**Before the**

**Federal Communications Commission**

Washington, D.C. 20554

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| In the Matter of                 | * | WT Docket No. 07-195         |
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| Service Rules for Advanced       | ) |                              |
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| in the 2155-2175 MHz Band        |   |                              |
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[]{.mark}

[]{.mark}

**NOTICE OF PROPOSED RULEMAKING**

**Adopted: September 7, 2007 Released: September 19, 2007**

**Comment Date: (30 days after date of publication in the Federal
Register)\]**

**Reply Comment Date: (60 days after date of publication in the Federal
Register)**

By the Commission: Chairman Martin and Commissioners Copps, Adelstein
and Tate issuing separate statements.

Table of Contents

Heading Paragraph \#

I. introduction 1

II\. EXECUTIVE SUMMARY 5

III\. background 6

IV\. NOTICE OF PROPOSED RULE MAKING 10

A. Technological Approaches to this Band 11

1\. Uplink/downlink use 14

2\. Structured uplink/downlink use 19

3\. Downlink use 19

B. Band Plan 24

1\. Spectrum Block Size 24

2\. Geographic Area Licensing 31

3\. Size of Geographic Areas 34

C. Auction Issues 39

D. Technical Issues 49

1\. Protection of Adjacent Band Services 49

a\. Out-of-Band Emission (OOBE) Limits 53

b\. Power Limits 61

c\. Protection of AWS-3 Operations from Adjacent Block AWS-3 Systems 67

d\. Protection of AWS-3 Operations from Adjacent Band Systems 71

2\. Protection of Incumbent Services 72

3\. Co-Channel Interference between Licensees in the 2155-2175 MHz Band
78

a\. Protection of Co-Channel AWS Licensees Operating in Adjacent Regions
78

b\. Antenna Height Restrictions for Base and Fixed Stations 81

E. Regulatory Issues; Licensing and Operating Rules 82

1\. Flexible Use 83

2\. Other License Conditions 86

3\. Regulatory Framework 92

4\. Assignment of Licenses 95

5\. Regulatory Status 96

6\. Ownership Restrictions 100

a\. Foreign Ownership Reporting 100

b\. Spectrum Aggregation Limits; Eligibility Restrictions 101

7\. License Term 104

8\. Criteria for Renewal 107

9\. Performance Requirements 111

10\. Disaggregation and Partitioning of Spectrum; Secondary Markets 127

11\. Facilitating Access to Spectrum and the Provision of Service to
Tribal Lands 135

12\. Conditional Licenses 142

13\. Other Operating Requirements 143

F. Other Technical Rules 145

1\. Radio Frequency (RF) Safety 145

2\. Other Technical Rules; Canadian and Mexican Coordination 146

G. Competitive Bidding Procedures 148

1\. Incorporation by Reference of the Part 1 Standardized Auction Rules
149

2\. Provisions for Designated Entities 150

V. Procedural matters 156

A. *Ex Parte* Rules -- Permit-But-Disclose 156

B. Comment Period and Procedures 157

C. Initial Regulatory Flexibility Analysis 162

D. Initial Paperwork Reduction Analysis 163

E. Further Information 165

VI\. Ordering Clauses 166

APPENDIX -- Initial Regulatory Flexibility Analysis

# introduction

1.  In this Notice of Proposed Rule Making, we seek comment on service
    rules for licensed fixed and mobile services, including Advanced
    Wireless Services (AWS), in the 2155-2175 MHz band (AWS‑3).[^1] We
    seek comment on rules for licensing this newly designated spectrum
    in a manner that will permit it to be fully and promptly utilized to
    bring advanced wireless services to American consumers.

2.  Our objective in this proceeding is to allow for the most effective
    and efficient use of the spectrum in this band, while also
    encouraging development of robust wireless broadband services. In
    this Notice of Proposed Rulemaking, we propose to apply our
    flexible, market-oriented Part 27 rules to the band in order to meet
    this objective. Because the available spectrum is one 20-megahertz
    segment as opposed to two separate bands, the symmetrical pairing
    approach previously used by the Commission for AWS spectrum[^2] is
    not possible. We therefore seek comment on three different
    technological approaches to this band: (1) permitting both base
    station transmissions and mobile handset transmissions in the band,
    as needed to support the licensees' choice of technology
    ("uplink/downlink approach"); (2) permitting both base station
    transmissions and mobile handset transmissions in the band, but only
    in particular parts of the band specifically designated by the
    Commission ("structured uplink/downlink approach"); or (3) allowing
    only base station transmissions in the band ("downlink approach").
    Each approach raises different sets of tradeoffs between flexible
    use and interference protection requirements. We also recognize that
    permitting either of our approaches that include uplink
    transmissions may raise potentially significant interference issues
    associated with the presence of both mobile and base station
    transmissions in the band. We therefore seek comment on methods to
    address such concerns, including the use of power limits and
    out-of-band emission restrictions. In addition, we seek comment on
    licensing and operating rules, including those pertaining to
    flexible use, the license term, criteria for renewal, and
    performance requirements. We seek comment on any other technological
    approaches that could be employed in this band.[^3] We also seek
    comment on whether an auction of licenses in a simplified subset of
    alternative band plans with different technological approaches might
    be the optimal way to determine which technological approach to
    implement.

3.  Finally, we specifically request comment on various proposals
    proffered recently by various parties that had previously filed
    applications to operate in this band, including M2Z Networks, Inc.
    (M2Z), NetfreeUS, and others.[^4] For example, M2Z has suggested
    that the licensees in this band should be subject to certain public
    interest requirements, including the provision of free broadband
    internet service at certain data rates and certain population-based
    build out benchmarks. Some have also suggested that the Commission
    should consider licensing this spectrum in a manner that would avoid
    the filing of mutually exclusive applications, and accordingly allow
    licensing on a non-auctioned basis.[^5]

4.  Through this proceeding, we anticipate making further progress
    toward providing all Americans with universal, affordable access to
    broadband technology.  Wireless broadband systems developed using
    the 2155-2175 MHz band may offer consumers another choice for
    broadband access, competing in price and features with existing
    landline offerings or reaching areas not currently served by
    landline networks.  We commit to issuing an order adopting rules in
    this proceeding within nine months following the publication of this
    Notice in the Federal Register. This commitment is intended to
    facilitate the introduction of new and innovative wireless broadband
    services to American consumers as soon as possible.

# EXECUTIVE SUMMARY

5.  In this Notice of Proposed Rulemaking, we consider application,
    licensing, operating, and technical rules for the 2155-2175 MHz
    band, and, among other things, we:

-   Seek comment on the use of an "uplink/downlink approach" to
    licensing the spectrum, which would permit the use of technologies
    that allow for both mobile and base transmissions in the band, such
    as technologies based on Time Division Duplexing (TDD) or
    Half-Duplex Frequency Division Duplexing (HFDD),[^6] and on methods
    to resolve any interference challenges that may be associated with
    such an approach.

-   Seek comment on a "structured uplink/downlink approach," which would
    permit both mobile-plus-base transmit operations and base transmit
    operations, but only in particular parts of the band, as dictated by
    the band plan set by the Commission.

-   Seek comment on a "downlink approach" for the AWS-3 spectrum, which
    would limit use of the 2155-2175 MHz band to base transmissions
    only, but would enable licensees to use this spectrum in combination
    with other Frequency Division Duplexing (FDD) bands.[^7]

-   Seek comment on whether an auction of licenses in a simplified
    subset of alternative band plans might best further our overall
    goals in this proceeding.

-   Seek comment on the appropriate license block size for the 2155-2175
    MHz band under each of the three technical approaches under
    consideration for this band.

-   Seek comment on whether to license the band using a geographic area
    licensing scheme, under our flexible, market-oriented Part 27 rules,
    as well as on the appropriate geographic license block size for the
    band.

-   Seek comment on interference issues specific to the band under each
    of the three technical approaches under consideration for this band.

-   Seek comment on whether to adopt a boundary limit approach to limit
    co-channel interference that could be caused by AWS licensees
    operating in the 2155-2175 MHz band.

-   Propose that AWS licensees operating in the 2155-2175 MHz band
    should be required to coordinate with incumbent Fixed Service (FS)
    licensees operating on co-channel and adjacent channel spectrum in
    the band prior to initiating operations.

-   Seek comment on our proposals on the power limits, out-of-band
    emission restrictions, and other technical or operational
    requirements that might be needed to prevent harmful interference to
    operations in adjacent bands.

-   Seek comment on whether any limit should be placed on the
    height-above-average-terrain (HAAT) of base or fixed station
    antennas operating in the 2155-2175 MHz band.

-   Propose to permit any use of this spectrum that is consistent with
    the band's fixed and mobile allocations.

-   Seek comment on whether we should adopt any of the various specific
    conditions proposed by parties that filed applications for operation
    in this band, including conditions to govern the provision of
    broadband services at particular data rates, with specific build out
    requirements, and with specific pricing plans.[^8]

-   Propose that the foreign ownership provisions of section 27.12
    should apply to applicants applying for licenses in the 2155-2175
    MHz band.

-   Propose not to impose a spectrum aggregation limit or eligibility
    restrictions for the 2155-2175 MHz band.

-   Note that, to the extent that a licensee in the 2155-2175 MHz band
    provides a Commercial Mobile Radio Service, such service would be
    subject to the provisions of Part 20 of the Commission\'s rules,
    including 911/E911 and hearing aid-compatibility (HAC) requirements,
    along with the provisions in the rule part under which the license
    was issued.

-   Propose that the threshold for environmental review of fixed
    transmission facilities should be an effective radiated power (ERP)
    greater than 1000 Watts.

-   Propose to employ our Part 1 competitive bidding rules, if the
    Commission establishes a licensing regime that requires the use of
    competitive bidding to resolve mutually exclusive applications; seek
    comment on whether any of our Part 1 rules would be inappropriate or
    should be modified for an auction of licenses in this band.

-   Propose to define a small business as an entity with average annual
    gross revenues for the preceding three years not exceeding \$40
    million, and a very small business as an entity with average annual
    gross revenues for the preceding three years not exceeding \$15
    million.

-   Propose to provide small businesses with a bidding credit of 15
    percent and very small businesses with a bidding credit of 25
    percent if we establish non-nationwide service areas, and seek
    comment on whether, if we decide to license the 2155-2175 MHz band
    on a nationwide basis, small business credits would be appropriate
    for this band.

# background

6.  Growth in demand for mobile wireless services, coupled with the
    increasingly important role of the Internet for voice and data
    applications, has elevated the need for advanced technologies
    capable of providing wireless Internet access and other voice and
    high-speed data services and spectrum to accommodate these advanced
    technologies.[^9] Mobile telephone carriers have begun to deploy
    significantly faster broadband technologies over their mobile
    cellular networks and many have announced plans to launch or expand
    these technologies further in the future. CDMA and TDMA/GSM[^10]
    carriers have begun deploying next-generation network technologies,
    such as EV-DO and WCDMA/HSDPA.,[^11] to upgrade their networks to
    offer mobile data services at higher data transfer speeds and, in
    some cases, increased voice capacity. The FCC estimates that, as of
    June 30, 2006, 11 million mobile wireless devices capable of
    accessing the Internet at broadband speeds were in use, versus
    almost none at the end of 2003.[^12]

7.  Since 2001, the Commission has designated 130 megahertz of spectrum
    for use by advanced wireless services.[^13] Corresponding service
    rules have been adopted for 90 megahertz of the spectrum in the
    1710-1755 MHz and 2110-2155 MHz bands (AWS-1).[^14] In addition,
    service rules have been proposed for another 20 megahertz in the
    1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz, and 2175-2180 MHz bands
    (AWS-2).[^15] In this Notice of Proposed Rulemaking, the Commission
    proposes service rules for an additional 20 megahertz of spectrum
    for a third AWS block (AWS-3) at 2155-2175 MHz, adjacent to the
    2110-2155 MHz band of AWS-1 and the 2175-2180 MHz band of AWS-2.

8.  The following chart illustrates the spectrum designated (or
    proposed) for AWS:

![](media/image1.wmf){width="6.66875in" height="1.5020833333333334in"}

9.  There are numerous incumbents in the 2155-2175 MHz band, which
    contains over 1,800 active licenses.  These incumbents
    consist primarily of Fixed Microwave Service (FS) and Broadband
    Radio Service (BRS) licensees, who are subject to relocation by
    emerging technology (ET) licensees (including future AWS-3
    licensees).  The Commission has already addressed relocation and
    cost-sharing issues with respect to the 2155-2175 MHz band in a
    separate proceeding based on the assumption that the AWS-3 band
    would be exclusively licensed.[^16] Generally, incumbents retain
    primary status unless and until an ET licensee requires use of the
    spectrum.  AWS-3 licensees will be required to relocate, or share in
    the cost of a relocation paid for by other AWS licensees (including,
    possibly, AWS-1 licensees), until the relocation and cost sharing
    rules "sunset." For FS, the rules sunset ten years after the first
    ET license is issued in the 2160-2175 MHz band.[^17] For BRS, the
    rules sunset 15 years after the first AWS license is issued in the
    2150-2160/62 MHz band.[^18] Although we do not anticipate having to
    adopt any further rules regarding these issues, we do seek comment
    below on whether changes may be necessary in light of the service
    rules we adopt.

# NOTICE OF PROPOSED RULE MAKING

10. Unlike other bands designated for AWS, the AWS-3 band is a single,
    contiguous 20-megahertz block with base transmit bands on either
    side (AWS-1 at 2110-2155 MHz and proposed AWS-2 operations at
    2175-2180 MHz), which presents interference challenges particular to
    this band. We seek comment on three different technological
    approaches to this band (discussed further below), with each raising
    its own set of tradeoffs between flexible use and the necessary
    interference protection measures. As described above, our goal is to
    allow for the most effective and efficient use of this spectrum.

## Technological Approaches to this Band

11. Our intention is to develop an approach for 2155-2175 MHz that will
    enable service providers to maximize use of this spectrum to provide
    advanced wireless services, while providing the necessary
    protections against interference. Our plan for achieving that
    objective is to permit as many types of technologies in the band as
    possible that are consistent with our fixed and mobile allocation,
    and with the need to protect against interference. As described in
    more detail below, allowing for both mobile and base transmissions
    in the band presents certain additional adjacent channel and
    co-channel interference concerns. Thus, granting that additional
    flexibility may come at the cost of additional interference
    protections that would severely restrict the utility of mobile
    transmissions in the band, limit base transmissions, or limit both
    mobile and base transmissions. If we can maximize the use of this
    band by permitting mobile-transmit operations in the entire band, in
    addition to base-transmit operations, in combination with sufficient
    interference protections, such as out-of-band emissions limits, we
    would propose to adopt such an uplink/downlink approach.

12. We may, however, determine that the interference protection measures
    necessary to protect mobiles receiving in the designated AWS-1 and
    proposed AWS-2 base-transmit bands adjacent to the AWS-3 spectrum
    and mobiles receiving in co-channel and adjacent channel AWS-3 bands
    would limit the ability of transmitting AWS-3 mobiles to operate
    effectively. We may also determine that the need to protect base
    stations receiving in the AWS-3 band would significantly limit the
    performance of base-transmit operations in the AWS-3 band. In that
    case, we would consider confining base-plus mobile transmit
    operations to the center portion of the band, and allowing downlink
    (base) transmissions only at the edges of the AWS-3 band in a
    "structured uplink/downlink" approach. Alternatively, if we
    determine that for interference reasons mobile-transmit operations
    in any part of the AWS-3 spectrum would not allow for effective use
    of the spectrum in this band, we would consider prohibiting
    mobile-transmit operations and permitting only base-transmit
    operations in the band under a downlink approach. These approaches
    are discussed in more detail below.

13. First, we seek comment on the uplink/downlink approach, which would
    allow for both mobile and base transmissions in the AWS-3 spectrum.
    Allowing mobile-transmit along with base-transmit operations in the
    entire band provides licensees the flexibility to choose which
    technology to deploy, subject to interference limits, and could
    encourage efficient spectrum usage. In addition, the uplink/downlink
    approach could promote market entry by new providers, such as
    entities using TDD or HFDD, if interference challenges that may
    undermine their utility can be adequately addressed. We seek comment
    on the type of technologies that could be deployed in this
    particular spectrum band under this approach. Because certain uses
    of the band may present difficult technical problems, as described
    in detail below, we also seek comment on how to address those
    problems. Second, we seek comment on whether we should adopt a
    structured uplink/downlink approach that allows for base-plus-mobile
    transmit operations only in the center of the band. Adopting this
    type of approach may afford some flexibility while possibly
    minimizing interference concerns by restricting the outer edges of
    the band to fixed (base) operations. Alternatively, the most
    efficient use of this band, once interference concerns are taken
    into account, might be a third approach that would limit the use of
    the entire AWS-3 band to base-transmissions only. We note that
    increasing use of wireless technology for applications requiring
    greater speed has generated support from commenters[^19] for
    permitting AWS-3 spectrum to be combined with other AWS spectrum
    blocks and other non-AWS spectrum blocks to achieve higher
    downstream data rates.[^20] We invite commenters to develop a
    thorough record on the merits and pitfalls of these approaches,
    which are discussed in greater detail below. We also seek comment on
    the spectrum block sizes and geographic licensing areas that best
    correspond to each proposed technical approach.

### Uplink/downlink use

14. We seek comment on an approach featuring an unpaired, stand-alone
    20-megahertz block available for technologies that would allow the
    use of both mobile and base station transmissions in the 2155-2175
    MHz band.[^21] A licensee would have the flexibility to determine
    which technology it will use (including whether it would choose to
    operate mobiles in the band), which, ultimately, could help ensure
    that the AWS-3 spectrum is put to its highest valued uses. Certain
    technologies permit both base and mobile transmissions to occur in
    the same band, rather than requiring paired band segments to provide
    mobile service. For example, rather than designate separate radio
    channels for directional transmission ("to" and "from" an individual
    user or base station) as in a paired FDD scheme, TDD-based
    transmission technology allows a base station and associated mobile
    subscriber units to share the same spectrum by alternating
    transmission time slots. A TDD system also has the capability to
    dynamically modify the time slots used by a base station and its
    subscriber units, in order to efficiently accommodate an asymmetric
    data flow.[^22] Similarly, HFDD systems allow mobile and base
    transmissions in the same spectrum band by utilizing separate,
    adjacent channels at different times. Some commenters in the *AWS-1
    Service Rules* proceeding and the *Wireless Broadband Access Task
    Force Report* proceeding expressed their support for an unpaired TDD
    approach.[^23]

15. Permitting this type of use could encourage efficient spectrum usage
    and promote market entry of new service providers.[^24] Allowing
    both mobile and base transmissions in the 2155-2175 MHz band to
    support applications such as Wireless Interoperability for Microwave
    Access (WiMax)[^25] could also foster more competition among
    emerging broadband technologies. Under this approach, however, the
    band would be surrounded by spectrum used for AWS base station
    transmissions.[^26] Because this type of application can use the
    same spectrum band for both base station and mobile transmitting and
    receiving, this could result in mobile-to-mobile and base-to-base
    interference to adjacent and co-channel operations.[^27]
    Mobile-to-mobile and base-to-base interference scenarios could occur
    if we permit base *and* mobile transmissions in the AWS-3 band
    because of the presence of *transmitting* and receiving mobiles,
    *i.e*., AWS-3 mobile transmitters near other mobiles that are
    receiving base stations that transmit in co-channel, adjacent and
    nearby spectrum bands.[^28] Additionally, mobile-to-mobile and
    base-to-base interference scenarios could occur in the same band in
    adjacent service areas.[^29] Therefore, we seek comment on options
    for addressing all of the possible interference scenarios that may
    exist within and outside the 2155-2175 MHz band. Some options for
    addressing these interference scenarios are explored below,
    including requiring more stringent out-of-band emissions (OOBE)
    limits and power limitations.[^30]

16. We also seek comment on whether the benefits of permitting
    mobile-transmit operations in the AWS-3 band would outweigh the
    potential costs of addressing the "mobile-to-mobile" and
    "base-to-base" interference. Because adjacent band operations should
    be protected regardless of the type of application a licensee
    decides to deploy, we ask commenters to describe what protections
    should be incorporated into the service rules to ensure that
    adjacent band mobile receivers are protected from harmful
    interference. If mobile and base operations are permitted in the
    AWS-3 band, we seek comment on how our service rules should address
    the potential interference issues, including the appropriate power
    levels, the type of receiver and transmitter filters, and the
    appropriate interference protection distance.

17. Because with TDD different parts of each cell can experience
    different levels of interference depending on the geometry, channel
    asymmetry, and synchronization, power and OOBE limitations may not
    be sufficient to overcome the adjacent channel and co-channel
    interference potential. Therefore, we seek comment on methods
    besides limits on power and out-of-band emissions for mitigating
    potential co-channel and adjacent channel interference.

18. Under this approach, we propose to allow mobile use in the band, but
    not to require it. We would require only that licensees comply with
    the interference protection requirements that we adopt. For example,
    a licensee could divide its AWS-3 spectrum into smaller blocks and
    apply some of the spectrum in an asymmetrical mobile-transmit and
    base-transmit FDD pairing with other mobile-transmit spectrum,
    including Personal Communications Service (PCS) or other AWS
    spectrum, and apply the remaining spectrum to TDD use.[^31] Or, a
    licensee could use FDD in one portion of the band while other
    licensees in the band could choose to deploy, for example, WiMax
    using TDD or HFDD architectures. A licensee of the entire AWS-3 band
    could also opt to use FDD and limit the band to base-transmit use
    only, as discussed below, and combine it with other symmetrically
    paired mobile- and base-transmit blocks. Giving licensees the
    flexibility to determine which technology they will use would help
    ensure that the AWS-3 spectrum is put to its highest valued uses,
    subject to any constraints placed by the interference protection
    standards that we adopt. Moreover, with flexible service rules,
    licensees should be able to adjust their choice of technology in
    response to evolving consumer demands so that the band will continue
    to reflect market pressures without further regulatory action.

### Structured uplink/downlink use

19. We also seek comment on whether the Commission should allow
    licensees to utilize the 20 megahertz of AWS-3 spectrum for both
    mobile-plus-base transmit and base-transmit operations, each in
    specified parts of the band. Due to concerns about potential
    interference to the adjacent AWS-1, AWS-2, and MSS bands from mobile
    transmissions in the AWS-3 band, we could allow for mobile-plus-base
    transmit operations, but only in the center portion of the band.
    Specifically, we could designate the upper and lower five-megahertz
    blocks of the band, at 2155-2160 and 2170-2175 MHz, for fixed or
    base transmit-only operations, such as "fixed wireless access,"
    backhaul, or one-way (downstream) video services. This would leave
    the ten megahertz of spectrum in the middle of the band, which could
    be used for TDD or HFDD-based mobile services.

20. We are interested in receiving comments on how to address the
    potential interference issues that may arise under such a scenario,
    particularly the appropriate power levels to be used, the type of
    transmitter and receiver filters to be used, and what interference
    protection distance is appropriate under this "structured
    uplink/downlink" approach. Commenters should include the techniques
    that would be necessary to prevent interference between TDD systems
    in the center portion of the band and FDD systems in the outer
    portions, as well as the techniques needed to prevent co-channel and
    adjacent channel interference to adjacent areas (both geographically
    and spectrally) which may be using FDD and/or TDD-type applications.
    Further, we seek comment on the tradeoffs of this structured
    approach, with its more liberal interference protection measures but
    more limited licensee flexibility regarding deployment of services,
    as compared to the "uplink/downlink use" approach described above.
    Specifically, commenters should explain how their choice of services
    and technologies will be curtailed under the structured
    uplink/downlink approach.

### Downlink use

21. Finally, we seek comment on adopting a downlink approach. This
    approach would prohibit mobile transmissions in this band, but would
    greatly simplify the treatment of interference issues in this band.
    This may, ultimately, turn out to be the most effective approach for
    obtaining the efficient utilization of this band. For instance, this
    approach would permit licensees that are operating FDD systems to
    customize their spectrum by combining this spectrum with other
    available base- and mobile-transmit spectrum bands and utilize
    asymmetric pairing.[^32] By providing greater spectrum capacity for
    downstream transmission, asymmetric pairing could promote the
    efficient provision of new and innovative wireless services that use
    FDD technology. For example, a downlink approach would enable
    asymmetric pairing of AWS-3 spectrum with AWS-1, proposed AWS-2, or
    other Commercial Mobile Radio Service (CMRS) bands,[^33] and various
    fixed services. Such an approach may be well-suited for high data
    rate Internet applications, such as video-streaming.[^34] Given the
    asymmetric nature of Internet traffic and the data-centric
    applications being deployed for the next-generation of wireless
    broadband services, providing additional spectrum for download
    transmissions could offer great potential for meeting the spectral
    demands of such applications.[^35] A downlink approach could also
    enable an AWS-3 licensee to combine this spectrum with spectrum in
    other bands used for high-powered downlink-only video systems.
    However, we also seek comment on whether a downlink-only approach
    would inhibit new entry into this band by potential providers that
    may not be licensed to use spectrum in other bands.

22. Several commenters in the AWS allocation proceeding have urged the
    Commission to adopt an approach that would allow for asymmetric
    pairing for at least a portion of the AWS spectrum.[^36] Similarly,
    commenters in the *Wireless Broadband Access Task Force Report*
    docket also expressed support for the use of asymmetric pairing as a
    means to enhance downstream capacity.[^37] To meet the need for
    enhanced downlink capacities for wireless networks, we propose to
    adopt an asymmetric approach that would limit the 2155-2175 MHz band
    to base station-only use, should we determine that it is technically
    infeasible to allow mobile-transmit operations in the band.[^38]
    This approach would make this band useful in connection with the
    existing allocation, designated use, and service rules for the
    1710-1755 MHz and 2110-2155 MHz (AWS-1) bands.

23. We seek comment on this downlink approach. While some commenters
    have stated that this approach may provide a potential means for
    FDD-based carriers to accommodate the increasing asymmetrical
    download/upload demand, we seek to further develop the record on the
    demand for asymmetric pairing and the technology that would support
    such pairings. Therefore, we seek comment on whether adopting a
    downlink band will address the increasing asymmetric nature of data
    traffic and also on whether technology exists to deploy useful
    applications based upon asymmetric pairing. We also seek comment on
    whether a downlink approach would facilitate the introduction of a
    downlink-only videostreaming application such as the one being
    implemented in an unpaired spectrum block in the 700 MHz band.[^39]
    Finally, we note that, under more flexible uplink/downlink options,
    a licensee still may adopt a downlink-only operation. We therefore
    seek comment on whether it is necessary to require downlink only, as
    opposed to simply protecting adjacent-channel licensees with
    appropriate OOBE limits and related technical rules. In this
    connection, we seek comment on the potential costs of a
    downlink-only approach (*i.e.,* the potential to inhibit new entry)
    as compared to the potential benefits of such an approach (*i.e.,*
    potentially advantageous technical characteristics).

## Band Plan

### Spectrum Block Size

24. We seek comment on how to best subdivide the spectrum, if at all,
    and which block size(s) offer the best opportunity to use the 20
    megahertz of spectrum efficiently, depending on which technological
    approach is adopted. For example, instead of five- or 10-megahertz
    blocks, WiMax systems can use variable bandwidths from 1.25 to 20
    megahertz, with the first WiMax roll-outs expected to use 3.5- and
    7-megahertz channel bandwidths. Because there are many different
    wireless channel bandwidth standards, *e*.*g.*, GSM (0.2 megahertz),
    CDMA (1.25 megahertz), W-CDMA/UMTS (5 megahertz), besides that of
    WiMax, we seek comment on what would be the most spectrally
    efficient spectrum block size for the 20-megahertz block of AWS-3
    spectrum, recognizing the differences between the three
    approaches.[^40]

25. *Uplink/Downlink Approach.* Specifically, we seek comment on the
    appropriate block sizes in a band plan if we decide to adopt the
    uplink/downlink approach. Licensing multiple blocks of licenses in
    different geographic areas would enable licensees even more
    flexibility to tailor their service offerings to the interests of
    the market. If the 20-megahertz block were divided into four
    five-megahertz blocks, for example, bidders could aggregate those
    blocks in a number of different ways depending upon their particular
    needs. Moreover, since the decision of how blocks would be
    aggregated and which technology would be deployed would be made by
    the licensees in each geographic area, the pattern of use would vary
    depending upon specific needs in the area, as explained further in
    paragraph below. Alternatively, we also seek comment on proposals
    for an uplink/downlink license for all 20 megahertz of spectrum
    nationwide.[^41]

26. We seek comment on which band plan would achieve the maximum amount
    of flexibility for various types of technologies and business plans,
    should we choose to adopt this approach. For example, we could adopt
    a band plan that will maximize the flexibility of licensees to
    aggregate spectrum in a manner that best suits their spectral needs
    and technology-based limitations. Such a band plan could be composed
    of four equal five-megahertz blocks with geographic license areas
    that could be easily aggregated and/or combined with the licensee's
    existing spectrum portfolio. We believe that blocks should be no
    smaller than five megahertz because the Commission has, for some
    time, considered five megahertz to be the necessary, minimum
    spectrum block size for 3G technologies.[^42] 3G technologies could
    be effectively accommodated on unpaired five-megahertz AWS-3 blocks
    through use of the recently developed UMTS TDD standard. Because TDD
    and FDD-based 802.16 (WiMax) standards are expected to be developed
    for a variety of bandwidths, which are multiples of 1.25 and 1.75
    megahertz, it is possible that five-megahertz blocks in the AWS-3
    band could accommodate WiMax systems as well. We seek comment on
    this proposal, and any other configurations that commenters believe
    would most benefit a flexible approach that would allow for both TDD
    and FDD to operate in the band, should we decide to adopt this
    approach.

27. *Structured Uplink/Downlink Approach.* Further, we seek comment on
    the appropriate block sizes under the proposed structured
    uplink/downlink approach, which would allow for mobile-transmit and
    base-transmit operations in the center of the band and only base or
    fixed-transmit operations on the edges of the band. As explained in
    paragraph 19, *supra,* under this approach, we propose designating
    the upper and lower five-megahertz blocks, at 2155-2160 MHz and
    2170-2175 MHz, for fixed service or base-transmit only (*i.e.,* FDD
    use), while the middle of the band, 2160-2170 MHz, could be used for
    base or mobile-transmit operations. We seek comment on this
    proposal, and any other suggested block sizes that would achieve the
    goal of minimizing adjacent band interference concerns by permitting
    mobile-transmit operations only in the middle of the band.

28. *Downlink Approach.* Finally, for the downlink approach, we seek
    comment on whether to divide the 2155-2175 MHz band into smaller
    blocks in order to allow licensees to combine specific base-transmit
    spectrum blocks from AWS-3 with symmetrically paired base- and
    mobile-transmit spectrum elsewhere to create asymmetric pairings
    with enhanced download (*i.e*., base-transmit) capacity. For
    example, we could offer AWS-3 in building blocks of one particular
    size (*e.g.*, four blocks of five megahertz each or two blocks of
    ten megahertz each) and allow potential licensees to match them to
    other spectrum pursuant to their business plans. We note that
    breaking the AWS-3 band into smaller blocks would not preclude
    licensees from aggregating all 20 megahertz of AWS-3 to achieve
    increased downlink capacity. For example, the best opportunity to
    maximize efficient spectrum use may be combining blocks of
    base-transmit spectrum from AWS-3 (2155-2175 MHz) with base-transmit
    blocks from the adjacent AWS-1 upper band (2110-2155 MHz) to create
    a larger base transmit spectrum band that is then asymmetrically
    paired with blocks of mobile-transmit spectrum from the AWS-1 lower
    band (1710-1755 MHz). In this regard, we seek comment on whether we
    should make the spectrum block sizes for AWS-3 coordinate with those
    established in AWS-1 and if so, what is the best way to accomplish
    this coordination.

29. In addition to combining AWS-3 spectrum with AWS-1 blocks, licensees
    also might choose to combine the AWS-3 spectrum with other
    symmetrically paired AWS or CMRS spectrum blocks. If the AWS-3
    spectrum at 2155-2175 MHz is used for base-transmit, it could be
    combined with symmetrically paired base- and mobile-transmit blocks
    from the PCS or proposed AWS-2 bands, or the 1910-1915 MHz and
    1990-1995 MHz bands.[^43] For example, a licensee could specify the
    2020-2025 MHz block of AWS-2 as the mobile-transmit block, and
    combine the corresponding proposed AWS-2 base-transmit block with
    all of the AWS-3 blocks to form a larger base-transmit block at
    2155-2180 MHz, providing a 5:1 ratio (25 megahertz downlink to five
    megahertz uplink). Such a pairing provides a significant amount of
    spectrum for uplink transmissions (*e.g*., the requests for
    websites), and five times more spectrum to accommodate the downlink
    transmission of the data from those websites.

30. With respect to commenting on the appropriate band plans for each
    approach, commenters are asked to support their recommendations with
    evidence that either subdividing the spectrum or keeping it as one
    20-megahertz spectrum block will promote greater efficiency and more
    flexible use of the band. Particular block size/geographic area
    combinations may be best suited for different types of uses of the
    band. Some licensees may prefer a smaller spectrum block size and
    small geographic licensing area (*e.g*., five-megahertz
    block/Economic Area (EA) geographic licensing area) for maximum
    flexibility to tailor their use of the spectrum on a market-specific
    basis while others may prefer larger spectrum blocks and larger
    geographic areas to facilitate aggregation and spectrum efficiency.
    In that regard, we also seek comment on how we should consider the
    relationship between spectrum block size and geographic licensing
    area in determining the appropriate licensing scheme for the
    2155-2175 MHz band.

### Geographic Area Licensing

31. We propose that we should license the 2155-2175 MHz band using a
    geographic area licensing scheme, and we seek comment on this
    proposal. As opposed to a station-defined site-by-site licensing
    approach, we believe that a geographic area licensing scheme is
    better suited for the types of fixed and mobile services that will
    likely be developed in this band. Geographic area licensing is also
    consistent with the licensing approach the Commission adopted for
    the AWS-1 bands, and proposed in the AWS-2 bands.[^44] As with those
    spectrum bands, the spectrum at issue in this proceeding is also
    suitable for AWS.

32. For the types of services that are likely to develop in the
    2155-2175 MHz band, it has been our experience that geographic area
    licensing offers many advantages over site-by-site licensing. As the
    Commission has noted in the other AWS service rules proceedings, the
    Commission believes that geographic area licensing will maximize
    flexibility and permit new and innovative technologies to rapidly
    develop in these bands. Geographic area or wide-area licensing also
    allows a licensee substantial flexibility to respond to market
    demand, which results in significant improvements in spectrum
    utilization. In particular, geographic area licensing permits
    economies of scale because it allows a licensee to coordinate usage
    across an entire geographic area to maximize the use of spectrum. It
    also reduces regulatory burdens and transaction costs, because
    wide-area licensing does not require site-by-site approval and a
    licensee can aggregate its service territories without incurring the
    administrative costs and delays associated with site-by-site
    licensing. This approach is especially advantageous where spectrum
    is likely to be used for services that require ubiquity and mobility
    over wide areas. As a result, licensees can more rapidly roll out
    their services under a geographic area licensing approach.

33. Commenters that do not support geographic area licensing for this
    spectrum should identify the type of station-defined site-by-site
    licensing scheme they support, and explain the costs and benefits
    associated with the alternative licensing proposal. For instance,
    one approach would be an exclusive use approach where the first
    licensee to acquire a license is guaranteed to have its operations
    protected from interference from other later-in-time licensees.
    Another approach would be a shared use approach where a frequency
    coordinator similar to those for the shared private land mobile
    radio (PLMR) frequencies determines where licensees can locate their
    facilities. We note that NextWave has proposed a variation of the
    shared use approach for this band, based on the licensing scheme the
    Commission adopted for the 3650-3700 MHz band, and we seek comment
    on that proposal.[^45]

### Size of Geographic Areas

34. Assuming that we utilize a geographic area approach for licensing
    this band, we must determine the appropriate size(s) of service
    areas on which licenses should be based. Traditionally, in
    establishing a service, the Commission attempts to adopt optimal
    spectrum block sizes and optimal geographic area sizes, taking into
    consideration that parties may aggregate licenses through the
    auction process and may also adjust their service areas through
    secondary market mechanisms such as partitioning and disaggregation,
    if such fine-tuning is necessary.

35. In the past the Commission has licensed spectrum utilizing a wide
    variety of geographic licensing areas, including nationwide
    licensing, regional licensing, local licensing, or some combination
    of these approaches, as is illustrated in the following table:

+--------+---------------------------------+--------------------------+
| **     | **Description of areas**        | **Examples**             |
| Number |                                 |                          |
| of     |                                 |                          |
| Lice   |                                 |                          |
| nses** |                                 |                          |
+========+=================================+==========================+
| 1      | Nationwide                      | Narrowband PCS           |
|        |                                 |                          |
|        |                                 | 1.6 GHz band             |
|        |                                 |                          |
|        |                                 | Block D, Upper 700 MHz   |
+--------+---------------------------------+--------------------------+
| 5      | Narrowband PCS Regional         | Narrowband PCS           |
+--------+---------------------------------+--------------------------+
| 6      | Economic Area Groupings (EAG)   | 220 MHz                  |
|        |                                 |                          |
|        |                                 | Block D, Lower 700 MHz   |
+--------+---------------------------------+--------------------------+
| 12     | Regional Economic Area          | Wireless Communication   |
|        | Groupings (REAG)                | Service (WCS)            |
|        |                                 |                          |
|        |                                 | D/E/F\--Block AWS        |
|        |                                 |                          |
|        |                                 | Block C, Upper 700 MHz   |
+--------+---------------------------------+--------------------------+
| 51     | (see note below)                | A & B-Block PCS          |
+--------+---------------------------------+--------------------------+
| 51 or  | Major Economic Areas (MEA)      | WCS                      |
| 52     |                                 |                          |
|        |                                 | 929/931 MHz Paging       |
+--------+---------------------------------+--------------------------+
| 175    | Economic Areas (EA)             | 220 MHz                  |
|        |                                 |                          |
|        |                                 | 800 MHz SMR              |
|        |                                 |                          |
|        |                                 | Paging                   |
|        |                                 |                          |
|        |                                 | B/C-Block AWS            |
|        |                                 |                          |
|        |                                 | Blocks A/E, Lower 700    |
|        |                                 | MHz                      |
+--------+---------------------------------+--------------------------+
| 493    | (see note below)                | C/D/E/F-Block PCS        |
+--------+---------------------------------+--------------------------+
| 734    | 306 Metropolitan Statistical    | Cellular                 |
|        | Areas (MSA) plus 428 Rural      |                          |
|        | Service Areas (RSA)             | Blocks B/C, Lower 700    |
|        |                                 | MHz                      |
|        |                                 |                          |
|        |                                 | A-Block AWS              |
+--------+---------------------------------+--------------------------+

In the AWS-1 proceeding, the Commission adopted a variety of geographic
licensing area sizes in the band plan to accommodate the competing needs
for large and small geographic area licenses and to afford applicants
the opportunity to combine spectrum blocks and service areas to suit
their business plans: Regional Economic Area Groupings (REAG), EAs, and
Rural Service Areas/Metropolitan Statistical Areas (RSA/MSAs).[^46]

36. With respect to the AWS-3 spectrum, depending on the type of
    advanced wireless services that are provided in the band, different
    block sizes would be better suited for different services. We seek
    comment on the optimal service area sizes to offer the greatest
    flexibility for potential licensees. In addition, we note that the
    spectrum at issue in this proceeding may be used in conjunction with
    other AWS spectrum, including the bands allocated as part of
    AWS-1.[^47]

37. In discussing geographic license areas, commenters are requested to
    take into consideration whether a particular band plan serves the
    Commission's spectrum management goals, including flexible and
    efficient spectrum use.[^48] We are also aware that some licensees
    may need smaller service areas, since the most desirable or
    efficient scale of service area may vary according to the business
    plan of the potential licensee, in light of the variety of potential
    services that we envision will use these bands, including emerging
    technologies or next-generation applications. Thus, in discussing
    these issues, commenters should also take into consideration the
    possibility of aggregating licenses through the auction process as
    well as post-auction partitioning of licenses.[^49]

38. In summary, we seek comment on how we should consider the
    relationship between spectrum block size and geographic licensing
    area in determining the appropriate licensing plan for the 2155-2175
    MHz band. An option that might be more suited to certain
    technologies that would be permitted under the uplink/downlink
    approach would be to license larger spectrum blocks, perhaps on a
    larger geographic basis, such as REAGs or nationwide licenses, for
    TDD-based 3G services. We seek comment on the proposals by several
    applicants for nationwide spectrum rights for the entire 20
    megahertz of spectrum at issue in this proceeding.[^50]
    Additionally, as stated above (in paragraph 25), some licensees,
    such as proponents of the downlink approach to allow for asymmetric
    use of the band, may prefer small "building block" AWS-3 licenses
    that are 5-MHz block sizes, licensed on an EA or RSA/MSA basis,
    which might allow licensees maximum flexibility to tailor their use
    of the spectrum on a market-specific basis. Or, those seeking to
    deploy WiMax in underserved areas may prefer the spectrum to be
    licensed in smaller geographic areas, such as MSAs/RSAs or EAs.
    Alternatively, the structured uplink/downlink approach may suggest a
    different preferred geographic license size, depending on the
    technologies employed in the particular block.

## Auction Issues

39. As discussed above, our overall objective in this proceeding is to
    adopt an approach that is likely to lead to the most efficient and
    effective use of this band. We have identified three different
    technological approaches that appear to raise different tradeoffs
    between flexibility of use and the necessary interference protection
    requirements, and have sought comment on which approach is most
    likely to serve our overall objective. We here seek comment on
    certain related auction issues, if the Commission establishes a
    licensing regime that requires the use of competitive bidding to
    resolve mutually exclusive applications.

40. We have discussed above band plan alternatives that might be
    established in connection with adoption of any of the technological
    approaches laid out. Further, we note that each of the individual
    alternatives discussed above is consistent with options available to
    the Commission under the Part 1 rules for choice of auction design
    to be determined during pre-auction preparations.[^51] Under its
    Part 1 rules, the Commission is able to choose among a variety of
    auction formats in order best to carry out its obligation to conduct
    competitive bidding for spectrum use licenses.[^52] Typically the
    Commission has elected to utilize a simultaneous multiple round
    ascending auction in which license-by-license bidding occurs on
    multiple licenses at the same time. If the particular circumstances
    indicate that another format would better be suited to a specific
    auction, the Commission may choose to utilize or seek comment on
    another of its auction designs, such as a single-round sealed-bid
    auction[^53] or a simultaneous multiple round auction with package
    bidding.[^54] In addition, the Commission may also make certain
    modifications to the procedures of particular auctions to address
    the circumstances presented by a specific auction.[^55]

41. In considering how these auction issues relate to the determination
    of a band plan, we ask that commenters bear in mind that the auction
    formats available to the Commission under its rules, including
    simultaneous multiple round auctions with and without package
    bidding, generally offer bidders the opportunity to aggregate
    smaller licenses, in terms of geographic area or spectrum block
    size, into larger ones.  Notwithstanding the ability of bidders to
    aggregate licenses in a simultaneous auction without package
    bidding, we ask whether and how package bidding may alter the
    determination of optimal license configuration.  For example, would
    smaller license sizes be more attractive if offered with a package
    bidding auction format, since bidders would be able to aggregate
    with minimal exposure risk? If not, what geographic area and
    spectrum block sizes would provide the best opportunities for
    bidders to put the AWS-3 spectrum to its optimal use?  In addressing
    these questions, we request that commenters provide a record on the
    technological and business considerations that should inform a
    determination of optimal spectrum block and geographic area sizes,
    and how those factors may be affected by the choice of auction
    design.

42. We seek comment here on the possibility of not selecting one of the
    approaches outlined above, but instead relying on an auction-based
    mechanism for selecting among a limited number of band plan options.
    One option might be to offer simultaneously in an auction licenses
    from more than one alternative band plan, each of which incorporates
    a different technological approach as discussed above, in a manner
    similar to that used in our auction of Air-to-Ground licenses.[^56]
    Licenses would be awarded to the winning bidders, subject to the
    review of long-form applications, in the band plan with the highest
    aggregate bid, and in this way, determine which of the band plans
    and technological approaches would be implemented. We seek comment
    below on whether the Commission's auction format choices would make
    such an auction feasible and economically efficient, or whether
    there are additional auction formats not yet contemplated by our
    rules that should be available to the Commission to enhance the
    feasibility of such an auction. We also seek comment on what
    bandwidth and geographic license area determinations we should make
    in order to define the candidate band plans.

43. We are seeking comment here because offering all of the licenses in
    the mutually incompatible band plans simultaneously in one auction
    may have drawbacks that would limit the economic and procedural
    efficiency of such an auction, particularly as the complexity of the
    band plans increases, *i.e*., the number of geographic areas and
    spectrum blocks available in each. An auction with all licenses
    offered at the same time, even though only some of them (those in
    the winning band plan) will be awarded, may make it difficult for
    bidders to determine their optimal bidding strategies. In contrast
    to an auction in which all offered licenses are to be sold, bidding
    strategies may be complicated, since the same bids will determine
    both the winners of the licenses and the chances that the licenses
    will be assigned as part of the winning band plan. If bidders do not
    express their preferences over the various licenses and band plans
    optimally, prices may not reflect the true demands for the licenses,
    and the auction may be less likely to assign licenses to those that
    value them the most. Moreover, since in such an auction only some of
    the licenses are intended to be awarded, a simultaneous multiple
    round auction format may give bidders an opportunity for strategic
    manipulation, which also may distort prices and reduce the chances
    that the auction mechanism will correctly assign the licenses to the
    users that value them most highly. For example, bidders may use bids
    that have little chance of winning to signal other bidders. Such
    bids may also be used to prolong the auction. Although the
    Commission's auction format alternatives set out in its rules
    include the single round sealed bid auction format, that format may
    not sufficiently address the issues inherent in assigning licenses
    in one band plan through an auction of licenses in multiple band
    plans. While the single round sealed bid format would eliminate
    opportunities for delay and gaming created by insincere bidding in
    multiple rounds, a single round sealed bid format may not simplify
    bidding strategies and, by eliminating the price discovery process,
    may make it more difficult for bidders to bid optimally.

44. Accordingly, the Commission may need to be able to choose a format
    not now identified in its Part 1 rules in order to ensure that the
    underlying structure of the auction will function so as to give
    bidders the opportunities and the correct incentives to bid honestly
    based on their valuations for the licenses as defined by the service
    rules. We therefore seek comment on auction alternatives not
    presently available to the Commission under its rules that would
    mitigate the issues inherent in offering licenses in an auction in
    which only some licenses are intended to be sold, as discussed
    above. Such auction alternatives are likely to have certain benefits
    and disadvantages, when applied to a possible auction of this band,
    and we seek comment on what those tradeoffs are likely to be.

45. One possibility on which we seek comment is a two-stage auction, in
    which the choice of a band plan is determined in a first stage
    auction and the winning licensees are determined in a second
    auction. We seek comment on auction designs that would select among
    incompatible band plans while also resulting in an economically
    efficient assignment of the licenses.

46. In considering the question of whether to include in our Part 1
    competitive bidding rules an auction format option not currently
    available to us for purposes of offering AWS-3 licenses at auction,
    we ask that commenters consider such questions as whether bidders
    can and are motivated to sincerely express the values they put on
    the items available so that the auction is likely to assign the
    licenses to the bidders that value them most highly; how best to
    define the various band plans if an auction in which licenses from
    each of several band plan options are offered simultaneously; and
    whether the Commission has the statutory authority to conduct an
    auction using such a format, and if so, whether a rule should be
    adopted giving us the option to use such a design.

47. We also seek comment below on the possibility of utilizing an
    auction approach to determine appropriate performance requirements
    and whether such an approach would require modifications to our Part
    1 competitive bidding rules.[^57] Accordingly, we seek comment on
    whether using an auction approach to establish performance
    requirements could be compatible with an auction approach for
    selecting among band plan options. For instance, could we use a
    two-stage or other auction format to select a band plan, assign
    licenses and establish the applicable performance requirements as
    described below, in a way that adequately ensures the economic
    efficiency of the outcome? If commenters believe that there are
    tradeoffs to be made in utilizing auction formats in these ways,
    they should identify those tradeoffs and indicate what choices
    should be made to best advance our goals for this spectrum.

48. Finally, in the event that the Commission adopts for this spectrum a
    licensing framework that would result in an auction to resolve
    mutually exclusive applications, we seek comment on the timing for
    commencing any such auction. The auction of AWS spectrum in the
    1710-1755 MHz and 2110-2155 MHz bands, Auction 66, concluded on
    September 18, 2006. In addition, the Commission recently announced
    that it will commence an auction of 700 MHz band spectrum, Auction
    73, on January 16, 2008, pursuant to statutory mandate.[^58] It is
    widely anticipated that this 700 MHz band spectrum will also be used
    for deploying advanced wireless services. Given these recent
    auctions, we seek general comment on the effect that this sequence
    of auctions will have on the wireless spectrum market. How might the
    timing of an auction of licenses for AWS-3 spectrum affect different
    types of applicants? For instance, how would timing of an auction
    affect competitors with varied business models? Would timing have a
    different impact on incumbents as opposed to new entrants? Would a
    third wireless spectrum auction have a disproportionate impact on
    smaller entities? We note that smaller entities have previously
    expressed the need for adequate time to "digest" the spectrum
    marketplace and conduct due diligence in preparation for deciding
    whether to participate in an auction,[^59] and we seek comment on
    this concern. We seek comment on the specific benefits or drawbacks
    of various time frames in the event that the Commission ultimately
    auctions licenses for this spectrum.

## Technical Issues

### Protection of Adjacent Band Services 

49. Transmissions originating in the AWS-3 band could potentially cause
    harmful interference to adjacent band services. For example, AWS-3
    base, fixed or mobile stations could cause interference to AWS-1 and
    proposed AWS-2 services, which will operate in the 2110-2155 MHz and
    2175-2180 MHz bands, respectively, as well as other existing
    services that currently operate in the upper part of the 2.1 GHz
    band -- such as Broadband Radio Service (BRS), Fixed Microwave
    services (FS) and MSS/ATC.[^60] In the following paragraphs, we seek
    comment on possible technical and operational rules to protect these
    various services from harmful interference.

50. As discussed above, if we were to adopt an uplink/downlink approach
    for the 2155-2175 MHz band, it could be used to implement systems
    using TDD or HFDD-based access technologies.[^61] To accommodate
    such systems, we would have to provide for both base and mobile
    transmissions in the band. Mobile transmissions, however, are not
    presently permitted in most of the allocated bands from 2110 MHz to
    2200 MHz.[^62]

51. The presence of base *and* mobile transmissions in the same band,
    adjacent to spectrum designated for base transmissions, creates the
    possibility for certain types of adjacent channel interference
    scenarios, which are not present when base and mobile transmissions
    are situated in spectrum far apart from one another. For example, if
    a handset transmitting in the 2155-2175 MHz band is in close
    physical proximity to a handset receiving in the adjacent 2110-2155
    MHz band, then "mobile-to-mobile" interference could occur to the
    receiving handset; and if a base station transmitting in the
    2155-2175 MHz band is in close physical proximity to a TDD or HFDD
    base station receiving on an adjacent block in the 2155-2175 MHz
    band, then "base-to-base" interference could occur to the receiving
    base station. "Base-to-mobile" and "mobile-to-base" interference
    scenarios will also be present if we permit base and mobile
    transmissions in the 2155-2175 MHz band. However, these interference
    scenarios are somewhat less difficult to address than base-to-base
    and mobile-to-mobile interference scenarios.[^63] In the following
    discussions, we shall seek comment on measures to address all of the
    possible adjacent channel interference scenarios that could be
    present, both within and outside the 2155-2175 MHz band.

52. There are two types of adjacent channel interference that can occur.
    The first is caused by OOBE, which fall directly within the pass
    band of an adjacent-band receiver. Such emissions cannot be
    "filtered out," and can only be mitigated by: 1) providing
    sufficient physical separation between the transmitter and
    receiver;[^64] and/or 2) suppressing OOBE at the source (*i.e*., the
    transmitter). The second type of interference is caused by "receiver
    overload." Receiver overload interference occurs when a strong
    signal from an adjacent band transmission falls just outside the
    pass band of a receiver,[^65] where the front-end filter of the
    receiver can only provide limited attenuation of the unwanted
    signal. There are three ways to minimize receiver overload
    interference: (1) improve the filtering of the adjacent band
    receiver; (2) limit the power of the transmitter; and (3) provide
    physical separation between the transmitter and receiver.

#### Out-of-Band Emission (OOBE) Limits

53. *Mobile Station OOBE Limits*: If a mobile is attempting to receive a
    signal from its base station, but is situated near to where an
    adjacent band mobile is transmitting, the possibility exists for
    OOBE interference to the receiving mobile.[^66] This
    "mobile-to-mobile" interference scenario will exist if we permit
    mobile transmissions in the 2155-2175 MHz AWS-3 band because of the
    presence of receiving mobiles in various adjacent bands (*e.g.*, the
    AWS-1 (2110-2155 MHz), proposed AWS-2 (2175-2180 MHz), and MSS/ATC
    (2180-2200 MHz) bands). The most viable way to mitigate this
    interference will be to adopt appropriate OOBE limits for mobiles
    transmitting in the 2155-2175 MHz band.[^67]

54. In the *AWS-2 Service Rules NPRM*, the Commission sought comment on
    the OOBE limits that might be needed to protect PCS handsets
    (receiving in the 1930-1990 MHz band) from handsets transmitting in
    the 1915-1920 MHz band ("AWS-2 block").[^68] The Commission
    tentatively concluded that an OOBE limit of at least -60 dBm/MHz
    into the PCS mobile receive band was appropriate.[^69] And in the
    *MSS/ATC Report and Order*, the Commission adopted OOBE limits to
    protect PCS handsets from interference from MSS/ATC handsets, which
    were to operate in the 2000-2020 MHz band.[^70] Specifically, the
    Commission decided that MSS/ATC handsets would have to attenuate
    out-of-band emissions: below 1995 MHz, by at least 70 + 10log P dB;
    in the 1995-2000 MHz band, by at least a value as determined by the
    linear interpolation of 70 + 10log P dB at 1995 MHz to 43 + 10log P
    dB at 2000 MHz, and elsewhere, by 43 + 10log P dB.[^71] In
    determining the appropriate OOBE limit for mobiles operating in the
    2155-2175 MHz band, we will have to take various factors into
    consideration. For example, in the *AWS-2* and *MSS/ATC* proceedings
    the Commission proposed or adopted relatively strict OOBE limits for
    AWS-2 block mobiles and MSS/ATC handsets, respectively, into the PCS
    mobile receive band -- but in those circumstances 10 megahertz of
    spectrum was available (*i.e.*, from 1920 MHz to 1930 MHz and from
    2000 MHz to 1990 MHz) to reach those limits.[^72] If we require
    mobiles operating in the 2155-2175 MHz band to reach similarly
    strict OOBE limits at the edges of the band, then because of the
    limited size of the AWS-3 band, the occupied bandwidth of the mobile
    transmission might have to be restricted to a relatively small
    portion of spectrum near the center of the band.[^73]

55. AWS-1 licensees have not begun to operate in the adjacent 2110-2155
    MHz band and licensing has not yet begun in the adjacent 2175-2180
    MHz (AWS-2) band. However, we are concerned about the potential for
    interference to mobile receivers operating in these "base-transmit"
    bands if we were to permit mobile transmissions in the 2155-2175 MHz
    band. We therefore seek comment on whether, if we were to allow
    mobile transmissions in the 2155-2175 MHz band, it will be necessary
    to adopt strict measures, *e.g.,* stringent OOBE limits, to guard
    against such interference.

56. Specifically we seek comment on what OOBE limit, beyond our standard
    43 +10 log P dB limit, might be required for 2155-2175 MHz mobile
    transmitters in order to protect adjacent band mobile
    receivers,[^74] and whether such limits would be appropriate to the
    types of technologies and system architectures that are being
    contemplated for the 2155-2175 MHz band.[^75] In this connection we
    note that, as part of its previously filed application to receive an
    exclusive nationwide license, M2Z had proposed a license condition
    that would require the attenuation factor for user stations to be
    not less than 43+ 10 log (P) dB at the channel edges and 55 + 10
    log (P) dB three megahertz outside the channel edges.[^76] In its
    earlier application NetfreeUS also had proposed using this
    attenuation factor.[^77] We seek comment on the OOBE limits proposed
    by M2Z and NetfreeUS to address "mobile-to-mobile" interference into
    adjacent bands. We also ask commenters to consider the impact a
    stringent OOBE limit might have on the viability of mobile (*i.e*.,
    TDD or HFDD-based) operations in the 2155-2175 MHz band. More
    specifically, we ask whether the need to incorporate filters
    necessary to achieve a strict OOBE limit might result in a
    significant increase in the cost, size, and/or battery requirements
    of handsets transmitting in the band. Alternatively, if the
    necessary filtering is not utilized and all of the usable spectrum
    cannot be used efficiently because of the need to locate a mobile's
    transmission near the center of the 2155-2175 MHz band, how would
    this impact the viability of TDD or HFDD-based operations in the
    band?

57. Finally, if in this proceeding we adopt rules permitting mobile
    transmissions in the 2155-2175 MHz band, then the possibility would
    exist for mobile-to-mobile interference to MSS/ATC mobile receivers
    operating above 2180 MHz.[^78] Although there are five megahertz of
    spectral separation between the AWS-3 and MSS/ATC bands, in seeking
    to prevent harmful interference to operations above 2180 MHz, it may
    be necessary to require mobile transmitters operating in the
    2155-2175 MHz band to comply with an out-of-band emission limit more
    restrictive than our standard attenuation requirement of 43 + 10
    log~10~ (P) dB. For example, although the 2000-2020 MHz MSS/ATC band
    was 10 megahertz removed from the 1930-1990 MHz PCS band, the
    Commission adopted OOBE limits in the *MSS/ATC* proceeding that
    required MSS/ATC mobiles operating in the 2000-2020 MHz band to
    suppress their emissions by at least 70+10log P dB in the 1990-1995
    MHz band.[^79] We therefore seek comment on what OOBE attenuation,
    beyond our standard 43 + 10log P dB limit, might be required to
    enable AWS-3 mobiles to protect MSS/ATC mobiles operating in the
    2180-2200 MHz band. We also ask whether we should adopt some type of
    variable out-of-band emission limits based on the particular
    technologies and system architecture used by AWS-3 licensees to
    protect such mobiles.

58. *Base and Fixed Station OOBE Limits*: We have presented two
    potential technological uses for the 2155-2175 MHz band through our
    three proposed approaches: (1) operations involving base and mobile
    transmissions, which would enable the use of TDD or HFDD-based
    applications, such as WiMax (the uplink/downlink and structured
    uplink/downlink approaches); and (2) operations involving base or
    fixed transmissions only (the downlink approach), which would enable
    asymmetric pairing of AWS-3 spectrum with AWS-1, AWS-2, or other
    CMRS bands,[^80] high-powered downlink-only video systems, and
    various fixed services. Under both of these potential uses (*i.e.*,
    base-and-mobile use and base or fixed use), base and fixed stations
    would be permitted to operate in the band. But because the AWS
    spectrum below the AWS-3 band is already limited to base station
    transmissions and AWS spectrum above the AWS-3 band will likely be
    limited to base station transmissions as well, base transmissions in
    the 2155-2175 MHz band will not introduce any "base-to-base" OOBE
    interference into those adjacent bands.[^81] We thus propose that,
    in protecting adjacent band AWS operations from harmful
    interference, base and fixed stations operating in the 2155-2175 MHz
    band should be permitted to operate with the same OOBE limit that is
    applied to base and fixed stations operating in the adjacent
    2110-2155 MHz AWS band to address "base-to-mobile" interference in
    that band -- *i.e.*, an attenuation requirement of 43 + 10
    log~10~ (P) dB.[^82] We seek comment on this proposal. We also seek
    comment on the proposal by M2Z with respect to attenuation for fixed
    digital stations.[^83]

59. As previously stated, MSS/ATC operations occupy the spectrum from
    2180 MHz to 2200 MHz. If in this proceeding we adopt rules
    permitting base and fixed station transmissions only in the
    2155-2175 MHz band, then AWS operations in the band will be
    consistent with the current use of the MSS/ATC spectrum above 2180
    MHz, which is to be used for MSS downlink and ATC base station
    transmissions. Thus, we believe that, in seeking to prevent OOBE
    interference to operations above 2180 MHz, it should not be
    necessary to require base and fixed transmitters operating in the
    2155-2175 MHz band to comply with an out-of-band emission limit that
    is more stringent than our standard attenuation requirement of 43 +
    10 log~10~ (P) dB. We seek comment on this suggestion.

60. *Band Plan Options if Strict OOBE Limits are Necessary for Mobile
    Transmissions:* As previously discussed, we seek comment on the best
    approach for licensing the AWS-3 spectrum in the most flexible and
    spectrally efficient way. If stringent OOBE limits are imposed on
    mobile transmissions in the 2155-2175 MHz band to protect adjacent
    band operations, this could affect the ability of licensees
    operating in the outer portions of the band to provide mobile
    services. Thus, if a strict OOBE limit is necessary to protect
    adjacent band operations, should we consider designating the
    spectrum near the edges of the 2155-2175 MHz band for fixed or base
    transmit-only operations, as described in our proposed "structured
    uplink/downlink" approach? For example, should we consider
    restricting the upper and lower 5-megahertz blocks, at 2155-2160 MHz
    and 2170-2175 MHz, to fixed operations, such as "fixed wireless
    access" or backhaul, and/or base transmit-only services, such as
    downstream video applications similar to the one being implemented
    by Qualcomm/MediaFLO in the Lower 700 MHz Band (at 698-746 MHz).
    This would leave the 10 megahertz of spectrum in the middle of the
    band, which could be used for TDD or HFDD-based mobile
    services.[^84] We therefore seek comment on what operational
    restrictions, if any, should be imposed in certain portions of the
    band, if strict mobile OOBE limits are determined to be necessary to
    protect adjacent band operations.

#### Power Limits 

61. As discussed above, there are three ways to minimize receiver
    overload interference: (1) improve receiver filtering; (2) provide
    physical separation between the receiver and the interfering
    transmitter; and (3) limit the power of the transmitter. With regard
    to the 2155-2175 MHz band, we believe that, of these three methods,
    the one that would most readily protect adjacent channel mobile
    receivers from overload interference from AWS-3 mobiles would be to
    limit the transmitting power of the AWS-3 mobile transmissions. We
    seek comment on this suggestion. Specifically, commenters should
    address the merits of limiting the transmitting power of the AWS-3
    mobiles or whether other methods could or should be used to minimize
    potential receiver overload interference from AWS-3 mobiles.

62. *Mobile Station Power Limits:* We have suggested that if we permit
    mobile transmissions in the 2155-2175 MHz band, we will have to
    adopt measures to minimize the potential for harmful interference to
    the mobile receivers operating in adjacent bands.[^85] Any
    determination of the appropriate mobile station power limit to
    prevent receiver overload interference to adjacent band handsets
    will, however, depend, in large part, on the filter characteristics
    of the handsets. Based on data about the state of filter technology
    for 2 GHz band handsets that was submitted in the AWS-2 allocation
    proceeding regarding the capabilities of different filters used in
    today's PCS phones,[^86] the Commission determined, in the *AWS
    Allocation Sixth Report and Order*, that a power level of 200 mW
    peak equivalent isotropic radiated power (EIRP) in handsets
    transmitting in the 1915-1920 MHz band may be sufficient to address
    concerns about receiver overload interference to PCS handsets
    operating in the 1930-1990 MHz band.[^87] Based on this and perhaps
    more current data, we could make a finding as to the power limit
    that should be applied to 2155-2175 MHz handsets to prevent such
    interference to adjacent band mobiles.

63. We therefore seek comment on what power limit should be applied to
    2155-2175 MHz mobiles to prevent receiver overload interference to
    mobiles operating in adjacent AWS bands. For example, would a 250 mW
    EIRP power limit adequately protect AWS handsets operating in the
    2110-2155 MHz and proposed to be operating in the 2175-2180 MHz
    bands -- or would some lesser power limit be required because the
    2110-2155 MHz and 2175-2180 MHz bands are situated immediately
    adjacent to the 2155-2175 MHz band?[^88] Also, given that there is
    no embedded base of AWS handsets already in the marketplace and that
    future AWS handsets are in all likelihood still being developed, we
    seek comment on whether filtering technologies being considered for
    AWS handsets will be an improvement over those found in existing PCS
    handsets. If so, should we consider these improvements when crafting
    power limits to protect adjacent band services from mobiles that may
    operate in the 2155-2175 MHz band? Finally, because receiver
    overload interference becomes less severe as the separation between
    the interfering and receiving frequencies increases, we seek comment
    also as to whether a relatively low power limit could be applied to
    a limited portion of the uppermost and lowermost parts of the
    2155-2175 MHz band, while greater power limits are permitted near
    the center of the band.

64. Although the upper edge of the AWS-3 band is 5 megahertz away from
    the MSS/ATC band (at 2180-2220 MHz), we must also determine what
    power limits might be needed to prevent receiver overload
    interference to mobiles operating in that band. We therefore seek
    comment on whether some restrictive power limit (*e*.*g.*, 250 mW
    EIRP) on AWS-3 mobiles would be necessary to prevent interference to
    mobiles operating in the MSS/ATC band, and if so, what that power
    limit should be.

65. *Base and Fixed Station Power Limits:* If we adopt rules permitting
    only base and fixed station transmissions in the 2155-2175 MHz band,
    then, as noted above, operations in the band would be consistent
    with the planned use of the MSS/ATC spectrum above 2180 MHz (*i.e*.,
    for MSS downlink and ATC base station transmissions), the planned
    use of AWS spectrum below 2155 MHz, and proposed in the 2175-2180
    MHz band for base station transmissions. In seeking to prevent
    potential "base-to-mobile" overload interference from AWS-3 base and
    fixed stations to mobiles receiving on spectrum above 2180 MHz,
    below 2155 MHz, and proposed in the 2175-2180 MHz band, we believe
    it may necessary to require the 2155-2175 MHz band base and fixed
    transmitters to comply with a power limit less than 1640 Watts EIRP
    (with a 3 dB increase in rural areas), which is the power limit that
    is applied to base and fixed stations in the 2110-2155 MHz band to
    prevent base-to-mobile interference. We seek comment on this
    proposal. We may also wish to permit licensees operating in the
    2155-2175 MHz band to provide certain communications that could
    require power levels greater than 1640 Watts EIRP. One such type of
    communications could be a downstream video application similar to
    the one being implemented by Qualcomm/MediaFLO in the Lower 700 MHz
    Band (at 698-746 MHz). Our 700 MHz band rules currently permit
    high-powered base station transmissions (up to 50 kW effective
    radiated power (ERP)) so long as licensees adhere to a prescribed
    power flux density (PFD) limit near their transmitter.[^89] We
    therefore seek comment on whether AWS-3 licensees should be
    permitted to operate base and fixed stations at power levels greater
    than 1640 watts EIRP and, if so, what additional technical
    requirements they should have to meet if operating at such power
    levels, *e.g.,* the provisions of Section 27.55(b) of our rules. We
    also seek comment on whether we should adopt a power spectral
    density rule that would allow for more radiated power, the specific
    amount being proportional to emission bandwidth, as raised in the
    *Further Notice* in the 2005 Biennial Review proceeding.[^90]
    Specifically, we ask whether we should adopt rules that implement a
    PSD model for defining power limits. This would result in the
    maximum allowable power levels to be permitted per 1 megahertz of
    spectrum rather than per carrier. Because this would permit higher
    power signals from wideband technologies than permitted under
    current AWS-1 rules, we also ask whether we should adopt additional
    measures in this band to protect against any possible increased risk
    of interference, should we adopt the PSD model.

66. *Alternative Operations if Strict Mobile Power Limits are Required:*
    If stringent power limitations are necessary to prevent 2155-2175
    MHz band mobiles from causing harmful interference to adjacent band
    mobiles, we seek comment as to what impact such power restrictions
    might have on the viability of TDD or HFDD-based operations in the
    2155-2175 MHz band. More specifically, we seek comment on whether we
    should adopt rules for the 2155-2175 MHz band that would either
    restrict mobile operations to the center portion of the band (see
    paragraphs 19-20, above) or allow only services that would provide
    significant physical separation between AWS-3 and adjacent band
    mobiles.[^91] We seek comment on these, or any other proposals for
    the use of the 2155-2175 MHz band, if strict mobile power limits are
    determined to be necessary to protect adjacent band operations.

#### Protection of AWS-3 Operations from Adjacent Block AWS-3 Systems

67. *Mobile Station Power and OOBE Limits to Address Interference to
    Other AWS-3 Operations:* If the AWS-3 band is assigned in multiple
    blocks, we anticipate that multiple licensees may be operating in
    the 2155-2175 MHz band in a given geographic area.[^92] If we allow
    licensees to operate mobile transmissions in this spectrum (*e.g.,*
    licensees employing TDD or HFDD-based systems), we must decide
    whether they should be required to protect both base stations and
    mobile stations receiving on adjacent AWS-3 blocks within the
    2155-2175 MHz band.[^93] Protecting *mobile* station reception on
    adjacent AWS-3 blocks, in particular, could require strict OOBE
    limits and/or strict power limits, and depending on how stringent
    these limits are, the viability of mobile operations on AWS-3 blocks
    could be significantly affected.[^94]

68. We therefore seek comment on whether an AWS licensee operating
    mobile transmissions on a five- or 10-megahertz block in the
    2155-2175 MHz band should be required to provide protection to
    adjacent block base and adjacent block mobile stations in the
    2155-2175 MHz band*.* If commenters believe that AWS licensees
    operating mobile transmissions should be required to protect
    adjacent block base and/or mobile station receivers from
    interference, we seek comment on whether such receivers will be
    protected though use of a 43 + 10log (P) dB OOBE attenuation
    requirement and a one watt EIRP power limit. If commenters believe
    that AWS licensees operating mobile transmissions cannot protect
    adjacent block base and mobile receivers though the use of these
    technical limits, we seek comment on what OOBE and/or power limits
    would protect such receivers from interference. And if limits on
    power and out-of-band emissions are insufficient to protect
    receivers operating in adjacent blocks in the 2155-2175 MHz band, we
    seek comment on what other methods would be necessary to prevent
    harmful interference to such receivers.

69. *Base and Fixed Power and OOBE Limits to Address Interference to
    Other AWS-3 Operations:* In paragraph 50, above, we suggested that,
    in providing protection to adjacent band mobile receivers from
    out-of-band emission interference, AWS base and fixed transmitters
    need only satisfy an OOBE attenuation requirement of 43 + 10
    log~10~ (P) dB; and we proposed as well, in paragraph 57, that, in
    protecting adjacent band mobiles from overload interference, AWS
    base and fixed station transmitters could operate at power levels up
    to 1640 Watts EIRP. Similarly, we seek comment on whether, if
    multiple AWS-3 licensees operate in a given geographic area, base
    and fixed stations transmitting in the band will be able to protect
    mobiles operating on adjacent AWS-3 blocks by employing greater than
    1640 watts EIRP and by satisfying OOBE limit of 43 + 10log P dB.

70. If, however, TDD or HFDD-based operations are employed in the
    2155-2175 MHz band, and there are multiple licensees operating in
    the AWS-3 band in a given geographic area, there would be the
    potential for base-to-base interference among such licensees
    (*e*.*g.*, interference from a licensee employing a TDD, HFDD, or
    FDD base station transmitter to an adjacent block licensee employing
    a TDD or HFDD base station receiver). One way to limit such
    interference would be for the licensees to cooperate with one
    another in locating and operating their base stations.[^95] Another
    way would be to limit the power and/or OOBE levels of licensees'
    base station transmissions. We seek comment, therefore, on whether
    it will be necessary to limit the power and/or OOBE levels of base
    and fixed station transmissions beyond the limits that would likely
    be employed to address base-to-mobile interference (as discussed in
    the previous paragraph) in order to address base-to-base
    interference among licensees operating in the 2155-2175 MHz band, or
    whether voluntary cooperation among parties will adequately address
    these interference concerns. [^96] If reduced power limits or
    stricter OOBE limits are considered necessary to limit base-to-base
    interference, we seek comment as to what those limits should be. If
    limits on power and out-of-band emissions are insufficient to
    protect base station receivers operating in adjacent AWS-3 blocks,
    we seek comment on what other methods would be necessary to prevent
    harmful interference to such receivers.[^97]

#### Protection of AWS-3 Operations from Adjacent Band Systems

71. If we permit mobile transmissions in the 2155-2175 MHz band, base
    stations receiving such transmissions could be subject to
    "base-to-base" interference from nearby base stations transmitting
    in adjacent spectrum bands.[^98] Thus, the opportunity for AWS-3
    licensees to deploy TDD or HFDD-based systems could come with a
    cost, *i.e.*, the susceptibility of their base station receivers to
    harmful interference from adjacent band base stations. We suggest,
    however, that no special restrictions should be placed on licensees
    operating in adjacent bands to protect 2155-2175 MHz band base
    station receivers from harmful interference. We seek comment on
    these proposals.

### Protection of Incumbent Services

72. Terrestrial fixed service (FS) stations are currently authorized
    within the 2160-2175 MHz band. Those facilities operating in the
    2160-2175 MHz band, as well as FS facilities operating in the
    spectrum from 2175 MHz to 2200 MHz, are subject to relocation[^99]
    but FS licensees maintain primary status unless and until an
    emerging technology (ET) licensee requires use of the
    spectrum.[^100] ET licenses are responsible for FS relocation costs
    until ten years after the first ET license is issued in the relevant
    band, *i.e*., 2160-2175 MHz.[^101] In the *AWS‑1 Service Rules
    Report and Order*, the Commission required AWS licensees operating
    in the 2110-2155 MHz band to coordinate, prior to initiating
    operations from any base or fixed station, their frequency usage
    with co-channel and adjacent channel, incumbent fixed-point-to-point
    microwave licensees operating in the 2110-2155 MHz band.[^102] The
    Commission also decided that, in determining when such coordination
    is necessary, it would apply the provisions of Section 24.237 of the
    Commission's rules, which details the coordination requirements for
    protecting incumbent fixed microwave systems operating in the PCS
    bands.[^103] The Commission sought comment on this approach in the
    *AWS-2 Service Rules NPRM*, tentatively concluding that AWS
    licensees operating in the 2175-2180 MHz band should be required to
    coordinate with incumbent FS facilities operating on co-channel and
    adjacent channel spectrum in that band prior to initiating
    operations.[^104] Similarly, we believe that AWS licensees operating
    in the 2155-2175 MHz band should be similarly required to coordinate
    with incumbent FS licensees operating on co-channel and adjacent
    channel spectrum in the band prior to initiating operations.[^105]
    We seek comment on this proposal. However, if we adopt rules that
    allow base and mobile transmissions in the band, we also seek
    comment on whether a modified coordination requirement would be
    necessary to coordinate unpaired mobiles with FS and if so, what
    methods could or should be used to prevent this form of
    interference.

73. AWS-3 base and/or mobile transmissions in the 2155-2175 MHz band
    could also cause interference to Fixed Service (FS) stations
    receiving in the 2110-2155 MHz and 2175-2180 MHz bands. To prevent
    such interference, it might be necessary to require AWS-3 base,
    fixed, and mobile station transmitters to comply with reduced power
    limits, strict OOBE limits, and to operate at some minimum distance
    from the FS stations.[^106] Alternatively, we could require AWS-3
    licensees to protect adjacent- band FS operations in accordance with
    the same coordination rules that we believe should be adopted to
    protect FS operations *within* the 2155-2175 MHz band (*see*
    paragraph 79 below). We thus seek comment on what technical and
    operational measures might be required to protect FS stations
    operating in the 2110-2155 MHz and 2175-2180 MHz bands from OOBE and
    receiver overload interference.[^107] We note also that fixed AWS
    stations may employ directional antennas. We therefore ask whether
    different limits or measures might be needed to protect FS stations
    from AWS *fixed* stations than would be needed to protect FS
    stations from AWS *base* stations.

74. Authorized below and within the 2155-2175 MHz band is the BRS, which
    is licensed in the 2150-2160/62 MHz band.[^108] In the *AWS Ninth
    Report and Order*, the Commission established the criteria that AWS
    licensees, including AWS licensees operating in the 2155-2175 MHz
    band, will have to follow in protecting BRS operations.[^109]
    Specifically, the Commission determined that an AWS entrant would be
    required to relocate a BRS system if the AWS entrant was commencing
    operation of a base station that was co-channel with the BRS system
    and if the base station had line-of-sight to a receiver in the
    incumbent system.[^110] The Commission further determined that AWS
    entrants commencing base station operations that were not co-channel
    with a BRS system would not be subject to a line-of-sight relocation
    requirement, but that any AWS entrant operating in the 2110-2180 MHz
    band and causing actual and demonstrable interference to a BRS
    system was still responsible for taking the necessary steps to
    eliminate the harmful interference, up to and including relocating
    the incumbent.[^111] ET licenses are responsible for BRS relocation
    costs until 15 years after the first ET license is issued in the
    relevant band, *i.e*., 2150-2160/62 MHz.[^112]

75. If we permit mobile transmissions along with base transmissions in
    the 2155-2175 MHz band, the possibility also exists for interference
    from AWS-3 mobiles to BRS stations receiving in the 2150-2160/62 MHz
    band. We note that the procedures we have established to protect BRS
    operations require AWS entrants to take the steps necessary to
    eliminate any interference to a BRS system. Parties that believe
    additional provisions should be employed to account for the case of
    interference to BRS operations from AWS-3 mobiles to BRS incumbents
    should demonstrate why our existing procedures should be modified.

76. We also note that the Commission has adopted rules pursuant to which
    AWS entrants may relocate FS and BRS incumbents to which they would
    otherwise cause harmful interference, and that it also established
    rules providing for sharing of relocation costs among AWS entrants
    that benefit from the relocation of an incumbent.[^113] Parties that
    believe that the introduction of mobile transmissions in the
    2155-2175 MHz band would warrant changes to the existing rules,
    including the associated rules for sharing of relocation costs among
    AWS entrants, should describe any such changes and demonstrate why
    they are necessary.

77. Finally, we seek comment specifically on how the relocation and
    reimbursement rules would operate -- or how they would need to be
    amended -- if the 2155-2175 MHz band was designated for unlicensed
    use or for non-exclusive licenses, similar to the 3650-3700 MHz
    band, as explained further below.[^114] For example, how would
    non-exclusive licensees or unlicensed users apportion reimbursements
    costs among themselves?[^115]

### Co-Channel Interference between Licensees in the 2155-2175 MHz Band

#### Protection of Co-Channel AWS Licensees Operating in Adjacent Regions

78. If we ultimately decide to license the 2155-2175 MHz band on a
    non-nationwide geographic service area basis, the potential for
    harmful interference will exist between co-channel systems operating
    in adjacent regions.[^116] We therefore seek comment as to the best
    method for controlling such interference. In other Part 27
    proceedings,[^117] the Commission has adopted a "boundary limit"
    approach[^118] for providing interference protection between
    co-channel licensees after having initially proposed the use of a
    "boundary limit" or "coordination" [^119] approach. The coordination
    approach ensures that interference is reduced to a level that is
    acceptable to both licensees, but could also impose an unnecessary
    cost in coordinating facilities that have a low potential for
    interference. In contrast, a boundary limit approach allows
    licensees to deploy facilities in boundary areas without the need
    for coordination, but could require some additional planning between
    licensees to protect against harmful interference.

79. In other bands where spectrum has been allocated for Fixed and
    Mobile services, the Commission has uniformly adopted the boundary
    limit method to minimize co-channel interference.[^120] We propose
    that the boundary limit or coordination approach should be adopted
    to limit co-channel interference that could be caused by licensees
    operating in the 2155-2175 MHz band. We seek comment on this
    proposal. To the extent parties believe that a coordination method
    is preferable, we invite specific comments on how to implement that
    approach in the 2155-2175 MHz band. If a boundary limit methodology
    is employed, we seek comment as to the appropriate signal level to
    be permitted at licensees' borders.[^121]

80. We also seek comment on whether a different signal limit should be
    required at licensees' borders if we permit both base *and* mobile
    transmissions in the 2155-2175 MHz band. Our traditional purpose for
    limiting signal levels at geographic borders has been to minimize
    potential harmful interference to mobiles caused by the
    transmissions of co-channel base stations operating in adjacent
    regions.[^122] However, if we adopt rules that allow base and mobile
    transmissions in the band, a base station transmitting in a given
    region could potentially cause interference to co-channel base
    stations receiving in adjacent regions; and a mobile crossing into,
    and transmitting in, an adjacent region could potentially cause
    interference to co-channel mobiles and base stations receiving in
    that region.[^123] We therefore seek comment on whether we should
    protect base and mobile station receivers from potential co-channel
    "base-to-base" and/or "mobile-to-mobile" interference as well as
    "base-to-mobile" and "mobile-to-base" interference, and if so, how
    we would provide such protection. If boundary limits are
    insufficient to prevent harmful base-to-base and mobile-to-mobile
    interference, or if the boundary limits required to provide such
    protection would significantly reduce the viability of operations on
    AWS-3 blocks, we seek comment on what other methods could or should
    be used to prevent these forms of interference.[^124] Finally, we
    ask whether, if the boundary limit method is adopted to address
    co-channel interference, we should permit licensees operating in
    adjoining areas to employ alternative, agreed-upon signal limits at
    their common borders.

#### Antenna Height Restrictions for Base and Fixed Stations 

81. If we license the 2155-2175 MHz band using a geographic area
    licensing scheme, we seek comment on whether any limit should be
    placed on the height-above-average-terrain (HAAT) of base or fixed
    station antennas operating in the 2155-2175 MHz band. In the recent
    *AWS*-*1 Service Rules Order,*[^125] the Commission concluded that
    such a restriction, which is designed to limit the coverage area of
    individual base stations, was unnecessary, in light of the
    requirement to limit signal strength at a licensee's geographic
    border. Likewise, we seek comment on whether, in the event that we
    do not adopt a geographic licensing scheme for this band, any limit
    should be placed on the HAAT of base or fixed station antennas
    operating in the band.

## Regulatory Issues; Licensing and Operating Rules

82. As we have generally done recently with other spectrum being
    reallocated or redesignated for licensed fixed and mobile services,
    including the related AWS-1 band, we propose to give licensees in
    these bands the flexibility to provide any fixed or mobile service
    that is consistent with the allocations for this spectrum. We also
    propose to license this spectrum under our market-oriented Part 27
    rules. We seek comment on this proposal. In addition, we seek
    comment on other proposals for the AWS-3 band, including those that
    were proffered earlier by applicants that sought to operate in this
    band.[^126] We also seek comment on the appropriate regulatory
    framework for AWS-3 licenses, the license term, criteria for
    renewal, performance requirements, and other licensing and operating
    rules pertaining to this band.

### Flexible Use

83. We propose service rules for this band that would permit a licensee
    to employ this spectrum for any use permitted by the United States
    Table of Frequency Allocations contained in Part 2 of our rules
    (*i.e*., fixed or mobile services). Congress recognized the
    potential benefits of flexibility in allocations of the
    electromagnetic spectrum and amended the Communications Act in 1999
    to add Section 303(y). This section gives the Commission authority
    to provide for flexibility of use if: "(1) such use is consistent
    with international agreements to which the United States is a party;
    and (2) the Commission finds, after notice and an opportunity for
    public comment, that (A) such an allocation would be in the public
    interest; (B) such use would not deter investment in communications
    services and systems, or technology development; and (C) such use
    would not result in harmful interference among users." [^127]

84. We determine that our proposal for flexibility fully meets these
    section 303(y) criteria. Such use would be subject to bilateral
    discussions commonly undertaken whenever spectrum is put to use in
    border areas, but is consistent with applicable international
    agreements. The public interest benefits of flexibility are
    manifold. The Commission has identified the establishment of maximum
    feasible flexibility in both allocations and service rules as a
    critical means of ensuring that spectrum is put to its most
    beneficial use. Thus, in a 1999 *Policy Statement* on spectrum
    management, the Commission observed that "\[i\]n the majority of
    cases, efficient spectrum markets will lead to use of spectrum for
    the highest value end use," and that "\[f\]lexible allocations may
    result in more efficient spectrum markets."[^128] We would expect
    these economic efficiencies to foster---not deter---technology
    development and investment in communications services and systems.
    And the technical rules we are proposing herein would prevent
    harmful interference among users.

85. We therefore seek comment on our proposal to provide for flexible
    use of this frequency band, especially in light of the section
    303(y) criteria noted above. If any restrictions are warranted, what
    should they be and why are they needed? Are there trade-offs between
    flexibility and investment in technology and new services that we
    should consider? To the extent commenters believe flexibility will
    deter investment in these bands, they should also suggest specific
    restrictions on how spectrum should be used by a licensee, and
    provide detailed analysis of the economic tradeoffs between
    flexibility and investment that justify any particular recommended
    restriction on use. We also specifically seek comment on the types
    of uses that pose the greatest risk of interference to uses planned
    by parties interested in using this spectrum.[^129]

### Other License Conditions

86. We seek comment generally on whether to apply various conditions to
    govern the operation of networks using this band, as had been
    proposed by several parties in their applications pertaining to this
    band (i.e., M2Z Networks, Inc.; Commnet Wireless, LLC; McElroy
    Electronics Corp. (MEC); NetfreeUS, LLC; NextWave Broadband, Inc.;
    Open Range Communications, Inc.; and TowerStream Corporation).[^130]
    In addition to certain technical rules and build out obligations
    proposed by these entities and discussed elsewhere herein, some
    applicants, such as M2Z, proposed additional requirements to be
    imposed on licensees in this band. For example, they suggest that
    licensees should be obligated to provide broadband services at
    specific data rates,[^131] with specific pricing plans (including
    free of service charges in certain circumstances),[^132] and with
    mechanisms designed to filter content inappropriate for
    children.[^133] We seek comment on these proposals. In addition, we
    seek comment on whether any other conditions should govern the
    operation of a provider's network should it be granted a license to
    operate in this band. Further, should the additional requirements be
    applied only to free service, if a licensee must offer free service,
    or should they be applied more broadly? What are the potential
    problems that may be associated with the Commission's adoption of
    any of these potential requirements, and how do they compare to the
    potential benefits?

87. For example, M2Z previously proposed a requirement to provide
    wireless broadband services, without charge to end-users, "at
    engineered data rates" of 384 kbps downstream and 128 kbps
    upstream.[^134] Should we mandate any of the specific speeds
    proposed in the previously pending applications, such as 384 kbps
    downstream and 128 kbps upstream, as minimum speeds to be provided
    for free broadband service?[^135] Should we consider 384/128 kbps to
    be a broadband service?[^136] Should the Commission require a
    minimum data rate, or other minimum capabilities, even if it does
    not require the licensee to offer a free service? We note that, in a
    separate proceeding, we are currently considering whether to revise
    the definition of broadband service to increase the minimum
    threshold for reporting broadband speed information, and to
    establish a system whereby the "speed tiers" would be automatically
    adjusted upwards over time to reflect technological advances.[^137]
    If we adopt specific requirements regarding transmission speeds for
    licensees of this spectrum, should we provide for possible
    revisitation of those speeds over the term of the service? Should we
    require a network "engineered to provide" specific speeds to
    actually provide those speeds system-wide to each user in all
    conditions? Should each user be guaranteed to receive such speeds,
    or should the theoretical capability of the network to provide such
    speeds under ideal conditions to certain customers be sufficient to
    satisfy the condition?

88. We also seek comment on whether we should require specific pricing
    plans. In its previously pending application, M2Z proposed to
    provide the "engineered data rates" discussed above "free of airtime
    or service charges."[^138] Should we require that licensees in this
    band provide service for free? If we imposed such a requirement,
    should we also allow licensees to charge for certain services, such
    as a service which presumably would include more features and a
    faster data rate, and if so, what should that faster data rate be?
    If so, should licensees be allowed to guarantee a certain quality of
    service to paying customers at the expense of customers receiving
    service for free or should licensees be prohibited from prioritizing
    fee-based services? We note that M2Z also proposed that it be
    allowed to "condition service provision on the use of customers
    services equipment that is certified by \[the licensee\] to operate
    in the band according to its specifications"[^139] If we were to
    require licensees to provide free service, should we nevertheless
    allow them to dictate customer equipment pricing, features, and
    availability? If the Commission does not require the licensee to
    provide free service, should the licensee be required to provide a
    private commons[^140] or, alternatively, should the Commission
    simply clarify that such private commons are permissible under
    current rules?

89. In addition, we seek comment on whether we should require an
    operator in this band to comply with certain access requirements.
    For example, should we adopt a requirement to provide wholesale
    access, as proposed by the Public Interest Spectrum Coalition
    (PISC)?[^141] Should we impose open device rules similar to those
    adopted for the 700 MHz C Block?[^142]

90. We also seek comment on previously proposed conditions relating to
    content and public safety. For example, in its application, M2Z
    proposes "automatic, default blocking of access to pornographic,
    obscene, and/or indecent material" that could be disabled for paying
    customers that provide "proof that they are of the age of
    majority."[^143] Should we mandate the provision of broadband
    services with mechanisms designed to filter content inappropriate
    for children?[^144] If so, how should we implement such a
    requirement? Should it be an opt-in or an opt-out requirement? How
    should we define inappropriate content? Should the content subject
    to blocking be defined consistently with our existing standards for
    over the air broadcasts? Would requiring mandatory filtering for a
    free tier service and filtering using an "opt out" approach for a
    premium tier service, as proposed in M2Z's Application,[^145] raise
    constitutional or statutory concerns, as suggested by PISC?[^146]

91. Finally, we seek comment on whether the Commission should require
    licensees in this band to provide free, prioritized service to
    public safety organizations?[^147] Is this band suitable for public
    safety communications? Would the resulting service and network meet
    public safety needs? We seek comment on whether requiring licensees
    to provide such service to public safety providers is necessary in
    light of our recent adoption of the Public/Private Partnership in
    the 700 MHz proceeding.[^148] We also seek comment, however, on
    whether there are ways in which this spectrum can be used to further
    the Commission's goal of making a nationwide, interoperable
    broadband network available to state and local public safety users.

### Regulatory Framework

92. Given that we propose to permit flexible use of this band, we
    propose licensing it under the flexible regulatory framework of Part
    27 of our rules.[^149] Unlike other rule parts applicable to
    specific services, Part 27 does not prescribe a comprehensive set of
    licensing and operating rules for the spectrum to which it applies.
    Rather, for each frequency band under its umbrella, Part 27 defines
    permissible uses and any limitations thereon, and specifies basic
    licensing requirements. The licensing requirements for a number of
    spectrum bands, including the Upper and Lower 700 MHz bands[^150]
    and the AWS spectrum at 1710-1755 MHz and 2110-2155,[^151] are
    contained in Part 27.[^152]

93. In earlier AWS proceedings, the Commission disagreed with some
    commenters who expressed a preference that AWS be regulated under
    Part 24 of our Rules to ensure its efficient integration with
    Broadband PCS services.[^153] Nothing about application of the Part
    27 rules, or the specific technical rules we propose, should stand
    as an impediment to the provision of Broadband PCS-type services in
    this band. Differences in the technical rules for AWS and PCS are
    due to the different spectrum environments of the services rather
    than placement of the rules in one or another rule part, and we make
    every effort to minimize them. To the extent that some licensees may
    face additional regulatory requirements by deploying multi-band
    equipment,[^154] we seek comment on what modifications to our rules
    and processes could be made to eliminate duplication of effort and
    still ensure that devices are tested as appropriate for operation in
    each spectrum block.

94. In order to promote flexibility and permit market forces to
    determine what services are ultimately offered in this band, we
    therefore seek comment on our proposal to license the 2155-2175 MHz
    band under Part 27. As set out in more detail below, we also seek
    comment on what additional rule provisions should be included in
    Part 27 or incorporated by reference, in light of the services that
    may be offered under a flexible use approach.

### Assignment of Licenses

95. Section 309(j) of the Communications Act requires that the
    Commission assign initial licenses through the use of competitive
    bidding when mutually exclusive applications for such licenses are
    accepted for filing, except in the case of certain specific
    statutory exemptions not applicable here.[^155] In this *Notice,* we
    ask for comment concerning whether we should adopt a geographic area
    licensing scheme for the 2155-2175 MHz band, as well as whether we
    should accept mutually exclusive applications and, consistent with
    section 309(j), resolve such applications through competitive
    bidding.[^156] We propose competitive bidding procedures in
    paragraphs 148-155 below, should we determine that a licensing
    scheme that may lead to assignment by auction is in the public
    interest. Several applicants, however, including M2Z, NetfreeUS, and
    NextWave, suggest that the Commission should consider processes that
    are designed to avoid mutual exclusivity for this spectrum.[^157] We
    seek comment on whether we should adopt any such processes. In this
    connection, we also seek comment on the benefits and costs of
    establishing an unlicensed regime,[^158] as suggested by PISC,
    either in lieu of a licensed regime or as a complement to the
    licensed regime (by permitting an unlicensed underlay).[^159] We
    also seek comment on using a non-exclusive licensing approach for
    this band, similar to the rules adopted in the 3650-3700 MHz band,
    as suggested by PISC.[^160] In addition, M2Z and NetfreeUS have
    suggested that in assigning one or more licenses in this band, the
    Commission should license the spectrum for free, and instead
    condition the license on a payment of a "spectrum usage fee" to the
    U.S. Treasury in the amount of 5% of its revenues from certain
    services offered by the licensee.[^161] For example, in the event it
    made available "Premium Services" on a subscription basis, M2Z
    proposed to pay to the U.S. Treasury, on an annual basis, a
    "voluntary usage fee" of 5% of the gross revenues derived from such
    "Premium Services."[^162] Similarly, NetfreeUS proposed to pay to
    the U.S. Treasury, on an annual basis, a spectrum fee of 5% of the
    gross revenues derived from its Wireless Public Broadband
    service.[^163] We seek comment on these proposals.

### Regulatory Status

96. We propose to apply the regulatory status provisions of section
    27.10 to licensees in the 2155-2175 MHz band. The Commission\'s
    current mobile service license application requires an applicant for
    mobile services to identify the regulatory status of the service(s)
    they intend to provide,[^164] since service offerings may bear on
    eligibility and other statutory and regulatory requirements.[^165]
    The Commission has adopted a similar licensing framework for Part 27
    of our Rules.[^166] Under Part 27, the Commission permits applicants
    to request common carrier status as well as non-common carrier
    status for authorization in a single license, rather than to require
    the applicant to choose between common carrier and non-common
    carrier services.[^167] Regardless of which rule part is used to
    license advanced wireless services in the 2155-2175 MHz band, we
    propose to adopt this same approach. Licensees in this band would be
    able to provide all allowable services anywhere within their
    licensed area at any time, consistent with their regulatory
    status.[^168] We believe that this approach is likely to achieve
    efficiencies in the licensing and administrative process, and
    provide flexibility to the marketplace.

97. We further propose that applicants and licensees in the 2155-2175
    MHz band be required to indicate a regulatory status based on any
    services they choose to provide. Apart from this designation of
    regulatory status, we would not require applicants to describe the
    services they seek to provide.[^169] We wish to point out to
    potential applicants that an election to provide service on a common
    carrier basis requires that the elements of common carriage be
    present;[^170] otherwise the applicant must choose non-common
    carrier status.[^171] If potential applicants are unsure of the
    nature of their services and their classification as common carrier
    services, they may submit a petition with their applications, or at
    any time, requesting clarification and including service
    descriptions for that purpose.[^172]

98. We also propose that if a licensee were to change the service or
    services it offers, such that its regulatory status would change,
    the licensee must notify the Commission.[^173] A change in a
    licensee's regulatory status would not require prior Commission
    authorization, provided the licensee was in compliance with the
    foreign ownership requirements of section 310(b) of the
    Communications Act that apply as a result of the change.[^174] We
    propose to require the notification within 30 days of a change made
    without the need for prior Commission approval. We note, however,
    that a different time period may apply, as determined by the
    Commission, where the change results in the discontinuance,
    reduction, or impairment of the existing service.[^175]

99. In addition, we note that we recently found that wireless broadband
    Internet access service is an information service under the
    Act.[^176] We seek comment on whether any of the proposals set forth
    in this subsection should be modified to reflect this ruling.

### Ownership Restrictions

#### Foreign Ownership Reporting

100. We propose that the provisions of section 27.12 should apply to
     applicants applying for licenses in the 2155-2175 MHz band.[^177]
     Section 27.12 implements section 310 of the Communications Act, as
     modified by the Telecommunications Act of 1996. Sections 310(a) and
     310(b) of the Communications Act, as modified by the
     Telecommunications Act of 1996, impose foreign ownership and
     citizenship requirements that restrict the issuance of licenses to
     certain applicants.[^178] An applicant requesting authorization for
     services other than broadcast, common carrier, aeronautical en
     route, or aeronautical fixed services would be subject to section
     310(a), but not to the additional prohibitions of section 310(b).
     An applicant requesting authorization for these particular services
     would be subject to both sections 310(a) and 310(b). As applicable
     to these bands, we do not believe that common carriers and
     non-common carriers filing an application should be subject to
     varied reporting obligations. By establishing parity in reporting
     obligations, however, we do not propose a single, substantive
     standard for compliance. For example, we would be unlikely to deny
     a license to an applicant requesting authorization exclusively to
     provide services not enumerated in section 310(b), solely because
     its foreign ownership would disqualify it from receiving a license
     if the applicant had applied for a license to provide the services
     enumerated in section 310(b). We request comment on this proposal.

#### Spectrum Aggregation Limits; Eligibility Restrictions

101. We propose not to impose a spectrum aggregation limit or
     eligibility restrictions for the 2155-2175 MHz band. The Commission
     decided in 2001 to "sunset" the CMRS spectrum aggregation limit, or
     "spectrum cap,"[^179] effective January 1, 2003.[^180] The
     Commission found that the cap, by setting an *a priori* limit on
     spectrum aggregation without looking at the particular
     circumstances of specific proposed transactions, was unnecessarily
     inflexible and could be preventing beneficial arrangements that
     promote efficiency without undermining competition. The Commission
     also stated that it would continue to pursue the objectives of
     "discourag\[ing\] anticompetitive behavior while at the same time
     maintaining incentives for innovation and efficiency,"[^181] but
     would do so by performing case-by-case reviews of proposed CMRS
     spectrum transactions rather than by applying a prophylactic
     rule.[^182] Moreover, the Commission found that "to the extent that
     the initial distribution of spectrum through auction is an issue in
     the future, that is also amenable to case-by-case review, in the
     sense that \[the Commission\] can shape the initial distribution
     through the service rules adopted with respect to specific
     auctions."[^183]

102. Due to the sunset of the CMRS spectrum cap, applicants in the
     2155-2175 MHz band will not be subject to any generalized limits on
     spectrum aggregation. We do not believe we should adopt any
     band-specific service rules addressing spectrum aggregation limits
     applicable to the initial licensing of these bands, but consistent
     with the approach the Commission described in the *Spectrum Cap
     Order*, we seek comment on whether any such limits are necessary or
     appropriate. In particular, we seek comment on whether we should
     limit the amount of spectrum in these bands that any one entity (or
     related entities) may acquire the right to use at auction or
     through the secondary market in the same geographic area.
     Commenters should provide economic data and analysis supporting
     their positions. Commenters who support adoption of such limits
     should also address with particularity what the limitations should
     be (including whether they should depend on factors such as the
     amount of CMRS spectrum an applicant holds in other bands), what
     competitive problems the proposed limits are designed to solve, and
     how their proposals will address these problems without imposing
     undue costs or inefficiencies.

103. In recent years the Commission has determined in a number of
     services that eligibility restrictions on licenses may be imposed
     only when open eligibility would pose a significant likelihood of
     substantial harm to competition in specific markets and when an
     eligibility restriction would be effective in eliminating that
     harm. This approach relies on market forces absent a compelling
     showing that regulatory intervention to exclude potential
     participants is necessary.[^184] At this time, open eligibility in
     the 2155-2175 MHz band does not appear to pose a significant
     likelihood of substantial harm to competition in any specific
     markets, and thus it does not appear that an eligibility
     restriction in this band is warranted. We believe that open
     eligibility in these bands is consistent with our statutory mandate
     to promote the development and rapid deployment of new
     technologies, products, and services; economic opportunity and
     competition; and the efficient and intensive use of the
     electromagnetic spectrum.[^185] We seek comment on these views.

### License Term 

104. We propose to establish a 10-year license term and to apply the
     renewal expectancy provisions of section 27.14 to licensees in
     these bands. The Communications Act imposes no specific term limit
     on licenses that will be issued by the Commission for this
     spectrum.[^186] Generally, however, the Commission's rules provide
     for a 10-year license term for wireless licenses.[^187] We propose
     that in the 2155-2175 MHz band the license term be 10 years, with a
     renewal expectancy similar to that afforded PCS, cellular, and Part
     27 licensees. In the case of these licensees, a renewal applicant
     receives a preference or renewal expectancy if the applicant has
     provided substantial service during its past license term and has
     complied with the Communications Act and applicable Commission
     rules and policies.[^188] We have defined substantial service as
     "service which is sound, favorable, and substantially above a level
     of mediocre service which just might minimally warrant
     renewal."[^189] We believe that a 10-year license term, combined
     with a renewal expectancy upon a showing of substantial service and
     compliance with the Act and applicable Commission rules and
     policies (including applicable performance requirements), will help
     to provide a stable regulatory environment that will be attractive
     to investors, and thereby encourage development of services in
     these frequency bands. We seek comment on this proposal.

105. We also seek comment on whether a license term longer than 10 years
     is appropriate to achieve these goals and better serve the public
     interest.[^190] Commenters who favor a license term in excess of 10
     years should specify a reasonable license term and include a basis
     for the period proposed. Commenters should also address whether it
     would be possible to have different license terms, depending on the
     type of service offered by the licensee. We also seek comment on
     how we would administer such an approach, particularly if licensees
     provide more than one service in their service area, or decide to
     change the type of service they plan to offer.

106. Under our proposal, in the event that a license in the subject
     bands is partitioned or disaggregated, any partitionee or
     disaggregatee would be authorized to hold its license for the
     remainder of the partitioner's or disaggregator's original license
     term, and would be eligible for a renewal expectancy on the same
     basis as other licensees.[^191] This approach is similar to the
     partitioning provisions the Commission adopted for BRS (formerly
     MDS),[^192] for broadband PCS licensees,[^193] for the 700 MHz band
     licensees,[^194] and for AWS-1 licenses at 1710-1755 MHz and
     2110-2155 MHz.[^195] Specifically, we do not believe that a
     licensee, by partitioning or disaggregation, should be able to
     confer greater rights than it was awarded under the terms of its
     license grant. We seek comment on these proposals.

### Criteria for Renewal

107. AWS-1 licensees are required to make a showing of "substantial
     service" under the performance requirements of Section 27.14(a) as
     well as in the context of any renewal proceedings under Section
     27.14(b) of the Commission's rules.[^196] In addition, Section
     27.14(b)-(d) of the Commission's rules governing AWS-1 licensees
     indicate that a comparative process is used to choose among renewal
     applicants based on certain showings, although these provisions do
     not describe the factors that the Commission will consider in
     connection with a license renewal application to the extent no
     competing application is filed. We seek comment on whether to apply
     these same rules for renewals of AWS-1 licenses to the AWS-3
     licenses in the adjacent 2155-2175 MHz band. We also seek comment
     on the possibility of stating explicitly the criteria for renewal
     that apply to 2155-2175 MHz band authorizations under Part 27,
     regardless of whether licensees are involved in a comparative
     hearing. Further, we seek comment on whether to use these criteria
     to replace the procedures for the filing of competing applications
     at renewal time. For instance, should a license not be renewed, the
     Commission could offer a new license for use of the spectrum
     associated with the non-renewed license.

108. We also seek comment on whether we should adopt any of the
     modifications to the renewal criteria that we recently adopted for
     700 MHz band licenses that are also regulated under Part 27.[^197]
     For example, in the *700 MHz First Report and Order* we eliminated
     the provision allowing for the filing of competing applications in
     response to renewal requests.[^198] We also required that, in
     addition to satisfying applicable performance requirements, 700 MHz
     licensees must demonstrate, to satisfy their renewal requirements,
     that they have provided substantial service during their past
     license term."[^199] We propose to adopt a similar policy for the
     AWS-3 licenses at renewal, and we seek comment on this proposal.

109. We also seek comment generally on the appropriate renewal
     application requirements for 2155-2175 MHz band licensees. We seek
     comment on whether we should define more extensively the standards
     and informational filings that apply to license renewal
     applications for these licenses.[^200] In particular, we seek
     comment on the requirements (or factors) that should be considered
     for 2155-2175 MHz band licensees at renewal, including: the level
     of service and whether it was "substantial"; whether service was
     ever interrupted and discontinued; whether service has been
     provided to any rural areas; whether a licensee has received any
     requests from others seeking to enter into spectrum leasing
     arrangements, and whether it has entered into any such
     arrangements; and any other factors typically associated with
     assessments of a licensee's level of service to the public.
     Commenters should address which, if any, of these or other elements
     should be codified as requirements for renewal or, in the
     alternative, whether the Commission should list factors that are
     relevant to a licensee's demonstration that renewal is in the
     public interest.

110. In the event commenters propose some form of modified or combined
     Section 27.14 standard,[^201] we seek comment on whether to use
     codified renewal criteria to measure the 2155-2175 MHz band
     licensees' level of service instead of relying on any performance
     incentives that may arise due to the possibility of competing
     applications being filed against a renewal (with the concomitant
     need for the incumbent to demonstrate "substantial service" to
     receive a renewal expectancy preference). Although Sections
     27.14(b)-(d) of the Commission's rules indicate that a comparative
     process is used to choose among renewal and competing applicants,
     the precise type of comparative hearing to be employed is not
     specified. Under a modified Section 27.14 of the Commission's
     rules, the Commission could eliminate the filing of competing
     applications at renewal time and, for example, adopt a process by
     which the spectrum reverts to the Commission if a license is not
     renewed, allowing the Commission to offer a new license for use of
     the associated spectrum at auction. To the extent such an approach
     is adopted, commenters should address the procedures for processing
     a renewal, the components of a renewal filing and any
     demonstrations of "substantial service" or other requirements,
     provisions for petitions to deny renewal applications, and
     procedures governing dismissal/denial of renewal applications and
     subsequent re-licensing of spectrum through competitive bidding to
     competing bidders.[^202] In addition, we seek comment on whether
     the petition to deny process, coupled with the ability of a
     petitioner to participate in any subsequent auction to re-license
     spectrum that reverts to the Commission if the license is not
     renewed for lack of renewal, creates sufficient incentives to
     challenge inferior service by licensees at renewal and thereby
     protect the public interest.

### Performance Requirements

111. In the *AWS-1 Service Rules Report and Order*, the Commission
     applied the substantial service requirement in section 27.14(a) of
     the Commission's rules to the 1710-1755 and 2110-2155 MHz bands.
     According to that provision, by the end of its license term an
     AWS-1 licensee must provide "'substantial service,' that is,
     service that is sound, favorable and substantially above the level
     of mediocre service that just might minimally warrant renewal."
     [^203] The Commission decided not to impose mid-license term
     performance requirements on AWS-1 licensees.[^204] The Commission
     recently adopted more stringent performance requirements for
     certain portions of the 700 MHz Band, however, including both
     population-based and geographic area mid-term and end-of-term
     benchmarks as well as a keep-what-you-use condition. M2Z recently
     proposed that the AWS-3 spectrum should be subject to a 95%
     population-based benchmark measured "by counties."

112. We seek comment on the appropriate performance requirements for
     licenses in the 2155-2175 MHz band in order to further access to
     spectrum and provision of service to consumers, including those in
     rural areas. We seek comment below on these approaches, including
     how the various proposals may offer certain additional benefits
     that outweigh possible additional costs. For each of the proposals
     below, commenters should address the potential advantages to
     consumers in the license service areas, including those in rural
     areas, as well as any possible disadvantages, such as possibly
     limiting the flexibility of licensees to deploy services under time
     frames responsive to market conditions.

113. *Substantial Service.* The current performance requirement for the
     AWS-1 band, as described above,[^205] is based on the substantial
     service standard defined in Section 27.14(a).[^206] We seek comment
     as to the effectiveness of this approach in promoting service in
     the 2155-2175 MHz band, especially in rural areas. As discussed
     above, licensees in the unpaired AWS-3 band may seek to operate a
     network that also uses the paired spectrum in the adjacent AWS-1
     band.[^207] Would adoption of performance requirements for AWS-3
     that differ from the substantial service requirements applicable to
     the adjacent AWS-1 band complicate compliance for licensees wishing
     to operate systems in both bands? For example, to the extent an
     incumbent AWS-1 licensee also obtained an AWS-3 band license as
     part of its network using AWS spectrum, would applying a different
     set of performance requirements to the different licenses be
     impractical?

114. Should the Commission adopt a substantial service standard, we also
     seek comment on whether the Commission should establish "safe
     harbors" to provide examples of what would be considered
     substantial service in the 2155-2175 MHz band.[^208] We note that
     in the *Rural Report and Order*, the Commission established a safe
     harbor for providing mobile service to rural areas.[^209] In
     particular, it stated that a mobile wireless service licensee "will
     be deemed to have met the substantial service requirement if it
     provides coverage to at least 75 percent of the geographic area of
     at least 20 percent of the 'rural areas' within its licensed
     area."[^210] We seek comment on whether this "rural safe harbor"
     for mobile wireless services should apply to the 2155-2175 MHz band
     licenses or whether it should be revised. We also seek comment as
     to whether to apply a safe harbor to other types of services
     (*e.g.*, fixed) in the 2155-2175 MHz band and, if so, what other
     services should be included and how the safe harbor should be
     defined. In addition, we ask how "coverage" would be measured for
     these other services so as to improve incentives to serve rural
     areas. Finally, we seek comment on whether there are other safe
     harbors pertaining to construction in rural areas that should
     fulfill the substantial service requirement and that would provide
     additional regulatory certainty regarding the Commission's
     performance requirements.

115. To the extent commenters address whether Section 27.14(a) or safe
     harbors should be applied, they should also consider whether any
     other provisions in the existing Part 27 rules require specific
     recognition or adjustment to comport with the potential application
     of those performance requirements for 2155-2175 MHz band licensees.
     For example, we seek comment on whether we need to clarify the
     extent to which certain of the Commission's non-Part 27 rule parts,
     as listed in Section 27.3, apply to 2155-2175 MHz band licensees
     with regard to performance requirements relating to build out
     and/or provision of service.[^211] In addition, we note that
     Section 27.15 describes *inter alia* elections for "geographic
     partitioning and spectrum disaggregation" to ensure the
     Commission's performance requirements are met when licenses are
     divided spectrally or geographically between two or more
     parties.[^212] We seek comment on whether to change any aspect of
     Section 27.15 in order to help ensure the provision of service to
     consumers, including any rural areas that are part of a partitioned
     or disaggregated license.[^213]

116. *Construction Benchmarks.* As an alternative to maintaining the
     substantial service standard that the Commission previously
     determined should apply to the related AWS-1 band,[^214] we seek
     comment on whether we should apply more specific construction
     benchmarks to the 2155-2175 MHz band. In some other proceedings,
     the Commission has adopted specific construction benchmarks that
     require a licensee to make service available to a certain
     percentage of the population or geographic area. For instance, in
     our recent *700 MHz Second Report and Order* we adopted stringent
     performance requirements for those 700 MHz band licenses that have
     not been auctioned, including interim and end-of-term benchmarks,
     geographic benchmarks for certain licenses and population
     benchmarks for others, as well as additional reporting
     requirements.[^215] Some broadband PCS licensees originally were
     required to build out their networks to meet certain interim and
     end-of-term population benchmarks.[^216] Elsewhere, narrowband PCS
     licensees were given the option of constructing networks sufficient
     to serve at least a minimum amount of the geographic area of the
     license, or constructing networks sufficient to meet different
     interim and end-of-term population benchmarks, or meeting a
     substantial service requirement.[^217]

117. We seek comment on whether the Commission should adopt a
     population-based construction requirement in the 2155-2175 MHz
     band, and whether such a requirement should include interim and
     end-of-term benchmarks. We ask for comment on the advantages of
     adopting this type of benchmark. If such a benchmark were adopted,
     we seek comment on the precise population benchmark(s) that should
     be adopted. We also request comment on the disadvantages that
     adoption of population-based benchmarks might cause, such as the
     risk that licensees would be less likely to serve less-populous
     areas, at least during the initial license term.

118. We note that a number of the previously filed applications had
     proposed population-based construction requirements. For example,
     Commnet proposed requiring service to one-third of the U.S.
     population within three years of license grant, two-thirds within 7
     years, and 90 percent within 10 years of license grant.[^218]
     NetfreeUS suggested requiring substantial service to at least 50
     percent of the 734 CMAs within four years of initial license grant,
     75 percent of CMAs within six years, and 95 percent within 10
     years.[^219] TowerStream proposed requiring service to at least 50
     percent of the population of its licensed area within five years
     and at least 75 percent within 10 years.[^220] And M2Z proposed
     requiring (1) construction of one base station in one Statistical
     Market Service Area (SMSA) within 24 months of license grant; (2)
     construction and operation of sufficient base stations to provide
     service to 33 percent of the U.S. population measured by counties
     within 3 years of the grant; (3) service to 66 percent of the
     population measured by counties within five years; and (4) service
     to 95 percent of the population measured by counties within ten
     years.[^221] We seek comment on the feasibility and appropriateness
     of these proposed performance measures.

119. We note that some of these proposals are less aggressive than the
     build out requirements the Commission has established for some
     other services,[^222] and we seek comment on whether these
     proposals are sufficient to spur the deployment of advanced
     services to rural and underserved populations. For example, how
     would measuring the percentage of covered U.S. population "by
     counties" as proposed by M2Z work, and would this be an appropriate
     measurement? Would measuring population by counties mean that the
     licensee would be credited with serving the entire population of a
     county by constructing one base station in a given county --
     regardless of signal coverage? If so, would this means of
     measurement result in an overstatement of coverage? We seek input
     on the best way to determine whether a licensee has constructed
     base stations sufficient to meet applicable performance
     requirements.

120. As an alternative to a population-based construction requirement,
     we seek comment on whether a geography-based construction
     requirement for 2155-2175 MHz band licenses would be more effective
     in promoting service to underserved areas. We note that, in the
     *Rural R&O and FNPRM*, the Commission considered whether it should
     adopt geographic based benchmarks for any particular service, but
     declined at that time to adopt such a policy based on the record in
     that proceeding.[^223] Conversely, in the *700 MHz Second Report
     and Order*, the Commission adopted geography-based benchmarks for
     certain license sizes, subject to certain exceptions.[^224] In the
     instant rulemaking, we seek comment on whether geographic-based
     benchmarks warrant further consideration and, in particular,
     whether these rules could be designed to promote build out in rural
     portions of these licenses yet to be auctioned. If so, we seek
     comment on how such a geography-based benchmark could or should be
     structured. We also seek comment on any other geographic benchmarks
     that would be appropriate for these licenses. For any proposed
     benchmark, we ask commenters to describe how the Commission should
     apply it to the variety of fixed, mobile, broadcast, and private
     services that are authorized in this spectrum.

121. *"Keep What You Use."* We also seek comment on whether the
     Commission should consider adopting a "keep what you use"
     re-licensing mechanism[^225] for the 2155-2175 MHz band. Such an
     approach could be similar to the approach adopted for cellular
     service in the 1980s,[^226] or that which was adopted in our recent
     700 MHz proceeding.[^227] Under a "keep what you use" rule, the
     Commission would reclaim any "unused" spectrum in a license area
     after a pre-defined period of time. We also seek comment on whether
     the Commission should consider a modified version of this rule,
     such as a "triggered keep what you use" rule, in which the
     Commission, rather than reclaiming "unused" spectrum after a period
     of time, would reclaim spectrum only in the event a party other
     than the licensee (*e.g*., a spectrum lessee) seeks access to the
     licensed spectrum in an unserved portion of the license area.
     Similarly, we seek comment on whether the Commission should
     consider applying either the "keep what you use" rule or "triggered
     keep what you use" rule only to a portion of the spectrum (*e.g*.,
     one-half) of the spectrum that otherwise would be reclaimed, or
     eligible for reclamation, by the Commission.

122. Given that these variations of the "keep what you use" approach may
     make unused spectrum available to other parties interested in
     gaining access to spectrum, we seek comment on whether it may be an
     effective means to provide additional service, including in rural
     areas. If commenters believe licensees are less likely to use
     spectrum in rural portions of their license areas, would such a
     mechanism be an efficient way to provide spectrum access to other
     potential service providers? To the extent that licensees may be
     less likely to use the spectrum in rural portions of their license
     areas, we also seek comment as to whether the Commission should
     apply this approach only to licenses covering rural areas, or only
     to that portion of licenses that covers rural areas.

123. To the extent commenters believe a "keep what you use" mechanism is
     appropriate, we seek comment on how "use" could or should be
     defined, given the goals we here seek to further. In particular, we
     seek comment on how the Commission should define what type of
     activities demonstrate that the spectrum is being "used" in this
     context, considering that the Part 27 rules that the Commission
     adopted facilitate a wide variety of services and uses in this
     band.

124. *Additional provisions*. We also seek comment on whether, in the
     event that a license is partitioned or disaggregated, a partitionee
     or disaggregatee should be bound by the standard (either
     substantial service or a construction requirement) that we may
     adopt in this proceeding.

125. If a licensee does not comply with the performance requirement we
     adopt, the Commission must consider what action to take. We propose
     to apply the procedures set forth in section 1.946(c) of the
     Commission's rules to licensees who fail to meet their performance
     requirements. This section states that "\[i\]f a licensee fails to
     commence service or operations by the expiration of its
     construction period or to meet its coverage or substantial service
     obligations by the expiration of its coverage period, its
     authorization terminates automatically, without specific Commission
     action, on the date the construction or coverage period
     expires."[^228] We seek comment on our proposal to apply this rule
     to licensees in the 2155-2175 MHz band. In addition, if a
     geographic area licensee loses its license for failure to comply
     with coverage requirements, we seek comment on whether the licensee
     should be ineligible to regain it.

126. *Auction Approach*. We also seek comment on whether we should
     determine appropriate performance requirements with a market-based
     approach, such as via a "scoring auction." In a scoring auction,
     individual bids would not be simply dollar amounts, but compound
     statements such as a dollar amount plus commitments on other
     performance dimensions. For example, bids might have two parts: a
     dollar amount plus a promised year-5 coverage percentage. The
     Commission would convert each multipart bid into a "score," based
     on a weighting formula announced prior to the auction, and the
     winning bidder would be the one with the highest score. This
     approach would integrate the determination of license winner with
     determination of the performance requirement, and would allow
     requirements to vary license-by-license depending on individual
     circumstances. It may enhance the competitiveness of the auction by
     encouraging bidders with construction advantages in a particular
     unserved market(s) to compete more aggressively against better
     funded rivals. It might help avoid uneconomic construction
     resulting from poorly defined requirements. On the other hand, it
     might provide a significant bidding advantage to incumbent service
     providers in a market that can fulfill a construction commitment by
     relying on existing infrastructure and facilities; an advantage
     that new entrants that lack these capital resources might find
     difficult to overcome. We invite comment on all aspects of this
     approach, and in particular on what scoring formula the Commission
     might adopt to determine highest bids. We also invite comment on
     how to enforce build out commitments made by winning bidders, and
     thus ensure that bidding on those commitments is sincere. In
     addition, we seek comment on whether any element of this approach
     would be inconsistent with any applicable statutory provisions.
     Finally, we seek comment on whether any of our Part 1 rules
     governing competitive bidding should be modified to implement an
     auction approach to establishing performance requirements. For
     example, in addition to any rules needed to outline the general
     parameters of such an auction approach, should we establish new
     rules regarding payment, license grant, denial, default or
     disqualification as a means to enforce performance commitments,
     ensure sincere bidding, and safeguard the fairness and integrity of
     the auction process? [^229]

### Disaggregation and Partitioning of Spectrum; Secondary Markets

127. *Disaggregation and Partitioning*. We propose to apply the
     provisions of section 27.15 regarding the partitioning and
     disaggregation to licensees in the 2155-2175 MHz band. Geographic
     partitioning and spectrum disaggregation is a tool utilized by the
     Commission that is intended to promote efficient spectrum use and
     economic opportunity for a wide variety of applicants, including
     small business, rural telephone, minority-owned, and women-owned
     applicants.[^230] We seek comment on allowing licensees in the
     2155-2175 MHz band to partition their service areas and to
     disaggregate their spectrum. We believe that section 27.15 of the
     Commission\'s rules[^231] should apply if we allow partitioning and
     disaggregation. Section 27.15 provides that licensees may apply to
     partition their licensed geographic service areas or disaggregate
     their licensed spectrum at any time following the grant of their
     licenses.[^232] We seek comment on the benefits and costs of this
     approach, and whether it promotes the public interest.

128. In addition, pursuant to section 27.15, the partitioning licensee
     must include with its request a description of the partitioned
     service area and a calculation of the population of the partitioned
     service area and the licensed geographic service area.[^233]
     Section 27.15 also contains provisions against unjust
     enrichment.[^234] We propose to adopt these provisions, as well as
     the remaining provisions governing partitioning and disaggregation
     set forth in section 27.15, if we allow partitioning and
     disaggregation. We seek comment on our proposal.

129. We also seek comment on whether the Commission should adopt
     additional mechanisms to encourage partitioning and/or
     disaggregation of 2155-2175 MHz band spectrum and the extent to
     which such policies ultimately may promote more service, especially
     in rural areas.

130. *Secondary Markets*. In our *Secondary Markets Report and Order*,
     the Commission took action to remove unnecessary regulatory
     barriers to the development of secondary markets.[^235] The
     Commission adopted new policies and procedures that enable most
     wireless licensees, including Part 27 licensees, to lease some or
     all of their spectrum usage rights to third-party spectrum
     lessees.[^236] We propose that the spectrum leasing policies
     established in that proceeding be applied to the services
     established in this proceeding in the same manner that those
     policies apply to other Part 27 services (with the exception of
     Guard Band Manager licensing which has its own set of spectrum
     leasing policies and rules), including AWS-1 licenses, and all
     other exclusive use Wireless Radio Services.[^237] We seek comment
     on this proposal.

131. In the *Rural Report and Order* issued in 2004, the Commission
     determined that it was premature to evaluate its secondary markets
     policies in comparison to other spectrum access mechanisms. In
     particular, it noted that more time was needed for an efficient
     secondary market to develop and for its impact to be seen.[^238] At
     that time, some commenters suggested that secondary market policies
     are insufficient when it comes to enabling access to
     spectrum.[^239] Given the passage of time, we now seek comment on
     whether there are additional mechanisms relating to our secondary
     market policies that should be adopted so as to help move spectrum
     from licensees to other entities that place a higher value on its
     use. For instance, we seek comment on whether requiring licensees
     to make "good faith" efforts to negotiate with potential spectrum
     lessees could help increase access to spectrum, including in rural
     areas, and thus promote the development of these markets.[^240]
     Potential "good faith" requirements could take one of several
     forms. At a minimal level, licensees could be required to establish
     a contact point for potential lessees, *e.g.*, providing the name
     and contact information of a designated representative in the
     licensee's organization who would accept inquiries from potential
     spectrum lessees. Under an alternative approach, licensees could be
     required to engage in "good faith" negotiations with potential
     spectrum lessees, with the Commission determining the minimum steps
     necessary to meet this requirement. For example, 2155-2175 MHz band
     licensees could be required to have a minimum number of meetings
     with potential spectrum lessees and/or provide their terms for an
     acceptable spectrum leasing arrangement. Would the use of such
     requirements for licensees in the 2155-2175 MHz band encourage
     licensees to more seriously consider the opportunity cost of the
     spectrum they hold but do not use? On the other hand, we seek
     comment on whether a requirement to, *e.g.*, establish contact
     and/or communicate with all interested parties would be unduly
     burdensome or subject to abuse.

132. In addition, we seek comment on whether the Commission could use
     its existing oversight role during the license renewal process to
     review a 2155-2175 MHz band licensee's actions during its license
     term, including its participation in secondary market transactions,
     and evaluate issues related to spectrum access, service to rural
     areas, or both. As we discuss below,[^241] under this approach,
     licensees of 2155-2175 MHz band spectrum would be subject to
     greater informational filings and Commission review at renewal even
     if they are not "involved in a comparative renewal
     proceeding."[^242] We seek comment on the advantages and
     disadvantages of this approach in promoting service to rural areas,
     and we ask commenters to compare it to "keep what you use" and
     other mechanisms designed to promote access to spectrum during the
     license term.

133. We note that in its previously pending application, NetfreeUS had
     proposed an "obligation to lease spectrum, on a
     location-by-location basis, to entrepreneurs, new entrants,
     municipalities and other independent entities."[^243] We seek
     comment on this proposal from NetfreeUS.

134. Additionally, to the extent that we adopt rules for the 2155-2175
     MHz band that differ from the rules that we adopted for the AWS-1
     Band and proposed for AWS-2 Band, we seek comment on whether we
     should apply any differences to the AWS-1 and AWS-2 Bands.

### Facilitating Access to Spectrum and the Provision of Service to Tribal Lands

135. Ensuring that qualifying tribal lands have access to affordable,
     quality telecommunications services continues to be a goal of the
     Commission.[^244] Promoting access to spectrum and the provision of
     service on tribal lands is an important means to meet that goal.
     Accordingly, we seek comment on what steps we can take with regard
     to the 2155-2175 MHz band to further facilitate access to spectrum
     and the provision of service to tribal lands.

136. The Commission's rules currently promote deployment of wireless
     services on tribal lands through its Tribal Lands Bidding
     Credit.[^245] Pursuant to this program, the Commission grants
     bidding credits to winning bidders who deploy wireless facilities
     and provide service to federally-recognized tribal areas that have
     a wireline telephone subscription or penetration rate equal to or
     below 85 percent. The credit provides qualifying winning bidders
     \$500,000 for the first two hundred square miles of qualifying
     tribal land and \$2,500 for each additional square mile. Within 180
     days after the filing deadline for long-form applications, a
     winning bidder that wishes to receive this credit must certify to
     the Commission that it has complied with various requirements,
     which include obtaining certification from the tribal government to
     provide service on its tribal land. Following satisfactory
     completion of this process, the amount of the bidding credit is
     subtracted from the gross bid amount,[^246] and once this amount is
     paid, the license is issued.

137. We propose to apply the Tribal Land Bidding Credit rules to the
     2155-2175 MHz band and seek comment on whether any potential
     adjustments to the rules should be made as applied to the 2155-2175
     MHz band licenses in order to further the deployment of wireless
     services to tribal lands. We seek comment as well on whether there
     are other steps the Commission should take to promote service in
     tribal lands. In particular, we seek comment on whether the
     policies to facilitate access to spectrum, or the performance
     requirements discussed in Section 9 above, should be specifically
     tailored for tribal lands. For example, should the Commission
     consider applying a "keep what you use" performance requirement to
     the tribal lands portion of geographic license areas, even if it
     decides to apply some other standard, such as substantial service,
     to all other areas of a license that are not tribal lands? We seek
     comment on whether such an approach would promote access to
     spectrum and the provision of service on tribal lands. In addition,
     we seek comment on whether any policies designed to facilitate
     access to spectrum, such as requiring "good faith" negotiations or
     other efforts by licensees in response to a request for a spectrum
     lease, should be applied specifically to tribal lands, even if the
     Commission decides not to apply these policies to non-tribal
     license areas. Similarly, are there other steps we could take to
     revise our partitioning and disaggregation rules in order to better
     facilitate access to spectrum on tribal lands? Commenters also
     should consider whether the provision of service to tribal lands
     could be codified as a criteria or factor relevant to a licensee's
     demonstration that renewal is in the public interest.

138. To the extent the Commission should revise its performance
     requirements and/or policies to facilitate access to spectrum and
     apply these policies only to tribal lands, we seek comment
     generally on how such a process should be implemented. For
     instance, we seek comment on how a "keep what you use" approach for
     tribal lands would operate in the event all other license areas
     were subject to different performance requirements. Similarly, we
     seek comment on the feasibility of applying one set of secondary
     markets rules to those portions of a license that cover tribal
     lands while applying different rules to the rest of a licensee's
     geographic area.

139. We also seek comment on whether it would facilitate access to
     spectrum and promote service to tribal lands to create license
     areas based on the contours of a reservation or any tribal boundary
     line. We note that, in creating the Tribal Lands Bidding Credit
     program, the Commission considered and declined to adopt this
     policy in the *Tribal Lands Bidding Credit Report and Order*.[^247]
     We seek comment on whether adopting this policy would have the
     unintended consequence of partitioning off licenses covering tribal
     lands such that the newly created license areas will remain
     unbuilt, because companies will bid only for the licenses not
     covering the tribal lands. For instance, would it generally be
     economically feasible to provide service only within a tribal land
     service area? We note that, unlike other service areas, many tribal
     land service areas would result in licensed areas wholly contained
     within the larger geographic area of other licensees. We ask
     whether: (1) interference issues would be more significant because
     of the greater number of borders between licensed service areas;
     and (2) limitations of system design may make it difficult to
     engineer solutions around multiple small areas. Could any of these
     technical obstacles be mitigated by limiting tribal land license
     areas to tribal lands of a particular size or greater, or to those
     not contained wholly within another license area? We also ask
     commenters to address possible auction-related difficulties caused
     by this approach, especially those for potential bidders. For
     instance, if we were to implement this approach for a single
     spectrum block for which the basic geographic area was Cellular
     Market Areas (CMAs), the 585 federally recognized tribal lands,
     combined with the 734 CMAs, would result in 1319 separate licenses
     being offered for that one block.

140. In addition, to the extent that we adopt rules for the 2155-2175
     MHz band that differ from the rules that we adopted for the AWS-1
     band and proposed for AWS-2 band, we seek comment on whether we
     should apply any differences to the AWS-1 and AWS-2 bands.

141. While we seek comment from the public in general concerning the
     matters set forth in this Notice, we specifically seek comment from
     Indian Tribal governments on the effect various options may have on
     the deployment of services to tribal lands. As detailed in the
     Tribal Government Policy Statement, the Commission is committed
     to (1) working with Indian tribes on a government-to-government
     basis to ensure that Indian tribes have adequate access to
     communications services, and (2) consulting with Tribal governments
     prior to implementing any regulatory action or policy that will
     significantly affect Tribal governments, their land, and
     resources.[^248] We believe the matters set forth in this Notice
     have the potential to foster the development and, ultimately, the
     deployment of new technologies and services to many communities,
     including tribal communities. In keeping with the principles of the
     Tribal Government Policy Statement, we welcome the opportunity to
     consult with Tribal governments on the issues raised by this
     Notice, and we seek comment from both Tribal governments and other
     interested parties on the potential for the spectrum considerations
     set forth herein to serve the communications needs of tribal
     communities.

### Conditional Licenses

142. In the event we decide to condition license grant in the 2155-2175
     MHz band upon one or more of the conditions that had been proposed
     in the previously pending applications, such as the licensee's
     provision of broadband service free of charge as described in
     Section IV.E.1, we seek comment on whether we should adopt specific
     performance requirements for the provision of that service.[^249]
     We seek comment on what, if any, restrictions on assignment,
     transfer, partitioning, or lease of the spectrum would be
     appropriate in the event conditions are imposed on the licenses.
     Similarly, we seek input on what sanctions or enforcement
     mechanisms should exist to address failures to meet a condition. We
     seek comment on these issues, and on other issues we should
     consider in our public interest analysis of conditional licenses.

### Other Operating Requirements

143. As noted in paragraph 96 above, even though licenses in the
     2155-2175 MHz band may be issued pursuant to one rule part,
     licensees in this band may be required to comply with rules
     contained in other parts of the Commission\'s rules by virtue of
     the particular services they provide. For example:

-   Applicants and licensees would be subject to the application filing
    procedures for the Universal Licensing System, set forth in Part 1
    of our rules.[^250]

-   Licensees would be required to comply with the practices and
    procedures listed in Part 1 of our rules for license applications,
    adjudicatory proceedings, etc.

-   Licensees would be required to comply with the Commission's
    environmental provisions, including section 1.1307.[^251]

-   Licensees would be required to comply with the antenna structure
    provisions of Part 17 of our rules.

-   To the extent a licensee provides a Commercial Mobile Radio Service,
    such service would be subject to the provisions of Part 20 of the
    Commission\'s rules, including 911/E911 and hearing
    aid-compatibility (HAC) requirements, along with the provisions in
    the rule part under which the license was issued.[^252] Part 20
    applies to all CMRS providers, even though the stations may be
    licensed under other parts of our rules. [^253]

-   The application of general provisions of Parts 22, 24, 27, or 101
    would include rules related to equal employment opportunity, *etc*.

144. We seek comment generally on any provisions in existing
     service-specific rules that may require specific recognition or
     adjustment to comport with the supervening application of another
     rule part, as well as any provisions that may be necessary in this
     other rule part to fully describe the scope of covered services and
     technologies. We seek com­ment on applying these rules to the
     spectrum that is the subject of this Notice, and specifically on
     any rules that would be affected by our proposal to apply elements
     of the framework of these parts, whether separately or in
     conjunction with other requirements.

## Other Technical Rules

### Radio Frequency (RF) Safety

145. Our rules implementing the National Environmental Policy Act of
     1969 are intended to prevent human exposure to potentially unsafe
     levels of radiofrequency (RF) radiation.[^254] In this regard, we
     note that section 1.1307(b) of our rules requires preparation of
     routine environmental evaluations when licensees propose to
     construct fixed transmission facilities that exceed specified
     parameters.[^255] The Commission recently adopted a 1000-Watt
     effective radiated power (ERP) threshold for routine environmental
     evaluation for licensees operating in the 1710-1755 MHz and
     2110-2155 MHz bands, determining that this power limit was
     appropriate to ensure compliance with the Commission\'s RF exposure
     standards for most situations.[^256] Given that the exposure
     guidelines for the 2110-2155 MHz band are the same as those for
     spectrum at 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz, and
     2175-2180 MHz,[^257] we propose that the threshold for
     environmental review of fixed transmission facilities should, as a
     result, be an ERP greater than 1000 Watts, and that we should make
     any necessary modifications to sections 1.1307(b), 2.1091, and
     2.1093 of our rules[^258] to include services and devices
     applicable to the 2155-2175 MHz band.[^259] Evaluation of mobile
     and portable devices in these bands will follow the rules adopted
     in sections 2.1091 and 2.1093, respectively. We seek comment on
     this proposal.

### Other Technical Rules; Canadian and Mexican Coordination

146. *Other Technical Rules*: The application of general provisions of
     Part 27[^260] would include rules related to equipment
     authorization, frequency stability, antenna structures and air
     navigation, environmental requirements, quiet zones, and
     disturbance of AM broadcast antenna patterns.[^261] We seek comment
     on applying these provisions to the spectrum that is the subject of
     this Notice. We propose that all of these technical rules would
     apply to all licensees in these bands, including licensees who
     acquire their licenses through partitioning or disaggregation.

147. *Canadian and Mexican Coordination*: At this time, changes to
     international agreements between and among the United States,
     Mexico and Canada concerning the spectrum at issue in this
     proceeding are not complete. In the meantime, until such time as
     adjusted agreements between the United States, Mexico and/or Canada
     become effective, operations must not cause harmful interference
     across the border based on the terms of the agreements currently in
     force.[^262] We note that further modification (of the proposed
     rules) might be necessary in order to comply with future agreements
     with Canada and Mexico regarding the use of these bands. We seek
     comments on this issue.

## Competitive Bidding Procedures

148. If we adopt a geographic area licensing scheme for the 2155-2175
     MHz band and permit the filing of mutually exclusive applications,
     if accepted, we will be required to resolve such applications
     through competitive bidding, consistent with our statutory
     mandate.[^263] Accordingly, in this Notice, we request comment on a
     number of issues relating to competitive bidding for initial
     licenses in the 2155-2175 MHz band.

### Incorporation by Reference of the Part 1 Standardized Auction Rules

149. We propose to conduct any auction of initial licenses in the
     2155-2175 MHz band in conformity with the general competitive
     bidding rules set forth in Part 1, Subpart Q, of the Commission's
     rules, and substantially consistent with the competitive bidding
     procedures that have been employed in previous auctions.[^264]
     Specifically, we propose to employ the Part 1 rules governing
     competitive bidding design, designated entities, application and
     payment procedures, reporting requirements, collusion issues, and
     unjust enrichment.[^265] Under this proposal, such rules would be
     subject to any modifications that the Commission may adopt for its
     Part 1 general competitive bidding rules.[^266] We seek comment on
     whether any of our Part 1 rules would be inappropriate or should be
     modified for an auction of licenses in these bands.[^267]

### Provisions for Designated Entities

150. In authorizing the Commission to use competitive bidding, Congress
     mandated that the Commission "ensure that small businesses, rural
     telephone companies, and businesses owned by members of minority
     groups and women (sometimes referred to as "designated entities")
     are given the opportunity to participate in the provision of
     spectrum-based services."[^268]  In addition, section 309(j)(3)(B)
     of the Act provides that in establishing eligibility criteria and
     bidding methodologies, the Commission shall promote "economic
     opportunity and competition . . . by avoiding excessive
     concentration of licenses and by disseminating licenses among a
     wide variety of applicants, including small businesses, rural
     telephone companies, and businesses owned by members of minority
     groups and women."[^269] One of the principal means by which the
     Commission fulfills this mandate is through the award of bidding
     credits to small businesses.

151. In the *Competitive Bidding Second Memorandum Opinion and Order*,
     the Commission stated that it would define eligibility requirements
     for small businesses on a service-specific basis, taking into
     account the capital requirements and other characteristics of each
     particular service in establishing the appropriate threshold.[^270]
     The *Part 1 Third Report and Order*, while it standardizes many
     auction rules, provides that the Commission will continue a
     service-by-service approach to defining small businesses.[^271]

152. We do not know precisely the type of services that a licensee may
     seek to provide in the 2155-2175 MHz band or the best geographic
     service areas. However, if we decide to issue licenses on a
     non-nationwide basis, licensees in the 2155-2175 MHz band may be
     presented with issues and capital and other cost requirements
     comparable to broadband PCS licensees and licensees in the AWS-1
     bands, including issues and costs involved in relocating
     incumbents, and developing markets, technologies, and services. In
     light of these anticipated similarities, in the event that we adopt
     a licensing scheme based on non-nationwide geographic licensing
     areas, we propose to establish the same small business size
     standards and associated bidding credits for the 2155-2175 MHz band
     as the Commission adopted for broadband PCS and the AWS-1 bands and
     as the Commission has proposed for the AWS-2 bands.[^272] Thus, we
     propose to define a small business as an entity with average annual
     gross revenues for the preceding three years not exceeding \$40
     million, and a very small business as an entity with average annual
     gross revenues for the preceding three years not exceeding \$15
     million.[^273] We seek comment on this proposal.

153. In addition, in the event we establish non-nationwide service
     areas, we propose to provide small businesses with a bidding credit
     of 15 percent and very small businesses with a bidding credit of 25
     percent, as set forth in the standardized schedule in Part 1 of our
     Rules.[^274] We seek comment on the use of these standards and
     associated bidding credits, with particular focus on the
     appropriate definitions of small businesses, very small businesses
     and entrepreneurs as they may relate to the size of the geographic
     area to be served and the spectrum allocated to each license. In
     discussing these issues, commenters are requested to address the
     expected capital requirements for services in these bands and other
     characteristics of the service. Commenters are also invited to use
     comparisons with other services for which the Commission has
     already established auction procedures as a basis for their
     comments regarding the appropriate small business size standards.

154. If, on the other hand, we decide to adopt a nationwide licensing
     scheme for the 2155-2175 MHz band, we anticipate that the costs of
     implementing service may be very high. In the past, the Commission
     has declined to adopt designated entity provisions for certain
     services, such as the direct broadcast satellite service and the
     digital audio radio service, which have extremely high
     implementation costs.[^275] The Commission reached this conclusion
     in large part because it was unclear whether small businesses could
     attract the capital necessary to implement and provide a nationwide
     service.[^276] We also note that in previous auctions of nationwide
     licenses in which the Commission offered bidding credits to
     designated entities, none of the licenses was won by a designated
     entity.[^277] In our recent order addressing the 700 MHz Band,
     however, we provided applications that are eligible to be licensed
     as designated entities with bidding credits in the auction of a
     nationwide license that will be part of the 700 MHz Public/Private
     Partnership based on the unique conditions imposed on that
     nationwide license.[^278] We seek comment on whether, if we decide
     to license the 2155-2175 MHz band on a nationwide basis, small
     business credits would be appropriate for this band.

155. Finally, we acknowledge the difficulty in accurately predicting the
     market forces that will exist at the time these frequencies are
     licensed. Thus, our forecasts of types of services that will be
     offered over these bands may require adjustment depending upon
     ongoing technological developments and changes in market
     conditions. To the extent commenters support a different approach
     to bidding credits than those discussed here, they should support
     their proposals with relevant information on the types of system
     architecture that are likely to be deployed in these bands, the
     availability of equipment, market conditions, and other factors
     that may affect the capital requirements of the types of services
     that may be provided.

# Procedural matters

## *Ex Parte* Rules -- Permit-But-Disclose

156. This is a permit-but-disclose notice and comment rulemaking
     proceeding. *Ex parte* presentations are permitted, except during
     the Sunshine Agenda period, provided they are disclosed pursuant to
     the Commission's rules.[^279]

## Comment Period and Procedures

157. Pursuant to applicable procedures set forth in sections 1.415 and
     1.419 of the Commission's rules,[^280] interested parties may file
     comments on this Notice on or before the dates indicated on the
     first page of this document. Comments and reply comments should be
     filed in WT Docket No. 07‑195, and may be filed using the
     Commission's Electronic Comment Filing System (ECFS) or by filing
     paper copies.[^281] All relevant and timely comments will be
     considered by the Commission before final action is taken in this
     proceeding.

158. Comments filed through the ECFS can be sent as an electronic file
     via the Internet to \<http://www.fcc.gov/e-file/ecfs.html\>. In
     completing the transmittal screen, commenters should include their
     full name, Postal Service mailing address, and the applicable
     docket number. Parties may also submit an electronic comment by
     e-mail via the Internet. To obtain filing instructions for e-mail
     comments, commenters should send an e-mail to \<ecfs@fcc.gov\>, and
     should include the following words in the body of the message: "get
     form \<your e-mail address\>." A sample form and directions will be
     sent in reply.

159. Parties who choose to file by paper must file an original and four
     copies of each filing. Filings can be sent by hand or messenger
     delivery, by commercial overnight courier, or by first-class or
     overnight U.S. Postal Service mail (although we continue to
     experience delays in receiving U.S. Postal Service mail). The
     Commission\'s contractor, Natek, Inc., will receive hand-delivered
     or messenger-delivered paper filings for the Commission\'s
     Secretary at 236 Massachusetts Avenue, N.E., Suite 110, Washington,
     D.C. 20002. The filing hours at this location are 8:00 a.m. to 7:00
     p.m. All hand deliveries must be held together with rubber bands or
     fasteners. Any envelopes must be disposed of before entering the
     building. Commercial overnight mail (other than U.S. Postal Service
     Express Mail and Priority Mail) must be sent to 9300 East Hampton
     Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class
     mail, Express Mail, and Priority Mail should be addressed to 445
     12th Street, SW, Washington, D.C. 20554. All filings must be
     addressed to the Commission\'s Secretary, Office of the Secretary,
     Federal Communications Commission.

160. Parties who choose to file by paper should also submit their
     comments on diskette. These diskettes should be attached to the
     original paper filing submitted to the Office of the Secretary.
     Such a submission should be on a 3.5 inch diskette formatted in an
     IBM compatible format using Microsoft ^TM^ Word 97 for Windows or
     compatible software. The diskette should be accompanied by a cover
     letter and should be submitted in "read only" mode. The diskette
     should be clearly labeled with the commenter's name, proceeding,
     type of pleading (comment or reply comment), date of submission,
     and the name of the electronic file on the diskette. The label
     should also include the following phrase "Disk Copy -- Not an
     Original." Each diskette should contain only one party's pleadings,
     preferably in a single electronic file. In addition, commenters
     should send diskette copies to the Commission's copy contractor,
     Best Copy and Printing, Inc., 445 12^th^ Street, SW, Room CY-B402,
     Washington, DC, 20554, 202-863-2893.

161. The public may view the documents filed in this proceeding during
     regular business hours in the FCC Reference Information Center,
     Federal Communications Commission, 445 12^th^ Street, S.W., Room
     CY-A257, Washington, D. C. 20554, and on the Commission's Internet
     Home Page: \<http://www.fcc.gov\>. Copies of comments and reply
     comments are also available through the Commission**'**s
     duplicating contractor: Best Copy and Printing, Inc., 445 12^th^
     Street, SW, Room CY-B402, Washington, DC, 20554, (202) 863-2893.
     Accessible formats (computer diskettes, large print, audio
     recording and Braille) are available to persons with disabilities
     by contacting Brian Millin, of the Consumer & Governmental Affairs
     Bureau, at (202) 418-7426, TTY (202) 418-7365, or at
     \<bmillin@fcc.gov\>.

## Initial Regulatory Flexibility Analysis

162. As required by the Regulatory Flexibility Act of 1980 (RFA),[^282]
     the Commission has prepared an Initial Regulatory Flexibility
     Analysis (IRFA) of the possible significant economic impact on
     small entities of the policies and rules proposed in the Notice.
     The analysis is found in the attached Appendix. We request written
     public comment on the analysis. Comments must be filed by the same
     dates as listed in paragraph 157, and must have a separate and
     distinct heading designating them as responses to the IRFA. The
     Commission**'**s Consumer and Governmental Affairs Bureau,
     Reference Information Center, will send a copy of this Notice,
     including the IRFA, to the Chief Counsel for Advocacy of the Small
     Business Administration.

## Initial Paperwork Reduction Analysis

163. This document contains proposed new or modified information
     collection requirements. The Commission, as part of its continuing
     effort to reduce paperwork burdens, invites the general public and
     the Office of Management and Budget (OMB) to comment on the
     information collection requirements contained in this document, as
     required by the Paperwork Reduction Act of 1995, Public Law 104-13.
     Public and agency comments are due 60 days after date of
     publication in the Federal Register. Comments should address: (a)
     whether the proposed collection of information is necessary for the
     proper performance of the functions of the Commission, including
     whether the information shall have practical utility; (b) the
     accuracy of the Commission\'s burden estimates; (c) ways to enhance
     the quality, utility, and clarity of the information collected;
     and (d) ways to minimize the burden of the collection of
     information on the respondents, including the use of automated
     collection techniques or other forms of information technology. In
     addition, pursuant to the Small Business Paperwork Relief Act of
     2002,[^283] we seek specific comment on how we might "further
     reduce the information collection burden for small business
     concerns with fewer than 25 employees."

164. In addition to filing comments with the Secretary, a copy of any
     comments on the information collections contained herein should be
     submitted to Judith Boley Herman, Federal Communications
     Commission, 445 12^th^ Street, S.W., Room 1-B441, Washington, D.C.
     20554, or via the Internet to \<Judith-B.Herman@fcc.gov\>, and to
     Nicholas A. Fraser, Policy Analyst, Office of Management and Budget
     (OMB), Room 10236, New Executive Office Building (NEOB), 725 17^th^
     Street, N.W., Washington, D.C. 20503, 202-395-5887, via the
     Internet at \<nfraser@omb.eop.gov\> or via fax at 202-395-5167.

## Further Information

165. For further information concerning this rulemaking proceeding,
     contact Peter Daronco, Broadband Division, at (202) 418-2487,
     Wireless Telecommunications Bureau, Federal Communications
     Commission, 445 12^th^ Street, S.W., Room 3-C124, Washington, D.C.
     20554; or via the Internet to \<peter.daronco@fcc.gov\>.

# Ordering Clauses

166. Accordingly, IT IS ORDERED, pursuant to sections 1, 2, 4(i), 7, 10,
     201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332 and 333
     of the Communications Act of 1934, 47 U.S.C. §§ 151, 152, 154(i),
     157, 160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324,
     332, 333, that this Notice of Proposed Rulemaking is hereby
     ADOPTED.

167. IT IS FURTHER ORDERED that NOTICE IS HEREBY GIVEN of the proposed
     regulatory changes described in this Notice, and that comment is
     sought on these proposals.

168. IT IS FURTHER ORDERED that the Commission's Consumer and
     Governmental Affairs Bureau, Reference Information Center, SHALL
     SEND a copy of this Notice, including the Initial Regulatory
     Flexibility Analysis, to the Chief Counsel for Advocacy of the
     Small Business Administration.

> Federal Communications Commission
>
> Marlene H. Dortch
>
> Secretary

**APPENDIX\
\
**Initial Regulatory Flexibility Analysis

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^284] the Commission has prepared this Initial Regulatory
    Flexibility Analysis (IRFA) of the possible significant economic
    impact on small entities by the policies and rules proposed in this
    Notice of Proposed Rulemaking (NPRM). Written public comments are
    requested on this IRFA. Comments must be identified as responses to
    the IRFA and must be filed by the deadline for comments provided in
    paragraph 157 of this NPRM. The Commission will send a copy of this
    NPRM, including this IRFA, to the Chief Counsel for Advocacy of the
    Small Business Administration (SBA).[^285] In addition, the NPRM and
    IRFA (or summaries thereof) will be published in the *Federal
    Register*.[^286]

## Need for, and Objectives of, the Proposed Rules

169. The NPRM contemplates service rules for licensed fixed and mobile
     services, including advanced wireless services (AWS), in the
     2155-2175 MHz band. These service rules include application,
     licensing, operating and technical rules and competitive bidding
     provisions for the AWS-3 spectrum band.[^287] Consistent with the
     Commission's policy objective of affording licensees the
     flexibility to deploy new technologies, to implement service
     innovations, and to respond to market forces, the NPRM proposes
     service rules that provide AWS-3 licensees with the flexibility to
     provide any fixed or mobile service, including advanced wireless
     services, that is consistent with the allocations[^288] for this
     spectrum. To promote flexibility, the NPRM also proposes to license
     this spectrum under the Commission's market-oriented Part 27 rules.
     The substantial flexibility provided by the Part 27 rules would
     encourage the deployment of a wide variety of fixed and mobile
     services. The market-oriented licensing framework for these bands
     would ensure that this spectrum is efficiently utilized and will
     foster the development of new and innovative technologies and
     services, as well as encourage the growth and development of
     broadband services, ultimately leading to greater benefits to
     consumers.

170. The NPRM seeks to adopt rules that will reduce regulatory burdens,
     promote innovative services, and encourage flexible use of this
     spectrum. Such an approach opens up economic opportunities to a
     variety of spectrum users, which could include small businesses.
     The NPRM considers various proposals and alternatives partly
     because the Commission seeks to minimize, to the extent possible,
     the economic impact on small businesses.

171. The NPRM contemplates three different technological approaches.
     First, the NPRM contemplates an approach that would allow
     uplink/downlink in the band, possibly resulting in an unpaired
     20-megahertz spectrum band that could be used for Time Division
     Duplexing (TDD) or Half-Duplex Frequency Division Duplexing (HFDD)
     based technology. Second, the Commission could also adopt a
     structured uplink/downlink approach where a mix of both
     base-transmit and mobile-and-base transmit services would be
     utilized in the band. Under this approach, some or portions of the
     2155-2175 MHz band could be asymmetrically paired with other base-
     and mobile-transmit spectrum blocks with pairings composed of
     different bandwidths. Alternatively, the NPRM seeks comment on an
     approach that would permit only base transmissions in the band.
     Under this approach, some or portions of the 2155-2175 MHz band
     could be asymmetrically paired with other base- and mobile-transmit
     spectrum blocks with pairings composed of different bandwidths. The
     Commission contemplates rules which will determine the appropriate
     approach to utilize.

172. Prior to the adoption of the NPRM, the Commission adopted an
     *Eighth Report and Order*, in ET Docket No. 00-258, allocating
     2155-2160 MHz for fixed and mobile services, including AWS, and
     designated the entire 2155-2175 MHz band as AWS spectrum.[^289] The
     Commission's goal is to enable service providers to maximize the
     use of this spectrum with minimal transaction costs. Within the
     limits of the licensed fixed and mobile allocation, the marketplace
     and not the Commission will determine how this spectrum is used.
     Thus, the NPRM's proposals allow flexibility for licensees to
     provide third generation (3G) and other advanced wireless services
     in the near term, while fostering innovation and agility so they
     can quickly adapt to changes in technological capabilities and
     marketplace conditions into the future. It is the Commission's
     belief that the licensing and service rules proposed in the NPRM
     will benefit consumers by giving them the services and value that
     they demand, and thereby provide the new business opportunities
     necessary to support continued service enhancements by licensees.

173. The Commission also contemplates rules which will have the effect
     of setting performance requirements. An issue we frame is whether
     licensees in the 2155-2175 MHz band should be subject to any
     performance requirements in addition to a substantial service
     requirement at license renewal. The NPRM notes that in some
     services the Commission has imposed minimum coverage requirements
     on licensees to ensure that spectrum is used effectively and
     service is implemented promptly. A related issue is whether the
     Commission should establish any specific coverage requirements in
     the 2155-2175 MHz band, or whether coverage criteria should be
     adopted as one means, but not the exclusive means, of meeting a
     substantial service requirement. We propose for consideration the
     issue of whether licensees should be subject to interim performance
     requirements prior to the end of the license term.

174. The NPRM also contemplates rules that will allow licensees in the
     2155-2175 MHz band to partition their service areas and to
     disaggregate their spectrum. If the Commission permits
     partitioning, then the partitioning licensee would have to include
     with its request a description of the partitioned service area, a
     calculation of the population of the partitioned service area, and
     the licensed geographic service area.

175. The NPRM also contemplates rules on a number of technical issues
     and licensing obligations. A major concern in this context is about
     how best to control in-band and out-of-band interference,
     appropriate power limits, RF safety limits, and Canadian and
     Mexican coordination.[^290] The NPRM also proposes to permit
     applicants to request common carrier status as well as non-common
     carrier status for authorization in a single license, rather than
     to require the applicant to choose between common carrier and
     non-common services.[^291]

176. In addition, the NPRM contemplates options for licensing the new
     services. For example, the FCC is considering whether to license
     the AWS-3 spectrum using geographic licensing, as opposed to
     site-by-site licensing.

177. The Commission contemplates the appropriate size(s) of the
     geographic service area or areas on which licenses should be based.
     The Commission also contemplates the benefits and costs of
     establishing an unlicensed regime, either in lieu of a licensed
     regime or as a complement to a licensed regime, and/or
     non-exclusive licensing approach.[^292]

178. Although the Commission does not know precisely what types of
     services may be developed in the 2155-2175 MHz band, the Commission
     anticipates that the services that will be deployed in the band may
     have capital requirements comparable to those in the broadband PCS
     service and AWS-1 in the 1710-1755 MHz and 2110-2155 MHz bands
     because of their adjacency, or close proximity, to the AWS-3
     spectrum band and the record in related proceedings suggest similar
     services are being contemplated for all these bands. In particular,
     the Commission anticipates that licensees in the 2155-2175 MHz band
     will be presented with issues and capital and other cost
     requirements similar to those presented to broadband PCS licensees
     and licensees in the 1710-1755 MHz and 2110-2155 MHz bands,
     including issues and costs involved in relocating incumbents, and
     developing markets, technologies, and services. Because of those
     anticipated similarities and other technical and spectral benefits,
     the Commission is considering the possibility of uplink/downlink
     use, or structured uplink/downlink and or downlink use, involving
     asymmetrically pairing AWS-3 spectrum with adjacent AWS or PCS
     spectrum bands.

179. In light of these similarities, the NPRM concurrently contemplates
     the adoption of the same small business size standards for the
     2155-2175 MHz band as the Commission adopted for broadband PCS and
     AWS-1 in the 1710-1755 MHz and 2110-2155 MHz bands. Accordingly, if
     the Commission adopts bidding credits, the NPRM proposes to define
     a small business as an entity with average annual gross revenues
     for the preceding three years not exceeding \$40 million, and a
     very small business as an entity with average annual gross revenues
     for the preceding three years not exceeding \$15 million.[^293]

180. The Commission also proposes, in the event that it establishes
     non-nationwide service areas, to provide small businesses with a
     bidding credit of 15 percent and very small businesses with a
     bidding credit of 25 percent, as set forth in the standardized
     schedule in Part 1 of the Commission's rules. Accordingly, we frame
     the issue of the use of these standards and associated bidding
     credits for applicants to be licensed in the 2155-2175 MHz band,
     with particular focus on the appropriate definitions of small and
     very small businesses as they may relate to the size of the
     geographic area to be covered and the spectrum allocated to each
     license. In discussing these issues, commenters are requested to
     address the expected capital requirements for services in these
     bands and other characteristics of the service. Commenters are also
     invited to use comparisons with other services for which the
     Commission has already established auction procedures as a basis
     for their comments regarding the appropriate small business size
     standards.

181. The FCC seeks comment on all the rules contemplated above and on
     optional ways of implementing such contemplated rules, and on any
     other possible rules which commenters wish to suggest and discuss
     relative to the Regulatory Flexibility Act.

## Legal Basis

182. The proposed action is authorized pursuant to sections 1, 2, 4(i),
     7, 10, 201, 214, 301, 302, 303, 307. 308, 309, 310, 319, 324, 332
     and 333 of the Communications Act of 1934, 47 U.S.C. §§ 151, 152,
     154(i), 157, 160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319,
     324, 332, 333.

## Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply

183. 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.[^294] The RFA generally
     defines the term "small entity" as having the same meaning as the
     terms "small business," "small organization," and "small government
     jurisdiction."[^295] In addition, the term "small business" has the
     same meaning as the term "small business concern" under the Small
     Business Act.[^296] A small business is one which: (1) is
     independently owned and operated; (2) is not dominant in its field
     of operation; and (3) satisfies any additional criteria established
     by the SBA.[^297]

184. The Commission has not yet determined how many licenses will be
     awarded in the 2155-2175 MHz bands. Moreover, the Commission does
     not yet know how many applicants or licensees in these bands will
     be small entities. Thus, the Commission assumes, for purposes of
     this IRFA, that all prospective licensees are small entities as
     that term is defined by the SBA or by our proposed small business
     definitions for these bands. though the Commission does not know
     for certain which entities are likely to apply for these
     frequencies, we note that the 2155-2175 MHz bands are comparable to
     cellular service and personal communications service.[^298]
     Accordingly, we believe the following regulated entities will be
     directly affected by our contemplated rules.

185. *[Wireless Service Providers]{.underline}*. The SBA has developed a
     small business size standard for wireless firms within the two
     broad economic census categories of \"Paging\"[^299] and \"Cellular
     and Other Wireless Telecommunications.\"[^300] Under both
     categories, the SBA deems a wireless business to be small if it has
     1,500 or fewer employees.

     **Paging**. For the census category of Paging, Census Bureau data
     for 2002 show that there were 807 firms in this category that
     operated for the entire year.[^301] Of this total, 804 firms had
     employment of 999 or fewer employees, and three firms had
     employment of 1,000 employees or more.[^302] Thus, under this
     category and associated small business size standard, the majority
     of firms can be considered small.

     **Cellular and Other Wireless Telecommunications**. For the census
     category of Cellular and Other Wireless Telecommunications, Census
     Bureau data for 2002 show that there were 1,397 firms in this
     category that operated for the entire year.[^303] Of this total,
     1,378 firms had employment of 999 or fewer employees, and 19 firms
     had employment of 1,000 employees or more.[^304] Thus, under this
     second category and size standard, the majority of firms can,
     again, be considered small.

## Description of Projected Reporting, Recordkeeping, and other Compliance Requirements

186. New recordkeeping or reporting requirements are contemplated in the
     NPRM. However, until the FCC resolves how to assign license(s) for
     the band, *e.g.*, unlicensed vs. licensed approach, these
     requirements are difficult to describe with great specificity
     because the Commission does not know precisely what types of
     services may be developed in the 2155-2175 MHz band.

187. Nonetheless, the following recordkeeping or reporting requirements
     seem applicable under a licensed approach. Entities interested in
     acquiring an initial license to use the spectrum in the 2155-2175
     MHz band will be required to file license applications using the
     Commission's automated Universal Licensing System (ULS). ULS is an
     online electronic filing system that also serves as a powerful
     information tool that enables potential licensees to research
     applications, licenses, and antenna structures. It also keeps the
     public informed with weekly public notices, FCC rulemakings,
     processing utilities, and a telecommunications glossary. ULS also
     features a Geographic Information System (GIS), a digital mapping
     technology that identifies spectrum use in relation to geographical
     areas. As in other services, licensees in these bands would be
     allowed to provide all allowable services anywhere within their
     licensed area. The Commission's current mobile service license
     application requires an applicant for mobile services to identify
     the regulatory status of the service(s) they intend to provide,
     since service offerings may bear on eligibility and other statutory
     and regulatory requirements.

## Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

188. The RFA requires an agency to describe any significant alternatives
     that it has considered in reaching its adopted 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.[^305]

189. Specifically to assist small businesses, the NPRM proposes to
     establish small business size standards and associated small
     business bidding credits for the 2155-2175 MHz band in the event
     that licenses are assigned by competitive bidding and licensing is
     based on non-nationwide geographic areas.[^306] The NPRM proposes a
     bidding credit of 15 percent for small businesses and a bidding
     credit of 25 percent for very small businesses. The NPRM seeks
     comment on whether small business bidding credits would be
     appropriate if a nationwide licensing scheme is adopted for the
     2155-2175 MHz band. The NPRM notes that the implementation costs
     associated with a nationwide license in these bands is presumed to
     be very high, and it is not clear whether small businesses could
     attract the capital necessary to implement and provide nationwide
     service. Accordingly, we ask commenters to address the expected
     capital requirements for services in these bands and other
     characteristics of the service. The Commission invites commenters
     to use comparisons with other services for which the Commission has
     already established auction procedures as a basis for their
     comments regarding the appropriate small business size standards
     and associated small business bidding credits. The Commission
     requests comment on any other alternatives to minimize significant
     economic impact on small entities.

190. The NPRM solicits comment on various alternatives regarding the
     service rules for the 2155-2175 MHz band.[^307] The NPRM seeks to
     adopt rules that will reduce regulatory burdens, promote innovative
     services and encourage flexible use of this spectrum. The NPRM also
     seeks to open up economic opportunities to a variety of spectrum
     users, which could include small businesses. The NPRM considers
     various proposals and alternatives partly because the Commission
     seeks to minimize, to the extent possible, the economic impact on
     small businesses.[^308] The Commission requests comment on any
     other alternatives to minimize significant economic impact on small
     entities.

191. The NPRM invites comment on various alternative licensing and
     service rules and on a number of issues relating to how the
     Commission should craft service rules for the AWS-3 spectrum that
     could have an impact on small entities. For example, the Commission
     seeks comment on the size of spectrum blocks for these frequencies
     and how the size of spectrum blocks would impact small entities.
     The NPRM proposes a geographic area approach to service areas, as
     opposed to a station-defined licensing approach, and seeks comment
     on the appropriate size of service areas. Specifically, the NPRM
     asks for comment on whether smaller geographic areas would better
     serve the needs of small entities. The NPRM explains that the
     Commission's approach to determining optimum geographic area
     license size(s) attempts to accommodate the likely range of
     applicant desires by balancing efficiency with the policy goal of
     disseminating licenses among a wide variety of applicants. The NPRM
     notes that the Commission wishes to foster service to rural areas
     and tribal lands, and to promote investment in and rapid deployment
     of new technologies and services. The NPRM also notes that small
     license areas may favor smaller entities with regional business
     plans and no interest in providing large-area service. In summary,
     the NPRM seeks comment on the advantages and disadvantages to small
     entities of a large geographic licensing scheme over a small one in
     terms of impact on rural and small entities. The Commission
     requests comment on any other alternatives to minimize significant
     economic impact on small entities.

192. As noted earlier, the NPRM seeks comment on permitting geographic
     partitioning and spectrum disaggregation. The NPRM notes that
     geographic partitioning and spectrum disaggregation is a tool
     utilized by the Commission to promote efficient spectrum use and
     economic opportunity for a wide variety of applicants, including
     small business, rural telephone, minority-owned, and women-owned
     applicants. The NPRM seeks comment on the benefits and costs of
     partitioning and disaggregation, and whether it promotes the public
     interest. Finally, the NPRM, seeks comment on whether any
     band-specific limits on spectrum aggregation are necessary or
     appropriate in this case, and how this would impact the
     marketplace, including small entities. The Commission requests
     comment on any other alternatives to minimize significant economic
     impact on small entities.

## Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules

193. None.

**STATEMENT OF**

**CHAIRMAN KEVIN J. MARTIN**

Re: *Service Rules for Advanced Wireless Services in the 2155-2175 MHz
Band,* Notice of Proposed Rulemaking.

Today's Notice of Proposed Rulemaking ("NPRM") will give due
consideration to the variety of proposals for the use of the 2155-2175
megahertz band. Opening this proceeding will allow the Commission to
take full consideration of the many suggestions for use of this band,
and facilitate full input by all parties and the public as to the best
use of this spectrum. For example, many have suggested that we should
auction this spectrum band, while still others suggest that due to the
high demand for this spectrum we should consider unlicensed use of the
band. Some have also suggested that we should condition this band on
requirements including openness to devices and/or with the winner being
required to provide 384 kbps downstream and 128 kbps upstream of access
for free. This NPRM will enable us and the public to give full attention
to each of these suggestions, and enable the Commission to adopt
flexible rules that will encourage the innovative use of this unique
piece of spectrum.

Promoting broadband deployment and increasing penetration continues to
be one of the Commission's highest priorities. This spectrum has the
potential to encourage the provision of a variety of broadband services
in support of this goal, and I am pleased that the Commission has
committed to address these issues in a prompt manner. I look forward to
working with my colleagues to bring this spectrum's potential to the
public quickly.

**STATEMENT OF\
COMMISSIONER MICHAEL J. COPPS**

** **

Re:       *Service Rules for Advanced Wireless Services in the 2155-2175
MHz Band,* Notice of Proposed Rulemaking.

Today's NPRM seeks comment on a variety of options for how the
Commission can license the AWS-3 spectrum band to best serve the public
interest. These options include: (1) opening this spectrum to unlicensed
use, as has proved so productive in other bands; (2) designating it for
an open access model that would combine wholesale broadband access and a
*Carterfone* mandate; (3) using it to provide free, advertiser-supported
broadband service (as initially proposed by M2Z and then by NetfreeUS)
as well as a fee-based premium broadband service; or (4) allocating it
through a traditional, largely unconditioned auction.

I believe a general rulemaking---in which interested parties from
industry and the public interest community, as well as members of the
public, are free to comment---is plainly the right way for the
Commission to decide among these various models. I am especially pleased
that my colleagues have agreed to commit to issuing service rules for
the AWS-3 band within 9 months from the date this item is published in
the Federal Register. The one outcome that would plainly ***not*** serve
the public interest is for this spectrum to remain unavailable for
advanced wireless services.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

Re:       *Service Rules for Advanced Wireless Services in the 2155-2175
MHz Band,* Notice of Proposed Rulemaking.

Today, the Commission finally is initiating a Notice of Proposed
Rulemaking that seeks comment on service rules for the 2155-2175 MHz
band. It has been several years since the Commission designated this
spectrum for use by advanced wireless services and over a year since
parties first expressed specific interest in seeking authority to
operate in the band. As we have heard over the past 18 months, this band
holds great promise for operators to introduce new offerings of
innovative wireless broadband services to American consumers.

But unused spectrum is a lost opportunity. While I would have preferred
that we address the keen interest carriers already have demonstrated in
the 2155-2175 MHz band much sooner than today, I nevertheless am pleased
that we are finally moving forward to put into place the framework for
the innovative and efficient use of this spectrum.

I have talked many times in the past about my belief that wireless
broadband is one of the keys to economic growth in this digital
information age. It is a key that can open the door to educational and
economic opportunities to communities across America, enriching people's
lives. So I cannot emphasize enough the important responsibility we have
to make vibrant, spectrum-based communications opportunities, like those
presented by the 2155-2175 MHz band, available to more consumers and
companies. The Commission has to do what it can to promote opportunities
to expand wireless connectivity and to ensure that available and desired
spectrum is put to use in a timely fashion. In this regard, I am pleased
that we are committing to conclude this proceeding and make this
spectrum available in a fixed timeframe, although I would have preferred
to do it sooner.

**STATEMENT OF**

**COMMISSIONER DEBORAH TAYLOR TATE**

Re:       *Service Rules for Advanced Wireless Services in the 2155-2175
MHz Band,* Notice of Proposed Rulemaking.

The rules we adopt today for the 2155-2175 MHz band represent our
continuing commitment to ensure the availability of spectrum for
innovative and advanced services, especially broadband services. This
band is the third piece of the Advanced Wireless Services (AWS)
spectrum, and thus also known as the AWS-3 band. As the name indicates,
this AWS spectrum may enable advanced services like gaming, live video,
rapid surfing of the Internet, and the downloading of massive data files
for shared research -- all wirelessly. In short, this spectrum is an
important national resource which will serve providers and customers
that need and want such advanced services, no matter where they may be.

A number of extremely creative proposals to use this spectrum have been
submitted to the Commission. I have found many of these proposals to be
very intriguing, not least because they demonstrate the incredible
variety of ways in which diverse business interests consider using the
AWS-3 band. Precisely because there are so many creative ideas about how
to use such valuable spectrum, I support today's Notice of Proposed
Rulemaking to move the Commission forward in determining the most
appropriate service rules for the band.

I appreciate discussions about how our policy choices may lower the cost
of broadband service to consumers. I also appreciate the value of a
"family friendly" provider of broadband services and encourage input as
to how the Commission should balance the needs of families in protecting
their children with constitutional and statutory requirements. In
addition, I wish to encourage a healthy discussion of other potential
obligations, which could include performance requirements to help
promote service in rural areas and more opportunities for services to
enhance public safety. For all of these potential obligations, I intend
to consider such policies in light of the decisions the Commission
already has made for rules pertaining to other valuable spectrum,
especially the other AWS bands and the 700 MHz band.

I agree with my colleagues who urge that the rules for this band be
established as quickly as possible in order to launch new services that
may benefit consumers. The sooner we establish appropriate rules and
make this spectrum available, the sooner providers may be able to make
available advanced services that enable consumers to be more productive
in their jobs, acquire information they need to benefit their health or
quality of life, and educate and entertain themselves and their
families.

Accordingly, I support today's Notice and look forward to prompt yet
thorough consideration of the important issues in this proceeding. I
also thank the staff of the Wireless Bureau for all their work on this
item.

[^1]: Advanced Wireless Services is the collective term we use for new
    and innovative fixed and mobile terrestrial wireless applications
    using bandwidth that is sufficient for the provision of a variety of
    applications, including those using voice and data (such as Internet
    browsing, message services, and full-motion video) content. Although
    AWS is commonly associated with so-called third generation (3G)
    applications and has been predicted to build on the successes of
    such current-generation commercial wireless services as cellular and
    Broadband Personal Communications Services (PCS), the services
    ultimately provided by AWS licensees are limited only by the Fixed
    and Mobile designation of the spectrum we allocate for AWS and the
    service rules we ultimately adopt for the bands.

[^2]: *See* Service Rules for Advanced Wireless Services in the 1.7 GHz
    and 2.1 GHz Bands, WT Docket No. 02-353, *Report and Order*, 18 FCC
    Rcd 25162 (2003) (*AWS-1 Service Rules* *Report and Order*);
    *modified by* Service Rules for Advanced Wireless Services In the
    1.7 GHz and 2.1 GHz Bands, WT Docket No. 02-353, *Order on
    Reconsideration*, WT Docket No. 02-353**,** 20 FCC Rcd 14058 (2005);
    *see also* Service Rules for Advanced Wireless Services in the
    1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz Bands;
    Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1
    GHz Bands, WT Docket No. 04-356; WT Docket No. 02-353, *Notice of
    Proposed Rulemaking*, 19 FCC Rcd 19263 (2004) (*AWS-2 Service Rules
    NPRM*).

[^3]: *See, e.g.,* Application for License and Authority to Provide
    Nationwide Broadband Service in the 2155-2175 MHz Band filed by
    NextWave Broadband Inc., (filed March 2, 2007) (proposing to provide
    broadband service in the 2.1 GHz band on the same terms, conditions
    and technical requirements that the Commission adopted for the 3.65
    GHz band, modified as necessary for the 2.1 GHz band).

[^4]: We recently dismissed all pending applications for operation in
    this band, determining that the public interest would best be served
    by initiating this rulemaking process to seek comment on the
    appropriate service rules and licensing mechanisms for the AWS-3
    band. *See* Applications for License and Authority to Operate in the
    2155-2175 MHz Band, WT Docket No. 07-16, *Order*; Petitions for
    Forbearance Under 47 U.S.C. § 160, WT Docket No. 07-30, *Order* ,
    FCC 07-161 (rel. Aug. 31, 2007) (*AWS-3 Applications and Forbearance
    Petitions Order*).

[^5]: *See, e.g.*, NextWave Application at 1-2.

[^6]: *See infra* paragraph 13; note Error: Reference source not found.

[^7]: *See infra* notes Error: Reference source not found, Error:
    Reference source not found.

[^8]: Seven parties filed applications for licenses to provide service
    in the 2155-2175 MHz band, which we recently dismissed without
    prejudice in an Order released August 31, 2007. *See AWS-3
    Applications and Forbearance Petitions Order*. On May 5, 2006, M2Z
    filed an application seeking an exclusive, nationwide, 15-year
    license in the 2155-2175 MHz band to operate a wireless broadband
    network. Six additional applications for license and authority to
    operate in the band were filed in March 2007 -- by Commnet Wireless,
    LLC; McElroy Electronics Corp.; NetfreeUS, LLC; NextWave Broadband,
    Inc.; Open Range Communications, Inc.; and TowerStream Corporation.

[^9]: As of year-end 2006, there were an estimated 233 million mobile
    telephone subscribers, up from 208 million at the end of 2005. *See*
    CTIA, *Background on CTIA's Semi-Annual Wireless Industry Survey
    \<*<http://files.ctia.org/pdf/CTIA_Survey_Year_End_2006_Graphics.pdf>\>
    (Annualized Wireless Industry Survey Results -- December 1985 To
    December 2006: Reflecting Domestic U.S. Commercially-Operational
    Cellular, ESMR and PCS Providers)..

[^10]: CDMA stands for Code Division Multiple Access, and GSM stands for
    Global System for Mobile Communications. The third major type of
    digital cellular technology used in the U.S. is U.S.-TDMA (Time
    Division Multiple Access); however, the mobile carriers using
    U.S.-TDMA are in the process of upgrading their cellular systems to
    GSM. In addition, the carriers using Specialized Mobile Radio (SMR)
    licenses to deploy mobile telephone services use a digital
    technology called iDEN (integrated Digital Enhanced Network). These
    four technologies are commonly referred to as Second Generation, or
    "2G."

[^11]: The International Telecommunication Union ("ITU") has defined 3G
    network technologies as those that can offer maximum data transfer
    speeds of two megabits per second ("Mbps") from a fixed location,
    384 kilobits per second (kbps) at pedestrian speeds, and 144 kbps at
    vehicular speeds of 100 kilometers per hour. *See Tenth CMRS
    Competition Report*, at ¶ 116, n.250; Implementation of Section
    6002(b) of the Omnibus Reconciliation Act of 1993, Annual Report and
    Analysis of Competitive Market Conditions with Respect to Commercial
    Mobile Services, *Ninth Report*, 19 FCC Rcd 20587, 20650 n.314
    (2004) (*Ninth CMRS Competition Report*"). CDMA 1xEV-DO (EV-DO) is a
    3G technology being deployed by CDMA carriers, and WCDMA/HSDPA
    (Wideband CDMA/High-Speed Downlink Packet Access) is a 3G technology
    being deployed by GSM carriers in the United States.

[^12]: *High-Speed Services for Internet Access: Status as of June 30,
    2006*, Industry Analysis and Technology Division, Wireline
    Competition Bureau, FCC, Jan. 2007, at Table 1. The number of
    wireline broadband connections as of June 30, 2006 totaled 52.8
    million. *Id.*

[^13]: In the November, 2002 *AWS Allocation Second Report and Order*,
    the Commission identified and reallocated 90 megahertz (1710-1755
    MHz and 2110-2155 MHz bands) to the fixed and mobile services for
    AWS. *See* Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, Including Third
    Generation Wireless Systems, ET Docket No. 00-258, *Second Report
    and Order*, 17 FCC Rcd 23193 (2002) (*AWS Allocation* *Second Report
    and Order*). In the September, 2004 *AWS Allocation Sixth Report and
    Order*, the Commission designated 20 megahertz (1915-1920 MHz,
    1995-2000 MHz, 2020-2025 MHz, and 2175-2180 MHz bands) for fixed and
    mobile services that include AWS. *See* Amendment of Part 2 of the
    Commission's Rules to Allocate Spectrum Below 3 GHz for Mobile and
    Fixed Services to Support the Introduction of New Advanced Wireless
    Services, Including Third Generation Wireless Systems, ET Docket No.
    00-258, *Sixth Report and Order, Third Memorandum Opinion and Order
    and Fifth Memorandum Opinion and Order*, 19 FCC Rcd 20720 (2004)
    (*AWS Allocation Sixth Report and Order*). With regard to the
    20-megahertz block at 2155-2175 MHz, the 2160-2165 MHz band was
    already allocated for non-Federal Government fixed services and
    mobile services. *See* 47 C.F.R. Parts 21, 22, and 101. In the *AWS
    Allocation Third Report and Order*, the 2165-2180 MHz band was
    reallocated for fixed and mobile services, including AWS. *See*
    Amendment of Part 2 of the Commission\'s Rules to Allocate Spectrum
    Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, including Third
    Generation Wireless Systems, ET Docket No. 00-258, *Third Report and
    Order, Third Notice of Proposed Rulemaking and Second Memorandum
    Opinion and Order,* 18 FCC Rcd. 2223, 2238 ¶ 28 (2002) (*AWS*
    *Allocation* *Third Report and Order & NPRM*). In the *AWS
    Allocation Eighth Report and Order*, the Commission allocated
    2155-2160 MHz for fixed and mobile services, including AWS, and
    designated the entire 2155-2175 MHz band as AWS spectrum. *See AWS
    Allocation Eighth Report and Order*, 20 FCC Rcd at 15872 ¶ 9.

[^14]: *See* *AWS-1 Service Rules* *Report and Order*, *supra* note
    Error: Reference source not found.

[^15]: *See AWS-2 Service Rules NPRM*, *supra* note Error: Reference
    source not found.

[^16]: *See* Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, including Third
    Generation Wireless Systems, ET Docket No. 00-258, *Ninth Report and
    Order and Order*, FCC 06-45 (rel. April 21, 2006) (*AWS Ninth R&O*).
    *See also* Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, including Third
    Generation Wireless Systems, ET Docket No. 00-258, *Eighth Report
    and Order and Fifth Notice of Proposed Rulemaking and Order*, 20 FCC
    Rcd 15866 (2005) (*AWS Allocation Eighth Report and Order and*
    *Fifth NPRM*).

[^17]: *See* 47 C.F.R. § 101.79(a)(1) (10-year sunset date); 27 C.F.R. §
    27.1174 (Termination of Cost-Sharing Obligations).

[^18]: See 47 C.F.R. § 27.1253(a) (Sunset Provisions).

[^19]: *See infra* notes Error: Reference source not found-Error:
    Reference source not found citing comments in the AWS allocation
    proceeding, ET Docket No. 00-258, and comments to the *Wireless
    Broadband Access Task Force Report* in GN Docket No. 04-163.

[^20]: For example, if the AWS-3 spectrum at 2155-2175 MHz is used for
    base-transmit, it could theoretically be paired with mobile-transmit
    spectrum from the Personal Communications Services (PCS) at
    1850-1910 MHz, AWS-1 at 1710-1755 MHz, proposed AWS-2 spectrum at
    1915-1920 MHz or 2020-2025 MHz, or Nextel/1.9 GHz spectrum at
    1910-1915 MHz.

[^21]: We note that several of the recently dismissed applications for
    licenses in this band proposed technologies that would allow the use
    of both mobile and base station transmissions. *See, e.g.*, M2Z
    Application at 13 (proposing to use a TDD technology in conjunction
    with advanced antenna system ("AAS") technology and Orthogonal
    Frequency Division Multiple Access ("OFDMA") waveforms; NextWave
    Application at 2-3 (proposing to use TDD technology based on the
    IEEE 802.16e WiMAX standard); Open Range Application at 9-11
    (proposing to use technology based on the IEEE 802.16e standard with
    key features including OFDMA and multiple input multiple output
    ("MIMO")).

[^22]: Asymmetric data transmissions typically involve greater amounts
    of data flowing "downstream," from base to mobile, than "upstream,"
    from mobile to base. TDD proponents claim that TDD technology offers
    the potential for dynamic, real-time balancing of upload/download
    traffic loads, and handsets that are less complex, less expensive,
    and yield longer battery life than other alternatives. *See, e.g.,
    \<http://www.umtstdd.org/technology.html\>*; TDD Coalition Comments
    to the *Spectrum Policy Task Force Report*, ET Docket No. 02-135
    (Jan. 27, 2003).

[^23]: *See* ArrayComm Reply Comments at 2-4 and TDD Coalition Reply
    Comments at 8, 15, 22 submitted in the *AWS-1 Service Rules*
    proceeding, WT Docket No. 02-353. CTIA urges the Commission to
    pursue an unpaired TDD option but cautions the Commission on the
    potential technical limits and the need to prevent the potential for
    harmful interference. CTIA Comments to the *Wireless Broadband
    Access Task Force Report* at 13 in GN Docket 04-163 (filed April 22,
    2005).

[^24]: *See* IPWireless Reply Comments to the *Wireless Broadband Access
    Task Force Report* at 3, GN Docket No. 04-163 (filed July 1, 2004).

[^25]: WiMax is a standards-based technology, which is intended to
    deliver "last-mile" wireless broadband access to fixed, portable,
    nomadic, and mobile users. Because of the flexibility of the IEEE
    802.16 WiMax standards, WiMax technology could also be utilized in
    an unpaired approach. WiMax standards currently support TDD, FDD,
    and HFDD technologies. *See, e.g.*, WiMAX Forum Regulatory Working
    Group, *Initial Certification Profiles and the European regulatory
    framework*, September, 2004, available at
    \<http://www.wimaxforum.org/news/downloads/Initial_profiles_final.pdf\>;
    Darcy Poulin, SiGe Semiconductor Inc., *WiMax advantages bring about
    new challenges*, Wireless Net DesignLine, Aug. 25, 2005, available
    at
    \<http://www.wirelessnetdesignline.com/howto/showArticle.jhtml?articleID=169300289\>.

[^26]: The 2110-2155 MHz and 2175-2180 MHz bands are designated and
    proposed to be designated, respectively, for base transmissions.

[^27]: When a TDD mobile or base station is transmitting, it will affect
    mobile or base station receivers in the adjacent spectrum unless
    sufficient distance or frequency separation is present. The
    transmitting mobile and base station will also affect mobile and
    base station receivers in the same spectrum in adjacent areas unless
    the networks are synchronized to a common timing standard and have
    the same channel asymmetry. *See* Harri Holma, Sanna Hekkkinen,
    Otto-Aleksanteri Lehtinen, and Antti Toskala, *Interference
    Considerations for the Time Division Duplex Mode of the UMTS
    Terrestrial Radio Access*, IEEE Journal on Selected Areas in
    Communications, Vol. 18, No. 8, August 2000, available at
    \<http://lib.tkk.fi/Diss/2003/isbn9512267187/article10.pdf\>. *See
    also* Gordon J R Povey, Elektrobit (UK) Ltd, Edinburgh Technology
    Transfer Centre, "Investigation of Multiple Access Interference
    Within UTRA-TDD," available at
    \<http://www.eurasip.org/content/Eusipco/2000/sessions/TueAm/SS1/cr1909.pdf\>.

[^28]: Examples could include AWS-1 mobiles receiving at 2110-2155 MHz,
    AWS-2 mobiles receiving at 2175-2180 MHz (proposed), and MSS mobile
    or ATC stations receiving at 2180-2200 MHz. Mobile Satellite Service
    (MSS) is a radiocommunication service involving transmission between
    mobile Earth stations and one or more space stations. *See* 47
    C.F.R. § 2.1(c). Ancillary Terrestrial Components (ATC) allows MSS
    operators to utilize their satellite spectrum terrestrially in urban
    areas and in buildings, where the satellite signal is weak. *See
    generally* Flexibility for Delivery of Communications by Mobile
    Satellite Service Providers in the 2 GHz Band, the L-Band, and the
    1.6/2.4 GHz Bands, IB Docket No. 01-185, *Report and Order and
    Notice of Proposed Rulemaking*, FCC 03-15, 18 FCC Rcd 1962 (2003),
    *modified sua sponte*, *Order on Reconsideration*, FCC 03-162, 18
    FCC Rcd 13590 (2003), *on reconsideration*, *Memorandum Opinion and
    Order and Second Order on Reconsideration*, FCC 05-30, 20 FCC Rcd
    4616 (2005), *further recon pending*.

[^29]: If we only permit base transmissions in the 2155-2175 MHz band,
    then the only interference scenario that would to present would be
    the "base-to-mobile" interference scenario -- *i.e*., AWS-3 base
    transmissions causing interference to adjacent channel mobile
    stations. Fortunately, the "base-to-mobile," and related
    "mobile-to-base," interference scenarios are somewhat less difficult
    to address than the base-to-base and mobile-to-mobile interference
    scenarios, which will be present if we allow mobile transmissions in
    the band. *See* *infra* paragraph 21 for a more detailed discussion
    of this subject.

[^30]: Some commenters have already submitted suggestions on how to
    address the TDD-related interference issues. For example, with
    respect to the 2155-2180 MHz band, IPWireless asserts that state-of-
    the-art filtering allows TDD and FDD systems to coexist harmoniously
    in adjacent spectrum. IPWireless Comments at 3 GN Docket No. 04-163,
    ET Docket No. 00-258, IB Docket No. 99-81 (filed July 28, 2004).
    These comments were directed at the 2155-2180 MHz band because they
    were submitted at a time when the 2175-2180 MHz had not yet been
    designated for AWS and/or included in the AWS-2 spectrum band. *See
    infra* note Error: Reference source not found.

[^31]: For instance, that carrier could utilize the upper and lower
    five-megahertz blocks for fixed station transmissions with mobile
    transmissions limited to the 10 megahertz in the middle of the band.
    *See discussion infra* at paragraphs 19 and 60.

[^32]: Asymmetric pairing typically involves pairing larger-sized base
    station transmission blocks with smaller mobile-transmission blocks.
    Most Internet traffic is asymmetric, *i.e.,* the average user
    typically downloads more data than he or she uploads. Hence,
    Internet service providers typically offer higher downstream data
    rates than upstream data rates. For example, Verizon's mobile
    wireless EV-DO service has an 11 to 1 average download speed/upload
    speed ratio, Comcast offers internet connection speeds with a 10.4
    to 1 average ratio, and Cox Communications offers maximum data rates
    with a 6 to 1 ratio. *See*
    \<http://news.vzw.com/news/2005/09/pr2005-09-19d.html\>;
    \<http://www.manifest-tech.com/ce_wireless/wireless_vcast.htm\>;
    \<http://www.comcast.com/Benefits/CHSIDetails/Slot3PageOne.asp\>;\
    \<http://www.coxbusiness.com/pdfs/cox_internet.pdf\>.

[^33]: This use of AWS-3 spectrum would provide additional downstream
    (base station) transmission capacity for FDD systems operating on
    AWS-1, proposed AWS-2, or other CMRS spectrum.

[^34]: For example, Verizon, a CDMA carrier, is migrating from CDMA2000
    1xRTT to a high-speed mobile internet access service using CDMA2000
    1x EV-DO (evolution-data-optimized, "EV-DO") technology. The EV-DO
    network is capable of maximum burst transmission speeds of up to 2.4
    Mbps, with average user download speeds in the broadband range of
    400 to 700 kbps. It is an asymmetrical service like digital
    subscriber line (DSL), with slower upload speeds between 40 and 60
    kbps. Douglas Dixon, *TV on Your Mobile Phone: Verizon Wireless V
    Cast*, May, 2005, at
    \<http://www.manifest-tech.com/ce_wireless/wireless_vcast.htm\>;
    *see* \<http://getitnow-origin.vzwshop.com/vcasthome.do\>.

[^35]: For instance, the technologies being developed for certain
    broadband applications, such as Wideband CDMA (W-CDMA) and WiMax,
    offer bit-rate intensive applications that are driving high downlink
    bit rates and traffic asymmetry. Wideband Code-Division
    Multiple-Access (W-CDMA) is a technology that is being used for the
    implementation of third-generation (3G) cellular and PCS systems and
    is also known as Universal Mobile Telecommunications System, or
    "UMTS." W-CDMA/UMTS is the next migration step for GSM carriers
    beyond Enhanced Data Rates for GSM Evolution (EDGE) technology and
    allows maximum downstream data speeds of up to two Mbps, and
    typical, user-experienced speeds of 220-320 kbps. *See Wireless
    Broadband Access Task Force Report*, GN Docket No. 04-163, at page
    25.

[^36]: Several commenters in ET Docket No. 00-258 advocate combining the
    2155-2180 MHz band with other AWS base transmit spectrum and pairing
    the resulting base transmit block with AWS mobile transmit spectrum,
    to create an asymmetric uplink/downlink pairing to accommodate
    greater amounts of downlink traffic. AT&T Wireless Reply Comments at
    1, 7-8 (filed April 28, 2003); Verizon Wireless Comments at 2, 7
    (filed April 14, 2003). We note that at the time that these comments
    were filed, the 2175-2180 MHz band had not yet been designated for
    AWS. In the September, 2004 *AWS Allocation Sixth Report and Order*,
    the Commission designated 20 megahertz, including the 2175-2180 MHz
    band, for fixed and mobile services, including AWS, and paired the
    2175-2180 MHz block with the 2020-2025 MHz block as part of the
    AWS-2 band plan. *See AWS Allocation Sixth Report and Order*, note
    Error: Reference source not found. One commenter asserts that the
    2155-2180 MHz band should be made available as unpaired base
    transmit spectrum because such an approach, using blocks of at least
    five megahertz, would allow for the spectrum to be used in several
    ways, including allowing operators to pair the spectrum with other
    AWS spectrum in order to create an asymmetric uplink/downlink
    pairing to accommodate greater downlink traffic. Motorola Comments
    at 1 (filed July 20, 2004); *see also* Motorola Comments at iv,
    14-16 (filed April 14, 2003), Motorola Reply Comments at 5 (filed
    April 28, 2003). Others assert that an asymmetric band plan for AWS
    spectrum is needed because many advanced wireless applications will
    require more spectrum for base transmit ("downstream") paths than
    for mobile transmit ("upstream") paths. Verizon Wireless Comments at
    7, CTIA Comments at 6 (filed April 14, 2003); *see* Cingular
    Comments to the *AWS Allocation Fourth NPRM,* at 2 (filed Nov. 3,
    2003); Cingular Comments to the *AWS Allocation Third NPRM*, at 6,
    9-10 (filed April 14, 2003).

[^37]: Several commenters to the *Wireless Broadband Access Task Force
    Report*, GN Docket No. 04-163, recommend that the Commission adopt
    rules flexible enough to facilitate asymmetric pairing of spectrum
    bands in order to accommodate the higher volume of downstream
    traffic associated with broadband access. *See*, *e.g.*,
    Cingular/BellSouth Comments at 4-5, GN Docket No. 04-163 (filed
    April 22, 2005); WCA Comments at 7, GN Docket No. 04-163 (filed
    April 22, 2005); CTIA Comments at 12-13, GN Docket No. 04-163 (filed
    April 22, 2005). Others urge the Commission to allow asymmetric
    pairing and to adopt flexible rules that will allow an operator to
    combine multiple spectrum bands to form a single service.
    Cingular/BellSouth Comments at 5, CTIA Comments at 12-13, GN Docket
    No. 04-163 (filed April 22, 2005). One commenter recommends that the
    Commission pursue spectrum band options such as asymmetric pairing
    and unpaired TDD but cautions the Commission to remain cognizant of
    their potential technical limits, and to be careful to prevent the
    potential for harmful interference. CTIA Comments at 13.

[^38]: AWS-3 spectrum for downlink paths could be used in conjunction
    with AWS, PCS, and other CMRS spectrum.

[^39]: *See, e.g.*, In the Matter of Qualcomm Inc. Petition For
    Declaratory Ruling, Order, 21 FCC Rcd 11,683, 11,684 ¶ 3 (2006). In
    the Lower 700 MHz Band, the Commission divided the 48 megahertz of
    spectrum into several blocks of both paired and unpaired spectrum to
    accommodate a potential range of new fixed, mobile and broadcast
    services and technologies (and the unpaired spectrum consists of two
    6-megahertz unpaired, contiguous blocks Block D at 716-722 MHz and
    Block E at 722-728 MHz). *See, e.g.*, Reallocation and Service Rules
    for the 698-746 MHz Spectrum Band (Television Channels 52-59),
    *Report and Order*, 17 FCC Rcd 1022, 1053-54, 1056-57 ¶¶ 76, 84
    (2002).

[^40]: Some commenters in the *Wireless Broadband Access Task Force
    Report* proceeding, GN Docket 04-163, advocate dividing the spectrum
    band into smaller five-megahertz blocks. *See, e.g.*, Global UMTS
    TDD Alliance Comments at 7, GN Docket No. 04-163 (filed June 3,
    2004). IP Wireless asserts that the 2155-2180 MHz block should be
    auctioned in blocks of at least five megahertz, under rules
    affording the licensees adequate protection from future users of
    adjacent spectrum. IPWireless Comments at 3-4, GN Docket No. 04-163,
    ET Docket No. 00-258, IB Docket No. 99-81 (filed July 28, 2004).

[^41]: *See, e.g.,* M2Z Application at 11; Commnet Application, Exhib. 2
    at 1; NextWave Application at 1 (seeking authorization to operate on
    a nationwide, shared basis).

[^42]: *See* Service Rules for the 746-764 and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission's Rules, WT Docket No.
    99-168, *First Report and Order*, 15 FCC Rcd 476, 491 ¶ 36 (2000)
    (*Upper 700 MHz First Report and Order*) (the Commission discussed
    the need for five-megahertz blocks to accommodate Wideband CDMA
    transmissions).

[^43]: For instance, as a technical matter, an AWS-1 mobile could easily
    transmit a request for high bandwidth download and receive that data
    in AWS-3 spectrum rather than in the symmetrically paired AWS-1
    spectrum.

[^44]: *See AWS-1 Service Rules Report and Order*, 18 FCC Rcd at 25174 ¶
    30; *AWS-2 Service Rules NPRM*, 19 FCC Rcd 19271-72 ¶ 18.

[^45]: NextWave Application at 1-2; *see also* Rules for Wireless
    Broadband Services in the 3650-3700 MHz Band, WT Docket No. 05-96,
    *Report and Order and Memorandum Opinion and Order*, 20 FCC Rcd 6502
    (2005).

[^46]: *See* Service Rules for Advanced Wireless Services In the 1.7 GHz
    and 2.1 GHz Bands, WT Docket No. 02-353, *Order on Reconsideration*,
    WT Docket No. 02-353**,** 20 FCC Rcd 14058 (2005).

[^47]: As noted above, AWS-3 spectrum could also be asymmetrically
    paired with AWS-2 spectrum at 2020-2025 MHz and 2175-2180 MHz.
    Whereas service rules for AWS-1 were adopted in the *AWS-1 Service
    Rules Report and Order*, equivalent service rules for the AWS-2
    spectrum have been proposed but not yet adopted. *See AWS-2 Service
    Rules NPRM*, *supra* note Error: Reference source not found.

[^48]: *See* 47 U.S.C. § 309(j)(3)(D). We also note several applicants
    propose a nationwide license for the 2155-2175 MHz band. *See,
    e.g.,* M2Z Application at 11; Commnet Application, Exhibit 2 at 1;
    NextWave Application at 1; NetfreeUS Application at 10-11 (seeking a
    nationwide license with the obligation to lease its spectrum through
    a "private commons" model).

[^49]: *See discussion infra* paragraphs 101-103, 127-134.

[^50]: *See, e.g.,* M2Z Application at 11; Commnet Application, Exhibit
    2 at 1; NextWave Application at 1; NetfreeUS Application at 10-11.

[^51]: *See* 47 C.F.R. § 1.2103; Amendment of Part 1 of the Commission's
    Rules---Competitive Bidding Procedures, WT Docket No. 97-82, *Third
    Report and Order and Second Further Notice of Proposed Rule Making*,
    13 FCC Rcd 374, 447-49 ¶¶ 124-125 (1997) (*Part 1 Third Report and
    Order*). *See also* paragraph 149 *infra* in which we propose to use
    our Part 1 Competitive Bidding rules for any auction of initial
    licenses in the 2155-2175 MHz band.

[^52]: *See* 47 C.F.R. § 1.2103

[^53]: 47 C.F.R. § 1.2103(a)(3). *See* Closed Auction of Licenses for
    Cellular Unserved Service Areas Scheduled for February 12,
    2003; Notice and Filing Requirements, Minimum Opening Bids, Upfront
    Payments, and Other Auction Procedures, *Public Notice*, 17 FCC
    Rcd 22894 (2002).

[^54]: 47 C.F.R. § 1.2103(a)(4). *See700 MHz Second Report and Order* at
    ¶¶ 287-292; Auction of 700 MHz Band Licenses Scheduled for January
    16, 2008; Comment Sought on Competitive Bidding Procedures for
    Auction 73, *Public Notice*, DA 07-3415 (rel. August 17, 2007)
    (*Auction 73 Public Notice*). *See also* Auction of Regional
    Narrowband PCS Licenses Scheduled for September 24, 2003; Comment
    Sought on Package Bidding Procedures, Reserve Prices or Minimum
    Opening Bids, and Other Auction Procedures, *Public Notice*, 18 FCC
    Rcd 6366 (2003) (*Auction No. 51 Comment Public Notice*). *See also*
    Auction of Advanced Wireless Services Licenses Scheduled for June
    29, 2006; Comment Sought on Reserve Prices or Minimum Opening Bids
    and Other Procedures, *Public Notice*, 21 FCC Rcd 794 (2006)
    (*Auction No. 66 Comment Public Notice*).

[^55]: *See* Auction of 800 MHz Air-Ground Radiotelephone Service
    Licenses Scheduled for May 10, 2006; Comment Sought on Reserve
    Prices or Minimum Opening Bids and Other Procedures for Auction No.
    65, *Public Notice*, 21 FCC Rcd 4 (2006) (*Auction No. 65 Comment
    Public Notice*); Auction of 800 MHz Air-Ground Radiotelephone
    Service Licenses Scheduled for May 10, 2006; Notice and Filing
    Requirements, Minimum Opening Bids, Upfront Payments and Other
    Procedures for Auction No. 65, *Public Notice*, 21 FCC Rcd 1278
    (2006) (*Auction No. 65 Procedures Public Notice*).

[^56]: *See* Amendment of Part 22 of the Commission's Rules to Benefit
    the Consumers of Air-Ground Telecommunications Services, Biennial
    Regulatory Review --- Amendment of Parts 1, 22, and 90 of the
    Commission's Rules, Amendment of Parts 1 and 22 of the Commission's
    Rules to Adopt Competitive Bidding Rules for Commercial and General
    Aviation Air-Ground Radiotelephone Service, WT Docket Nos. 03-103
    and 05-42, *Report and Order and Notice of Proposed Rulemaking*, 20
    FCC Rcd 4403, 4405-06, 4418-22 ¶¶ 1, 24-32 (2005) (licenses in three
    band plans were to be available, but the only licenses to be awarded
    were those that comprised the band plan that received the highest
    aggregate bid).

[^57]: *See infra* paragraph 126, in which we suggest the possibility of
    a "scoring auction" in which participants place two-part bids that
    specify both a dollar amount and a build-out or other
    performance-related commitment.

[^58]: *See* 47 U.S.C. § 309(j)(15)(v) (Commission must conduct the
    auction of licenses for recovered analog spectrum by commencing the
    bidding not later than January 28, 2008). *See also* *Auction 73
    Public Notice* at 2 *citing* Digital Television Transition and
    Public Safety Act of 2005 ("DTV Act). Title III of the Deficit
    Reduction Act of 2005, Pub. L. No. 109-171, 120 Stat. 4 (2006) is
    the DTV Act, which is codified in various portions of Title 47 of
    the United States Code. *See Auction 73 Public Notice* at n.4.

[^59]: *S**ee* MetroPCS Communications *Ex Parte* Comments, WT Docket
    No. 06-150 (filed Feb. 8, 2007) at 11-12. *See also* Aloha Partners,
    L.P., *Ex Parte* Comments, WT Docket No. 06-150 (filed Feb. 6, 2007)
    at 4-5 (urging the Commission not to accelerate its then-current
    auction schedule because prospective participants need six months to
    obtain financing).

[^60]: BRS and FS operations will eventually be relocated to other
    spectrum, but until that time, BRS and FS systems will have to be
    protected from interference (*see* *infra* paragraphs 72-76).

[^61]: TDD, for example, places base and mobiles transmissions on the
    same channel, but in different time slots, while HFDD uses separate,
    adjacent channels in different time slots for base and mobile
    transmissions. FDD, on the other hand, employs spectrally separated
    base and mobile transmit channels with base and mobile transmissions
    occurring at the same time. WiMax is a new application, which
    supports TDD, FDD, and HFDD access technologies.

[^62]: The 2110-2155 MHz AWS-1 band is restricted to base transmissions,
    and the 2180-2200 MHz MSS/ATC band is restricted to satellite
    downlink and base transmissions. The Commission tentatively
    concluded, in the *AWS-2 Service Rules NPRM*, that the 2175-2180 MHz
    band should be designated for base transmissions as well. Base
    station, mobile, and customer premises equipment (CPE)
    transmissions, however, may operate in the 2150-2160/62 MHz BRS
    band.

[^63]: This is because, in a typical land mobile environment -- where
    there are likely to be physical (natural and/or man-made)
    obstructions and some amount of distance separation between base and
    mobile stations -- there will likely be significant signal
    attenuation between base stations and interfering mobiles, and
    between mobiles and interfering base stations. Conversely, in
    base-to-base and mobile-to-mobile interference scenarios, pairs of
    base stations and mobile stations can be situated very close to one
    another, with no intervening obstructions -- and under these
    conditions, there will be relatively little signal attenuation
    between stations.

[^64]: The interfering signal is attenuated by "free space path loss,"
    which results from the physical separation between the transmitter
    and receiver.

[^65]: A passband is "\[t\]he portion of spectrum, between limiting
    frequencies, that is transmitted with minimum relative loss or
    maximum relative gain.\" *See* Alliance for Industry
    Telecommunications Solutions, *Glossary*, available online at:
    <http://www.atis.org/tg2k/_passband>.

[^66]: Under these conditions, there would be insufficient path loss
    between the mobiles to satisfactorily attenuate the interfering
    signal.

[^67]: We note that overcoming mobile-to-mobile interference may not
    simply be a matter of limiting out-of-band emissions or power
    limits, as different parts of a cell can experience different levels
    of interference depending on geometry, asymmetry, and
    synchronization.

[^68]: *See* Service Rules for Advanced Wireless Services in the
    1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz Bands;
    Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1
    GHz Bands, WT Docket No. 04-356; WT Docket No. 02-353, *Notice of
    Proposed Rulemaking*, 19 FCC Rcd 19263 (2004) ("*AWS-2 Service Rules
    NPRM"*).

[^69]: *See AWS-2 Service Rules NPRM*, 19 FCC Rcd at 19299 ¶ 91.

[^70]: *See* Flexibility for Delivery of Communications by Mobile
    Satellite Service Providers in the 2 GHz Band, the L-Band, and the
    1.6/2.4 GHz Bands, IB Docket No. 01-185, *Report and Order and
    Notice of Proposed Rulemaking*, FCC 03-15, 18 FCC Rcd 1962, 2025-30
    ¶¶ 119-127 (2003) (*MSS/ATC Report and Order*), *modified sua
    sponte*, *Order on Reconsideration*, FCC 03-162, 18 FCC Rcd 13590
    (2003), *on reconsideration*, *Memorandum Opinion and Order and
    Second Order on Reconsideration*, FCC 05-30, 20 FCC Rcd 4616 (2005),
    *further recon pending*.

[^71]: *See MSS/ATC Report and Order*, 18 FCC Rcd at 2025-30 ¶¶ 119-127
    and 47 C.F.R. § 25.252.

[^72]: *See* *AWS-2 Service Rules NPRM*, 19 FCC Rcd at 19299 ¶ 91 and
    *MSS/ATC Report and Order*, 18 FCC Rcd at 2025-30 ¶¶ 119-127**.**

[^73]: The occupied bandwidth of a transmitted or received signal is the
    spectrum within which the signal is, for the most part,
    unattenuated.

[^74]: The 43 + 10log P dB OOBE limit is used in Part 24 and Part 90 to
    provide appropriate out-of-band emission interference protection to
    base and mobile receivers operating in the PCS, 800 MHz, and 900 MHz
    services.

[^75]: *See, e.g*., AT&T PTD at 10-14 and Declaration of David Shively,
    PhD (Technical Declaration) attached to AT&T PTD (\"the operation of
    TDD and FDD systems in adjacent bands raises substantial
    interference concerns that are well known\"). *See* Technical
    Declaration at 1 citing 2500-2690 MHz, 21010-2025 MHz, and 2290-2302
    MHz Spectrum Awards - Engineering Study (Phase 2), Mason
    Communications Ltd (Nov. 2006) (\"Ofcom Study").

[^76]: *See* M2Z Application, App. 2 at 3.

[^77]: NetfreeUS Application at 16 (proposing use of the BRS/EBS
    emission rules of the 43 + 10 log (P) dB standard). As discussed
    above in notes Error: Reference source not found and Error:
    Reference source not found, we recently dismissed applications by
    M2Z, NetfreeUS, and several other parties to operate in this band,
    noting that we would be issuing this Notice of Proposed Rule Making
    to consider appropriate rules for this band. *See AWS-3 Applications
    and Forbearance Petitions Order*.

[^78]: This is due to the fact that 2180-2200 MHz MSS/ATC band will be
    used for downstream (*e.g.*, base-to-mobile and satellite-to-mobile)
    transmissions.

[^79]: *See* *supra* paragraph 54, discussing the requirement that
    MSS/ATC mobiles transmitting above 2000 MHz provide attenuation of
    at least 70 + 10log P dB below 1995 MHz. We require, on spectrum
    between 1995-2000 MHz, an MSS/ATC OOBE attenuation defined by the
    linear interpolation of 70 + 10log P dB and 43 + 10logP dB at the
    2000 MHz MSS band edge.

[^80]: This use of AWS-3 spectrum would provide additional downstream
    (base station) transmission capacity for FDD systems operating on
    AWS-1, proposed AWS-2, or other CMRS spectrum.

[^81]: We have adopted rules limiting the 2110-2155 MHz band to base
    station transmissions and have proposed rules restricting the
    2175-2180 MHz band as well to base transmissions. *See* *AWS-1
    Service Rules* *Report and Order*, *supra* note Error: Reference
    source not found; *see also* *AWS-2 Service Rules NPRM*, *supra*
    note Error: Reference source not found. The MSS/ATC band (2180-2200
    MHz) is also used only for base transmissions. *See* 47 C.F.R. §§
    25.202(a)(4)(ii) and 25.252.

[^82]: *See AWS-1 Service Rules Report and Order*, 18 FCC Rcd at
    25210-12 ¶¶ 127-131 for a discussion on the OOBE limits to be
    applied to AWS-1 base and fixed stations.

[^83]: As part of its earlier filed application to receive an exclusive
    nationwide license, M2Z proposed a license condition that would
    require the attenuation for fixed digital stations to be not less
    than 43+ 10 log (P) dB, unless a documented harmful interference
    complaint from an adjacent channel licensee cannot be resolved by
    the parties, in which case both licensees shall reduce their
    out-of-band emissions by at least 67 + 10 log (P) dB measured at 3
    megahertz from the channel edges. *See* M2Z Application, App. 2 at
    3.

[^84]: *See supra* note Error: Reference source not found. The practical
    constraints resulting from a strict OOBE limit on mobile operations
    could be mitigated by future improvements in transmitter filter
    technology. Providing licensees with the ability to use all the
    AWS-3 spectrum for mobile transmissions would enable them to take
    advantage of such improvements and could provide additional
    incentives for investment in filter technology.

[^85]: *See* *supra* paragraph 55.

[^86]: *See* CTIA *Ex Parte* Comments, ET Docket No. 00-258 (filed Aug.
    5, 2004); CTIA *Ex Parte* Comments, ET Docket No. 00-258 (filed Aug.
    13, 2004); CTIA *Ex Parte* Comments, ET Docket No. 00-258 (filed
    Aug. 18, 2004); Agilent Technologies *Ex Parte* Comments, ET Docket
    No. 00-258 (filed Aug. 19, 2004); and CTIA *Ex Parte* Comments, ET
    Docket No. 00-258 (filed Aug. 27, 2004).

[^87]: *See AWS Allocation Sixth Report and Order*, 19 FCC Rcd at 20735
    ¶ 27.

[^88]: In our AWS-2 proceeding, we sought comment on a 200 mW power
    limit for "AWS-2 block" handsets. In this proceeding, however, we
    seek comment on a 250 mW EIRP limit for AWS-3 handsets. This
    differential is due to the 25 percent greater signal propagation
    loss that exists in the 2.1 GHz band (where AWS-3 handsets may
    operate) than in the 1.9 GHz band (where "AWS-2 block" handsets are
    proposed to operate).

[^89]: *See* Section 27.55(b) of our rules.

[^90]: *See* In the Matter of Biennial Regulatory Review - Amendment of
    Parts 1, 22, 24, 27, and 90 to Streamline and Harmonize Various
    Rules Affecting Wireless Radio Services, WT Docket No. 03-264,
    *Report and Order and Further Notice of Proposed Rulemaking*, 20 FCC
    Rcd 13900, 13923-24 ¶ 51 (2005).

[^91]: We seek comment on whether there are any services that could be
    deployed in the AWS-3 band, which would place transmitting AWS-3
    mobiles physically far enough from adjacent band receiving mobiles
    to eliminate the possibility of "mobile-to-mobile" interference. If
    such services were deployed in the AWS-3 band, we could adopt higher
    power limits for mobiles operating in the band.

[^92]: Although block size depends to some extent on the type of
    technology applied (*e.g.*, Wideband CDMA requires five-megahertz
    blocks but WiMax may use bandwidths from 1.25 to 20 megahertz, *see
    supra* paragraph 14), we anticipate that most current technologies
    could be accommodated on five- and 10-megahertz blocks.

[^93]: Base stations receiving on these adjacent blocks could be
    operating on either TDD or HFDD systems. Mobiles receiving on
    adjacent blocks could be operating on FDD, TDD, or HFDD systems.

[^94]: As noted above, imposing strict OOBE limits may require licensees
    to either employ costly transmitter filtering or confine their
    occupied bandwidth to the center portion of their spectrum block.

[^95]: To avoid causing interference, it could also be necessary for
    licensees operating TDD and HFDD systems on adjacent channels to
    synchronize their systems so that their base stations will transmit
    and receive at the same time. *See supra* note Error: Reference
    source not found.

[^96]: Commenters, in responding to this question, should indicate what
    possible, special measures might be needed to protect AWS-3 base
    stations if we permit adjacent band AWS-3 stations to operate at
    power levels up to 50 kW ERP, as discussed *supra* paragraph 65.

[^97]: *See* *supra* note Error: Reference source not found.

[^98]: Two of the three bands adjacent to or near the 2155-2175 MHz band
    (*i.e.*, the 2110-2155 MHz and 2180-2200 MHz bands) have been
    designated as base transmit bands, and we have proposed that the
    2175-2180 MHz band be designated for base transmissions as well.

[^99]: *See* 47 C.F.R. § 101.69 (Transition of the 1850--1990 MHz,
    2110--2150 MHz, and 2160--2200 MHz bands from the FS to PCS and
    emerging technologies).

[^100]: *See* 47 C.F.R. § 101.79 (Sunset provisions for licensees in the
    1850--1990 MHz, 2110--2150 MHz, and 2160--2200 MHz bands).

[^101]: *Id.*

[^102]: See 47 C.F.R. § 27.1131. *See* *also AWS-1 Service Rules Report
    and Order*, 18 FCC Rcd at 25206 ¶ 114. The Commission stated that
    some fixed point-to-point microwave systems will continue to operate
    in the 2110-2155 MHz band after AWS licensing begins. *Id.* at 25205
    ¶ 112.

[^103]: Section 24.237(a) of our rules specifies that the
    Telecommunications Industry Association (TIA) Technical Services
    Bulletin (TSB) 10-F be used as the guideline to determine when
    co-channel and adjacent channel fixed microwave facilities must be
    coordinated. 47 C.F.R. § 24.237(a).

[^104]: *See AWS-2 Service Rules NPRM*, 19 FCC Rcd at 19303 ¶ 104.

[^105]: In the *AWS Allocation Ninth Report and Order*, FCC 06-45, the
    Commission adopted relocation and cost sharing procedures for FS
    licensees in the 2160-2180 MHz band.

[^106]: *See supra* note Error: Reference source not found.

[^107]: Commenters, in responding to this question, should indicate what
    possible, special measures might be needed to protect FS stations if
    we permit AWS-3 stations to operate at power levels up to 50 kW ERP
    under the provisions of Section 27.55(b).

[^108]: The Multipoint Distribution Service (MDS) was renamed the
    Broadband Radio Service (BRS) in the *BRS/EBS Report and Order.*
    *See* Amendment of Parts 1, 21, 73, 74 and 101 of the Commission's
    Rules to Facilitate the Provision of Fixed and Mobile Broadband
    Access, Educational and Other Advanced Services in the 2150-2162 and
    2500-2690 MHz Bands; Part 1 of the Commission\'s Rules - Further
    Competitive Bidding Procedures; Amendment of Parts 21 and 74 to
    Enable Multipoint Distribution Service and the Instructional
    Television Fixed Service Amendment of Parts 21 and 74 to Engage in
    Fixed Two-Way Transmissions; Amendment of Parts 21 and 74 of the
    Commission\'s Rules With Regard to Licensing in the Multipoint
    Distribution Service and in the Instructional Television Fixed
    Service for the Gulf of Mexico; WT Docket Nos. 03-66, 03-67, 02-68,
    MM Docket No. 97-217, Report and Order and Further Notice of
    Proposed Rulemaking, 19 FCC Rcd 14165, 14177-14180, ¶¶ 23-29 (2004)
    (*BRS/EBS Report and Order*). BRS Channels 1 and 2/2A operations are
    located in the 2150 MHz to 2160/62 MHz band which includes both the
    2150-2155 MHz portion of the AWS-1 band and the 2155-2160/62 MHz
    portion of the AWS-3 band. In 1974, BRS Channels 1 and 2A were
    allotted the 2150-2160 MHz band and were operated with corresponding
    channels in the 2500-2690 MHz band. Amendment of Parts 1, 2, 21, and
    43 of the Commission's Rules and Regulations to Provide for
    Licensing and Regulation of Common Carrier Radio Stations in the
    Multipoint Distribution Service, Docket No. 19493, *Report and
    Order*, 45 FCC 2d 616 (1974), *recon. denied*, 57 FCC 2d 301 (1975)
    (*1974 R&O)*. In 50 of the largest metropolitan areas, the
    Commission allotted an extra 2 megahertz for BRS Channels 1 and 2 to
    create two 6-megahertz channels at 2150-2156 MHz and 2156-2162 MHz
    respectively. Amendment of Part 21.703(g), and (h) of the
    Commission's Rules, *Memorandum Opinion and Order*, 47 FCC 2d 957
    (1970). In the rest of the country, only 10 megahertz of spectrum
    was allotted to BRS, namely Channel 1 (2150-2156 MHz) and Channel 2A
    (2156-2160 MHz). *Id.*

[^109]: *See AWS Ninth R&O*, FCC 06-45, at ¶¶ 46-54, App. A (sections
    27.1132, 27.1255). Wireless Communications Association International
    (WCAI) filed a petition for reconsideration in WT Docket 02-353
    seeking reconsideration of the criteria AWS licensees must employ in
    protecting incumbent Broadband Radio Service (BRS) operations in the
    2150-2160/62 MHz band. In light of the rules adopted in the *AWS
    Ninth R&O*, the Commission dismissed WCAI's petition as moot. *See*
    *AWS Ninth R&O*, FCC 06-45, at ¶¶ 126-28.

[^110]: *Id.* at ¶¶ 51, 52.

[^111]: *Id.* at ¶¶ 53, 54.

[^112]: See 47 C.F.R. § 27.1253(a) (BRS licensees will maintain primary
    status in the 2150-2160/62 MHz band unless and until an AWS licensee
    requires use of the spectrum but AWS licensees are not required to
    pay relocation costs after fifteen years from the date that the
    first AWS license is issued in the band).

[^113]: *See AWS Ninth R&O*, generally.

[^114]: *See infra* para. 95.

[^115]: The Commission has previously established procedures for
    clearing spectrum designated for unlicensed use. In 1995 the
    Commission designated UTAM, Inc., as the coordinator for clearing
    fixed point-to-point microwave links from the 1910-1930 MHz band
    which was designated for use by unlicensed personal communications
    service (UPCS) devices. *See Amendment of the Commission's Rules to
    Establish New Personal Communications Services*, General Docket No.
    90-314, 10 FCC Rcd 7955 (1995); *see also* Part 15, Subpart D of the
    Commission's Rules, 47 C.F.R. § 15.301 *et seq*. UTAM assumed
    responsibility for clearing the spectrum and was reimbursed for its
    efforts by manufacturers of devices designed to operate in the band.
    When the Commission reallocated some of the UPCS band for AWS use in
    2004, it established procedures whereby UTAM would be reimbursed by
    AWS licensees on a *pro rata* basis for the expense it incurred in
    clearing the reallocated spectrum. *See* Amendment of Part 2 of the
    Commission's Rules to Allocate Spectrum Below 3 GHz for Mobile and
    Fixed Services to Support the Introduction of New Advanced Wireless
    Services, including Third Generation Wireless Systems, ET Docket No.
    00-258, *Sixth Report and Order, Third Memorandum Opinion and Order,
    and Fifth Memorandum Opinion and Order* 19 FCC Rcd 20720 (2004).

[^116]: If we authorize a single licensee in this band, it will not be
    necessary to adopt co-channel interference protection criteria. Our
    co-channel protection rules would, however, apply to any partitioned
    portions of a nationwide license. See 47 C.F.R. § 27.55.

[^117]: *See, e.g., AWS-1 Service Rules Report and Order*, 18 FCC Rcd at
    25197-8 ¶¶ 89-90.

[^118]: With this method, a licensee would be required to limit the
    field strength of its transmissions to some prescribed level at its
    geographic border.

[^119]: Under this approach, licensees operating on the same spectrum in
    adjacent areas would be required to coordinate the location and
    technical parameters of their stations.

[^120]: *See, e.g*., 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, *First Report and Order*, 15 FCC Rcd. 476,
    514-515 ¶¶ 94-97 (2000), *modified by errata*, 15 FCC Rcd. 8634
    (2000), 15 FCC Rcd. 25495 (2000).

[^121]: We note that a 40 dB V/m field strength limit is used in the 700
    MHz services, and a 47 dB V/m field strength limit is used in the
    Broadband PCS, AWS, and WCS services. See 47 C.F.R. §§ 24.236 and
    27.55.

[^122]: In those circumstances, base and mobile stations operated in
    separate frequency bands.

[^123]: In this instance, we are concerned about mobiles communicating
    with base stations in their own region, even though the mobiles are
    physically located outside their region.

[^124]: To avoid causing interference to co-channel base and mobile
    receivers in adjacent areas, it could also be necessary for adjacent
    networks to be synchronized to a common timing standard and to
    employ the same channel asymmetry. *See* *supra* note Error:
    Reference source not found.

[^125]: *See AWS-1 Service Rules Report and Order*, 18 FCC Rcd at 25202
    ¶ 103.

[^126]: As noted above, we recently dismissed all pending applications
    for operation in this band, determining that the public interest
    would best be served by initiating this rulemaking process to seek
    comment on the appropriate service rules and licensing mechanisms
    for the AWS-3 band. \[cite to AWS-3 Order\]

[^127]: Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat. 251
    (1997) (BBA-97); 47 U.S.C. § 303(y).

[^128]: *See* Principles for Reallocation of Spectrum to Encourage the
    Development of Telecommunications Technologies for the New
    Millennium, *Spectrum Policy Statement*, 14 FCC Rcd 19868, 19870 ¶ 9
    (1999).

[^129]: In paragraphs 49-81 and 145-147, we seek comment on appropriate
    technical rules for use of this spectrum.

[^130]: *\[See generally AWS-3 Petitions and Applications Order*.\]

[^131]: *See, e.g.,* M2Z Application at App. 2 at 2-4; Commnet
    Application at Exhibit 5; MEC Application at Exhibit 1 at 6
    (offering to provide data rates of 384 kbps downstream and 128 kbps
    upstream); Open Range Application at Annex D (offering to provide
    data rates of 1.5Mbps downstream and 512 kbps upstream)

[^132]: *See, e.g.,* M2Z Application, App. 2; NetfreeUS Application at 5
    (offering service to the public free of service charges); Open Range
    Application at 4-5 (offering service to schools and medical
    facilities free of service charges); Commnet Application at Exhibit
    2 at 1 (offering basic service priced at \$11.95 per month).

[^133]: *See, e.g.,* M2Z Application, App. 2; Commnet Application at
    Exhibit 2 at 3.

[^134]: *See* *id*., App. 2 at 2-4.

[^135]: *See, e.g.,* M2Z Application, Appendix 2 at 2; NetfreeUS
    Application at 12; Commnet Application at Exhibit 2; MEC Application
    at Exhibit 1 at 6.

[^136]: We seek comment on M2Z's proposed license-condition for
    "\[c\]onstruction requirements; \[c\]riteria for comparative renewal
    proceedings" in sections 8 and 9, below.

[^137]: *See* Development of Nationwide Broadband Data to Evaluate
    Reasonable and Timely Deployment of Advanced Services to All
    Americans, Improvement of Wireless Broadband Subscribership Data,
    and Development of Data on Interconnected Voice over Internet
    Protocol (VoIP) Subscribership, *Notice of Proposed Rulemaking*, 22
    FCC Rcd 7760, 7769-70 (2007) (asking, *inter alia,* whether to
    modify the broadband service speed information collected by the
    Commission to reflect the increased transmission speeds resulting
    from technological developments).

[^138]: M2Z Application, Appendix 2 at 4.

[^139]: M2Z Application, Appendix 2 at 4.

[^140]: *See* NetfreeUS Application at 13-15.

[^141]: *See* Public Interest Spectrum Coalition (PISC) August 28, 2007
    *Ex Parte* at 8-9 (incorporating by reference its previous comments
    and proposals for wholesale filed in WT Docket No. 06-150). *See
    also* Google August 28, 2007 *Ex Parte* at 1 n.4.

[^142]: *See* PISC August 28, 2007 *Ex Parte* at 2, 10; *700 MHz Second
    Report and Order* at ¶¶ 189-230. *See also* Google August 28, 2007
    *Ex Parte* at 2 (stating that an NPRM should consider the
    desirability of service rules that foster competition through \"open
    platforms\").

[^143]: M2Z Application, App. 2 at 4-5.

[^144]: *See, e.g.,* M2Z Application, App. 2; Commnet Application at
    Exhibit 2, Page 3.

[^145]: *See* M2Z Application at Appendix 3 ("M2Z's Commitment to
    Protect Minors From Indecent Material on M2Z's Network").

[^146]: *See* PISC August 28, 2007 *Ex Parte* at 6, *citing* U.S. Const.
    amend. I, 47 U.S.C. § 326, *Sable Communications of California, Inc.
    v. FCC*, 492 U.S. 115 (1990) (stating that the U.S. Supreme Court
    has held that neither Congress nor the Commission may censor speech
    that is merely indecent made via common carrier to protect minors,
    despite the ubiquity of telephones). According to PISC, the
    Commission may not permit -- and cannot require -- mandatory
    filtering for indecent content. *Id*. at 10.

[^147]: *See, e.g.,* M2Z Application at Appendix 2 at 4; NetfreeUS
    Application at 6, 12. *See also* NetfreeUS Application at 18
    (offering to "equip a special override software code to all first
    responders that would quickly and simply clear channel traffic in
    times of emergency.")

[^148]: *See 700 MHz Second Report and Order* at ¶¶ 386-553; 47 C.F.R.
    Part 27, Subpart N (§§ 27.1301-27.1340).

[^149]: Of course, Part 27 licensees must also comply with other
    Commission rules of general applicability. *See* 47 C.F.R. § 27.3.

[^150]: *See* Amendment of the Commission's Rules to Establish Part 27,
    the Wireless Communications Service (WCS), GN Docket No. 96-228,
    *Report and Order*, 12 FCC Rcd 10785 (1997).

[^151]: *See AWS-1 Service Rules Report and Order*, *supra* note Error:
    Reference source not found.

[^152]: Likewise, we have proposed to license the AWS spectrum at
    1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz, and 2175-2180 MHz under
    Part 27. *See AWS-2 Service Rules NPRM*, *supra* note Error:
    Reference source not found.

[^153]: *See AWS-1 Service Rules Report and Order*, 18 FCC Rcd 25169-70
    ¶¶ 17-21.

[^154]: For example, a multi-band handset or base station would need to
    be certified under our equipment authorization procedures under both
    Parts 24 and 27. This may require, for example, separate radio
    frequency (RF) safety tests for the frequency bands under each rule
    part.

[^155]: 47 U.S.C. § 309(j)(1), (2).

[^156]: *See* Implementation of Sections 309(j) and 3376 of the
    Communications Act of 1934 As Amended, WT Docket No. 99-87, *Report
    and Order and Further Notice of Proposed Rule Making*, 15 FCC Rcd
    22709 (2000) (*BBA Report and Order*).

[^157]: *See, e.g.*, M2Z Application at 34-43 (arguing that the
    Commission has legal authority to grant its application for license
    without conducting an auction based on public interest
    considerations, including the rapid achievement of universally
    available broadband in the U.S.); NetfreeUS Application at 23-27
    (arguing that the Commission should use regulatory tools other than
    competitive bidding, including (1) establishing a cut-off date for
    acceptance of applications; (2) announcing within 10 days of the
    cut-off date applicants who have satisfied threshold eligibility
    requirements and setting period for correction of defective
    applications; (3) establishing a deadline by which applicants may
    propose settlements to avoid mutual exclusivity determinations; and
    (4) acting on applications based on responses submitted during
    settlement window, or proceeding to auction or assignment of
    spectrum by other means); NextWave Application at 7-8 (arguing that
    Commission has wide latitude under Section 309(j)(6)(E) of the Act
    to adopt licensing schemes other than competitive bidding to avoid
    mutual exclusivity, and that granting NextWave's application would
    establish parameters under which it, M2Z and other users could
    operate in the 2.1 GHz band on a shared basis). We recently
    dismissed all pending applications for operation in this band,
    determining that the public interest would best be served by
    initiating this rulemaking process to seek comment on the
    appropriate service rules and licensing mechanisms for the AWS-3
    band. *See* *AWS-3 Applications and Forbearance Petitions Order*,
    *supra* note Error: Reference source not found.

[^158]: *See* 47 U.S.C. § 302, 47 C.F.R. Part 15.

[^159]: *See* M2Z Application at 26 and Appendix 2 at 4 (proposing to
    pay to the U.S. Treasury a "usage fee" of 5% of the gross revenues
    derived from subscription "Premium Services" on an annual basis, to
    the extent such services are made available); NetfreeUS Application
    at 23 and Exhibit 2 at 4 (proposing (1) to require its local leasing
    partners to pay a nominal fee to cover NetfreeUS's transaction
    costs, and (2) to pay the U.S. Treasury a spectrum fee of 5% of the
    gross revenues derived from the Wireless Public Broadband service on
    an annual basis). *See* *also* PISC August 28, 2007 *Ex Parte* at 3,
    11-13(stating that the Commission should consider the "enormous
    value in opening the band on an unlicensed basis or on a
    non-exclusive licensed basis similar to the rules adopted in the
    3650-3700 MHz band").; Google August 28, 2007 *Ex Parte* at 2.

[^160]: *Id.*

[^161]: *See* PISC August 28, 2007 *Ex Parte* at 7 (stating, as compared
    to the current auction approach, that requiring a licensee to pay a
    regular return of 5% of gross revenue from its premium tier would
    facilitate participation by small businesses and encourage business
    models that promote slow and steady growth rather than maximizing
    immediate cash flow to pay down auction debt).

[^162]: M2Z Application, Appendix 2 at 4.

[^163]: NetfreeUS Application, Exhibit 2 at 4.

[^164]: In the *LMDS Second Report and Order*, the Commission required
    applicants for fixed services to indicate if they planned to offer
    services as a common carrier, a non-common carrier, or both, and to
    notify the Commission of any changes in status without prior
    authorization. Rulemaking to Amend Parts 1, 2, 21, and 25 of the
    Commission's Rules to Redesignate the 27.5-29.5 GHz Frequency Band,
    to Reallocate the 29.5-30.0 GHz Frequency Band, to Establish Rules
    and Policies for Local Multipoint Distribution Service and for Fixed
    Satellite Services, CC Docket No. 92-297, *Second Report and Order,
    Order on Reconsideration, and Fifth Notice of Proposed Rulemaking*,
    12 FCC Rcd 12545, 12636-38 ¶¶ 205-208, 12644-45 ¶¶ 225-226, 12652-53
    ¶¶ 245-251 (1997) (*LMDS Second Report and Order*); *aff\'d*,
    *Melcher v. FCC*, 134 F.3d 1143 (D.C. Cir. 1998).

[^165]: *See, e.g.*, foreign ownership requirements, discussed *infra*
    paragraph 100.

[^166]: *See* 47 C.F.R. § 27.10.

[^167]: 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, 10846 ¶ 119, 10848 ¶ 122 (1997) (*Part 27
    Report and Order*).

[^168]: For instance, we note that to the extent a licensee provides a
    Commercial Mobile Radio Service, such service would be subject to
    the provisions of Part 20 of the Commission\'s rules, 47 C.F.R. Part
    20; *see also* *infra* note Error: Reference source not found.

[^169]: *See id*. at 10848 ¶ 121*; see also LMDS Second Report and
    Order*, 12 FCC Rcd at 12644 ¶ 223; 47 C.F.R. § 101.1013.

[^170]: *See* 47 U.S.C. § 153(44) ("A telecommunications carrier shall
    be treated as a common carrier under this Act . . ."); *see also* 47
    U.S.C. § 332(C)(1)(A) ("A person engaged in the provision of a
    service that is a commercial mobile service shall, insofar as such
    person is so engaged, be treated as a common carrier for purposes of
    this Act . . .").

[^171]: *See* *Part 27 Report and Order,* 12 FCC Rcd at 10848 ¶¶ 121-22.
    The Commission examined services in the *LMDS Second Report and
    Order* and explained that any video programming service would be
    treated as a non-common carrier service. *LMDS Second Report and
    Order,* 12 FCC Rcd at 12639-41 ¶¶ 213-15.

[^172]: *Part 27 Report and Order,* 12 FCC Rcd at 10848 ¶ 121.

[^173]: *See* 47 C.F.R. § 27.10(d). *See also* 47 C.F.R. § 27.66.

[^174]: 47 U.S.C. § 310(b); *see infra* paragraph 100.

[^175]: *See* 47 C.F.R. § 27.66.

[^176]: Appropriate Regulatory Treatment for Broadband Access to the
    Internet Over Wireless Networks, WT Docket No. 07-53, *Declaratory
    Ruling*, FCC 07-30 (rel. March 23, 2007)

[^177]: 47 C.F.R. § 27.12. (Except as provided in § 27.604, any entity
    other than those precluded by § 310 of the Communications Act is
    eligible to hold a license under Part 27.)

[^178]: 47 U.S.C. § 310(a), (b).

[^179]: *See* 47 C.F.R. § 20.6.

[^180]: *See* 2000 Biennial Regulatory Review: Spectrum Aggregation
    Limits for Commercial Mobile Radio Services, WT Docket No. 01-14,
    *Report and Order*, 16 FCC Rcd 22668 (2001) (*Spectrum Cap Order*),
    *recon. pending*.

[^181]: *Spectrum Cap Order*, 16 FCC Rcd at 22679 ¶ 26 n.71 (citing
    Implementation of Sections 3(n) and 332 of the Communications
    Act---Regulatory Treatment of Mobile Services, GN Docket No. 93-252,
    *Third Report and Order*, 9 FCC Rcd 7988, 8105 ¶ 251 (1993)).

[^182]: "\[I\]n light of the growth of both competition and consumer
    demand in CMRS markets, we conclude that case-by-case review,
    accompanied by enforcement of sanctions in cases of misconduct, is
    now preferable to the spectrum cap rule because it gives the
    Commission flexibility to reach the appropriate decision in each
    case, on the basis of the particular circumstances of that case."
    *Spectrum Cap Order*, 16 FCC Rcd at 22693-94 ¶ 50.

[^183]: *Id.* at 22696 ¶ 54.

[^184]: *See, e.g.,* Allocations and Service Rules for the 71-76 GHz,
    81-86 GHz and 92-95 GHz Bands, *Report and Order,* 18 FCC Rcd 23318,
    23346-47 ¶ 70 (2003); Amendment of Parts 2 and 25 of the
    Commission\'s Rules to Permit Operation of NGSO FSS Systems
    Co-Frequency with GSO and Terrestrial Systems in the Ku-Band
    Frequency Range, Amendment of the Commission\'s Rules to Authorize
    Subsidiary Terrestrial Use of the 12.2-12.7 GHz Band by Direct
    Broadcast Satellite Licensees and Their Affiliates, and Applications
    of Broadwave USA, PDC Broadband Corporation, and Satellite
    Receivers, Ltd. to Provide A Fixed Service in the 12.2-12.7 GHz
    Band, *Memorandum Opinion and Order and Second Report and Order*, 17
    FCC Rcd 9614, 9677-82 ¶¶ 159-70 (2002); Amendment of Parts 1, 2, 87
    and 101 of the Commission\'s Rules To License Fixed Services at 24
    GHz, *Report and Order,* 15 FCC Rcd 16934, 16948-49 ¶¶ 30-32 (2000);
    Amendment of the Commission\'s Rules Regarding the 37.0-38.6 GHz and
    38.6-40.0 GHz Bands, Implementation of Section 309(j) of the
    Communications Act -- Competitive Bidding, 37.0-38.6 GHz and
    38.6-40.0 GHz, *Report and Order and Second Notice of Proposed Rule
    Making,* 12 FCC Rcd 18600, 18619-20 ¶¶ 32-35 (1997); *cf.* Auction
    of Direct Broadcast Satellite Licenses, 19 FCC Rcd 23849, 23856,
    23869-71 (2004) (making DBS incumbents ineligible for two DBS
    licenses that afford a last opportunity for new entry in the DBS
    market).

[^185]: 47 U.S.C. § 309(j)(3)(A), (B) & (D).

[^186]: The only statutory limit on license terms is eight years for
    licenses in the broadcast services. *See* 47 U.S.C. § 307(c)(1);
    *see also* 47 C.F.R. § 73.1020(a). The Table of Allocations does not
    permit broadcast use of the 2155-2175 MHz band.

[^187]: *E.g.,* 47 C.F.R. §§ 24.15, 27.13(a).

[^188]: *See* 47 U.S.C. § 151 *et seq.;* 47 C.F.R. § 22.940(a)(1)(i)
    (cellular), § 24.16(a) (PCS), § 27.14 (WCS and 700 MHz).

[^189]: *See, e.g.,* 47 C.F.R. §§ 22.940(a)(1)(i), 24.16(a), 27.14(a).

[^190]: We note that in the *AWS-1 Service Rules Report and Order*, we
    established an initial license term in the 1710-1755 MHz and
    2110-2155 MHz bands of 15 years and subsequent renewal terms of 10
    years given the relocation and band clearance issues that were
    associated with those bands. *AWS-1 Service Rules Report and Order*,
    18 FCC Rcd at 25190 ¶ 70. We also note that M2Z, in its application
    for an exclusive, nationwide license, proposes an initial license
    term of 15 years for the AWS-3 band. *See* M2Z Application at 11.

[^191]: "Partitioning" is the assignment of geographic portions of a
    license along geopolitical or other boundaries. "Disaggregation" is
    the assignment of discrete portions of "blocks" of spectrum licensed
    to a geographic licensee or qualifying entity. Disaggregation allows
    for multiple transmitters in the same geographic area operated by
    different companies on adjacent frequencies (thus increasing the
    possibility of harmful interference). Paragraphs 127-129, *infra*,
    discuss partitioning and disaggregation in further detail.

[^192]: *See* Amendment of Parts 21 and 74 of the Commission's Rules
    With Regard to Filing Procedures in the Multipoint Distribution
    Service and in the Instructional Television Fixed Service, MM Docket
    No. 94-131, *Report and Order,* 10 FCC Rcd 9589, 9614 ¶ 46 (1995).

[^193]: *See* Geographic Partitioning and Spectrum Disaggregation by
    Commercial Mobile Radio Services Licensees and Implementation of
    Section 257 of the Communications Act---Elimination of Market
    Barriers, WT Docket No. 96-1148, *Report and Order and Further
    Notice of Proposed Rulemaking,* 11 FCC Rcd 21831, 21870 ¶¶ 76-77
    (1996).

[^194]: *See* *Upper 700 MHz First Report and Order*, 15 FCC Rcd at
    506-08 ¶¶ 73-78; Reallocation and Service Rules for 698-746 MHz
    Spectrum Band, *Report and Order*, 17 FCC Rcd 1022, 1079-81 (2002).

[^195]: *AWS-1 Service Rules Report and Order*, 18 FCC Rcd at 25193-95
    ¶¶ 80-83.

[^196]: *See AWS-1 Service Rules Report and Order*, 18 FCC Rcd at
    25190-91 ¶ 71.

[^197]: *See* Service Rules for the 698-746, 747-762 and 777-792 MHz
    Bands, WT Docket No. 06-150, Revision of the Commission's Rules to
    Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC
    Docket No. 94-102, Section 68.4(a) of the Commission's Rules
    Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309,
    Biennial Regulatory Review -- Amendment of Parts 1, 22, 24, 27, and
    90 to Streamline and Harmonize Various Rules Affecting Wireless
    Radio Services, WT Docket 03-264, Former Nextel Communications, Inc.
    Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the
    Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide,
    Broadband, Interoperable Public Safety Network in the 700 MHz Band,
    PS Docket No. 06-229, Development of Operational, Technical and
    Spectrum Requirements for Meeting Federal, State and Local Public
    Safety Communications Requirements Through the Year 2010, WT Docket
    No. 96-86, *Report and Order and Further Notice of Proposed
    Rulemaking*, 22 FCC Rcd 8064, 8092-94 (2007) (*700 MHz First Report
    and Order*).

[^198]: *700 MHz First Report and Order*, 22 FCC Rcd at 8093-94.

[^199]: *Id*. at 8094 ¶ 75.

[^200]: These criteria for renewal would apply to 2155-2175 MHz
    authorizations that have been assigned, transferred, partitioned or
    disaggregated during their license terms.

[^201]: *See* 47 C.F.R. § 27.14.

[^202]: For example, if the Commission dismisses or denies a renewal
    application, the spectrum could automatically revert to either the
    Commission (in the case of geographic-area licenses) to re-license
    using competitive bidding or to the geographic-overlay licensee (in
    the case of site-specific licenses subject to reversionary rights
    for geographic-overlay licensees) as part of its licensed service
    area. Moreover, the petitioner could be eligible to participate in
    any auction of the non-renewed license.

[^203]: 47 C.F.R. § 27.14(a). *AWS-1 Service Rules Report and Order*, 18
    FCC Rcd at 25192 ¶ 75.

[^204]: *AWS-1 Service Rules Report and Order*, 18 FCC Rcd at 25192 ¶
    77. In the *AWS-2 Service Rules NPRM*, the Commission sought comment
    on whether licensees in the 1915-1920 MHz, 1995-2000 MHz, 2020-2025
    MHz, and 2175-2180 MHz bands should be subject to any performance
    requirements in addition to a substantial service requirement at
    license renewal. *AWS-2 Service Rules NPRM*, 19 FCC Rcd at 19293-94
    ¶ 74.

[^205]: *See supra* paragraph 111.

[^206]: 47 C.F.R. § 27.14(a).

[^207]: *See, e.g., supra* paragraph 28.

[^208]: For examples of safe harbors, s*ee, e.g.,* Amendment of Parts 1,
    21, 73, 74 and 101 of the Commission's Rules to Facilitate the
    Provision of Fixed and Mobile Broadband Access, Educational and
    Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands,
    *Third Memorandum Opinion and Order*, WT Docket No. 03-66, FCC 06-46
    at ¶ 286 (*BRS/EBS* *Third Memorandum Opinion and Order*); *Upper
    700 MHz First Report and Order*, 15 FCC Rcd at 505 ¶ 70;
    Reallocation and Service Rules for the 698-746 MHz Spectrum Band
    (Television Channels 52-59), GN Docket No. 01-74, *Report and
    Order*, 17 FCC Rcd 1022, 1079 ¶ 151 (2002) *(Lower 700 MHz Report
    and Order)*.

[^209]: The order defines "rural areas" as "those counties (or
    equivalent) with a population density of 100 persons per square mile
    or less, based upon the most recently available Census data." *Rural
    Report and Order*, 19 FCC Rcd at 19087 ¶ 11.

[^210]: Facilitating the Provision of Spectrum-Based Services to Rural
    Areas and promoting Opportunities for Rural Telephone Companies to
    Provide Spectrum-Based Services, *Report and Order and Further
    Notice of Proposed Rule Making*, 19 FCC Rcd 19078, 19123 ¶ 79
    (*Rural R&O and FNPRM*). We note that the Commission, in adopting
    substantial service requirements and safe harbors for the Broadband
    Radio Service (BRS) and the Educational Broadband Service (EBS),
    stated that "the traditional safe harbors associated with other Part
    27 services are too lenient given the particular circumstances of
    BRS and EBS." *BRS/EBS* *Third Memorandum Opinion and Order*, 21 FCC
    Rcd 5606, 5722-26 ¶¶ 281-290 (quoting para. 286). In addition, the
    Commission adopted modified versions of the safe harbors which had
    been adopted in the *Rural R&O and FNPRM*. *Id.* at 5728 ¶ 294.

[^211]: Section 27.3, entitled "Other applicable rule parts," lists
    various of the Commission's other, non-Part 27 rule parts that are
    applicable to Wireless Communications Services. *See* 47 C.F.R. §
    27.3.

[^212]: *Id*. § 27.15(d).

[^213]: Under the current rule in Section 27.15(d), licensees in some
    cases are able to decide that one party has the performance
    obligation regardless of the amount of spectrum or area held by that
    party. *Id*.

[^214]: *AWS-1 Service Rules Report and Order*, 18 FCC Rcd at 25192 ¶
    75.

[^215]: Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT
    Docket No. 06-150, *Second Report and Order*, FCC 07-132 at Section
    III.A.2(a)(i) (rel. August 10, 2007) (*700 MHz Second Report and
    Order*).

[^216]: *See* 47 C.F.R. § 24.203.

[^217]: *See* 47 C.F.R. § 24.103. Nationwide narrowband PCS licensees
    that chose to meet the geographic requirement had to construct
    sufficient to serve a composite area of 750,000 square kilometers,
    regional licensees that chose this option had to construct
    sufficient to serve a composite area of 150,000 square kilometers,
    and Major Trading Areas (MTA) licensees in the service that chose
    this option had to construct sufficient to serve a composite area of
    75,000 square kilometers.

[^218]: *See* Commnet Application, Exhibit 2 at 2.

[^219]: *See* NetfreeUS Application at 12.

[^220]: *See* TowerStream Application at 4.

[^221]: *See* M2Z Application at App. 2 (measuring population by
    counties).

[^222]: *See, e.g.,* 47 C.F.R. § 27.14(e)(1) (Broadband Radio Service
    (BRS) construction requirements and safe harbors); Service Rules for
    the 698-746, 747-762 and 777-792 MHz Bands, WT Docket No. 06-150,
    Revision of the Commission's Rules to Ensure Compatibility with
    Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102,
    Section 68.4(a) of the Commission's Rules Governing Hearing
    Aid-Compatible Telephones, WT Docket No. 01-309, Biennial Regulatory
    Review -- Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and
    Harmonize Various Rules Affecting Wireless Radio Services, WT Docket
    03-264, Former Nextel Communications, Inc. Upper 700 MHz Guard Band
    Licenses and Revisions to Part 27 of the Commission's Rules, WT
    Docket No. 06-169, Implementing a Nationwide, Broadband,
    Interoperable Public Safety Network in the 700 MHz Band, PS Docket
    No. 06-229, Development of Operational, Technical and Spectrum
    Requirements for Meeting Federal, State and Local Public Safety
    Communications Requirements Through the Year 2010, WT Docket No.
    96-86, *Second Report and Order*, FCC 07-132 at paras. 153-177
    (2007) (*700 MHz Second Report and Order*) (adopting performance
    requirements applicable to certain 700 MHz Band licenses).

[^223]: *Rural R&O and FNPRM*, 19 FCC Rcd at 19124-25 ¶ 82. In the
    *Rural NPRM*, the Commission had sought comment on whether it should
    adopt geographic-based benchmarks for certain services that are
    licensed on a geographic area basis and that do not have such a
    requirement. Facilitating the Provision of Spectrum-Based Services
    to Rural Areas and Promoting Opportunities for Rural Telephone
    Companies to Provide Spectrum-Based Services, WT Docket No. 02-381,
    *Notice of Proposed Rulemaking*, 18 FCC Rcd 20802, 20824-25 ¶¶ 41-42
    (2003) (*Rural NPRM*).

[^224]: *See 700 MHz Second Report and Order* at paras. 153-177.

[^225]: *See generally Rural R&O and FNPRM*, 19 FCC Rcd at 19156-59 ¶¶
    151-156.

[^226]: 47 C.F.R. §§ 22.947, 22.949.

[^227]: *See 700 MHz Second Report and Order* at ¶¶ 153-177.

[^228]: 47 C.F.R. § 1.946(c).

[^229]: *See supra* paragraphs 39-46, in which we seek comment on the
    possibility of using an auction format to select among band plan
    options and also seek comment on the compatibility of such an
    auction with an auction that would establish performance
    requirements as suggested here.

[^230]: *See* 47 U.S.C. § 309(j)(4)(C).

[^231]: 47 C.F.R. § 27.15. These rules apply to licensees in the 700 MHz
    bands and the 2.3 GHz band. *See also* Reallocation of the 216-220
    MHz, 1390-1395 MHz, 1427-1429 MHz, 1429-1432 MHz, 1432-1435 MHz,
    1670-1675 MHz, and 2385-2390 MHz Government Transfer Bands, WT
    Docket No. 02-08, *Notice of Proposed Rule Making*, 17 FCC Rcd 2500,
    2535 ¶¶ 89-90 (2002).

[^232]: *See* *Part 27 Report and Order*, 12 FCC Rcd at 10836-39 ¶¶
    96-103.

[^233]: 47 C.F.R. § 27.15(b)(1).

[^234]: 47 C.F.R. § 27.15(c)(1)(2); *see also* 47 C.F.R. § 1.2111.

[^235]: Promoting Efficient Use of Spectrum Through Elimination of
    Barriers to the Development of Secondary Markets, *Report and Order
    and Further Notice of Proposed Rulemaking*, 18 FCC Rcd 20604 (2003)
    (*Secondary Markets Report and Order*), *Erratum*, 18 FCC Rcd 24817
    (2003).

[^236]: *Id*. at 20643-44 ¶ 84.

[^237]: *Id*. (Note 181 contains a complete listing of services that
    were included in the *Secondary Markets Report and Order*.)

[^238]: *Id.* at 19099-19100 ¶ 40.

[^239]: We note that some commenters in the rural proceeding, especially
    those representing rural interests, argued that existing secondary
    market mechanisms are insufficient to promote access to spectrum.
    *See, e.g., Rural Further Notice*, 19 FCC Rcd at 19153-56 ¶¶ 147-50.

[^240]: We note that, in our proceeding adopting service rules to govern
    licenses in the 700 MHz band, we declined to adopt rules that would
    have required 700 MHz Commercial Services Band licensees to make
    "good faith" efforts to negotiate with potential spectrum lessees
    because such changes were unnecessary given the other measures
    adopted to promote access to spectrum in that band. *See 700 MHz
    First Report and Order,* 22 FCC Rcd 8064, 8086-87*.* In that
    proceeding, although a few commenters had proposed considering a
    licensee\'s secondary markets participation as part of its license
    renewal process, the Commission\'s spectrum leasing rules already
    provided a licensee with significant incentives to enter into
    spectrum leasing arrangements because licensees may rely on the
    activities of its spectrum lessee(s) for purposes of complying with
    the licensee\'s construction requirements. This factor, in addition
    to the adoption of a mix of geographic license area sizes, was
    determined to be sufficient to promote access to spectrum in the 700
    MHz band. *Id.* at 8087.

[^241]: *See infra* section 11.

[^242]: *See* 47 C.F.R. § 27.14(b).

[^243]: *See* NetfreeUS Application at 11.

[^244]: Section 1.2110(f)(3)(i) of the Commission's rules provide that a
    qualifying tribal land is any federally recognized Indian tribe's
    reservation, Pueblo, or Colony, including former reservations in
    Oklahoma, Alaskan Native regions established pursuant to the Alaskan
    Native Claims Settlement Act (85 Stat. 688), and Indian allotments,
    that has a wireline telephone subscription rate equal to or less
    than 85 percent, based on the most recently available U.S. Census
    Data. 47 C.F.R. § 1.2110(f)(3)(i) (2005).

[^245]: *See* 47 C.F.R. § 1.2110(f)(3). *See* Extending Wireless
    Telecommunications Services to Tribal Lands, WT Docket No. 99-266,
    *Report and Order and Further Notice of Proposed Rulemaking*, 15 FCC
    Rcd 11794 (2000) (*Tribal Lands Bidding Credit Report and Order*);
    Extending Wireless Telecommunications Services to Tribal Lands, WT
    Docket No. 99-266, *Second Report and Order and Second Further
    Notice of Proposed Rulemaking*, 18 FCC Rcd 4775 (2003) (*Tribal
    Lands Bidding Credit Second Report and Order*); Extending Wireless
    Telecommunications Services to Tribal Lands, WT Docket No. 99-266,
    *Third Report and Order*, 19 FCC Rcd 17652 (2004) (*Tribal Lands
    Bidding Credit Third Report and Order*).

[^246]: *See* 47 C.F.R. §1.2110(f).

[^247]: *Tribal Lands Bidding Credit Report and Order*, 15 FCC Rcd at
    11816 ¶ 64. In this order, the Commission stated: "\[W\]e do not
    favor creating small license areas comprised exclusively or
    primarily of tribal lands. We find that tribal lands should
    generally be included in a larger licensing area to enable licensees
    to use profits derived from serving lower cost areas to provide
    service to typically high cost, tribal areas." *Id.*

[^248]: *See* Statement of Policy on Establishing a
    Government-to-Government Relationship with Indian Tribes, Policy
    Statement, 16 FCC Rcd 4078 (2000) (Tribal Government Policy
    Statement). In furtherance of this commitment, we recently released
    an order providing incentives for wireless telecommunications
    carriers to serve individuals living on tribal lands. *See*
    Extending Wireless Telecommunications Services to Tribal Lands,
    *Third Report and Order*, 19 FCC Rcd 17652 (2004). Specifically, the
    item raises the wireline telephone penetration rate at which tribal
    lands are eligible for a bidding credit from 70 percent or less, to
    85 percent or less, and increases the amount of the bidding credit
    available to carriers that pledge to deploy on and serve qualifying
    tribal lands.

[^249]: *See supra* paragraph 94.

[^250]: *See* 47 C.F.R. Part 1, Subpart F.

[^251]: 47 C.F.R. § 1.1307.

[^252]: 47 C.F.R. Part 20; *see also* 47 C.F.R. § 27.3(g).

[^253]: *S**ee, e.g.*, *700 MHz Second Report and Order* at section
    III.C.4.c.iii.

[^254]: *See* Service Rules for Advanced Wireless Services in the 1.7
    GHz and 2.1 GHz Bands, WT Docket No. 02-353, *Notice of Proposed
    Rulemaking*, 17 FCC Rcd 24135, 24161 ¶ 68 (2002) ("*AWS-1 Service
    Rules NPRM*"); *see also* 47 C.F.R. §§ 1.1310, 2.1093.

[^255]: 47 C.F.R. § 1.1307(b). Similarly, sections 2.1091 and 2.1093
    require environmental evaluation of certain mobile and portable
    transmitters prior to equipment authorization or use. *See* 47
    C.F.R. §§ 2.1091, 2.1093. The Commission provides guidance on
    acceptable methods of evaluating compliance with exposure limits in
    Office of Engineering and Technology (OET) Bulletin No. 65. OET
    Bulletin No. 65 (Edition 97-01) was issued on August 25, 1997, and
    is available for downloading at the FCC Web Site:
    \<http://www.fcc.gov/oet/rfsafety\>. Copies of OET Bulletin No. 65
    also may be obtained by calling the FCC RF Safety Line at (202)
    418-2464. Other circumstances may also trigger an Environmental
    Assessment. *See generally* 47 C.F.R. § 1.1307(a).

[^256]: *See AWS-1 Service Rules Report and Order*, 18 FCC Rcd at 25213
    ¶ 133.

[^257]: *See* 47 C.F.R. § 1.1310.

[^258]: 47 C.F.R. §§ 1.1307(b), 2.1091, 2.1093.

[^259]: 47 C.F.R. §§ 1.1307(b), 27.52; *see also* 47 C.F.R. § 24.52
    (PCS). We note that with the pending NPRM in ET Docket No. 03-137,
    this standard could change. *See* Proposed Changes in the
    Commission's Rules Regarding Human Exposure to Radiofrequency
    Electromagnetic Fields, ET Docket No. 03-137, *Notice of Proposed
    Rulemaking*, 18 FCC Rcd 13187 (2003).

[^260]: *See supra* paragraph 92.

[^261]: *See, e.g.*, 47 C.F.R. §§ 27.50-27.66.

[^262]: The AWS-3 spectrum band is covered by a U.S.-Canada agreement on
    spectrum above 30 MHz, *see* "Above 30 MHz Arrangement" at
    <http://www.fcc.gov/ib/sand/agree/files/can-nb/above30.pdf>, but
    there is no equivalent U.S.-Mexico agreement at this time.

[^263]: *See supra* paragraph 95; 47 U.S.C. § 309(j); *BBA Report and
    Order,* 15 FCC Rcd 22709 (2000).

[^264]: *See* 47 C.F.R. §§ 1.2101-1.2114.

[^265]: *See, e.g.*, Amendment of Part 1 of the Commission's
    Rules---Competitive Bidding Procedures, WT Docket No. 97-82, Order,
    Memorandum Opinion and Order and Notice of Proposed Rule Making, 12
    FCC Rcd 5686 (1997); Third Report and Order and Second Further
    Notice of Proposed Rule Making, 13 FCC Rcd 374 (1997) (Part 1 Third
    Report and Order); Order on Reconsideration of the Third Report and
    Order, Fifth Report and Order, and Fourth Further Notice of Proposed
    Rule Making, 15 FCC Rcd 15293 (2000), aff'd in part and modified in
    part, Second Order on Reconsideration of the Third Report and Order,
    and Order on Reconsideration of the Fifth Report and Order, 18 FCC
    Rcd 10180 (2003); Seventh Report and Order, 16 FCC Rcd 17546 (2001);
    Eighth Report and Order, 17 FCC Rcd 2962 (2002); Second Order on
    Reconsideration of the Part 1 Fifth Report and Order, 20 FCC Rcd
    1942 (2005); Implementation of the Commercial Spectrum Enhancement
    Act and Modernization of the Commission's Competitive Bidding Rules
    and Procedures, WT Docket 05-211, Report and Order, 21 FCC Rcd 891
    (2006) (CSEA/Part 1 Report and Order), petitions for reconsideration
    pending; Second Report and Order and Second Further Notice of
    Proposed Rule Making, 21 FCC Rcd 4753 (2006) (CSEA/Part 1 Designated
    Entity Second Report and Order and Second FNPRM), petitions for
    reconsideration pending; Order on Reconsideration of the Second
    Report and Order, FCC 06-78 (rel. June 2, 2006) (DE Order on
    Reconsideration); Erratum and Notice of Office of Management and
    Budget Approval of Information Collections, DA 06-1280 (rel. June
    16, 2006); Memorandum Opinion and Order, DA 06-1281 (rel. June 16,
    2006). As discussed below, we seek comment on whether, in the event
    we adopt a nationwide licensing scheme, designated entity bidding
    credits would be inappropriate. If bidding credits are ultimately
    adopted, we will employ the Part 1 rules governing designated
    entities.

[^266]: *See, e.g.*, CSEA/Part 1 Designated Entity Second Report and
    Order and Second FNPRM, petitions for reconsideration pending.

[^267]: *See also* paragraphs 39-46 and 126 *supra* in which we seek
    comment on whether we should adopt a rule for purposes of offering
    AWS-3 licenses at auction that would provide us with auction format
    choices not presently available to the Commission under its Part 1
    rules.

[^268]: 47 U.S.C. § 309(j)(4)(D).

[^269]: 47 U.S.C. § 309(j)(3)(B).

[^270]: Implementation of Section 309(j) of the Communications
    Act---Competitive Bidding, PP Docket No. 93-253, *Second Memorandum
    Opinion and Order*, 9 FCC Rcd 7245, 7269 ¶ 145 (1994) (*Competitive
    Bidding Second Memorandum Opinion and Order*); 47 C.F.R. §
    1.2110(c)(1).

[^271]: *Part 1 Third Report and Order*, 13 FCC Rcd at 388 ¶ 18; 47
    C.F.R. § 1.2110 (c)(1).

[^272]: *See* Implementation of Section 309(j) of the Communications
    Act---Competitive Bidding, PP Docket No. 93-253, *Order on
    Reconsideration,* 15 FCC Rcd 17384, 17394 ¶ 21 (2000) (summarizing
    the bidding credits offered in broadband PCS C and F Block
    auctions); 47 C.F.R. § 24.720 (1994); *AWS-1 Report and Order,* 18
    FCC Rcd at 25221 ¶ 149; *AWS-2 Service Rules NPRM,* 19 FCC Rcd at ¶
    122 (2004). The Commission also adopted the broadband PCS standards
    for WCS in the 2.3 GHz band. *Part 27 Report and Order,* 12 FCC Rcd
    at 10879 ¶ 194.

[^273]: We are coordinating these proposed small business size standards
    with the U.S. Small Business Administration.

[^274]: In the *Part 1 Third Report and Order*, the Commission adopted a
    standard schedule of bidding credits, the levels of which were
    developed based on our auction experience. *Part 1 Third Report and
    Order*, 13 FCC Rcd at 403-04 ¶ 47; *see also* 47 C.F.R. §
    1.2110(f)(2).

[^275]: Revision of Rules and Policies for the Direct Broadcast
    Satellite Service, *Report and Order*, 11 FCC Rcd 9712 (1995) (*DBS
    Auction Order*); Establishment of Rules and Policies for the Digital
    Audio Radio Satellite Service in the 2310-2360 MHz Band, *Report and
    Order, Memorandum Opinion and Order and Further Notice of Proposed
    Rulemaking*, IB Docket No. 95-91, 12 FCC Rcd 5745 (1997) (*DARS
    Auction Order*); *cf. 700 MHz Second Report and Order* at ¶¶ 536-537
    (where the Commission decided to offer bidding credits in connection
    with a nationwide license based on the specific service rules
    applicable to that license)*.*

[^276]: *See* *DBS Auction Order* at ¶ 217; *DARS Auction Order* at ¶¶
    174-176.

[^277]: *See* Announcing the High Bidders in the Auction of Ten
    Nationwide Narrowband PCS Licenses, *Public Notice*, PNWL 94-4 (rel.
    August 2, 1994). In the nationwide narrowband PCS auction (Auction
    No. 1), bidding credits on ten nationwide licenses were offered to
    women- and minority-owned businesses. *See also* 1670-1675 MHz Band
    Auction Closes, Winning Bidder Announced, *Public Notice*, 18 FCC
    Rcd 9089 (2003). In the 1670-1675 MHz Band auction (Auction No. 46),
    the Commission offered a bidding credit on a nationwide license in
    the 1670-1675 MHz band to small businesses with average annual
    revenues not exceeding \$40 million and very small businesses with
    average annual revenues not exceeding \$15 million.

[^278]: *See* *700 MHz Second Report and Order* at ¶¶ 535-37.

[^279]: *See generally* 47 C.F.R. §§ 1.1202, 1.1203, 1.1206.

[^280]: *See* 47 C.F.R. §§ 1.415, 1.419.

[^281]: Electronic Filing of Documents in Rulemaking Proceedings,
    *Report and Order*, 13 FCC Rcd 11322 (1998).

[^282]: 5 U.S.C. § 603.

[^283]: Pub. L. 107-198, *see* 44 U.S.C. 3506(c)(4).

[^284]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601-- 612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^285]: *See* 5 U.S.C. § 603(a).

[^286]: *See id*.

[^287]: *See* NPRM, Section IV, *supra*. .

[^288]: *See* NPRM, note Error: Reference source not found, *supra*.

[^289]: *See* Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, including Third
    Generation Wireless Systems, ET Docket No. 00-258, *Eighth Report
    and Order and Fifth Notice of Proposed Rulemaking and Order*, FCC
    05-172, released Sept. 29, 2005 (*AWS Allocation Eighth Report and
    Order and* *Fifth NPRM*).

[^290]: *See* NPRM, Sections D and F, *supra*.

[^291]: *See* NPRM, para. 97, *supra*.

[^292]: *See* NPRM para. 95, *supra*.

[^293]: We are coordinating these proposed small business size standards
    with the U.S. Small Business Administration.

[^294]: 5 U.S.C. § 603(b)(3).

[^295]: 5 U.S.C. § 601(6).

[^296]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "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 term which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register." 5 U.S.C. § 601(3).

[^297]: Small Business Act, 15 U.S.C. § 632 (1996).

[^298]: See IRFA at para. 14, *supra*.

[^299]: 13 C.F.R. § 121.201, NAICS code 517211.

[^300]: 13 C.F.R. § 121.201, NAICS code 517212.

[^301]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 5, NAICS code 517211 (issued Nov. 2005).

[^302]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^303]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 5, NAICS code 517212 (issued Nov. 2005).

[^304]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^305]: *See* 5 U.S.C. § 603(c)(1)-(4).

[^306]: *See* IRFA para. 14, *supra*.

[^307]: *See, e.g.*, NPRM, paras. 86-91, *supra*.

[^308]: *See, e.g*., NPRM, paras. 150-155 (competitive bidding
    provisions for designated entities), *supra*.