Relocation of Federal Systems in the 1710-1755 MHz Frequency Band: Review of the Initial Implementation of the Commercial Spectrum Enhancement Act, 32131-32138 [E9-15870]
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Federal Register / Vol. 74, No. 128 / Tuesday, July 7, 2009 / Notices
days after the publication date of the
final results of this review excluding
any reported sales that entered during
the gap period. In accordance with 19
CFR 351.212(b)(1), we calculated
exporter/importer (or customer)-specific
assessment rates for the merchandise
subject to this review. Where the
respondent has reported reliable entered
values, we calculated importer (or
customer)-specific ad valorem rates by
aggregating the dumping margins
calculated for all U.S. sales to each
importer (or customer) and dividing this
amount by the total entered value of the
sales to each importer (or customer). See
19 CFR 351.212(b)(1). Where an
importer (or customer)-specific ad
valorem rate is greater than de minimis,
we will apply the assessment rate to the
entered value of the importers’/
customers’ entries during the POR. See
19 CFR 351.212(b)(1).
Where we do not have entered values
for all U.S. sales, we calculated a per–
unit assessment rate by aggregating the
antidumping duties due for all U.S.
sales to each importer (or customer) and
dividing this amount by the total
quantity sold to that importer (or
customer). See 19 CFR 351.212(b)(1). To
determine whether the duty assessment
rates are de minimis, in accordance with
the requirement set forth in 19 CFR
351.106(c)(2), we calculated importer
(or customer)-specific ad valorem ratios
based on the estimated entered value.
Where an importer (or customer)specific ad valorem rate is zero or de
minimis, we will instruct CBP to
liquidate appropriate entries without
regard to antidumping duties. See 19
CFR 351.106(c)(2).
For the companies receiving a
separate rate that were not selected for
individual review, the assessment rate
will be based on the rate from the
investigation or, if appropriate, a simple
average of the cash deposit rates
calculated for the companies selected
for individual review pursuant to
section 735(c)(5)(B) of the Act.
Cash Deposit Requirements
The following cash deposit
requirements will be effective upon
publication of the final results of this
administrative review for all shipments
of the subject merchandise entered, or
withdrawn from warehouse, for
consumption on or after the publication
date, as provided for by section
751(a)(2)(C) of the Act: (1) for the
exporters listed above, the cash deposit
rate will be established in the final
results of this review (except, if the rate
is zero or de minimis, i.e., less than 0.5
percent, no cash deposit will be
required for that company); (2) for
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previously investigated or reviewed PRC
and non–PRC exporters not listed above
that have separate rates, the cash
deposit rate will continue to be the
exporter–specific rate published for the
most recent period; (3) for all PRC
exporters of subject merchandise which
have not been found to be entitled to a
separate rate, the cash deposit rate will
be the PRC–wide rate of 44.3 percent;
and (4) for all non–PRC exporters of
subject merchandise which have not
received their own rate, the cash deposit
rate will be the rate applicable to the
PRC exporters that supplied that non–
PRC exporter. These deposit
requirements, when imposed, shall
remain in effect until further notice.
Notification to Importers
This notice also serves as a
preliminary reminder to importers of
their responsibility under 19 CFR
351.402(f)(2) to file a certificate
regarding the reimbursement of
antidumping duties prior to liquidation
of the relevant entries during this
review period. Failure to comply with
this requirement could result in the
Secretary’s presumption that
reimbursement of antidumping duties
occurred and the subsequent assessment
of double antidumping duties.
This determination is issued and
published in accordance with sections
751(a)(1) and 777(i)(1) of the Act and 19
CFR 351.221(b)(4).
Dated: June 30, 2009.
John M. Andersen,
Acting Deputy Assistant Secretary for
Antidumping and Countervailing Duty
Operations.
[FR Doc. E9–15964 Filed 7–6–09; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
National Telecommunications and
Information Administration
[Docket No. 0906231085–91085–01]
Relocation of Federal Systems in the
1710–1755 MHz Frequency Band:
Review of the Initial Implementation of
the Commercial Spectrum
Enhancement Act
AGENCY: National Telecommunications
and Information Administration.
ACTION: Notice of Inquiry.
The U.S. Department of
Commerce’s National
Telecommunications and Information
Administration (NTIA) seeks comment
on the initial implementation of the
Commercial Spectrum Enhancement
SUMMARY:
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32131
Act (CSEA).1 The CSEA, which was
enacted in 2004, created an innovative
funding mechanism allowing Federal
agencies to recover the costs of
relocating their radio systems from the
proceeds of the auction of the radio
spectrum vacated. The first auction
under the CSEA, that of the 1710–1755
MHz band, concluded in 2006,
providing new opportunities for
Advanced Wireless Services (AWS–1).
Over two years into the relocation of
Federal systems from this band, NTIA
requests information on what
implementation steps should be
retained as best practices, what lessons
have been learned, and what, if any,
improvements should be made in future
relocations under the CSEA.
DATE: Comments are requested on or
before August 21, 2009, 2009.
ADDRESSES: Parties may mail written
comments to Gary Patrick, Spectrum
Engineering and Analysis Division,
Office of Spectrum Management,
National Telecommunications and
Information Administration, U.S.
Department of Commerce, 1401
Constitution Avenue, N.W., Room 6725,
Washington, DC 20230, with copies to
Gina Harrison, Esq., Office of Spectrum
Management, National
Telecommunications and Information
Administration, U.S. Department of
Commerce, 1401 Constitution Avenue,
N.W., Room 4099, Washington, DC
20230. Alternatively, comments may be
submitted in Microsoft Word format
electronically to
csealessonslearned@ntia.doc.gov.
Comments will be posted on NTIA’s
website at https://www.ntia.doc.gov and
regulations.gov.
FOR FURTHER INFORMATION CONTACT: Gary
Patrick, National Telecommunications
and Information Administration, U.S.
Department of Commerce, 1401
Constitution Avenue, N.W., Room 6725,
Washington, DC 20230 or Gina
Harrison, Esq., National
Telecommunications and Information
Administration, U.S. Department of
Commerce, 1401 Constitution Avenue,
N.W., Room 4099, Washington, DC
20230; telephone (202) 482–9132 or
(202) 482–2695; or email:
gpatrick@ntia.doc.gov or
rharrison@ntia.doc.gov.
SUPPLEMENTARY INFORMATION:
Overview
NTIA decided to reallocate the 1710–
1755 MHz band to commercial use in
1 Title II, Pub. Law No. 108–494, 118 Stat. 3986,
47 U.S.C. §§ 309 (j) (3), 921, 923, 928 and note
(annual report requirement).
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1995.2 However, the decision could not
be implemented until 2004, when
enactment of the CSEA provided a
streamlined means to pay for the
relocation of Federal systems. The CSEA
created the Spectrum Relocation Fund
(SRF).3 The SRF uses the proceeds from
the commercial auction of relinquished
spectrum to reimburse Federal agencies
required to vacate the spectrum.
The CSEA and the SRF it created help
solve a recurrent spectrum management
dilemma, the problem of clearing
incumbents from a portion of the
spectrum. Such transition issues can
stymie efforts to bring new, improved
uses of spectrum into service.4 By
enhancing the efficiency of the Federal
relocation process, the CSEA provides
three concurrent benefits. Commercial
firms and consumers benefit from
expediting the process for freeing
additional radio frequencies for new or
expanded services. Federal agencies
benefit from the funds the SRF provides
for state-of-the-art systems they will use
in new spectrum locations. Finally, the
CSEA assists in the Federal budget
process by providing that unused
spectrum auction receipts revert to the
Treasury’s general fund.
On September 18, 2006, the Federal
Communications Commission (FCC)
concluded the first auction conducted
under the CSEA, the AWS–1 auction,
including 1710–1755 MHz. The auction
of the Federal spectrum raised $6.85
billion out of $13.7 billion in net
winning bids from Federal and nonFederal auctioned spectrum combined.
Opening the band to commercial use
will spur new wireless services.
In March 2007, the Office of
Management and Budget (OMB), in
consultation with NTIA and based on
Federal agency estimates of relocation
costs, transferred slightly over $1 billion
from the SRF to 12 Federal agencies to
relocate their systems out of the 1710–
1755 MHz band.5 This first
2 NTIA, Spectrum Reallocation Final Report:
Response to Title IV-Omnibus Budget
Reconciliation Act of 1993 (Feb. 1995), available at
https://www.ntia.doc.gov/openness/contents.html.
3 CSEA, § 204, 118 Stat. 3994, 47 U.S.C. § 928.
4 ‘‘800 MHz Transition May Drag on Until 2012,
Some Say,’’ TR Daily (Feb. 17, 2009); Order,
Improving Public Safety Communications in the
800 MHz Band, WT Docket No. 02–55, FCC 08–253
(rel. Oct. 30, 2008), available at 2008 Lexis 7625;
Order, Improving Public Safety Communications in
the 800 MHz Band, WT Docket No. 02–55, FCC 09–
35 (Apr. 20, 2009), available at https://hraunfoss.fcc.
gov/edocs_public/attachmatch/FCC–09–35A1.doc.
5 There are 1,990 frequency assignments
associated with the Federal systems to be relocated
from the 1710–1755 MHz band. The 12 relocating
agencies are Department of Agriculture (USDA),
Department of Defense, Department of Energy,
Federal Aviation Administration, Department of
Homeland Security, Department of Housing and
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implementation of the CSEA has been
ongoing for over two years. NTIA takes
this opportunity to solicit public
comment on how the CSEA has
functioned so far.
This Notice of Inquiry (NOI) first
invites interested parties to comment on
the overall performance of the Federal
relocation process. The NOI then
divides the issues among those arising
before and after the auction. Issues
regarding the adequacy and
transparency of data, sufficiency of
communications, guidance with respect
to the relocation process, and NTIA’s
role, arise both ‘‘Pre-Auction’’ and
‘‘Post-Auction.’’ The Post-Auction
section addresses a number of
additional issues, including ‘‘early
entry’’ of licensees prior to a Federal
agency’s scheduled date to vacate the
band. In some cases, ‘‘Pre-Auction’’
events may have had ‘‘Post-Auction’’
effects. In other cases, ‘‘Post-Auction’’
circumstances may shed light on the
value of pre-auction information and on
the level of bidding. Thus, NTIA asks
commenters to analyze CSEA
implementation from both cause-andeffect and ‘‘feedback’’ perspectives.
Chronology
The CSEA requires the FCC to notify
NTIA at least 18 months in advance of
an auction of eligible frequency bands.6
In December 2004, the FCC notified
NTIA that the auction of the 1710–1755
MHz band would begin as early as June
2006.7
Under the CSEA, at least six months
prior to the auction, NTIA, on behalf of
the Federal agencies and after review by
OMB, must provide the FCC and
Congress the estimated costs and time
lines for relocating Federal agencies
from affected spectrum.8 NTIA
complied with these requirements in
December 2005.9
Urban Development, Department of the Interior,
Department of Justice, National Aeronautics and
Space Administration, Department of the Treasury,
Tennessee Valley Authority, and United States
Postal Service. As of December 2008, Federal
agencies had spent $174,126,082 from the SRF.
NTIA, 1710–1755 MHz Band Relocation: Second
Annual Progress Report (Mar. 2009) (‘‘Second
Annual Relocation Report’’), available at https://
www.ntia.doc.gov/reports/
Final2ndAnnualRelocation Report20090416.pdf.
6 CSEA, § 202, 118 Stat. 3992, 47 U.S.C. § 923 (g)
(4) (A).
7 Letter from Michael K. Powell, Chairman,
Federal Communications Commission to the
Honorable Michael D. Gallagher, Assistant
Secretary for Communications and Information, and
Administrator, National Telecommunications and
Information Administration (Dec. 29, 2004).
8 CSEA, § 202, 118 Stat. 2992–93, 47 U.S.C. § 923
(g) (4) (A) (5).
9 Public Notice, ‘‘Commerce Releases Costs to
Open Up Spectrum for Advanced Wireless
Broadband Services,’’ available at https://
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In April 2006, prior to the auction,
NTIA and the FCC published a Joint
Public Notice providing guidance to
assist AWS–1 licensees and Federal
incumbents in the post-auction
coordination process. One of the
purposes of that Joint Public Notice was
to permit licensees access to the band in
advance of estimated relocation dates,
subject to the completion of successful
coordination with the incumbents.10
The FCC concluded the auction on
September 18, 2006.11
On February 16, 2007, OMB reported
the cost and time estimates of relocating
incumbent systems in the 1710–1755
MHz band to Congress. The CSEA
provides that unless disapproved within
30 days, SRF funds shall be available
immediately.12 OMB consequently
transferred funds from the SRF to
individual agencies, and calculated the
start time for relocation activities as the
date the funds transferred to the
agency’s account.13
The CSEA sets no firm date by which
incumbent Federal agencies must vacate
spectrum. Pursuant to the CSEA,
however, Federal agencies in the 1710–
1755 MHz band estimated relocation
times from one to six years.14 The CSEA
provides that eight years after deposit of
auction proceeds into the SRF, any
remaining proceeds revert to the general
fund of the Treasury.15
www.ntia.doc.gov/ntiahome/press/2005/
relo_12282005.htm. See generally ‘‘1710–1755 MHz
Introduction,’’ available at https://
www.ntia.doc.gov/osmhome/reports/specrelo/
index.htm (updated list of affected Federal
frequency assignments and other data). For a related
discussion, see infra Section 2.a.
10 Federal Communications Commission and
NTIA — Coordination Procedures in the 1710–1755
MHz Band, 21 FCC Rcd 4730 (Apr. 20, 2006) (‘‘Joint
Public Notice’’). Access to a band by licensees prior
to relocation of incumbents is sometimes referred
to as ‘‘early entry.’’
11 ‘‘Auction 66, Advanced Wireless Services
(AWS–1),’’ available at https://wireless.fcc.gov/
auctions/default.htm?job=auction_factsheet&id=66.
12 CSEA, § 204, 118 Stat. 3995, 47 U.S.C. § 928(d)
(2).
13 The CSEA provides that amounts transferred
from the SRF to a Federal agency be credited to the
appropriations ‘‘account’’ of the agency. Id. § 928 (e)
(C).
14 ‘‘Report to Congress by the Office of
Management and Budget on Agency Plans for
Spectrum Relocation Funds Pursuant to the
Commercial Spectrum Enhancement Act’’ (Feb. 16,
2007) available at https://www.ntia.doc.gov/reports/
2007/OMBSpectrumRelocationCongressional
Notification_final.pdf.
15 CSEA, § 204 (d) (3), 118 Stat. 3995, 47 U.S.C.
§ 928 (d) (3). NTIA may terminate a frequency
authorization if it finds that an agency has
unreasonably failed to comply with OMB-approved
time lines. CSEA, §§ 202, 203(b), 118 Stat. 3993–94,
47 U.S.C. §§ 923 (g) (6), 309(j) (15) (D). See generally
Manual of Regulations and Procedures for Federal
Radio Frequency Management (‘‘NTIA Manual’’),
Chapter O, Relocation of Federal Government Radio
Systems in Accordance with the Commercial
Spectrum Enhancement Act, available at https://
www.ntia.doc.gov/osmhome/redbook/O.pdf.
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The time line below describes the
principal stages in the 1710–1755 MHz
band relocation.
TIME LINE — PRINCIPAL STAGES IN THE 1710–1755 MHZ BAND RELOCATION
|
PRE-AUCTION
AWS-1
AUCTION
CONCLUDES
POST-AUCTION
President
Signs CSEA
NTIA Releases
1710-1755
MHz Data Setting Auction
Reserve Price
FCC/
NTIA
JPN
'
OMB
Report
to Congress
↑
Dec
2004
↑
Dec
2005
↑
April
2006
↑
Sept
2006
↑
Feb
2007
REQUEST FOR COMMENT:
NTIA requests comment on the
questions below to assist in identifying
lessons to be learned and other issues
and suggestions related to the
implementation of the CSEA. These
questions are not a limitation on
comments that may be submitted. When
references are made to studies, research,
and other empirical data that are not
widely published, commenters are
asked to provide copies of the
referenced material with the submitted
comments.
1. Overall Performance
As of December 31, 2008, Federal
agencies had relocated approximately
933 or 47 percent of the 1,990 Federal
frequency assignments in the 1710–1755
MHz band.16 Also, as of December 31,
2008, licensees registered expenses with
private sector clearinghouses for
relocating a total of approximately 765
or approximately 15 percent of the
approximately 5,000 non-Federal radio
frequency links in the 2110–2155 MHz
band, which was paired for auction with
the 1710–1755 MHz band.17 NonFederal relocation typically occurs on a
link-by-link basis at the initiation of the
AWS–1 licensee, when attempts to
‘‘engineer around’’ an incumbent
microwave licensee fail. Apart from
16 NTIA,
1710–1755 MHz Relocation and
Schedule Summary, available at https://www.ntia.
doc.gov/osmhome/reports/specrelo/pdf_20081209/
1710_1755_Relo_Costs_2008_12.pdf. One fixed
microwave link and one land mobile link each
comprise two Federal assignments. Fixed
transportable and aeronautical mobile links each
constitute a single assignment.
17 Report of the CTIA Spectrum Clearinghouse,
LLC (Jan. 30, 2009); Semi-Annual Report of the
PCIA — The Wireless Infrastructure Association on
the Status of the PCIA AWS Clearinghouse (Jan. 30,
2009), both reports available at https://www.fcc.gov/
cgb/ecfs/ (search Docket 02–353).
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SRF
Funds
Transferred to
Agencies
'
Agency Estimated Relocation Completion
↑
Mar/April
2007
a. Adequacy of Data
The CSEA requires NTIA, at least six
months prior to an auction, ‘‘[t]o the
extent practicable and consistent with
national security considerations’’ to
provide the FCC with relocation cost
and time estimates ‘‘by the geographic
location of the Federal entities’ facilities
or systems and the frequency bands
used by such facilities or systems.’’18
The cost data are used to set the reserve
price for the auction.19
NTIA compiled cost and time
estimates developed by the agencies in
compliance with this requirement, along
with a list of affected Federal
assignments and other information.
NTIA submitted these to the FCC and to
Congress in December 2005.20 NTIA
also published these data on its website
and updated these published data before
18 CSEA, § 202, 118 Stat. 3992–93, 47 U.S.C. § 923
(g) (4) (A), (C).
19 CSEA, § 203 (b), 118 Stat. 3994, 47 U.S.C. § 309
(j) (15) (B). ‘‘A ‘reserve price’ is defined as an
absolute minimum price below which an auctioneer
will not sell an object being auctioned.’’
Amendment of Part 1 of the Commission’s Rules —
Competitive Bidding Procedures, Third Report and
Order and Second Further Notice of Proposed
Rulemaking, 13 FCC Rcd 374, ¶ 140 (1997), recon.
denied, 15 FCC Rcd 15293 (2000).
20 See supra note 9.
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8 Years from
Deposit of
Auction Proceeds into
SRF
↑
Mar
2013
2. Pre-Auction Issues
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(
——→
Early Entry
————→
moves made in response to requests for
early entry, Federal agencies relocate on
a system-wide basis under established
time frames and SRF funding. NTIA
asks parties to provide their
perspectives on the overall Federal
relocation effort. NTIA also seeks
comment on how the nature and speed
of the Federal relocation process
compares with relocation of private
sector incumbents in the 2110–2155
MHz band.
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——→
Proceeds Revert to Treasury General
Funds
and after the auction. NTIA continues to
update the data periodically.21
In addition, prior to the auction, in
April 2006, NTIA and the FCC
published a Joint Public Notice. The
Joint Public Notice detailed the early
entry coordination process between
AWS–1 licensees and Federal
incumbents.22 The early entry process
has raised a number of concerns from
both Federal agencies and AWS–1
licensees.23 Was the Joint Public Notice
useful to AWS–1 auction bidders and,
later, to licensees? How might future
such Notices be improved?
NTIA seeks comment on whether the
information provided prior to the
auction, both with respect to the Federal
systems’ relocation plans and the
process for early entry, was adequate.24
Commenters should specify the type of
additional information, if any, that
would have been helpful. What
technical and operational information, if
any, would have better described the
nature of systems to be relocated?
Would additional technical details, a
glossary of spectrum management terms,
references to the NTIA Manual, or a
description of the geographic area
authorized for each Federal system,
have better apprised potential bidders of
the various types of operations in the
21 Id.
22 Joint
Public Notice, supra note 10.
generally Commerce Spectrum
Management Advisory Committee (‘‘CSMAC’’):
‘‘Recommendations for Improving the Process for
Identifying Spectrum for Future Reallocation or
Sharing,’’ at 12–15, 19 (Aug. 22, 2008) (‘‘CSMAC
Reallocation Report’’) available at https://
www.ntia.doc.gov/advisory/spectrum/
meeting_files/
081508_csmac_WG3_Report_Revised_
(clean_final).pdf.
24 Issues regarding the adequacy of information
provided for purposes of coordinating early entry
and permitting service initiation are discussed
infra, Section 3.
23 See
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band?25 Should Federal agencies be
required to highlight particular
circumstances about which licensees
might not otherwise know, such as the
fact that replacement equipment is
under development and is not
commercially available, or the existence
of nationwide, airborne, or classified
systems?
Under existing procedures, OMB
reviews agency cost and time estimates
in consultation with NTIA before they
are submitted to Congress.26 Would
future relocations benefit from more
detailed information regarding agency
transition plans in addition to what is
currently incorporated in CSEA?
Federal agencies have estimated time
lines for vacating the spectrum to which
they are expected to adhere. Are details
regarding agency transition plans
relevant primarily to an assessment of
the possibility of early entry? If so, to
what extent would the disclosure of
such details prior to the auction affect
auction bidding?
b. Transparency
i. Effect on bidding
Security requirements necessitated
the classification of some information
regarding affected Federal systems. That
information was therefore withheld
prior to the auction.27 Other data in
NTIA files related to many other Federal
systems that have been treated
previously as ‘‘Freedom of Information
Act (FOIA) Exempt.’’28 However, to
support the implementation of the
CSEA, NTIA released these data prior to
the auction.29
To what extent (if any) did a lack of
access to ‘‘classified’’ information prior
to the auction affect bidders’ ability to
participate in the auction? Is there a way
to ensure that commercial entities
understand whether sharing with
classified systems will be possible
before Federal systems are fully moved?
Can agencies, while avoiding prohibited
disclosure of classified information, still
objectively describe the risks that
25 Some AWS–1 licensees attempting early entry
apparently were unprepared for the challenges
involved in relocating incumbent video
surveillance systems that use large bandwidths and
are authorized for nationwide operation. These
characteristics significantly complicate
coordination.
26 For more explanation on this process, see the
‘‘Chronology’’ section above.
27 See generally Executive Order No. 12,958, as
amended by Executive Order No. 13,292 (2003); 68
F.R. 15,315 (Mar. 28, 2003) (procedures for
classifying, safeguarding and declassifying
information) (‘‘Classification Order’’).
28 5 U.S.C. § 552.
29 See generally ‘‘1710–1755 MHz Data — Prior to
May 22, 2006,’’ available at https://
www.ntia.doc.gov/osmhome/reports/specrelo/
pdf_Prior%20to%2020060614/data_2005.htm.
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relocation time lines will not be met or
that early entry coordination will not be
possible? Must commercial entities have
such an understanding in order to bid
in the auction? Was the release of FOIAexempt information prior to the auction
helpful?
ii. Qualitative assessment
Would bidders benefit from a
qualitative assessment by NTIA of the
ease or difficulty of early entry? What
would such an assessment entail? What
factors would need to be analyzed?
What would make early entry ‘‘easy’’ or
‘‘difficult’’? How would such an
assessment affect auction bidders’ due
diligence obligations?30
iii. Post-auction techniques
After the AWS–1 auction, Federal
agencies formulated Non-Disclosure
Agreements (NDAs) and web-based
capabilities for information
dissemination. These steps provided
additional information to a limited set
of winning bidders/licensees in support
of the early entry coordination
process.31 These tools were not
available prior to the auction. In some
cases, they included information
previously treated as FOIA exempt. No
classified material was provided via
these additional mechanisms. NTIA
seeks comment on whether, subject to
the appropriate restrictions, disclosure
of such unclassified FOIA-exempt
information could or should be made
available prior to the auction.32 Could
any additional post-auction techniques
to provide additional information be
used in advance of the auction? Parties
commenting on this question should
detail the types of practices and
methods, including legal instruments
and information technology-based
30 Under the FCC due diligence obligations
applicable to the AWS–1 auction, potential bidders
are solely responsible for investigating the factors
that may bear on the value of the licenses.
Applicants in the AWS–1 auction were cautioned
that operations had to be protected or relocated and
that such limitations could restrict the ability to use
certain portions of the spectrum or to provide
service in certain geographic areas. Public Notice,
‘‘Auction of Advanced Wireless Services Scheduled
for June 29, 2006,’’ AU Docket No. 06–30, FCC 06–
47 (Apr. 12, 2006), ¶¶ 37–47, https://hraunfoss.fcc.
gov/edocs_public/attachmatch/FCC–06–47A1.pdf,
modified on other grounds, Public Notice, ‘‘Auction
of Advanced Wireless Services Licenses
Rescheduled for August 9, 2006,’’ AU Docket No.
06–30, FCC 06–71 (May 19, 2006).
31 An NDA allowed an agency, prior to complete
relocation, to share additional technical material on
its operations as well as further information on
sensitive operations, subject to certain conditions.
See infra Section 3.a.v.B.
32 See generally ‘‘Memorandum for the Heads of
Executive Departments and Agencies: Freedom of
Information Act’’ (Jan. 21, 2009), available at https://
www.whitehouse.gov/the_press_office/
FreedomofInformationAct/.
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mechanisms that would be helpful here.
To what extent do pre-auction
competitive and anti-collusion concerns
hinder the use of such techniques?
c. Communications
i. Information exchange
Prior to the AWS–1 auction, NTIA
scheduled meetings with affected
Federal agencies, and initially consulted
with wireless associations regarding
relocation efforts. Should NTIA expand
its pre-auction procedures in the future
to encompass regular information
exchanges among potential bidders or
wireless associations and affected
agencies? How can NTIA ensure that it
reaches small and minority-owned
businesses that may benefit from
purchasing auctioned spectrum? Would
future relocation efforts benefit from
outreach to wireless associations prior
to the auction? Would such an effort
help centralize, prioritize, and expedite
requests for early entry from
forthcoming auction winners?33 Parties
commenting on this question should
specify the type of information that
should be exchanged, the appropriate
parties and groups to be included, and
the venue and frequency for such
exchanges.
ii. Standardization
For AWS–1, some agencies developed
templates and forms expanding the
licensee data required in the Joint
Public Notice and related FCC rules.34
Were these templates useful without
being overly burdensome? What aspects
of these forms should be retained? Are
there ways in which they can be
improved? Should they remain ad hoc
in nature or be standardized across all
agencies? Can such standardized forms
be developed prior to future auctions, to
eliminate any lag in the early entry
coordination process?
The 1710–1755 MHz band
incumbents are largely fixed microwave
operations. The Joint Public Notice and
FCC rules require the interference
analysis methodology and criteria
specified in Telecommunications
Industry Association (TIA)
Telecommunications Systems (TSB)
Bulletin 10–F.35 That analysis applies to
sharing between fixed systems and
between fixed and mobile systems. It
was used to assess potential interference
33 Issues related to the possible value of expanded
communications with licensees after the auction in
connection with early entry issues are discussed
further infra Section 3.a.vi.
34 See infra Section 3.a.vi.B.
35 See Joint Public Notice, supra note 10. See also
47 C.F.R. § 27.1134(b). The Joint Public Notice
noted that the parties could agree to an alternative
method where this standard did not apply.
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arising from licensee operations prior to
the scheduled relocation date. Did this
analysis prove useful, and should it be
used in future, similar auctions? If not,
what would help?
NTIA also seeks comment on how to
address coordination between licensees
and incumbents in future relocations
where established sharing methodology
or criteria does not exist. Would overthe-air testing prior to the auction and
prior to a determination of winning
bidders and their specific technical
plans provide useful information?36
What role, if any, should NTIA play in
any such testing?
iii. Guidance
Successful spectrum relocation under
the CSEA necessitates that diverse
Federal and non-Federal entities
harmonize procedures and terminology.
Is there a need for NTIA, the FCC, and
OMB to provide clarifying guidance to
both licensees and agencies before the
auction beyond what has been provided
in OMB Circular A–11 and OMB
Memorandum M–09–01, as well as
through informal channels such as
interagency meetings?37 Would such
guidance ensure that all affected parties
understand terminology and processes?
Should NTIA, alone or in
collaboration with other oversight
agencies, sponsor training for agency
headquarters and field personnel?
Should NTIA prepare or collaborate
with wireless industry associations to
provide training for relevant commercial
entities? Such pre-auction training
might also clarify terminology,
interpretation, and procedure. Would
such training improve the auction and
early-entry processes? Interested parties
are asked to comment on appropriate
sponsors and topics for such training,
and whether it should be mandatory.
d. Starting the Clock
Under the CSEA, the auction of
Federal frequencies must raise at least
110 percent of the estimated relocation
costs of affected agencies, or the auction
will be canceled.38 Until that threshold
36 See infra Section 3.a.vi.B for a related
discussion from a post-auction perspective.
37 Executive Office of the President, Office of
Management and Budget, Circular No. A–11,
Preparation, Submission, and Execution of the
Budget, (June 2008 rev.), available at https://
www.whitehouse.gov/omb/circulars/a11/
current_year/a_11_2008.pdf; Executive Office of the
President, Office of Management and Budget,
Memorandum for Heads of Executive Departments
and Agencies, M–09–01, available at https://
www.whitehouse.gov/omb/assets/omb/
memoranda/fy2009/m09–01.pdf. See infra Section
3.b for a related discussion from the post-auction
perspective.
38 CSEA, § 203 (b) 118 Stat. 3994, 47 U.S.C. § 309
(j) (15) (B).
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is reached, Federal agencies cannot be
sure that their expenses will be
reimbursed. Thus, an agency
undertaking initial tasks in advance of
an auction does so at the risk of not
being recompensed. Such tasks may
include project management, technical
studies, training, development of
software tools, or the hiring of
additional personnel. Can Federal
agencies draw from private-sector
experience and methodology to ensure
that their estimated costs and time lines
are as accurate as possible, and that they
are prepared to tackle relocation in a
timely manner? If so, what should be
done?
e. NTIA’s Role
NTIA regulates the Federal
government’s use of radio stations and
associated radio frequency spectrum.39
The CSEA confers oversight powers on
NTIA, in consultation with OMB, with
respect to relocation efforts.40 Prior to
the AWS–1 auction, NTIA compiled
estimated relocation costs and time
lines, as the CSEA requires, and
consulted with Federal agencies and the
industry. NTIA published these data on
its website and continues to update this
material periodically.41 Parties are
asked to comment on NTIA’s role in the
pre-auction phase of CSEA
implementation. Is there additional or
different information NTIA should
provide? In retrospect, was the
information accurate? What could be
done to make the information more
accurate or useful? Are post-auction
updates useful to licensees? To others?
3. Post-Auction Issues
a. Early Entry
i. Background
The CSEA permits the grant of an FCC
license to auction winners on
reallocated spectrum even if agencies
continue to operate in the band,
provided there is no harmful
interference to agency operations.42
Under the CSEA, ‘‘eligible costs’’ subject
to SRF reimbursement may include
‘‘one-time costs of any modification of
equipment’’ reasonably necessary to
accommodate early entry.43 They also
include costs associated with
Manual, supra note 15, § 1.1.
supra note 15.
41 See generally ‘‘1710–1755 MHz Introduction,’’
available at https://www.ntia.doc.gov/osmhome/
reports/specrelo/index.htm. See also Section 2.a,
supra.
42 CSEA, § 203 (b) (C), 118 Stat. 3994, 47
U.S.C.§ 309 (j) (15) (c). The Joint Public Notice
established coordination procedures for early entry.
See ‘‘Chronology,’’ Section 2.a, and note 10, supra.
43 CSEA, § 202, 118 Stat. 3992, 47 U.S.C. § 923 (g)
(3) (D).
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40 See
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32135
‘‘accelerated replacement’’ if necessary
for ‘‘timely relocation of systems to a
new frequency assignment.’’44
As permitted under the CSEA, several
AWS–1 licensees sought to begin
operations before the estimated
relocation dates established by the
agencies.45 Licensees particularly
focused on major metropolitan areas.
Licensees expressed frustration at the
delays they encountered in coordinating
with Federal agencies.46 On the other
hand, it is NTIA’s understanding that
Federal agencies found themselves
overwhelmed by industry requests and
pressure to allow early entry. Has early
entry by licensees beginning to
implement their systems proven
important in the successful
implementation of the CSEA?
The Joint Public Notice provided a
structured process for early entry
coordination. Parties are asked to
comment on whether this created a
reasonable expectation of successful
coordination. For Federal agencies, the
CSEA requires that they meet their
estimated relocation dates and
coordinate in good faith for early entry
prior to their scheduled moves. The
agencies do not believe that the CSEA
requires that they vacate the band prior
to their estimated relocation dates at the
licensee’s request, nor that the law
guarantees successful early entry
coordination.47 In some cases, licensees
negotiated with Federal agencies in
order to expedite band clearance.
However, existing Federal operations
sometimes precluded early entry by the
licensees.48 Were Federal agencies
reasonably diligent in their early
relocation efforts? How could they be
more so? Did an expectation of
successful coordination form part of the
basis for AWS–1 auction bids? Should
bidders expect to bear all the risks
associated with early entry? What
options should be available to facilitate
early entry?
ii. FCC Process for Non-Federal
Incumbents
The FCC transitional rules applicable
to non-Federal incumbents differ from
the CSEA procedures described above.
Under the FCC rules, AWS–1 licensees
trigger the start of non-Federal
incumbent relocation efforts in the form
44 CSEA, § 202, 118 Stat. 3992, 47 U.S.C. § 923 (g)
(3) (E).
45 Agencies estimated relocation times from one
to six years. See ‘‘Chronology,’’ supra.
46 CSMAC Reallocation Report, supra note 23, at
18–21.
47 See generally id., at 19.
48 See generally id., at 18–21.
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of mandatory negotiations.49 Private
clearinghouses allow AWS–1 licensees
to share commonly incurred
reimbursement costs.50 An AWS–1
licensee may pay a premium to expedite
a non-Federal incumbent’s move. If the
payment, however, exceeds the
clearinghouse ‘‘cost-sharing cap,’’ other
AWS–1 licensees also benefitting from
the relocation would only have to make
payments on a pro-rata basis up to the
cap. We seek comment on how the
Federal and non-Federal approaches to
compensating incumbents for relocation
expenses compare.51
iii. Incentives
A. Market-based incentives
NTIA seeks comment on whether any
of the market-based incentives operative
in the non-Federal clearance process
could be applied to expedite Federal
agency relocation. The CSEA allows
recovery of some costs associated with
interim changes accommodating early
entry prior to scheduled Federal
relocation. These include one-time costs
of equipment modification necessary for
early entry and costs associated with
accelerated replacement of systems and
equipment.52 Are these provisions
sufficient?
B. Benchmarks and other noneconomic approaches
The CSEA requires agencies to
estimate relocation times. Were
relocation estimates for AWS–1
generally accurate? How might they be
improved in the future? NTIA seeks
comment on whether standards,
expressed or implied, for assessing the
reasonableness of these times, can be
drawn from the statute. How, as a
practical matter, might NTIA and OMB
ensure that relocation time estimates
provide that agencies vacate the
spectrum as expeditiously as possible?
49 This period is two years for fixed microwave
incumbents and three years for Broadband Radio
Service (BRS) licensees. 47 C.F.R. § 101.69; 47
C.F.R. § 1250. Fixed microwave services operate in
the 2110–2150 MHz band. BRS operates at 2150–
2155 MHz. Parties are free to negotiate voluntarily
at any time. If the parties fail to agree within the
mandatory period, the AWS licensee may initiate
involuntary relocation procedures. The microwave
relocation rules sunset 10 years, and the BRS rules
15 years, after the first AWS–1 license is issued. At
this point, an AWS–1 licensee starting up service
within interference range may require an incumbent
to cease operation. 47 C.F.R. § 101.79(a)(1); 47
C.F.R. § 27.1253.
50 AWS–1 licensees benefitting from another
licensee’s relocation of an incumbent share in those
expenses, pro-rata, subject to a ‘‘cap.’’ The FCC
established maximum amounts or ‘‘caps’’ on what
the clearinghouse could pay. ‘‘FAQs — AWS
Licensees,’’ available at https://
ww.ctiaspectrumclearinghouse.org/ctia/aws-lic.jsp.
51 See also Section 1, supra.
52 See Section 3.a.1, supra.
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The Commerce Spectrum
Management Advisory Committee
(CSMAC) recommended the adoption of
‘‘benchmarks’’ or interim clearance
requirements by which gradually
increasing percentages of a Federal
system would be vacated at certain
specified dates.53 Should NTIA
establish mandatory ‘‘benchmarks’’ or
other non-market-based incentives for
Federal agencies to use in vacating the
spectrum? Would benchmarks of this
nature help move relocation forward or
provide meaningful certainty to
bidders? What other benchmarks might
be useful? Would benchmarks
contradict the CSEA procedures
allowing agencies to estimate their own
relocation times, subject to OMB and
NTIA review? Should any such
benchmarks be service-specific, taking
account of the relative ease or difficulty
of relocating different types of
operations? Parties advocating for
benchmarks should indicate how an
entrant would use them, point to
analogous FCC or other precedent, and
explain how benchmarks have been
used in the past. In particular, NTIA
seeks input on how benchmarks could
be enforced in a meaningful way.
iv. Adequacy of Data
The Joint Public Notice detailed the
coordination process for licensees to use
in early entry. This process, if
successful, permits AWS–1 licensees to
access the 1710–1755 MHz band prior to
the estimated agency relocation dates.
The Joint Public Notice referenced
additional material available on NTIA’s
website providing geographic location,
frequency bands, and other
information.54 NTIA seeks comment on
the adequacy of this information for
purposes of coordinating early entry and
permitting licensees to begin
deployment.55 What information might
be added? What aspects of the
coordination process established in the
Joint Public Notice succeeded and
which might be improved?
Parties are asked to detail any
supplementary information that would
facilitate sharing of the spectrum prior
to the agency’s scheduled relocation
time. Once winning bidders are
determined, should commercial entities
be required to exchange information
regarding their operational plans as part
of the coordination process? Such
information might enable Federal
agencies to reduce the additional agency
53 CSMAC Reallocation Report, supra note 23 at
24–25.
54 Joint Public Notice, supra note 10.
55 For a discussion of how adequacy of this
information might affect bidding, see supra Section
2.a.
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data needed to facilitate early entry.
Parties are asked to comment on this
tentative view, and on any competitive
or proprietary issues it may raise. What
licensee information, if any, should be
shared, and if so, at what point and by
what mechanisms?
v. Transparency
A. Post-auction considerations
After a successful auction, the number
of commercial entities potentially
interested in classified or otherwise
restricted data on incumbent Federal
operations narrows to a group of
successful bidders with specific
deployment plans and operational
needs. The Federal agencies developed
distinct techniques for releasing
additional information to this smaller
group. NTIA seeks comment on the
validity of this general distinction
between pre-auction and post-auction
releasability of data. Does this
distinction generally allow Federal
agencies to provide more data after the
auction? Did these post-auction
techniques succeed, and how might
they be improved? Should there be a
standardized process for releasing
otherwise restricted data after licenses
are awarded?
B. Non-disclosure agreements
The Joint Public Notice provided that
AWS–1 licensees could enter into NonDisclosure Agreements (NDAs) with
Federal agencies after the auction.56 An
NDA allowed an agency, prior to
complete relocation, to share additional
technical material on its operations as
well as further information on otherwise
sensitive data. NTIA seeks comment on
whether this process should be retained.
Can it be improved? If so, how?
C. Other mechanisms
NTIA seeks comment on other
possible mechanisms for exchanging
information on classified or otherwise
restricted data. In lieu of NDAs, some
agencies developed web-based
capabilities to facilitate coordination
with licensees.57 This allowed an
assessment of potential interference to
Federal systems without revealing
restricted material. Were these
techniques successful? Such web-based
capabilities require licensees to provide
detailed, accurate data regarding their
operational plans. Provision of this data
may permit an agency to assess
accurately and quickly the potential for
interference to their operations, and to
56 Joint
Public Notice, supra note 10, at 4.
CSMAC has recommended the use of
automated procedures or other secure online
capabilities for facilitating the sharing of classified
information. See CSMAC Reallocation Report,
supra note 23, at 21–22.
57 The
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notify the licensee accordingly. Does
this additional data demand raise
competitive and proprietary concerns
for licensees? If so, how can such
concerns be lessened?
Parties addressing the disclosure of
classified or otherwise sensitive
information should reference relevant
Federal rules and statutes.58
Commenters are encouraged to cite
specific examples of mechanisms that
have either worked or failed.
vi. Communications
Both Federal agencies and licensees
cite poor communications as a
fundamental cause of early entry issues.
It is NTIA’s understanding that Federal
agencies noted intense pressure, floods
of requests, and inaccurate data from
licensees. Licensees, in turn, remark
about bureaucratic delays, lack of
assigned agency staff, and divergent
agency practices.59 In general, how
could communications related to early
entry activities be improved?
A. Information exchange
NTIA has held monthly meetings
among affected Federal agencies since
the AWS–1 auction. Should NTIA
expand these to include regular
information exchanges among both
licensees and agencies to address
problems and assess progress? How
would such meetings affect licensees’
competitive concerns? Parties are asked
to comment on what the frequency and
scope of such meetings would be.
Agencies claim that they were
inundated with simultaneous early
entry requests.60 Would it help to
require a date certain notification to
agencies of license award, company,
and contact information and the need
for coordination? Should licensees be
required to prioritize when submitting
large numbers of such requests at the
same time?
Some agencies maintain that
inadequate data from licensees for
coordination purposes hindered early
deployment. To what extent did this
inadequacy proceed from competitive or
proprietary concerns which hampered
full information exchange? What types
of data — for example, contact
information, implementation schedules,
network characteristics, technical
parameters, duty cycles — would be of
assistance? How can agencies correctly
understand licensee early entry aims,
while at the same time protect
58 See, e.g., Classification Order, supra note 27; 5
U.S.C. § 552.
59 See generally CSMAC Reallocation Report,
supra note 23 at 18–21.
60 See generally id., at 13, 19.
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competitive sensitivities? What types of
information or procedures might help?
B. Standardization and
centralization
Parties are asked to comment on the
value of automation in improving
transparency of communications.61
Web-based capabilities and other
Information Technology-based
mechanisms may provide a way to
streamline the coordination process.
Should Federal agencies be encouraged
to adopt these? Should OMB, the FCC,
and NTIA create a centralized Federal
website to provide uniform guidance on
process, eligible costs, coordination, and
other CSEA implementation matters?
The methodology and interference
criteria specified in TIA TSB 10–F
provided a standard approach for
assessing potential interference to
Federal fixed microwave systems.62
Some agencies also developed templates
and forms for licensee interactions,
following agency-specific testing and
determination of particular interference
parameters. Such uniformity can help
avoid time-consuming case-by-case
analyses. Is there a way to standardize
interference parameters across agencies
for the same incumbent service? What if
a widely accepted standard, such as the
TIA TSB 10–F, is not available for the
service at issue?
Would it be useful to permit testing as
a means of verifying the results of
interference analyses in ‘‘real world’’
conditions? If so, when should such
testing be permitted?
b. Guidance
Licensees have noted the lack of
agency personnel dedicated to
relocation matters, with the result that
agency interactions may prove dilatory
or unproductive.63 Section 2.c.iii above
addresses the need for pre-auction
training and guidance. Is there a need
for ongoing and standardized guidance
as the relocation process progresses
post-auction? What sort of guidance
would prove useful in answering
specific or novel implementation
questions regarding early entry and
related matters as they occur?
c. NTIA’s Role
Where necessary, NTIA facilitated
coordination efforts between AWS–1
licensees and Federal incumbents, and
left the ultimate decision-making to the
parties themselves. On the non-Federal
side, AWS–1 licensees are required to
negotiate directly with individual
also supra Section 3.a.v.C.
supra Section 2.c.ii.
63 CSMAC Reallocation Report, supra note 23, at
13.
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61 See
62 See
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32137
incumbents. Please comment regarding
the adequacy of NTIA’s efforts to
support coordination. The CSMAC has
suggested that relocation activities,
including licensee interface, be
centralized in NTIA.64 Do
circumstances differ for direct licenseeFederal incumbent interaction such that
NTIA should increase its leadership
role?
Throughout the 1710–1755 MHz
relocation process, NTIA has served
multiple roles. Often, NTIA acts as a
liaison for licensees seeking additional
information or accelerated clearance
from agencies. NTIA also coordinates
with OMB and the FCC regarding
appropriate policies and procedures.
NTIA provides guidance to the Federal
agencies based on its own expertise, and
the advice of OMB and the FCC. In light
of NTIA’s institutional expertise, the
CSMAC recommended that NTIA
assume a greater leadership role in this
process.65 NTIA seeks comment on its
role as a liaison between AWS–1
licensees and Federal agencies in early
entry matters. What additional
responsibilities or roles should NTIA
assume in this process? What are the
potential benefits or pitfalls of such
additional responsibility(ies)? With
respect to offering guidance on
relocation policies and procedures, are
there ways in which NTIA might
improve its efforts?66
d. Other Funding and Administrative
Issues
i. Long-term lease costs
Federal spectrum management
policies encourage Federal agencies to
use commercial services whenever
feasible.67 One Federal agency replaced
existing fixed microwave systems
having an estimated 12-year life with
commercial telephony leases entailing
recurring monthly charges. However, in
the 1710–1755 MHz relocation, payment
of costs is limited to one-time relocation
costs.68 Does this limitation hinder or
delay the entry of commercial services
in the band?69
ii. Spectrum-efficient technologies
The CSEA is based on payment of
costs to relocate Federal systems to new
64 Id.,
at 23.
65 Id.
66 See
supra Section 3.b.
Manual, supra note 15, § 2.3.3.
68 The SRF may pay ‘‘relocation’’ costs. These
include costs necessary to achieve ‘‘comparable
capability’’ regardless if that entails a new
frequency assignment or use of an alternative
technology. CSEA, §§ 204 (c), 202, 118 Stat. 3994,
3992, 47 U.S.C. §§ 928, 923 (g) (3).
69 One alternative might be to use the eight-year
CSEA ‘‘sunset’’ date. See ‘‘Chronology,’’ supra.
67 NTIA
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spectrum. In the case of the 1710–1755
MHz band, this involved moving
Federal systems completely out of the
allocated band. It is possible, however,
that technological advances or more
spectrum-efficient techniques, if
implemented across all Federal agencies
or entire services, may permit increased
consolidation or sharing among Federal
agencies. This, in turn, could result in
release of additional spectrum that
could be auctioned for commercial
services. Under this approach the
Federal users might still remain in the
band. Could this approach result in the
potential for increased opportunities to
accommodate new commercial services?
Are there other approaches to
accommodating new commercial
services in bands used by the Federal
government?
e. Urban versus Rural Relocation
Federal policies favor nationwide
availability of advanced services.70
Advanced wireless industry efforts to
transition agencies thus far, however,
appear to have concentrated on
populated areas. To date, agencies in
remote areas for the most part have been
able to accommodate buildouts through
the coordination process.71 In the
future, should Federal/non-Federal
sharing in remote regions substitute for
outright reallocation? How would
continued Federal use hinder
commercial deployment in remote
areas?
Dated: June 30, 2009.
Anna M. Gomez,
Deputy Assistant Secretary for
Communications and Information.
[FR Doc. E9–15870 Filed 7–6–09; 8:45 am]
BILLING CODE 3510–60–S
70 See generally White House, Technology, ‘‘Drive
Economic Growth and Solve National Problems by
Deploying a 21st Century Infrastructure,’’ available
at www.whitehouse.gov/issues/technology; Press
Release, NTIA, ‘‘Vilsack, Copps and Wade Kick Off
American Recovery and Reinvestment Act’s
Broadband Initiative’’ (Mar. 10, 2009) available at
https://www.ntia.doc.gov/press/2009/
BTOP_RFI_090310.pdf.
71 See generally Second Annual Relocation
Report, supra note 5, at A–1 and n. 2 (USDA
extensions of relocation time lines in remote areas
did not impact commercial deployment).
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For assistance, call toll-free 1–866–208–
3372.
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
Kimberly D. Bose,
Secretary.
[FR Doc. E9–15892 Filed 7–6–09; 8:45 am]
[Project No. 3633–037]
BILLING CODE 6717–01–P
Alternative Energy Associates Limited
Partnership; KC Brighton LLC; Notice
of Application for Transfer of License,
and Soliciting Comments, Motions To
Intervene, and Protests
June 26, 2009.
On June 8, 2009, Alternative Energy
Associates Limited Partnership
(Transferor) and KC Brighton LLC
(Transferee) filed a joint application for
transfer of license of the Brighton Dam
Project. The Project is located on the
Patuxent River in Howard and
Montgomery Counties, Maryland.
Applicants seek Commission approval
to transfer the license for Brighton Dam
Project from Alternative Energy
Associates Limited Partnership to KC
Brighton LLC.
Applicant Contact: For Transferor,
Alternative Energy Associates Limited
Partnership, Barbara Exter, Alternative
Energy Associates Limited Partnership,
123 Piano Drive, Newark, DE 19713–
1984, telephone (302) 293–9544.
For Transferee, KC Brighton LLC,
Kelly W. Sackheim, KC Brighton LLC,
5096 Cocoa Palm Way, Fair Oaks, CA
95628–519, telephone (916) 267–5937.
FERC Contact: Patricia W. Gillis, (202)
502–8735.
Deadline for filing comments,
protests, and motions to intervene: 30
days from the issuance of this notice.
Comments and motions to intervene
may be filed electronically via the
Internet. See 18 CFR 385.2001(a)(1)(iii)
and the instructions on the
Commission’s Web site under the
‘‘e-Filing’’ link. If unable to be filed
electronically, documents may be paperfiled. To paper-file, an original and eight
copies should be mailed to: Kimberly D.
Bose, Secretary, Federal Energy
Regulatory Commission, 888 First
Street, NE., Washington, DC 20426. For
more information on how to submit
these types of filings please go to the
Commission’s Web site located at
https://www.ferc.gov/filingcomments.asp. More information about
this project can be viewed or printed on
the ‘‘eLibrary’’ link of Commission’s
Web site at https://www.ferc.gov/docsfiling/elibrary.asp. Enter the docket
number (P–3633–037) in the docket
number field to access the document.
PO 00000
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DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
[Docket No. CP09–433–000; PF09–4–000]
Fayetteville Express Pipeline LLC;
Notice of Application
June 26, 2009.
Take notice that on June 15, 2009,
Fayetteville Express Pipeline LLC
(Fayetteville Express), 500 Dallas Street,
Suite 1000, Houston, Texas 77002, filed
an application in Docket No. CP09–433–
000 pursuant to section 7(c) of the
Natural Gas Act (NGA), and parts 157
and 284 of the Commission’s regulations
requesting: (1) Authorization to
construct and operate a new
approximately 185-mile, 42-inch natural
gas pipeline located in Arkansas and
Mississippi capable of transporting up
to 2,000,000 Dth/day; (2) a blanket
certificate authorizing Fayetteville
Express to engage in certain selfimplementing routine activities under
part 157, subpart F, of the Commission’s
regulations; and (3) a blanket certificate
authorizing Fayetteville Express to
transport natural gas, on an open access
and self-implementing basis, under part
284, subpart G of the Commission’s
regulations. Additionally, Fayetteville
Express seeks approval of its proposed
recourse rates, and pro forma tariff, all
as more fully set forth in the application
which is on file with the Commission
and open for public inspection.
Any questions regarding the
applications should be directed to
Ronald Brown, Vice President,
Fayetteville Express Pipeline LLC, 500
Dallas Street, Suite 1000, Houston,
Texas 77002; telephone: (713) 369–9290
or e-mail:
ronald_brown@kindermorgan.com.
The filing is available for review at
the Commission in the Public Reference
Room or may be viewed on the
Commission’s Web site Web at https://
www.ferc.gov using the eLibrary link.
Enter the docket number excluding the
last three digits in the docket number
field to access the document. For
assistance, contact FERC at
FERCOnlineSupport@ferc.gov or call
toll-free, (886) 208–3676 or TYY, (202)
502–8659.
E:\FR\FM\07JYN1.SGM
07JYN1
Agencies
[Federal Register Volume 74, Number 128 (Tuesday, July 7, 2009)]
[Notices]
[Pages 32131-32138]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-15870]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration
[Docket No. 0906231085-91085-01]
Relocation of Federal Systems in the 1710-1755 MHz Frequency
Band: Review of the Initial Implementation of the Commercial Spectrum
Enhancement Act
AGENCY: National Telecommunications and Information Administration.
ACTION: Notice of Inquiry.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Commerce's National Telecommunications
and Information Administration (NTIA) seeks comment on the initial
implementation of the Commercial Spectrum Enhancement Act (CSEA).\1\
The CSEA, which was enacted in 2004, created an innovative funding
mechanism allowing Federal agencies to recover the costs of relocating
their radio systems from the proceeds of the auction of the radio
spectrum vacated. The first auction under the CSEA, that of the 1710-
1755 MHz band, concluded in 2006, providing new opportunities for
Advanced Wireless Services (AWS-1). Over two years into the relocation
of Federal systems from this band, NTIA requests information on what
implementation steps should be retained as best practices, what lessons
have been learned, and what, if any, improvements should be made in
future relocations under the CSEA.
---------------------------------------------------------------------------
\1\ Title II, Pub. Law No. 108-494, 118 Stat. 3986, 47 U.S.C.
Sec. Sec. 309 (j) (3), 921, 923, 928 and note (annual report
requirement).
---------------------------------------------------------------------------
DATE: Comments are requested on or before August 21, 2009, 2009.
ADDRESSES: Parties may mail written comments to Gary Patrick, Spectrum
Engineering and Analysis Division, Office of Spectrum Management,
National Telecommunications and Information Administration, U.S.
Department of Commerce, 1401 Constitution Avenue, N.W., Room 6725,
Washington, DC 20230, with copies to Gina Harrison, Esq., Office of
Spectrum Management, National Telecommunications and Information
Administration, U.S. Department of Commerce, 1401 Constitution Avenue,
N.W., Room 4099, Washington, DC 20230. Alternatively, comments may be
submitted in Microsoft Word format electronically to
csealessonslearned@ntia.doc.gov. Comments will be posted on NTIA's
website at https://www.ntia.doc.gov and regulations.gov.
FOR FURTHER INFORMATION CONTACT: Gary Patrick, National
Telecommunications and Information Administration, U.S. Department of
Commerce, 1401 Constitution Avenue, N.W., Room 6725, Washington, DC
20230 or Gina Harrison, Esq., National Telecommunications and
Information Administration, U.S. Department of Commerce, 1401
Constitution Avenue, N.W., Room 4099, Washington, DC 20230; telephone
(202) 482-9132 or (202) 482-2695; or email: gpatrick@ntia.doc.gov or
rharrison@ntia.doc.gov.
SUPPLEMENTARY INFORMATION:
Overview
NTIA decided to reallocate the 1710-1755 MHz band to commercial use
in
[[Page 32132]]
1995.\2\ However, the decision could not be implemented until 2004,
when enactment of the CSEA provided a streamlined means to pay for the
relocation of Federal systems. The CSEA created the Spectrum Relocation
Fund (SRF).\3\ The SRF uses the proceeds from the commercial auction of
relinquished spectrum to reimburse Federal agencies required to vacate
the spectrum.
---------------------------------------------------------------------------
\2\ NTIA, Spectrum Reallocation Final Report: Response to Title
IV-Omnibus Budget Reconciliation Act of 1993 (Feb. 1995), available
at https://www.ntia.doc.gov/openness/contents.html.
\3\ CSEA, Sec. 204, 118 Stat. 3994, 47 U.S.C. Sec. 928.
---------------------------------------------------------------------------
The CSEA and the SRF it created help solve a recurrent spectrum
management dilemma, the problem of clearing incumbents from a portion
of the spectrum. Such transition issues can stymie efforts to bring
new, improved uses of spectrum into service.\4\ By enhancing the
efficiency of the Federal relocation process, the CSEA provides three
concurrent benefits. Commercial firms and consumers benefit from
expediting the process for freeing additional radio frequencies for new
or expanded services. Federal agencies benefit from the funds the SRF
provides for state-of-the-art systems they will use in new spectrum
locations. Finally, the CSEA assists in the Federal budget process by
providing that unused spectrum auction receipts revert to the
Treasury's general fund.
---------------------------------------------------------------------------
\4\ ``800 MHz Transition May Drag on Until 2012, Some Say,'' TR
Daily (Feb. 17, 2009); Order, Improving Public Safety Communications
in the 800 MHz Band, WT Docket No. 02-55, FCC 08-253 (rel. Oct. 30,
2008), available at 2008 Lexis 7625; Order, Improving Public Safety
Communications in the 800 MHz Band, WT Docket No. 02-55, FCC 09-35
(Apr. 20, 2009), available at https://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-35A1.doc.
---------------------------------------------------------------------------
On September 18, 2006, the Federal Communications Commission (FCC)
concluded the first auction conducted under the CSEA, the AWS-1
auction, including 1710-1755 MHz. The auction of the Federal spectrum
raised $6.85 billion out of $13.7 billion in net winning bids from
Federal and non-Federal auctioned spectrum combined. Opening the band
to commercial use will spur new wireless services.
In March 2007, the Office of Management and Budget (OMB), in
consultation with NTIA and based on Federal agency estimates of
relocation costs, transferred slightly over $1 billion from the SRF to
12 Federal agencies to relocate their systems out of the 1710-1755 MHz
band.\5\ This first implementation of the CSEA has been ongoing for
over two years. NTIA takes this opportunity to solicit public comment
on how the CSEA has functioned so far.
---------------------------------------------------------------------------
\5\ There are 1,990 frequency assignments associated with the
Federal systems to be relocated from the 1710-1755 MHz band. The 12
relocating agencies are Department of Agriculture (USDA), Department
of Defense, Department of Energy, Federal Aviation Administration,
Department of Homeland Security, Department of Housing and Urban
Development, Department of the Interior, Department of Justice,
National Aeronautics and Space Administration, Department of the
Treasury, Tennessee Valley Authority, and United States Postal
Service. As of December 2008, Federal agencies had spent
$174,126,082 from the SRF. NTIA, 1710-1755 MHz Band Relocation:
Second Annual Progress Report (Mar. 2009) (``Second Annual
Relocation Report''), available at https://www.ntia.doc.gov/reports/Final2ndAnnualRelocation Report20090416.pdf.
---------------------------------------------------------------------------
This Notice of Inquiry (NOI) first invites interested parties to
comment on the overall performance of the Federal relocation process.
The NOI then divides the issues among those arising before and after
the auction. Issues regarding the adequacy and transparency of data,
sufficiency of communications, guidance with respect to the relocation
process, and NTIA's role, arise both ``Pre-Auction'' and ``Post-
Auction.'' The Post-Auction section addresses a number of additional
issues, including ``early entry'' of licensees prior to a Federal
agency's scheduled date to vacate the band. In some cases, ``Pre-
Auction'' events may have had ``Post-Auction'' effects. In other cases,
``Post-Auction'' circumstances may shed light on the value of pre-
auction information and on the level of bidding. Thus, NTIA asks
commenters to analyze CSEA implementation from both cause-and-effect
and ``feedback'' perspectives.
Chronology
The CSEA requires the FCC to notify NTIA at least 18 months in
advance of an auction of eligible frequency bands.\6\ In December 2004,
the FCC notified NTIA that the auction of the 1710-1755 MHz band would
begin as early as June 2006.\7\
---------------------------------------------------------------------------
\6\ CSEA, Sec. 202, 118 Stat. 3992, 47 U.S.C. Sec. 923 (g) (4)
(A).
\7\ Letter from Michael K. Powell, Chairman, Federal
Communications Commission to the Honorable Michael D. Gallagher,
Assistant Secretary for Communications and Information, and
Administrator, National Telecommunications and Information
Administration (Dec. 29, 2004).
---------------------------------------------------------------------------
Under the CSEA, at least six months prior to the auction, NTIA, on
behalf of the Federal agencies and after review by OMB, must provide
the FCC and Congress the estimated costs and time lines for relocating
Federal agencies from affected spectrum.\8\ NTIA complied with these
requirements in December 2005.\9\
---------------------------------------------------------------------------
\8\ CSEA, Sec. 202, 118 Stat. 2992-93, 47 U.S.C. Sec. 923 (g)
(4) (A) (5).
\9\ Public Notice, ``Commerce Releases Costs to Open Up Spectrum
for Advanced Wireless Broadband Services,'' available at https://www.ntia.doc.gov/ntiahome/press/2005/relo_12282005.htm. See
generally ``1710-1755 MHz Introduction,'' available at https://www.ntia.doc.gov/osmhome/reports/specrelo/index.htm (updated list of
affected Federal frequency assignments and other data). For a
related discussion, see infra Section 2.a.
---------------------------------------------------------------------------
In April 2006, prior to the auction, NTIA and the FCC published a
Joint Public Notice providing guidance to assist AWS-1 licensees and
Federal incumbents in the post-auction coordination process. One of the
purposes of that Joint Public Notice was to permit licensees access to
the band in advance of estimated relocation dates, subject to the
completion of successful coordination with the incumbents.\10\ The FCC
concluded the auction on September 18, 2006.\11\
---------------------------------------------------------------------------
\10\ Federal Communications Commission and NTIA -- Coordination
Procedures in the 1710-1755 MHz Band, 21 FCC Rcd 4730 (Apr. 20,
2006) (``Joint Public Notice''). Access to a band by licensees prior
to relocation of incumbents is sometimes referred to as ``early
entry.''
\11\ ``Auction 66, Advanced Wireless Services (AWS-1),''
available at https://wireless.fcc.gov/auctions/default.htm?job=auction_factsheet&id=66.
---------------------------------------------------------------------------
On February 16, 2007, OMB reported the cost and time estimates of
relocating incumbent systems in the 1710-1755 MHz band to Congress. The
CSEA provides that unless disapproved within 30 days, SRF funds shall
be available immediately.\12\ OMB consequently transferred funds from
the SRF to individual agencies, and calculated the start time for
relocation activities as the date the funds transferred to the agency's
account.\13\
---------------------------------------------------------------------------
\12\ CSEA, Sec. 204, 118 Stat. 3995, 47 U.S.C. Sec. 928(d)
(2).
\13\ The CSEA provides that amounts transferred from the SRF to
a Federal agency be credited to the appropriations ``account'' of
the agency. Id. Sec. 928 (e) (C).
---------------------------------------------------------------------------
The CSEA sets no firm date by which incumbent Federal agencies must
vacate spectrum. Pursuant to the CSEA, however, Federal agencies in the
1710-1755 MHz band estimated relocation times from one to six
years.\14\ The CSEA provides that eight years after deposit of auction
proceeds into the SRF, any remaining proceeds revert to the general
fund of the Treasury.\15\
---------------------------------------------------------------------------
\14\ ``Report to Congress by the Office of Management and Budget
on Agency Plans for Spectrum Relocation Funds Pursuant to the
Commercial Spectrum Enhancement Act'' (Feb. 16, 2007) available at
https://www.ntia.doc.gov/reports/2007/OMBSpectrumRelocationCongressionalNotification_final.pdf.
\15\ CSEA, Sec. 204 (d) (3), 118 Stat. 3995, 47 U.S.C. Sec.
928 (d) (3). NTIA may terminate a frequency authorization if it
finds that an agency has unreasonably failed to comply with OMB-
approved time lines. CSEA, Sec. Sec. 202, 203(b), 118 Stat. 3993-
94, 47 U.S.C. Sec. Sec. 923 (g) (6), 309(j) (15) (D). See generally
Manual of Regulations and Procedures for Federal Radio Frequency
Management (``NTIA Manual''), Chapter O, Relocation of Federal
Government Radio Systems in Accordance with the Commercial Spectrum
Enhancement Act, available at https://www.ntia.doc.gov/osmhome/redbook/O.pdf.
---------------------------------------------------------------------------
[[Page 32133]]
The time line below describes the principal stages in the 1710-1755
MHz band relocation.
Time Line -- Principal Stages in the 1710-1755 MHz Band Relocation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
PRE-AUCTION [mid] POST-AUCTION
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Proceeds Revert
AWS-1 to Treasury
NTIA Releases 1710- AUCTION OMB Report SRF Funds Early Entry Agency Estimated [horbar][horbar][rarr] General Funds
President Signs 1755 MHz Data FCC/NTIA CONCLUDES to Transferred [horbar][horbar][horbar][horbar][rarr] Relocation 8 Years from
CSEA Setting Auction JPN [verbar3] Congress to Agencies Completion [horbar][horbar][rarr] Deposit of
Reserve Price [verbar3] [verbar5] Auction Proceeds
into SRF
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[uarr] [uarr] [uarr] [uarr] [uarr] [uarr] ...................................... [uarr]
Dec Dec April Sept Feb Mar/April ...................................... Mar
2004 2005 2006 2006 2007 2007 ...................................... 2013
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
REQUEST FOR COMMENT:
NTIA requests comment on the questions below to assist in
identifying lessons to be learned and other issues and suggestions
related to the implementation of the CSEA. These questions are not a
limitation on comments that may be submitted. When references are made
to studies, research, and other empirical data that are not widely
published, commenters are asked to provide copies of the referenced
material with the submitted comments.
1. Overall Performance
As of December 31, 2008, Federal agencies had relocated
approximately 933 or 47 percent of the 1,990 Federal frequency
assignments in the 1710-1755 MHz band.\16\ Also, as of December 31,
2008, licensees registered expenses with private sector clearinghouses
for relocating a total of approximately 765 or approximately 15 percent
of the approximately 5,000 non-Federal radio frequency links in the
2110-2155 MHz band, which was paired for auction with the 1710-1755 MHz
band.\17\ Non-Federal relocation typically occurs on a link-by-link
basis at the initiation of the AWS-1 licensee, when attempts to
``engineer around'' an incumbent microwave licensee fail. Apart from
moves made in response to requests for early entry, Federal agencies
relocate on a system-wide basis under established time frames and SRF
funding. NTIA asks parties to provide their perspectives on the overall
Federal relocation effort. NTIA also seeks comment on how the nature
and speed of the Federal relocation process compares with relocation of
private sector incumbents in the 2110-2155 MHz band.
---------------------------------------------------------------------------
\16\ NTIA, 1710-1755 MHz Relocation and Schedule Summary,
available at https://www.ntia.doc.gov/osmhome/reports/specrelo/pdf_20081209/1710_1755_Relo_Costs_2008_12.pdf. One fixed microwave
link and one land mobile link each comprise two Federal assignments.
Fixed transportable and aeronautical mobile links each constitute a
single assignment.
\17\ Report of the CTIA Spectrum Clearinghouse, LLC (Jan. 30,
2009); Semi-Annual Report of the PCIA -- The Wireless Infrastructure
Association on the Status of the PCIA AWS Clearinghouse (Jan. 30,
2009), both reports available at https://www.fcc.gov/cgb/ecfs/
(search Docket 02-353).
---------------------------------------------------------------------------
2. Pre-Auction Issues
a. Adequacy of Data
The CSEA requires NTIA, at least six months prior to an auction,
``[t]o the extent practicable and consistent with national security
considerations'' to provide the FCC with relocation cost and time
estimates ``by the geographic location of the Federal entities'
facilities or systems and the frequency bands used by such facilities
or systems.''\18\ The cost data are used to set the reserve price for
the auction.\19\
---------------------------------------------------------------------------
\18\ CSEA, Sec. 202, 118 Stat. 3992-93, 47 U.S.C. Sec. 923 (g)
(4) (A), (C).
\19\ CSEA, Sec. 203 (b), 118 Stat. 3994, 47 U.S.C. Sec. 309
(j) (15) (B). ``A `reserve price' is defined as an absolute minimum
price below which an auctioneer will not sell an object being
auctioned.'' Amendment of Part 1 of the Commission's Rules --
Competitive Bidding Procedures, Third Report and Order and Second
Further Notice of Proposed Rulemaking, 13 FCC Rcd 374, ] 140 (1997),
recon. denied, 15 FCC Rcd 15293 (2000).
---------------------------------------------------------------------------
NTIA compiled cost and time estimates developed by the agencies in
compliance with this requirement, along with a list of affected Federal
assignments and other information. NTIA submitted these to the FCC and
to Congress in December 2005.\20\ NTIA also published these data on its
website and updated these published data before and after the auction.
NTIA continues to update the data periodically.\21\
---------------------------------------------------------------------------
\20\ See supra note 9.
\21\ Id.
---------------------------------------------------------------------------
In addition, prior to the auction, in April 2006, NTIA and the FCC
published a Joint Public Notice. The Joint Public Notice detailed the
early entry coordination process between AWS-1 licensees and Federal
incumbents.\22\ The early entry process has raised a number of concerns
from both Federal agencies and AWS-1 licensees.\23\ Was the Joint
Public Notice useful to AWS-1 auction bidders and, later, to licensees?
How might future such Notices be improved?
---------------------------------------------------------------------------
\22\ Joint Public Notice, supra note 10.
\23\ See generally Commerce Spectrum Management Advisory
Committee (``CSMAC''): ``Recommendations for Improving the Process
for Identifying Spectrum for Future Reallocation or Sharing,'' at
12-15, 19 (Aug. 22, 2008) (``CSMAC Reallocation Report'') available
at https://www.ntia.doc.gov/advisory/spectrum/meeting_files/081508_csmac_WG3_Report_Revised_ (clean--final).pdf.
---------------------------------------------------------------------------
NTIA seeks comment on whether the information provided prior to the
auction, both with respect to the Federal systems' relocation plans and
the process for early entry, was adequate.\24\ Commenters should
specify the type of additional information, if any, that would have
been helpful. What technical and operational information, if any, would
have better described the nature of systems to be relocated? Would
additional technical details, a glossary of spectrum management terms,
references to the NTIA Manual, or a description of the geographic area
authorized for each Federal system, have better apprised potential
bidders of the various types of operations in the
[[Page 32134]]
band?\25\ Should Federal agencies be required to highlight particular
circumstances about which licensees might not otherwise know, such as
the fact that replacement equipment is under development and is not
commercially available, or the existence of nationwide, airborne, or
classified systems?
---------------------------------------------------------------------------
\24\ Issues regarding the adequacy of information provided for
purposes of coordinating early entry and permitting service
initiation are discussed infra, Section 3.
\25\ Some AWS-1 licensees attempting early entry apparently were
unprepared for the challenges involved in relocating incumbent video
surveillance systems that use large bandwidths and are authorized
for nationwide operation. These characteristics significantly
complicate coordination.
---------------------------------------------------------------------------
Under existing procedures, OMB reviews agency cost and time
estimates in consultation with NTIA before they are submitted to
Congress.\26\ Would future relocations benefit from more detailed
information regarding agency transition plans in addition to what is
currently incorporated in CSEA?
---------------------------------------------------------------------------
\26\ For more explanation on this process, see the
``Chronology'' section above.
---------------------------------------------------------------------------
Federal agencies have estimated time lines for vacating the
spectrum to which they are expected to adhere. Are details regarding
agency transition plans relevant primarily to an assessment of the
possibility of early entry? If so, to what extent would the disclosure
of such details prior to the auction affect auction bidding?
b. Transparency
i. Effect on bidding
Security requirements necessitated the classification of some
information regarding affected Federal systems. That information was
therefore withheld prior to the auction.\27\ Other data in NTIA files
related to many other Federal systems that have been treated previously
as ``Freedom of Information Act (FOIA) Exempt.''\28\ However, to
support the implementation of the CSEA, NTIA released these data prior
to the auction.\29\
---------------------------------------------------------------------------
\27\ See generally Executive Order No. 12,958, as amended by
Executive Order No. 13,292 (2003); 68 F.R. 15,315 (Mar. 28, 2003)
(procedures for classifying, safeguarding and declassifying
information) (``Classification Order'').
\28\ 5 U.S.C. Sec. 552.
\29\ See generally ``1710-1755 MHz Data -- Prior to May 22,
2006,'' available at https://www.ntia.doc.gov/osmhome/reports/specrelo/pdf_Prior%20to%2020060614/data_2005.htm.
---------------------------------------------------------------------------
To what extent (if any) did a lack of access to ``classified''
information prior to the auction affect bidders' ability to participate
in the auction? Is there a way to ensure that commercial entities
understand whether sharing with classified systems will be possible
before Federal systems are fully moved? Can agencies, while avoiding
prohibited disclosure of classified information, still objectively
describe the risks that relocation time lines will not be met or that
early entry coordination will not be possible? Must commercial entities
have such an understanding in order to bid in the auction? Was the
release of FOIA-exempt information prior to the auction helpful?
ii. Qualitative assessment
Would bidders benefit from a qualitative assessment by NTIA of the
ease or difficulty of early entry? What would such an assessment
entail? What factors would need to be analyzed? What would make early
entry ``easy'' or ``difficult''? How would such an assessment affect
auction bidders' due diligence obligations?\30\
---------------------------------------------------------------------------
\30\ Under the FCC due diligence obligations applicable to the
AWS-1 auction, potential bidders are solely responsible for
investigating the factors that may bear on the value of the
licenses. Applicants in the AWS-1 auction were cautioned that
operations had to be protected or relocated and that such
limitations could restrict the ability to use certain portions of
the spectrum or to provide service in certain geographic areas.
Public Notice, ``Auction of Advanced Wireless Services Scheduled for
June 29, 2006,'' AU Docket No. 06-30, FCC 06-47 (Apr. 12, 2006), ]]
37-47, https://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-06-47A1.pdf, modified on other grounds, Public Notice, ``Auction of
Advanced Wireless Services Licenses Rescheduled for August 9,
2006,'' AU Docket No. 06-30, FCC 06-71 (May 19, 2006).
---------------------------------------------------------------------------
iii. Post-auction techniques
After the AWS-1 auction, Federal agencies formulated Non-Disclosure
Agreements (NDAs) and web-based capabilities for information
dissemination. These steps provided additional information to a limited
set of winning bidders/licensees in support of the early entry
coordination process.\31\ These tools were not available prior to the
auction. In some cases, they included information previously treated as
FOIA exempt. No classified material was provided via these additional
mechanisms. NTIA seeks comment on whether, subject to the appropriate
restrictions, disclosure of such unclassified FOIA-exempt information
could or should be made available prior to the auction.\32\ Could any
additional post-auction techniques to provide additional information be
used in advance of the auction? Parties commenting on this question
should detail the types of practices and methods, including legal
instruments and information technology-based mechanisms that would be
helpful here. To what extent do pre-auction competitive and anti-
collusion concerns hinder the use of such techniques?
---------------------------------------------------------------------------
\31\ An NDA allowed an agency, prior to complete relocation, to
share additional technical material on its operations as well as
further information on sensitive operations, subject to certain
conditions. See infra Section 3.a.v.B.
\32\ See generally ``Memorandum for the Heads of Executive
Departments and Agencies: Freedom of Information Act'' (Jan. 21,
2009), available at https://www.whitehouse.gov/the_press_office/FreedomofInformationAct/.
---------------------------------------------------------------------------
c. Communications
i. Information exchange
Prior to the AWS-1 auction, NTIA scheduled meetings with affected
Federal agencies, and initially consulted with wireless associations
regarding relocation efforts. Should NTIA expand its pre-auction
procedures in the future to encompass regular information exchanges
among potential bidders or wireless associations and affected agencies?
How can NTIA ensure that it reaches small and minority-owned businesses
that may benefit from purchasing auctioned spectrum? Would future
relocation efforts benefit from outreach to wireless associations prior
to the auction? Would such an effort help centralize, prioritize, and
expedite requests for early entry from forthcoming auction winners?\33\
Parties commenting on this question should specify the type of
information that should be exchanged, the appropriate parties and
groups to be included, and the venue and frequency for such exchanges.
---------------------------------------------------------------------------
\33\ Issues related to the possible value of expanded
communications with licensees after the auction in connection with
early entry issues are discussed further infra Section 3.a.vi.
---------------------------------------------------------------------------
ii. Standardization
For AWS-1, some agencies developed templates and forms expanding
the licensee data required in the Joint Public Notice and related FCC
rules.\34\ Were these templates useful without being overly burdensome?
What aspects of these forms should be retained? Are there ways in which
they can be improved? Should they remain ad hoc in nature or be
standardized across all agencies? Can such standardized forms be
developed prior to future auctions, to eliminate any lag in the early
entry coordination process?
---------------------------------------------------------------------------
\34\ See infra Section 3.a.vi.B.
---------------------------------------------------------------------------
The 1710-1755 MHz band incumbents are largely fixed microwave
operations. The Joint Public Notice and FCC rules require the
interference analysis methodology and criteria specified in
Telecommunications Industry Association (TIA) Telecommunications
Systems (TSB) Bulletin 10-F.\35\ That analysis applies to sharing
between fixed systems and between fixed and mobile systems. It was used
to assess potential interference
[[Page 32135]]
arising from licensee operations prior to the scheduled relocation
date. Did this analysis prove useful, and should it be used in future,
similar auctions? If not, what would help?
---------------------------------------------------------------------------
\35\ See Joint Public Notice, supra note 10. See also 47 C.F.R.
Sec. 27.1134(b). The Joint Public Notice noted that the parties
could agree to an alternative method where this standard did not
apply.
---------------------------------------------------------------------------
NTIA also seeks comment on how to address coordination between
licensees and incumbents in future relocations where established
sharing methodology or criteria does not exist. Would over-the-air
testing prior to the auction and prior to a determination of winning
bidders and their specific technical plans provide useful
information?\36\ What role, if any, should NTIA play in any such
testing?
---------------------------------------------------------------------------
\36\ See infra Section 3.a.vi.B for a related discussion from a
post-auction perspective.
---------------------------------------------------------------------------
iii. Guidance
Successful spectrum relocation under the CSEA necessitates that
diverse Federal and non-Federal entities harmonize procedures and
terminology. Is there a need for NTIA, the FCC, and OMB to provide
clarifying guidance to both licensees and agencies before the auction
beyond what has been provided in OMB Circular A-11 and OMB Memorandum
M-09-01, as well as through informal channels such as interagency
meetings?\37\ Would such guidance ensure that all affected parties
understand terminology and processes?
---------------------------------------------------------------------------
\37\ Executive Office of the President, Office of Management and
Budget, Circular No. A-11, Preparation, Submission, and Execution of
the Budget, (June 2008 rev.), available at https://www.whitehouse.gov/omb/circulars/a11/current_year/a_11_2008.pdf;
Executive Office of the President, Office of Management and Budget,
Memorandum for Heads of Executive Departments and Agencies, M-09-01,
available at https://www.whitehouse.gov/omb/assets/omb/memoranda/fy2009/m09-01.pdf. See infra Section 3.b for a related discussion
from the post-auction perspective.
---------------------------------------------------------------------------
Should NTIA, alone or in collaboration with other oversight
agencies, sponsor training for agency headquarters and field personnel?
Should NTIA prepare or collaborate with wireless industry associations
to provide training for relevant commercial entities? Such pre-auction
training might also clarify terminology, interpretation, and procedure.
Would such training improve the auction and early-entry processes?
Interested parties are asked to comment on appropriate sponsors and
topics for such training, and whether it should be mandatory.
d. Starting the Clock
Under the CSEA, the auction of Federal frequencies must raise at
least 110 percent of the estimated relocation costs of affected
agencies, or the auction will be canceled.\38\ Until that threshold is
reached, Federal agencies cannot be sure that their expenses will be
reimbursed. Thus, an agency undertaking initial tasks in advance of an
auction does so at the risk of not being recompensed. Such tasks may
include project management, technical studies, training, development of
software tools, or the hiring of additional personnel. Can Federal
agencies draw from private-sector experience and methodology to ensure
that their estimated costs and time lines are as accurate as possible,
and that they are prepared to tackle relocation in a timely manner? If
so, what should be done?
---------------------------------------------------------------------------
\38\ CSEA, Sec. 203 (b) 118 Stat. 3994, 47 U.S.C. Sec. 309 (j)
(15) (B).
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e. NTIA's Role
NTIA regulates the Federal government's use of radio stations and
associated radio frequency spectrum.\39\ The CSEA confers oversight
powers on NTIA, in consultation with OMB, with respect to relocation
efforts.\40\ Prior to the AWS-1 auction, NTIA compiled estimated
relocation costs and time lines, as the CSEA requires, and consulted
with Federal agencies and the industry. NTIA published these data on
its website and continues to update this material periodically.\41\
Parties are asked to comment on NTIA's role in the pre-auction phase of
CSEA implementation. Is there additional or different information NTIA
should provide? In retrospect, was the information accurate? What could
be done to make the information more accurate or useful? Are post-
auction updates useful to licensees? To others?
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\39\ NTIA Manual, supra note 15, Sec. 1.1.
\40\ See supra note 15.
\41\ See generally ``1710-1755 MHz Introduction,'' available at
https://www.ntia.doc.gov/osmhome/reports/specrelo/index.htm. See also
Section 2.a, supra.
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3. Post-Auction Issues
a. Early Entry
i. Background
The CSEA permits the grant of an FCC license to auction winners on
reallocated spectrum even if agencies continue to operate in the band,
provided there is no harmful interference to agency operations.\42\
Under the CSEA, ``eligible costs'' subject to SRF reimbursement may
include ``one-time costs of any modification of equipment'' reasonably
necessary to accommodate early entry.\43\ They also include costs
associated with ``accelerated replacement'' if necessary for ``timely
relocation of systems to a new frequency assignment.''\44\
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\42\ CSEA, Sec. 203 (b) (C), 118 Stat. 3994, 47 U.S.C.Sec. 309
(j) (15) (c). The Joint Public Notice established coordination
procedures for early entry. See ``Chronology,'' Section 2.a, and
note 10, supra.
\43\ CSEA, Sec. 202, 118 Stat. 3992, 47 U.S.C. Sec. 923 (g)
(3) (D).
\44\ CSEA, Sec. 202, 118 Stat. 3992, 47 U.S.C. Sec. 923 (g)
(3) (E).
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As permitted under the CSEA, several AWS-1 licensees sought to
begin operations before the estimated relocation dates established by
the agencies.\45\ Licensees particularly focused on major metropolitan
areas. Licensees expressed frustration at the delays they encountered
in coordinating with Federal agencies.\46\ On the other hand, it is
NTIA's understanding that Federal agencies found themselves overwhelmed
by industry requests and pressure to allow early entry. Has early entry
by licensees beginning to implement their systems proven important in
the successful implementation of the CSEA?
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\45\ Agencies estimated relocation times from one to six years.
See ``Chronology,'' supra.
\46\ CSMAC Reallocation Report, supra note 23, at 18-21.
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The Joint Public Notice provided a structured process for early
entry coordination. Parties are asked to comment on whether this
created a reasonable expectation of successful coordination. For
Federal agencies, the CSEA requires that they meet their estimated
relocation dates and coordinate in good faith for early entry prior to
their scheduled moves. The agencies do not believe that the CSEA
requires that they vacate the band prior to their estimated relocation
dates at the licensee's request, nor that the law guarantees successful
early entry coordination.\47\ In some cases, licensees negotiated with
Federal agencies in order to expedite band clearance. However, existing
Federal operations sometimes precluded early entry by the
licensees.\48\ Were Federal agencies reasonably diligent in their early
relocation efforts? How could they be more so? Did an expectation of
successful coordination form part of the basis for AWS-1 auction bids?
Should bidders expect to bear all the risks associated with early
entry? What options should be available to facilitate early entry?
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\47\ See generally id., at 19.
\48\ See generally id., at 18-21.
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ii. FCC Process for Non-Federal Incumbents
The FCC transitional rules applicable to non-Federal incumbents
differ from the CSEA procedures described above. Under the FCC rules,
AWS-1 licensees trigger the start of non-Federal incumbent relocation
efforts in the form
[[Page 32136]]
of mandatory negotiations.\49\ Private clearinghouses allow AWS-1
licensees to share commonly incurred reimbursement costs.\50\ An AWS-1
licensee may pay a premium to expedite a non-Federal incumbent's move.
If the payment, however, exceeds the clearinghouse ``cost-sharing
cap,'' other AWS-1 licensees also benefitting from the relocation would
only have to make payments on a pro-rata basis up to the cap. We seek
comment on how the Federal and non-Federal approaches to compensating
incumbents for relocation expenses compare.\51\
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\49\ This period is two years for fixed microwave incumbents and
three years for Broadband Radio Service (BRS) licensees. 47 C.F.R.
Sec. 101.69; 47 C.F.R. Sec. 1250. Fixed microwave services operate
in the 2110-2150 MHz band. BRS operates at 2150-2155 MHz. Parties
are free to negotiate voluntarily at any time. If the parties fail
to agree within the mandatory period, the AWS licensee may initiate
involuntary relocation procedures. The microwave relocation rules
sunset 10 years, and the BRS rules 15 years, after the first AWS-1
license is issued. At this point, an AWS-1 licensee starting up
service within interference range may require an incumbent to cease
operation. 47 C.F.R. Sec. 101.79(a)(1); 47 C.F.R. Sec. 27.1253.
\50\ AWS-1 licensees benefitting from another licensee's
relocation of an incumbent share in those expenses, pro-rata,
subject to a ``cap.'' The FCC established maximum amounts or
``caps'' on what the clearinghouse could pay. ``FAQs -- AWS
Licensees,'' available at https://ww.ctiaspectrumclearinghouse.org/ctia/aws-lic.jsp.
\51\ See also Section 1, supra.
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iii. Incentives
A. Market-based incentives
NTIA seeks comment on whether any of the market-based incentives
operative in the non-Federal clearance process could be applied to
expedite Federal agency relocation. The CSEA allows recovery of some
costs associated with interim changes accommodating early entry prior
to scheduled Federal relocation. These include one-time costs of
equipment modification necessary for early entry and costs associated
with accelerated replacement of systems and equipment.\52\ Are these
provisions sufficient?
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\52\ See Section 3.a.1, supra.
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B. Benchmarks and other non-economic approaches
The CSEA requires agencies to estimate relocation times. Were
relocation estimates for AWS-1 generally accurate? How might they be
improved in the future? NTIA seeks comment on whether standards,
expressed or implied, for assessing the reasonableness of these times,
can be drawn from the statute. How, as a practical matter, might NTIA
and OMB ensure that relocation time estimates provide that agencies
vacate the spectrum as expeditiously as possible?
The Commerce Spectrum Management Advisory Committee (CSMAC)
recommended the adoption of ``benchmarks'' or interim clearance
requirements by which gradually increasing percentages of a Federal
system would be vacated at certain specified dates.\53\ Should NTIA
establish mandatory ``benchmarks'' or other non-market-based incentives
for Federal agencies to use in vacating the spectrum? Would benchmarks
of this nature help move relocation forward or provide meaningful
certainty to bidders? What other benchmarks might be useful? Would
benchmarks contradict the CSEA procedures allowing agencies to estimate
their own relocation times, subject to OMB and NTIA review? Should any
such benchmarks be service-specific, taking account of the relative
ease or difficulty of relocating different types of operations? Parties
advocating for benchmarks should indicate how an entrant would use
them, point to analogous FCC or other precedent, and explain how
benchmarks have been used in the past. In particular, NTIA seeks input
on how benchmarks could be enforced in a meaningful way.
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\53\ CSMAC Reallocation Report, supra note 23 at 24-25.
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iv. Adequacy of Data
The Joint Public Notice detailed the coordination process for
licensees to use in early entry. This process, if successful, permits
AWS-1 licensees to access the 1710-1755 MHz band prior to the estimated
agency relocation dates. The Joint Public Notice referenced additional
material available on NTIA's website providing geographic location,
frequency bands, and other information.\54\ NTIA seeks comment on the
adequacy of this information for purposes of coordinating early entry
and permitting licensees to begin deployment.\55\ What information
might be added? What aspects of the coordination process established in
the Joint Public Notice succeeded and which might be improved?
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\54\ Joint Public Notice, supra note 10.
\55\ For a discussion of how adequacy of this information might
affect bidding, see supra Section 2.a.
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Parties are asked to detail any supplementary information that
would facilitate sharing of the spectrum prior to the agency's
scheduled relocation time. Once winning bidders are determined, should
commercial entities be required to exchange information regarding their
operational plans as part of the coordination process? Such information
might enable Federal agencies to reduce the additional agency data
needed to facilitate early entry. Parties are asked to comment on this
tentative view, and on any competitive or proprietary issues it may
raise. What licensee information, if any, should be shared, and if so,
at what point and by what mechanisms?
v. Transparency
A. Post-auction considerations
After a successful auction, the number of commercial entities
potentially interested in classified or otherwise restricted data on
incumbent Federal operations narrows to a group of successful bidders
with specific deployment plans and operational needs. The Federal
agencies developed distinct techniques for releasing additional
information to this smaller group. NTIA seeks comment on the validity
of this general distinction between pre-auction and post-auction
releasability of data. Does this distinction generally allow Federal
agencies to provide more data after the auction? Did these post-auction
techniques succeed, and how might they be improved? Should there be a
standardized process for releasing otherwise restricted data after
licenses are awarded?
B. Non-disclosure agreements
The Joint Public Notice provided that AWS-1 licensees could enter
into Non-Disclosure Agreements (NDAs) with Federal agencies after the
auction.\56\ An NDA allowed an agency, prior to complete relocation, to
share additional technical material on its operations as well as
further information on otherwise sensitive data. NTIA seeks comment on
whether this process should be retained. Can it be improved? If so,
how?
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\56\ Joint Public Notice, supra note 10, at 4.
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C. Other mechanisms
NTIA seeks comment on other possible mechanisms for exchanging
information on classified or otherwise restricted data. In lieu of
NDAs, some agencies developed web-based capabilities to facilitate
coordination with licensees.\57\ This allowed an assessment of
potential interference to Federal systems without revealing restricted
material. Were these techniques successful? Such web-based capabilities
require licensees to provide detailed, accurate data regarding their
operational plans. Provision of this data may permit an agency to
assess accurately and quickly the potential for interference to their
operations, and to
[[Page 32137]]
notify the licensee accordingly. Does this additional data demand raise
competitive and proprietary concerns for licensees? If so, how can such
concerns be lessened?
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\57\ The CSMAC has recommended the use of automated procedures
or other secure online capabilities for facilitating the sharing of
classified information. See CSMAC Reallocation Report, supra note
23, at 21-22.
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Parties addressing the disclosure of classified or otherwise
sensitive information should reference relevant Federal rules and
statutes.\58\ Commenters are encouraged to cite specific examples of
mechanisms that have either worked or failed.
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\58\ See, e.g., Classification Order, supra note 27; 5 U.S.C.
Sec. 552.
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vi. Communications
Both Federal agencies and licensees cite poor communications as a
fundamental cause of early entry issues. It is NTIA's understanding
that Federal agencies noted intense pressure, floods of requests, and
inaccurate data from licensees. Licensees, in turn, remark about
bureaucratic delays, lack of assigned agency staff, and divergent
agency practices.\59\ In general, how could communications related to
early entry activities be improved?
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\59\ See generally CSMAC Reallocation Report, supra note 23 at
18-21.
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A. Information exchange
NTIA has held monthly meetings among affected Federal agencies
since the AWS-1 auction. Should NTIA expand these to include regular
information exchanges among both licensees and agencies to address
problems and assess progress? How would such meetings affect licensees'
competitive concerns? Parties are asked to comment on what the
frequency and scope of such meetings would be.
Agencies claim that they were inundated with simultaneous early
entry requests.\60\ Would it help to require a date certain
notification to agencies of license award, company, and contact
information and the need for coordination? Should licensees be required
to prioritize when submitting large numbers of such requests at the
same time?
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\60\ See generally id., at 13, 19.
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Some agencies maintain that inadequate data from licensees for
coordination purposes hindered early deployment. To what extent did
this inadequacy proceed from competitive or proprietary concerns which
hampered full information exchange? What types of data -- for example,
contact information, implementation schedules, network characteristics,
technical parameters, duty cycles -- would be of assistance? How can
agencies correctly understand licensee early entry aims, while at the
same time protect competitive sensitivities? What types of information
or procedures might help?
B. Standardization and centralization
Parties are asked to comment on the value of automation in
improving transparency of communications.\61\ Web-based capabilities
and other Information Technology-based mechanisms may provide a way to
streamline the coordination process. Should Federal agencies be
encouraged to adopt these? Should OMB, the FCC, and NTIA create a
centralized Federal website to provide uniform guidance on process,
eligible costs, coordination, and other CSEA implementation matters?
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\61\ See also supra Section 3.a.v.C.
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The methodology and interference criteria specified in TIA TSB 10-F
provided a standard approach for assessing potential interference to
Federal fixed microwave systems.\62\ Some agencies also developed
templates and forms for licensee interactions, following agency-
specific testing and determination of particular interference
parameters. Such uniformity can help avoid time-consuming case-by-case
analyses. Is there a way to standardize interference parameters across
agencies for the same incumbent service? What if a widely accepted
standard, such as the TIA TSB 10-F, is not available for the service at
issue?
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\62\ See supra Section 2.c.ii.
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Would it be useful to permit testing as a means of verifying the
results of interference analyses in ``real world'' conditions? If so,
when should such testing be permitted?
b. Guidance
Licensees have noted the lack of agency personnel dedicated to
relocation matters, with the result that agency interactions may prove
dilatory or unproductive.\63\ Section 2.c.iii above addresses the need
for pre-auction training and guidance. Is there a need for ongoing and
standardized guidance as the relocation process progresses post-
auction? What sort of guidance would prove useful in answering specific
or novel implementation questions regarding early entry and related
matters as they occur?
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\63\ CSMAC Reallocation Report, supra note 23, at 13.
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c. NTIA's Role
Where necessary, NTIA facilitated coordination efforts between AWS-
1 licensees and Federal incumbents, and left the ultimate decision-
making to the parties themselves. On the non-Federal side, AWS-1
licensees are required to negotiate directly with individual
incumbents. Please comment regarding the adequacy of NTIA's efforts to
support coordination. The CSMAC has suggested that relocation
activities, including licensee interface, be centralized in NTIA.\64\
Do circumstances differ for direct licensee-Federal incumbent
interaction such that NTIA should increase its leadership role?
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\64\ Id., at 23.
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Throughout the 1710-1755 MHz relocation process, NTIA has served
multiple roles. Often, NTIA acts as a liaison for licensees seeking
additional information or accelerated clearance from agencies. NTIA
also coordinates with OMB and the FCC regarding appropriate policies
and procedures. NTIA provides guidance to the Federal agencies based on
its own expertise, and the advice of OMB and the FCC. In light of
NTIA's institutional expertise, the CSMAC recommended that NTIA assume
a greater leadership role in this process.\65\ NTIA seeks comment on
its role as a liaison between AWS-1 licensees and Federal agencies in
early entry matters. What additional responsibilities or roles should
NTIA assume in this process? What are the potential benefits or
pitfalls of such additional responsibility(ies)? With respect to
offering guidance on relocation policies and procedures, are there ways
in which NTIA might improve its efforts?\66\
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\65\ Id.
\66\ See supra Section 3.b.
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d. Other Funding and Administrative Issues
i. Long-term lease costs
Federal spectrum management policies encourage Federal agencies to
use commercial services whenever feasible.\67\ One Federal agency
replaced existing fixed microwave systems having an estimated 12-year
life with commercial telephony leases entailing recurring monthly
charges. However, in the 1710-1755 MHz relocation, payment of costs is
limited to one-time relocation costs.\68\ Does this limitation hinder
or delay the entry of commercial services in the band?\69\
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\67\ NTIA Manual, supra note 15, Sec. 2.3.3.
\68\ The SRF may pay ``relocation'' costs. These include costs
necessary to achieve ``comparable capability'' regardless if that
entails a new frequency assignment or use of an alternative
technology. CSEA, Sec. Sec. 204 (c), 202, 118 Stat. 3994, 3992, 47
U.S.C. Sec. Sec. 928, 923 (g) (3).
\69\ One alternative might be to use the eight-year CSEA
``sunset'' date. See ``Chronology,'' supra.
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ii. Spectrum-efficient technologies
The CSEA is based on payment of costs to relocate Federal systems
to new
[[Page 32138]]
spectrum. In the case of the 1710-1755 MHz band, this involved moving
Federal systems completely out of the allocated band. It is possible,
however, that technological advances or more spectrum-efficient
techniques, if implemented across all Federal agencies or entire
services, may permit increased consolidation or sharing among Federal
agencies. This, in turn, could result in release of additional spectrum
that could be auctioned for commercial services. Under this approach
the Federal users might still remain in the band. Could this approach
result in the potential for increased opportunities to accommodate new
commercial services? Are there other approaches to accommodating new
commercial services in bands used by the Federal government?
e. Urban versus Rural Relocation
Federal policies favor nationwide availability of advanced
services.\70\ Advanced wireless industry efforts to transition agencies
thus far, however, appear to have concentrated on populated areas. To
date, agencies in remote areas for the most part have been able to
accommodate buildouts through the coordination process.\71\ In the
future, should Federal/non-Federal sharing in remote regions substitute
for outright reallocation? How would continued Federal use hinder
commercial deployment in remote areas?
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\70\ See generally White House, Technology, ``Drive Economic
Growth and Solve National Problems by Deploying a 21st Century
Infrastructure,'' available at www.whitehouse.gov/issues/technology;
Press Release, NTIA, ``Vilsack, Copps and Wade Kick Off American
Recovery and Reinvestment Act's Broadband Initiative'' (Mar. 10,
2009) available at https://www.ntia.doc.gov/press/2009/BTOP_RFI_090310.pdf.
\71\ See generally Second Annual Relocation Report, supra note
5, at A-1 and n. 2 (USDA extensions of relocation time lines in
remote areas did not impact commercial deployment).
Dated: June 30, 2009.
Anna M. Gomez,
Deputy Assistant Secretary for Communications and Information.
[FR Doc. E9-15870 Filed 7-6-09; 8:45 am]
BILLING CODE 3510-60-S