**Before the**

**[Federal Communications Commission]{.smallcaps}**

**Washington, D.C.**

In the Matter of )

The Development of Operational, )

Technical and Spectrum Requirements )

For Meeting Federal, State and Local ) WT Docket No. 96-86

Public Safety Agency Communication )

Requirements Through the Year 2010 )

**FOURTH MEMORANDUM OPINION AND ORDER**

**Adopted: March 5, 2002 Released: March 14, 2002**

By the Commission:

Table of Contents

Paragraph

I. INTRODUCTION 1

II\. EXECUTIVE SUMMARY 2

III\. BACKGROUND 3

IV\. DISCUSSION 7

A. Precoordination Database 7

B. Secondary Trunking on Eight Interoperability Channels (12.5 kHz
systems) and\
Eight Adjacent Channels (25 kHz systems) 11

C. Guard Channels 14

D. Access Priority 18

E. Channel Designation 21

F. Interoperability Channel Capability Requirement 24

1\. Timeframe for Interoperability Capability 24

2\. Com-Net Ericsson - Petition for Declaratory Ruling 30

G. Other Matters 32

1\. Section 90.548, Interoperability technical standards 32

2\. Section 90.553, Encryption 36

3\. Section 90.531, Band plan 37

V. PROCEDURAL MATTERS 39

A. Regulatory Flexibility Act 39

B. Paperwork Reduction Act 40

VI\. ORDERING CLAUSES 41

APPENDIX A Supplemental Final Regulatory Flexibility Analysis for

*Fourth Memorandum Opinion and Order*

APPENDIX B List of Parties for *Fourth Memorandum Opinion and Order*

APPENDIX C Final Rules

APPENDIX D 700 MHz Band -- Spectrum Designations

APPENDIX E 700 MHz Band -- Segmentation and Channelization Table

# INTRODUCTION

1.  In the *Fourth Report and Order and Fifth Notice of Proposed Rule
    Making* in the captioned proceeding,[^1] the Commission adopted
    various technical and operational rules and policies regarding use
    of public safety frequencies in the 764-776 MHz and 794-806 MHz
    bands (the 700 MHz public safety band) designated for narrowband
    Interoperability uses.[^2] The Commission's actions in the *Fourth
    R&O* were based on the comments received in response to the *Fourth
    Notice of Proposed Rule Making*, which reflected the recommendations
    of the Public Safety National Coordination Committee (NCC),[^3] an
    advisory committee established in accordance with the Federal
    Advisory Committee Act.[^4] We received four petitions for
    reconsideration or clarification of the *Fourth R&O*, as well as
    responsive comments, oppositions, replies to oppositions, and *ex
    parte* filings. This *Fourth Memorandum Opinion and Order* (*"Fourth
    MO&O"*) addresses issues raised in these petitions and other
    filings, and considers several matters raised *sua sponte*.

# EXECUTIVE SUMMARY

2.  We have carefully considered the issues presented on reconsideration
    of the *Fourth R&O*. We agree with petitioners that "secondary
    trunking channels"[^5] ought to be evenly distributed among all four
    former TV channels 63, 64, 68, and 69, but decline to designate 6.25
    kHz bandwidth \"guard channels," immediately above and below each
    narrowband Interoperability channel set (12.5 kHz bandwidth).
    Because the proposed pre-coordination database is not yet
    operational, we believe it premature, at this time, to mandate that
    public safety entities use such a database as a condition of
    licensing in the 700 MHz public safety band. In addition, we
    continue to believe that states and local jurisdictions are in the
    best position to determine access priority levels, and we thus
    refrain from establishing nationwide, codified priority levels in
    the 700 MHz public safety band. Likewise, we affirm the Commission's
    decision not to adopt a table of channel assignments for nationwide
    use. Finally, we believe adoption of Project 25 Phase I as the
    digital voice standard for the 700 MHz public safety band
    Interoperability channels will allow for early entry into that
    spectrum by public safety entities located in areas presently
    unencumbered by television stations operating on TV channels 63, 64,
    68, and 69; thus we do not believe a transition period is necessary
    before the standard becomes mandatory.

# BACKGROUND

3.  In the *First Report and Order* in this proceeding, the Commission
    adopted licensing and service rules for the 700 MHz public safety
    band, which consists of twenty-four megahertz of radio spectrum
    comprised of TV Channels 63, 64, 68 and 69.[^6] Specifically, the
    Commission adopted a band plan that designated 12.6 megahertz for
    General Use (approximately one-half of the spectrum),[^7] 2.6
    megahertz for Interoperability, and 8.8 megahertz as Reserve
    Spectrum.[^8] In addition, the Commission found strong support for
    national planning for both the Interoperability spectrum and the
    General Use spectrum.[^9] Accordingly, the Commission chartered the
    NCC as an advisory committee for the purpose of addressing and
    advising it on certain issues regarding the 700 MHz band.[^10]

4.  On February 25, 2000, the NCC submitted its report to the
    Commission, describing the participants in the NCC's
    decision--making process, the meetings that the NCC conducted, and
    the exchanges of information that occurred in developing the NCC's
    recommendations.[^11] On August 2, 2000, the Commission released the
    *Fourth Notice* seeking comments on the NCC Report and its
    recommendations.

5.  On January 17, 2001, the Commission released the *Fourth Report and
    Order and Fifth Notice of Proposed Rule Making*, in which it
    designated rules and policies for the Interoperability
    spectrum.[^12] In the *Fourth R&O*, the Commission adopted many of
    the NCC's recommendations and determined that the administrative and
    technical oversight of operations on the Interoperability spectrum
    should be performed at the state level. It also permitted trunked
    operations on eight of the Interoperability channels on a secondary
    basis,[^13] under certain circumstances, and adopted Project 25
    Phase I as the digital standard for the 700 MHz band narrowband
    Interoperability channels. The Commission also stated that licensees
    may employ encryption on any Interoperability channel, except the
    two calling channels, provided that they use the encryption standard
    specified by the Commission. Certain recommendations from the NCC
    and other commenters that the Commission did not codify or adopt are
    the subject of the petitions for reconsideration that we address in
    the instant *Fourth Memorandum Opinion and Order.* In addition, we
    take this opportunity to clarify other matters relating to the
    *Fourth R&O*.

6.  As noted above, the Commission first adopted spectrum designations
    for the 700 MHz public safety band in 1998; since then, it has
    revised these designations twice.[^14] For convenient reference, the
    table in Appendix D sets forth the spectrum designations to date,
    which are not changed in the instant *Fourth Memorandum Opinion and
    Order*.

# DISCUSSION 

## Precoordination Database

7.  In the *Fourth R&O,* the Commission agreed that the pre-coordination
    database referenced in the NCC Report[^15] had merit and could be
    used as an effective planning tool.[^16] Nonetheless, because the
    database was still under development, *i.e.,* incomplete and
    untested, the Commission declined to require its use "at this
    time."[^17] Of particular concern, the Commission noted that a
    decision to require the use of a database under development could
    inadvertently delay the actual use of the spectrum.[^18]

8.  Petitioners John S. Powell ("Powell")[^19] and the Public Safety
    Wireless Network ("PSWN")[^20] both assert that the Commission
    should, in fact, mandate that public safety entities use a
    pre-coordination database.[^21] Expressing concern that not
    mandating participation in such a database will result in incomplete
    or inaccurate information to public safety entities, PSWN further
    notes that the database "would give the regional planning committees
    (RPC) the ability to choose Interoperability channels that would
    avoid co-channel and adjacent channel interference on the 700 MHz
    band of spectrum."[^22] In addition, "\[t\]he obligation to create,
    initially populate and/or administer this pre-coordination database
    will not fall to the Commission, the states nor the \[RPCs\],"[^23]
    according to Powell, who adds that the RPCs will be major users and
    beneficiaries of such a database.[^24] In this connection, we also
    note that the Public Safety Communications Council (PSCC)
    "support\[s\]" the 700 MHz pre-coordination database and is
    "committed to use \[it\] for the purposes of pre-coordination . . .
    ."[^25]

9.  In reviewing the petitions, we continue to believe it is premature
    to mandate use of a precoordination database. Moreover, as the
    Commission stated in the *Fourth R&O*, "we believe the
    pre-coordination database may have the greatest benefit in planning
    for the General Use channels, given that we expect to have more
    applications filed for the General Use channels, and to have more
    licensees in the General Use channels."[^26] In this connection, we
    note that applicants for General Use channels are likely to propose
    high-power base stations at specific locations and that such
    applications must be frequency coordinated. A precoordination
    database could greatly assist the RPCs in developing the regional
    plans that must precede the filing of individual applications. Thus,
    in addressing the petitions, we emphasize that the *Fourth R&O*
    established rules for the Interoperability channels only, and that
    it remains unclear "to what extent public safety entities will build
    infrastructure for use on the Interoperability channels as opposed
    to using the Interoperability spectrum for mobile-to-mobile
    communications"[^27] that do not require coordination because they
    are licensed by rule. Furthermore, we note that the petitions do not
    address the concerns raised in the *Fourth R&O* that mandating the
    use of a pre-coordination database that is under development could
    inadvertently delay access to the 700 MHz public safety band.[^28]
    We further note that neither the States nor the RPCs have sought to
    have the Commission mandate the use of a pre-coordination database.
    Thus, we are not inclined to change our decision on this matter.

10. We nonetheless reiterate our support for development of a
    pre-coordination database for the 700 MHz public safety band.[^29]
    We note, however, that the commitment of AASHTO, APCO, FCCA, and
    IMSA/IAFC to use the database may moot any need for the Commission
    to adopt a requirement. These development issues aside, we do agree
    conceptually that such a database, once fully functional, could be a
    useful tool for RPCs. We also believe that use of it as a planning
    tool would increase the accuracy of the 700 MHz public safety band
    planning data while facilitating inter-regional coordination.
    Furthermore, we note that all of the frequency coordinators
    certified for the 700 MHz public safety band are committed to using
    the database.[^30] Nonetheless, we also note our disinclination to
    require RPCs to participate in a third-party database if adopting
    such a requirement would establish the database as the gatekeeper of
    the General Use spectrum. Put differently, our concept of the
    pre-coordination database, referenced in the NCC Report and the
    petitions, anticipates a planning resource that assists each RPC in
    developing its plan in coordination with other relevant RPCs by
    providing spectrum-management recommendations and accessible, online
    data sharing capabilities among RPCs.

## Secondary Trunking on Eight Interoperability Channels (12.5 kHz systems) and Eight Adjacent Channels (25 kHz systems)

11. In the *Fourth R&O*, the Commission allowed, but did not mandate,
    trunking on a permissive basis on the Interoperability
    channels.[^31] Further, the Commission concurred with the NCC that
    to obtain the benefits here, the Commission needs only to allow
    secondary trunking on a few of the Interoperability channels.[^32]
    The majority of Interoperability channels would remain available for
    the most likely interoperability communications scenario, *i.e.,*
    conventional communications on a unit-to-unit basis. To ensure that
    these Interoperability channels[^33] are always available when
    necessary for conventional interoperability operations, the
    Commission allowed trunking only on a secondary basis.[^34] The
    Commission also adopted the NCC's recommendation of limiting the
    number of Interoperability channels that can be used for secondary
    trunking to eight 12.5 kHz Interoperability channels.[^35] To
    accommodate trunking formats that utilize 25 kHz bandwidth
    channels,[^36] the Commission also designated eight 12.5 kHz Reserve
    Spectrum channels that were adjacent to the eight Interoperability
    channels, as secondary trunking channels. Thus, eight of the
    thirty-two 12.5 kHz Interoperability channels are available for
    secondary trunking use by trunked systems that utilize 12.5 kHz
    bandwidth format. For trunked systems in any given area using a
    25 kHz bandwidth format, the same eight 12.5 kHz Interoperability
    channels are available along with the eight 12.5 kHz adjacent
    channels that were redesignated from Reserve Spectrum to secondary
    trunking.[^37]

12. Petitioners Powell and PSWN seek reconsideration of our decision to
    place all secondary trunking channels in only the bandwidth
    associated with former Television Channels 63 and 68.[^38] They
    assert that distributing the secondary trunking channels evenly
    among all four television channels is preferable.[^39]

13. We agree with Petitioners that evenly distributing the secondary
    trunking channels among the four television channels is a practical
    and flexible approach that maximizes the early availability of at
    least half of the secondary trunking channels throughout the
    nation.[^40] We note that this action does not change the amount of
    spectrum dedicated to Interoperability. Accordingly, public safety
    base stations will operate on frequencies within former Television
    Channels 63 and 64, paired with mobile units operating on former
    Television Channels 68 and 69, respectively. However, until the
    conclusion of the DTV transition period, Television Channel 63 may
    not be vacated in some regions of the country where Television
    Channel 64 is vacated and *vice versa*.

## Guard Channels

14. In the *Fourth R&O,* the Commission declined to designate the 128
    channels (6.25 kHz) immediately above and below each 12.5 kHz
    Interoperability channel as "guard channels" for interference
    protection purposes.[^41] The Commission concluded that the record
    before it did not sufficiently demonstrate that setting aside guard
    channels in this context was warranted.[^42]

15. Petitioners Powell and PSWN seek reconsideration of the Commission's
    determination that the band plan adopted in the *Fourth R&O* would
    not cause harmful interference. PSWN observes that the NCC proposal
    and the result reached by the Commission are similar, in that they
    both seek to prevent harmful interference on adjacent channels. PSWN
    notes that the plan adopted by the Commission accommodates 25 kHz
    trunked systems and essentially provides guard channels either above
    or below some Interoperability channel sets. However, PSWN asserts
    that the NCC plan is superior because it accommodates 25 kHz trunked
    systems and provides dedicated guard channels above and below each
    Interoperability channel set.[^43] They note that since the
    Commission released the *Fourth R&O*, the Telecommunications
    Industry Association (TIA) has done significant research to show
    that, if a 6.25 kHz guard channel on either side does not protect
    the Interoperability channels, then there is the potential for
    significant interference to Interoperability users from other users
    on adjacent General Use channels in the same geographic area, and
    request the Commission to "defer its determination" to consider the
    TIA Report.[^44]

16. We have reviewed the additional information submitted regarding
    guard channels in the 700 MHz public safety band and find that
    petitioners have failed to present any argument that was not
    presented and treated in the *Fourth R&O*. In this connection, we
    note that in the *Fourth R&O*, the Commission acknowledged that
    while most commenters generally agreed with the NCC (when it
    recommended a band plan different than the one presented in the
    *Third MO&O*), their reasons were more for adopting any band plan
    where aggregation to 25 kHz operations could occur, as opposed to
    protecting against adjacent channel interference.

17. We also note that the TIA Report upon which Petitioners rely is
    distinguishable, in that it studies commercial 700 MHz band
    interference with public safety systems, and not public safety
    General Use interference with public safety Interoperability use.
    Other technical information provided with the petitions appears to
    be merely a recitation of the Commission's Rules with graphs and
    charts providing a pictorial of the adjacent channel coupled power
    (ACCP) rules.[^45] Moreover, although we recognize that the location
    of every incident requiring interoperability communication cannot be
    predicted or planned, the Petitioners' technical data is based on an
    assumption that there will be no geographical separation between the
    adjacent channel operations. The Petitioners' technical data also
    appears to assume that if operation on one Interoperability channel
    is impaired, by adjacent channel operations, then all thirty-two
    Interoperability channels will be so impaired. In sum, we find the
    Petitioners' contentions unpersuasive. We agree that their approach
    would reduce interference, but the Petitioners do not balance this
    benefit against the loss of 0.8 megahertz of spectrum that would be
    sacrificed for use merely as 6.25 kHz "spacers," instead of for
    services to protect the safety of life, health, and property.
    Additionally, we believe that appropriate design planning should be
    a sufficient mechanism for minimizing the adjacent channel
    interference potential in the 700 MHz public safety band. Based on
    the information before us, we conclude that Petitioners have not
    established a record sufficient for us to reverse our prior decision
    on this matter and double the amount of spectrum designated for
    interoperability purposes.

## Access Priority

18. In its Report, the NCC recommended that the Commission adopt a
    priority scheme for the use of Interoperability channels.[^46]
    Specifically, it urged that a party wishing to use an
    Interoperability channel in use by another party would declare its
    level of priority. The higher level of priority would gain use of
    the channel, and the party with the lower priority level would be
    required to cease its communication immediately.[^47] In the *Fourth
    R&O*, the Commission adopted the position initially expressed in the
    *Fourth Notice*, that, while finding merit in a priority access
    scheme, the Commission was not persuaded that such a scheme should
    be codified in our Rules.[^48] Specifically, the Commission believed
    that the states were in a better position to determine priority use
    and resolve disputes, and noted that the priority levels the NCC
    recommended differed from the Priority Access Service (PAS) levels
    the Commission adopted to allow commercial mobile radio service
    (CMRS) providers to provide PAS for national security and emergency
    preparedness (NSEP) personnel.[^49]

19. Petitioners Powell and PSWN have asked that the Commission
    reconsider its rejection of a nationwide, codified access priority
    scheme.[^50] Powell suggests that the Commission "look to the
    overall NCC objective of a nationwide access system,"[^51] and
    asserts that "there are simply some nationwide requirements that
    must be codified," including access priority.[^52] In its Petition,
    PSWN "disagrees with the Commission's belief that states are in a
    far superior position to devise, coordinate, and operate an
    appropriate access formula in the event of a \[*sic*\] emergency
    situation,"[^53] and posits that "the goal of nationwide
    Interoperability at all levels of governments will be best served
    with the implementation" of codified access priority rules.

20. In the *Fourth R&O*, the Commission noted that access priority
    levels are determined as part of a state-level plan,[^54] *i.e.*,
    access priority is one component of administration of the
    interoperability channels. In this connection, the Commission also
    determined in the *Fourth R&O* that states or state-level agencies
    are the most appropriate entities to plan and administer the
    Interoperability spectrum. Thus, in considering the petitions, we
    first note that no state nor state-level agency seeks
    reconsideration of the Access Priority decision in the *Fourth R&O*,
    whereas several states and state-level agencies strongly rejected a
    required, Federal Access Priority formula in comments to the *Fourth
    NPRM*. Next, it is instructive that the NCC and most commenters
    recommended that administration of the interoperability channels
    occur at the state-level, if at all possible. Indeed, a recent PSWN
    study recommends state-level administration[^55] and we are
    concerned about Federal intrusion into an area that state and local
    entities have handled well.[^56] Additionally, as noted in the
    *Fourth R&O*, the access priority levels that the NCC recommended
    for the interoperability channels differ from the PAS levels that
    the Commission adopted in rules allowing CMRS providers to provide
    PAS for NSEP personnel. We remain concerned that creating yet
    "another set of priority levels would serve only to create confusion
    during a large-scale or multi-agency response."[^57] Thus, based on
    the information before us, it is premature to adopt a rigid access
    priority regime for the 700 MHz band. Accordingly, we will not
    reconsider our decision at this time, but will monitor
    implementation of systems to see if problems develop.

## Channel Designation 

21. In the *Fourth R&O*, the Commission declined to adopt a table of
    channel assignments, agreeing with the majority of commenters who,
    while generally supportive of channel designation, expressed concern
    about codifying the NCC recommendation.[^58]

22. Petitioners Powell and PSWN suggest that, in failing to adopt a
    table of channel assignments, the Commission misunderstood the NCC's
    recommendation regarding channel designation, suggesting that "a
    definitive table of assignments was not the intent of the NCC,
    rather the intent was to provide a baseline for personnel managing
    emergency responses during the first critical minutes of a
    developing incident."[^59] PSWN states that it "does not believe
    that the NCC has proposed to recommend a definitive table of
    service-specific assignments,"[^60] while Powell notes the benefits
    of specific channel designation, such as allowing same-service
    officers to respond to a call, regardless of jurisdiction.[^61]

23. Our review of the NCC Report does not indicate that the
    recommendation from the NCC Interoperability Subcommittee was merely
    a suggestion. "The Interoperability Subcommittee's proposed access
    priority standards are taken from the PSWAC Report, . . . . T\]he
    \[NCC\] Steering Committee recommends that the Commission
    incorporates the standards into its rules."[^62] Read in the context
    of the NCC Report, then, we believe the proffered table of channel
    assignments was, in fact, a request to codify that table.[^63]
    Moreover, if, as petitioners suggest, the NCC intended its
    recommendation as mere guidelines, they do not explain how this
    would support codifying them as rules. We note that the Commission
    cannot practically adopt a recommendation it cannot enforce. It can
    enforce a recommendation that has been adopted as a rule. Further,
    we ask who would be responsible for maintaining any such table, and
    note the practical difficulties of administering such a table
    (*e.g.*, were such a table to be codified, even a minor change to
    the table would entail notice and comment rulemaking). In addition,
    we note that the Commission, through establishing nationwide
    Interoperability channels, designating two Interoperability calling
    channels, and devoting two channels exclusively to data
    transmission, attains some of the same benefits that the Petitioners
    contend channel designation would bring. Petitioners, however, have
    not demonstrated how [mandating]{.underline} channel designation
    outweighs the inherent inflexibility and burden to local public
    safety officials; thus, we decline to grant their petition. At the
    same time, we acknowledge the value of the NCC Interoperability
    Subcommittee's deliberations and agree with the petitioners' that
    providing the public safety community with the NCC's "default
    designation" would serve the public interest. Accordingly, the
    Commission stands ready to assist in disseminating any NCC "default
    designation" recommendations to the public safety community.

## Interoperability Channel Capability Requirement

### Timeframe for Interoperability Capability

24. In the *Fourth R&O*, the Commission adopted the Project 25 Phase I
    standard as the digital voice standard for the Interoperability
    channels. The Commission noted that most commenters supported the
    Project 25 Phase I standard,[^64] and concluded that adopting this
    standard would further the goal of providing public safety entities
    access to the Interoperability channels on a near-term basis in a
    cost-effective manner.[^65] The Commission noted its desire to
    promote the immediate "development and deployment of 700 MHz band
    public safety equipment or the planning and construction of public
    safety systems in this band."[^66] The Commission decision was based
    on its long-held belief that "interoperability signifies the
    crowning achievement of this proceeding."[^67]

25. In its petition for reconsideration, the North America TETRA Forum
    ("NATF") did not retract its acceptance (first expressed in its
    comments to the *Fourth Notice*)[^68] of Project 25 Phase I as the
    digital voice standard for the Interoperability channels. Rather, it
    avers that the Commission erred by failing to establish a reasonable
    transition period before Interoperability capability becomes
    mandatory for all 700 MHz band public safety equipment.[^69] In this
    connection, NATF avers that the Commission may have violated the
    Administrative Procedure Act "\[b\]ecause the Commission did not
    address the significant number of comments in the record regarding
    the need for a transition period before Phase I capability becomes
    mandatory, . . . ."[^70] Furthermore, NATF asserts that the
    Commission's approach stifles competition and improperly favors
    Motorola by, in effect, giving that equipment manufacturer a
    five-year "head start" over other manufacturers.[^71] Specifically,
    NATF contends that we must grant a transition period until 2006,
    during which time non-interoperable equipment could be type
    certified and used, because:

> manufacturers of 6.25 kHz equipment need a transition period before
> Phase I capability becomes mandatory in order to have the time to
> develop dual mode handsets.[^72]

For this reason, according to NATF, the Commission should grant a
transition period until 2006 during which period public safety users can
deploy 6.25 kHz spectrally efficient technology without Project 25 Phase
I interoperability capability.[^73] To do otherwise, it suggests, would
be to "sacrifice competition and spectrum efficiency, in favor of
realizing Interoperability six years before the earliest date
implementation will become a practical necessity."[^74]

26. In disagreeing with NATF, the Association of Public-Safety
    Communications Officials International ("APCO") notes that
    "\[l\]icensees may still operate using any technology they wish on
    the General Use portion of the \[700 MHz public safety\] band
    (including TETRA),[^75] but they must be able to communicate using
    Project 25 Phase I standard on the Interoperability channels.
    Without that standard, there is no Interoperability."[^76]
    Furthermore, APCO contends,

    \[t\]he TETRA Forum claims that they will not be able to produce
    TETRA equipment with the Project 25 Phase I standard mode for
    Interoperability channel use until 2006. Therefore, for no apparent
    reason other than to prevent other manufacturers from obtaining a
    "head start," TETRA Forum asks the Commission to establish a
    "transition period" during which equipment could be marketed for use
    in the 700 MHz public safety band even though it does not have the
    capability to operate in the Interoperability mode.[^77]

27. We do not believe that NATF's claim concerning the need for a
    transition period until 2006 before Interoperability equipment
    should be required is consistent with one of the fundamental goals
    of this proceeding. The goal of Interoperability was the starting
    point of this proceeding and public discourse that the Commission
    has encouraged. Specifically, to provide formality to the NCC and to
    ensure participation by representatives of all elements of the
    public safety community, we chartered the NCC pursuant to the
    Federal Advisory Committee Act[^78] and required the NCC's
    technical-standard recommendations to be ANSI accredited.[^79]
    Furthermore, as APCO points out, our rules do not preclude type
    certification of TETRA equipment so long as it is capable of
    interoperability on the narrowband Interoperability channels.
    Rather, each potential manufacturer of 700 MHz band public safety
    equipment is governed by its own business plan and judgment and we
    decline to adopt an arbitrary transition period merely to
    accommodate the business plans of some TETRA manufacturers.

28. The interoperability capability requirement provides an equal
    incentive for all potential equipment manufacturers to produce
    compliant equipment at the earliest possible time. NATF provides no
    basis for delaying the public safety community's access to
    interoperable 700 MHz band public safety equipment. We are concerned
    that granting NATF's request would allow manufacturers to populate
    the 700 MHz public safety band with non-interoperable equipment,
    thereby contradicting one of the primary goals of implementation of
    the 700 MHz public safety band spectrum.[^80]

29. In addition, we find that NATF's Administrative Procedure Act claim
    is not persuasive. Back in 1998, the Commission adopted the
    interoperability capability requirement, signaling that "all
    narrowband mobile and portable 700 MHz public safety band radios
    \[must\] be capable of operating on all of the narrowband nationwide
    Interoperability channels."[^81] The only question remaining was
    which standard the Commission would adopt. As soon as the Commission
    made that decision in *Fourth R&O*, the interoperability capability
    requirement became effective henceforth. In other words, industry
    has known since 1998 that the Commission has an Interoperability
    capability requirement; the only remaining question related to which
    standard the Commission would adopt for immediate implementation. We
    note that Nokia did not file a petition for reconsideration of our
    1998 decision regarding the interoperability capability requirement.
    Had Nokia been concerned about a transition period to whatever
    standard the Commission adopted for the Interoperability channels,
    Nokia should have raised that issue, forcefully, since 1998.
    Moreover, type certification for all narrowband equipment was
    deferred pending the adoption of a digital voice standard for
    Interoperability channels, which is precisely why the
    Interoperability standard became effective as soon as possible after
    adoption in January 2001. Whichever Interoperability standard was
    adopted would become effective immediately so that public safety
    entities could use the 700 MHz band where it was unencumbered by
    broadcast television stations.[^82] By comparison, the Commission
    elected not to adopt a standard for the General Use channels in the
    *Fourth R&O* after noting that the *Fourth Notice* did not address
    this subject.[^83]

### Com-Net Ericsson - Petition for Declaratory Ruling

30. On May 10, 2001, Com-Net Ericsson[^84] filed a *Petition for
    Declaratory Ruling* believing that Section 90.547 of the
    Commission's Rules, as promulgated in the *Fourth R&O,* does not
    adequately reflect the Commission's intent.[^85] Specifically,
    Com-Net Ericsson asserts that the wording of the rule contradicts
    the language of the rule preamble. In the preamble to the rule, the
    Commission stated, "\[f\]inally, we adopt our proposal that end user
    equipment designed for data is not required to be voice-capable.
    Further, end user equipment designed for voice is not required to be
    data capable."[^86]

31. Com-Net Ericsson suggests that the wording of the rule is less clear
    than the language in the preamble, where the Commission made clear
    that voice-capable equipment need not be data-capable, and
    data-capable equipment need not be voice-capable. We believe that
    Com-Net Ericsson has correctly pointed out a potential source of
    conflict or confusion in reading this rule provision. Therefore, on
    our own motion, we will amend Section 90.547 to reflect our
    intention as reflected in the preamble of the *Fourth R&O.* We will
    also revise the rule to clarify that equipment that operates only on
    700 MHz public safety wideband channels is not subject to the
    narrowband interoperability capability requirements of Section
    90.547.

## Other Matters

### Section 90.548, Interoperability technical standards

32. Motorola seeks clarification of Section 90.548 (a)(ii). Motorola
    contends that the rule as published in the *Federal Register*[^87]
    requires data devices to conform to both the packet data and the
    circuit data descriptions.[^88] Motorola believes that requiring
    manufacturers to support both formats within a single device will
    prohibit manufacturers from introducing any compliant data
    technologies on the narrowband Interoperability channels.[^89]
    Motorola appears to suggest that by adding the word, "or" between
    the two formats, the problem will be eliminated, as manufacturers
    can adopt one or the other protocol.[^90]

33. In general support of Motorola's request for clarification, Com-Net
    Ericsson believes that by adding "or" and deleting the semicolon
    between the packet data and the circuit data specifications, the
    Commission eliminates the apparent requirement to incorporate two
    different data formats in order to comply with Section 90.548.[^91]
    Yet, Com-Net Ericsson points out that such a change would allow a
    *manufacturer*, as opposed to the Commission, to determine which
    format to incorporate in its radios, regardless of what the users
    and other manufacturers decide is optimal for operations on the
    narrowband data Interoperability channels. According to Com-Net, the
    possibility exists that fully compliant radios made by different
    manufacturers might not be able to communicate with each other on
    the narrowband data Interoperability channels.

34. On June 6, 2001, the NCC recommended that the Commission delete
    reference to circuit data specification and adopt packet data
    specifications exclusively.[^92] The NCC noted that,

> "packet data is now so ubiquitous in the industry that there no longer
> is any need for, indeed any conceivable use for, circuit data
> capability in a 700 MHz public safety radio. Thus, requiring both
> circuit data and packet data capability in a radio -- as a literal
> reading of the \[\] rule may suggest -- would serve only to add to the
> cost, complexity and size of the radio, all to no purpose."[^93]

35. For the reasons set forth above, we agree that the rule should be
    clarified so that reference to circuit data capability is deleted.
    This action will promote interoperability, and lessen cost,
    confusion and potential inefficiency among manufacturers of 700 MHz
    public safety band radio equipment.

### Section 90.553, Encryption

36. On January 23, 2001, the American National Standards Institute
    (ANSI) published the Project 25 DES encryption standards.[^94] Our
    rules will be amended to note this change, from interim standards
    (IS) to permanent ANSI standards.

### Section 90.531, Band plan

37. We are taking this opportunity to correct minor publication errors,
    including Section 90.531(c)(1), wideband interoperability channels.
    The Commission intended to designate wideband channels 82-84 for
    nationwide interoperability licensing and use[^95] but the current
    rule refers to wideband channels 83-84. We will also revise the rule
    to clarify that wideband interoperability channels will be available
    for licensing and use after the Commission adopts a wideband
    interoperability standard.

38. We also are correcting Section 90.531(d), Combining channels.
    Through an inadvertent oversight, it now appears that Section
    90.531(d)(1) and (2) were deleted from the rules. We are hereby
    restoring (1) and (2), with minor corrections.

# PROCEDURAL MATTERS

## Regulatory Flexibility Act

39. Appendix A contains a Supplemental Final Regulatory Flexibility
    Analysis (SFRFA) with respect to the *Fourth Memorandum Opinion and
    Order*. As required by the Regulatory Flexibility Act,[^96] the
    Commission has prepared the analysis of the possible impact on small
    entities of the rules set forth in this document. The Commission\'s
    Consumer Information Bureau, Reference Information Center, will send
    a copy of this *Fourth Memorandum Opinion and Order*, including the
    SFRFA, to the Chief Counsel for Advocacy of the Small Business
    Administration in accordance with the Regulatory Flexibility Act.

## Paperwork Reduction Act

40. This *Memorandum Opinion and Order* does not contain any new or
    modified information collection. Therefore, it is not subject to the
    requirements for a paperwork reduction analysis, and the Commission
    has not performed one.

# ORDERING CLAUSES 

41. Authority for the issuance of this *Fourth Memorandum Opinion and
    Order* is contained in Sections 4(i), 4(j), 7(a), 302, 303(b),
    303(f), 303(g), 303(r), 307(e), 332(a), and 332(c) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j),
    157(a), 302, 303(b), 303(f), 303(g), 303(r), 307(e), 332(a), 332(c).

42. Accordingly, IT IS ORDERED that Part 90 of the Commission\'s Rules,
    47 C.F.R. Part 90 IS AMENDED as specified in Appendix C.

43. IT IS FURTHER ORDERED that this *Fourth Memorandum Opinion and
    Order* will be effective thirty days after publication in the
    Federal Register.

44. IT IS FURTHER ORDERED that the Commission\'s Consumer Information
    Bureau, Reference Information Center, SHALL SEND a copy of this
    *Fourth Memorandum Opinion and Order,* including the Supplemental
    Final Regulatory Flexibility Analysis, to the Chief Counsel for
    Advocacy of the Small Business Administration.

45. IT IS FURTHER ORDERED pursuant to Section 4(i) and 405 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405,
    and Section 1.429(i) of the Commission's Rules, 47 C.F.R. §
    1.429(i), that the petitions for reconsideration, clarification,
    and/or a declaratory ruling filed by Motorola, the North America
    TETRA Forum, Sergeant John S. Powell, the Public Safety Wireless
    Network, Com-Net Ericsson Critical Radio Systems, Inc. ARE GRANTED
    to the extent indicated herein and otherwise ARE DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    William F. Caton

Acting Secretary

**APPENDIX A**

**Supplemental Final Regulatory Flexibility Analysis**

As required by the Regulatory Flexibility Act of 1980, as amended
(RFA),[^97] a Final Regulatory Flexibility Analysis (FRFA) was
incorporated into the *Fourth Report and Order and Fifth Notice of
Proposed Rule Making (Fourth R&O and Fifth NPRM)*[^98] of this
proceeding. The Commission sought written public comment on the
proposals in the *Fifth NPRM*, including comment on the IRFA.[^99] The
present Supplemental Final Regulatory Flexibility Analysis (SFRFA)
conforms to the RFA.[^100]

**A. Need for, and Objectives of, the *Fourth Memorandum Opinion and
Order*:**

Our objective is to promote the early and efficient use of public safety
spectrum in the frequencies at 764-776 MHz and 794-806 MHz (the 700 MHz
band). Specifically, this action will: promote spectrum efficiency
through allowing secondary trunking on the Interoperability channels;
promote efficient administration of the Interoperability channels by
state or local entities; permit encryption on the Interoperability
channels; and establish digital voice standards and efficiency standards
for the Interoperability channels.

**B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA:**

No comments were submitted in response to the IRFA.

**C. Description and Estimate of the Number of Small Entities to Which
Rules Will Apply:**

C.  The RFA directs agencies to provide a description of and, where
    feasible, an estimate of, the number of small entities that may be
    affected by the proposed rules, if adopted.[^101] The RFA generally
    defines "small entity" as having the same meaning as the terms
    "small business," "small organization," and "small governmental
    jurisdiction."[^102] In addition, the term "small business" has the
    same meaning as "small business concern" under the Small Business
    Act.[^103] A small business concern is one which : (1) is
    independently owned and operated; (2) is not dominant in its field
    of operations; and (3) satisfies any additional criteria established
    by the Small Business Administration (SBA).[^104] A small
    organization is generally "any not-for-profit enterprise which is
    independently owned and operated and is not dominant in its
    field.[^105] Nationwide, as of 1992, there were approximately
    275,801 small organizations.[^106] \"Small governmental
    jurisdiction\" generally means \"governments of cities, counties,
    towns, townships, villages, school districts, or special districts,
    with a population of less than 50,000.\"[^107] As of 1992, there
    were approximately 85,006 such jurisdictions in the United
    States.[^108] This number includes 38,978 counties, cities, and
    towns; of these, 37,566, or ninety-six percent, have populations of
    fewer than 50,000.[^109] The Census Bureau estimates that this ratio
    is approximately accurate for all governmental entities. Thus, of
    the 85,006 governmental entities, we estimate that 81,600
    (ninety-one percent) are small entities.

    *Public Safety Radio Pool Licensees.* As a general matter, Public
    Safety Radio Pool licensees include police, fire, local government,
    forestry conservation, highway maintenance, and emergency medical
    services.[^110] Spectrum in the 700 MHz band for public safety
    services is governed by 47 U.S.C. § 337. Non-Federal governmental
    entities as well as private businesses are licensees for these
    services. All governmental entities with populations of less than
    50,000 fall within the definition of a small entity.[^111]

    *Radio and Television Equipment Manufacturers*. We anticipate that
    at least six radio equipment manufacturers will be affected by our
    decisions in this proceeding. According to the SBA\'s regulations, a
    radio and television broadcasting and communications equipment
    manufacturer must have 750 or fewer employees in order to qualify as
    a small business concern.[^112] Census Bureau data indicate that
    there are 858 U.S. firms that manufacture radio and television
    broadcasting and communications equipment, and that 778 of these
    firms have fewer than 750 employees and would therefore be
    classified as small entities.[^113] We do not have information that
    indicates how many of the six radio equipment manufacturers
    associated with this proceeding are among these 778 firms. However,
    Motorola and Ericsson, two of the six manufacturers, are major,
    nationwide radio equipment manufacturers, and, thus, we conclude
    that these manufacturers would *not* qualify as small businesses.

    *Television Stations*. This proceeding will affect full service TV
    station licensees (Channels 60-69), TV translator facilities, and
    low power TV (LPTV) stations. The SBA defines a TV broadcasting
    station that has no more than \$10.5 million in annual receipts as a
    small business.[^114] TV broadcasting stations consist of
    establishments primarily engaged in broadcasting visual programs by
    TV to the public, except cable and other pay TV services.[^115]
    Included in this industry are commercial, religious, educational,
    and other TV stations.[^116] Also included are establishments
    primarily engaged in TV broadcasting and which produce taped TV
    program materials.[^117] Separate establishments primarily engaged
    in producing taped TV program materials are classified under another
    NAICS Code.[^118]

    There were 1,509 TV stations operating in the nation in 1992.[^119]
    That number has remained fairly constant as indicated by the
    approximately 1,551 operating TV broadcasting stations in the nation
    as of February 28, 1997.[^120] For 1992[^121] the number of TV
    stations that produced less than \$10.0 million in revenue was 1,155
    establishments, or approximately 77 percent of the 1,509
    establishments.[^122] There are currently 95 full service analog TV
    stations, either operating or with approved construction permits on
    channels 60‑69.[^123] In the *DTV Proceeding*, we adopted a DTV
    Table that provides only 15 allotments for DTV stations on
    channels 60‑69 in the continental United States.[^124] There are
    seven DTV allotments in channels 60‑69 outside the continental
    United States.[^125] Thus, the rules will affect approximately 117
    TV stations; approximately 90 of those stations may be considered
    small businesses.[^126] These estimates may overstate the number of
    small entities since the revenue figures on which they are based do
    not include or aggregate revenues from non-TV affiliated companies.
    We recognize that the rules may also impact minority-owned and
    women-owned stations, some of which may be small entities. In 2000,
    minorities owned and controlled 23 (1.9 percent) of 1,288 full power
    commercial TV stations in the United States.[^127] According to the
    U.S. Bureau of the Census, in 1987 women owned and controlled 27
    (1.9 percent) of 1,342 commercial and non-commercial TV stations in
    the United States.[^128]

    There are currently 4,977 TV translator stations and 1,952 LPTV
    stations.[^129] Approximately 1,309 low power TV and TV translator
    stations are on channels 60‑69[^130] which could be affected by
    policies in this proceeding. The Commission does not collect
    financial information of any broadcast facility and the Department
    of Commerce does not collect financial information on these
    broadcast facilities. We will assume for present purposes, however,
    that most of these broadcast facilities, including LPTV stations,
    could be classified as small businesses. As indicated earlier,
    approximately 77 percent of TV stations are designated under this
    analysis as potentially small businesses. Given this, LPTV and TV
    translator stations would not likely have revenues that exceed the
    SBA maximum to be designated as small businesses.

**D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements:**

The *Fourth Memorandum Opinion and Order* does not adopt rules that will
entail reporting, recordkeeping, and/or third-party consultation.

E. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered:

The RFA requires an agency to describe any significant alternatives that
it has considered in reaching its proposed approach, which may include
the following four alternatives (among others): (1) the establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use of
performance, rather than design, standards; and (4) an exemption from
coverage of the rule, or any part thereof, for small entities. 5 U.S.C.
§603.

The NCC, comprised of representatives from government, the public safety
community, and the communications equipment manufacturing industry, was
chartered by the FCC as a Federal Advisory Committee, effective February
25, 1999. The NCC made recommendations concerning various issues
addressed in the *Fourth Notice***.** We note that in several instances,
to benefit all entities, including small entities, we did not propose a
particular recommendation.

In formulating the rules in the *Fourth Memorandum Opinion and Order*,
we reduced economic burdens wherever possible. The regulatory burdens
that we have adopted are necessary to ensure that the public receives
the public safety benefits of innovative new services in a prompt and
efficient manner. For example, we have adopted technical and operational
rules that will promote competition in the equipment market. We believe
that the rules must be as competitively and technologically neutral as
possible, in order to allow for competing equipment designs and to avoid
hindering future innovative technological developments. We note that
tighter technical specifications generally allow more intense spectrum
use, but may result in higher equipment costs. Conversely, although
wider tolerances may allow manufacturers to use less costly component
parts in transmitting equipment, they also may result in less efficient
spectrum use. With these considerations in mind, we believe that the
technical regulations we adopt herein provide a reasonable balance of
these concerns.

Under the regional planning process, frequency coordination is
competitive. Frequency coordination is the process by which a private
organization recommends to the Commission the most appropriate
frequencies for private land mobile radio service applicants.[^131]
Frequency coordinators provide a valuable service to the Commission by
eliminating common application errors, thereby improving the quality of
the applications and resolving potential interference problems at the
source. We continue to believe that the encouragement of competition
among coordinators promotes cost-based pricing of coordination services
and provides incentives for enhancing service quality. Therefore, we
will continue to allow any of the certified public safety coordinators
to provide coordination in the 700 MHz band.

Recognizing the budgetary constraints that public safety entities face
as a matter of course, we have adopted rules that encourage broad-based
efforts, such as projects on the state and regional level, to coordinate
and consolidate operations that are critical to meeting the needs of
public safety with cost effective, spectrally-efficient radio systems.
For example, we have adopted permissive trunking on certain public
safety channels in the 700 MHz band. Trunked systems provide service to
many governmental entities in a specific geographic area and offer a
higher degree of efficiency than some smaller, non-trunked systems. A
difficulty in establishing these types of shared systems is that they
require individual agencies to surrender some autonomy in return for the
efficiencies and better coverage of a larger system. In addition, the
funding required to develop the infrastructure necessary to support some
of the newer technologies is often too great to permit small public
safety agencies to participate in new, sophisticated, spectrum
efficient, wireless radio systems. These same agencies, however, might
be able to participate in a county-wide or state-wide system. For these,
and other, reasons, we encourage the use of shared systems in the public
safety community.[^132]

**[Report to Congress]{.underline}**: The Commission will send a copy of
the *Fourth Memorandum Opinion and Order*, including this SFRFA, in a
report to be sent to Congress pursuant to the SBREFA, *see* 5 U.S.C. §
801(a)(1)(A). In addition, the commission will send a copy of the
*Fourth Memorandum Opinion and Order* to the Chief Counsel for Advocacy
of the Small Business Administration. In addition, the *Fourth
Memorandum Opinion and Order* and SFRFA (or summaries thereof) will be
published in the Federal Register. *See* 5 U.S.C. § 604(b).

**APPENDIX B**

**[List of Parties]{.smallcaps}**

**Petitions for Reconsideration and/or Clarification were filed by:**

Motorola

North America TETRA Forum

Sergeant John S. Powell

Public Safety Wireless Network

**Oppositions and Replies to Petitions for Reconsideration were filed
by:**

Association of Public-Safety Communications Officials, International

Com-Net Ericsson Critical Radio Systems, Inc.

Marconi Wireless

Nokia Inc.

Simoco Digital Systems

**Petition for Declaratory Ruling was filed by:**

Com-Net Ericsson Critical Radio Systems, Inc.

**APPENDIX C**

**[Final Rules]{.smallcaps}**

***Fourth Memorandum Opinion and Order***

Part 90 of Title 47 of the Code of Federal Regulations is amended as
follow:

1\. The authority citation for part 90 continues to read as follows:

AUTHORITY: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g),
303(r), 332(c)(7).

2\. Section 90.531 is revised to read as follows:

§ 90.531 Band plan.

\* \* \* \* \*

(b)(1) \* \* \*

\* \* \* \* \*

\(iii\) *Narrowband trunking Interoperability channels*. The following
Interoperability channel pairs may be combined with the appropriate
adjacent secondary trunking channel pairs and used in trunked mode on a
secondary basis to conventional interoperability operations: 23/983,
24/984, 103/1063, 104/1064, 183/1143, 184/1144, 263/1223, 264/1224,
657/1617, 658/1618, 737/1697, 738/1698, 817/1777, 818/1778, 897/1857,
898/1858. For every ten general use channels trunked at a station,
entities may obtain a license to operate in the trunked mode on two of
the above contiguous Interoperability channel pairs. The maximum number
of Interoperability channel pairs that can be trunked at any one
location is eight.

\* \* \* \* \*

(b)(7) *Secondary trunking channels.* The following channel pairs are
reserved for secondary trunking operations: 21/981, 22/982, 101/1061,
102/1062, 181/1141, 182/1142, 261/1221, 262/1222, 659/1619, 660/1620,
739/1699, 740/1700, 819/1779, 820/1780, 899/1859, and 900/1860. They may
be used only in combination with the appropriate adjacent
Interoperability channel pairs specified in (b)(1)(iii) of this section
in trunked systems.

\* \* \* \* \*

(c)(1) *Wideband interoperability channels*. The following wideband
channels are designated for nationwide interoperability licensing and
use, but are not available for licensing or use pending Commission
adoption of a wideband interoperability standard: 28-30, 37-39, 46-48,
73-75, 82-84, 91-93, 148-150, 157-159, 166-168, 193-195, 202-204,
211-213.

\* \* \* \* \*

\(d\) *Combining channels.* Except as noted in this section, at the
discretion of the appropriate regional planning committee, contiguous
channels may be used in combination in order to accommodate requirements
for larger bandwidth emissions, in accordance with this paragraph.
Interoperability channels may not be combined with channels in another
group except for channels for secondary trunking channels.

(1)  *Narrowband.* Two or four contiguous narrowband (6.25 kHz) channels
may be used in combination as 12.5 kHz or 25 kHz channels, respectively.
The lower (in frequency) channel for two channel combinations must be an
odd (*i.e.*, 1, 3, 5 \...) numbered channel. The lowest (in frequency)
channel for four channel combinations must be a channel whose number is
equal to 1+(4xn), where n = any integer between 0 and 479, inclusive
(*e.g.*, channel number 1, 5, \... 1917). Channel combinations are
designated by the lowest and highest channel numbers separated by a
hyphen, *e.g.*, \"1‑2\" for a two channel combination and \"1‑4\" for a
four channel combination.

(2)  *Wideband*. Two or three contiguous wideband (50 kHz) channels may
be used in combination as 100 kHz or 150 kHz channels, respectively. The
lower (in frequency) channel for two channel combinations must be a
channel whose number is equal to 1+(3xn) or 2+(3xn), where n = any
integer between 0 and 79, inclusive (*e.g.*, channel number 1, 2, 4, 5,
7, 8, \... 238, 239). The lowest (in frequency) channel for three
channel combinations must be a channel whose number is equal to 1+(3xn),
where n = any integer between 0 and 79, inclusive (*e.g*., channel
number 1, 4, 7, 10, \... 238). Channel combinations are designated by
the lowest and highest channel numbers separated by a hyphen, *e.g*.,
\"1‑2\" for a two channel combination and \"1‑3\" for a three channel
combination.

\* \* \* \* \*

3\. Section 90.531(b)(2) is amended by removing the following channels:
659, 660, 739, 740, 819, 820, 899, 900, 1619, 1620, 1699, 1700, 1779,
1780, 1859, and 1860; and adding the following channels: 37, 38, 61, 62,
77, 78, 141, 142, 221, 222, 277, 278, 301, 302, 317, 318, 997, 998,
1021, 1022,1037, 1038, 1101, 1102, 1181, 1182, 1237, 1238, 1261, 1262,
1277, and 1278.

4\. Section 90.547 is revised to read as follows:

§ 90.547 Narrowband interoperability channel capability requirement.

> \(a\) Except as noted below, mobile and portable transmitters
> operating on narrowband channels in the 764-776 MHz and 794-806 MHz
> frequency bands must be capable of operating on all of the designated
> nationwide narrowband Interoperability channels pursuant to the
> standards specified in this part.
>
> \(1\) Mobile and portable transmitters that are designed to operate
> only on the Low Power Channels specified in Sections 90.531 (b)(3) and
> (4) are exempt from this Interoperability channel requirement.

\(2\) Mobile and portable transmitters that are designed to operate only
in the data mode must be capable of operation on the data
Interoperability channels specified in Section 90.531(b)(1)(i); but need
not be capable of voice operation on other Interoperability channels.

\(3\) Mobile and portable transmitters that are designed to operate only
in the voice mode do not have to operate on the data Interoperability
channels specified in Section 90.531(b)(1)(i).

\(b\) Mobile and portable transmitters designed for data are not
required to be voice capable, and vice versa.

5\. Section 90.548 is added to read as follows:

§ 90.548 Interoperability Technical Standards

\(a\) Transmitters required ([See]{.underline} 90.547) to be capable of
operating on narrowband Interoperability channels in the 764-776 and
794-806 MHz band ([See]{.underline} 90.531) shall conform such
operations to the following technical standards:

\(1\) Transmitters designed for voice operation shall include a 12.5 kHz
bandwidth mode of operation conforming to the following standards:
ANSI/TIA/EIA 102.BAAA-1 (common air interface) for operation in the 12.5
kHz FDM mode; ANSI/TIA/EIA 102.BABA (vocoder).

\(2\) Transmitters designed for data transmission shall include a 12.5
kHz bandwidth mode of operation conforming to the following standards:
ANSI/TIA/EIA 102.BAEA (data overview); ANSI/TIA/EIA 102.BAEB (packet
data specification); ANSI/TIA/EIA 102.BAEA (radio control protocol);
ANSI/TIA/EIA 102.BAAA-1 (common air interface) for operation in the 12.5
kHz FDM mode.

\(b\) Copies of the standards listed in this Section that are
incorporated by reference can be purchased from the American National
Standards Institute, Washington, DC Headquarters, 1819 L Street, NW, 6th
Floor, Washington, DC 20036.

\(c\) Copies of the standards listed in this Section that are
incorporated by reference may be inspected at the Federal Communications
Commission, 445 12th Street, SW, Washington, DC (Reference Information
Center) or at the Office of the Federal Register, 800 North Capitol
Street, NW, Suite 700, Washington D.C.

6.  Section 90.553 is revised to read as follows:

§ 90.553 Encryption

(a) Encryption is permitted on all but the two nationwide
    Interoperability calling channels. Radios employing encryption must
    have a readily accessible switch or other readily accessible control
    that permits the radio user to disable encryption.

(b) If Encryption is employed then the following encryption protocol
    must be used: ANSI/TIA/EIA 102.AAAA-A-2001.

(c) Copies of the standards listed in this Section that are incorporated
    by reference can be purchased from TIA/EIA, 2500 Wilson Boulevard,
    Arlington, VA, 22201; Global Engineering Documents, 155 Inverness
    Way East, Englewood, CO 80112; or the American National Standards
    Institute, 1819 L Street, N.W., 6^th^ Floor, Washington, DC 20036.

**APPENDIX D**

**Public Safety 700 MHz Band -- Spectrum Designations**

The instant *Fourth Memorandum Opinion and Order* does not change the
amount of spectrum designated for each use. By way of reference, the
twenty-four megahertz of spectrum allocated for public safety services
in the 700 MHz band is designated, as a the result of the Commission's
actions in the *Fourth Report and Order*, as follows:

700 MHz Public Safety Band---Spectrum Designations

+---------------+------------+---------------------------+-----------+
| **Designated  | **Amount   | **Narrowband\             | **        |
| Purpose**     | of         | (6.25 kHz)**              | Wideband\ |
|               | Spectrum** |                           | (         |
|               |            |                           | 50 kHz)** |
+---------------+------------+---------------------------+-----------+
| [General      | 12.5 MHz\  | 7.7 MHz\                  | 4.8 MHz\  |
| Use           | (52.1 %)   | (1232 channels)           | (96       |
| ]{.smallcaps} |            |                           | channels) |
+---------------+------------+---------------------------+-----------+
| [Int          | 2.6 MHz\   | 0.8 MHz\                  | 1.8 MHz\  |
| eroperability | (10.8 %)   | (128 channels)            | (36       |
| ("IO")        |            |                           | channels) |
| ]{.smallcaps} |            | [non-IO secondary         |           |
|               |            | trunking]{.underline}\    |           |
|               |            | • 32 of these 128         |           |
|               |            | channels, which **equates |           |
|               |            | to eight 12.5 kHz channel |           |
|               |            | pairs,** may be added to  |           |
|               |            | non-IO trunked systems\   |           |
|               |            | • non-IO trunking is      |           |
|               |            | secondary to IO           |           |
+---------------+------------+---------------------------+-----------+
| [Secondary    | 0.2 MHz\   | 0.2 MHz\                  | \- 0 -    |
| Trunking      | ( 0.8 %)   | (32 channels)             |           |
| ]{.smallcaps} |            |                           |           |
|               |            | [non-IO trunked 25 kHz    |           |
|               |            | systems]{.underline}\     |           |
|               |            | • 32 non-IO channels      |           |
|               |            | (**eight 12.5 kHz pairs** |           |
|               |            | **adjacent to the eight   |           |
|               |            | 12.5 kHz IO channels      |           |
|               |            | above)** that may be      |           |
|               |            | added to non-IO trunked   |           |
|               |            | systems\                  |           |
|               |            | • available only to       |           |
|               |            | licensees of the eight    |           |
|               |            | 12.5 kHz IO channels      |           |
|               |            | (above) that use non-IO   |           |
|               |            | trunked 25 kHz systems\   |           |
|               |            | • secondary to IO         |           |
+---------------+------------+---------------------------+-----------+
| [State        | 2.4 MHz\   | 2.4 MHz\                  | \- 0 -    |
| License       | (10.0 %)   | (384 channels)            |           |
| ]{.smallcaps} |            |                           |           |
+---------------+------------+---------------------------+-----------+
| [Low          | 0.3 MHz\   | 0.3 MHz\                  | \- 0 -    |
| Power         | (1.3 %)    | (48 channels)             |           |
| ]{.smallcaps} |            |                           |           |
+---------------+------------+---------------------------+-----------+
| [Reserve      | 6.0 MHz\   | 0.6 MHz\                  | 5.4 MHz\  |
| ]{.smallcaps} | (25.0 %)   | (96 channels)             | ( 108     |
|               |            |                           | channels) |
+---------------+------------+---------------------------+-----------+
| T O T A L     | 24 MHz\    | 12 MHz\                   | 12 MHz\   |
|               | (100 %)    | (1920 channels)           | (240      |
|               |            |                           | channels) |
+---------------+------------+---------------------------+-----------+

**APPENDIX E**

**Public Safety 700 MHz Band -- Segmentation and Channelization Table**

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[^1]: 16 FCC Rcd 2020 (2001) ("*Fourth R&O*").

[^2]: The Commission has defined "Interoperability" as "an essential
    communications link within public safety and public service wireless
    communications systems which permits units from two or more
    different entities to interact with one another and to exchange
    information according to a prescribed method in order to achieve
    predictable results." Development of Operational, Technical and
    Spectrum Requirements for Meeting Federal, State and Local Public
    Safety Agency Communications Requirements Through the Year 2010, WT
    Docket No. 96-86, *First Report and Order and Third Notice of
    Proposed Rulemaking*, 14 FCC Rcd 152, 189-90 ¶ 76 (1998).

[^3]: *See* Public Safety National Coordination Committee's
    Recommendations to the Federal Communications Commission for
    Technical and Operational Standards for Use of the 764-776 MHz and
    794-806 MHz Public Safety Band Pending Development of Final Rules
    (Feb. 25, 2000) (NCC Report). The NCC report included detailed
    technical information. A copy of the NCC Report can be obtained via
    the Internet at http://wireless.fcc.gov/publicsafety, or from Qualex
    International, Portals II, 445 12^th^ Street SW, Room CY-B402,
    Washington, DC 20554, telephone 202-863-2893, facsimile
    202-863-2898, or via e-mail qualexint@aol.com.

[^4]: 5 U.S.C. App. 2 (1988).

[^5]: In its Report, the NCC recommended that the Commission allow, but
    not mandate, trunking on some of the Interoperability channels on a
    secondary basis; these channels have become known as "secondary
    trunking channels." NCC Report at 9 ¶ 24; *see also Fourth R&O,* 16
    FCC Rcd at 2033-37 ¶¶ 36-45.

[^6]: ^?^ *First Report and Order and Third Notice of Proposed
    Rulemaking*, 14 FCC Rcd 152, 162-64 ¶¶ 13-16.

[^7]: The amount was subsequently changed to 12.5 MHz. *See* note 14
    *infra.*

[^8]: *Id.* at 176. The General Use spectrum is administered by regional
    planning committees and will be licensed for public safety services
    on a site-by-site basis in accordance with the relevant
    Commission-approved regional plan and frequency coordination. The
    Interoperability spectrum is designated for communications within
    public safety and public service wireless communications systems
    which permits units from two or more different entities to interact
    with one another and to exchange information according to a
    prescribed method in order to achieve predictable results. Mobile
    units are licensed by rule and any base stations must be approved by
    the relevant Interoperability administrator, *e.g.*, designated
    state agency or RPC, and licensed site-by-site.

[^9]: *Id.* at 196 ¶ 90.

[^10]: *Id.* at 197 ¶ 92. Among its major responsibilities, the NCC was
    charged with: (1) formulating and submitting for Commission review
    and approval an operational plan to achieve national
    Interoperability that includes a shared or priority system among
    users of the Interoperability spectrum, for both day-to-day and
    emergency operations, and recommendations regarding Federal users\'
    access to the Interoperability spectrum; (2) recommending
    Interoperability digital modulation, trunking, and receiver
    standards for Commission review and approval; (3) providing
    voluntary assistance in the development of coordinated regional
    plans; and (4) providing general recommendations to the Commission
    on operational plans of the public safety community. *Id*. See
    *also* Federal Advisory Committee Act, 5 U.S.C. App. 2 (1988).

[^11]: For a discussion of the NCC's activities from its inception, see
    NCC Report at 1-4.

[^12]: The *Fourth R&O* treated the NCC's recommendations. We
    simultaneously issued a *Fifth Notice of Proposed Rule Making*
    regarding migration to 6.25 kHz technology on the General Use
    channels. We issued this as a separate notice of proposed rule
    making, as opposed to resolving the migration question in the
    *Fourth R&O,* because the issue of migration to 6.25 kHz technology
    on the General Use channels was not raised in the underlying *Fourth
    Notice of Proposed Rule Making* or in the NCC Report*.*

[^13]: Certain interoperability channels are available for
    non-interoperability trunked (12.5 kHz) systems on a secondary basis
    to interoperability. "Secondary trunking" channels can be added
    designated interoperability channels when needed for
    non-interoperability trunked 25 kHz systems. In the *Fourth R&O*,
    the Commission established the parameters of permissible secondary
    trunking use. *See* paras. 11-13 *infra.*

[^14]: The *Fourth R&O* designated 0.2 megahertz of Reserve spectrum,
    adjacent to the eight Interoperability channels, to be Secondary
    Trunking channels. *See Fourth R&O,* 16 FCC Rcd at 2036-37 ¶ 44-45.
    In September 2000, the Commission revised the 1998 band plan by
    adopting, *inter alia*, "State License" and "Low Power"
    designations. *See* The Development of Operational, Technical and
    Spectrum Requirements for Meeting Federal, State and Local Public
    Safety Agency Communications Requirements Through the Year 2010, WT
    Docket No. 96-86, *Third Memorandum Opinion and Order and Third
    Report and Order*, 15 FCC Rcd 19844, 19848 (2000).

[^15]: In its Report, the NCC noted that "\[t\]he National Public Safety
    Telecommunications Council (NPSTC) has requested the NCC to
    recommend that the Commission take whatever action is necessary to
    ensure that the Regional Planning Committees make mandatory use of a
    700 MHz public safety pre-coordination database when specifying
    interoperability channel assignments. The database is to be used on
    a real time basis to provide optimum spectrum use and to avoid
    selection of channels that would result in interference conflicts.
    The database would be provided and maintained by the National Law
    Enforcement and Corrections Technology Center -- Rocky Mountain
    Region (NLETC) and would be funded by the National Institute of
    Justice (NIJ)." NCC Report at 23 ¶ 74 (footnotes omitted).

[^16]: *Fourth R&O,* 16 FCC Rcd at 2028 ¶ 18 *citing* Joint Commenters
    Comments at 16.

[^17]: *Fourth R&O,* 16 FCC Rcd at 2028 ¶ 18.

[^18]: *Fourth R&O,* 16 FCC Rcd at 2028 ¶ 18.

[^19]: John Powell is a 25-year veteran sergeant with the University of
    California Police Department at Berkeley, California. Among other
    positions, he currently chairs the NCC's Interoperability Committee.
    Powell Petition at 2-4.

[^20]: PSWN is "a federally funded initiative operating on behalf of all
    local, state, and federal public safety agencies. The Department of
    Defense and the Department of the Treasury are jointly leading the
    PSWN Program's effort to plan and foster interoperability among
    public safety wireless networks." PSWN Petition at 2, note 3. PSWN
    has been an active participant in NCC-related meetings and
    proceedings.

[^21]: *See* Powell Petition at 5; PSWN Petition at 3-4.

[^22]: PSWN Petition at 4.

[^23]: Powell Petition at 5.

[^24]: *Id.*

[^25]: *See, e.g.*, WT Docket 96-86, Letter from the Public Safety
    Communications Council, Al Mello, Chairman, to Marilyn Ward,
    Chairperson, National Public Safety Telecommunications Council
    (dated May 24, 2001). The PSCC letters states the position of
    AASHTO, APCO, FCCA, and IMSA/IAFC (the four FCC-certified public
    safety coordinators) regarding the pre-coordination database. *Id*.
    at 1.

[^26]: *Fourth R&O*, 16 FCC Rcd at 2028 ¶ 19.

[^27]: *Id.*

[^28]: *Id*. at 2028 ¶ 18.

[^29]: PSWN indicates that "\[t\]he National Institute of Justice \[a
    division of the U.S. Department of Justice\] has agreed to fund the
    pre-coordination database. Moreover, the certified Public Safety
    Frequency Coordinators have agreed to enter and maintain the
    applicable information in the database as part of the
    pre-established licensing process. Thus, the obligation to create,
    populate, and administer the pre-coordination database will note
    fall to the states, RPCs, or the Commission." PSWN Petition at 4.

[^30]: *See, e.g.,* WT Docket No. 96-86, Letter from The Public Safety
    Communications Council Executive, Al Mello, Chairman, to Marilyn
    Ward, Chairperson, National Public Safety Telecommunications Council
    (dated May 24, 2001).

[^31]: *Id* at 2035 ¶ 40.

[^32]: *Id.* at 2036-37 ¶ 45.

[^33]: *See* Appendix C *infra.*

[^34]: *Fourth R&O*, 16 FCC Rcd at 2036 ¶ 42*.*

[^35]: *Id.*

[^36]: 4.8 kilobits per second per 6.25 kHz for narrowband
    interoperability channels.

[^37]: *Id*. at 2036-37 ¶¶ 44 45. The Commission stated that the Reserve
    Spectrum channels will be designated as secondary trunking channels
    and may only be used in connection with the adjacent
    Interoperability 12.5 kHz channel pair in a trunked system. The
    *Fourth R&O* also specified the specific 6.25 kHz channels that can
    be combined to form the eight 25 kHz trunked channels.

[^38]: *Fourth R&*O, 16 FCC Rcd at 2036-37 ¶ 45*.*

[^39]: Powell Petition at 6; PSWN Petition at 6.

[^40]: We are adopting rule revisions in Appendix C to designate certain
    6.25 kHz Reserve Spectrum channels as secondary trunking channels
    that can be combined with adjacent Interoperability channels to form
    25 kHz channels.

[^41]: *Fourth R&O*, 16 FCC Rcd at 2039 ¶ 53.

[^42]: By way of reference, in adopting service rules for the commercial
    portion of the 700 MHz band, the Commission established "Guard Bands
    to protect the immediately adjacent public safety licensees on
    Channels 63, 64, 68, and 69 from harmful interference from
    operations on the 30 megahertz segment." Service Rules for the
    746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the
    Commission's Rules, WT Docket No. 99-168, *Memorandum Opinion and
    Order and Further Notice of Proposed Rulemaking*, 15 FCC Rcd 20845,
    20873 ¶ 69 (2000) *citing First Report and Order*, WT Docket No.
    99-168, 15 FCC Rcd 476, 490-91 ¶¶ 33-34 (2000). *See also Second
    Report and Order*, WT Docket No. 99-168, 15 FCC Rcd 5299 (2000).

[^43]: Powell Petition at 6; PSWN Petition at 6.

[^44]: Powell Petition at 7; PSWN Petition at 7. *See also* Protection
    of Public Safety Systems From 700 MHz CMRS Band Interference,
    Telecommunications Industry Association (TIA Report) (February 20,
    2001).

[^45]: Powell Petition, Exhibits 1 and 2. On August 23, 2001, the
    Telecommunications Industry Association submitted industry consensus
    recommendations regarding adjacent channel coupled power (ACCP)
    requirements for transmitters, 47 C.F.R. § 90.543. The
    recommendations were in response to the Commission's request that
    the industry "review this technical issue and provide \[the
    Commission\], . . . , consensus recommendations for values of ACCP
    emissions limits." The Development of Operational, Technical and
    Spectrum Requirements for Meeting Federal, State, and Local Public
    Safety Agency Communications Requirements Through theYear 2010, WT
    Docket 96-86, *Second Memorandum Opinion and Order,* 15 FCC Rcd
    16844, 16853 ¶ 16 (2000). The Commission anticipates addressing
    those recommendations in the near future.

[^46]: NCC Report at 14 ¶ 44.

[^47]: *Id.; see also* NCC Report, Appendix D, *Voice Channel Priority
    Recommendations.*

[^48]: *Fourth R&O,* 16 FCC Rcd at 2042 ¶ 64, *citing Fourth Notice,* 15
    FCC Rcd at 16907 ¶ 37.

[^49]: *See* Development of Operational, Technical and Spectrum
    Requirements for Meeting Federal, State and Local Public Safety
    Agency Communication Requirements Through the Year 2010, WT Docket
    No. 96-86, *Second Report and Order*, 15 FCC Rcd 16720, 16721
    (2000). The Commission determined that, should a commercial mobile
    radio service provider choose to offer PAS, the Commission would
    require them to "adhere to uniform operating protocols concerning
    the number of priority levels and the priority level for particular
    NSEP user." *Id.* at 16722 ¶ 4.

[^50]: Powell Petition at 9-11; PSWN Petition at 5-6.

[^51]: Powell Petition at 9 (footnote omitted).

[^52]: *Id.* at 11.

[^53]: PSWN Petition at 6.

[^54]: *Fourth R&O,* 16 FCC Rcd at 2042 ¶ 63.

[^55]: "\[T\]he single most critical element \[for enhancing
    interoperability\] is the idea of bringing together decision-makers
    from several governmental sectors, with ultimate authority derived
    from the executive power of the state." *See* PSWN Program, *SIECs:
    States' Most Effective Tool For Coordinating Interoperability,
    Washington State Case Study and Best Practices Guide*, at 2 § 1.3
    (October 8, 2001).

[^56]: PSWN advises that "even federal entities are generally subject to
    state law for activities entirely within that state's borders unless
    the Congress chooses to preempt that right specifically and for a
    clearly defined purpose." *Id.* at 8 § 2.5.

[^57]: *Fourth R&O,* 16 FCC Rcd at 2042 ¶ 64.

[^58]: *Id.* at 2039 ¶ 55, "Florida, for example, while noting that such
    a designation 'has considerable value to the effective and
    cooperative use' of mutual aid channels, expressed concern about
    'the degree of specificity and exclusiveness incorporated in the
    NCC-recommend (*sic*) naming and use designation . . . .' For their
    part, the Joint Commenters asserted that adoption of a table of
    assignments would be Federal micro-management of a local issue,
    resulting in the deprivation of the states' flexibility to address
    local situations." (Footnotes omitted).

[^59]: PSWN Petition at 7; *see also* Powell Petition at 7, "as chair of
    the Interoperability Subcommittee throughout this discussion within
    the NCC, I can assure the Commission that a hard and fast table was
    not the intent of the NCC, rather the intent was to provide a 'first
    place to go' for fast breaking operations of the primary emergency
    responders . . . during the first critical minutes of a developing
    incident."

[^60]: PSWN Petition at 8.

[^61]: Powell Petition at 8, "Of critical importance to \[channel
    designation\], the initiating officer need not be a local officer or
    even an officer from that state; a call for assistance could go out
    immediately on the law enforcement channel with some hope of getting
    an immediate response from a law enforcement agency because the
    channels are standardized across the nation."

[^62]: NCC Report at 15 (footnote omitted).

[^63]: *Id*.; s*ee also* NCC Report, Appendix D.

[^64]: *See Fourth R&*O, 16 FCC Rcd at 2044 ¶ 70; *See also Comments to
    Fourth Notice -* North America TETRA Forum Comments at 10-11
    (supported adoption of standard on a short-term basis); Nokia
    Comments at 6; Com-Net Ericsson Comments at 15; Orange County
    Comments at 4; E.F. Johnson Comments at 2; Ronald J. Gillory
    (Gillory) Comments at 1; Buchanan Comments at 5; Mesa Comments at 7;
    Kenwood Comments at 11; NCC Comments at 17; Florida Comments at 5;
    APCO Comments at 4; IACP Comments at 2; Motorola Comments at 4;
    FLEWUG Comments at 3; PSWN Comments at 9**;** Project 25 Steering
    Committee Comments at 3.

[^65]: *Fourth Notice*, 15 FCC Rcd at 16918 ¶ 46.

[^66]: *Fourth R&O* 16 FCC Rcd at 2048 ¶ 78.

[^67]: *First Report and Third Notice*, 14 FCC Rcd. at 156 ¶ 7.

[^68]: NATF Comments to *Fourth Notice* at 6, "NATF agrees with the
    Commission's recommendation of using Project 25, Phase I for
    Interoperability Channels with the one voice per 12.5 kHz of
    bandwidth."

[^69]: NATF Petition at 2. NATF contends that the Commission should have
    provided a "transition" period before the interoperability
    capability requirement becomes effective. *Id.*

[^70]: *Id.* at 8.

[^71]: *Id*. at 6.

[^72]: *Id*. at 4-5.

[^73]: *Id.* at 7.

[^74]: *Id*. at 9.

[^75]: TETRA, the European Technical Standards Institute 392 TErrestrial
    Trunked Radio (TETRA) system, is a four-slot Time Division Multiple
    Access (TDMA) standard in which four voice channels are realized
    with a 25 kHz bandwidth. *See, e.g.*, NCC Report at 17 ¶ 51.

[^76]: APCO Response to Petitions for Reconsideration at 3.

[^77]: *Id.*

[^78]: *See* Federal Advisory Committee Act, 5 U.S.C. App. 2 (1988). The
    Commission cosponsored the NCC along with the United States
    Department of Justice, the National Telecommunications and
    Information Agency, the United States Treasury Department, the
    Federal Emergency Management Agency.

[^79]: The American National Standards Institute (ANSI), describes
    itself as a private sector organization that, among other things,
    serves as the policy forum for the U.S. standards and conformity
    assessment communities, accredits domestic standards developers,
    approves standards as American National Standards, and safeguards
    the integrity and value of the American National Standard
    designation by requiring due process, balance of interests,
    consensus and openness to all directly and materially affected
    interests in the private and public sectors. *See Memorandum Opinion
    and Order on Reconsideration*, 14 FCC Rcd 8059, 8064 ¶ 8 (1999). The
    Commission clarified that the NCC could either become
    ANSI-accredited or make use of the work of existing ANSI-accredited
    Standards Developers. *Id* at 8065 ¶ 11.

[^80]: As noted, "\[i\]nteroperability signifies the crowning
    achievement of this proceeding." *First Report and Third Notice*, 14
    FCC Rcd at 156 ¶ 7. *See also* Dataradio Corporation, *Order*, 15
    FCC Rcd 22283 (WTB/PSPWD 2000) recon. denied, *Order on
    Reconsideration*, DA 01-2843 (WTB, rel. Dec. 10, 2001), which denied
    petitioner's request to be allowed to manufacture narrowband mobile
    and portable transmitters incapable of operating on the narrowband
    Interoperability channels. The Public Safety and Private Wireless
    Division (Division) of the Commission's Wireless Telecommunications
    Bureau based its decision, *inter alia*, out of concern that public
    safety entities that purchase non-interoperability capable equipment
    "will be reluctant, perhaps financially unable, to buy radios that
    comply with the 700 MHz interoperability standards," thereby
    jeopardizing the Commission's overall interoperability plan. *Id.*
    at 22287 ¶ 11 (footnote omitted). The Division also noted that in
    adopting Section 90.547, the Commission "foreclosed users from the
    option to elect whether or not to purchase 700 MHz radios without
    interoperability capability." *Id.* at ¶ 9.

[^81]: 47 C.F.R. § 90.547 (1998). The record reflects that NATF raised
    issues during the *Fourth Notice* comment period that might have
    been more timely presented several years earlier. In this
    connection, NATF's comments were not responsive to the issues raised
    in the *Fourth Notice*, and instead, sought to re-open matters
    decided several years earlier.

[^82]: *Fourth R&O*, 16 FCC Rcd at 2044 ¶ 70. Having determined in 1998
    that radios working in the 700 MHz Public Safety band must be
    interoperability-capable, the question then became, which technology
    standard ought the Commission adopt? The *Fourth R&O* resolved this
    question and we do not believe it is prudent or in the public
    interest to delay realization of interoperability, where available,
    any longer.

[^83]: *Id.* at 2048 ¶ 79.

[^84]: On May 22, 2001, the Commission received a letter informing it
    that "Com-Net Ericsson Critical Radio Systems, Inc. was acquired by
    a parent holding company of Tyco International, Ltd., a Fortune 500
    company. The entity that formerly operated under the name Com-Net
    Ericsson Critical Radio Systems, Inc. will now be operating under
    the name M/A-COM Private Radio Systems, Inc." For purposes of this
    Memorandum Opinion and Order, we shall continue to refer to Com-Net
    Ericsson, as that is the name the company operated under when it
    initially filed its petition.

[^85]: *See* Com-Net Ericsson Petition for Declaratory Ruling at 5. On
    May 24, 2001, Com-Net Ericsson filed a copy of this pleading in the
    captioned docket (for informational purposes). *See* May 24, 2001,
    Letter from Robert J. Speidel, Com-Net Ericsson, to Secretary, FCC.
    In a separate May 24, 2001, letter, Com-Net Ericsson modified its
    Petition.

[^86]: *Fourth R&O*, 16 FCC Rcd at 2052 ¶ 90.

[^87]: 66 Fed. Reg. 10632, 10636 (February 16, 2001).

[^88]: Motorola Request for Clarification at 3.

[^89]: *Id.*

[^90]: *Id.* at 4.

[^91]: Com-Net Ericsson response to Motorola Request for Clarification
    at 1.

[^92]: June 6, 2001, Letter from NCC Chair Kathleen Wallman.

[^93]: *Id.*

[^94]: ANSI/TIA/EIA 102.AAAA-A-2001

[^95]: Development of Operational, Technical and Spectrum Requirements
    for Meeting Federal, State and Local Public Safety Agency
    Communications Requirements Through the Year 2010, WT Docket No.
    96-86, *Third Memorandum Opinion and Order and Third Report and
    Order*, 15 FCC Rcd 19844, 19857 ¶ 32 (2000).

[^96]: *See* 5 U.S.C. § 601, *et seq.*

[^97]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 *et seq.*,
    has been amended by the Contract With America Advancement Act of
    1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of
    the CWAAA is the Small Business Regulatory Enforcement Fairness Act
    of 1996 (SBREFA).

[^98]: 16 FCC Rcd 2020, 2060 (2001).

[^99]: *Id*.

[^100]: *See* 5 U.S.C. § 604.

[^101]: 5 U.S.C. § 603(b)(3).

[^102]: 5 U.S.C. § 601(6).

[^103]: 5 U.S.C. § 601(3) (incorporating by reference the definition
    "small business concern" in 15 U.S.C. § 632). Pursuant to the RFA,
    the statutory definition of a small business applies "unless an
    agency, after consultation with the Office of Advocacy of the Small
    Business Administration and after opportunity for public comment,
    establishes one or more definitions of such terms which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register." 5 U.S.C. § 601(3).

[^104]: Small Business Act, 15 U.S.C. § 632 (1996).

[^105]: 5 U.S.C. § 601(4).

[^106]: 1992 Economic Census, U.S. Bureau of the Census, Table 6
    (special tabulation of data under contract to Office of Advocacy of
    the SBA).

[^107]: 5 U.S.C. § 601(5).

[^108]: U.S. Dept. of Commerce, Bureau of the Census, \"1992 Census of
    Governments.\"

[^109]: *Id*.

[^110]: *See* Subparts A and B of Part 90 of the Commission\'s Rules, 47
    C.F.R. §§ 90.1 ‑ 90.22. Police licensees include 26,608 licensees
    that serve state, county, and municipal enforcement through
    telephony (voice), telegraphy (code) and teletype and facsimile
    (printed material). Fire licensees include 22,677 licensees
    comprised of private volunteer or professional fire companies as
    well as units under governmental control. Public Safety Radio Pool
    licensees also include 40,512 licensees that are state, county, or
    municipal entities that use radio for official purposes. There are
    also 7,325 forestry service licensees comprised of licensees from
    state departments of conservation and private forest organizations
    who set up communications networks among fire lookout towers and
    ground crews. The 9,480 state and local governments are highway
    maintenance licensees that provide emergency and routine
    communications to aid other public safety services to keep main
    roads safe for vehicular traffic. Emergency medical licensees
    (1,460) use these channels for emergency medical service
    communications related to the delivery of emergency medical
    treatment. Another 19,478 licensees include medical services, rescue
    organizations, veterinarians, handicapped persons, disaster relief
    organizations, school buses, beach patrols, establishments in
    isolated areas, communications standby facilities, and emergency
    repair of public communications facilities.

[^111]: 5 U.S.C. § 601(5).

[^112]: 13 C.F.R. § 121.201, Standard Industrial Code (SIC) 3663.

[^113]: U.S. Dept. of Commerce, 1992 Census of Transportation,
    Communications and Utilities (issued May 1995), SIC 3663.

[^114]: 13 C.F.R. § 121.201, SIC 4833 (1996).

[^115]: Economics and Statistics Administration, Bureau of Census, U.S.
    Department of Commerce, 1992 Census of Transportation,
    Communications and Utilities, Establishment and Firm Size, Series
    UC92-S-1, Appendix A-9 (1995) (ESA 1992 Census).

[^116]: *See* Executive Office of the President, Office of Management
    and Budget, Standard Industrial Classification Manual (1987), at
    283, which describes TV Broadcasting Station (SIC 4833) as:

    Establishments primarily engaged in broadcasting visual programs by
    television to the public, except cable and other pay television
    services. Included in this industry are commercial, religious,
    educational and other television stations. Also included here are
    establishments primarily engaged in television broadcasting and
    which produce taped television program materials.

[^117]: ESA 1992 Census at Appendix A-9.

[^118]: ESA 1992 Census at Appendix A-9; NAICS Code 51211 (Motion
    Picture and Video Tape Production); NAICS Codes 51229, 53249, 56131,
    71111, 71112, 71132, 71141m 71151, 561399 (Theatrical Producers and
    Miscellaneous Theatrical Services (producers of live radio and TV
    programs)).

[^119]: *Allocation Report and Order*, 12 FCC Rcd at 22953 (1998), at
    Appendix C; ESA 1992 Census at Appendix A-9.

[^120]: *Allocation Report and Order*, 12 FCC Rcd 22953 (1998) at
    Appendix C.

[^121]: A census for communications establishments is performed every
    five years ending with a \"2\" or \"7.\" *See* ESA 1992 Census at
    III.

[^122]: The amount of \$10 million was used to estimate the number of
    small business establishments because the relevant Census categories
    stopped at \$9,999,999 and began at \$10,000,000. No category for
    \$10.5 million existed. Thus, the number is as accurate as is
    possible to calculate with the available information.

[^123]: *See Allocation Notice*, 12 FCC Rcd at 14142.

[^124]: See DTV Proceeding, 12 FCC Rcd 14588.

[^125]: *See Allocation Notice* 12 FCC Rcd 14142, n.5.

[^126]: We use the 77 percent figure of TV stations operating at less
    than \$10 million for 1992 and apply it to the 117 TV stations to
    arrive at 90 stations categorized as small businesses.

[^127]: *Minority Commercial Broadcast Ownership in the United States*,
    U.S. Dep\'t of Commerce, National Telecommunications and Information
    Administration, The Minority Telecommunications Development Program
    (\"MTDP\") (Dec. 2000). MTDP considers minority ownership as
    ownership of more than 50 percent of a broadcast corporation\'s
    stock, voting control in a broadcast partnership, or ownership of a
    broadcasting property as an individual proprietor. The minority
    groups included in this report are Black, Hispanic, Asian, and
    Native American.

[^128]: *See* Comments of American Women in Radio and TV, Inc. in MM
    Docket No. 94-149 and MM Docket No. 91-140 at 4 n.4 (filed May 17,
    1995) (citing 1987 Economic Censuses, *Women-Owned Business*,
    WB87-1, U.S. Dep\'t of Commerce, Bureau of the Census, August 1990
    (based on 1987 Census)). After the 1987 Census report, the Census
    Bureau did not provide data by particular communications services
    (four-digit SIC Code), but rather by the general two-digit SIC Code
    for communications (#48). Consequently, since 1987, the Census
    Bureau has not updated data on ownership of broadcast facilities by
    women, nor does the Commission collect such data. However, we sought
    comment on whether the Annual Ownership Report Form 323 should be
    amended to include information on the gender and race of broadcast
    license owners. Policies and Rules Regarding Minority and Female
    Ownership of Mass Media Facilities, *Notice of Proposed Rule
    Making*, 10 FCC Rcd 2788, 2797 (1995).

[^129]: *See Allocation Report and Order*, 12 FCC Rcd 22986 at Appendix
    C.

[^130]: *See Allocation Notice* at 12 FCC Rcd 14142, n.3.

[^131]: *See* Frequency Coordination in the Private Land Mobile Radio
    Services, PR Docket No. 83-737, *Report and Order*, 103 FCC 2d 1093
    (1986).

[^132]: Area-wide licenses often encourage the rapid development and
    deployment of innovative services and facilitate Interoperability
    and operational standards, while allowing economies of scale that
    encourage the development of low cost equipment. *See, e.g.,*
    Amendment of the Commission's Rules to Establish Part 27, the
    Wireless Communications Service, GN Docket No. 96-228, *Report and
    Order*, 12 FCC Rcd 10785, 10814 (1997).