of
the regional networks to function as a
seamless, nationwide network for public
safety users? For example, should we
mandate that each D Block licensee
provide roaming to the public safety
users of all other D Block regional
networks? What rules should apply in
the event that some regional licenses are
successfully auctioned while other
regional licenses are not successfully
auctioned?
185. We also seek comment on
whether the D Block should be split into
one license (or several licenses)
covering high-population density areas
and a second license (or set of licenses)
covering low-population density areas.
Would such an arrangement allow a
commercial licensee that specializes in
rural coverage (or has some comparative
economic advantage in covering such
areas) to better serve public safety users
in rural areas? Do public safety users in
rural areas have different or unique
technical requirements as compared to
public safety users in more denselypopulated areas? If so, to what extent
are commercial entities that specialize
in rural coverage suited to serving
public safety users in such areas? 219
186. We also seek comment on
whether any of our other standard rules,
219 See Letter from Andrew D. Beard, counsel for
Vanu, Inc., to Marlene H. Dortch, Secretary, FCC,
WT Docket Nos. 06–150; 06–169, 96–86; PS Docket
No. 06–229; AU Docket No. 07–157, filed May 8,
2008.
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such as our Part 1 competitive bidding
rules, should be modified to take into
account the possibility of offering
multiple licenses to use D Block
spectrum subject to the 700 MHz
Public/Private Partnership conditions.
What rules should we adopt regarding
the establishment of an NSA? Are the
needs of public safety served if the
Public Safety Broadband Licensee must
negotiate separate NSAs with several
commercial entities, rather than a
single, nationwide commercial partner?
Under a regional approach, how would
we ensure that interoperable
communications capabilities are
extended to first responders in every
region in an equitable fashion? Should
we mandate a ‘‘master’’ NSA that would
include minimum network
specifications, which could then be
modified on a regional basis with more
detailed schedules? If we were to adopt
regional license areas for the D Block,
should we also adopt corresponding
regional public safety broadband
licenses for the public safety broadband
spectrum to facilitate the establishment
of regional 700 MHz Public/Private
Partnerships?
187. Other rules and conditions.
Lastly, we seek comment on whether
there are any other aspects of the rules
or conditions for the 700 MHz Public/
Private Partnership that we should
modify. For example, should we require
the D Block licensee to operate on an
exclusively wholesale and/or open
access basis? 220 Would it serve the goals
of this partnership to impose such
requirements? Or, would maintaining a
more flexible approach improve the
viability of the 700 MHz Public/Private
Partnership? How would an open access
environment affect public safety? If we
adopt a wholesale only approach, do we
need to revise or clarify any aspect of
the operational responsibilities of the D
Block and the Public Safety Broadband
Licensee? Should we permit the D Block
licensee in certain circumstances to
obtain access to public safety
narrowband spectrum on a secondary,
non-interference basis? If so, under what
circumstances should this be permitted,
and what safeguards should be adopted?
Are there any other changes that the
Commission should consider making to
the rules or conditions for the 700 MHz
Public/Private Partnership to ensure its
success?
188. We seek comment on other
means by which the Commission could
effectively match the needs of public
safety users with the capabilities of
potential service providers while still
meeting our obligation under the Act to
assign the D Block by competitive
bidding.221 In particular, we observe
that Federal, State and local government
agencies regularly use requests for
proposals (‘‘RFPs’’) to contract for
services provided by private parties.
Such RFPs can be weighted to reflect
the priorities and needs of the
contracting governments. We seek
comment on the feasibility of such an
approach in this instance.
189. We note that RFPs could be
combined with an auction in at least
two ways. Under one approach, the
Commission or Public Safety Broadband
Licensee could request proposals from
potential providers of the broadband
network for public safety, then select its
preferred specification from the
proposals offered, making these
specifications part of the rules for the D
Block license to be auctioned. Under
another approach, the Commission or
Public Safety Broadband Licensee could
auction the D Block with a minimum set
of requirements, then allow the three or
four highest bidders to submit proposals
that meet or exceed the minimum
requirements, with the Commission
ultimately selecting the winning bidder.
We seek comment on these approaches.
In particular, regarding the first
approach, we ask commenters to
address how we can incorporate the
generally applicable information that
RFP responses would provide while
avoiding adopting entity-specific
requirements that would limit the
flexibility of other entities to meet our
outcome objectives in a way that is best
suited to their particular business plans,
technologies, and resources. With
respect to the second idea, we ask what
specific criteria the Commission should
use in selecting among proposals.
190. Similarly, we seek comment on
whether the Commission could
approximate the benefits of an RFP
through a more expeditious process. In
particular, as noted above, the
Commission seeks comment in this
Second FNPRM on the possibility of
establishing a public/private
partnership and, if such a partnership is
established, what requirements should
apply. As discussed in the Technical
Appendix, these requirements would
include specifications for the system
architecture, reliability, and capacity. In
requesting comment on these issues, we
especially seek input from both the
220 In the Second Report and Order, the
Commission declined to impose wholesale or open
access obligations on the D Block licensee. Second
Report and Order, 22 FCC Rcd at 15476–77 ¶ 545.
221 See 47 U.S.C. 337(a)(2) (Commission must
assign 36 megahertz of 700 MHz spectrum for
commercial use ‘‘by competitive bidding pursuant
to section 309(j).’’).
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public safety users of such a network
and the potential providers of such a
service, including existing wireless
service providers and/or potential new
entrants that may be interested in
participating in a public/private
partnership. Following the issues raised
in the Technical Appendix, what
specifications are needed by public
safety users? What specifications are
economically feasible for potential
providers, and at what cost?
C. Other Options for the D Block
License and the Public Safety
Broadband License
191. In this section, we consider the
Commission’s options in the event that
we determine not to proceed with the
700 MHz Public/Private Partnership
approach requiring a mandatory
partnership between the D Block
licensee and the Public Safety
Broadband Licensee with regard to a
shared network using both the D Block
and public safety broadband spectrum.
For example, as discussed previously,
we might decide that we should not
retain the 700 MHz Public/Private
Partnership obligations if, in the next
auction of the D Block license, we offer
the D Block license with the 700 MHz
Public/Private Partnership obligations
and the license again fails to attract a
winning bidder, or the winning bidder
defaults or fails to negotiate a successful
NSA with the Public Safety Broadband
Licensee. Alternatively, we may decide
not to retain the 700 MHz Public/Private
Partnership condition, and instead
immediately conduct an auction to
license the D Block without a 700 MHz
Public/Private Partnership obligation.
There may also be other circumstances
whereby the 700 MHz Public/Private
Partnership obligation on the D Block
would not serve its purpose and our
objective to facilitate the creation of a
nationwide, interoperable, broadband
network for public safety users. We
therefore seek comment generally on
rules the Commission should adopt,
both for the D Block licensee and the
Public Safety Broadband Licensee, in
those circumstances where the D Block
license would be auctioned without a
700 MHz Public/Private Partnership
condition. If the D Block was auctioned
for unrestricted commercial services,
how much money would the auction
raise? Assuming that the auction would
yield less than the cost of building a
dedicated, nationwide, interoperable
broadband network for public safety,
how should the shortfall be addressed?
If estimated network construction costs
exceed the estimated receipts from the
auction of license(s) for the D Block
with no commercial service restrictions,
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to what extent might this shortfall be
addressed from the auction receipts of
spectrum bands that will be, or might
be, auctioned in the near future? 222 For
example, what are reasonable estimates
of the value of the AWS–3 spectrum
with no commercial service restrictions?
Similarly, what are reasonable estimates
of the value of the ‘‘white spaces’’
spectrum (for unused portions of
television channels 2–51) licensed with
no commercial restrictions? In addition,
if the D Block was auctioned for
unrestricted commercial services, to
what extent would the remaining
spectrum available to public safety
providers be insufficient to meet their
communications needs, including the
need for an interoperable broadband
network? 223
1. D Block License Service Rules
Without the 700 MHz Public/Private
Partnership
192. We seek comment below on the
particular service rules that we should
adopt for the D Block in the event that
we determine that the D Block should
be licensed without any 700 MHz
Public/Private Partnership obligation.
a. Size of the Geographic Areas
193. Background. In the First 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.224
In the Second Report and Order, we
reaffirmed the determination to use
222 We note that using auction revenues for such
construction would require additional
Congressional action.
223 The Commission has allocated more than 97
MHz of spectrum for use in support of public safety
services, including approximately 13.7 MHz in
frequencies below 470 MHz, varying amounts in the
470–512 MHz band, 24 MHz in the 700 MHz band,
an average of 4.5 MHz in the 800 MHz band, and
50 MHz in the 4.9 GHz band.
224 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
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, 8082–86 ¶¶ 42–45 (2007) (First Report
and Order).
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CMAs, EAs, and REAGs for all of the
700 MHz commercial spectrum blocks
except for the D Block. We concluded
that the D Block should be licensed on
a nationwide basis for use as part of the
700 MHz Public/Private Partnership
with the Public Safety Broadband
Licensee.225 We adopted CMA, EA, and
REAG areas for the other commercial
licenses ‘‘to promote dissemination of
licenses among a wide variety of
applications, accommodate the
competing need for both large and small
licensing areas, [and] meet the needs
expressed by potential entrants seeking
access to spectrum and incumbents
seeking additional spectrum.’’ 226
194. Discussion. We now seek
comment on the appropriate geographic
service area for the D Block in the event
that the D Block license is re-auctioned
without a 700 MHz Public/Private
Partnership obligation. Would it best
serve the public interest to continue to
license the D Block on a nationwide
basis, or should we choose a smaller
geographic service area, such as the
CMA, EA, and REAG sizes used to
license the other 700 MHz blocks? We
note that, in evaluating the appropriate
balance of license areas, we will
continue to consider the 700 MHz Band
as a whole, including the commercial
spectrum that has been previously
auctioned. As we stated in the Second
Report and Order, recent statutory and
regulatory changes have served to
harmonize this spectrum band and
warrant our consideration of the 700
MHz Band spectrum as a whole.227 We
request that commenters provide
information that would corroborate the
benefits of their proposed geographic
area and the costs and benefits of
adopting an alternative license area.
Commenters should also discuss how a
particular license area for the D Block
would best serve the public interest,
considering the commercial 700 MHz
Band spectrum as a whole. Finally,
commenters should address whether the
availability of package bidding, which
may mitigate the exposure risk for
bidders seeking certain aggregations of
licenses, should influence our choice of
geographic license service area for the D
Block.
b. Performance Requirements
195. Background. In the Second
Report and Order, we adopted different
performance requirements for the
commercial 700 MHz Band licenses
depending on the geographic size of
225 See Second Report and Order, 22 FCC Rcd at
15431 ¶ 395.
226 Id. at 15316 ¶ 64.
227 Id. at 15316 ¶ 63.
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their license areas. CMA and EA
licensees in the 700 MHz Band are
required to provide service sufficient to
cover 35 percent of the geographic area
of their licenses within four years, and
70 percent of this area within ten years
(the license term), and REAG licensees
must provide service sufficient to cover
40 percent of the population of their
license areas within four years and 75
percent of the population within ten
years.228 Licensees with CMA, EA, or
REAG areas that fail to meet the
applicable interim benchmark, the
license term is reduced by two years,
and the end-of-term benchmark must be
met within eight years.229 At the end of
the license term, licensees with CMA,
EA, or REAG areas that fail to meet the
end-of-term benchmark will be subject
to a ‘‘keep what you use’’ rule, which
will make unused spectrum available to
other potential users.230 We adopted
these stringent performance
requirements to ‘‘better promote access
to spectrum and the provision of
service, especially in rural areas.’’ 231
196. Discussion. We seek comment on
the appropriate performance
requirements for the D Block license or
licenses if the D Block license is reauctioned without a 700 MHz Public/
Private Partnership obligation. We
further seek comment on whether, if we
decide to license the D Block on a CMA,
EA, or REAG basis, we should impose
the same performance requirements
applicable to other 700 MHz
commercial licenses with the same
geographic service area. We seek
comment on whether these performance
requirements are appropriate for the D
Block. In the event that we continue to
license the D Block on a nationwide
basis, we seek comment on whether
performance benchmarks similar to
those required of REAG licensees would
be appropriate.232 To the extent
commenters believe the performance
benchmarks should be higher or lower
than the proposals above, we request
that they provide information that
would corroborate the benefits of their
proposed benchmarks and the costs and
benefits of alternative approaches.
Comments should address whether
these specific geographic benchmarks
would promote access to spectrum and
the provision of service.
c. License Block Size and Term
197. Background. In the Second
Report and Order, we determined that
the D Block should be auctioned as a 10megahertz spectrum block made up of
paired 5-megahertz blocks.233 We also
determined that it be given an initial
license term of 10 years, consistent with
the term given to other commercial
licensees.234 We found that a 10-year
term would ‘‘provide regulatory parity
by establishing the same license term for
[ ] all 700 MHz licensees.’’ 235
198. Discussion. We intend not to
revisit these determinations if the D
Block license is re-auctioned without a
700 MHz Public/Private Partnership
obligation. Indeed, in the Second Report
and Order, we determined the band
plan for all commercial bands as a
whole.236 Any changes to the block
sizes that would affect other bands
would not serve the public interest
given the fact that the adjacent
commercial spectrum licenses have
already been auctioned. Dividing the
current D Block into smaller block sizes
may also not be in the public interest
considering that a 10-megahertz
spectrum block made up of paired 5megahertz blocks can facilitate more
innovative and efficient broadband
deployment than any smaller block
sizes in this band. With regard to the
license term, we note that all other
commercial licenses in the band have a
10-year term similar to the D Block
license, and we see no reason to treat
the D Block differently if it does not
include the 700 MHz Public/Private
Partnership. We seek comment on our
intention not to revisit these
determinations.
d. Power Limits and Out-of-Band
Emission Limits
199. Background. In the Second
Report and Order, we adopted rules to
protect 700 MHz Band commercial and
public safety licensees from interference
from the out-of-band emissions
(OOBE).237 In accordance with those
rules, the D Block licensee was required
to satisfy an OOBE limit of 43 + 10log
P dB in protecting commercial 700 MHz
Band licensees 238 and 76/65 + 10log P
dB OOBE limits in protecting the 700
MHz public safety narrowband
channels.239
233 See
234 See
228 See
235 Id.
229 Id.
id. at 15439 ¶ 157, 15351 ¶ 162.
at 15439 ¶ 157, 15351 ¶ 163.
230 Id. at 15349 ¶ 157, 15351 ¶ 163.
231 Id. at 15348 ¶¶ 153, 154.
232 We note that only the C Block, located
adjacent to the D Block, is licensed on a REAG
basis. Id. at 15293 ¶ 4.
id. at 15315–16 ¶ 62.
id. at 15450 ¶ 457.
236 See
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id. at 15316 ¶ 63.
47 CFR 27.53(d).
238 See 47 CFR 27.53(d)(3), (5).
239 D Block base stations must meet a 76 + 10log
P dB limit in a 6.25 kHz band segment and D Block
mobile and portable stations must meet a 65 + 10log
237 See
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200. Discussion. Because of the
anticipated relationship between the D
Block licensee and the Public Safety
Broadband Licensee, it was not
necessary to impose any OOBE limits on
the D Block licensee in order to protect
the Public Safety Broadband Licensee.
However, if that relationship is no
longer in effect, we seek comment on
what measures we should adopt to
adequately protect public safety
broadband communications from
interference from D Block operations,
and whether measures to protect against
such interference reduce the amount of
usable, broadband spectrum available to
the Public Safety Broadband Licensee
and the D Block licensee. We would
propose to require that D Block
licensees provide appropriate OOBE
protection to the public safety
broadband spectrum. As to the
appropriate level of protection, we see
no reason to protect the public safety
broadband block to any lesser degree
than we currently protect the public
safety narrowband channels. We
therefore propose that D Block licensees
be required to protect the public safety
broadband block by satisfying the same
76/65 + 10log P dB OOBE limits
currently applicable to the D Block
licensee in protecting the public safety
narrowband channels. We seek
comment on this proposal.
201. In the Second Report and Order,
we did not adopt any changes to the
then-existing power limits for base,
fixed, mobile, and portable D Block
stations,240 nor did we modify the
notification and coordination
requirements we had imposed on D
Block licensees choosing to operate base
stations at high power levels.241 The
change in the anticipated relationship
between the D Block and the public
safety broadband block should not
necessitate any modifications to these
requirements, and we therefore seek
comment on whether the power,
notification, and coordination
requirements currently applicable to D
Block licensees should remain
unchanged.242
P dB limit in a 6.25 kHz band segment. See 47 CFR
27.53(d)(1), (2), (4).
240 See 47 CFR 27.50(b)(2), (3), (4), (5), (9), (10).
241 See 47 CFR 27.50(b)(7), (8), which impose
coordination and notification requirements on D
Block licensees operating base stations at power
levels greater than 1000 watts ERP.
242 We note, however, that Verizon has sought
reconsideration of certain rules adopted in the First
Report and Order regarding power limits for the 700
MHz Band commercial licensees and related
notification and coordination obligations, and this
petition remains pending. See Petition for
Reconsideration of Verizon Wireless, WT Docket
No. 06–150 (filed June 14, 2007).
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e. License Partitioning, Disaggregation,
Assignment, and Transfer
202. Background. In the Second
Report and Order, the Commission
prohibited geographic partitioning and
spectrum disaggregation for the D Block
licensee. The Commission found that
adopting such a restriction would serve
the public interest by assuring a reliable
partnership between the D Block
licensee and Public Safety Broadband
Licensee.243
203. Discussion. If we auction the D
Block without the 700 MHz Public/
Private Partnership, we seek comment
on whether we should allow geographic
partitioning and spectrum
disaggregation similar to other 700 MHz
commercial bands.
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f. Other Service and Auction Rules and
Conditions
204. Background. Aside from the
subjects addressed above, the Second
Report and Order addressed a number
of other service and auction related
issues regarding the commercial use of
the D Block and the rules regarding
other 700 MHz band commercial
licenses, such as open platform,
wholesale, license eligibility, and small
business bidding credits.244
205. Discussion. We seek comment on
whether we should revisit and adopt
any other rules or conditions for the D
Block in the event that we auction it
without a mandatory public/private
partnership condition. For example,
would it serve the public interest to
impose any eligibility restrictions, or
open platform conditions similar to
those imposed on the adjacent C Block?
Should the Commission consider
imposing a mandatory wholesale
obligation? We also seek comment on
whether the Commission should apply
its spectrum aggregation screen used for
wireless transactions to the D Block. We
also seek comment on whether any of
our Part 1 competitive bidding,
designated entity eligibility, and/or
other auction rules or procedures would
be inappropriate or should be modified
for licensing the D Block without the
700 MHz Public/Private Partnership.
2. Alternate Public Safety Broadband
Opportunities
206. In the event that we determine
not to proceed with the 700 MHz
Public/Private Partnership approach
requiring a partnership between the D
Block licensee and the Public Safety
Broadband Licensee, we seek comment
broadly on how we may still achieve the
243 Second Report and Order, 22 FCC Rcd at
15475 ¶ 542.
244 See id. at 15289.
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public interest goal of ensuring a
nationwide, interoperable broadband
network is available for the use of
public safety, and whether there are
further revisions or obligations we
should impose on the Public Safety
Broadband License to achieve these
goals.
207. Background. In the 700 MHz
Public Safety Ninth NPRM,245 we
previously considered one option in the
absence of a public/private partnership
with the D Block auction winner, that
would permit the nationwide Public
Safety Broadband Licensee to provide
unconditionally preemptible access to
the public safety broadband spectrum to
commercial service providers, on a
secondary basis, through spectrum
leases or in the form of public/private
partnerships established by contract
with the Public Safety Broadband
Licensee. In this respect, the Public
Safety Broadband Licensee would enter
into arrangements with one or more
commercial service providers for
accessing or sharing their
communications systems infrastructure
in order to create the nationwide,
interoperable, broadband public safety
communications network. This could be
accomplished, for example, through the
use of a request for proposal (RFP)
process by which commercial partners
would be solicited to provide access to
their network infrastructure. The Public
Safety Broadband Licensee would then
select one or more entities to provide
access to or build out all or a portion of
the network, and/or provide certain
services to the public safety community
on the public safety broadband
spectrum, in exchange for secondary,
preemptible access to the Public Safety
Broadband Licensee spectrum.
208. Discussion. We seek comment on
this option as an alternative to the
particular public/private partnership
model that we earlier endorsed as our
preferred approach in the Second
Report and Order. This option would
preserve the concepts of a unified
broadband standard and nationwide
level of interoperability, as managed by
the Public Safety Broadband Licensee
on behalf of the public safety
community. We recognize, however,
that such a proposal might not be ideal
given that there would be no guarantee
of securing a commercial partner(s) that
245 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, 21 FCC Rcd 14837 (2006)
(700 MHz Public Safety Ninth NPRM).
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could provide the network
infrastructure, including features
beneficial to the public safety
community. Further, the Public Safety
Broadband Licensee may be limited in
the service providers with which it
could partner in order to ensure
deployment of a unified broadband
technology with a nationwide level of
interoperability, and take advantage of
economies of scale in terms of handsets
and network equipment. Accordingly,
we seek comment on whether we
should adopt this approach should the
D Block fail to attract a successful
bidder. What alternatives or variations
on this approach may be more
appropriate? Are there other sources or
mechanisms of funding that could be
used to build out or support a
nationwide, interoperable broadband
network for public safety? Will the 10
megahertz of public safety spectrum
allocated for broadband be sufficient to
support a nationwide, interoperable
broadband network for public safety?
209. If we do adopt an approach
whereby the Public Safety Broadband
Licensee could enter into multiple
contracts with commercial providers,
would it be necessary for the
Commission to establish certain
baseline performance requirements,
including those for broadband system
architecture, interoperability, build-out
of national coverage, unconditional
preemption of commercial use, and
disaster restoration capability? If the
Commission establishes such
requirements, what should they be?
Alternatively, should we require or
allow any or all of these issues to be
addressed by the Public Safety
Broadband Licensee rather than the
Commission? What limits, if any,
should be placed on the Public Safety
Broadband Licensee’s ability to enter
into leasing arrangements with
commercial entities? What Commission
oversight should be retained with
respect to the Public Safety Broadband
Licensee’s activities under these
circumstances? Is there additional
review that the Commission should
undertake with respect to approval of
the leasing arrangements, or other
reporting with respect to the Public
Safety Broadband Licensee’s activities
that should be required?
210. We note that many of these
considerations were initially raised in
the 700 MHz Public Safety Ninth NPRM,
and we thus incorporate by reference
the questions posed in that document,
and seek further comment here in light
of the revisions to the 700 MHz band
and the possible additional changes
contemplated in this Second FNPRM.
Are there other issues raised by the 700
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MHz Public Safety Ninth NPRM or
associated comments that we should
consider here?
211. Another alternative may be to
permit build-out on a regional, state, or
local basis of the broadband spectrum.
This could be done either through a
spectrum lease with the nationwide
Public Safety Broadband Licensee, or by
rescinding the nationwide license and
allowing regional, state, or local
licensing of this spectrum. We seek
comment on both approaches. In either
instance, we continue to believe
parameters must still be established that
would ensure that systems operating on
this spectrum would be interoperable
with one another on a nationwide basis.
Accordingly, we seek comment on the
role of the Public Safety Broadband
Licensee in establishing such standards,
and if we adopt a local licensing
scheme, whether we should retain a
national body such as the Public Safety
Broadband Licensee to manage the use
of this spectrum by establishing baseline
performance requirements, determining
a common broadband standard, and/or
serving in a frequency coordinator or
planning role.
212. Finally, we seek comment on
whether, in the absence of a public/
private partnership, we should continue
to obligate the D Block auction winner
to fund the relocation of those public
safety narrowband systems operating in
the lower portion of the public safety
spectrum. As noted in the Second
Report and Order, it would be to the
benefit of the D Block auction winner to
ensure that narrowband operations
adjacent to the D Block under the former
band plan be relocated to the upper
portion of the public safety 700 MHz
band and thus minimize interference
concerns. As another option, should we
grandfather existing operations until
such time as relocation funding is
secure, and require the Public Safety
Broadband Licensee to include
relocation funding in its RFP process?
What alternative sources of funding may
be available to facilitate this transition?
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IV. Procedural Matters
A. Initial Regulatory Flexibility Analysis
213. Section 213 of the Consolidated
Appropriations Act 2000 provides that
the Regulatory Flexibility Act (RFA), 5
U.S.C. § 603, shall not apply to the rules
and competitive bidding procedures for
frequencies in the 746–806 MHz
Band,246 which includes the frequencies
246 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
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of both the D Block license and the 700
MHz public safety broadband and
narrowband spectrum. Accordingly, we
have not prepared an Initial Regulatory
Flexibility Analysis in connection with
the Second FNPRM.
B. Initial Paperwork Reduction Act
Analysis of 1995 Analysis
214. This document contains
proposed new or modified information
collection requirements. We note,
however, that Section 213 of the
Consolidated Appropriations Act 2000
provides that rules governing
frequencies in the 746–806 MHz Band,
which encompass the spectrum
associated with both the D Block license
and the 700 MHz public safety
broadband and narrowband spectrum,
become effective immediately upon
publication in the Federal Register
without regard to certain sections of the
Paperwork Reduction Act.247 We are
therefore not inviting comment
pursuant to the Paperwork Reduction
Act on any information collections
proposed in this document.
C. Other Procedural Matters
1. Ex Parte Presentations
215. The rulemaking shall be treated
as a ‘‘permit-but-disclose’’ proceeding in
accordance with the Commission’s ex
parte rules.248 Persons making oral ex
parte presentations are reminded that
memoranda summarizing the
presentations must contain summaries
of the substance of the presentations
and not merely a listing of the subjects
discussed. More than a one or two
sentence description of the views and
arguments presented generally is
required.249 Other requirements
pertaining to oral and written
presentations are set forth in Section
1.1206(b) of the Commission’s rules.250
2. Comment Filing Procedures
216. Pursuant to Sections 1.415 and
1.419 of the Commission’s rules,251
interested parties may file comments on
or before June 20, 2008 and reply to
comments July 7, 2008. All filings
related to this Second FNPRM should
refer to WT Docket No. 06–150, PS
Docket No. 06–229, and WT Docket No.
96–86. Comments may be filed using:
(1) The Commission’s Electronic
Comment Filing System (ECFS), (2) the
Appropriations Act 2000, Pub. L. No. 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).
247 Id.
248 47 CFR 1.200 et. seq.
249 See 47 CFR 1.1206(b)(2).
250 47 CFR 1.1206(b).
251 47 CFR 1.415, 1.419.
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Federal Government’s eRulemaking
Portal, or (3) by filing paper copies.252
• Electronic Filers: Comments may be
filed electronically using the Internet by
accessing the ECFS: https://www.fcc.gov/
cgb/ecfs/ or the Federal eRulemaking
Portal: https://www.regulations.gov.
Filers should follow the instructions
provided on the Web site for submitting
comments.
• ECFS filers must transmit one
electronic copy of the comments for WT
Docket No. 06–150, PS Docket No. 06–
229, and WT Docket No. 96–86. In
completing the transmittal screen, filers
should include their full name, U.S.
Postal Service mailing address, and WT
Docket No. 06–150, WT Docket No. 06–
169, and WT Docket No. 96–86. Parties
may also submit an electronic comment
by Internet e-mail. To get filing
instructions, filers should send an
e-mail to ecfs@fcc.gov and include the
following words in the body of the
message, ‘‘get form.’’ A sample form and
directions will be sent in response.
• Paper Filers: Parties who choose to
file by paper must file an original and
four copies of each filing. Filings can be
sent by hand or messenger delivery, by
commercial overnight courier, or by
first-class or overnight U.S. Postal
Service mail (although we continue to
experience delays in receiving U.S.
Postal Service mail). All filings must be
addressed to the Commission’s
Secretary, Marlene H. Dortch, Office of
the Secretary, Federal Communications
Commission, 445 12th Street, SW.,
Washington, DC 20554.
• The Commission’s contractor will
receive hand-delivered or messengerdelivered paper filings for the
Commission’s Secretary at 236
Massachusetts Avenue, NE., Suite 110,
Washington, DC 20002. The filing hours
at this location are 8 a.m. to 7 p.m. All
hand deliveries must be held together
with rubber bands or fasteners. Any
envelopes must be disposed of before
entering the building.
• Commercial overnight mail (other
than U.S. Postal Service Express Mail
and Priority Mail) must be sent to 9300
East Hampton Drive, Capitol Heights,
MD 20743.
• U.S. Postal Service first-class,
Express, and Priority mail should be
addressed to 445 12th Street, SW.,
Washington, DC 20554.
217. Parties should send a copy of
their filings to: Nese Guendelsberger,
¸
Wireless Telecommunications Bureau,
445 12th Street, SW., Washington, D.C.
20554, or by e-mail to
nese.guendelsberger@fcc.gov; and Jeff
252 See Electronic Filing of Documents in
Rulemaking Proceedings, 63 FR 24121 (1998).
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Cohen, Public Safety and Homeland
Security Bureau, 445 12th Street, SW.,
Washington, DC 20554, or by e-mail to
jeff.cohen@fcc.gov. Parties shall also
serve one copy with the Commission’s
copy contractor, Best Copy and Printing,
Inc. (BCPI), Portals II, Room CY–B402,
445 12th Street, SW., Washington, DC
20554, (202) 488–5300, or via e-mail to
fcc@bcpiweb.com.
218. Documents in WT Docket No.
06–150, PS Docket No. 06–229, and WT
Docket No. 96–86 will be available for
public inspection and copying during
business hours at the FCC Reference
Information Center, Portals II, Room
CY–A257, 445 12th Street, SW.,
Washington, DC 20554. The documents
may also be purchased from BCPI,
telephone (202) 488–5300, facsimile
(202) 488–5563, TTY (202) 488–5562,
e-mail fcc@bcpiweb.com.
3. Accessible Formats
219. To request materials in accessible
formats for people with disabilities
(Braille, large print, electronic files,
audio format), send an e-mail to
FCC504@fcc.gov or call the Consumer &
Governmental Affairs Bureau at 202–
418–0530 (voice), 202–418–0432 (TTY).
Contact the FCC to request reasonable
accommodations for filing comments
(accessible format documents, sign
language interpreters, CARTS, etc.) by
e-mail: FCC504@fcc.gov; phone: 202–
418–0530 (voice), 202–418–0432 (TTY).
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V. Ordering Clauses
220. Accordingly, it is ordered
pursuant to sections 1, 2, 4(i), 5(c), 7, 10,
201, 202, 208, 214, 301, 302, 303, 307,
308, 309, 310, 311, 314, 316, 319, 324,
332, 333, 336, 337, 614, 615, and 710 of
the Communications Act of 1934, as
amended, 47 U.S.C. §§ 151, 152, 154(i),
155(c), 157, 160, 201, 202, 208, 214, 301,
302, 303, 307, 308, 309, 310, 311, 314,
316, 319, 324, 332, 333, 336, and 337,
that this second FNPRM of proposed
rulemaking in WT Docket No. 06–150,
WT Docket No. 96–86 and PS Docket
No. 06–229 is adopted. The second
FNPRM of proposed rulemaking shall
become effective upon publication in
the Federal Register.
221. It is further ordered that pursuant
to applicable procedures set forth in
Sections 1.415 and 1.419 of the
Commission’s Rules, 47 CFR 1.415,
1.419, interested parties may file
comments on the second FNPRM of
proposed rulemaking on or before June
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20, 2008 and reply to comments on or
before July 7, 2008.
222. It is further ordered that the
Commission shall send a copy of this
second FNPRM of proposed rulemaking
in a report to be sent to Congress and
the General Accounting Office pursuant
to the Congressional Review Act, 5
U.S.C. 801(a)(1)(A).
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Appendix—Possible Technical
Framework for a 700 MHz Public/
Private Partnership Shared Wireless
Broadband Network
I. Overview
This appendix serves as a possible
framework for establishing the technical
requirements for the 700 MHz public/private
partnership shared wireless broadband
network (SWBN). It is intended to solicit
detailed comment and result in a final set of
technical requirements that will provide
greater certainty for bidders for the D Block
license while ensuring that the network
meets public safety’s needs. This appendix is
not intended to prejudge any of the issues
identified for comment in the accompanying
Second Further Notice. Further, we recognize
that certain aspects of the public/private
partnership, if adopted, may be impacted by
determinations made through the questions
posed in the Second Further Notice, and that
to some extent the technical considerations
here are dependent on one another.
Each of the technical requirements
discussed in the Second Further Notice is
covered below. In many cases we have
included more specific technical
specifications or obligations in order to
solicit more meaningful comment. We ask
commenters to recommend any
specifications they believe should be
modified, deleted, added or retained. The
final requirements will take into account the
comments filed in response to the Second
Further Notice, as well as this appendix.
II. Specifications for Public/Private System
Architecture
Sections 27.1305(a) and 90.1405(a) state
that the network must be ‘‘[designed] 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.’’
The architecture of the SWBN likely would
consist of two general elements: (a) a Radio
Access Network (RAN) and (b) a Core
Broadband Network (CBN). Both the RAN
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and CBN would be expected to be packet
switched networks using Internet Protocol
(IP).
An overall view of a generic functional
architecture for the SWBN is shown in Figure
1. The SWBN depicted has the following
characteristics:
1. The broadband IP network would be
based on advanced next generation mobile
network standards and commercial
technologies, with performance
characteristics supporting voice, data, and
multimedia applications.253
2. The SWBN would support end to end
multiple quality of service classes associated
with public safety.
3. During normal operating conditions, the
RAN would support assured access for public
safety users over commercial users to a limit
of 50% of engineered capacity.254
4. The RAN would support emergency
priority access for public safety users over
commercial users.
5. Commercial service capabilities
deployed by the D Block licensee (e.g. voice
calling, Internet access, etc.) would be
available to public safety users at a quality
of service (QoS) level as identified by the
Public Safety Broadband Licensee (‘‘PSBL’’)
as part of its responsibilities to administer
access to the SWBN and interact with
individual public safety entities.
6. The CBN would support interconnection
with public safety regional and local
networks. This interconnection would
facilitate interoperability with existing public
safety networks operating in other frequency
bands. It can be accomplished through a
standard or proprietary interface at an
appropriate point or points in an existing
public safety communications system.
Consideration should be given to implement
this interconnection in a way that will not
have a detrimental impact on the wireless
broadband network. It is noted that IP
broadband networks are already being used
in some areas to facilitate such
interoperability.
7. The D Block licensee would provide the
PSBL with sufficient real-time information
and network transparency to:
a. Ensure that the service obligations of the
D Block licensee to the PSBL are fully met.
253 Examples of such standards and technologies
are the 802.16e IEEE standard, coupled with the
WiMAX Mobile profile developed by the WiMAX
Forum, and the Long Term Evolution (LTE)
proposal advanced by the 3GPP.
254 In other words, public safety would ensured
to have primary access to the 10 megahertz
allocated for public safety broadband operations.
Further, commenters should consider the potential
that advanced next generation technology may be
employed to combine the public safety broadband
spectrum with the D Block spectrum and then
randomly allocate the spectrum to users in
incremental amounts. Accordingly, with such
technology this requirement could be characterized
as ensuring that public safety has assured access to
50 percent of the engineered RAN capacity.
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megahertz of public safety broadband
spectrum.
to the PSBL. The PSBL would then provide
comments to the D Block licensee on the plan
within 30 days of receipt. The D Block
licensee would incorporate any reasonable
requests or suggestions.
In developing the network reliability plan,
the D Block licensee may employ a variety
of techniques to ensure that service is
maintained and that service is promptly
restored in the event of an outage. These
techniques may include the pre-deployment
of backup equipment and systems, provisions
for rapid deployment of systems such as cells
on wheels, flexible system design that
provides for rapid reallocation of resources
such as boosting power at certain cell sites,
etc.
Public safety users would remain
responsible for the reliability of the
equipment that they purchase and use with
the network, such as mobile and hand-held
radios, video surveillance systems,
broadband access devices, etc. Further, such
equipment should meet the same standards
as those specified by the D Block licensee for
commercial equipment that may be
connected to the broadband network.
The network reliability plan also should
include the following features and
capabilities:
1. The network should be designed based
on industry best practices, specifically, the
recommendations of the Network Reliability
and Interoperability Council.255
III. Reliability, Robustness and Hardening
Sections 27.1305(c) and 90.1405(c) require
that the network must incorporate
‘‘[s]ufficient robustness to meet the reliability
and performance expectations of public
safety.’’
This requirement could be met in two
ways. First, the Commission could develop
reasonable technical specifications based on
comments received in this proceeding and
incorporate these specifications into the
service rules for the D Block. One advantage
of this approach would be to provide
certainty to public safety users as well as
commercial bidders in advance of an auction.
Second, the D Block licensee could prepare
a draft network reliability plan and submit it
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255 See Network Reliability and Interoperability
Council Wireless Network Reliability Final Report,
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EP21MY08.011</GPH>
e. Assemble data for assessing usage fees.
f. Activate a service alert declaring an
emergency condition exists for purposes of
enabling priority access in excess of the 10
BILLING CODE 6712–01–C
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b. Provide reports on public safety network
usage, user patterns, etc.
c. Forecast future service needs.
d. Administer access by end users.
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2. Network outages must be reported to the
FCC, consistent with the requirements for
commercial wireless systems.256 Plans
should be put in place and implemented to
resolve any pattern of repeated outages.
3. Critical network elements,257 such as
CBN facilities, base stations and antenna
towers, should be built to withstand harsh
weather and natural disasters that are
reasonably foreseeable in any geographic
area, such as hurricanes, floods, earthquakes,
etc. Where appropriate, local building codes
may be used as a guide, with an additional
margin, as appropriate to ensure a reliable
public safety system, taking into account cost
and other factors. Switches, gateways,
routers, radio and backhaul systems are
typically self-redundant.258
4. Critical sites should have generators
available with fuel supplies sufficient to
operate for as many as 5 to 7 days. By
‘‘critical sites,’’ we mean those sites that are
necessary for maintaining basic system
availability and access to the core network.
5. Backup power should be available at
least at critical sites sufficient to last as many
as 8 hours.
6. Back-haul diversity should be provided
at critical sites.
7. Public safety users are encouraged to
obtain any additional backup equipment they
may need for their own use, such as a reserve
supply of mobile units and chargers for use
in emergencies.
IV. Capacity, Throughput and Quality of
Service
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Capacity
Sections 27.1305(d) and 90.1405(d) require
that the SWBN incorporate ‘‘[s]ufficient
capacity to meet the needs of public safety.’’
One method for complying with these rules
is for the D Block licensee to anticipate
public safety user needs during emergency
and disaster situations, so that public safety
applications are not degraded (i.e., increase
in blocked calls and/or transmission times or
reduced data speeds) during periods of heavy
usage.
The network capacity, in terms of the
amount of traffic that can be carried
throughout the system generally, or for each
user at any given location, is determined by
many variables, including the characteristics
of the radio transmission technology, number
of cell sites, spectrum reuse, use of efficient
technologies such as smart antennas, various
factors affecting propagation, core network
September 2005 at https://www.nric.org/meetings/
docs/meeting_20051019/
NRICVII_FG3A_FinalReport_September_2005.pdf.
256 See 47 CFR 4.1–4.2, 4.3(f), 4.5, 4.7, 4.9(e), 4.11,
4.13. See also New Part 4 of the Commission’s Rules
Concerning Disruptions to Communications, Report
and Order and Further Notice of Proposed
Rulemaking, ET Docket No. 04–35, 19 FCC Rcd
16830, 16882–16890 ¶¶ 97–114 (2004).
257 By ‘‘critical network elements,’’ we mean to
refer to those network elements that would require
geographic redundancy and mesh connectivity in
case of catastrophic events impacting large or
heavily populated areas.
258 Self-redundancy implies having a duplicate
active element that will take over the function of
the main element in case of the latter’s malfunction
or failure.
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resources, backhaul availability, etc.
Similarly, the users’ traffic demand that
determines the capacity requirements
depends on a great many variables, such as
the number of users, the applications that
will run on the network and the resources
they consume, peak usage times, acceptable
blocking rates, etc. In the case of a SWBN,
the network capacity available for public
safety users will also be affected by the
priority that is given to public safety
communications and the ease and degree to
which public safety users can access the
commercial spectrum. We recognize that
capacity requirements are not static and we
expect them to continue to grow for both
commercial and public safety applications.
This requirement could be met in two
ways. First, the Commission could develop
reasonable technical specifications based on
comments received in this proceeding and
incorporate these specifications into the
service rules for the D Block. One advantage
of this approach would be to provide
certainty to public safety users as well as
commercial bidders in advance of an auction.
Second, the D Block licensee could prepare
a draft plan to meet the capacity
requirements of public safety users, based on
consultation with the PSBL and based on
their experience with commercial broadband
network performance. The plan should take
into account both national and local public
safety requirements. The PSBL would then
provide comments to the D Block licensee on
the plan within 30 days of receipt. The D
Block licensee would incorporate any
reasonable requests or suggestions.
The D Block licensee should consult on an
ongoing basis with the PSBL to address any
shortcomings related to network capacity and
to plan continued evolution of the network
to meet growing needs. To assist with this
endeavor, the PSBL should provide a rolling
12-month usage forecast on a quarterly basis.
The network should incorporate a
mechanism for adequate resource
management so as to allow for continued
improvements over time and best mitigate
any detrimental impact on public safety
operations.
Throughput
With regard to throughput, the SWBN
should meet the following minimal
specifications:
1. Data rates should be consistent with
state-of-the-art commercial wireless systems,
such as WiMAX Mobile, LTE, or other
equivalent or advanced technologies.
2. Public safety applications should be
provided sufficient resources to perform at
least as well as similar applications on the
commercial network (i.e., voice, video,
Internet access).
3. Blocking rates should be no greater than
2% or other mutually agreeable criteria.259
Quality of Service
With regard to quality of service, Sections
27.1305(f) and 90.1405(f) require the SWBN
to incorporate a ‘‘mechanism to
259 The term blocking is meant to include
instances in which a public safety user’s request for
service cannot be fulfilled with the defined QoS
associated with that specific service.
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automatically prioritize public safety
communications over commercial uses on a
real-time basis consistent with the
requirements of [Sections 27.1307 and
90.1407(c)].’’ There are certain priorities at
the air interface that relate to the ability of
a user to access and connect to the network.
Such priority, ‘‘access priority,’’ is to be
distinguished from traffic priority that arises
after the connection admission. The notion of
QoS is applied after the connection is
established.
Concerning access priority, public safety
users will have priority access to the 10
megahertz of public safety broadband
spectrum (or, put another way, as discussed
above, half of the engineered capacity of the
total spectrum (2 x 10 MHz)) at all the times,
and to a portion of the engineered capacity
on the D Block in the event of emergency
priority access. An example of such a scheme
is the current Wireless Priority Service
(WPS).260
As it relates to traffic priority and QoS, the
following can be considered as specific
requirements of the SWBN:
1. The networks should provide sufficient
capacity, and augment capacity as needed, in
order to meet the QoS requirements for
public safety applications.
2. The SWBN is anticipated to provide a
number of QoS classes and performance
objectives such as those defined in ITU–T
Y.1541 or those defined in the advanced next
generation technology standards (e.g., LTE
and WiMAX Mobile). The network should
support QoS classes for real time
applications as well as low delay data
transfer applications for public safety users,
comparable to those in ITU–Y.1541.
3. Using QoS mechanisms as defined by
the relevant standards (i.e. linked to the
selected technology), public safety traffic
should have higher priority of transmission
and delivery over the commercial traffic
consistent with the access priority
circumstances discussed above. While the
QoS classes and performance objectives are
standard, the implementation of the priority
schemes in achieving the QoS classes is
vendor-specific. We anticipate different
methods of traffic management by vendors
(such as connection admission control,
queuing management, congestion control,
etc.) to achieve the desired QoS and priority
requirements for public safety usage. It is
possible that at times of network congestion,
commercial traffic will be denied access to
network resources, or be dropped in favor of
public safety traffic, again consistent with the
access priority circumstances discussed
above.
4. Using QoS mechanisms as defined by
standards, various public safety applications
should have different levels of QoS,
depending on the type of application. For
instance, command-level applications may
require QoS settings with relatively higher
priority.
V. Security and Encryption
Sections 27.1305(e) and 90.1405(e) require
the SWBN to incorporate ‘‘[s]ecurity and
260 See https://www.fcc.gov/pshs/emergency/
wps.html.
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encryption consistent with state-of-the-art
technologies.’’ Accordingly, the system
should include the following capabilities:
1. The SWBN should implement controls
to ensure that public safety priority and
secure network access is limited to
authorized public safety users and devices,
using an open standard protocol for
authentication.
2. The SWBN should allow for public
safety network authentication, authorization,
automatic logoff, transmission secrecy and
integrity, and audit control capabilities as
well as other unique attributes that may be
mutually agreeable.
3. The SWBN technical and operational
parameters should accommodate public
safety administrative safeguards and controls
for security management, oversight, incident
management, and privacy that may be
defined in the final negotiations.
VI. Coverage
Sections 27.1305(b) and 90.1405(b) require
the SWBN to incorporate ‘‘[s]ufficient signal
coverage to ensure reliable operation
throughout the service area consistent with
typical public safety communications
systems.’’
The Second Further Notice invites
comment on the coverage requirements for
the SWBN. Coverage may be defined in terms
of the signal levels that will be available at
all locations based on accepted predictive
methods (i.e., 90% availability, 90% of the
time) and taking into account appropriate
factors to meet in-building coverage needs.
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VII. Operational Capabilities—Network
Services and Applications
Sections 27.1305(g) and 90.1405(g) require
the SWBN to incorporate ‘‘[o]perational
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capabilities consistent with features and
requirements that are typical of current and
evolving state-of-the-art public safety
systems.’’ At a minimum, these capabilities
should include seamless interoperability for
fixed as well as mobile voice, video, and data
communications on the SWBN across local,
state, tribal, and Federal public safety users.
To be more specific, the SWBN should
support the reliable exchange of text, voice,
secure voice, data, video, photographs, and
detailed graphical information such as maps,
drawings, engineering plans, fingerprints,
graphical files, etc.
The SWBN should support and be
compatible with standards used by public
safety. For example, these may include the
standards and practices established by the
National Information Exchange Model
(NIEM). NIEM is a partnership of the U.S.
Department of Justice and the Department of
Homeland Security (DHS). Its purpose is to
develop, disseminate and support enterprisewide information exchange standards and
processes that enable jurisdictions to
effectively share critical information in
emergency situations, as well as support the
day-to-day operations of agencies throughout
the nation.261
In addition, DHS created the National
Incident Management System (NIMS) to
261 See
https://www.niem.gov/. ‘‘NIEM enables
information sharing, focusing on information
exchanged among organizations as part of their
current or intended business practices. The NIEM
exchange development methodology results in a
common semantic understanding among
participating organizations and data formatted in a
semantically consistent manner. NIEM will
standardize content (actual data exchange
standards), provide tools, and managed processes.’’
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29621
establish a framework for organizations to
work together to prepare for, protect against,
respond to, and recover from the entire
spectrum of all-hazard events.262 Other
standards organizations that are important in
the development of the transmission and
information exchange standards that the
network may employ include the
Organization for the Advancement of
Structured Information Standards
(OASIS) 263 EDXL standards, and the Global
Justice XML (GJXML) data model.264
Users of the network should have access to
the full range and suites of evolving
commercial voice, data, and video services
and applications as well. The Table below
from the Public Safety Spectrum Trust
Bidder Information Document (BID) Version
2.0 reflects example applications and
services that may be supported. Actual data
rates should exceed the minimum for
acceptable quality of service measures and
key performance indicators shown but also
should be consistent with the performance
indicators listed separately in this document.
However, it may not be necessary to specify
data rates or performance criteria for each
individual application.
262 See https://www.fema.gov/emergency/nims/
standards.shtm. DHS created the National Incident
Management System as required under Homeland
Security Presidential Directive (HSPD)–5. NIMS is
a framework that provides guidelines and
principles to first responders in an effort to achieve
a single nationwide system for managing incidents.
263 See https://www.oasis-open.org/who/.
264 See https://www.ncsconline.org/WC/
CourTopics/ResourceGuide.asp?topic=GJXDM.
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VIII. Operational Control and Use of the
Network
Sections 27.1305(h) and 90.1405(h) require
the SWBH to incorporate ‘‘[o]perational
control of the network by the [PSBL] to the
extent necessary to ensure that public safety
requirements are met.’’
The D Block licensee should provide
control capabilities or a level of network
transparency sufficient to permit the PSBL to
exercise its role in general administration of
access to the SWBN by individual public
safety entities. These functions should
include:
1. Real time or near real time messages
detailing material violations of the technical
requirements contained in the Commission’s
rules or the NSA, including the scale and
scope of the violation. The timeframes,
format and the scenarios in which this
information is required should be addressed
in the NSA. The PBSL should be notified
immediately of any situations that impede
vital public safety communications, with
details to be made available as soon as
practicable.
2. The ability of the PSBL to host services
subject to negotiation requiring elements of
IP multimedia subsystem (IMS) or Service
Architecture Evolution.
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3. Capabilities permitting the PSBL and/or
authorized public safety entities the ability to
set up and manage user/user group/
application profiles, authenticate users and
devices and provision services.
4. Over the air framework to allow the
management of end user devices, either
singly or in groups, permitting such
functions as over the air programming of
devices and the clearing of data and disabling
of devices.
5. Notification to the PSBL of system
downtime (or any work that may affect
service or system performance over any given
geographic area) due to planned
maintenance, configuration changes, or
upgrades. The PSBL should provide the D
Block licensee with advance notice to
address planned public safety events.
Procedural Matters
Ex Parte Rules-Permit-But-Disclose
Proceeding
This proceeding shall be treated as a
‘‘permit-but-disclose’’ proceeding in
accordance with the Commission’s ex parte
rules. Persons making oral ex parte
presentations are reminded that memoranda
summarizing the presentations must contain
summaries of the substance of the
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Fmt 4701
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presentations and not merely a listing of the
subjects discussed. More than a one-or two
sentence description of the views and
arguments presented is generally required.
Other rules pertaining to oral and written
presentations are set forth in § 1.1206(b) of
the Commission’s rules as well.
Comment Dates
Pursuant to §§ 1.415 and 1.419 of the
Commission’s rules, 47 CFR 1.415, 1.419,
interested parties may file comments and
reply comments on or before the dates
indicated on the first page of this document.
Comments may be filed using: (1) The
Commission’s Electronic Comment Filing
System (ECFS), (2) the Federal Government’s
eRulemaking Portal, or (3) by filing paper
copies. See Electronic Filing of Documents in
Rulemaking Proceedings, 63 FR 24121
(1998).
• Electronic Filers: Comments may be filed
electronically using the Internet by accessing
the ECFS: https://www.fcc.gov/cgb/ecfs/ or the
Federal eRulemaking Portal: https://
www.regulations.gov.
Filers should follow the instructions
provided on the Web site for submitting
comments.
• For ECFS filers, if multiple docket for
rulemaking numbers appear in the caption of
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Federal Register / Vol. 73, No. 99 / Wednesday, May 21, 2008 / Proposed Rules
cprice-sewell on PROD1PC69 with PROPOSALS2
this proceeding, filers must transmit one
electronic copy of the comments for each
docket or rulemaking number referenced in
the caption. In completing the transmittal
screen, filers should include their full name,
U.S. Postal Service mailing address, and the
applicable docket or rulemaking number.
Parties may also submit an electronic
comment by Internet e-mail. To get filing
instructions, filers should send an e-mail to
ecfs@fcc.gov, and include the following
words in the body of the message, ‘‘get form.’’
A sample form and directions will be sent in
response.
• Paper Filers: Parties who choose to file
by paper must file an original and four copies
of each filing. If more than one docket or
rulemaking number appears in the caption of
this proceeding, filers must submit two
additional copies for each additional docket
or rulemaking number. Filings can be sent by
hand or messenger delivery, by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail (although
the Commission continues to experience
delays in receiving U.S. Postal Service mail).
All filings must be addressed to the
Commission’s Secretary, Office of the
Secretary, Federal Communications
Commission.
• The Commission’s contractor will
receive hand-delivered or messenger
VerDate Aug<31>2005
15:13 May 20, 2008
Jkt 214001
delivered paper filings for the Commission’s
Secretary at 236 Massachusetts Avenue, NE.,
Suite 110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7 p.m. All
hand deliveries must be held together with
rubber bands or fasteners. Any envelopes
must be disposed of before entering the
building.
• Commercial overnight mail (other than
U.S. Postal Service Express Mail and Priority
Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express,
and Priority mail must be addressed to 445
12th Street, SW., Washington, DC 20554.
Comments and reply comments and any
other filed documents in this matter may be
obtained from Best Copy and Printing, Inc.,
in person at 445 12th Street, SW., Room CY–
B402, Washington, DC 20554, via telephone
at (202) 488–5300, via facsimile at (202) 488–
5563, or via e-mail at FCC@BCPIWEB.COM.
The pleadings will be also available for
public inspection and copying during regular
business hours in the FCC Reference
Information Center, Room CY–A257, 445
12th Street, SW., Washington, DC 20554, and
through the Commission’s Electronic Filing
System (ECFS) accessible on the
Commission’s Web site, https://www.fcc.gov/
cgb/ecfs. People with Disabilities: To request
materials in accessible formats for people
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29623
with disabilities (braille, large print,
electronic files, audio format), send an e-mail
to fcc504@fcc.gov or call the Consumer &
Governmental Affairs Bureau at 202–418–
0530 (voice), 202–418–0432 (tty).
Commenters who file information that they
believe should be withheld from public
inspection may request confidential
treatment pursuant to § 0.459 of the
Commission’s rules. Commenters should file
both their original comments for which they
request confidentiality and redacted
comments, along with their request for
confidential treatment. Commenters should
not file proprietary information
electronically. Even if the Commission grants
confidential treatment, information that does
not fall within a specific exemption pursuant
to the Freedom of Information Act (FOIA)
must be publicly disclosed pursuant to an
appropriate request. See 47 CFR 0.461; 5
U.S.C. 552. We note that the Commission
may grant requests for confidential treatment
either conditionally or unconditionally. As
such, we note that the Commission has the
discretion to release information on public
interest grounds that does fall within the
scope of a FOIA exemption.
[FR Doc. E8–11247 Filed 5–20–08; 8:45 am]
BILLING CODE 6712–01–P
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[Federal Register Volume 73, Number 99 (Wednesday, May 21, 2008)]
[Proposed Rules]
[Pages 29582-29623]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-1]
[[Page 29581]]
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Part II
Federal Communications Commission
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47 CFR Parts 0, 1, 2, et al.
Service Rules for the 698-746, 747-762 and 777-792 MHz Bands,
Implementing a Nationwide, Broadband, Interoperable Public Safety
Network in the 700 MHz Band; Proposed Rule
Federal Register / Vol. 73, No. 99 / Wednesday, May 21, 2008 /
Proposed Rules
[[Page 29582]]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 0, 1, 2, 27, 90
[WT Docket No. 06-150; PS Docket No. 06-229; FCC 08-128]
Service Rules for the 698-746, 747-762 and 777-792 MHz Bands,
Implementing a Nationwide, Broadband, Interoperable Public Safety
Network in the 700 MHz Band
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In the Second Further Notice of Proposed Rulemaking (Second
FNPRM), the Commission seeks comment on clarifications or revisions to
the rules governing the Public Safety Broadband Licensee and the Upper
700 MHz D Block licensee. The Commission seeks comment on whether to
continue to require these licensees to enter into a 700 MHz Public/
Private Partnership for the purpose of enabling the construction of a
nationwide, interoperable broadband network, and if so, what
clarifications or revisions to adopt to the rules governing the
licensees and the 700 MHz Public/Private Partnership. Further, the
Commission seeks comment on what rules to adopt if it determines that
the public/private partnership obligation should not be retained. This
Second Further Notice is another step in the Commission's ongoing
efforts to develop a regulatory framework in which to meet current and
future public safety communications needs.
DATES: Written comments are due on or before June 20, 2008, and reply
comments are due on or before July 7, 2008.
ADDRESSES: You may submit comments, identified by WT Docket No. 06-150
and PS Docket No. 06-229, by any of the identified methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: https://
www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
Mail: Follow the instructions for paper filers below.
People with Disabilities: Contact the Commission to
request reasonable accommodations (accessible format documents, sign
language interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone:
202-418-0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Peter Trachtenberg at (202) 418-7369,
at peter.trachtenberg@fcc.gov, Spectrum and Competition Policy
Division, Wireless Telecommunications Bureau; Jeffrey S. 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
Further Notice of Proposed Rulemaking, WT Docket No. 06-150, PS Docket
No. 06-229, adopted on May 14, 2008 and released May 14, 2008. The full
text of the Second Further Notice of Proposed Rulemaking 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 the Second Report and Order, 72 FR 48814, August 24, 2007, the
Commission adopted rules for the establishment of a mandatory public/
private partnership (the 700 MHz Public/Private Partnership) in the
upper portions of the 698-806 MHz band (700 MHz Band) as the means for
promoting the rapid construction and deployment of a nationwide,
interoperable broadband public safety network that would serve public
safety and homeland security needs. Specifically, the Commission
required that the winning bidder of the commercial license in the Upper
700 MHz D Block (758-763/788-793 MHz) (D Block) enter into the 700 MHz
Public/Private Partnership with the nationwide licensee of the public
safety broadband spectrum (763-768/793-798 MHz) (Public Safety
Broadband Licensee) to enable construction of this interoperable
broadband network, which would span both the commercial D Block and
public safety spectrum. In the recently concluded auction of commercial
700 MHz licenses, bidding for the D Block license did not meet the
applicable reserve price of $1.33 billion and, pursuant to the
Commission's rules, there was no winning bid for that license.
Accordingly, in this Second FNPRM, the Commission revisits its
decisions concerning the 700 MHz Public/Private Partnership--
considering revisions to this partnership as well as alternative rules
the Commission should adopt in the event the D Block licensee is no
longer required to enter into a mandatory public/private partnership.
First, the Commission considers whether to adopt clarifications and
revisions to the public safety component of the 700 MHz Public/Private
Partnership to better promote its public interest goals. In particular,
the Commission seeks comment regarding what entities are eligible under
Section 337 of the Communications Act as amended and the Commission's
rules to use the public safety spectrum in the shared wireless
broadband network as public safety users rather than as commercial
users, and whether such users should be required to use or subscribe to
the shared network. The Commission also seeks comment on possible
clarifications of or changes to the rules governing the structure and
criteria of the Public Safety Broadband Licensee, whether to clarify
further the requirement that the Public Safety Broadband Licensee must
be a non-profit organization, what measures to adopt to provide
adequate Commission oversight, whether providing a nationwide,
interoperable broadband network might be more effectively and
efficiently accomplished by allowing State governments to assume
responsibility for coordinating the participation of the public safety
providers in their jurisdictions, and whether the Commission should
rescind the current Public Safety Broadband License and seek new
applicants.
In addition, the Commission seeks comment on whether it remains in
the public interest to require a public/private partnership between the
nationwide D Block licensee and the Public Safety Broadband Licensee
for the purpose of creating a nationwide, interoperable broadband
network for both commercial and public safety network services. To
ensure a thorough consideration of the Commission's options in the
event that it does continue to require a public/private partnership
between these licensees, the Commission seeks comment broadly on
possible revisions to the 700 MHz Public/Private Partnership, including
revisions regarding the respective obligations of the D Block licensee
and the Public Safety Broadband Licensee. In particular, it seeks
comment on the following issues: (1) The technical requirements of the
shared wireless broadband network to be constructed by the D Block
licensee, (2) the rules governing public safety priority access
[[Page 29583]]
to the D Block spectrum during emergencies, and whether the Commission
should continue to require the D Block licensee to provide such access;
(3) the D Block performance requirements and license term; (4) the
respective roles and responsibilities of the D Block licensee and
Public Safety Broadband Licensee in connection with the 700 MHz Public/
Private Partnership and the shared wireless broadband network; (5) the
various fees associated with the shared network; (6) the process for
negotiating and establishing the Network Sharing Agreement, including
the consequences of a failure to reach agreement; (7) certain auction-
related issues, including whether to restrict who may participate in
the new auction of the D Block license, whether and how to set any
reserve price for such an auction, whether to adopt an exception to the
impermissible material relationship rule for the determination of
designated entity eligibility with respect to arrangements for the
lease or resale (including wholesale) of the spectrum capacity of the D
Block license, and whether the Commission should modify the auction
default payment rules with respect to the D Block winning bidder; and
(8) rules governing the relocation of the public safety narrowband
operations. In this Second FNPRM, the Commission includes an appendix
that serves as a possible framework for establishing the technical
requirements for the 700 MHz Public/Private Partnership shared wireless
broadband network. This appendix is intended to solicit detailed
comment and result in a final set of technical requirements that will
provide greater certainty for bidders for the D Block license while
ensuring that the network meets public safety's needs; the appendix is
not intended to prejudge any of the issues identified for comment in
the Second FNPRM. Finally, the Commission seeks comment on any other
revisions or clarifications that may be appropriate with regard to the
700 MHz Public/Private Partnership, including whether to license the D
Block and public safety broadband spectrum on a nationwide or adopt a
regional geographic service area basis such as Regional Economic Area
Grouping (REAG).
In addition to considering possible revisions to the 700 MHz
Public/Private Partnership, the Commission considers its options if the
D Block is licensed without this 700 MHz Public/Private Partnership
condition. For any circumstances where the Commission determines that
the 700 MHz Public/Private Partnership condition on the D Block should
not be retained, it seeks comment on revisions to the rules that would
be appropriate with respect to the D Block license as well as revisions
with regard to the Public Safety Broadband License that would ensure
the development and deployment of a nationwide interoperable broadband
network for public safety users. With respect to the D Block, the
Commission seeks comment in particular on the service rules that should
apply in this event, including the appropriate geographic license area,
performance requirements, technical limits, and whether to adopt
alternate conditions, such as an open access or wholesale requirement.
The Commission seeks comments on the appropriate revisions to the rules
that would still enable the Commission to achieve the goal of a
nationwide, interoperable public safety broadband network. For example,
the Commission seeks comment on: (1) Whether the Commission should
adopt, possibly with modifications, the approach proposed in the Public
Safety Ninth Notice of Proposed Rulemaking, 72 FR 1201, January 10,
2007, which, among other aspects, would allow commercial providers to
enter into voluntary arrangements with the Public Safety Broadband
Licensee to provide public safety services through access to their
commercial network infrastructure and/or through new network build-out
in exchange for preemptible access to public safety spectrum; (2)
whether to require the adoption of a common broadband standard, and
permit regional, state and local entities to build public safety
broadband networks built to that standard, either through a spectrum
lease with the Public Safety Broadband Licensee or by reassigning the
public safety broadband spectrum for regional, state, or local
licensing; (3) whether the Commission, in the absence of the public/
private partnership, should continue to obligate the D Block winner to
fund the relocation of those public safety narrowband systems operating
in the lower portion of the public safety spectrum; and (4) whether, in
the absence of a public safety/private partnership, there are viable
options for funding network construction.
The Commission initiates this Second FNPRM with the following
principles and goals: (1) To identify concerns in the existing
structure of the 700 MHz Public/Private Partnership to inform the
Commission's decision making going forward; (2) to promote wireless
innovation and broadband network penetration while meeting the
communications needs of the first responder community in a commercially
viable manner; (3) to facilitate public safety access to a nationwide,
interoperable broadband network in a timely manner; (4) to identify
funding opportunities for the public safety community to realize the
promise of a broadband communications infrastructure with a nationwide
level of interoperability; and (5) to maximize the commercial and
public safety benefits of this unique piece of 700 MHz spectrum. The
Commission invites comment broadly on these principles and goals, as
well as the other subjects discussed. While this Second FNPRM raises a
number of specific questions, it should not be seen as providing any
limitation on the issues that the Commission seeks comment upon. The
Commission is interested in any and all perspectives from interested
parties on how it can develop rules and procedures that will achieve
the multiple goals enumerated above.
Discussion
I. Introduction
1. In the Second Report and Order, we adopted rules for the
establishment of a mandatory public/private partnership (``the 700 MHz
Public/Private Partnership'') in the upper portions of the 698-806 MHz
band (``700 MHz Band'') as the means for promoting the rapid
construction and deployment of a nationwide, interoperable broadband
public safety network that would serve public safety and homeland
security needs.\1\ Specifically, we required that the winning bidder of
the commercial license in the Upper 700 MHz D Block (758-763/788-793
MHz) (``D Block'') enter into the 700 MHz Public/Private Partnership
with the nationwide licensee of the public safety broadband spectrum
(763-768/793-798 MHz)
[[Page 29584]]
(``Public Safety Broadband Licensee'') to enable construction of this
interoperable broadband network, which would span both the commercial D
Block and public safety spectrum. As essential components of this
partnership, the D Block licensee would be chiefly responsible for the
construction and operation of a state-of-the-art shared wireless
broadband network that would be used by public safety users as well as
commercial users. In exchange for taking on these responsibilities, the
D Block licensee would gain access to the public safety broadband
spectrum for use by its commercial customers on a secondary preemptible
basis. In turn, public safety users, through the Public Safety
Broadband Licensee, would benefit from obtaining access to a state-of-
the-art broadband network on their 700 MHz spectrum that would
incorporate their unique requirements, which would not otherwise be
possible given the limited availability of public funding.\2\ In
Auction 73, the recently concluded auction of commercial 700 MHz
licenses, bidding for the D Block license did not meet the applicable
reserve price of $1.33 billion and, pursuant to the Commission's rules,
there was no winning bid for that license.\3\ In the D Block Post-
Auction Order released shortly after the close of Auction 73, we
determined not to re-offer the D Block license immediately in order to
``provide additional time to consider options with respect to the D
Block spectrum.''\4\ Accordingly, in this Second FNPRM of Proposed
Rulemaking (``Second FNPRM''), we revisit our decisions concerning the
700 MHz Public/Private Partnership--considering revisions to this
partnership as well as alternative rules we should adopt in the event
the D Block licensee is no longer required to enter into a mandatory
public/private partnership.
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\1\ 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 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, Declaratory Ruling on Reporting Requirement under
Commission's Part 1 Anti-Collusion Rule, WT Docket No. 07-166,
Second Report and Order, 22 FCC Rcd 15289 (2007) (Second Report and
Order) recon. pending.
\2\ Id. at 15295 para. 13, 15431 para. 396.
\3\ The auction of these 700 MHz licenses, designated Auction
73, began on January 24, 2008, and concluded March 18, 2008. See
https://wireless.fcc.gov/auctions/default.htm?job=auction_
summary&id=73.
\4\ Auction of the D Block License in the 758-763 and 788-793
MHz Bands, AU Docket No. 07-157, Order, FCC 08-91, para. 3 (rel.
Mar. 20, 2008) (D Block Post-Auction Order). In the Second Report
and Order, the Commission decided that, if the reserve price for the
D Block was not satisfied in the initial auction results, the
Commission might either re-offer the license on the same terms in an
immediate second auction, or re-evaluate the license conditions. See
Second Report and Order, 22 FCC Rcd at 15404 para. 314.
---------------------------------------------------------------------------
2. First, we consider clarifications and revisions to the public
safety component of the 700 MHz Public/Private Partnership that would
better promote our public interest goals.\5\ More specifically, we seek
comment on whether, under Section 337 of the Communications Act of
1934, as amended (``Act''),\6\ and Section 90.523 of the Commission's
rules,\7\ only entities that are providing public safety services, as
defined in the Act, are eligible to use the public safety spectrum
portion of the shared network established under the 700 MHz Public/
Private Partnership, and whether such entities should be required to
subscribe to the network. We also seek comment on whether to clarify
the requirement that the Public Safety Broadband Licensee be a non-
profit organization and specify that entities associated with the
public safety component of the 700 MHz Public/Private Partnership,
apart from outside advisors or counsel with no debt or equity
relationship to the Public Safety Broadband Licensee, may not be for-
profit entities. We seek comment on these and other clarifications or
changes to the structure of the Public Safety Broadband Licensee and
the criteria adopted in the Second Report and Order.
---------------------------------------------------------------------------
\5\ We use the term ``700 MHz Public/Private Partnership'' to
refer specifically to a mandatory public/private partnership between
the D Block licensee and the Public Safety Broadband Licensee, along
the general lines initially set forth in the Second Report and
Order.
\6\ 47 U.S.C. 337.
\7\ 47 CFR 90.523.
---------------------------------------------------------------------------
3. In addition, we seek comment on possible modifications to the
various rules governing the D Block licensee and the Public Safety
Broadband Licensee within the framework of the 700 MHz Public/Private
Partnership (as revised or clarified). First, we seek comment on
whether it remains in the public interest to require a public/private
partnership between the nationwide D Block licensee and the Public
Safety Broadband Licensee for the purpose of creating a nationwide,
interoperable broadband network for both commercial and public safety
network services. Next, to ensure a thorough consideration of the
Commission's options in the event that we do continue to require a
public/private partnership between these licensees, we seek comment on
a broad set of possible revisions to the 700 MHz Public/Private
Partnership, including revisions regarding the respective obligations
of the D Block licensee and the Public Safety Broadband Licensee. In
particular, we seek comment on the following issues: (1) The technical
requirements of the shared wireless broadband network to be constructed
by the D Block licensee, (2) the rules governing public safety priority
access to the D Block spectrum during emergencies; (3) the D Block
performance requirements and license term; (4) the respective roles and
responsibilities of the D Block licensee and Public Safety Broadband
Licensee in connection with the 700 MHz Public/Private Partnership and
the shared wireless broadband network, including whether the Public
Safety Broadband Licensee may assume responsibilities akin to a
``mobile virtual network operator'' \8\; (5) the various fees
associated with the shared network; (6) the process for negotiating and
establishing the Network Sharing Agreement, including the consequences
of a failure to reach agreement; (7) certain auction-related issues,
including whether to restrict who may participate in the new auction of
the D Block license, how to determine any reserve price for such an
auction, whether to adopt an exception to the impermissible material
relationship rule for the determination of designated entity
eligibility with respect to arrangements for the lease or resale
(including wholesale) of the spectrum capacity of the D Block license,
and whether we should modify the auction default payment rules with
respect to the D Block winning bidder; and (8) relocation of the public
safety narrowband operations. Finally, we seek comment on other
revisions or clarifications that may be appropriate with regard to the
700 MHz Public/Private Partnership, including whether to license the D
Block and public safety broadband spectrum on a nationwide or adopt a
regional geographic service area basis such as Regional Economic Area
Grouping (REAG).\9\
---------------------------------------------------------------------------
\8\ A mobile virtual network operator is a non-facility-based
mobile service provider that resells service to the public for
profit. See Implementation of Section 6002(B) of the Omnibus Budget
Reconciliation Act of 1993, WT Docket No. 05-71, Tenth Report, 20
FCC Rcd 15908, 15920 para. 27 (2005).
\9\ As licensing the D Block on a REAG basis would result in
issuing multiple D Block licenses, references herein to ``the'' D
Block license and licensee should be understood to incorporate
reference to any of multiple D Block licenses or licensees and vice
versa, as appropriate.
---------------------------------------------------------------------------
4. In addition to considering possible revisions to the 700 MHz
Public/Private Partnership, we consider our options if the D Block is
licensed without this 700 MHz Public/Private Partnership condition. We
note that there are several circumstances where such options might be
relevant. First, we might determine that we should not re-auction the D
Block with the 700 MHz Public/Private Partnership condition, and
instead immediately conduct an auction to license the D Block without
such a
[[Page 29585]]
condition. In addition, we might conclude that, even if we should
retain the 700 MHz Public/Private Partnership condition in the next D
Block auction, the condition should be removed if the next D Block
auction fails to produce a winning bidder, or the winning bidder
defaults or fails to negotiate a successful Network Sharing Agreement
with the Public Safety Broadband Licensee. Therefore, for any
circumstances where we determine that the 700 MHz Public/Private
Partnership condition on the D Block should not be retained, we seek
comment on revisions to the rules that would be appropriate with
respect to the D Block license as well as revisions with regard to the
Public Safety Broadband License that would ensure the development and
deployment of a nationwide interoperable broadband network for public
safety users.
5. Finally, we note that, in adopting the Second Report and Order,
we took an innovative approach to addressing a vitally important
problem: Promoting interoperability, on a nationwide basis, for public
safety communications. We intended that the mandatory public/private
partnership model between two nationwide licensees--the commercial D
Block licensee and the non-profit Public Safety Broadband Licensee--
would facilitate access for public safety to a robust, advanced
communications infrastructure and produce economies of scale inherent
in a nationwide footprint. Importantly, we also found that this
approach was the best means available to address the issue of funding
for construction of a public safety communications infrastructure,
which has proven a significant impediment to date. At the same time,
however, we anticipated that the partnership would involve a balance
between the commercial partner's obligation to construct a shared
network infrastructure and the commercial partner's secondary access to
the 700 MHz public safety broadband spectrum. By partnering these two
spectrum assets, we intended to promote spectrum efficiency and
innovation. Thus, we aimed to have the 700 MHz Public/Private
Partnership between the D Block licensee and the Public Safety
Broadband Licensee be complementary, and we designed this framework to
strike the appropriate balance such that the maximum benefits accrued
to both parties.
6. Although the initial sale of the D Block license did not result
in a winning bidder, these goals remain. In reexamining our approach to
the D Block following Auction 73, we continue to proceed with these
objectives in mind. Accordingly, we initiate this Second FNPRM with the
following principles and goals:
To identify concerns in the existing structure of the 700
MHz Public/Private Partnership to inform our decision making going
forward;
To promote wireless innovation and broadband network
penetration while meeting the communications needs of the first
responder community in a commercially viable manner;
To facilitate public safety access to a nationwide,
interoperable broadband network in a timely manner;
To identify funding opportunities for the public safety
community to realize the promise of a broadband communications
infrastructure with a nationwide level of interoperability; and
To maximize the commercial and public safety benefits of
this unique piece of 700 MHz spectrum.
7. We invite comment broadly on these principles and goals, as well
as the specific subjects discussed herein. While today's item raises a
number of specific questions, it should not be seen as providing any
limitation on the public safety issues that we seek comment upon. We
are interested in any and all perspectives from interested parties on
how the Commission can develop rules and procedures that will achieve
the multiple goals enumerated above. Finally, before ultimately
adopting final rules in response to this Second FNPRM, we plan to
present for public comment, in a subsequent FNPRM of Proposed
Rulemaking, a detailed proposal regarding the specific proposed
rules.\10\
---------------------------------------------------------------------------
\10\ In this subsequent Further Notice of Proposed Rulemaking,
we plan to seek comment on an expedited basis, with comments due
fourteen days after publication in the Federal Register, and reply
comments due twenty-one days after such publication.
---------------------------------------------------------------------------
II. Background
8. In the Second Report and Order, released August 10, 2007, we
adopted a band plan and service rules affecting the upper portions of
the 700 MHz Band in order to promote the creation of a nationwide,
interoperable broadband public safety network through the establishment
of the 700 MHz Public/Private Partnership. Specifically, with regard to
the public safety spectrum in the 700 MHz Band, we designated the lower
half of this spectrum (the 763-768 MHz and 793-798 MHz bands) for
public safety broadband communications, and we consolidated existing
narrowband allocations to the upper half of the spectrum (the 769-775
MHz and 799-805 MHz bands).\11\ We also created a single nationwide
license for the public safety broadband spectrum, and we specified the
criteria, selection process, and responsibilities of the licensee
assigned this spectrum, the Public Safety Broadband Licensee.\12\ We
required, for example, that no commercial interest may be held in the
Public Safety Broadband Licensee, that no commercial interest may
participate in the management of the licensee, and that the licensee
must be a non-profit organization.\13\ With regard to the commercial
spectrum in the 700 MHz Band, we designated one block--the D Block (the
758-763 MHz and 788-793 MHz bands) located adjacent to the public
safety broadband spectrum block--for use as part of the 700 MHz Public/
Private Partnership. As set forth in the Second Report and Order, we
required the D Block licensee, working with the Public Safety Broadband
Licensee in a public/private partnership, to construct and operate a
nationwide network shared by both commercial and public safety
users.\14\
---------------------------------------------------------------------------
\11\ See Second Report and Order, 22 FCC Rcd at 15406. We also
created an internal guard band in the 768-769 MHz and 798-799 MHz
bands located between the broadband and narrowband allocations. Id.
\12\ See id.
\13\ See id. at 15421.
\14\ Id. at 15428.
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9. The 700 MHz Public/Private Partnership. In the Second Report and
Order, we determined that promoting commercial investment in the build-
out of a shared network infrastructure for both commercial and public
safety users through the 700 MHz Public/Private Partnership would
address ``the most significant obstacle to constructing a public safety
network--the limited availability of public funding.'' \15\ We
concluded that providing for a shared infrastructure using the D Block
and the public safety broadband spectrum would help achieve significant
cost efficiencies. We noted that this would allow public safety
agencies ``to take advantage of commercial, off-the-shelf technology
and otherwise benefit from commercial carriers' investments in research
and development of advanced wireless technologies.'' \16\ We also
stated that this approach could benefit the public safety community by
providing it with access to an additional 10 megahertz of broadband
spectrum during emergencies, when it is needed most. Most importantly,
it was our view that this particular public/private partnership
approach would provide all of these benefits on a nationwide basis and
thus provide the most practical means of speeding deployment of a
[[Page 29586]]
nationwide, interoperable, broadband network for public safety service
that is designed to meet their needs in times of crisis. At the same
time, we pointed out that the 700 MHz Public/Private Partnership would
provide the D Block licensee with rights to operate commercial services
in the 10 megahertz of public safety broadband spectrum on a secondary,
preemptible basis, which would both help to defray the costs of build-
out and ensure that the spectrum is used efficiently.\17\
---------------------------------------------------------------------------
\15\ Id. at 15431.
\16\ Id. (citing Sprint Nextel 700 MHz Further Notice Comments
at 7-8).
\17\ Id.
---------------------------------------------------------------------------
10. We established various features of the 700 MHz Public/Private
Partnership. First, we set forth the essential components of this
partnership.\18\ In particular, we specified certain parameters for the
shared wireless broadband network, including features relating to the
technology platform, signal coverage, robustness and reliability,
capacity, security, operational capabilities and control, and certain
equipment specifications.\19\ With regard to the spectrum shared by the
common network, we required that the Public Safety Broadband Licensee
lease the public safety broadband spectrum for commercial use by the D
Block licensee on a secondary, preemptible basis and provided that the
public safety entities would have priority access to the D Block
spectrum during emergencies.\20\ We also established certain minimal
performance requirements relating to construction and build-out of the
shared 700 MHz Public/Private Partnership network.\21\
---------------------------------------------------------------------------
\18\ Id. at 15432.
\19\ Id. at 15432, 15433-44.
\20\ Id. at 15432, 15434-43.
\21\ Id. at 15432, 15443-46.
---------------------------------------------------------------------------
11. Next, we established that the terms of the 700 MHz Public/
Private Partnership would be governed both by Commission rules and by a
Network Sharing Agreement (``NSA'') to be negotiated by the winning
bidder for the D Block license and the Public Safety Broadband
Licensee.\22\ Throughout the Second Report and Order we identified
certain elements that the parties were required to address in the NSA.
These included, for instance, the details of certain mandatory network
specifications established in the order and a detailed build-out
schedule as jointly agreed upon by the Public Safety Broadband Licensee
and the D Block licensee.\23\ We also determined that the NSA should
include, among other things, specification of all service fees that
public safety entities would pay with respect to access and use of the
shared network, both in terms of fees applicable for normal network
service and fees for priority access to the D Block spectrum in an
emergency.\24\
---------------------------------------------------------------------------
\22\ Id. at 15432, 15447-49.
\23\ Id. at 15448-49.
\24\ Id. at 15448-49.
---------------------------------------------------------------------------
12. We established rules governing the establishment of the NSA to
ensure timely completion of the negotiations and to resolve any
disputes that may arise.\25\ Among other rules, we required the winning
bidder of the D Block license and the Public Safety Broadband Licensee
to negotiate in good faith, and we provided that the D Block license
application would not be granted until the parties obtained Commission
approval of the agreement, executed, and then filed the NSA with the
Commission.\26\ We also required the negotiations to begin by a date
certain and conclude within six months. Further, we specified rules to
govern in the event of a negotiation dispute. Specifically, we provided
that if, at the end of the six month negotiation period, or on their
own motion at any time, the Chiefs of the Public Safety and Homeland
Security Bureau (``PSHSB'') and the Wireless Telecommunications Bureau
(``WTB'') found that negotiations had reached an impasse, they could
take a variety of actions to resolve any disputes, including but not
limited to issuing a decision on the disputed issues and requiring the
submission of a draft agreement consistent with their decision.\27\
---------------------------------------------------------------------------
\25\ Id. at 15448.
\26\ Id. at 15448.
\27\ Id. at 15465.
---------------------------------------------------------------------------
13. Narrowband Relocation. In the Second Report and Order, we found
that, in order to maximize the benefits of the 700 MHz Public/Private
Partnership to deploy a nationwide, interoperable broadband
communications network, the current 700 MHz narrowband public safety
operations must be consolidated and cleared no later than the DTV
transition date.\28\ To effectuate the consolidation of the narrowband
channels, we required the D Block licensee to pay the costs of
relocating narrowband radios to the newly consolidated portion of the
band and capped the disbursement amount for such relocation costs at
$10 million.\29\ We also cautioned that any narrowband equipment
deployed in the 764-770 MHz and 794-800 MHz bands (channels 63 and 68),
or in the 775-776 MHz and 805-806 MHz bands (the upper one megahertz of
channels 64 and 69), more than 30 days following the adoption date of
the Second Report and Order would be ineligible for relocation
funding.\30\ In addition, we prohibited authorization of any new
narrowband operations in that spectrum, as of 30 days following the
adoption date of the Second Report and Order.\31\
---------------------------------------------------------------------------
\28\ Id. at 15410.
\29\ Id. at 15412.
\30\ Id. at 15412.
\31\ Id.
---------------------------------------------------------------------------
14. Rules for an Auction to License the D Block. In addition to
adopting service rules for the 700 MHz commercial spectrum, including
the D Block, we also made several determinations regarding the auction
of the 700 MHz commercial licenses. In particular, we concluded that
block-specific aggregate reserve prices should be established for each
commercial license block--the A, B, C, D, and E Blocks--to be auctioned
in Auction 73, and directed WTB to adopt and publicly disclose those
reserve prices prior to the auction, pursuant to its existing delegated
authority and consistent with our directions.\32\ For the D Block, we
concluded that WTB should consider certain factors in setting the D
Block reserve price, including the 700 MHz Public/Private Partnership
conditions, which might suggest a reserve price of $1.33 billion. We
provided that, in the event that bids for the D Block license did not
meet the reserve price, we would leave open the possibility of offering
the license on the same terms or re-evaluating the D Block license
conditions.\33\
---------------------------------------------------------------------------
\32\ See id. at 15400.
\33\ See id. at 15404.
---------------------------------------------------------------------------
15. In an effort to encourage the widest range of potentially
qualified applicants to participate in bidding for the D Block license,
in the Second Report and Order, we enabled eligible applicants for this
license to seek designated entity bidding credits for small businesses
as a means to create incentives for investors to provide innovative
small businesses with the capital necessary to compete for the D Block
license at auction.\34\ We subsequently decided to waive, on our own
motion, the application of our ``impermissible material relationship''
rule \35\ for purposes of determining an applicant's or licensee's
designated entity eligibility solely with respect to arrangements for
lease or resale (including wholesale) of the spectrum capacity of the D
Block license.\36\ Given the unique characteristics of the regulations
governing the D Block
[[Page 29587]]
license, we concluded that a waiver of the impermissible material
relationship rule served the public interest.\37\
---------------------------------------------------------------------------
\34\ 47 CFR 27.502.
\35\ 47 CFR 1.2110(b)(3)(iv)(A).
\36\ See generally Waiver of Section 1.2110(b)(3)(iv)(A) of the
Commission's Rules for the Upper 700 MHz Band D Block License,
Order, 22 FCC Rcd 20354 (2007) (D Block Waiver Order) recon.
pending.
\37\ Id. at 20354.
---------------------------------------------------------------------------
16. Petitions for Reconsideration. Ten parties filed petitions for
reconsideration seeking review of various aspects of the Second Report
and Order.\38\ Three of the petitions sought reconsideration of the
rules governing the 700 MHz Public/Private Partnership
specifically,\39\ and two petitioners sought reconsideration of the
aggregate reserve prices set for the commercial license blocks,
including the D Block.\40\ These petitioners presented related
arguments in the pre-auction process.\41\ After considering the
arguments, WTB established reserve prices consistent with the direction
of the Second Report and Order.\42\ Two other parties filed petitions
seeking reconsideration of some or all of the requirements regarding
public safety narrowband relocation, and also filed requests for waiver
of some of these requirements.\43\ All of the petitions remain pending.
---------------------------------------------------------------------------
\38\ AT&T Inc. Petition for Reconsideration and Clarification,
WT Docket No. 06-150; PS Docket No. 06-229 (filed Sept. 24, 2007);
Blooston Rural Carriers Petition for Partial Reconsideration and/or
Clarification (filed Sept. 24, 2007); Petition for Reconsideration
of the Ad Hoc Public Interest Spectrum Coalition (filed Sept. 24,
2007); Cyren Call Communications Corporation Petition for
Reconsideration and for Clarification (filed Sept. 24, 2007);
Frontline Wireless, LLC Petition for Reconsideration (filed Sept.
24, 2007); Pierce Transit Petition for Reconsideration (filed Sept.
24, 2007); Rural Telecommunications Group, Inc. Petition for
Reconsideration (filed Sept. 24, 2007); Commonwealth of Virginia
Petition for Reconsideration (filed Sept. 24, 2007); NTCH, Inc.
Petition for Partial Reconsideration (filed Sept. 21, 2007);
MetroPCS Communications, Inc. Petition for Clarification and
Reconsideration (filed Sept. 20, 2007).
\39\ See AT&T Petition for Reconsideration; Cyren Call Petition
for Reconsideration; Frontline Petition for Reconsideration. The
Frontline September 20, 2007 Request also seeks changes to the rules
governing the 700 MHz Public/Private Partnership. See Request to
Further Safeguard Public Safety Service by Frontline Wireless, WT
Docket No. 06-150 (filed Sept. 20, 2007) (Frontline September 20,
2007 Request).
\40\ See Frontline Petition for Reconsideration; MetroPCS
Petition for Reconsideration.
\41\ See Auction of 700 MHz Band Licenses Scheduled for January
24, 2008; Notice and Filing Requirements, Minimum Opening Bids, and
other Procedures for Auctions 73 and 76, Public Notice, 22 FCC Rcd
18141, 18194-95 (2007) (Auction 73/76 Procedures Public Notice).
\42\ See id. at 18193-96.
\43\ See Commonwealth of Virginia Petitions for Reconsideration;
Pierce Transit Petition for Reconsideration. Pierce Transit and
Virginia have been granted limited waiver relief. See Implementation
of 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, Order, 22 FCC Rcd 20290 (2007);
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;
Request for Waiver of Pierce Transit, PS Docket No. 06-229, WT
Docket No. 96-86, Order, 23 FCC Rcd 433 (PSHSB 2008).
---------------------------------------------------------------------------
17. Auction 73. The auction of 700 MHz Band licenses, designated
Auction 73, commenced on January 24, 2008, and closed on March 18,
2008.\44\ While the bids for licenses associated with the other 700 MHz
Band blocks (the A, B, C, and E Blocks) exceeded the applicable reserve
prices, bids for the D Block license did not meet the reserve price and
there was no winning bid for that license.\45\
---------------------------------------------------------------------------
\44\ See https://wireless.fcc.gov/auctions/
default.htm?job=auction_summary&id=73.
\45\ See id.; see also ``Auction of 700 MHz Band Licenses
Closes,'' Public Notice, DA 08-595 (rel. Mar. 20, 2008) (700 MHz
Auction Closing Public Notice).
---------------------------------------------------------------------------
18. D Block Post-Auction Order. On March 20, 2008, we determined
that we would not proceed immediately to re-auction the D Block
license.\46\ We made this decision in order to provide additional time
to consider our various options with respect to the D Block
spectrum.\47\
---------------------------------------------------------------------------
\46\ See D Block Post-Auction Order at para. 5.
\47\ See id.
---------------------------------------------------------------------------
19. Inspector General's Report. On April 25, 2008, the Office of
Inspector General (OIG) issued a report on its investigation relating
to allegations relating to whether certain statements made by an
advisor to the Public Safety Broadband Licensee to potential bidders
for the D Block license in Auction 73, particularly those regarding the
spectrum lease payments that the Public Safety Broadband Licensee would
request from the D Block licensee for use of public safety spectrum,
had the effect of deterring various companies from bidding on the D
Block.\48\ The OIG determined that the statements in question were
``not the only factor in the companies' decision not to bid on the D
Block.'' Rather, it concluded that ``the uncertainties and risks
associated with the D Block, including, but not limited to, the
negotiation framework with [the Public Safety Broadband Licensee], the
potential for default payment if negotiations failed, and the costs of
the build-out and the operations of the network, taken together,
deterred each of the companies from bidding on the D Block.'' \49\
---------------------------------------------------------------------------
\48\ See Office of Inspector General Report, from Kent R.
Nilsson, Inspector General, to Chairman Kevin J. Martin (OIG rel.
Apr. 25, 2008) (OIG Report).
\49\ OIG Report at 2.
---------------------------------------------------------------------------
III. Discussion
20. In this Second FNPRM, we revisit our decisions concerning the
public safety broadband spectrum, the 700 MHz Public/Private
Partnership, and the shared wireless broadband network it is intended
to create, as we move toward a new auction to license the D Block
spectrum in the near future.\50\
---------------------------------------------------------------------------
\50\ As noted above, before ultimately adopting final rules in
response to this Second FNPRM, we plan to present for public
comment, in a subsequent FNPRM of Proposed Rulemaking, a detailed
proposal regarding the specific proposed rules.
---------------------------------------------------------------------------
21. First, in reevaluating the 700 MHz Public/Private Partnership
in light of the results of Auction 73, we find it appropriate to
consider clarifications and revisions to the public safety component of
the partnership that would better promote our public interest goals.
More specifically, in section A, we seek comment on our proposed
clarifications regarding the entities that are eligible to use the
public safety spectrum in the shared wireless broadband network as
public safety users rather than as commercial users. We also seek
comment on possible clarifications of or changes to the rules governing
the structure and criteria of the Public Safety Broadband Licensee,\51\
including whether to clarify further the requirement that the Public
Safety Broadband Licensee must be a non-profit organization.
---------------------------------------------------------------------------
\51\ See 47 U.S.C. 316 (permitting the Commission to modify any
license if, in the judgment of the Commission, such action will
promote the public interest, convenience, or necessity).
---------------------------------------------------------------------------
22. In section B, we seek comment on possible changes to the rules
requiring and governing the 700 MHz Public/Private Partnership. As
noted above, we seek comment on whether the 700 MHz Public/Private
Partnership between the D Block licensee and the Public Safety
Broadband Licensee, with appropriate revisions and clarifications,
would best serve the public interest in ensuring the development of a
nationwide, interoperable broadband network for public safety users. We
therefore explore a variety of possible revisions to the 700 MHz
Public/Private Partnership to provide greater assurance to potential
bidders for the D Block license that the shared wireless broadband
network will be commercially viable and to help ensure that this
partnership will be successful in making a nationwide, interoperable,
broadband network available to public safety users. We also seek
comment on issues related to the negotiation of the Network Sharing
Agreement. In addition, we request comment on select issues relating to
auctioning the D Block license, including eligibility to participate in
the
[[Page 29588]]
auction, a reserve price, and potential default payments. Finally, we
seek comment on issues relating to narrowband relocation and on whether
to continue to license the D Block on a nationwide basis or adopt a
regional geographic service area basis such as REAGs.
23. Finally, in section C, we examine our options in the event we
decide not to condition the D Block on the establishment of the 700 MHz
Public/Private Partnership with the Public Safety Broadband Licensee,
either immediately in the next auction or if the next auction fails to
produce a winning bidder. First, we seek comment on various revisions
that might be appropriate with respect to the D Block spectrum. Then we
invite comment on what additional revisions might be appropriate with
regard to the Public Safety Broadband License in order to ensure the
development and deployment of a nationwide interoperable broadband
network for public safety users.
A. The Public Safety Broadband License
1. Eligible Users of the Public Safety Spectrum in the Shared Network
24. Background. To meet anticipated public safety and homeland
security needs, we proposed a comprehensive plan in the Second Report
and Order to promote the rapid deployment of a nationwide,
interoperable, broadband public safety network. This plan was based on
taking ``a centralized and national approach to maximize public safety
access to interoperable, broadband spectrum in the 700 MHz Band.'' \52\
In particular, we required that a single, nationwide public safety
broadband license be assigned to the Public Safety Broadband Licensee.
That licensee would be responsible for negotiating a Network Sharing
Agreement with the winning bidder of the D Block licensee, pursuant to
which the D Block licensee would construct and operate a shared,
nationwide 700 MHz interoperable broadband network that serves the
public safety entities seeking access to the network, and the D Block
licensee would, in turn, gain access to the 700 MHz public safety
broadband spectrum for use by its commercial users on a secondary
preemptible basis.\53\
---------------------------------------------------------------------------
\52\ See Second Report and Order, 22 FCC Rcd at 15419.
\53\ See id. at 15419.
---------------------------------------------------------------------------
25. The eligibility rules for the 700 MHz public safety band,
including both the narrowband and broadband segments, are contained in
Section 90.523 of our rules.\54\ By linking eligibility to the
provision of statutorily-defined ``public safety services,'' Section
90.523 attempts to ensure compliance with the statutory mandate of
Section 337(a)(1) of the Communications Act, which requires the
Commission to allocate 24 megahertz of spectrum between 746 MHz and 806
MHz for ``public safety services.'' \55\ The statutory definition of
``public safety services,'' which is set forth in Section 337(f) of the
Act, provides as follows:
---------------------------------------------------------------------------
\54\ 47 CFR 90.523.
\55\ 47 U.S.C. 337(a)(1).
(f) Definitions
For purposes of this section:
(1) Public safety services
The term ``public safety services'' means services--
(A) The sole or principal purpose of which is to protect the
safety of life, health, or property;
(B) That are provided--
(i) By State or local government entities; or
(ii) By nongovernmental organizations that are authorized by a
governmental entity whose primary mission is the provision of such
services; and
(C) That are not made commercially available to the public by
the provider.\56\
---------------------------------------------------------------------------
\56\ 47 U.S.C. 337(f).
26. The eligibility rules of Section 90.523 that apply to the
narrowband licensees of the 700 MHz public safety band limit operations
to the provision of public safety services, as defined in Section
337(f)(1). Thus, all such licensees are either state or local
governmental entities \57\ or authorized non-governmental organizations
(NGOs),\58\ which provide services that are not made commercially
available to the public and are for the sole or principal purpose of
protecting the safety of life, health, or property.\59\
---------------------------------------------------------------------------
\57\ See 47 CFR 90.523(a).
\58\ See 47 CFR 90.523(b).
\59\ See 47 CFR 90.523(a)-(d).
---------------------------------------------------------------------------
27. With respect to the broadband licensee--i.e., the Public Safety
Broadband Licensee--the Commission crafted eligibility requirements
that were also intended to limit operations to the statutorily defined
public safety services in order to ensure that the band remained
allocated to such services, as required by Section 337(a)(1), and to
focus the Public Safety Broadband Licensee exclusively upon the needs
of public safety entities that stand to benefit from the interoperable
broadband network.\60\ Specifically, we required that the Public Safety
Broadband Licensee satisfy the following eligibility criteria: (1) No
commercial interest may be held in this licensee, and no commercial
interest may participate in the management of the licensee, (2) the
licensee must be a non-profit organization, (3) the licensee must be as
broadly representative of the public safety radio user community as
possible, including the various levels (e.g., state, local, county) and
types (e.g., police, fire, rescue) of public safety entities, and (4)
to ensure that the Public Safety Broadband Licensee is qualified to
provide public safety services, an organization applying for the Public
Safety Broadband License was required to submit written certifications
from a total of at least ten geographically diverse state and local
governmental entities, with at least one certification from a state
government entity and one from a local government entity.\61\ The
written certifications from these state and local governmental entities
were required to verify that: (1) They have authorized the applicant to
use spectrum at 763-768 MHz and 793-798 MHz to provide the authorizing
entity with public safety services; and (2) the authorizing entities'
primary mission is the provision of public safety services.\62\
---------------------------------------------------------------------------
\60\ Second Report and Order, 22 FCC Rcd at 15421.
\61\ See 47 CFR 90.523(e).
\62\ See 47 CFR 90.523(e)(i), (ii).
---------------------------------------------------------------------------
28. Discussion. As a preliminary matter, our review of the
eligibility provisions that apply to the narrowband licensees and those
that apply to the Public Safety Broadband Licensee have led us to
identify two elements of the statutory definition of ``public safety
services'' that the rules do not appear to apply explicitly enough to
the Public Safety Broadband Licensee: (a) The Section 337(f)(1)(A)
element that requires the ``sole or principal purpose [of the services
to be for the] protect[ion of] the safety of life, health, or
property,'' and (2) the Section 337(f)(1)C) element that bars such
services from being ``made commercially available to the public by the
provider.'' \63\ In addition, there is some degree of ambiguity as to
the applicability of the narrowband eligibility provisions in Sections
90.953(a)-(d) to the Public Safety Broadband Licensee. Accordingly, we
seek comment on whether to make minor amendments to Section 90.523 to
(a) clarify that the services provided by the Public Safety Broadband
Licensee must conform to all the elements of the Section 337(f)(1)
definition of ``public safety services,'' and (b) clearly delineate the
differences and overlap in the respective eligibility requirements of
[[Page 29589]]
the narrowband licensees and the Public Safety Broadband Licensee.
---------------------------------------------------------------------------
\63\ 47 U.S.C. 337(f)(1)(A), (C).
---------------------------------------------------------------------------
29. As discussed in more detail below, it would appear that, under
Section 337 of the Act and in furtherance of the policies that have led
to the creation of the Public Safety Broadband Licensee, the eligible
users of the public safety broadband network that are represented by
the Public Safety Broadband Licensee should be restricted to entities
that would be eligible to hold licenses under Section 90.523. Thus,
only entities providing public safety services, as defined in the Act,
would be eligible to use the public safety spectrum of the shared
network of the 700 MHz Public/Private Partnership on a priority basis,
pursuant to the representation of the Public Safety Broadband Licensee.
Accordingly, we also seek comment on whether all other users of the
shared network, including critical infrastructure users, should
consequently be treated as commercial users who would obtain access to
spectrum only through commercial services provided solely by the D
Block licensee.
30. Eligible Users of the Public Safety Broadband Network. As the
licensee of the broadband portion of spectrum within the 700 MHz public
safety band, the Public Safety Broadband Licensee occupies a somewhat
unique position insofar as it will not use its licensed spectrum to
serve its own communications needs. Rather, the Public Safety Broadband
Licensee will ensure the provision of public safety service by
providing spectrum access to others via the nationwide shared public/
private network.\64\ Thus, the question of whether the Public Safety
Broadband Licensee's service qualifies as a ``public safety service''
under Section 337(f)(1) will turn (in part) on the nature of the
spectrum use by the entities that it permits to gain access to the
network. To the extent that these entities are public safety entities
that use this access to provide themselves with communications services
in furtherance of their mission to protect the safety of life, health
or property, the Public Safety Broadband Licensee's services related to
the public safety broadband spectrum would fall well within the Section
337(f)(1) definition of ``public safety services'' and would comport
with the Commission's obligation under Section 337(a)(1) to allocate a
certain amount of spectrum to such services.
---------------------------------------------------------------------------
\64\ See Second Report and Order, 22 FCC Rcd at 15426.
---------------------------------------------------------------------------
31. We note that, pursuant to the statutory definition, a service
can still be considered a ``public safety service'' even if its purpose
is not solely for protecting the safety of life, health or property, so
long as this remains its ``principal'' purpose.\65\ Accordingly, the
service provided by the Public Safety Broadband Licensee--providing
public safety entities access to the spectrum for safety-of-life/
health/property communications operations--could conceivably include
the provision of spectrum access to public safety entities for uses
that do not principally involve the protection of life, health or
property, so long as it can be said that the principal purpose of the
Public Safety Broadband Licensee's services is to protect the safety of
life, health or property.
---------------------------------------------------------------------------
\65\ See 47 U.S.C. 337(f)(1)(A).
---------------------------------------------------------------------------
32. Taken to an extreme, this reasoning could even permit the
Public Safety Broadband Licensee to provide spectrum access to small
numbers of entities with no connection to public safety under the
rationale that the bulk of the Public Safety Broadband Licensee's
services would remain that of providing the public safety entities
access to spectrum for use in safeguarding life, health or property.
Moreover, the Public Safety Broadband Licensee could arguably leave
entire pockets within its nationwide service area served only by such
non-public safety entities, based on this same rationale that the small
amount of non-public safety use--relative to the nature of the overall
use across the country--does not alter the fact that the principal
purpose of the service remains public safety. Such a result appears
patently inconsistent with the spirit of Section 337(f)(1)(A), and we
seek comment on whether, or to what degree, the Public Safety Broadband
Licensee would be statutorily precluded by that subsection from
representing and allowing any entity to use the network for services
that are not principally for public safety purposes. We also seek
comment on whether there are other grounds--specifically, the
authorization requirement of Section 337(f)(1)(B)(ii) and policy
reasons--for prohibiting the Public Safety Broadband Licensee from
providing network access to non-public safety entities or from
permitting public safety entities that it represents to use the network
for services that do not have as their principal purpose the protection
of the safety of life, heath or property. With respect to Section
337(f)(1)(B)(ii), we observe that, in order for the Public Safety
Broadband Licensee's services to meet the public safety services
definition, the Public Safety Broadband Licensee, as a nongovernmental
organization, must receive authorization from ``a governmental entity
whose primary mission is the provision of [public safety] services.''
We believe it unlikely that the intended scope of the authorization
from such governmental entity or entities would include providing
spectrum access, even on an occasional or limited basis, to entities
that provide no public safety services.\66\ On the policy front, the
finite amount of spectrum available to the public safety community--
particularly for interoperability purposes--strongly argues against any
provision of spectrum access by the Public Safety Broadband Licensee to
entities the sole or principal purpose of which is not the protection
of
