Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | WT Docket No. 02 - 08        |
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| Reallocation of the 216-220 MHz, | ) | RM-9267                      |
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| 1390-1395 MHz, 1427-1429 MHz,    | * | RM-9692                      |
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| 1429-1432 MHz, 1432-1435 MHz,    | * | RM-9797                      |
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| 1670-1675 MHz, and 2385-2390 MHz | ) | RM-9854                      |
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| Government Transfer Bands        | * | RM-9882                      |
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+----------------------------------+---+------------------------------+

**NOTICE OF PROPOSED RULE MAKING**

**Adopted:** January 22, 2002 **Released:** February 6, 2002

**Comment Date:** 15 days after Federal Register publication

**Reply Comment Date:** 30 days after Federal Register publication

By the Commission: Commissioner Abernathy issuing a statement.

Table of Contents

Heading Paragraph \#

I. INTRODUCTION AND EXECUTIVE SUMMARY 1

II\. Background 11

III\. DISCUSSION 15

A. Licensing Plan 15

1\. Table of Allocations 22

2\. Geographic Wide-Area Licensing 29

3\. Spectrum Blocks 34

4\. Band Managers 36

5\. Treatment of Incumbents 43

6\. Assignment of Licenses 70

B. Application, Licensing and Processing Rules for New Services 77

1\. Regulatory Status 78

2\. Eligibility 81

3\. Foreign Ownership Restrictions 83

4\. License Term and Renewal Expectancy 86

5\. Partitioning and Disaggregation 89

6\. Individual Station Licenses 91

C. Operating Rules 94

1\. Performance Requirements 94

2\. Application of Title II Requirements to Common Carriers 96

D. Technical Rules 97

E. Coordination 115

1\. Incumbent Government Operations 115

2\. FAS Coordination of LPRS and WMTS 124

3\. FAS Coordination of Fixed and Mobile Sites 126

4\. Coordination with METSAT Station Located at Greenbelt, MD. 130

5\. Non-Government Incumbents 136

5\. Canadian and Mexican Coordination 139

F. Competitive Bidding Procedures 140

1\. Incorporation by Reference of the Part 1 Standardized Auction Rules
141

2\. Provisions for Designated Entities 142

IV\. Procedural matters 152

A. Initial Regulatory Flexibility Analysis 152

B. Paperwork Reduction Analysis 153

*C.* *Ex Parte* Presentations 155

D. Pleading Dates 156

E. Further Information 159

V. Ordering Clauses 160

Appendices Page

A.  Initial Regulatory Flexibility
    Analysis......................................................................
    57

B.  List of Incumbent Licensees in 1429.5-1432 MHz
    Band................................................ 64

C.  Proposed Definitions and
    Rules...........................................................................\...
    65

# INTRODUCTION AND EXECUTIVE SUMMARY

1.  In this Notice of Proposed Rulemaking (*Notice*), we propose new
    service rules for licensing a total of 27 megahertz of spectrum from
    the 216-220 MHz, 1390-1395 MHz, 1427-1429.5 MHz, 1429.5-1432 MHz,
    1432-1435 MHz, 1670-1675 MHz, and 2385-2390 MHz bands. This spectrum
    was transferred from Government to non-Government use pursuant to
    the provisions of the Omnibus Budget Reconciliation Act of 1993
    (OBRA-93)[^1] and the Balanced Budget Act of 1997 (BBA-97).[^2]

2.  The service rules proposed in this *Notice* include provisions for
    licensing, technical (and operating) rules, competitive bidding, and
    interference standards. We note that portions of this spectrum are
    currently available and utilized by existing non-government
    licensees.[^3] We solicit public comment on the flexibility that
    should be afforded new or incumbent licensees, and the technical and
    other service rules that should govern the range of existing and
    proposed services. We also anticipate authorizing new primary
    services in the paired 1392-1395 MHz and 1432-1435 MHz bands and the
    unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385-2390 MHz bands.

3.  We generally seek comment on the following issues under
    consideration for all of these bands:

-   whether to authorize new services under either Part 27 or Part 101
    of our Rules;

-   whether to license new services by geographic service areas;

-   whether to license band managers in these bands;

-   whether to provide for partitioning and disaggregation of licensed
    spectrum; and

-   whether to adopt technical rules in order to prevent in-band and
    out-of-band interference.

4.  We also address several issues relating to existing services
    currently operating in these bands. We seek comment on the following
    issues:

-   whether secondary telemetry in the 217-220 MHz and 1427-1429.5 MHz
    bands should be licensed on a site-by-site basis;

-   whether primary telemetry in the 1429.5-1432 MHz band should be
    licensed on a site-by-site basis;

-   whether to add technical specifications to Part 90 of our Rules for
    telemetry operations;[^4]

-   whether to apply the frequency coordination procedures of Section
    90.175 to authorization of future telemetry operations.

5.  Additionally, we propose service rules to augment the framework
    established in the *Reallocation Report and Order* that requires
    non-Federal Government users to coordinate with co-primary Federal
    Government incumbents. In this regard, we seek comment on the
    following issues:

-   blanket coordination for LPRS;

-   coordination of site-by-site and geographic area licensees with
    Federal Government incumbents;

-   coordination procedures for licensees operating in the 1670-1675 MHz
    band near the METSAT station located at Greenbelt, MD.

6.  With respect to non-Government incumbents who will remain in these
    bands, we seek comment on the following issues:

-   coordination procedures for licensees in the 2385-2390 MHz band
    operating near non-Government aeronautical flight test telemetry
    sites;

-   interim coordination procedures for terrestrial licenses along the
    Canadian and Mexican borders.

7.  In accordance with Section 309(j) of the Communication Act, if we
    adopt a licensing scheme under which mutually exclusive applications
    are accepted for filing, we must resolve such mutually exclusive
    applications by competitive bidding.[^5] We propose to conduct the
    auction of such licenses in conformity with the general competitive
    bidding rules set forth in Part 1, Subpart Q, of the Commission's
    Rules.[^6]

8.  Additionally, we seek comment on a petition for rulemaking filed on
    March 6, 2000, by Data Flow Systems, Inc., (Data Flow), requesting
    that the Commission amend Sections 90.35 and 90.259 of the
    Commission's Rules to allow the use of fixed telemetry in the
    216-220 MHz band.[^7] We also seek comment on a proposal filed by
    Securicor Wireless Holdings, Inc. (Securicor) in response to the
    *Reallocation Notice*.[^8] Securicor seeks to license "white-space"
    in the 216-220 MHz band similar to the paradigm established for land
    mobile use of the 220-222 MHz band. Lastly, we request comment on a
    proposal submitted by Warren Havens (Havens) in response to the
    *Reallocation Notice* that seeks the creation of a new \"Advanced
    Technologies 220 MHz\" Service in the 216-225 MHz band.[^9]

9.  In a companion proceeding in ET Docket 00-221, the Commission
    recently reallocated the spectrum that is the subject of this
    *Notice.*[^10] In response to that rulemaking, various parties
    recommended proposals on how best to utilize these bands to provide
    valuable services to the public.[^11] Because we now consider
    service rules regarding this spectrum, we hereby incorporate by
    reference the record previously developed in the proceeding leading
    to the *Reallocation Report and Order*.[^12]

10. The following chart summarizes the band plan consistent with the
    *Reallocation Report and Order* and the proposals in this *Notice*:

    **[Review of Band Plan]{.underline}**

    **216-220 MHz Band**

    216 MHz 217 MHz 218 MHz 219 MHz 220 MHz

+----------------+---+-----------------+-----------------+----------------+
| Low Power      |   | AMTS (Base)     | "218-219 MHz"   | AMTS (Mobile)  |
| Radio Service  |   |                 | Service         |                |
| (Primary)      |   | (Primary)       |                 | (Primary)      |
|                |   |                 | (Primary)       |                |
| (licensed by   |   | (geographic     |                 | (geographic    |
| rule)          |   | area licensing  | (geographic     | area licensing |
|                |   | proposed in PR  | area licensing) | proposed in PR |
|                |   | Docket No.      |                 | Docket No.     |
|                |   | 92-257)         |                 | 92-257)        |
|                |   |                 |                 |                |
|                |   |                 |                 | Amateur        |
|                |   |                 |                 |                |
|                |   |                 |                 | (Secondary)    |
+----------------+---+-----------------+-----------------+----------------+
| Telemetry      | T |                 |                 |                |
| Incumbents     | e |                 |                 |                |
| Grandfathered  | l |                 |                 |                |
|                | e |                 |                 |                |
| (Secondary)    | m |                 |                 |                |
|                | e |                 |                 |                |
| (site-by-site  | t |                 |                 |                |
| licensing)     | r |                 |                 |                |
|                | y |                 |                 |                |
|                |   |                 |                 |                |
|                | ( |                 |                 |                |
|                | S |                 |                 |                |
|                | e |                 |                 |                |
|                | c |                 |                 |                |
|                | o |                 |                 |                |
|                | n |                 |                 |                |
|                | d |                 |                 |                |
|                | a |                 |                 |                |
|                | r |                 |                 |                |
|                | y |                 |                 |                |
|                | ) |                 |                 |                |
|                |   |                 |                 |                |
|                | ( |                 |                 |                |
|                | s |                 |                 |                |
|                | i |                 |                 |                |
|                | t |                 |                 |                |
|                | e |                 |                 |                |
|                | - |                 |                 |                |
|                | b |                 |                 |                |
|                | y |                 |                 |                |
|                | - |                 |                 |                |
|                | s |                 |                 |                |
|                | i |                 |                 |                |
|                | t |                 |                 |                |
|                | e |                 |                 |                |
|                | l |                 |                 |                |
|                | i |                 |                 |                |
|                | c |                 |                 |                |
|                | e |                 |                 |                |
|                | n |                 |                 |                |
|                | s |                 |                 |                |
|                | i |                 |                 |                |
|                | n |                 |                 |                |
|                | g |                 |                 |                |
|                | ) |                 |                 |                |
+----------------+---+-----------------+-----------------+----------------+

**1.4 GHz Bands**

1390 MHz 1392 MHz 1395 MHz 1427 MHz 1429.5 MHz 1432 MHz 1435 MHz

+-----------+------------+---+-------+-----------+---+--------+-----------+
| FS & MS†  | FS & MS†   |   |       | WMTS      | T |        | FS & MS†  |
| C         | Commercial |   |       | (Primary) | e |        | C         |
| ommercial | or Private |   |       |           | l |        | ommercial |
| or        | (          |   |       | (blanket  | e |        | or        |
| Private   | geographic |   |       | l         | m |        | Private   |
| (g        | area       |   |       | icensing) | e |        | (g        |
| eographic | licensing) |   |       |           | t |        | eographic |
| area      |            |   |       | No        | r |        | area      |
| l         | (paired    |   |       | n-Medical | y |        | l         |
| icensing) | with       |   |       | Telemetry |   |        | icensing) |
|           | 1432-1435  |   |       |           | ( |        |           |
| MSS       | MHz)       |   |       | (S        | P |        | (paired   |
| Feeder    |            |   |       | econdary) | r |        | with      |
| Uplinks\* |            |   |       |           | i |        | 1392-1395 |
|           |            |   |       | (sit      | m |        | MHz)      |
|           |            |   |       | e-by-site | a |        |           |
|           |            |   |       | l         | r |        |           |
|           |            |   |       | icensing) | y |        |           |
|           |            |   |       |           | ) |        |           |
|           |            |   |       |           |   |        |           |
|           |            |   |       |           | ( |        |           |
|           |            |   |       |           | s |        |           |
|           |            |   |       |           | i |        |           |
|           |            |   |       |           | t |        |           |
|           |            |   |       |           | e |        |           |
|           |            |   |       |           | - |        |           |
|           |            |   |       |           | b |        |           |
|           |            |   |       |           | y |        |           |
|           |            |   |       |           | - |        |           |
|           |            |   |       |           | s |        |           |
|           |            |   |       |           | i |        |           |
|           |            |   |       |           | t |        |           |
|           |            |   |       |           | e |        |           |
|           |            |   |       |           | l |        |           |
|           |            |   |       |           | i |        |           |
|           |            |   |       |           | c |        |           |
|           |            |   |       |           | e |        |           |
|           |            |   |       |           | n |        |           |
|           |            |   |       |           | s |        |           |
|           |            |   |       |           | i |        |           |
|           |            |   |       |           | n |        |           |
|           |            |   |       |           | g |        |           |
|           |            |   |       |           | ) |        |           |
|           |            |   |       |           |   |        |           |
|           |            |   |       |           | G |        |           |
|           |            |   |       |           | r |        |           |
|           |            |   |       |           | a |        |           |
|           |            |   |       |           | n |        |           |
|           |            |   |       |           | d |        |           |
|           |            |   |       |           | f |        |           |
|           |            |   |       |           | a |        |           |
|           |            |   |       |           | t |        |           |
|           |            |   |       |           | h |        |           |
|           |            |   |       |           | e |        |           |
|           |            |   |       |           | r |        |           |
|           |            |   |       |           | e |        |           |
|           |            |   |       |           | d |        |           |
|           |            |   |       |           | T |        |           |
|           |            |   |       |           | e |        |           |
|           |            |   |       |           | l |        |           |
|           |            |   |       |           | e |        |           |
|           |            |   |       |           | m |        |           |
|           |            |   |       |           | e |        |           |
|           |            |   |       |           | t |        |           |
|           |            |   |       |           | r |        |           |
|           |            |   |       |           | y |        |           |
|           |            |   |       |           | ( |        |           |
|           |            |   |       |           | S |        |           |
|           |            |   |       |           | e |        |           |
|           |            |   |       |           | c |        |           |
|           |            |   |       |           | o |        |           |
|           |            |   |       |           | n |        |           |
|           |            |   |       |           | d |        |           |
|           |            |   |       |           | a |        |           |
|           |            |   |       |           | r |        |           |
|           |            |   |       |           | y |        |           |
|           |            |   |       |           | ) |        |           |
|           |            |   |       |           | ( |        |           |
|           |            |   |       |           | s |        |           |
|           |            |   |       |           | i |        |           |
|           |            |   |       |           | t |        |           |
|           |            |   |       |           | e |        |           |
|           |            |   |       |           | - |        |           |
|           |            |   |       |           | b |        |           |
|           |            |   |       |           | y |        |           |
|           |            |   |       |           | - |        |           |
|           |            |   |       |           | s |        |           |
|           |            |   |       |           | i |        |           |
|           |            |   |       |           | t |        |           |
|           |            |   |       |           | e |        |           |
|           |            |   |       |           | l |        |           |
|           |            |   |       |           | i |        |           |
|           |            |   |       |           | c |        |           |
|           |            |   |       |           | e |        |           |
|           |            |   |       |           | n |        |           |
|           |            |   |       |           | s |        |           |
|           |            |   |       |           | i |        |           |
|           |            |   |       |           | n |        |           |
|           |            |   |       |           | g |        |           |
|           |            |   |       |           | ) |        |           |
+-----------+------------+---+-------+-----------+---+--------+-----------+
|           |            |   |       |           |   | MSS    |           |
|           |            |   |       |           |   | Feeder |           |
|           |            |   |       |           |   | Downl  |           |
|           |            |   |       |           |   | inks\* |           |
+-----------+------------+---+-------+-----------+---+--------+-----------+

1430 MHz 1432 MHz

\*MSS Feeder Uplinks and Downlinks are contingent on international
allocation and other constraints.[^13]

† Indicates Mobile Service except Aeronautical Mobile.

**1670-1675 MHz Band and 2385-2390 MHz Band**

1670 MHz 1675 MHz 2385 MHz 2390 MHz

+---------------------------+--------------+---------------------------+
| FS & MS†                  |              | FS & MS                   |
|                           |              |                           |
| Commercial or Private     |              | Commercial or Private     |
|                           |              |                           |
| (geographic area          |              | (geographic area          |
| licensing)                |              | licensing)                |
+---------------------------+--------------+---------------------------+

† Indicates Mobile Service except Aeronautical Mobile.

#  {#section .unnumbered}

# Background

11. In OBRA-93, Congress directed the Secretary of Commerce to identify
    at least 200 megahertz of spectrum used by the Federal Government
    for transfer to non-Government services. Accordingly, NTIA
    identified 235 megahertz of Government spectrum for transfer to
    non-Government use, including the 1390-1395 MHz, 1427-1432 MHz, and
    1670-1675 MHz bands.[^14] OBRA-93 also gave the Commission the
    authority to resolve mutually exclusive license applications by
    auctioning spectrum licenses in certain radio services.[^15]

12. In BBA-97, Congress directed the Secretary of Commerce to identify
    an additional twenty (20) megahertz of spectrum for transfer to
    non-Government use to be assigned in compliance with Section 309(j)
    of the Communications Act of 1934, as amended (Communications Act or
    the Act).[^16] The National Telecommunications and Information
    Administration (NTIA) identified 20 megahertz[^17] of spectrum for
    transfer, including the 216-220 MHz, 1432-1435 MHz, and 2385-2390
    MHz bands.[^18] BBA-97 expanded the Commission\'s auction authority
    by amending Section 309(j) of the Communications Act.[^19]
    Specifically, BBA-97, as amended, requires the Commission to use
    competitive bidding to resolve mutually exclusive initial license or
    permit applications without regard to whether the spectrum is
    principally used for subscription-based services.[^20] BBA-97
    \"gives the Commission discretion to evaluate which licensing
    mechanism is most appropriate for the services being offered."[^21]
    Thus, the Commission is not foreclosed from implementing licensing
    schemes that are likely to result in mutual exclusivity if, in the
    exercise of its public interest analysis, the Commission determines
    that the potential benefits outweigh the potential costs of such a
    policy.[^22]

13. On October 17, 1998, the President signed into law the Strom
    Thurmond National Defense Authorization Act for Fiscal Year 1999
    (NDAA-99).[^23] NDAA-99 amended BBA-97 and the NTIA Organization
    Act[^24] to require, *inter alia,* new non-Government licensees to
    reimburse incumbent Federal entities in advance for the relocation
    costs incurred as a result of frequency spectrum reallocations.[^25]
    Specifically, the statutory reimbursement provisions apply to any
    Federal entity only, "if before August 5, 1997, the Commission has
    not identified that spectrum for service or assigned licenses or
    otherwise authorized service for that spectrum."[^26] Thus, the
    bands of spectrum previously identified for reallocation pursuant to
    BBA-97; namely, the 216-220 MHz, 1432-1435 MHz, and 2385-2390 MHz
    bands, are also now eligible for statutory reimbursement pursuant to
    NDAA-99.[^27]

14. In the *Reallocation Notice* leading up to the companion
    *Reallocation Report and Order,* the Commission proposed general
    rules and guidelines to implement NDAA-99.[^28] Concurrently, as
    part of a separate but related proceeding, NTIA also sought and
    received comment on its proposed rules governing reimbursement to
    Federal Government stations that are currently operating on bands
    identified for reallocation pursuant to BBA-97, as amended by
    NDAA-99.[^29] We note that the Commission\'s implementation of
    NDAA-99 is substantially dependent on the procedures to be
    promulgated by NTIA, which have not yet been released. To the extent
    that we find it necessary to adopt rules or procedures to implement
    NDAA-99, we will do so in a separate proceeding.

#  DISCUSSION

## Licensing Plan

15. The licensing plan we propose in the instant proceeding, in
    conjunction with the companion *Reallocation Report and Order,* is
    pursuant to our statutory obligation to reallocate and provide
    service rules for this spectrum for non-Government users.[^30] This
    action continues the implementation of the framework articulated in
    the Commission's November 1999 *Spectrum Policy Statement.*[^31]
    With increasing demand for radio services, our spectrum management
    activities must focus on promoting more efficient use of the
    spectrum as well as increasing the amount of spectrum available for
    new services while continuing to ensure access to adequate spectrum
    for essential incumbent services. As indicated in the *Spectrum
    Policy Statement*, we believe that a flexible allocation approach
    can allow licensees freedom to determine the services to be offered
    and the technologies to be used in providing those services.[^32]
    This flexibility can allow licensees to make the most efficient use
    of their assigned frequencies in response to market forces. We also
    believe that this approach can facilitate a robust and competitive
    market in the provision of current and future wireless services.

16. We recognize that new technologies may be developed to utilize these
    frequency bands. Future technologies may blur both technical and
    regulatory distinctions resulting in technical and operational
    regulations that could inadvertently impinge on efficient spectrum
    use. Consequently, we seek to develop service rules that are not
    based on a Commission prediction of how these bands may ultimately
    be used, but instead reflect a record that enables us to establish
    maximum practicable flexibility. In light of these considerations,
    we seek comment on the following issues. Should new terrestrial
    services be governed by Part 27 of the Commission\'s Rules?[^33]
    Would the application of the Part 27 Rules to these bands be in the
    public interest by contributing to technological and service
    innovation and improving the national telecommunications
    infrastructure?[^34] Further, we seek comment on the benefits and
    costs, including potential interference, of such flexibility, and
    whether application of the Part 27 Rules is in the public interest.

17. New service rules in Part 27 should be able to accommodate a wide
    variety of potential fixed and mobile service uses, such as voice,
    video and data transmission.[^35] For example, with regard to the
    unpaired 1670-1675 MHz band in particular, certain commenters in
    response to the *Reallocation Notice* suggested a variety of
    services such as satellite-enabled notification service, personal
    location and monitoring service, and broadband data services. We
    also recognize that we do not know precisely the type of services
    that licensees may seek to provide in the bands subject to this
    proceeding. Accordingly, we seek comment on whether potential
    licensees in the 1390-1392 MHz, 1392-1395 MHz, 1432-1435 MHz,
    1670-1675 MHz and 2385-2390 MHz bands would benefit from the
    regulatory construct and additional flexibility of Part 27.[^36]

18. Considering flexible use for fixed and mobile services in these
    bands is consistent with Section 303(y)(2) of the Communications
    Act,[^37] as amended by the Balanced Budget Act of 1997.[^38]
    Section 303(y)(2) grants the Commission authority to permit flexible
    use of this spectrum if the Commission finds that such use: (1) is
    in the public interest; (2) would not deter investment in
    communications services and systems, or technology development;
    and (3) would not result in harmful interference among users.[^39]

19. To determine, pursuant to Section 303(y)(2) of the Act, whether
    flexible use is appropriate for the spectrum under consideration
    herein, we seek comment on whether permitting flexible use of this
    spectrum would (1) be in the public interest; (2) would deter
    investment in communications services and systems, or technology
    development; or (3) would result in harmful interference among
    users.[^40] To the extent commenters believe such flexibility will
    deter investment, they should also suggest specific restrictions on
    how spectrum should be used by a licensee, and detailed analysis of
    the economic tradeoffs between flexibility and investment that
    justify any particular recommended use restriction. We seek to
    develop a record to help quantify any trade-offs between flexibility
    and investment in technology and new services. Such a record will
    assist us in structuring these rules so as to avoid deterring
    investment in new technology and communications services. We also
    seek comment regarding the extent to which significant flexibility
    in service rules may encourage such investments. We also
    specifically seek public comment on types of uses that pose the
    greatest risk of interference to uses planned by parties interested
    in using this spectrum.

20. As discussed below, consistent with our approach, we note that
    licensees may be required to comply with rules contained in other
    Parts of the Commission\'s Rules. For example, to the extent a
    licensee provides a Commercial Mobile Radio Service (CMRS), such
    service would also be subject to the provisions of Part 20 of the
    Commission\'s Rules.[^41] Part 20 applies to all CMRS providers,
    even though the stations may be licensed under other Parts of the
    Rules. 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 Part 27,
    as well as any provisions that may be necessary in Part 27 to fully
    describe the scope of covered services and technologies. For
    instance, if a licensee provides a fixed service, we seek comment on
    whether there are any specific provisions in Part 101 of the
    Commission's Rules[^42] to which a licensee should be subject, even
    though the licensee's stations would be licensed under Part 27.
    Further, we seek comment on whether it is most appropriate to apply
    Part 90 licensing and service rules to telemetry operations in the
    1429.5-1432 MHz frequency band. We also seek comment on whether Part
    90 has applicability to other telemetry and land mobile operations
    in these bands.

21. We also note that applications in these services will be filed using
    the Universal Licensing System (ULS).[^43] ULS is the Commission\'s
    automated licensing system and integrated database for wireless
    services. ULS includes consolidated applications forms, which will
    enable licensees and applicants to file applications electronically,
    thus increasing the speed and efficiency of the application process.
    All licensees filing applications and other filings using FCC Forms
    601 through 605 or associated schedules must make these filings in
    accordance with ULS.[^44] Use of ULS will permit Commission staff to
    process filings more efficiently and will enhance the availability
    of pertinent licensing information to the public.

### Table of Allocations

22. In the recently adopted *Reallocation Report and Order,* we
    established new frequency allocations for the spectrum bands that
    are the subject of this proceeding. A brief overview of the bands
    involved and the conclusions of that proceeding follow.

23. *216-220 MHz Band.* Non-Government incumbents operating in this band
    include (1) the Automated Maritime Telecommunications System
    (AMTS);[^45] (2) the "218-219 MHz" Service (formerly the Interactive
    Video Data System Service);[^46] (3) the Low Power Radio Service
    (LPRS);[^47] (4) Telemetry[^48] and wildlife/ocean buoy
    tracking;[^49] and (5) the Amateur Radio Service.[^50] We also note
    that TV Channel 13 at 210-216 MHz also affects certain operations in
    this band.[^51] Government incumbent operations which will remain in
    the 216-220 MHz band include the U.S. Navy's Space Surveillance
    (SPASUR) Radar system.[^52] In addition, the U.S. Coast Guard will
    continue to operate approximately 30 airsearch radars on a secondary
    basis in the 216-225 MHz band.[^53] Finally, the Government will
    continue to operate fixed, aeronautical mobile and land mobile
    services on a secondary basis, limited to telemetering and
    telecommand operations, in the 216-220 MHz band.[^54]

24. In the *Reallocation Report and Order*, we modified the allocation
    of the 216-220 MHz band to fixed and mobile, except aeronautical
    mobile, and retained the secondary status of telemetry operations,
    amateur operations, as well as wildlife/ocean buoy tracking
    operations.[^55] Because of the large number of non-Government
    incumbents in this band, we concluded that it would be inappropriate
    to authorize new co-primary services in this band.[^56] But we also
    recognized the important public services that the Low Power Radio
    Service (LPRS) provides and the technical difficulties and costly
    impact to consumers if forced to relocate. Accordingly, we elevated
    LPRS to primary status in the 216-217 MHz portion of the band.[^57]
    In order to protect LPRS operations, however, we prohibit new
    Government and non-Government secondary telemetry assignments in the
    216-217 MHz portion of the band after January 1, 2002.[^58]

25. *1.4 GHz Band.* A total of 13 megahertz of spectrum located at the
    1390-1392 MHz, 1392-1395 MHz, 1427-1429.5 MHz, 1429.5-1432 MHz and
    1432-1435 MHz bands comprise what we will refer to throughout this
    document as the \"1.4 GHz band.\" Prior to the *Reallocation Report
    and Order*, non-government incumbents in these bands included
    secondary telemetry[^59] in the 1427-1435 MHz bands and wireless
    medical telemetry (WMTS)[^60] in the 1429-1432 MHz band. Several
    companies operate secondary telemetry in these bands including, for
    example, utility telemetry that conducts automated meter-reading
    functions. Health care facilities plan to use WMTS to monitor
    physiological parameters of patients. Government incumbents
    remaining in the 1.4 GHz band include military sites in the
    1390-1395 MHz band,[^61] military airborne operations in the
    1427-1432 MHz[^62] and 1432-1435 MHz bands[^63] and unprotected
    radioastronomy (can include non-Government as well as Federal
    Government) throughout the 1350-1400 MHz bands.[^64]

26. In the *Reallocation Report and Order*, we reallocated six megahertz
    of spectrum for fixed and mobile services, except aeronautical
    mobile, by pairing the 1432-1435 MHz band with the 1392-1395 MHz
    band.[^65] In addition, we made two megahertz of unpaired spectrum,
    1390-1392 MHz, available for fixed and mobile services, except
    aeronautical mobile.[^66] We reallocated WMTS in the 1.4 GHz band
    from 1429-1432 MHz to 1427-1429.5 MHz.[^67] We also retained a
    secondary allocation for telemetry in the 1427-1429.5 MHz band.[^68]
    We upgraded the telemetry in the 1429.5-1432 MHz band to primary
    status[^69] but retained the secondary status of all incumbent
    licensees pending the adoption of final rules in this
    proceeding.[^70] Finally, we conditionally allocated low earth
    orbiting satellite (Little LEO) feeder uplinks in the 1390-1392 MHz
    band and feeder downlinks in the 1430-1432 MHz band.[^71] The Little
    LEO operations[^72] in the 1.4 GHz band are contingent on
    international allocation and other constraints applied to the bands
    for such operations.[^73]

27. *1670-1675 MHz Band.* Up to this point, this band has been used
    strictly for Government operations. No non-Government operations are
    currently performed in this band. The Government
    Meteorological-Satellite Service (Space-to-Earth) will remain in
    this band.[^74] In addition, radioastronomy operations are performed
    in the lower-adjacent band (1660-1670 MHz). In the *Reallocation
    Report and Order*, the Commission allocated the 1670-1675 MHz band
    for fixed and mobile services, except aeronautical mobile.[^75]

28. *2385-*2390 *MHz Band.* The 2385-2390 MHz band is currently used for
    Government and non-Government operations. Government incumbents
    which will remain in this band include aeronautical flight test
    telemetry.[^76] Non-Government incumbents include aeronautical
    flight test telemetry. In the *Reallocation Report and* Order, the
    Commission allocated the 2385-2390 MHz band for fixed and mobile
    services.[^77]

### Geographic Wide-Area Licensing

29. *Geographic Area Licensing.* We propose geographic area licensing in
    those bands where we anticipate establishing new services. These
    bands include the paired 1392-1395 MHz and 1432-1435 MHz bands and
    the unpaired 1390-1392 MHz, 1670-1675 MHz and 2385-2390 MHz bands.

30. Our experience has been that wide-area licensing (as opposed to
    site-by-site licensing) affords licensees substantial flexibility to
    respond to market demand and may result in significant improvements
    in spectrum utilization.[^78] In particular, geographic area
    licensing allows licensees to coordinate usage across an entire
    geographic area to maximize the use of spectrum in areas of highest
    demand. Geographic area licenses also provide licensees the
    flexibility to adjust spectrum usage depending upon market demands.
    Such adjustments may be significantly more difficult under a
    site-by-site licensing regime where prior Commission approval is
    needed before a licensee can address growth or changes in demand.
    Moreover, to the extent that geographic area licensing results in
    the conduct of auctions, it can also serve our public interest goals
    to 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."[^79] We seek comment on our proposal to
    use geographic areas to license new services in these bands.

31. We seek comment on the appropriate geographic area to be used should
    we adopt a geographic area licensing approach for new services in
    these bands. When establishing geographic service areas, we must
    balance the competing need to provide large enough service areas and
    the need to choose geographic licensing areas that will permit the
    dissemination of licenses among a wide variety of applicants.[^80]
    We also wish to ensure service to rural areas[^81] and to promote
    investment in and rapid deployment of new technologies and
    services.[^82] The Commission licenses spectrum using a wide variety
    of geographic areas. The Commission licenses the 800 MHz cellular
    radiotelephone services using Metropolitan and Rural Service Areas
    (MSAs and RSAs).[^83] The Commission licenses the 24 GHz band by
    Economic Areas (EAs).[^84] The Commission licenses the 2.3 GHz band
    using the twelve Regional Economic Area Groupings (REAs) and the 52
    Major Economic Areas (MEAs) which are derived from EAs.[^85] The
    Commission licenses the 746-764 MHz and 776-794 MHz bands by six
    Economic Area Groupings (EAGs), which it also derived from EAs.[^86]

32. In addition, in response to the *Reallocation Notice*, three
    commenters propose very different services for the 1670-1675 MHz
    band[^87] \-- all three, however, support licensing this band on a
    nationwide basis.[^88] AeroAstro states that a nationwide license is
    a requisite part of the national roll-out it believes is necessary
    to justify the cost of developing a satellite-based version of the
    technology it proposes to implement.[^89] ArrayComm states that
    entrants who offer new specialized wireless services must establish
    a national footprint in order to overcome the advantages of
    incumbent wireless providers.[^90] MicroTrax states that without a
    national license their proposed personal location and monitoring
    system will be restricted to the "artificial fences" of a regional
    licensing plan.[^91]

33. In light of these comments, we tentatively conclude to license the
    1670-1675 MHz band on a nationwide basis. We seek comment on this
    tentative conclusion. We also inquire whether similar reasoning used
    to support licensing on a nationwide basis for the 1670-1675 MHz
    band may be appropriate for licensing the paired 1392-1395 MHz and
    1432-1435 MHz bands or the unpaired 1390-1392 MHz and 2385-2390 MHz
    bands. We also seek comment from any party who believes that smaller
    geographic areas should be established for these bands. Commenters
    who support licensing based on service areas other than those
    discussed above should explain why other types of service areas are
    more appropriate.[^92]

### Spectrum Blocks

34. Having proposed to license new services on a geographic area basis,
    we now seek comment on the appropriate amount of spectrum to be
    provided for each licensee in each band. The paired 1392-1395 MHz
    and 1432-1435 MHz bands offer a total of six megahertz of spectrum.
    The unpaired 1390-1392 MHz band offers a total of two megahertz of
    spectrum while the unpaired 1670-1675 MHz and 2385-2390 MHz bands
    offer a total of five megahertz of spectrum each. We seek comment on
    whether the spectrum in each of these bands should be licensed as
    one block, or broken down into two or more bandwidths, and whether
    there should be a mixture of spectrum blocks, depending on the
    service areas used for licensing.

35. In comments to the *Reallocation Notice*, ArrayComm states that
    dividing the 1670-1675 MHz band among the three commercial parties
    interested in the band would not be technically feasible.[^93]
    ArrayComm states that their proposed mass market broadband wireless
    data service cannot be provided in less than 5 MHz of spectrum.[^94]
    ArrayComm states that even if the Commission were to subdivide the
    band into two 2.5 MHz blocks, the probable necessity of internal
    guard bands would further reduce the usable spectrum below 2.5
    MHz.[^95] With respect to the 1670-1675 MHz band, we tentatively
    agree with ArrayComm's assessment. With respect to the balance of
    the spectrum available to new services in these bands, we also
    believe that licensing each band as a single block of spectrum per
    service area would maximize the value of the spectrum while reducing
    the number of technical and interference problems. For example the
    paired 1392-1395 MHz and 1432-1435 MHz bands could be licensed as
    one six megahertz block of paired spectrum per service area while
    the unpaired 1390-1392 MHz band could be licensed as one two
    megahertz block of unpaired spectrum per service area. We seek
    comment on our proposal.

### Band Managers

36. In response to the *Reallocation Notice*, the Industrial
    Telecommunications Association, Inc. (ITA) stated support for
    licensing the paired 1392-1395 MHz and 1432-1435 MHz bands to band
    managers exclusively.[^96] In a separate proceeding*,* we defined
    band managers as \"a class of licensees that are specifically
    authorized to lease their licensed spectrum usage rights for use by
    third parties through private, contractual agreements, without
    having to secure prior approval by the Commission.\"[^97] ITA
    indicates that a licensing framework utilizing the concept of band
    managers would optimize the use of available spectrum by providing
    continued protection for incumbents as well as maximum flexibility
    for potential licensees and new services.[^98]

37. In the *BBA Report and Order,* the Commission recognized band
    manager licensing as an option for future licensing of private radio
    services[^99] and, consequently, in the *Reallocation Report and
    Order*, we briefly discussed the prospects of licensing the paired
    1392-1395 MHz and 1432-1435 MHz bands to band managers.[^100] As
    part of the instant proceeding, we now seek comment on approaches by
    which we may permit more flexible use of the spectrum reallocated
    for licensees subject to this proceeding.[^101]

38. As an initial matter, we seek comment on the feasibility of allowing
    licensees to operate as band managers for the newly reallocated
    spectrum in this proceeding. More specifically, unlike a previous
    band manager construct, where we designated an entire frequency band
    as a \"band manager\" band, we propose that for the spectrum
    specified herein, licensees would have the option of electing to
    operate either as a band manager or as a regular, non-band
    manager-type licensee.[^102] We seek comment on how we can license
    both band managers and other types of spectrum users in one band.

39. Under our proposal, band managers could be seen as \"spectrum
    brokers\" and would continue to have the ability to lease spectrum
    usage rights to third parties through private, contractual
    agreements, without having to secure prior approval by the
    Commission. We propose, however, that band managers would be
    restricted to any service rules we adopt for them. We seek comment
    on whether this type of mixed-use licensing (band managers and
    non-band managers) would be appropriate for the paired 1392-1395 MHz
    and 1432-1435 MHz bands. We also seek comment on whether we should
    allow this type of mixed-use licensing for any or all of the
    unpaired 1390-1392 MHz, 1670-1675 MHz, and 2385-2390 MHz bands. We
    also seek comment on any potential disadvantages of a band manager
    approach here, especially related to the interference risks of any
    particular features of the spectrum in question.

40. We seek comment on whether our spectrum management policies would be
    enhanced by permitting band managers the expanded flexibility to use
    their spectrum internally or provide telecommunications services, in
    addition to leasing it. If we were to permit such flexibility,
    should we also implement safeguards to ensure that a band manager\'s
    core function remains focused on leasing; and if so, how? [^103]
    Additionally, we note that for licensees in existing private radio
    services, we historically have adopted eligibility
    restrictions.[^104] Would similar provisions be necessary or
    feasible where the anticipated or potential use of the bands is both
    commercial and private? Also, should band managers in the subject
    bands be permitted to use the spectrum directly and construct their
    own facilities?[^105] In other words, should we limit the concept of
    a band manager operating in the subject band to non-facilities-based
    operations so they are engaged only in the business of leasing
    spectrum? We also seek comment on whether it is necessary to provide
    additional safeguards to prevent a band manager from discriminating
    among spectrum users.

41. We also request comment on the type of information to be included in
    agreements between band managers and spectrum users should we permit
    band managers in any of these bands. We seek comment on whether the
    requirements the Commission established for agreements between Guard
    Band Managers and spectrum users in Part 27 of our Rules would be
    appropriate. For example, under Part 27 of our Rules, agreements
    between the Guard Band Manager and spectrum user(s) in the 700 MHz
    band must specify in detail the operating parameters of the proposed
    systems including power, antenna height, frequency(s) of operation,
    base station locations and area of operations.[^106]

42. We also seek comment on whether we should require band managers to
    file annual reports on their spectrum usage with the
    Commission.[^107] We seek comment on whether such agreements should
    ensure that band managers are responsible for violations of rules by
    users of the spectrum assigned to them, and whether band managers
    must provide the Commission with information on users to allow the
    Commission to limit interference and enforce our rules.[^108]

### Treatment of Incumbents

43. As discussed in Section III.A.1., *supra,* several non-Government
    entities will continue to operate throughout the spectrum bands
    subject to this proceeding. Although we reallocated the 216-220 MHz
    band for fixed or mobile services, AMTS[^109] and "218-219 MHz"
    Services will continue to operate in the 217-220 MHz portion of the
    band. Further, in the 216-217 MHz portion of the 216-220 MHz band we
    upgraded LPRS to primary status. Although we retained the allocation
    for secondary telemetry throughout the 216-220 MHz band, we also
    stated that we would no longer accept new applications in the
    216-217 MHz band, and that after January 1, 2002, we would no longer
    permit new assignments for Government and non-Government operations
    in the 216-217 MHz band.[^110] Similarly, in the 1.4 GHz bands, we
    reallocated WMTS from the 1429-1432 MHz band to the 1427-1429.5 MHz
    band.[^111] In addition, we upgraded telemetry in the 1429.5-1432
    MHz band to primary status, but retained the secondary status of
    non-medical telemetry in the 1427-1429.5 MHz band.[^112]

#### AMTS / 218-219 MHz / LPRS Services 

44. The decisions we made in the *Reallocation Report and Order*
    accommodate the continued existence and licensing of AMTS, the
    "218-219 MHz" Service and LPRS in the 216-220 MHz band. Thus, we
    propose no service rule changes in this proceeding with regard to
    AMTS,[^113] LPRS[^114] or the \"218-219 MHz" service.[^115] We note
    that in the 216-220 MHz band, we already assign licenses in the
    \"218-219 MHz\" service by competitive bidding, and we have proposed
    a geographic area licensing scheme for AMTS in the 217-218 MHz and
    219-220 MHz sub-bands.[^116]

#### Other Proposals

45. *Data Flow.* Data Flow requests that the Commission amend Sections
    90.35 and 90.259 of the Commission's Rules.[^117] Specifically, Data
    Flow requests that the "Class of Stations" column for frequency band
    216-220 of the Industrial/Business Pool Frequency Table in Section
    90.35, be amended from "Base or mobile" to "Fixed, base, or
    mobile."[^118] Data Flow Systems also requests that Section 90.259
    be amended to substitute the word "shall" for "may" to read as
    follows: "Base stations authorized in these bands *may* be used to
    perform telecommand functions with associated mobile telemetering
    stations."[^119]

46. Data Flow states that water utility companies utilize fixed
    telemetry to ensure safe drinking water for the public and to
    protect the environment from contaminated runoff.[^120] Data Flow
    contends that because of the dearth of satisfactory channels
    available in the 150-174 MHz or the 450-470 MHz bands, water utility
    companies have needed to use the 216-220 MHz band for fixed
    telemetry purposes.[^121] Data Flow cites to previous grant waivers
    allowing water utility companies to operate fixed telemetry in the
    216-220 MHz band.[^122] We seek comment on Data Flow System's
    petition as it relates to future secondary telemetry operations in
    the 217-220 MHz band.[^123]

47. *Securicor.* In its comments to the *Reallocation Notice,* Securicor
    sought to license \"white space\" in the 216-220 MHz band under a
    paradigm similar to the 220-222 MHz band (220 MHz Service).[^124]
    Securicor states that expansion of the spectrally-efficient
    technology of the 220 MHz service to the 216-220 MHz band would
    allow greater use of the limited amount of unencumbered
    spectrum.[^125] Securicor suggests that we establish 5 kHz channels
    but allow aggregations, partitioning, disaggregation and spectrum
    leasing to provide flexibility.[^126] Securicor states that
    incumbent operations could be protected under current rules and that
    incumbents should be allowed to acquire licenses during auctions to
    expand their operations.[^127]

48. In the *Reallocation Report and Order*, we declined Securicor's
    request with respect to the 216-217 MHz portion of the band because
    of the need to protect LPRS operations.[^128] Nonetheless, in the
    *Reallocation Report and Order*, we deferred action on Securicor's
    request as it relates to the remaining portion of the 216-220 MHz
    band.[^129] In this regard, we note that the heavy incumbent use of
    the 217-220 MHz band would make it difficult to create a new band
    plan to accommodate Securicor's request. The balance of the band is
    either already subject to competitive bidding (218-219 MHz) or
    proposed to be assigned by competitive bidding (AMTS). Nonetheless,
    we ask whether there are efficiencies to be gained by implementing
    Securicor's proposal because of the adjacent 220-222 MHz Service.

49. *Warren Havens.* In comments filed in response to the *Reallocation
    Notice,* Warren Havens requests the Commission authorize "advanced
    technologies services" in the 216-225 MHz band which would be
    governed under a corollary set of service rules.[^130] Havens
    suggests that new "advanced technologies services" could include a
    National Environmental Wireless Service (NEWS) for environmental and
    wildlife monitoring, or 4^th^ generation wireless
    technologies.[^131] In the *Reallocation Report and Order*, we
    declined to make changes to the 216-217 MHz portion of the band in
    order to protect LPRS operations.[^132] Nonetheless, in the
    *Reallocation Report and Order*, we deferred action on Havens'
    request as it relates to the remaining portion of the 216-220 MHz
    band.[^133] We believe that Havens' proposal would not be feasible
    due to the heavy incumbent use of the 217-220 MHz band. Nonetheless,
    we take this opportunity to solicit public comment on Havens'
    proposal with respect to the 217-220 MHz band.

#### Itron-AHA Joint Agreement

50. In the *Reallocation Report and Order*, we noted that we would
    consider a band swap proposal from AHA and Itron in this
    proceeding.[^134] In general, the AHA/Itron proposal would in effect
    switch the primary allocation between Medical Telemetry and
    Telemetry in seven defined geographic areas,[^135] so that WMTS
    would be primary at 1429.5-1432 MHz in these areas, and Telemetry
    would be primary at 1427-1429.5 MHz.[^136] AHA and Itron propose to
    further subdivide the band into smaller segments.

51. To support their proposal, AHA/Itron point out that Itron has
    invested in building out infrastructure in these seven areas under
    the current secondary allocation. If the incumbent were forced to
    remain secondary vis-à-vis WMTS, it would not be able to operate and
    that investment would be sacrificed. If we were to grandfather
    incumbent operation in those seven areas on a primary basis and not
    provide WMTS with the corresponding sites in the 1429.5-1432 MHz
    band, then WMTS would not be able to operate on a nationwide basis.

52. We tentatively conclude that it is in the public interest to support
    AHA and Itron's proposal in broad terms, and that a footnote should
    be added to the Table of Frequency Allocations that would elevate
    the telemetry allocation to primary status in the 1427-1429.5 MHz
    band in the seven geographic areas, and specify WMTS as primary in
    the corresponding seven areas in the 1429.5-1432 MHz band. We seek
    comment on this tentative conclusion. We decline to propose the
    further segmentation. Under our proposal, non-medical telemetry
    licensees will have access to the full 2.5 MHz at 1427-1429.5 MHz in
    the seven geographic areas and Medical Telemetry will have access to
    the full 2.5 MHz at 1429.5-1432 MHz in the seven geographic areas.
    Accordingly, it appears that interested parties can choose to
    implement more detailed band segmentation on a contractual basis.

#### Limiting Telemetry in the 1.4 GHz Band 

53. Prior to the release of the *Reallocation Report and Order*,
    telemetry was authorized on a secondary basis in the 1427-1435 MHz
    band pursuant to Section 90.259 of our Rules.[^137] In the
    *Reallocation Report and Order,* we upgraded telemetry in the
    1429.5-1432 MHz band to primary status, eliminated all secondary
    telemetry operations from the 1432-1435 MHz band, and retained the
    secondary allocation for telemetry operation in the 1427-1429.5 MHz
    band.[^138] Thus, in the *Reallocation Report and Order*, we
    provided WMTS with 2.5 MHz of spectrum at 1427-1429.5 MHz and
    allocated the upper-adjacent allocation at 1429.5-1432 MHz to fixed
    and mobile telemetry, excluding aeronautical mobile.[^139]

54. In comments to the *Reallocation Notice*, the AHA states that WMTS
    can function in 2.5 MHz of spectrum at 1427-1429.5 MHz if the
    lower-adjacent spectrum is occupied by passive radioastronomy and
    the upper-adjacent spectrum is occupied by a few easily identifiable
    \"fixed utility telemetry systems.\"[^140] AHA indicates, however,
    that if WMTS is surrounded by higher power land mobile operations,
    then additional spectrum will be needed to deploy a "guard
    band."[^141]

55. In the *Reallocation Report and Order*, we indicated that we would
    consider, in this service rules proceeding, whether it would be
    necessary to restrict the service uses of the telemetry allocation
    to telemetry operations used by utility companies or to otherwise
    adopt technical restrictions to protect adjacent WMTS operations, in
    light of AHA\'s concerns.[^142]

56. Consequently, we now seek comment on what, if any, restrictions on
    secondary telemetry at 1427-1429.5 MHz and primary telemetry at
    1429.5-1432 MHz are necessary to protect WMTS from harmful
    interference. AHA provides several suggestions for restricting
    telemetry in these bands. AHA proposes 1) restricting telemetry
    operations to utility telemetry; 2) restricting telemetry operations
    to fixed telemetry; and/or 3) limiting the power levels of telemetry
    operations from 100 watts to 10 watts to 1 watt as frequencies
    approach the WMTS-primary band (1427-1429.5 MHz).[^143] We seek
    comment on AHA's proposals as they relate to protecting WMTS from
    harmful interference. Parties should comment on the merits of each
    of the three major points, taking into consideration the importance
    of reliable medical telemetry operations to the public and the need
    for particularly conservative interference analyses. For example,
    commenters who support limiting telemetry in these bands to
    utility-specific operations should explain whether other forms of
    (non-utility) telemetry operations would cause harmful interference
    to WMTS.

57. Finally, we note that there are several non-utility, non-fixed
    licensees operating telemetry systems in the 1427-1429.5 MHz and
    1429.5-1432 MHz bands.[^144] Consequently, if we were to limit the
    telemetry in these bands to utility telemetry and/or fixed
    telemetry, we seek comment on what approach would best account for
    the existence of these entities, including whether we should
    relocate or grandfather incumbent non-utility entities or
    \"non-fixed\" users of telemetry operations. Commenters supporting
    relocation should identify viable alternative frequency band(s) for
    these operations.

#### Site-by-Site Licensing for Telemetry

58. The Commission has historically licensed telemetry operations in the
    216-220 MHz and 1427-1432 MHz band on a site-by-site basis.[^145] We
    are, however, not bound to retain this licensing scheme either by
    default or as an alternative to geographic areas. Indeed, we have
    flexibility to continue to make determinations "on a
    service-by-service basis of whether to adopt geographic area
    licensing, site-by-site licensing, or any other licensing scheme"
    based upon our statutory public interest obligations.[^146] In
    making such a determination, we also recognize that, as part of our
    public interest analysis, we should "give significant consideration
    to the effectiveness of the existing licensing mechanism that avoids
    mutual exclusivity, and should weigh the potential costs of changing
    such mechanisms against the potential benefits."[^147] We now
    consider how to license telemetry.

##### Secondary Telemetry (217-220 MHz and 1427-1429.5 MHz). 

59. In the *Reallocation Report and Order*, we retained the secondary
    status of telemetry in the 216-220 MHz band, although we prohibited
    new secondary telemetry assignments in 216-217 MHz portion of the
    band after January 1, 2002.[^148] We also retained the secondary
    status of non-medical telemetry in the 1427-1429.5 MHz band.[^149]
    We believe that we should continue to license secondary telemetry
    operations in the 217-220 MHz and 1427-1429.5 MHz bands on a
    site-by-site basis. While we generally favor geographic area
    licensing for new services, we also recognize that this type of
    licensing scheme is not appropriate for every licensing situation.
    In this instance, we note that the secondary status of telemetry
    operators in the 217-220 MHz band means that they must not cause
    harmful interference to the primary operations of AMTS and the
    "218-219 MHz" Service. Similarly, the secondary status of
    non-medical telemetry operators in the 1427-1429.5 MHz band means
    that they must not cause harmful interference to the primary
    operations of WMTS. Secondary operations must always defer to
    primary incumbents in an environment where these primary incumbents
    may increase operations and have preference. Consequently, it
    appears that geographic area licensing for secondary telemetry in
    these bands would be neither workable nor efficient. Thus, we
    tentatively conclude that it would not serve the public interest
    goals of Section 309(j)(3) to license secondary telemetry on a
    geographic area basis. We seek comment on this tentative conclusion.

##### Primary Telemetry (1427-1432 MHz band)

60. In the *Reallocation Report and Order*, we upgraded telemetry in the
    1429.5-1432 MHz band to primary status and reallocated WMTS from the
    1429-1432 MHz band to the 1427-1429.5 MHz band. Under this revised
    band plan primary telemetry occupies the upper-adjacent band to
    WMTS's new allocation. As we previously indicated, AHA states that
    WMTS would prefer if the upper-adjacent band were limited to a few
    easily identifiable fixed sites.[^150] We also note that AHA is
    requesting primary status over non-medical telemetry in the
    1429.5-1432 MHz band throughout seven distinct geographic
    "carve-out" areas.[^151] In light of these considerations, we
    believe that a site-by-site licensing method -- as opposed to a
    geographic area licensing method -- will provide greater assurance
    for protection of WMTS. Consequently, we tentatively conclude to
    retain our current method of licensing telemetry on a site-by-site
    basis in the 1429.5-1432 MHz band as well as in the seven distinct
    geographic \"carve-out\" areas in the 1427-1429.5 MHz band. We seek
    comment on this tentative conclusion.

61. While we propose to license primary telemetry in the 1427-1432 MHz
    band on a site-by-site basis, this proposal does not necessarily
    foreclose the possibility that mutually exclusive applications may
    be filed. Accordingly, any such mutually exclusive applications
    would be resolved through competitive bidding. With respect to
    standards for determining whether specific telemetry systems in this
    band can coexist (i.e., whether two applications are grantable), we
    request comment on whether mileage or other factor(s) should be
    used. If a mileage standard is appropriate, we initially propose
    that the separation distance between co-channel systems be 112 km.
    (70 mi.). We also request comment regarding exceptions to any
    proposed separation distance, such as exceptions based on particular
    geographic topography issues, technology/power issues, etc. Further,
    we seek comment on what procedures for filing site-by-site
    applications would be appropriate. In some site-by-site contexts,
    such as Mass Media AM broadcast licensing, we open a window with a
    filing deadline for applications, after which those applications
    that are determined to be mutually exclusive proceed to auction
    under our competitive bidding procedures.[^152] In other
    site-by-site contexts, such as Part 90 land mobile radio licensing,
    we utilize a first-come first-served construct without windows or
    "gates."[^153] We seek comment on these procedures and alternative
    methods that might be used. Notwithstanding the potential and
    relative difficulty of coordinating WMTS operations with fixed
    primary telemetry throughout a geographic area, we do not foreclose
    consideration of geographic area licensing as an alternative to
    licensing on a site-by-site basis. Given these considerations, we
    seek comment on whether it would be preferable to license primary
    telemetry based on geographic areas.

#### Incumbent Telemetry Operations 

62. In the *Reallocation Report and Order*, we upgraded the allocation
    for telemetry in the 1429.5-1432 MHz band to primary status.
    Nonetheless, we retained the secondary status of all incumbent
    telemetry operations licensed prior to adoption of final rules in
    this proceeding.[^154] Should we eventually grandfather incumbents
    in this band,[^155] we seek comment on whether these licensees
    should have the option to request primary status prior to the
    licensing of new entrants to this band. This option would be
    available only to facilities grandfathered and operating in the
    1429.5-1432 MHz band as of the release date of this item. Incumbents
    would not be allowed to expand their grandfathered operations and
    request primary status before new entrants are allowed into the
    band. A list of licensees operating in the 1429.5-1432 MHz band --
    as of the release date of this item -- is provided in Appendix B.

63. We propose to require all grandfathered licensees who desire primary
    status to file an application on the Universal Licensing System. The
    licensee would submit all technical information about each
    grandfathered facility. We note that there is one incumbent in this
    band who is licensed for a wide geographic area as opposed to a
    specific site with a radius.[^156] Therefore, we propose to require
    applicants requesting primary status, for grandfathered facilities,
    to identify their area of operation by county or by using a radius
    centered on a point. We seek comment on our proposal.

#### Frequency Coordination for Telemetry

64. To date, we have not required frequency coordination for telemetry
    systems in the 216-220 MHz and 1427-1432 MHz bands,[^157] because
    these systems have operated under secondary status. All telemetry
    applications have, however, been referred to the Frequency Advisory
    Subcommittee (FAS) of the Interdepartment Radio Advisory Committee
    (IRAC). Applications were granted if they received FAS approval. The
    procedure existed because the Commission had concluded that a
    private coordinator cannot provide coordination for frequencies that
    must be shared with and require the concurrence of the Federal
    Government.[^158]

65. In accordance with our decision in the *Reallocation Order*, most
    telemetry applications will no longer require FAS approval.[^159]
    Thus, assuming secondary telemetry at 217-220 MHz and 1427-1429.5
    MHz continues to be licensed on a site-by-site basis, we propose, in
    lieu of the former requirement for FAS approval, a new requirement
    for traditional land mobile frequency coordination for telemetry
    applicants in these bands. Under these procedures, each application
    proposing a new telemetry operation or modifying an existing
    telemetry operation would be required to include a showing of
    frequency coordination. Coordination would be conducted pursuant to
    Section 90.175 of the Commission's Rules.[^160] We seek comment on
    our proposal.

#### Part 90 Technical Rules for Telemetry 

66. We note that telemetry operations in 216-220 MHz band and the
    1427-1432 MHz band are currently authorized under Part 90 of our
    Rules.[^161] Part 90 provides no technical specifications or channel
    plan for telemetry operations in these bands. Rather, power and
    authorized bandwidth are specified on the station authorizations on
    a case-by-case basis.[^162] We believe that technical specifications
    and a channel plan are now necessary because most telemetry
    applications in these bands will no longer require FAS approval.

67. Specifically, we seek comment on what power limits and antenna
    height limits are necessary for secondary telemetry in the 216-220
    MHz and 1427-1429.5 MHz bands and for primary telemetry in the
    1429.5-1432 MHz band. To maximize spectrum efficiency, we also seek
    comment on whether minimum antenna directionality requirements would
    be necessary. We also request comment on the feasibility of defining
    certain technical frequency stability limits, bandwidth limits, or
    limits on emissions appearing outside the authorized bandwidth.

68. Commenters who propose technical limits should consider that: (1)
    secondary telemetry in the 216-220 MHz band must protect SPASUR
    sites,[^163] adjacent TV Channel 13,[^164] LPRS, AMTS and "218-219
    MHz" service from harmful interference; (2) non-medical telemetry in
    the 1427-1429.5 MHz band must protect primary WMTS;[^165] and (3)
    primary telemetry in the 1429.5-1432 MHz band and WMTS in the
    lower-adjacent should not cause harmful interference to one another.

69. We also seek comment on a channel plan for telemetry in the 216-220
    MHz, 1427-1429.5 MHz and 1429.5-1432 MHz bands. Part 90 services
    generally employ a variety of channel bandwidths. For example, a
    channel spacing of 7.5 kHz is employed in the 150-174 MHz band, a
    channel spacing of 12.5 kHz is employed in the paired 821-824 MHz
    and 866-869 MHz bands while a channels spacing of 25 kHz is employed
    in the paired 806-821 MHz and 851-866 MHz bands.[^166] Finally, once
    a channel plan is established, we seek comment on whether to allow
    telemetry licensees to aggregate i.e. combine their channels.

### Assignment of Licenses

70. The Balanced Budget Act of 1997 revised the Commission's auction
    authority.[^167] Specifically, it amended Section 309(j) of the Act
    to require the Commission to grant licenses through the use of
    competitive bidding when mutually exclusive applications for initial
    licenses are filed, unless certain specific statutory exemptions
    apply.[^168] The BBA-97 also added to Section 309(j)(1) a reference
    to the Commission's obligation under Section 309(j)(6)(E) to use
    engineering solutions, negotiation, threshold qualifications,
    service regulations, or other means to avoid mutual exclusivity
    where it is in the public interest to do so.[^169] BBA-97 did not
    amend Section 309(j)(3)'s directive to consider certain public
    interest objectives in identifying classes of licenses and permits
    to be issued by competitive bidding.[^170]

71. In the *BBA Report and Order*, the Commission established a
    framework for exercise of its auction authority, as amended by the
    Balanced Budget Act.[^171] The *BBA Report and Order* affirmed that,
    in identifying which classes of licenses should be subject to
    competitive bidding, the Commission is required to pursue the public
    interest objectives set forth in Section 309(j)(3).[^172] The *BBA
    Report and Order* also affirmed that, as part of this public
    interest analysis, the Commission must continue to consider
    alternative procedures that avoid or reduce the likelihood of mutual
    exclusivity.[^173] The Commission concluded, however, that its
    obligation to avoid mutual exclusivity does not preclude it from
    adopting licensing processes in the non-exempt services that result
    in the filing of mutually exclusive applications where it determines
    that such an approach would serve the public interest.[^174]

72. In determining whether to assign licenses through competitive
    bidding in this proceeding, we intend to follow the approach set
    forth in the Balanced Budget Act proceeding regarding the exercise
    of our auction authority. We note, too, that subsequent to the
    adoption of the Balanced Budget Act, the U.S. Court of Appeals for
    the D.C. Circuit concluded that the Section 309(j)(6)(E) obligation
    does not foreclose new licensing schemes that are likely to result
    in mutual exclusivity.[^175] The court stated that if the Commission
    finds such schemes to be in the public interest, it may implement
    them "without regard to \[S\]ection 309(j)(6)(E) which imposes an
    obligation only to minimize mutual exclusivity 'in the public
    interest,' and 'within the framework of existing policies.'"[^176]

73. We note that the 217-218 MHz portion of the 216-220 MHz band will be
    paired with 219-220 MHz portion for licenses in the AMTS service and
    the rules for assigning licenses will be addressed in a separate
    rulemaking proceeding.[^177] The 218-219 MHz portion of the band is
    licensed as the "218-219 MHz" Service and the competitive bidding
    rules were established in a prior proceeding.[^178] In addition,
    because we found that it is in the public interest to allocate the
    remaining one megahertz 216-217 MHz portion of the band for LPRS,
    which is licensed by rule under Part 95 of our Rules, our obligation
    to use competitive bidding under Section 309(j) does not appear to
    be implicated for the 216-217 MHz portion of the band.[^179]

74. In this *Notice,* we propose to adopt a geographic area licensing
    scheme for the paired 1392-1395 MHz and 1432-1435 MHz bands, the
    unpaired 1670-1675 MHz band and the unpaired 2385-2390 MHz band. We
    seek comment on appropriate geographic licensing areas for these
    bands and whether such licensing scheme would promote the objectives
    of Section 309(j)(3) including promoting economic opportunities and
    competition by disseminating licenses among a wide variety of
    applicants.[^180] If we find that it would serve the public interest
    to implement a geographic area licensing scheme, under which mutual
    exclusivity is possible, then we must resolve mutually exclusive
    applications for initial licenses in the paired 1392-1395 MHz and
    1432-1435 MHz bands, the unpaired 1670-1675 MHz band and the
    unpaired 2385-2390 MHz band through competitive bidding.

75. We also propose to license the unpaired 1390-1392 MHz band for
    terrestrial use based on geographic areas and seek comment on
    appropriate licensing areas that would promote economic
    opportunities for a wide variety of applicants, including small
    businesses, rural telephone companies, and minority- and women-owned
    applicants**.**[^181] Although we have allocated the 1390-1392 MHz
    band for fixed and mobile, except aeronautical mobile, services, we
    have only allocated this band conditionally for satellite (uplink)
    service. Because the satellite allocation in this band will not
    become effective until interested parties first secure a similar
    international allocation, licensing of such satellite services will
    be addressed in a separate rulemaking proceeding.[^182] We note that
    the Open-Market Reorganization for the Betterment of International
    Telecommunications Act (ORBIT Act) contains an exemption from
    competitive bidding for spectrum used for the provision of
    international or global satellite communications services.[^183]
    This exemption from competitive bidding does not apply to
    terrestrial services that operate on the same frequencies as
    satellite services.[^184] Thus, if we find that it would serve the
    public interest to adopt a geographic area licensing scheme that
    permits the filing of mutually exclusive applications for
    terrestrial services in this band, it would be consistent with our
    statutory mandate to resolve any such mutually exclusive
    applications accepted for filing by competitive bidding.

76. We will not receive mutually exclusive applications for WMTS
    licenses in the unpaired 1427-1429.5 MHz band and in the seven
    geographic "carve-out" areas in the 1429.5-1432 MHz band because
    WMTS is licensed by rule under Part 95.[^185] Thus, our statutory
    obligation to use competitive bidding under Section 309(j) is not
    applicable to the assignment of WMTS licenses in these portions of
    the 1.4 GHz band.[^186] With respect to the primary telemetry
    service licenses in the 1429.5-1432 MHz band and seven geographic
    "carve-out"areas in the 1427-1429.5 MHz band, in this *Notice* we
    tentatively conclude to retain our current licensing scheme (i.e.,
    site-by-site), but also seek comment on whether we should assign
    licenses based on geographic areas for the primary telemetry
    services in these bands.[^187] In the *Reallocation Report and
    Order*, we have also conditionally allocated the 1430-1432 MHz
    portion of the 1.4 GHz band for Little LEO feeder downlinks, similar
    to the conditional allocation for uplinks in the 1390-1392 MHz band,
    contingent on completion of ongoing studies and adoption of an
    international allocation for this spectrum.[^188] As explained
    above, we believe that the ORBIT Act does not prohibit the use of
    auctions to assign licenses to provide terrestrial services. Thus if
    we ultimately adopt a licensing scheme under which mutually
    exclusive applications may be filed, any mutually exclusive initial
    applications to provide primary telemetry services in the unpaired
    1429.5-1432 MHz portion and seven geographic carved out areas in the
    1427-1429.5 MHz portion of the 1.4 GHz band will be resolved through
    competitive bidding.

## Application, Licensing and Processing Rules for New Services

77. The *Reallocation Report and Order* provides an opportunity to
    establish new services in portions of the 1.4 GHz band, the
    1670-1675 MHz band, and the 2385-2390 MHz band. To summarize, these
    operations include fixed and mobile operations, except aeronautical
    mobile, in the paired 1392-1395 MHz and 1432-1435 MHz bands;[^189]
    fixed and mobile operations, except aeronautical mobile in the
    unpaired 1390-1392 MHz[^190] and 1670-1675 MHz[^191] bands; and
    fixed and mobile operations, including aeronautical mobile, in the
    2385-2390 MHz band.[^192] In addition, the *Reallocation* *Report
    and Order* provides conditional allocation for NGSO MSS Feeder
    Uplinks - conditioned on a similar international allocation - in the
    1390-1392 MHz band, and NGSO MSS Feeder downlinks -also conditioned
    on a similar international allocation- in the 1430-1432 MHz band. To
    the extent necessary, we will address Little LEO licensing issues,
    including terrestrial and satellite sharing, in a separate
    proceeding once the ongoing sharing studies are completed and an
    international allocation of this spectrum is secured.[^193] We now
    turn our attention to our proposed application, licensing, and
    processing rules pertinent for new terrestrial services.

### Regulatory Status

78. The Commission\'s current mobile service license application
    requires an applicant for mobile services to indicate whether the
    service it intends to offer will be CMRS, Private Mobile Radio
    Service (PMRS), or both.[^194] The Commission has adopted a similar
    licensing framework for Part 27 of our Rules.[^195] Thus, 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 services.[^196] Accordingly,
    we propose to adopt the same procedure for licensing new services in
    the paired 1392-1395 MHz and 1432-1435 MHz bands and unpaired
    1390-1392 MHz, 1670-1675 MHz and 2385-2390 MHz bands. The licensee
    will be able to provide all allowable services anywhere within its
    licensed area at any time, consistent with its regulatory status. We
    tentatively conclude that, in the case of new services offered in
    these bands, this approach is likely to achieve efficiencies in the
    licensing and administrative process.

79. We further propose that applicants and licensees with respect to new
    services in the paired 1392-1395 MHz and 1432-1435 MHz bands and the
    unpaired 1390-1392 MHz, 1670-1675 MHz and 2385-2390 MHz bands be
    required to indicate a regulatory status based on any services they
    choose to provide. As the Commission stated in adopting Part 27,
    apart from this designation of regulatory status, we would not
    require applicants to describe the services they seek to
    provide.[^197] In providing guidance on this issue to applicants,
    the Commission pointed out that an election to provide service on a
    common carrier basis requires that the elements of common carriage
    be present;[^198] otherwise, the applicant must choose non-common
    carrier status.[^199] The Commission advised potential applicants
    that, if they 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, request
    clarification and including service descriptions for that
    purpose.[^200]

80. 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.[^201] Although a change in
    a licensee's regulatory status would not require prior Commission
    authorization, we propose that a licensee be required to notify the
    Commission within 30 days of the change.[^202] 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.[^203] In summary,
    under our proposal, a licensee in the paired 1392-1395 MHz and
    1432-1435 MHz bands, or the unpaired 1390-1392 MHz, 1670-1675 MHz
    and 2385-2390 MHz bands would be authorized to provide a variety or
    combination of fixed, mobile, common carrier, and non-common carrier
    services. We seek comment on these proposals.

### Eligibility

81. We believe that opening this spectrum to as wide a range of
    applicants as possible would encourage entrepreneurial efforts to
    develop new technologies and services, while helping to ensure
    efficient use of this spectrum. Accordingly, we propose that there
    be no restrictions on eligibility for a license, other than the
    foreign ownership restrictions set forth in Section 310 of the
    Communications Act.[^204] We seek comment on this proposal.
    Commenters are requested to comment on whether open eligibility
    poses a significant likelihood of substantial competitive harm in
    specific markets, and, if so, whether eligibility restrictions are
    an effective method to address that harm.

82. We believe that this approach is consistent with our statutory
    guidance. Specifically, in granting the Commission authority in
    Section 309(j) of the Communications Act to auction wireless
    spectrum and to impose eligibility requirements as appropriate,
    Congress also directed the Commission to exercise that authority so
    as to "promot\[e\] . . . economic opportunity and
    competition."[^205]

### Foreign Ownership Restrictions

83. 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.[^206] Section 27.12 of the Commission\'s Rules,
    which implements Section 310 of the Act,[^207] would by its terms
    apply to applicants for licenses in the bands subject to this
    proceeding.[^208] An applicant requesting authorization only for
    non-common carrier or non-broadcast services would be subject to
    Section 310(a) but not to the additional prohibitions of Section
    310(b). An applicant requesting authorization for broadcast or
    common carrier services would be subject to both Sections 310(a) and
    310(b).

84. Further, we note that in response to the commitments under the World
    Trade Organization (WTO) Basic Telecommunications Agreement, the
    Commission recently liberalized its policy for applying its
    discretion with respect to foreign ownership of common carrier radio
    licensees under Section 310(b)(4).[^209] Under our new policy, the
    Commission now presumes that ownership by entities from countries
    that are WTO members serves the public interest.[^210] Ownership by
    entities from countries that are not WTO members continues to be
    subject to the \"effective competitive opportunities\" test
    established earlier by the Commission.[^211]

85. In the filing of an application under the proposed service rules, we
    do not believe that common carriers and non-common carriers should
    be subject to varied reporting obligations. Rather, as a matter of
    fostering regulatory parity and transparency, we believe that all
    applicants should be required to file changes in foreign ownership
    information to the extent required by Part 27 of our Rules. In light
    of Part 27 licensees\' potential ability to provide broadcast,
    common carrier, and non-common carrier services, Commission rules
    require all licensees, even non-common carriers, to report alien
    ownership on a consistent basis, to better enable the Commission to
    monitor compliance.[^212] By establishing parity in reporting
    obligations, however, we do not propose a single, substantive
    standard for compliance. Thus, by way of example, we do not and
    would not disqualify an applicant requesting authorization
    exclusively to provide non-common carrier and non-broadcast services
    from a license simply because its citizenship information would
    disqualify it from a common carrier or broadcast license. We request
    comment on this proposal.

### License Term and Renewal Expectancy

86. We propose that the license term for new licensees in the paired
    1392-1395 MHz and 1432-1435 MHz bands and unpaired 1390-1392 MHz,
    1670-1675 MHz and 2385-2390 MHz bands be 10 years, with a renewal
    expectancy similar to that afforded PCS and cellular licensees. In
    the case of either a cellular or PCS licensee, a renewal applicant
    shall receive 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.[^213] While preferring a substantial service
    requirement, we also invite comment on whether a build-out
    requirement is more appropriate for this service.[^214] We believe
    that this 10-year license term, combined with renewal expectancy,
    will help to provide a stable regulatory environment that will be
    attractive to investors and, thereby, encourage development of this
    frequency band. 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. Commenters who favor a license
    term in excess of ten years should specify a reasonable license term
    and include a basis for the period proposed.

87. We propose that the renewal application of a licensee in the paired
    1392-1395 MHz and 1432-1435 MHz bands and unpaired 1390-1392 MHz,
    1670-1675 MHz and 2385-2390 MHz bands must include, at a minimum,
    the following showings in order to claim a renewal expectancy:[^215]

    A description of current service in terms of geographic coverage and
    population served or links installed and a description of how the
    service complies with the substantial service requirement.

    Copies of any Commission Orders finding the licensee to have
    violated the Communications Act or any Commission rule or policy,
    and a list of any pending proceedings that relate to any matter
    described by the requirements for the renewal expectancy.[^216]

    If applicable, a description of how the licensee has complied with
    the build-out requirement.

88. 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. Further,
    the partitionee or disaggregatee would be required to demonstrate
    that it has met the substantial service requirements, or build-out
    standard, in any renewal application. This approach is similar to
    the partitioning provisions the Commission adopted for MDS[^217] and
    for current broadband PCS licensees.[^218] 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.

### Partitioning and Disaggregation

89. If geographic area licensing is used in any of these bands, we seek
    comment on allowing licensees to partition their service areas and
    to disaggregate their spectrum.[^219] We believe that Section 27.15
    of the Commission\'s Rules[^220] would 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.[^221] We seek comment on the benefits
    and costs of this approach, and whether it promotes the public
    interest.

90. 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.[^222] Section
    27.15 also contains provisions against unjust enrichment.[^223] 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.

### Individual Station Licenses

91. We have proposed geographic area licensing for several bands. Under
    geographic area licensing, the licensee has exclusive use to operate
    within its geographic service area. Ordinarily licensees may operate
    without filing an application for individual stations within its
    service area. Nonetheless, we believe there are situations in which
    we should require licensees to obtain an individual station license
    for a particular station within their geographic service area.

92. The licensee will need to apply for an individual station license to
    the Commission for those individual stations that (1) require
    submission of an Environmental Assessment under Section 1.1307 of
    our Rules;[^224] (2) require international coordination;[^225] (3)
    would operate in the quiet zones listed in Section 1.924 of our
    Rules;[^226] or (4) require coordination with the Frequency
    Assignment Subcommittee (FAS) of the Interdepartment Radio Advisory
    Committee (IRAC).[^227]

93. We propose that the licensee be responsible for determining whether
    an individual station needs an individual station license. We
    further propose that this requirement will apply to both new
    stations and station modifications. We ask for comment on this
    proposal.

## Operating Rules

### Performance Requirements

94. We seek comment on whether licensees in the paired 1392-1395 MHz and
    1432-1435 MHz bands and unpaired 1390-1392 MHz, 1670-1675 MHz and
    2385-2390 MHz bands should be subject to a substantial service
    requirement or a minimum coverage requirement as a condition of
    license renewal. We have imposed such requirements on licensees in
    other services to ensure that spectrum is used effectively and
    service is implemented promptly.[^228] We seek comment on whether
    licensees should be required to provide \"substantial service\" to
    the geographic license area within ten years or any other license
    term which we adopt for this service.[^229] 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.[^230] Further, we seek comment on whether
    there should be a construction requirement as an alternative, safe
    harbor standard. Under the safe harbor, the licensee would be
    required to reach a minimum of one-third of the population in its
    licensed area, no later than the mid-point of the license term and
    two-thirds of the population by the end of the license term. 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.

95. If a licensee does not comply with whichever performance requirement
    we adopt, the Commission must consider what action to take. We could
    adopt a standard under which a licensee who does not comply with the
    appropriate standard, either substantial service or minimum
    coverage, is subject to license termination upon action by the
    Commission or, alternatively, the license would automatically
    cancel. We seek comment on whether to adopt an automatic
    cancellation standard or cancellation only upon action by the
    Commission. If the geographic area licensee loses its license for
    failure to comply with coverage requirements, should the licensee be
    prohibited from bidding on the geographic area license for the same
    territory in the future? Is there a sanction more appropriate than
    automatic cancellation? We seek comment on these issues.

### Application of Title II Requirements to Common Carriers

96. We also seek comment on whether we should forbear from applying
    certain obligations on common carrier licensees in the bands subject
    to this proceeding pursuant to Section 10 of the Act.[^231] In the
    case of commercial mobile radio service (CMRS) providers, the
    Commission concluded that it was appropriate to forbear from
    Sections 203, 204, 205, 211, 212, and most applications of Section
    214.[^232] The Commission, however, declined to forbear from
    enforcing other provisions, including Sections 201 and 202.[^233]
    The Commission has also exercised its forbearance authority in
    permitting competitive access providers (CAPS) and competitive local
    exchange carriers (CLECs) to file permissive tariffs.[^234] We seek
    comment on whether it is appropriate to forbear from enforcing any
    provisions of the Act or the Commission\'s rules in the bands
    subject to this proceeding.

## Technical Rules

97. *General Technical Rules.* We seek comment on the appropriateness of
    adopting Part 27 of our Rules, for new services in the paired
    1392-1395 MHz and 1432-1435 MHz bands and the unpaired 1390-1392
    MHz, 1670-1675 MHz and 2385-2390 MHz bands. The application of
    general provisions of Part 27 would include technical standards
    relating to equipment authorization,[^235] Radiofrequency (RF)
    safety standards,[^236] frequency stability,[^237] antenna
    structures and air navigation safety,[^238] and disturbance of AM
    broadcast station antenna patterns.[^239] In addition, other
    technical restrictions contained in other sections of the
    Commission's rules would apply to licensees including Part 17
    (antenna registration), and as discussed earlier, Sections 1.924
    (quiet zones), and 1.1307 (environmental requirements).[^240] We
    seek similar comment with respect to the Part 90 technical rules for
    telemetry in the 1429.5-1432 MHz frequency band.[^241]

98. *In--Band Interference Control.* We request comment on additional
    technical restrictions to limit co-channel interference protection
    between licensees operating in adjacent geographic service areas. We
    recognize that licensees will be permitted to implement a broad
    range of services and technologies in this spectrum, and that the
    implementation of these services and technologies must take into
    account the potential for interference between licensees using the
    same spectrum in adjacent service areas. Under our proposed rules,
    licensees will have the flexibility to provide fixed and mobile
    services including land mobile.

99. In the past, we have primarily utilized an approach to limit
    co-channel interference between geographic service areas that
    includes field strength limits or frequency coordination.[^242]
    Field strength limits have generally been adopted for land mobile
    services,[^243] while frequency coordination requirements have
    primarily been used in fixed services.[^244] We request comment if
    either or both of these approaches are appropriate in this case or
    if other methods should be used for interference protection.

100. We believe that either method, when properly applied, can provide a
     satisfactory means of controlling harmful interference between
     systems, although, on balance, there may be reasons to prefer one
     method over the other. For example, a general coordination
     requirement may minimize the potential for interference to
     coordinated facilities but may also impose unnecessary coordination
     costs for facilities with a low potential for interference, and
     increase the potential for undesirable strategic or
     anti-competitive behavior.

101. A field strength limit, on the other hand, may reduce the need for
     coordination by giving licensees the ability unilaterally to deploy
     facilities in boundary areas as long as the limit is met, but by
     itself may provide insufficient assurance against interference to
     such facilities. Even with a boundary field strength limit, some
     degree of coordination and joint planning between bordering
     licensees appears likely to be needed to ensure efficient spectrum
     use on each side of the boundary.[^245] Parties are therefore asked
     to provide their analysis of the advantages and disadvantages of
     both approaches or, possibly, an approach that combines the
     elements of both a boundary field strength limit and a coordination
     requirement.

102. If commenters believe that the Commission should apply a field
     strength limit, as a means to control interference to neighboring
     systems in the paired 1392-1395 MHz and 1430-1432 MHz bands and
     unpaired 1390-1392 MHz, 1670-1675 MHz and 2385-2390 MHz bands, then
     an analysis should be presented to justify the use of any proposed
     value. Various maximum field strengths have been prescribed by the
     Commission for other services. These include 47 dBuV/m for
     PCS,[^246] 47 dBuV/m for WCS licensees in the 2.3 GHz band[^247]
     and 55 dBuV/m for licensees in the 4660-4685 MHz band.[^248]
     Therefore, commenters who support a boundary limit should propose a
     specific value and explain the method they have used in deriving
     it.

103. If we do adopt a general coordination approach, we request comment
     on how such coordination would be triggered between licensees in
     adjacent geographic areas. We note that for 28 GHz LMDS and 39 GHz
     licensees, the need for coordination is triggered based on the
     distance that the station will be located from the licensees'
     service area boundary.[^249] We solicit comment on these
     coordination procedures and criteria.

104. We also seek comment on what, if any, power limits and antenna
     height limits are necessary or appropriate under either a
     coordination or field strength limit approach. We observe that
     transmitters used in the private land mobile service, cellular
     radio service, and point-to-point microwave services typically
     employ substantially different output powers. Accordingly, we
     invite comments as to what those limits should be and the basis for
     the suggested limits. We also solicit views on output power limits
     for base and mobile equipment.

105. *Out-of-Band Interference Control.* We seek comment on appropriate
     out-of-band emission limits, and/or emission masks, and whether one
     or both of these methods is necessary to protect services operating
     adjacent to the paired 1392-1395 MHz and 1432-1435 MHz bands and
     unpaired 1390-1392 MHz, 1670-1675 MHz and 2385-2390 MHz bands. We
     seek comment on corresponding measurement procedures to confirm
     emission levels. We also seek comment on what power limits and
     antenna height limits are necessary or appropriate to protect
     services operating in adjacent bands.

106. Finally, when commenting on technical limitations, including those
     discussed above, parties are asked to provide either in their
     analyses or in their comments how proposed limits will prevent
     licensees from causing harmful interference to Government
     incumbents.

107. *Technical Restrictions for the 1670-1675 MHz Band.* In comments to
     the *Reallocation Notice,* AeroAstro, ArrayComm and MicroTrax
     propose technical limits for the 1670-1675 MHz band. Each commenter
     proposes an out-of-band emission limit.

108. AeroAstro believes that an out-of-band emission limit of --80
     dBW/Hz will protect adjacent band radioastronomy.[^250] It states
     that technical rules should specify an absolute out-of-band limit,
     rather than a maximum in-band limit and emission mask, because an
     absolute out-of-band limit will permit a provider that uses low
     in-band power to specify an emission mask that is not as
     steep.[^251]

109. ArrayComm proposes an out-of-band emission limit similar to PCS
     service, except with an adjustment for "adaptive antenna" systems,
     a type of technology they propose.[^252] ArrayComm states that
     where the output of multiple power amplifiers operating at
     comparable per-carrier powers are coherently combined, the
     out-of-band emission limit should be 43+10log(P)-10log(M), where
     "P" is the per-carrier, per-power-amplifier power serving a carrier
     and "M" is the number of power amplifier/antenna elements serving a
     carrier.

110. MicroTrax suggests an out-of-band limit, in any 1 MHz bandwidth, of
     55+10log(P) where "P" is the highest emission in watts of the
     transmitter inside the authorized bandwidth.[^253]

111. We seek comment on all three of these proposals. Parties who
     comment on this issue should be aware that in the following section
     we explain that protection of radioastronomy operations in the
     lower-adjacent band will be accomplished through technical limits
     established for equipment operating in the 1670-1675 MHz
     band.[^254]

112. We note, that of the three proposals for out-of-band emission
     limits, ArrayComm's proposal appears to be the most flexible,
     although possibly the least restrictive. We believe that licensees
     should have as much flexibility as possible to aid in the viability
     of their service. Nonetheless, the out-of-band emission limit
     should be sufficient to protect lower-adjacent band radioastronomy
     operations from harmful interference. Because of its flexibility,
     we tentatively propose to adopt ArrayComm's limit. We seek comment,
     however, on whether ArrayComm's proposal will sufficiently protect
     lower-adjacent band radioastronomy operations from harmful
     interference. We also welcome comments regarding MicroTrax's and
     AeroAstro's proposals.

113. Each commenter also recommends power limits. AeroAstro proposes a
     peak output power of 1 watt and a peak equivalent isotropic
     radiated power (EIRP) of 10 watts.[^255] MicroTrax proposes a peak
     output power limit of 4 watts and a maximum of 0.25 watts average
     output power limit over a 60-second time interval.[^256] ArrayComm
     proposes an EIRP limit of 1640 watts for base stations and 4 watts
     for portable units[^257]. We request comment on all of these power
     limits as they relate to protecting lower-adjacent radioastronomy
     operations.

114. *Cellular Architecture.* We seek comment on whether to prohibit
     cellular architecture in any of these bands. Specifically, as noted
     in the *Guard Band Second Report and Order*, the Commission
     indicated that the cellular architecture produces a large number of
     base stations within a relatively small geographic area \-- each
     with the capability of causing interference.[^258] Therefore, given
     the need to protect Government incumbents and sensitive radio
     astronomy operations we request comment on whether it would be
     prudent to ban cellular architecture in any of these bands.

## Coordination 

### Incumbent Government Operations

115. The *Reallocation Report and Order* identifies the Federal
     Government incumbents who will remain in these bands on a
     co-primary basis by geographic location and operating
     frequency.[^259] In addition, the *Reallocation Report and Order,*
     outlines a framework that requires non-Federal Government users to
     coordinate with co-primary Federal Government incumbents.[^260]

116. Specifically, under this coordination framework, all licensees
     proposing to construct a facility within an NTIA-designated
     protected zone, as determined by protection radii coordinates, must
     submit an application on the Universal Licensing System containing
     all the technical information about the proposed facility.[^261]
     The Commission will refer these applications to the Frequency
     Assignment Subcommittee (FAS) of the Interdepartment Radio Advisory
     Committee (IRAC). Once FAS approval is received, the Commission
     will issue an individual station license for each application
     referred to FAS. These procedures will apply to both fixed and
     mobile non-Government operations.[^262]

117. We take this opportunity to summarize briefly the Federal
     Government incumbents identified in the *Reallocation Report and
     Order*.

118. *SPASUR.* The U.S. Navy operates a Space Surveillance (SPASUR)
     Radar system in the 216-217 MHz band.[^263] SPASUR transmitter
     sites transmit on frequency 216.98 MHz and SPASUR receiver sites
     receive on frequencies 216.965-216.995 MHz. NTIA indicates that
     SPASUR sites will continue to operate on a co-primary basis
     indefinitely.[^264] The location of SPASUR transmit and receive
     sites is listed in footnote US229 of Section 2.106.[^265] Footnote
     US229 contains the NTIA recommended protection radii.[^266]
     Non-Government licensees operating in the sub-band 216.88-217.08
     MHz must receive FAS approval prior to construction of fixed sites
     or prior to operation of mobile units within the SPASUR protection
     radii.[^267]

119. *Military Airborne Operations.* NTIA indicates that 14 military
     airborne operations will continue to operate in the 1427-1432 MHz
     band on a co-primary basis until 2004.[^268] The location of these
     military airborne operations is provided in footnote US352 of
     Section 2.106.[^269] The NTIA recommended protection radii for
     these airborne operations are listed in footnote US352.[^270]
     Non-Government licensees operating in the 1427-1432 MHz band must
     receive FAS approval prior to operation of fixed sites or mobile
     units within the NTIA recommended protection radii of these
     military airborne operations. NTIA also indicates that 23 military
     airborne operations will continue to operate in the 1432-1435 MHz
     band on a co-primary basis indefinitely.[^271] The location of
     these military airborne operations is provided in footnote US361 of
     Section 2.106.[^272] The NTIA recommended protection radii for
     these airborne operations are listed in footnotes US361.[^273]
     Non-Government licensees operating in the 1432-1435 MHz band must
     receive FAS approval prior to operation of fixed sites or mobile
     units within the NTIA recommended protection radii of these
     military airborne operations.

120. *Other Military Operators.* NTIA indicates that 17 military sites
     will continue to operate in the 1390-1395 MHz band on a co-primary
     basis until 2009.[^274] The location of these military sites is
     listed in footnote US351 of Section 2.106.[^275] The NTIA
     recommended protection radii for these military operations are
     listed in footnotes US361. Non-Government licensees operating in
     the 1390-1392 MHz band or the 1392-1395 MHz band must receive FAS
     approval prior to operation of fixed sites or mobile units within
     the NTIA recommended protection radii of these military sites.

121. *Aeronautical Flight Test Telemetry.* NTIA indicates that
     Government aeronautical flight test telemetry operations will
     continue in the 2385-2390 MHz band on a co-primary basis until
     2007.[^276] The locations of these aeronautical flight test
     telemetry operations are listed in footnote US363 of Section
     2.106.[^277] The NTIA-recommended protection radii are also listed
     in footnote US363.[^278] Non-Government licensees operating in the
     2385-2390 MHz band must receive FAS approval prior to operation of
     fixed sites or mobile units within the NTIA recommended protection
     radii of these aeronautical flight test telemetry operations.

122. *Meteorological-Satellite Earth Stations.* The
     meteorological-satellite earth stations (METSAT) located at
     Wallop's Island, VA, Fairbanks, AK and Greenbelt, MD will continue
     to receive satellite downlink data in the 1670-1675 MHz band.[^279]
     NTIA indicates that the METSAT stations at Wallops Island, VA and
     Fairbanks, AK will need protection indefinitely.[^280] The
     NTIA-recommended protection radii for these stations are listed in
     footnote US362.[^281] Thus, licensees in the 1670-1675 MHz band
     will need to coordinate fixed and mobile operations within the
     protection radii of the Wallops Island, VA and Fairbanks, AK METSAT
     stations. The METSAT coordination procedures are listed in Section
     1.924(f) of the Commission\'s Rules.[^282] NTIA also requests
     protection of the METSAT station located at Greenbelt, MD.[^283]
     The Greenbelt, MD station serves as a back up to the Wallops
     Island, VA station. Accordingly, the 1670-1675 MHz licensee will
     need to coordinate operation in the vicinity of the METSAT station
     located at Greenbelt, MD. We discuss the coordination requirements
     for the METSAT stations located at Greenblet, MD, in a following
     section.[^284]

123. *Radioastronomy*. Pursuant to footnote US311 of Section 2.106,
     radioastronomy is performed throughout the 1350-1400 MHz
     band.[^285] The location of these radioastronomy sites is listed in
     footnote US311.[^286] Pursuant to footnote US311, licensees in the
     1.4 GHz band will need to make every practicable effort to avoid
     causing interference to these extremely sensitive radioastronomy
     receivers.[^287] Radioastronomy operations will continue to operate
     in the 1660-1670 MHz band.[^288] This band is lower-adjacent to the
     1670-1675 MHz band. Protection of radioastronomy operations in this
     lower-adjacent band will be accomplished through technical limits
     established for equipment operating in the 1670-1675 MHz band.

### FAS Coordination of LPRS and WMTS

124. We have adopted procedures for applicants and licensees in the
     subject bands for coordination with incumbent Government operations
     in the *Reallocation Report and Order.* Because these procedures
     contemplate coordination in a regulatory environment with
     applications for licenses, we believe we must further address how
     to apply these procedures to the low power radio service (LPRS). In
     LPRS, we receive no applications, and we issue no licenses.
     Operation is authorized by rule. LPRS is subject to FAS
     coordination within the protection radii of SPASUR sites as
     described above because it operates between 216-217 MHz. Thus, an
     individual LPRS station operating within the NTIA recommended
     SPASUR protection radii is required to coordinate with incumbent
     Government operations. But given that there are no applications, no
     licenses, and thus, no Commission database for LPRS operations, we
     believe that the standard coordination procedures would be overly
     burdensome, impractical, or ineffective. Instead, we propose an
     alternative approach that protects SPASUR and at the same time
     acknowledges LPRS\'s versatility and promotes its utility to the
     public. Specifically, we propose a blanket coordination approach
     that would allow LPRS to operate within SPASUR protection radii. In
     other words, we propose to ask the Federal Government one time for
     coordination for all future LPRS operations in this band
     contemplated by rule. We believe that this approach is especially
     viable in this instance, given that LPRS operates at a maximum
     transmitter output power of 100 milliwatts[^289] and thus poses
     little threat of interference to SPASUR. We seek comment on this
     proposal.

125. We note that this proposal refers exclusively to LPRS coordination
     with co-primary Government incumbents in the 216-217 MHz band. By
     way of contrast, WMTS coordination with co-primary Government
     incumbents will be accomplished pursuant to Section 95.1121 of Part
     95 of our Rules,[^290] as amended, in the *Reallocation Report and
     Order*.[^291] Although LPRS and WMTS are both licensed by rule, our
     current rules require WMTS operators to register their devices with
     a designated frequency coordinator who maintains this information
     in a database.[^292] Our current rules for LPRS do not provide for
     such procedures nor do we believe that such an approach would be
     feasible for LPRS. Consequently, we believe that these different
     services require us to chart different coordination approaches.

### FAS Coordination of Fixed and Mobile Sites

126. As established in the *Reallocation Report and Order,*
     non-Government licensees are required to coordinate fixed and
     mobile operations with co-primary Government incumbents.[^293] We
     recognize, however, that the practical application of the
     coordination procedures established in the *Reallocation Report and
     Order* will vary depending on the licensing scheme adopted for a
     given band. In this proceeding we propose to authorize services via
     site-by-site licensing[^294] and geographic area licensing.[^295]
     We take this opportunity to seek comment on the following
     proposals.

127. *Site-by-site licensing.* For services assigned on a site-by site
     basis, the Commission will review all ULS applications to determine
     if the fixed or mobile operation is located within the protection
     radii of a co-primary Government incumbent. If the operation is
     located within the protection radii of a co-primary Government
     incumbent, then the Commission will refer the application to FAS as
     described in the *Reallocation Report and Order.*[^296] We believe
     that this proposal achieves our regulatory objectives and is also
     compatible with current procedures that require site-by-site
     licensees to file an application for each operation. We seek
     comment on this proposal.

128. *Geographic Area Licensing.* Unlike site-by-site services, services
     that are authorized using geographic area licensing are not
     required to file an application for each individual operation.
     Rather, geographic area licensees, as prescribed by technical
     parameters of our Rules, operate throughout their area of operation
     without needing prior consent of the Commission for each individual
     station. Taking into consideration this distinction, we believe
     that the process described above for site-by-site licensees would
     not be efficient or administratively feasible. We therefore propose
     a separate coordination process for geographic area licensees.
     Specifically, under our proposal, geographic licensees, by virtue
     of the nature of their operations, would be responsible to make a
     determination of whether a particular operation requires FAS
     approval on a case-by-case basis.

129. By way of guidance, we further propose to require that FAS
     coordination for any fixed station located within the protection
     radii of a co-primary Government incumbent prior to activation.
     Similarly, we also propose to require FAS coordination for mobile
     units prior to any operation within the protection radii of
     co-primary Government incumbents. Thus, a geographic area licensee
     that proposes to construct a base station with associated mobile
     units would need to examine both the location of the base station
     and the operational area of the associated mobile units.
     Accordingly, under our proposal, a base station would be exempt
     from FAS coordination if it is located outside the protection
     radii. Mobile units, however, would need FAS coordination if their
     operational area were to overlap the protection radii of the
     co-primary Government incumbent. We seek comment on our proposals.

### Coordination with METSAT Station Located at Greenbelt, MD.

130. We now address coordination procedures relevant to licensees in the
     1670-1675 MHz band operating near the METSAT station located at
     Greenbelt, MD.[^297] As mentioned previously, the Greenbelt, MD
     facility serves as a back up to the Wallops Island, VA facility and
     is therefore inactive most of the time. This facility is
     operational for testing purposes approximately once per month.

131. As an initial matter, we note that NTIA has indicated that a
     65-kilometer (40-mile) protection radii would be necessary to
     protect the Greenbelt, MD facility.[^298] We seek comment on
     NTIA\'s protection radii. Further, should we ultimately decide to
     adopt NTIA\'s recommended protective radii, we propose to require
     all fixed and mobile licensees operating in the 1670-1675 MHz band
     to coordinate operations within the NTIA protection radii. Under
     this scheme, we envision that coordination would take place before
     the activation of new facilities or any modifications to existing
     facilities. We seek comment on this approach.

132. We believe that the coordination procedures we propose for the
     METSAT facilities located at Wallops Island, VA and Fairbanks, AK
     would also suffice for the Greenbelt, MD facility. Under the
     procedures established in the *Reallocation Report and Order*, the
     1670-1675 MHz licensee must notify the National Oceanic and
     Atmospheric Administration (NOAA) of operations which require
     coordination. The 1670-1675 MHz licensee must then file an
     application with the Commission requesting an individual station
     license. The Commission allows a 20-day period for objections to be
     filed. We seek comment on whether these procedures would be
     appropriate for both fixed and mobile operations located within the
     protection radii of the Greenbelt, MD facility.

133. In addition, we note that protection of the Greenbelt, MD facility
     is necessary only while the station is in operation. Therefore, we
     propose that the 1670-1675 MHz licensee would be required to reduce
     power or shut down any fixed site or mobile unit located within the
     coordination zone and which could cause interference to the
     Greenbelt, MD facility, only when the Greenbelt, MD facility is
     active. Conversely, when this facility is inactive, the 1670-1675
     MHz licensee would be permitted to operate fixed and mobile units
     that exceed the designated protection criteria without prior
     coordination. We believe that these procedures strike an
     appropriate balance that both supports existing Federal Government
     operations and promotes the opportunity for new licensees to offer
     services in this band to the Washington, DC-Baltimore, MD
     metropolitan areas. We seek comment on this proposal.

134. Consistent with the proposed procedures outlined above, ArrayComm
     has suggested certain additional refinements to facilitate the
     overall coordination process, especially with regard to the
     Greenbelt, MD facility.[^299] Under ArrayComm\'s proposal, prior to
     operation of any site within the protection radii, the 1670-1675
     MHz licensee would prepare a plan or model, based on a generally
     accepted cellular planning tool, of all proposed base stations and
     mobile units.[^300] The results of this modeling plan would be
     submitted to NOAA prior to operation for verification and testing
     at the Greenbelt, MD facility.[^301] The Government operator would
     then have 30 days to complete and verify the measurements.[^302]

135. Under ArrayComm\'s proposal, the Government Operator would also
     notify the 1670-1675 MHz licensee within 30 days of any scheduled
     Government operation at the Greenbelt, MD facility.[^303]
     Additionally, in the event that the Greenbelt, MD facility is
     activated unexpectedly, the ArrayComm proposal would require the
     Government Operator to alert the 1670-1675 MHz licensee.[^304] In
     those instances where the facility is activated unexpectedly,
     ArrayComm suggests that the 1670-1675 MHz licensee be afforded 120
     minutes to transition to a mode where protection is provided to the
     Greenbelt, MD facility.[^305] We seek comment on ArrayComm's
     proposals. Additionally, we encourage commenters to submit other
     proposals or counter proposals that would enhance implementation
     and effectiveness of our proposed coordination procedures near the
     Greenbelt, MD facility.

### Non-Government Incumbents

#### Aeronautical Flight Test Radio Coordinating Council 

136. In response to the *Reallocation Notice*, the Aerospace and Flight
     Test Radio Coordinating Council (AFTRCC) indicates that ten
     additional sites should be protected until 2007.[^306] AFTRCC
     identifies ten sites that conduct non-Government aeronautical
     flight test telemetry and states that aeronautical flight test
     telemetry cannot coexist with other uses of the spectrum because
     the sharing of flight test telemetry frequencies with other
     services risks safety of life and property.[^307] Therefore, AFTRCC
     requests a 160 kilometer exclusion zone around the ten sites.[^308]

137. In the *Reallocation Report and Order*, we indicated that new
     entrants to the 2385-2390 MHz band would need to protect nine of
     the ten sites.[^309] The location of these sites is also listed in
     footnote US363 of Section 2.106.[^310] We declined to extend
     protection to the Fairfield, Connecticut site in the interest of
     allowing new service in this band in the New York City metropolitan
     area.[^311] We seek comment on the best method to coordinate
     2385-2390 MHz licensees with incumbent non-Government aeronautical
     flight test telemetry operations.

138. We believe coordination with AFTRCC could be conducted in a similar
     manner to FAS coordination. Specifically, licensees in the
     2385-2390 MHz band would be required to coordinate fixed and mobile
     operations within the protection radii of the non-Government
     aeronautical flight test sites listed in footnote US363 of Section
     2.106. Coordination would be performed by the Commission after the
     2385-2390 MHz licensee submits an application on the Universal
     Licensing System containing all the technical information about the
     proposed operation. The Commission will refer these applications to
     AFTRCC. Once AFTRCC approval is received, the Commission will issue
     an individual station license for each application referred to
     AFTRCC. We seek comment on these proposed coordination procedures.
     We also note that licensees in the 2385-2390 MHz band may pursue
     market-based mechanisms to facilitate relocation of and
     coordination with non-Government aeronautical flight test
     operations.

### 5. Canadian and Mexican Coordination {#canadian-and-mexican-coordination .unnumbered}

139. Section 2.301 of our Rules requires stations using radio
     frequencies to identify their transmissions with a view to
     eliminate harmful interference and generally enforce applicable
     radio treaties, conventions, regulations, arrangements, and
     agreements.[^312] At this time, international agreements between
     and among the United States, Mexico and Canada concerning the
     reallocation of this spectrum are not complete. One option would be
     to propose certain interim requirements for terrestrial licenses
     along these borders, and to provide that these licensees will be
     subject to the provisions contained within future agreements
     between and among the three countries. Until such time as
     agreements between the United States, Mexico and Canada become
     effective, we propose to apply the same technical restrictions at
     the border that we adopt for operation between geographic service
     areas. Operations must not cause harmful interference across the
     border. We note that further modification might be necessary in
     order to comply with future agreements with Canada and Mexico
     regarding the use of this band. We seek comments on this issue.

## Competitive Bidding Procedures

140. As discussed above, consistent with our statutory mandate, we will
     resolve any mutually exclusive initial applications for licenses
     for the unpaired 1390-1392 MHz portion, the unpaired 1427-1432 MHz
     portion, and the paired 1392-1395 MHz and 1432-1435 MHz portions of
     the 1.4 GHz band, the unpaired 1670-1675 MHz band and the unpaired
     2385-2390 MHz band through the use of competitive bidding.[^313]

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

141. We propose to conduct the auction of initial licenses in the
     unpaired 1390-1392 MHz portion, the unpaired 1427-1432 MHz
     portion,[^314] and the paired 1392-1395 MHz and 1432-1435 MHz
     portions of the 1.4 GHz band, the unpaired 1670-1675 MHz band and
     the unpaired 2385-2390 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 bidding
     procedures that have been employed in previous auctions.[^315]
     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.[^316] Under this proposal, such rules would be
     subject to any modifications that the Commission may adopt in the
     Part 1 proceeding.[^317] In addition, consistent with current
     practice, matters such as the appropriate competitive bidding
     design for the auction of these licenses, as well as minimum
     opening bids and reserve prices, would be determined by the
     Wireless Telecommunications Bureau (Bureau) pursuant to its
     delegated authority.[^318] We seek comment on whether any of our
     Part 1 rules or other auction procedures would be inappropriate in
     an auction of licenses in these bands.

### Provisions for Designated Entities

142. 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 are given the opportunity to participate in the
     provision of spectrum-based services."[^319] 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."[^320]

143. 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.[^321]
     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.[^322]

144. Certain commenters, in response to the *Reallocation Notice,*
     suggested a variety of services such as satellite-enabled
     notification service, personal location and monitoring service, and
     broadband data services for the unpaired 1670-1675 MHz band. [^323]
     We do not know precisely the type of services that a licensee may
     seek to provide in the unpaired 1390-1392 MHz portion and the
     paired 1392-1395 MHz and 1432-1435 MHz portions of the 1.4 GHz
     band, the unpaired 1670-1675 MHz band and the unpaired 2385-2390
     MHz band. Nonetheless, we anticipate that the services that will be
     deployed in all the above-mentioned bands are likely to have
     capital requirements comparable to those of the WCS spectrum in the
     2.3 GHz band, because in this *Notice* we propose for all of these
     bands flexibility to offer a broad range of fixed and mobile
     services that is similar to the flexible use permitted WCS
     licensees in the 2.3 GHz band.[^324] Moreover, in this *Notice* we
     also propose that all service providers in these bands would
     operate under Part 27 of the Commission's rules, which also governs
     WCS licensees in the 2.3 GHz band. Therefore, we propose to use the
     same small business size standards that the Commission applied to
     the WCS 2.3 GHz band. In the 2.3 GHz *WCS* *Report and Order* we
     defined a "small business" as an entity with average annual gross
     revenues not exceeding \$40 million for the preceding three years
     and a "very small business" as an entity with average annual gross
     revenues not exceeding \$15 million for the preceding three
     years.[^325]

145. The small business size standards that we propose to adopt here
     were also adopted for the 700 MHz Guard Bands,[^326] which lend
     themselves to the provision of services similar to those that may
     be offered in the unpaired 1390-1392 MHz portion and the paired
     1392-1395 MHz and 1432-1435 MHz portions of the 1.4 GHz band, the
     unpaired 1670-1675 MHz band and the unpaired 2385-2390 MHz band.
     Moreover, the 700 MHz Guard Bands were licensed to Guard Band
     Managers, and in this *Notice* we seek comment on whether any of
     the bands under consideration should be licensed to band
     managers.[^327] Such band managers would lease spectrum under
     service rules similar to those of the 700 MHz Guard Bands. Thus,
     the capital requirements for the unpaired 1390-1392 MHz portion and
     the paired 1392-1395 MHz and 1432-1435 MHz portions of the 1.4 GHz
     band, the unpaired 1670-1675 MHz band and the unpaired 2385-2390
     MHz band may also be comparable to those of the 700 MHz Guard
     Bands. Therefore, we think that it is appropriate to use the same
     small business size standards for these bands that we adopted in
     the 700 MHz Guard Bands.[^328] We believe that our proposed
     approach would provide a variety of businesses with opportunities
     to participate in the auction of licenses for these bands and
     afford licensees substantial flexibility for the provision of
     services with varying capital costs.

146. Accordingly, we propose to adopt the same tiered small business
     size standards that we have used for the WCS 2.3 GHz band and the
     700 MHz Guard Bands for the unpaired 1390-1392 MHz portion and the
     paired 1392-1395 MHz and 1432-1435 MHz portions of the 1.4 GHz
     band, the unpaired 1670-1675 MHz band and the unpaired 2385-2390
     MHz band. However, to be consistent with the small business
     definitions proposed below for the 1427-1432 MHz band, we will use
     the term "entrepreneur" for entities with average annual gross
     revenues not exceeding \$40 million for the three preceding years.
     We will use the term "small business" for entities with average
     annual gross revenues not exceeding \$15 million for the three
     preceding years. We seek comment on our proposal.

147. With respect to the 1427-1432 MHz band, we do not know exactly what
     kind of telemetry services a licensee might seek to provide.[^329]
     Although the capital costs of providing general telemetry services
     may vary, we believe that such capital costs will, in general, be
     lower than those for the other bands discussed above. Therefore, we
     propose to adopt tiered small business size standards for primary
     telemetry services in the 1427-1432 MHz band[^330] that are smaller
     than those proposed for the other bands. Specifically, we propose
     to define a "small business" as any entity with average annual
     gross revenues not exceeding \$15 million for the three preceding
     years, and a "very small business" as any entity with average
     annual gross revenues not exceeding \$3 million for the three
     preceding years. We seek comment on whether our proposed small
     business definitions are appropriate for the 1427-1432 MHz portion
     of the 1.4 GHz band.

148. If we ultimately adopt our proposed small business definitions for
     the 1.4 GHz band, the 1670-1675 MHz band and the unpaired 2385-2390
     MHz band auction, we further propose to provide entrepreneurs with
     a bidding credit of 15 percent, small businesses with a bidding
     credit of 25 percent, and very small businesses with a bidding
     credit of 35 percent. The bidding credits we propose here are those
     set forth in the standardized schedule in Part 1 of our
     Rules.[^331] We believe that these bidding credits will provide
     adequate opportunities for small businesses to participate in the
     1.4 GHz band, the 1670-1675 MHz band and the unpaired 2385-2390 MHz
     band auction.[^332]

149. In developing these proposals, 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. For these reasons, we invite
     interested parties to submit detailed information on the types of
     system architectures 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 type of services a
     licensee may seek to provide.

150. We also seek comment on whether the small business provisions we
     propose today are sufficient to promote participation by businesses
     owned by minorities and women, as well as rural telephone
     companies. To the extent that commenters propose additional
     provisions to ensure participation by minority-owned or women-owned
     businesses, they should address how such provisions should be
     crafted to meet the relevant standards of judicial review.[^333]

151. We note that in response to the *Reallocation Notice* MicroTrax
     proposes that the Commission create a new category of designated
     entity that would be eligible for a bidding credit.[^334] MicroTrax
     argues that we should provide bidding credits to commercial
     entities that propose to use their spectrum to benefit public
     safety and assist tax-supported public service institutions such as
     police and fire departments.[^335] MicroTrax suggests that such
     entities receive a bidding credit similar in scope to that provided
     to small businesses in the broadband PCS auctions.[^336] Several
     commenters disagree with MicroTrax's proposal.[^337] We note that
     in authorizing the Commission to use competitive bidding, Congress
     mandated that the Commission promote the objectives of Section
     309(j)(3) and ensure that small businesses, rural telephone
     companies, and businesses owned by members of minority groups and
     women are given the opportunity to participate in the provision of
     spectrum-based services. In order to promote these objectives
     Congress allowed the Commission to consider the use of certain
     procedures such as bidding credits.[^338] Our small business
     bidding credits, including the ones provided in the broadband PCS
     auctions, are designed to promote economic opportunities for a wide
     variety of applicants. We seek comment on MicroTrax's proposal and
     whether such bidding credits would promote the public interest
     objectives described in Section 309(j)(3). Commenters should
     specifically address whether provision of a bidding credit to
     commercial entities proposing public safety use of the spectrum
     would be inconsistent with the purpose of Section 309(j) in light
     of the express exemption from competitive bidding provided to
     public safety radio services licensees.[^339] Commenters in favor
     of MicroTrax's proposed bidding credit should also propose
     eligibility standards and methods by which the Commission would
     determine entities' eligibility for such bidding credits.[^340]

#  Procedural matters

## Initial Regulatory Flexibility Analysis

152. 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 of
     Proposed Rule Making; it is contained in Appendix A. We request
     written public comment on the analysis. Comments must be filed in
     accordance with the same filing deadlines as comments filed in
     response to the Notice of Proposed Rule Making, and must have a
     separate and distinct heading designating them as responses to the
     IRFA. The Commission\'s Consumer Information Bureau, Reference
     Information Center, will send a copy of this Notice of Proposed
     Rule Making, including the IRFA, to the Chief Counsel for Advocacy
     of the Small Business Administration.

## Paperwork Reduction Analysis

153. This Notice of Proposed Rule Making contains either a proposed or
     modified information collection. As part of our continuing effort
     to reduce paperwork burdens, we invite the general public and the
     Office of Management and Budget (OMB) to take this opportunity to
     comment on the infor­mation collections contained in this Notice of
     Proposed Rule Making, as required by the Paperwork Reduction Act of
     1995.[^341] Public and agency comments are due 60 days from the
     date of publication of this Notice in the Federal Register; OMB
     comments are due 120 days from the date of publication of this
     Notice in the Federal Register. Comments should address:

-   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.

-   The accuracy of the Commission\'s burden estimates.

-   Ways to enhance the quality, utility, and clarity of the information
    collected.

-   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.

154. Written comments by the public on the proposed and/or modified
     information collec­tions are due 60 days after the date of
     publication in the Federal Register. Written comments must be
     submitted by the OMB on the proposed and/or modified information
     collections on or before 120 days after the date of publication in
     the Federal Register. In addition to filing comments with the
     Secretary, a copy of any comments on the information collections
     contained herein should be submitted to Judy Boley, Federal
     Communications Commission, Room 1-C804, 445 Twelfth Street, S.W.,
     Washington, D.C. 20554, or via the Internet to jboley@fcc.gov, and
     to Ed Springer, OMB Desk Officer, Room 10236 New Executive Office
     Building, 725 Seventeenth Street, N. W., Washington, D.C. 20503, or
     via the Internet to Edward.Springer@omb.eop.gov.

## *Ex Parte* Presentations

155. For purposes of this permit-but-disclose notice and comment
     rulemaking proceed­ing, members of the public are advised that *ex
     parte* presentations are permitted, except dur­ing the Sunshine
     Agenda period, provided they are disclosed under the Commission\'s
     rules.[^342]

## Pleading Dates

156. Pursuant to applicable procedures set forth in Sections 1.415 and
     1.419 of the Commission\'s Rules,[^343] interested parties may file
     comments on or before **15 days from publication in the Federal
     Register** and reply comments on or before **30 days from
     publication in the Federal Register.** Comments and reply comments
     should be filed in WT Docket No. 02-08. All relevant and timely
     comments will be considered by the Commission before final action
     is taken in this proceeding. To file formally in this proceeding,
     interested parties must file an original and four copies of all
     comments, reply comments, and supporting comments. If interested
     parties want each Commissioner to receive a personal copy of their
     comments, they must file an original plus nine copies. Interested
     parties should send comments and reply comments to the Office of
     the Secretary, Federal Communications Commission, Room TW-A325, 445
     Twelfth Street, S.W., Washington, D.C. 20554, with a copy to Dana
     Davis, Public Safety & Private Wireless Division, Wireless
     Telecommunications Bureau, Federal Communication Commission, 445
     Twelfth Street, S.W., Washington, D.C. 20554.

157. Comments may also be filed using the Commission\'s Electronic
     Comment Filing System (ECFS).[^344] Comments filed through the ECFS
     can be sent as an electronic file via the Internet to
     \<http://www.fcc.gov/e-file/ecfs.html\>. Generally, only one copy
     of an electronic submission must be filed. In completing the
     transmittal screen, commenters should include their full name,
     Postal Service mailing address, and the applicable docket or
     rulemaking number. Parties may also submit an electronic comment by
     Internet e-mail. 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.

158. Comments and reply comments will be available for public inspection
     during regu­lar business hours at the FCC Reference Information
     Center, Room CY-A257, at the Federal Communica­tions Commission, 445
     Twelfth Street, S.W., Washington, D.C. 20554. Copies of comments
     and reply comments are available through the Commission\'s
     duplicating contractor: Qualex International, Portals II, 445 12th
     Street, SW, Room CY-B402, Washington, DC, 20554, telephone
     202-863-2893, facsimile 202-863-2898, or via e-mail
     qualexint@aol.com.

## Further Information

159. For further information concerning the Notice of Proposed
     Rulemaking, contact Zenji Nakazawa via phone at (202) 418-0680, via
     e-mail at znakazaw@fcc.gov, via TTY (202) 418-7233, Wireless
     Telecommunications Bureau, Federal Communications Commission,
     Washington, D.C. 20554.

160. Alternative formats (computer diskette, large print, audio
     cassette, and Braille) are available to persons with disabilities
     by contacting Brian Millin at (202) 418-7426, TTY (202) 418-7365,
     or via e-mail to bmillin@fcc.gov. This Notice of Proposed Rule
     Making can be downloaded at
     http://www.fcc.gov/Wirless/Orders/2002/fcc0215.txt.

# Ordering Clauses

161. ACCORDINGLY, IT IS ORDERED that, pursuant to Sections 1, 4(i), 302,
     303(f) and (r), and 332 of the Communications Act of 1934, as
     amended, 47 U.S.C. 1, 154(i), 302, 303(f) and (r), and 332, NOTICE
     IS HEREBY GIVEN of the proposed regulatory changes described in
     this NOTICE OF PROPOSED RULEMAKING, and that COMMENT IS SOUGHT on
     these proposals.

162. IT IS FURTHER ORDERED that pending applications to use the
     frequencies listed in Section 90.259 of the Commission's Rules, 47
     C.F.R. § 90.259, WILL BE PROCESSED provided that (1) they are not
     mutually exclusive with other applications as of February 6, 2002,
     nor with respect to the frequencies listed in Section 90.259, part
     of a proposed system that does not meet the requirements of our
     rules, without reference to any applications that are mutually
     exclusive with other applications as of February 4, 2002; and (2)
     the relevant period for filing competing applications has expired
     as of that date. Pending applications to use those frequencies not
     meeting the above criteria WILL BE HELD IN ABEYANCE until the
     conclusion of this proceeding. We will determine later, in
     accordance with such new rules as are adopted, whether to process
     or return any such pending applications.

163. IT IS FURTHER ORDERED that the Commission\'s Consumer Information
     Bureau, Reference Information Center, SHALL SEND a copy of this
     NOTICE OF PROPOSED RULEMAKING including the Initial Regulatory
     Flexibility Analysis, to the Chief Counsel for Advocacy of the
     Small Business Administration.

> FEDERAL COMMUNICATIONS COMMISSION
>
> William F. Caton
>
> Acting Secretary

**APPENDICES**

APPENDIX A \-- INITIAL REGULATORY FLEXIBILITY ANALYSIS

(for Notice of Proposed Rule Making)

13. As required by the Regulatory Flexibility Act (RFA),[^345] the
    Commission has prepared this present Initial Regulatory Flexibility
    Analysis (IRFA) of the possible significant economic impact on small
    entities by the policies and rules proposed in the Notice of
    Proposed Rulemaking (*Notice*), WT Docket No. 02-08. Written public
    comments are requested on this IRFA. Comments must be identified as
    responses to the IRFA and must be filed by the deadlines for
    comments on the *Notice* as provided above. The Commission will send
    a copy of the *Notice*, including the IRFA, to the Chief Counsel for
    Advocacy of the Small Business Administration.[^346] In addition,
    the *Notice* and IRFA (or summaries thereof) will be published in
    the Federal Register.[^347]

    **Need for, and Objectives of, the Proposed Rules:**

    In this *Notice*, we propose rules for the licensing and operation
    of fixed and mobile services in the 216-220 MHz, 1390-1395 MHz,
    1427-1429.5 MHz, 1429.5-1432 MHz, 1432-1435 MHz, 1670-1675 MHz and
    2385-2390 MHz bands pursuant to the provisions of the Communications
    Act of 1934, as amended, the Omnibus Budget Reconciliation Act of
    1993 (OBRA-93), and the Balanced Budget Act of 1997 (BBA-97). These
    seven bands have a variety of continuing Government protection
    requirements and incumbent Government and non-Government uses.
    Despite these constraints and the relatively narrow bandwidth
    contained in each of the bands, we believe that the *Notice* will
    foster a variety of potential applications in both new and existing
    services. The transfer of these bands to non-Government use should
    enable the development of new technologies and services, provide
    additional spectrum relief for congested private land mobile
    frequencies, and fulfill our obligations as mandated by Congress to
    assign this spectrum for non-Government use.

    We generally seek comment on the following issues under
    consideration for new services in the paired 1392-1395 MHz and
    1432-1435 MHz bands and the unpaired 1390-1392 MHz, 1670-1675 MHz
    and 2385-2390 MHz bands:

-   whether to authorize new services under Part 27 of our Rules;

-   whether to license new services by geographic service areas;

-   whether to license band managers in any of these bands;

-   whether to provide for partitioning and disaggregation of licensed
    spectrum; and

-   whether to adopt technical rules in order to prevent in-band and
    out-of-band interference.

16. We also address several issues relating to existing services
    currently operating in the 216-220 MHz, 1427-1429.5 MHz and
    1429.5-1432 MHz bands. We seek comment on the following issues:

-   whether secondary telemetry in the 217-220 MHz and 1427-1429.5 MHz
    bands should be licensed on a site-by-site basis;

-   whether primary telemetry in the 1429.5-1432 MHz band should be
    licensed on a site-by-site basis;

-   whether to add technical specifications to Part 90 of our Rules for
    telemetry operations;[^348]

-   whether to apply the frequency coordination procedures of Section
    90.175 to authorization of future telemetry operations.

17. In accordance with Section 309(j) of the Communication Act, if we
    adopt a licensing scheme under which mutually exclusive applications
    are accepted for filing, we must resolve such mutually exclusive
    applications by competitive bidding.[^349] We propose to conduct the
    auction of such licenses in conformity with the general competitive
    bidding rules set forth in Part 1, Subpart Q, of the Commission's
    Rules.[^350]

    Additionally, we seek comment on a petition for rulemaking filed on
    March 6, 2000, by Data Flow Systems, Inc., (Data Flow), requesting
    that the Commission amend Sections 90.35 and 90.259 of the
    Commission's Rules to allow the use of fixed telemetry in the
    216-220 MHz band.[^351] We also seek comment on a proposal filed by
    Securicor Wireless Holdings, Inc. (Securicor) in response to the
    *Reallocation Notice*.[^352] Securicor seeks to license
    "white-space" in the 216-220 MHz band similar to the paradigm
    established for land mobile use of the 220-222 MHz band. Lastly, we
    request comment on a proposal submitted by Warren Havens (Havens) in
    response to the *Reallocation Notice* that seeks the creation of a
    new \"Advanced Technologies 220 MHz\" Service in the 216-225 MHz
    band.[^353]

Legal Basis for Proposed Rules:

19. The proposed action is authorized under Sections 1, 4(i), 302,
    303(f) and (r), and 332 of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 1, 154(i), 302, 303(f) and (r), and 332(c).

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

20. 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.[^354] The RFA defines
    the term \"small entity\" as having the same meaning as the terms
    \"small business,\" \"small organization,\" and \"small governmental
    jurisdiction.\"[^355] In addition, the term \"small business\" has
    the same meaning as the term \"small business concern\" under the
    Small Business Act.[^356] A small business concern is one which: (1)
    is independently owned and operated; (2) is not dominant in its
    field of operation; and (3) satisfies any additional criteria
    established by the Small Business Administration (SBA).[^357] A
    small organization is generally \"any not-for-profit enterprise
    which is independently owned and operated and is not dominant in its
    field.\"[^358] Nationwide, as of 1992, there were approximately
    275,801 small organizations.[^359] \"Small governmental
    jurisdiction\"[^360] generally means \"governments of cities,
    counties, towns, townships, villages, school districts, or special
    districts, with a population of less than 50,000.\"[^361] As of
    1992, there were approximately 85,006 governmental entities in the
    United States.[^362] This number includes 38,978 counties, cities,
    and towns; of these, 37,566, or 96%, have populations of fewer than
    50,000.[^363] The Census Bureau estimates that this ratio is
    approximately accurate for all governmental entities. Thus, of the
    85,006 governmental entities, we estimate that 81,600 (96%) are
    small entities.

    With respect to the 1390-1395 MHz, 1432-1435 MHz, 1670-1675 MHz, and
    2385-2390 MHz bands, the Commission has not yet determined how many
    licenses will be awarded and does not know how many licensees will
    partition their license areas or disaggregate their spectrum blocks,
    if partitioning and disaggregation are allowed. Moreover, the
    Commission does not yet know how many applicants or licensees in
    these bands will be small entities. We therefore assume that, for
    purposes of our evaluations and conclusions in the IRFA, all
    prospective licensees are small entities, as that term is defined by
    the SBA or by our proposed small business definitions for these
    bands. We invite comment on this analysis.

    Existing services in other bands include entities that might be
    affected by the proposed rules, either as existing licensees or
    potential applicants or licensees. Incumbent services in the 216-220
    MHz band include the Automated Maritime Telecommunications Service
    (AMTS), the "218-219 MHz" Service, the Low Power Radio Service
    (LPRS) and telemetry. Incumbent services in the 1427-1429.5 MHz and
    1429.5-1432 MHz bands include wireless medical telemetry (WMTS) and
    general telemetry.

    *AMTS.* For future auctions in the AMTS, the Commission has proposed
    to define small businesses as those entities, together with their
    affiliates and controlling interests, with not more than \$15
    million in average gross revenues for the preceding three years, and
    very small businesses as those entities, together with their
    affiliates and controlling interests, with not more than \$3 million
    in average gross revenues for the preceding three years. [^364]
    Currently, there are only three AMTS licensees, none of whom are
    small businesses. However, potential licensees in AMTS include all
    public coast stations, which are classified by the Small Business
    Administration as Radiotelephone Service Providers, Standard
    Industrial Classification Code 4812.[^365] The Commission does not
    yet know how many applicants or licensees in these bands will be
    small entities. We therefore assume that, for purposes of our
    evaluations and conclusions in the IRFA, all prospective licensees
    are small entities, as that term is defined by the SBA or by our
    proposed small business definitions for these bands.

    *"218-219 MHz*\" *Service.* For the first auction of the "218-219
    MHz" Service the Commission defined a small business as an entity,
    together with its affiliates, that has no more than a \$6 million
    net worth and, after federal income taxes (excluding any carry over
    losses), has no more than \$2 million in annual profits each year
    for the previous two years.[^366] For that auction, 170 entities won
    licenses for 594 Metropolitan Statistical Area (MSA) licenses. Of
    the 594 licenses, 557 were won by entities qualifying as a small
    business. Subsequently, the Commission changed the service rules and
    defined small businesses as those entities, together with their
    affiliates and controlling interests, with not more than \$15
    million in average gross revenues for the preceding three years, and
    very small businesses as those entities, together with their
    affiliates and controlling interests, with not more than \$3 million
    in average gross revenues for the preceding three years.[^367] We
    cannot estimate, however, the number of licenses that will be won by
    entities qualifying as small businesses under our rules in future
    auctions of 218-219 MHz spectrum licenses. Given the success of
    small businesses in the first auction, we assume for purposes of
    this IRFA that in future auctions all of the licenses in the
    "218-219 MHz" Service may be awarded to small businesses.

    *Low Power Radio Service*. The Low Power Radio Service permits
    licensees to use the 216-217 MHz segment for auditory assistance,
    medical devices, and law enforcement tracking devices. Users are
    likely to be theaters, auditoriums, churches, schools, banks,
    hospitals, and medical care facilities. The primary manufacturer of
    auditory assistance estimates that it has sold 25,000 pieces of
    auditory assistance equipment. Many if not most LPRS users are
    likely to be small businesses or individuals. However, because the
    LPRS is licensed by rule, with no requirement for individual license
    applications or documents, the Commission is unable to estimate how
    many small businesses make use of LPRS equipment.

    *Telemetry.* Incumbent telemetry operators in the 216-220 MHz band
    include entities such as Fairfield Industries, Inc. which perform
    geophysical exploration for underground oil and natural gas
    reserves. Incumbent non-medical telemetry operators in the
    1427-1429.5 MHz and 1429.5-1432 MHz bands include Itron, Inc.,
    Pueblo Service Company of Colorado and E Prime, Inc., and large
    manufacturers such as Deere and Company, Caterpillar, and General
    Dynamics. None of these licensees are likely to be small businesses.
    Itron, Inc. is the primary user of the 1427-1429.5 MHz and
    1429.5-1432 MHz bands. Itron, Inc., with an investment of \$100
    million in equipment development, is not likely to be a small
    business. One licensee, Zytex, a manufacturer of high-speed
    telemetry systems, may be a small business. The Commission does not
    yet know how many applicants or licensees in these bands will be
    small entities. We therefore assume that, for purposes of our
    evaluations and conclusions in the IRFA, all prospective licensees
    are small entities.

    *WMTS.* Users of medical telemetry are hospitals and medical care
    facilities, some of which are likely to be small businesses.
    According to the SBA\'s regulations, hospitals and nursing homes
    must have annual gross receipts of \$5 million or less in order to
    qualify as a small business concern. There are approximately 11,471
    nursing care firms in the nation, of which 7,953 have annual gross
    receipts of \$5 million or less.[^368] There are approximately 3,856
    hospital firms in the nation, of which 294 have gross receipts of
    \$5 million or less. Thus, the approximate number of small confined
    setting entities to which the Commission\'s new rules will apply is
    8,247.

Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements:

28. Applicants for licenses to provide terrestrial fixed and mobile
    services in the paired 1392-1395 MHz and 1432-1435 MHz bands, the
    unpaired 1390-1392 MHz band, the unpaired 1670-1675 MHz band, and
    the unpaired 2385-2390 MHz band will be required to submit
    short-form auction applications using FCC Form 175.[^369] In
    addition, winning bidders must submit long-form license applications
    through the Universal Licensing System using FCC Form 601,[^370] and
    other appropriate forms.[^371] Licensees will also be required to
    apply for an individual station license by filing FCC Form 601 for
    those individual stations that (1) require submission of an
    Environmental Assessment under Section 1.1307 of our
    Rules;[^372] (2) require international coordination;[^373] (3) would
    operate in the quiet zones listed in Section 1.924 of our
    Rules;[^374] or (4) require coordination with the Frequency
    Assignment Subcommittee (FAS) of the Interdepartment Radio Advisory
    Committee (IRAC).[^375] We invite comment on how these filing
    requirements can be modified to reduce the burden on small entities.

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

29. The RFA requires an agency to describe any significant alternatives
    that it has considered in reaching its proposed approach, which may
    include the following four alternatives (among others): (1) the
    establishment of differing compliance or reporting requirements or
    timetables that take into account the resources available to small
    entities; (2) the clarification, consolidation, or simplification of
    compliance or reporting requirements under the rule for small
    entities; (3) the use of performance, rather than design standards;
    and (4) an exemption from coverage of the rule, or any part thereof,
    for small entities.[^376]

    We have reduced burdens wherever possible. To minimize any negative
    impact, however, we propose certain incentives for small entities
    that will redound to their benefit. These special provisions include
    partitioning and spectrum disaggregation.[^377] These provisions
    will allow smaller entities to overcome entry barriers. In addition,
    we seek comment on whether it would be appropriate to license the
    paired 1392-1395 MHz and 1432-1435 MHz bands and the unpaired
    1390-1392 MHz, 1670-1675 MHz and 2385-2390 MHz bands for fixed and
    mobile services using smaller geographical licensing areas.[^378]
    The use of smaller licensing areas could benefit small entities by
    reducing costs and build-out expenses.

    We also propose the use of bidding credits for small entities that
    participate in auctions of licenses that are conducted pursuant to
    the rules proposed in this Notice. Thus, for the paired 1392-1395
    MHz and 1432-1435 MHz bands and the unpaired 1390-1392 MHz,
    1670-1675 MHz, and 2385-2390 MHz bands, we propose to define an
    \"entrepreneur\" as an entity with average annual gross revenues not
    exceeding \$40 million for the three preceding years and we propose
    to define a \"small business\" as an entity with average annual
    gross revenues not exceeding \$15 million for the three preceding
    years. With respect to the 1427-1432 MHz band, in which we believe
    that the capital costs of providing primary general telemetry
    service will in general be lower than the capital costs for the
    bands discussed above, we propose to define a \"small business\" as
    an entity with average annual gross revenues not exceeding \$15
    million for the three preceding years and a \"very small business\"
    as an entity with average annual gross revenues not exceeding \$3
    million for the three preceding years. We further propose to provide
    entrepreneurs with a bidding credit of 15 percent, small businesses
    with a bidding credit of 25 percent, and very small businesses with
    a bidding credit of 35 percent. We believe that these bidding
    credits will help small entities compete in our auctions and acquire
    licenses. We seek comment on our proposed small business definitions
    and bidding credits, including information on factors that may
    affect the capital requirements of the type of services a licensee
    may seek to provide.

    The regulatory burdens we have retained, such as filing applications
    on appropriate forms, are necessary in order to ensure that the
    public receives the benefits of innovative new services in a prompt
    and efficient manner. We will continue to examine alternatives in
    the future with the objectives of eliminating unnecessary
    regulations and minimizing any significant economic impact on small
    entities. We seek comment on significant alternatives commenters
    believe we should adopt.

Report to Small Business Administration:

33. The Commission will send a copy of this Notice of Proposed
    Rulemaking, including a copy of the IRFA, to the Chief Counsel for
    Advocacy of the Small Business Administration. The Notice of
    Proposed Rulemaking and IRFA (or summaries there of) will also be
    published in the Federal Register.

Federal Rules that May Duplicate, Overlap, or Conflict With the Proposed
Rules:

34. None.

**APPENDIX B \-- List of Incumbent Licensees in 1429.5-1432 MHz Band**

+---------------+---------------+---------------+----------------------+
| **Name of     | **Frequency** | **Location    | **Area of            |
| Existing      |               | Type**        | Operation(s)**       |
| Licensee**    |               |               |                      |
+---------------+---------------+---------------+----------------------+
| Deere &       | 1431.5 MHz    | Mobile        | 161 kilometers       |
| Company       |               |               | centered on a point  |
| (KA73480)     |               |               | in Linn County, Iowa |
+---------------+---------------+---------------+----------------------+
| General       | 1432 MHz      | Mobile        | 8 kilometers         |
| Dynamics      |               |               | centered on a point  |
| Defense       |               |               | in Berkshire County, |
| Systems, Inc. |               |               | Massachusetts        |
| (KB50425)     |               |               |                      |
+---------------+---------------+---------------+----------------------+
| Itron, Inc.   | 1427-1432 MHz | Temporary     | Nationwide           |
| (WPCG645)     |               | Fixed and     |                      |
|               |               | Mobile        | Continental North    |
|               |               |               | and South of Line A, |
|               |               |               | West and East of     |
|               |               |               | Line C including,    |
|               |               |               | Alaska, Hawaii,      |
|               |               |               | American Samoa,      |
|               |               |               | Guam, North Mariann  |
|               |               |               | Islands, Puerto Rico |
|               |               |               | and Virgin Islands.  |
+---------------+---------------+---------------+----------------------+
| Mississippi   | 1433 MHz      | Fixed         | Starkville, MS       |
| State         |               |               |                      |
| University    |               |               |                      |
| (KNBH804)     |               |               |                      |
+---------------+---------------+---------------+----------------------+
| The Boeing    | 1433 MHz      | Fixed         | Wrightwood,          |
| Company       |               |               | California           |
| (WCB372)      |               |               |                      |
+---------------+---------------+---------------+----------------------+
| Zytex         | 1431 MHz      | Itinerant     | 3.0 kilometers       |
| Instruments,  |               |               | centered on points   |
| Ltd.          |               |               | in the following     |
| (WPNV482)     |               |               | counties:            |
|               |               |               |                      |
|               |               |               | Henry, Georgia       |
|               |               |               |                      |
|               |               |               | San Bernardino,      |
|               |               |               | California           |
|               |               |               |                      |
|               |               |               | Cabarrus, North      |
|               |               |               | Carolina             |
|               |               |               |                      |
|               |               |               | Volusia, Florida     |
|               |               |               |                      |
|               |               |               | Northampton,         |
|               |               |               | Pennsylvania         |
|               |               |               |                      |
|               |               |               | Marion, Indiana      |
|               |               |               |                      |
|               |               |               | Sonoma, California   |
|               |               |               |                      |
|               |               |               | Talladega, Alabama   |
|               |               |               |                      |
|               |               |               | Tarrant, Texas       |
|               |               |               |                      |
|               |               |               | Schuyler, New York   |
+---------------+---------------+---------------+----------------------+
| Zytex Sports  | 1431 MHz      | Itinerant     | 3.0 kilometers       |
| Telemetry     |               |               | centered on points   |
| Inc.          |               |               | in the following     |
| (WPPD284)     |               |               | counties:            |
|               |               |               |                      |
|               |               |               | Henry, Georgia       |
|               |               |               |                      |
|               |               |               | San Bernardino,      |
|               |               |               | California           |
|               |               |               |                      |
|               |               |               | Cabarrus, North      |
|               |               |               | Carolina             |
|               |               |               |                      |
|               |               |               | Volusia, Florida     |
|               |               |               |                      |
|               |               |               | Northampton,         |
|               |               |               | Pennsylvania         |
|               |               |               |                      |
|               |               |               | Marion, Indiana      |
|               |               |               |                      |
|               |               |               | Sonoma, California   |
|               |               |               |                      |
|               |               |               | Talladega, Alabama   |
|               |               |               |                      |
|               |               |               | Tarrant, Texas       |
|               |               |               |                      |
|               |               |               | Schuyler, New York   |
+---------------+---------------+---------------+----------------------+

**Appendix C \-- Proposed Definitions and Rules**

1.  Part 1 of title 47 of the Code of Federal Regulations, is proposed
    to be amended as follows:

**PART 1 -- PRACTICE AND PROCEDURE**

2.  The authority citation for Part 1 continues to read as follows:

**AUTHORITY: 47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), 309, and
325(e) unless otherwise noted.**

3.  We propose to amend Section 1.924(f) to read as follows:

**§ 1.924 Quiet zones.**

\* \* \* \* \*

\(f\) GOES. The requirements of this paragraph are intended to minimize
harmful interference to Geostationary Operational Environmental
Satellite earth stations receiving in the band 1670-1675 MHz, which are
located at Wallops Island, Virginia, Fairbanks, Alaska and Greenbelt
Maryland.

\(1\) Applicants and licensees planning to construct and operate a new
or modified station within the area bounded by a circle with a radius of
100 kilometers (62.1 miles) that is centered on 37^o^ 56\' 47\" N, 75^o^
27\' 37\" W (Wallops Island) or 64^o^ 58\' 36\" N, 147^o^ 31\' 03\" W
(Fairbanks) or within the area bounded by a circle with a radius of 65
kilometers (40.4 miles) that is centered on 39^o^ 00\' 02\" N, 76^o^
50\' 31\" W (Greenbelt) must notify the National Oceanic and Atmospheric
Administration (NOAA) of the proposed operation. For this purpose, NOAA
maintains the GOES coordination web page at
http://www.osd.noaa.gov/radio/frequency.htm, which provides the
technical parameters of the earth stations and the point-of-contact for
the notification. The notification shall include the following
information: requested frequency, geographical coordinates of the
antenna location, antenna height above mean sea level, antenna
directivity, emission type, equivalent isotropically radiated power,
antenna make and model, and transmitter make and model.

\(2\) When an application for authority to operate a station is filed
with the FCC, the notification required in paragraph (f)(1) of this
section should be sent at the same time. The application must state the
date that notification in accordance with paragraph (f)(1) of this
section was made. After receipt of such an application, the FCC will
allow a period of 20 days for comments or objections in response to the
notification.

\(3\) If an objection is received during the 20-day period from NOAA,
the FCC will, after consideration of the record, take whatever action is
deemed appropriate.

4.  Part 2 of title 47 of the Code of Federal Regulations is proposed to
    be amended as follows:

**PART 2 -- FREQUENCY ALLOCATIONS AND**

**RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS**

5.  The authority citation for Part 2 continues to read as follows:

**AUTHORITY: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise
noted.**

6.  We propose to amend Section 2.106, the Table of Frequency
    Allocations by revising footnotes US350 and US362 as follows:

**§ 2.106 Table of Frequency Allocations.**

\* \* \* \* \*

UNITED STATES (US) FOOTNOTES

\* \* \* \* \*

US350 In the bands 608-614 MHz and 1395-1400 MHz the Government and
non-Government land mobile service is limited to medical telemetry and
medical telecommand operations. Availability and use of medical
telemetry and telecommand and non-medical telemetry and telecommand in
the bands 1427-1429.5 MHz and 1429.5-1432 MHz are described below:

+---------------------+-----------------------+-----------------------+
| Location            | 1427-1429.5 MHz       | 1429.5-1432 MHz       |
|                     |                       |                       |
| (see §§             |                       |                       |
| 90.259(b)(4) and    |                       |                       |
| 95.630(b) of this   |                       |                       |
| chapter for a       |                       |                       |
| detailed            |                       |                       |
| description)        |                       |                       |
+---------------------+-----------------------+-----------------------+
| Austin/Georgetown,  | Non-Government land   | Government and        |
| Texas               | mobile service is     | non‑Government land   |
|                     | limited to telemetry  | mobile service is     |
|                     | and telecommand       | limited to medical    |
|                     | operations.           | telemetry and         |
|                     |                       | telecommand           |
|                     |                       | operations.           |
|                     |                       |                       |
|                     |                       | Non-Government        |
|                     |                       | telemetry and         |
|                     |                       | telecommand use is    |
|                     |                       | permitted on a        |
|                     |                       | secondary basis.      |
+---------------------+-----------------------+-----------------------+
| Battle Creek,       |                       |                       |
| Michigan            |                       |                       |
+---------------------+-----------------------+-----------------------+
| Detroit, Michigan   |                       |                       |
+---------------------+-----------------------+-----------------------+
| Pittsburgh,         |                       |                       |
| Pennsylvania        |                       |                       |
+---------------------+-----------------------+-----------------------+
| Richmond/Norfolk,   |                       |                       |
| Virginia            |                       |                       |
+---------------------+-----------------------+-----------------------+
| Spokane, Washington |                       |                       |
+---------------------+-----------------------+-----------------------+
| Washington, DC      |                       |                       |
| metropolitan area   |                       |                       |
+---------------------+-----------------------+-----------------------+
| Rest of U.S.        | Government and        | Non-Government land   |
|                     | non‑Government land   | mobile service is     |
|                     | mobile service is     | limited to telemetry  |
|                     | limited to medical    | and telecommand       |
|                     | telemetry and         | operations.           |
|                     | telecommand           |                       |
|                     | operations.           |                       |
|                     |                       |                       |
|                     | Non-Government        |                       |
|                     | telemetry and         |                       |
|                     | telecommand use is    |                       |
|                     | permitted on a        |                       |
|                     | secondary basis.      |                       |
+---------------------+-----------------------+-----------------------+

\* \* \* \* \*

US362 The band 1670-1675 MHz is allocated to the
meteorological-satellite service (space-to-Earth) on a primary basis for
Government use. Earth station use of this allocation is limited to
Wallops Island, VA (37° 56\' 47\'\' N, 75° 27\' 37\'\' W), Fairbanks, AK
(64° 58\' 36\'\' N, 147° 31\' 03\'\' W), and Greenbelt, MD (39° 00\'
02\'\' N, 76° 50\' 31\'\' W). Applicants for non-Government stations
within 100 kilometers of the Wallops Island or Fairbanks coordinates and
within 65 kilometers of the Greenbelt coordinates shall notify NOAA in
accordance with the procedures specified in 47 C.F.R. § 1.924.

7.  Part 27 of title 47 of the Code of Federal Regulations is proposed
    to be amended as follows:

**PART 27 -- MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES**

8.  The authority citation for Part 27 continues to read as follows:

**AUTHORITY: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and 337,
unless otherwise noted.**

9.  We propose to add the following definitions to Section 27.4:

    **§ 27.4 Terms and definitions.**

**\* \* \* \* \***

***Band Manager*.** The term *Band Manager* refers to a licensee in the
1390-1392 MHz, 1392-1395 MHz, 1432-1435 MHz, 1670-1675 MHz and 2385-2390
MHz bands that functions solely as a spectrum broker by subdividing its
licensed spectrum and making it available to system operators or
directly to end users for fixed or mobile communications consistent with
Commission Rules. A *Band Manager* is directly responsible for any
interference or misuse of its licensed frequency arising from its use by
such non-licensed entities.

10. We propose to add a new Subpart to Part 27 as follows:

    **Subpart H -- 1.4 GHz Service**

    **§ 27.701 Scope.**

    This subpart sets out the regulations governing service in the
    paired 1392-1395 MHz and 1432-1435 MHz bands as well as the unpaired
    1390-1392 MHz band (1.4 GHz Service).

    **§ 27.702 Permissible communications.**

Licensees in the paired 1392-1395 MHz and 1432-1435 MHz bands and
unpaired 1390-1392 MHz band are authorized to provide fixed or mobile
service, except aeronautical service, subject to the technical
requirements of this subpart.

§ 27.703 Coordination requirements.

\(a\) Licensees in the 1.4 GHz Service will be issued geographic area
licenses.

\(b\) Licensees in the 1.4 GHz Service must file a separate station
application with the Commission and obtain an individual station
license, prior to construction or operation, of any station:

> \(1\) that requires submission of an Environmental Assessment under
> Part 1, § 1.1307;

\(2\) that requires international coordination;

> \(3\) that operates in the quiet zones listed in Part 1, §1.924; or

\(4\) that requires approval of the Frequency Advisory Subcommittee
(FAS) of the Interdepartment Radio Advisory Committee (IRAC). Stations
that require FAS approval are as follows:

\(i\) licensees in the 1390-1392 MHz and 1392-1395 MHz band must receive
FAS approval prior to operation of fixed sites or mobile units within
the NTIA recommended protection radii of the Government sites listed in
footnote US351 of § 2.106.

\(ii\) licensees in the 1432-1435 MHz band must receive FAS approval,
prior to operation of fixed sites or mobile units within the NTIA
recommended protection radii of the Government sites listed in footnote
US361 of § 2.106.

\(c\) Prior to construction of a station, a 1.4 GHz licensee must
register with the Commission any station antenna structure for which
notification to the Federal Aviation Administration is required by Part
17 of this chapter.

\(d\) It is the licensee's responsibility to determine whether an
individual station needs referral to the Commission.

\(e\) The notification required in subparagraph (b) must be filed on the
Universal Licensing System.

§ 27.704 Geographic partitioning and spectrum disaggregation.

An entity that acquires a portion of a 1.4 GHz licensee's geographic
area or spectrum subject to a geographic partitioning or spectrum
disaggregation agreement under § 27.15 must function as a 1.4 GHz
licensee and is subject to the obligations and restrictions on the 1.4
GHz license as set forth in this subpart.

**§ 27.705 1.4 GHz Service licenses subject to competitive bidding.**

Mutually exclusive initial applications for 1.4 GHz Service licenses in
the paired 1392-1395 MHz and 1432-1435 MHz bands as well as the unpaired
1390-1392 MHz band are subject to competitive bidding. The general
competitive bidding procedures set forth in Part 1, Subpart Q of this
chapter will apply unless otherwise provided in this part.

**§ 27.706 Designated entities.**

\(a\) Eligibility for small business provisions for 1.4 GHz Service
licenses in the paired 1392-1395 MHz and 1432-1435 MHz bands and the
unpaired 1390-1392 MHz band.

\(1\) A small business is an entity that, together with its controlling
interests and affiliates, has average annual gross revenues not
exceeding \$15 million for the preceding three years.

\(2\) An entrepreneur is an entity that, together with its controlling
interests and affiliates, has average annual gross revenues not
exceeding \$40 million for the preceding three years.

\(3\) A consortium of small businesses is a conglomerate organization
formed as a joint venture between or among mutually independent business
firms, each of which individually satisfies the definition in paragraph
(a)(1) of this section. A consortium of entrepreneurs is a conglomerate
organization formed as a joint venture between or among mutually
independent business firms, each of which individually satisfies the
definition in paragraph (a)(2) of this section.

\(4\) For purposes of determining whether an entity meets any of the
definitions set forth in paragraphs (a)(1), (a)(2), or (a)(3) of this
section, the gross revenues of the entity, its controlling interests and
affiliates shall be considered in the manner set forth in § 1.2110(b)
and (c) of this chapter.

\(b\) Bidding credits. A winning bidder that qualifies as a small
business or a consortium of small businesses as defined in this section
may use the bidding credit specified in § 1.2110(f)(2)(ii) of this
chapter. A winning bidder that qualifies as an entrepreneur or a
consortium of entrepreneurs as defined in this section may use the
bidding credit specified in § 1.2110(f)(2)(iii) of this chapter.

11. We propose to add a new Subpart to Part 27 as follows:

**Subpart I - 1670-1675 MHz Service.**

**§ 27.801 Scope.**

This subpart sets out the regulations governing service in the 1670-1675
MHz band (1670-1675 MHz Service).

**§ 27.802 Permissible communications.**

Licensees in the 1670-1675 MHz Service are authorized to provide fixed
or mobile service, except aeronautical mobile service, subject to the
technical requirements of this subpart.

§ 27.803 Coordination requirements.

\(a\) Licensees in the 1670-1675 MHz Service will be issued geographic
area licenses.

\(b\) Licensees in the 1670-1675 MHz Service must file a separate
station application with the Commission and obtain an individual station
license, prior to construction or operation, of any station:

> \(1\) that requires submission of an Environmental Assessment under
> Part 1, § 1.1307;

\(2\) that requires international coordination;

\(3\) that operates in the quiet zones listed under Part 1, § 1.924.

\(c\) The notification required in subparagraph (b) must be filed on the
Universal Licensing System.

\(d\) Prior to construction of a station, a licensee must register with
the Commission any station antenna structure for which notification to
the Federal Aviation Administration is required by Part 17 of this
chapter.

\(e\) It is the licensee's responsibility to determine whether an
individual station requires referral to the Commission.

§ 27.804 Geographic partitioning and spectrum disaggregation.

An entity that acquires a portion of a 1670-1675 MHz licensee's
geographic area or spectrum subject to a geographic partitioning or
spectrum disaggregation agreement under § 27.15 must function as a
1670-1675 MHz licensee and is subject to the obligations and
restrictions on the 1670-1675 MHz license as set forth in this subpart.

**§ 27.805 1670-1675 MHz Service** **licenses subject to competitive
bidding.**

Mutually exclusive initial applications for 1670-1675 MHz Service
licenses are subject to competitive bidding. The general competitive
bidding procedures set forth in Part 1, Subpart Q of this chapter will
apply unless otherwise provided in this part.

**§ 27.806 Designated entities.**

\(a\) Eligibility for small business provisions.

\(1\) A small business is an entity that, together with its controlling
interests and affiliates, has average annual gross revenues not
exceeding \$15 million for the preceding three years.

\(2\) An entrepreneur is an entity that, together with its controlling
interests and affiliates, has average annual gross revenues not
exceeding \$40 million for the preceding three years.

\(3\) A consortium of small businesses is a conglomerate organization
formed as a joint venture between or among mutually independent business
firms, each of which individually satisfies the definition in paragraph
(a)(1) of this section. A consortium of entrepreneurs is a conglomerate
organization formed as a joint venture between or among mutually
independent business firms, each of which individually satisfies the
definition in paragraph (a)(2) of this section.

\(4\) For purposes of determining whether an entity meets any of the
definitions set forth in paragraphs (a)(1), (a)(2), or (a)(3) of this
section, the gross revenues of the entity, its controlling interests and
affiliates shall be considered in the manner set forth in § 1.2110(b)
and (c) of this chapter.

\(b\) Bidding credits. A winning bidder that qualifies as a small
business or a consortium of small businesses as defined in this section
may use the bidding credit specified in § 1.2110(f)(2)(ii) of this
chapter. A winning bidder that qualifies as an entrepreneur or a
consortium of entrepreneurs as defined in this section may use the
bidding credit specified in § 1.2110(f)(2)(iii) of this chapter.

12. We propose to add a new Subpart to Part 27 as follows:

**Subpart J - 2385-2390 MHz Service.**

**§ 27.901 Scope.**

This subpart sets out the regulations governing service in the 2385-2390
MHz band (2385-2390 MHz Service).

**§ 27.902 Permissible communications.**

Licensees in the 2385-2390 MHz Service are authorized to provide fixed
or mobile service subject to the technical requirements of this subpart.

**§ 27.903 Coordination requirements.**

\(a\) Licensees in the 2385-2390 MHz Service will be issued geographic
area licenses.

\(b\) Licensees in the 2385-2390 MHz Service must file a separate
station application with the Commission and obtain an individual station
license, prior to construction or operation, of any station:

> \(1\) that requires submission of an Environmental Assessment under
> Part 1, § 1.1307;
>
> \(2\) that requires international coordination;
>
> \(3\) that operates in the quiet zones listed in Part 1, § 1.924;

\(4\) that requires approval of the Frequency Advisory Subcommittee
(FAS) of the Interdepartment Radio Advisory Committee(IRAC). Licensees
in the 2385-2390 MHz Service must receive FAS approval prior to
operation of fixed sites or mobile units within the NTIA recommended
protection radii of the Government aeronautical telemetry sites listed
in footnote US363 of § 2.106.

\(5\) that would require approval of the Aeronautical Flight Test Radio
Coordinating Council (AFTRCC). Licensees in the 2385-2390 MHz Service
must receive AFTRCC approval prior to operation of fixed sites or mobile
units within the AFTRCC recommended protection radii of the
non-Government flight test operations listed in footnote US363 of §
2.106.

\(c\) Prior to construction of a station, the 2385-2390 MHz licensee
must register with the Commission any station antenna structure for
which notification to the Federal Aviation Administration is required by
Part 17 of this chapter.

\(d\) It is the licensee's responsibility to determine whether a
referral to the Commission is needed for any individual station
constructed.

\(e\) The notification required in subparagraph (b) must be filed on the
Universal Licensing System.

**§ 27.904 Geographic partitioning and spectrum disaggregation.**

An entity that acquires a portion of a 2385-2390 MHz licensee's
geographic area or spectrum subject to a geographic partitioning or
spectrum disaggregation agreement under § 27.15 must function as a
2385-2390 MHz licensee and is subject to the obligations and
restrictions on the 2385-2390 MHz license as set forth in this subpart.

**§ 27.905 2385-2390 MHz Service** **licenses subject to competitive
bidding.**

Mutually exclusive initial applications for 2385-2390 MHz Service
licenses are subject to competitive bidding. The general competitive
bidding procedures set forth in Part 1, Subpart Q of this chapter will
apply unless otherwise provided in this part.

**§ 27.906** **Designated entities.**

\(a\) Eligibility for small business provisions.

\(1\) A small business is an entity that, together with its controlling
interests and affiliates, has average annual gross revenues not
exceeding \$15 million for the preceding three years.

\(2\) An entrepreneur is an entity that, together with its controlling
interests and affiliates, has average annual gross revenues not
exceeding \$40 million for the preceding three years.

\(3\) A consortium of small businesses is a conglomerate organization
formed as a joint venture between or among mutually independent business
firms, each of which individually satisfies the definition in paragraph
(a)(1) of this section. A consortium of entrepreneurs is a conglomerate
organization formed as a joint venture between or among mutually
independent business firms, each of which individually satisfies the
definition in paragraph (a)(2) of this section.

\(4\) For purposes of determining whether an entity meets any of the
definitions set forth in paragraphs (a)(1), (a)(2), or (a)(3) of this
section, the gross revenues of the entity, its controlling interests and
affiliates shall be considered in the manner set forth in § 1.2110(b)
and (c) of this chapter.

\(b\) Bidding credits. A winning bidder that qualifies as a small
business or a consortium of small businesses as defined in this section
may use the bidding credit specified in § 1.2110(f)(2)(ii) of this
chapter. A winning bidder that qualifies as an entrepreneur or a
consortium of entrepreneurs as defined in this section may use the
bidding credit specified in § 1.2110(f)(2)(iii) of this chapter.

13. We propose to add a new Subpart to Part 27 as follows:

**Subpart K - Band Managers.**

**§ 27.1001 Scope.**

This subpart sets out the regulations governing Band Managers in the
paired 1392-1395 MHz and 1432-1435 MHz bands and unpaired 1390-1392 MHz,
1670-1675 MHz and 2385-2390 MHz bands.

**§ 27.1002 Permissible communications.**

Band Managers are authorized to allow a spectrum user to provide fixed
or mobile service subject to the technical requirements of this subpart.

**§ 27.1002 Band Manager authority.**

\(a\) A Band Manager may allow a spectrum user, pursuant to a written
agreement, to construct and operate stations at any available site
within the licensed area and on any channel for which the Band Manager
is licensed, provided such stations comply with Commission Rules and
coordination requirements.

\(b\) A Band Manager may allow a spectrum user, pursuant to a written
agreement, to delete, move or change the operating parameters of any of
the user's stations that are covered under the Band Manager's license
without prior Commission approval, provided such stations comply with
Commission Rules and coordination requirements.

§ 27.1003 Band Manager agreements.

Band Managers are required to enter into written agreements regarding
the use of their licensed spectrum by others, subject to the following
conditions:

\(a\) The duration of spectrum user agreements may not extend beyond the
term of the Band Manager's FCC license.

\(b\) The spectrum user agreement must specify in detail the operating
parameters of the spectrum user's system, including power, maximum
antenna heights, frequencies of operation, base station location(s),
area(s) of operation.

\(c\) The spectrum user agreement must require the spectrum user to use
Commission-approved equipment where appropriate and to complete
post-construction proofs of system performance prior to system
activation.

\(d\) The spectrum user must agree to operate its system in compliance
with all technical specifications for the system contained in the
agreement and agree to cooperate fully with any investigation or inquiry
conducted by either the Commission or the Band Manager.

\(e\) The spectrum user must agree to comply with all applicable
Commission rules, and the spectrum user must accept Commission oversight
and enforcement.

\(f\) The spectrum user agreement must stipulate that if the Band
Manager determines that there is an ongoing violation of the
Commission's rules or that the spectrum user's system is causing harmful
interference, the Band Manager shall have the right to suspend or
terminate operation of the spectrum user's system. The spectrum user
agreement must stipulate that if the spectrum user refuses to comply
with a suspension or termination order, the Band Manager will be free to
use all legal means necessary to enforce the order.

\(g\) The spectrum user agreement may not impose unduly restrictive
requirements on use of the licensed frequencies, including any
requirement that is not reasonably related to the efficient management
of the spectrum licensed to the Band Manager.

\(h\) Band Managers shall maintain their written agreements with
spectrum users at their principal place of business, and retain such
records for at least two years after the date such agreements expire.
Such records shall be kept current and be made available upon request
for inspection by the Commission or its representatives.

§ 27.1004 Access to the Band Manager's spectrum.

\(a\) A Band Manager may not engage in unjust or unreasonable
discrimination among spectrum users and may not unreasonably deny
prospective spectrum users access to the Band Manager's licensed
spectrum.

\(b\) A Band Manager may not impose unduly restrictive requirements on
use of its licensed frequencies, including any requirement that is not
reasonably related to the efficient management of the spectrum licensed
to the Band Manager.

14. Part 90 of title 47 of the Code of Federal Regulations is proposed
    to be amended as follows:

    **PART 90 -- PRIVATE LAND MOBILE RADIO SERVICE**

15. The authority citation for Part 90 continues to read as follows:

**AUTHORITY: Sections 4(i), 11, 303(g), 303(r), and 302(c)(7) of the
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g),
303(r), 332(c)(7), unless otherwise noted.**

16. Section 90.175 proposed to be revised by amending paragraph (i)(13)
    to read as follows:

    **§ 90.175 Frequency coordination requirements.**

    \* \* \* \* \*

    \(i\) \* \* \*

    \(13\) Applications for frequencies in the 1429.5-1432 MHz band.

17. Section 90.259 is proposed to be revised by amending paragraph (b)
    to read as follows:

§ 90.259 Assignment and use of frequencies in the bands 216-220 MHz and
1427-1432 MHz.

\* \* \* \* \*

> \(b\) 1427-1432 MHz band.

\(1\) Frequencies in the 1427-1432 MHz band may be assigned to
applicants that establish eligibility in the Public Safety Pool or the
Industrial/Business Pool.

\(2\) All operations in the 1427-1429.5 MHz band are secondary to the
Wireless Medical Telemetry Service except in the locations specified in
paragraph (b)(4) of this section where operations are primary in status.

\(3\) All operations in the 1429.5-1432 MHz are primary in status except
in the locations specified in paragraph (b)(4) of this section where
operations are secondary to the Wireless Medical Telemetry Service.

\(4\) Locations:

\(i\) Pittsburgh, Pennsylvania -- Westmoreland, Washington, Beaver,
Allegheny and Butler counties;

\(ii\) Washington, DC metropolitan area -- Montgomery, Prince William,
Fairfax, Prince George's and Charles counties, Alexandria City, District
of Columbia;

\(iii\) Richmond/Norfolk, Virginia -- Goochland, Powhatan, Hanover,
Henrico counties, Richmond City, Hampton City, Virginia Beach City,
Chesapeake City, Portsmouth City and Suffolk City;

\(iv\) Austin/Georgetown, Texas -- Williamson and Travis counties;

\(v\) Battle Creek, Michigan -- Calhoun county

\(vi\) Detroit, Michigan -- Oakland county

\(vii\) Spokane, Washington -- Spokane county.

\(5\) All operations in the 1429.5-1432 MHz band authorized prior to
\[**Effective date of the *Reallocation Report and Order***\] are on a
secondary basis.

18. We propose to add a new Subpart to Part 90 as follows:

**Subpart Y - Competitive Bidding Procedures for Primary Telemetry in
the 1427-1432 MHz band.**

§ 90.1201 1.4 GHz primary telemetry licenses subject to competitive
bidding.

Mutually exclusive initial applications for 1.4 GHz primary telemetry
licenses in the 1427-1432 MHz band are subject to competitive bidding.
The general competitive bidding procedures set forth in Part 1, Subpart
Q of this chapter will apply unless otherwise provided in this part.

§ 90. 1202 Designated entities.

\(a\) Eligibility for small business provisions.

\(1\) A very small business is an entity that, together with its
controlling interests and affiliates, has average annual gross revenues
not exceeding \$3 million for the preceding three years.

\(2\) A small business is an entity that, together with its controlling
interests and affiliates, has average annual gross revenues not
exceeding \$15 million for the preceding three years.

\(3\) A consortium of very small businesses is a conglomerate
organization formed as a joint venture between or among mutually
independent business firms, each of which individually satisfies the
definition in paragraph (a)(1) of this section. A consortium of small
businesses is a conglomerate organization formed as a joint venture
between or among mutually independent business firms, each of which
individually satisfies the definition in paragraph (a)(2) of this
section.

\(b\) Bidding credits. A winning bidder that qualifies as a very small
business or a consortium of very small businesses as defined in this
section may use the bidding credit specified in § 1.2110(f)(2)(i) of
this chapter. A winning bidder that qualifies as a small business or a
consortium of small businesses as defined in this section may use the
bidding credit specified in § 1.2110(f)(2)(ii) of this chapter.

19. Part 95 of title 47 of the Code of Federal Regulations is proposed
    to be amended as follows:

**PART 95 -- PERSONAL RADIO SERVICES**

20. The authority citation for Part 95 continues to read as follows:

**AUTHORITY: Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47 U.S.C.
154, 303.**

21. Section 95.630 is proposed to be amended as follows:

**§ 95.630 WMTS transmitter frequencies.**

\(a\) WMTS transmitters may operate in the frequency bands specified
below:

608-614 MHz

1395-1400 MHz

1427-1429.5 MHz, except at the locations specified in paragraph (b)

1429.5- 1432 MHz, only at the locations specified in paragraph (b)

> \(b\) Locations:

\(1\) Pittsburgh, Pennsylvania -- Westmoreland, Washington, Beaver,
Allegheny and Butler counties;

\(2\) Washington, DC metropolitan area -- Montgomery, Prince William,
Fairfax, Prince George's and Charles counties, Alexandria City, District
of Columbia;

\(3\) Richmond/Norfolk, Virginia -- Goochland, Powhatan, Hanover,
Henrico counties, Richmond City, Hampton City, Virginia Beach City,
Chesapeake City, Portsmouth City and Suffolk City;

\(4\) Austin/Georgetown, Texas -- Williamson and Travis counties;

\(5\) Battle Creek, Michigan -- Calhoun county

\(6\) Detroit, Michigan -- Oakland county

\(7\) Spokane, Washington -- Spokane county.

22. Section 95.639(g) is proposed to be amended as follows:

**§ 95.639 Maximum transmitter power.**

\* \* \* \* \*

\(g\) The maximum field strength authorized for WMTS stations in the
608-614 MHz band is 200 mV/m, measured at 3 meters. For stations in the
1395-1400 MHz, 1427-1429.5 MHz, and 1429.5-1432 MHz bands, the maximum
field strength is 740 mV/m, measured at 3 meters.

23. Section 95.1101 is proposed to be amended as follows:

**§ 95.1101 Scope.**

This part sets out the regulations governing the operation of Wireless
Medical Telemetry Devices in the 608-614 MHz**,** 1395-1400 MHz,
1427-1429.5 MHz and 1429.5-1432 MHz frequency bands.

24. Section 95.1103(c) is proposed to be amended as follows:

**§ 95.1103 Definitions.**

\* \* \* \* \*

\(c\) Wireless medical telemetry. The measurement and recording of
physiological parameters and other patient-related information via
radiated bi- or unidirectional electromagnetic signals in the
608-614 MHz, 1395-1400 MHz, 1427-1429.5 MHz, and 1429.5-1432 MHz
frequency bands.

25. Sections 95.1115(a)(2) and 95.1115(d)(1) are proposed to be amended
    as follows:

**§ 95.1115 General technical requirements.**

\(a\) \* \* \*

\(2\) In the 1395-1400 MHz, 1427-1429.5 MHz, and 1429.5-1432 MHz bands,
the maximum allowable field strength is 740 mV/m, as measured at a
distance of 3 meters, using measuring equipment with an averaging
detector and a 1 MHz measurement bandwidth.

\* \* \* \* \*

\(d\) Channel use. (1) In the 1395-1400 MHz, 1427-1429.5 MHz, and
1429.5-1432 MHz bands, no specific channels are specified. Wireless
medical telemetry devices may operate on any channel within the bands
authorized for wireless medical telemetry use in this part.

26. Section 95.1121 is proposed to be amended as follows:

**§ 95.1121 Specific requirements for wireless medical telemetry devices
operating in the 1395-1400 MHz, 1427-1429.5 MHz, and 1429.5-1432 MHz
bands.**

Due to the critical nature of communications transmitted under this
part, the frequency coordinator in consultation with the National
Telecommunications and Information Administration shall determine
whether there are any Federal Government systems whose operations could
affect, or could be affected by, proposed wireless medical telemetry
operations in the 1395-1400 MHz 1427-1429.5 MHz, and 1429.5-1432 MHz
bands. The locations of government systems in these bands are specified
in footnotes US351 and US352 of § 2.106 of this chapter.

**SEPARATE STATEMENT OF**

**COMMISSIONER KATHLEEN ABERNATHY**

**In re: Reallocation of 216-220 MHz, 1427-1430 MHz, 1430-1432 MHz,
1432-1435 MHz, 1670-1675 MHz, and 2385-2390 MHz Government Transfer
Bands (WT Docket No. 02- 08).**

In the allocation and service rule decisions in this docket the
Commission has made important spectrum management decisions that will
provide valuable new services to the American people. I write separately
to applaud three key aspects of today's order: (1) diverse and flexible
spectrum policy, (2) creative domestic policy sensitive to global
considerations, and (3) support and due consideration for private
parties' compromise solutions to public policy issues.

First, the Commission proposes to license two 5 MHz unpaired blocks of
spectrum on a nationwide basis. As the marketplace and technology
evolve, the Commission will be increasingly called upon to license
spectrum in innovative and non-traditional ways. The days of always
seeking to auction 10 MHz paired blocks are over. Instead a diversity of
technologies (i.e. ArrayComm's TDD and AeroAstro's satellite enabled
notification system) and applications (i.e. Microtrax personal location
system) require diverse allocation and service rule decisions. This is
particularly true while the transaction costs of spectrum deals in the
secondary market remain so high. These high costs increase the
importance of diversity and flexibility in our initial allocation and
service rules. Today's items advance the Commission's goals in this
regard, while underscoring the importance of our secondary markets
proceeding to the long-term health of our spectrum management policy.

Second, our items provide for a contingent allocation for Little Leo
satellite services in the 1.4 GHz band. While it is not typical for the
Commission to allocate spectrum on a contingent basis, failure to
provide for such a contingency would have unfairly foreclosed the Little
Leo community's ability to succeed at the World Radio Conference in
2003. Once again, the increasingly complex and global spectrum
management landscape has required us to adapt and respond creatively --
our contingent allocation evidences this capability.

Finally, the Commission today takes an important step towards meeting
the needs of the utility and medical telemetry communities by
tentatively concluding that their compromise proposal will guide our
consideration of the 1427-1432 MHz band. Although we will obviously
await a full record and careful consideration of this issue, the
compromise advanced by the parties should be applauded. The medical and
utility telemetry communities privately crafted a solution that advances
each of their interests -- a job often better done by the parties than
by government. There is no question that mutual resolution of their
private interests greatly assists the Commission in assessing the
broader public interest. I look forward to working with all the parties
and my colleagues to take advantage of the significant opportunities
presented by these bands -- and continuing to craft an evolving spectrum
policy that maximizes those opportunities.

[^1]: Pub. L.103‑66, 107 Stat. 312 (1993). The National
    Telecommunications and Information Administration (NTIA) submitted a
    report to the President, the Congress, and the Federal
    Communications Commission (FCC) outlining a transition timetable for
    the reallocation of this spectrum. National Telecommunications and
    Information Administration, U.S. Department of Commerce, Special
    Publication 95-32, *Spectrum Reallocation Final Report* (Feb. 1995)
    (*1995 NTIA Spectrum Reallocation Report*). Under the transition
    timetable proposed in that report, the 1390-1400 MHz, 1427-1432 MHz,
    and 1670-1675 MHz bands were scheduled for reallocation in January
    1999. *Id.* at v.

[^2]: Pub. L.105-33, 111 Stat. 251 (1997). The National
    Telecommunications and Information Administration (NTIA) submitted a
    report to the President, the Congress, and the Federal
    Communications Commission (FCC) outlining a transition timetable for
    the reallocation of this spectrum through the process of competitive
    bidding. National Telecommunications and Information Administration,
    U.S. Department of Commerce, Special Publication 98-36, *Spectrum
    Allocation Report* (Feb. 1998) (*1998 NTIA Spectrum Reallocation
    Report)*. Under that transition timetable proposed under this
    report, the 1385-1390 MHz and 1432-1435 MHz bands were scheduled for
    reallocation in January 1999. *Id.* at iv. The 216-220 MHz band was
    scheduled for reallocation in January 2002. *Id.*

[^3]: Prior to transfer from the Government, non-Government operations
    were operating in the 216-220 MHz and the 1427-1435 MHz bands. *See*
    47 C.F.R. §§ 80.475, 90.248, 90.259, 95.801, 95.1001 and 95.1101.

[^4]: Prior to the release of the *Reallocation Report and Order*,
    Section 90.259 of our Rules permitted telemetry operations
    throughout the entire 216-220 MHz band and in the 1427-1435 MHz
    band. *See* 47 C.F.R. § 90.259 (2000). We note that in the
    *Reallocation Report and Order*, telemetry is limited to the 216-220
    MHz band (secondary), the 1427-1429.5 MHz band (secondary) and the
    1429.5-1432 MHz band (primary). New telemetry operations in the
    216-217 MHz portion of the 216-220 MHz band will no longer be
    authorized after January 1, 2002. *See* 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, *Report
    and Order and Memorandum Opinion and Order,* ET Docket No. 00-221,
    FCC 01-382 at ¶ 26 (rel. January 2, 2002) (*Reallocation Report and
    Order*)

[^5]: 47 U.S.C. § 309(j).

[^6]: 47 C.F.R. § Part 1, Subpart Q.

[^7]: Petition for Rulemaking filed by Data Flow Systems, Inc. on March
    6, 2000, RM-9882 (*Data Flow Petition for Rulemaking*). The
    Commission's Rules currently do not permit this use. *See* 47 C.F.R.
    §§ 90.35 and 90.259.

[^8]: *See* Securicor Comments filed on March 8, 2001 (*Securicor
    Comments*).

[^9]: *See* Warren Havens Comments filed on March 8, 2001 (*Havens
    Comments*).

[^10]: *Reallocation Report and Order, supra* note 4; 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, *Notice of Proposed Rulemaking,* ET Docket 00-221, 15 FCC Rcd
    22657 (2000) (*Reallocation Notice*).

[^11]: *Id.*

[^12]: *Id.*

[^13]: 47 C.F.R. § 2.106, footnote US368. *See Reallocation Report and
    Order* at ¶ 52.

[^14]: *See* *1995 NTIA Spectrum Reallocation Report.*

[^15]: *See* § 6002(a) (codified at 47 U.S.C. § 309(j)).

[^16]: *See* § 3002(e) (codified at 47 U.S.C. § 923(b)(3)). *See also*
    47 U.S.C. § 309(j).

[^17]: Congress later amended the total amount of spectrum that NTIA was
    required to identify from not less than 20 to 12 megahertz. *See*
    National Defense Authorization Act for Fiscal Year 2000, Pub.
    L.106-65, 113 Stat. 512 (1999), § 1062(c)(2) (codified as amended at
    47 U.S.C. § 923((b)(3)(A)).

[^18]: In response to the requirements of BBA-97, NTIA also identified
    the 139-140.5 MHz, 141.5-143 MHz, and 1385-1390 MHz bands. *See*
    *1998 NTIA Spectrum Reallocation Report*. The Federal Government
    pursuant to the National Defense Authorization Act of Fiscal Year
    2000 subsequently reclaimed these bands. *See* Pub. L. No. 106-65,
    113 Stat. 512 (1999). We also note that NTIA's Report on
    Identification of Alternate Bands identifies portions of the 1.4 GHz
    band and the 1670-1675 MHz band as candidates for substitution under
    the Balanced Budget Act of 1997. *See* Identification of Alternate
    Bands In Response to Title III of the Balanced Budget Act of 1997,
    NTIA Special Publication 98-39 (rel. November 1998).

[^19]: *See* § 3002(a) (codified at 47 U.S.C. §§ 309(j)).

[^20]: Implementation of Section 309(j) and 337 of the Communications
    Act of 1934 as Amended, *Report and Order and Further Notice of
    Proposed Rulemaking,* WT Docket 99-87, 15 FCC Rcd 22709, 22721
    (2000) (*BBA Report and Order*), citing Amendment of the
    Commission's Rules Regarding Multiple Address Systems, WT Docket
    97-81, *Report and Order,* 15 FCC Rcd 11956, 11962-63 ¶¶ 12, 13-15
    (2000).

[^21]: *Id.*

[^22]: *Id.* at ¶ 27. *See also DIRECTV, Inc. v. FCC,* 110 F.3d 816, 828
    (D.C. Cir. 1997) (recognizing that the Commission is not required to
    forego a policy scheme that furthers the public interest merely to
    avoid mutual exclusivity).

[^23]: *See* NDAA-99, Pub. L.105-261, 112 Stat. 1920, § 1064(c)(3)
    (codified at 47 U.S.C. § 923(c)(3)(B)).

[^24]: 47 U.S.C. § 901 (1992). NDAA-99 specifically amended Section
    113(g)(1) of the NTIA Organization Act. *See* NDAA-99, §
    1064(c)(1)-(3) (codified as amended at 47 U.S.C. § 923(c)(1)-(3)).

[^25]: *Id.* BBA-97 authorized Federal Government entities to accept
    payment in cash or kind for vacating spectrum transferred from
    Government to non-Government use through the use of a relocation
    regime. *See* § 3002(d) (codified at 47 U.S.C. § 923(g)).

[^26]: NDAA-99, § 1064(d).

[^27]: Conversely, services that the Commission allocated prior to
    August 5, 1997 in bands subject to reimbursement would not be
    required to compensate Government entities for relocation. For
    example, services that would not be subject to reimbursement
    obligations would include those services allocated spectrum in the
    216-220 MHz band prior to August 5, 1997 such as the low power radio
    service (LPRS), telemetry, automated maritime telecommunications
    (AMTS), and services in the 218-219 MHz band, formerly known as
    Interactive Video Data Service (\"218-219 MHz" Service).

[^28]: *Reallocation Notice, supra* note 4.

[^29]: *See* Mandatory Reimbursement Rules for Frequency Band or
    Geographic Relocations of Federal Spectrum Dependent Systems,
    Department of Commerce, National Telecommunications and Information
    Administration, 66 Fed. Reg. 4771 (January 18, 2001) (to be codified
    at 47 C.F.R. § 301).

[^30]: *See* Omnibus Budget Reconciliation Act of 1993, Pub. L.103‑66,
    107 Stat. 312 (1993); Balanced Budget Act of 1997, Pub. L.105-33,
    111 Stat. 251 (1997).

[^31]: *Principles for Reallocation of Spectrum to Encourage the
    Development of Telecommunications Technologies for the New
    Millennium, Policy Statement,* 14 FCC Rcd 19868 (1999) (*Spectrum
    Policy Statement*).

[^32]: *Id.* at 9.

[^33]: 47 C.F.R. Part 27.

[^34]: The Commission has recognized that, where appropriate,
    \"\[f\]lexible allocations may result in more efficient spectrum
    markets.\" *Spectrum Policy Statement,* 14 FCC Rcd at 19870-71 ¶ 9
    (1999). As the Commission observed when it adopted service rules for
    the 39 GHz bands: \"It is in the public interest to afford \[ \]
    licensees flexibility in the design of their systems to respond
    readily to consumer demand for their services, thus allowing the
    marketplace to dictate the best uses for this band.\" Amendment of
    the Commission\'s Rules Regarding the 37.0- 38.6 GHz and 38.6-40 GHz
    Bands, *Report and Order and Second Notice of Proposed Rulemaking*,
    12 FCC Rcd 18600, 18616 ¶ 26 (1997).

[^35]: *See* Amendment of the Commission\'s Rules to Establish Part 27,
    the Wireless Communications Service (WCS), *Report and Order*, GN
    Docket No. 96-228, 12 FCC Rcd 10785 (1997) (*Part 27 Report and
    Order*).

[^36]: *Id.*

[^37]: *See* 47 U.S.C. § 303(y)(2).

[^38]: *See* BBA-97.

[^39]: *See* 47 U.S.C. § 303(y)(2).

[^40]: *See* 47 U.S.C. § 303(y)(2)(B).

[^41]: 47 C.F.R. Part 20; *see also* 47 C.F.R. § 27.3(g), as amended by
    Service Rules for the 746-764 and 776-794 MHz Bands and Revision to
    Part 27 of the Commission's Rules, *First Report and Order*, 15 FCC
    Rcd 476 (2000) (*746-764 and 776-794 MHz First Report and Order*).

[^42]: 47 C.F.R. Part 101.

[^43]: Biennial Regulatory Review \-- Amendment of Parts 0, 1, 13, 22,
    24, 26, 27, 80, 87, 90, 95, 97, and 101 of the Commission\'s Rules
    to Facilitate the Development and Use of the Universal Licensing
    System in the Wireless Telecommunications Services, WT Docket No.
    98-20, Amendment of the Amateur Service Rules to Authorize Visiting
    Foreign Amateur Operators to Operate Stations in the United States,
    WT Docket No. 96-188, RM-8677, *Report and Order*, 13 FCC Rcd 21027
    (1998) (*ULS Report and Order*).

[^44]: 47 C.F.R. § 1.913(b).

[^45]: *See* 47 C.F.R. § 80.475. AMTS is an integrated and
    interconnected maritime communications system operating in the
    217-218 MHz and 219-220 MHz portions of the band.

[^46]: *See* 47 C.F.R. § 95.801. The "218-219 MHz" Service is a two-way
    radio service that allows licensees to provide communications
    services to subscribers in specific areas.

[^47]: 47 C.F.R. § 95.1001. LPRS is a private, short-distance
    communication service operating in the 216-217 MHz portion of the
    band. LPRS provides auditory assistance to persons with
    disabilities, health care assistance for the ill, law enforcement
    tracking services in cooperation with law enforcement and
    point-to-point network control for AMTS coast stations.

[^48]: 47 C.F.R. § 90.259.

[^49]: 47 C.F.R. § 90.248.

[^50]: 47 C.F.R § 97.303. The Amateur Radio Service is authorized to
    operate in the 219-220 MHz segment of the band secondary to AMTS.
    Amateur use of the 219-220 MHz segment is limited to stations
    participating as forwarding stations in point-to-point fixed digital
    message forwarding systems.

[^51]: 47 C.F.R. §§ 80.475(a)(1) and 95.861.

[^52]: *See* *1995 NTIA Spectrum Reallocation Report* at 3-14, Table
    3-2. The SPASUR sites operate on frequency 216.98 MHz with a 1 kHz
    bandwidth.

[^53]: *See Reallocation Report and Order* at ¶15.

[^54]: 47 C.F.R. § 2.106, footnote US210.

[^55]: *See Reallocation Report and Order* at ¶ 19.

[^56]: *Id.* at ¶ 27.

[^57]: *Id.* at ¶ 25*.*

[^58]: *Id.* at ¶ 26.

[^59]: *See* 47 C.F.R. § 90.259.

[^60]: *See* Subpart H of Part 95 of the Commission's Rules and
    Regulations.

[^61]: *See* *1995 NTIA Spectrum Reallocation Report,* § 4, p. 3 and
    Table 4-1.

[^62]: *See 1995* *NTIA Spectrum Reallocation Report,* § 4, p. 5 and
    Table 4-2.

[^63]: *See* *1998* *NTIA Spectrum Reallocation Report* at § 3, at 3-37
    and Table 3-4.

[^64]: 47 C.F.R. § 2.106, footnote US311.

[^65]: We restricted the mobile allocation to not permit airborne
    operations to protect sensitive adjacent channel operations.
    *Reallocation Report and Order* at Table 2 and ¶ 65.

[^66]: We restricted the 1390-1392 MHz band to no airborne operations
    because such operations in this band are incompatible with
    co-channel satellite uplinks and adjacent band radio astronomy
    operations. *Id.* at Table 2 and ¶ 50.

[^67]: *Id.* at Table 2 and ¶ 54.

[^68]: *Id.*

[^69]: *Id.*

[^70]: *Id.* at n.181.

[^71]: *Id.* at Table 2 and ¶¶ 52, 55. Feeder links are typically the RF
    links between the satellite and large earth stations. They complete
    the path from the mobile earth station to a large fixed earth
    station that connects to the Public Switched Telephone Network. They
    are also used to control the satellite transponder.

[^72]: The Little LEO licensees are E-SAT, Inc., LEO One USA
    Corporation, Volunteers in Technical Assistance, Final Analysis
    Communications Services, Inc. and Orbital Communications
    Corporation.

[^73]: *Reallocation Report and Order* at Table 2 and ¶¶ 52, 55.

[^74]: *See* *1995* *NTIA Spectrum Reallocation Report*, § 4, p. 6.

[^75]: *Reallocation Report and Order* at ¶ 64.

[^76]: *See* *1998* *NTIA Spectrum Reallocation Report*, § 3, at 3-47
    and Table 3-6.

[^77]: *See Reallocation Report and Order* at ¶ 71.

[^78]: *See, e.g.,* Amendment of Part 90 of the Commission\'s Rules to
    Facilitate Future Development of SMR Systems in the 800 MHz
    Frequency Band, PR Docket No. 93-144, *First Report and Order,
    Eighth Report and Order, and Second Further Notice of Proposed Rule
    Making,* 11 FCC Rcd 1463 (1995) (restructuring licensing framework
    for 800 MHz Specialized Mobile Radio Service and adopting wide-area
    licensing). *See also* Gregory L. Rosston & Jeffrey S. Steinberg,
    *Using Market-Based Spectrum Policy to Promote the Public Interest*,
    50 Fed. Comm. L.J. 87, 94 (1997).

[^79]: *See* 47 U.S.C. § 309(j)(3)(B).

[^80]: *See* 47 U.S.C. §§ 309(j)(3)(B), (4)(C).

[^81]: *See* 47 U.S.C. § 309(j)(3)(A).

[^82]: *See* 47 U.S.C. § 309(j)(4)(C)(iii).

[^83]: *See* Public Notice Report No. Cl-92-40 "Common Carrier Public
    Mobile Services Information, Cellular MSA/RSA Markets and Counties,"
    dated January 24, 1992, DA 92-109, 7 FCC Rcd 742 (1992). *See also*
    47 C.F.R. § 22.909. There are 734 MSAs and RSAs.

[^84]: *See* Amendments to Parts 1, 2, 87, and 101 of the Commission\'s
    Rules to License Fixed Services at 24 GHz, *Report and Order,* WT
    Docket No. 99-327, 15 FCC Rcd 16934, 16942-16944 (2000) (*24 GHz
    Report and Order*). There are 172 EAs, as defined by the U.S.
    Department of Commerce, and three additional Commission-defined
    EA-like areas. The three additional EA-like services areas are: (1)
    Guam and the Northern Mariana Islands (combined as one service
    area); (2) Puerto Rico and the United States Virgin Islands
    (combined as one service area); and (3) American Samoa.

[^85]: *See* 47 C.F.R. § 27.6. *See also* *Part 27 Report and Order*, 12
    FCC Rcd at 10814-16 ¶¶ 54-60. At the time of the 2.3 GHz auction,
    REAs were defined as Regional Economic Area Groupings (REAGs).

[^86]: *See* *700 MHz First Report and Order*, 15 FCC Rcd at 500 ¶ 56.

[^87]: AeroAstro proposes a satellite-enabled notification system
    capable of transmitting short data messages, from any location on
    the globe, for receipt via the Internet in near-real-time. MicroTrax
    proposes a personal location and monitoring service. ArrayComm
    proposes to provide broadband data service to portable devices
    moving at pedestrian, or slower, speeds. *See* AeroAstro, Inc.
    comments filed March 8, 2001 (*AeroAstro Comments*); ArrayComm, Inc.
    comments filed March 8, 2001 (*ArrayComm Comments*) and MicroTrax
    comments filed March 8, 2001(*MicroTrax Comments*).

[^88]: AeroAstro Comments at 7; ArrayComm Comments at 48; and MicroTrax
    Reply Comments at 11.

[^89]: AeroAstro Comments at 7.

[^90]: ArrayComm Comments at 50-51.

[^91]: MicroTrax Reply Comments at 12.

[^92]: One such approach might be the use of Component Economic Areas
    (CEAs) which are a subset of EAs. CEAs were developed by the
    Commerce Department and there are 348 CEAs. Commenters may wish to
    address whether the use of CEAs would be appropriate in these bands.

[^93]: *See* ArrayComm Comments at 51-54.

[^94]: *Id.* at 48.

[^95]: *Id.* at 49.

[^96]: *See* ITA Comments filed on March 8, 2001.

[^97]: Promoting Efficient Use of Spectrum Through Eliminating Barriers
    to the Development of Secondary Markets, *Notice of Proposed
    Rulemaking,* WT Docket No. 00-230, 15 FCC Rcd 24203, 24209 at ¶ 17
    (2000) (*Secondary Markets Notice*).

[^98]: *Id.* at 3.

[^99]: *BBA Report and Order,* 15 FCC Rcd at 22727-22735.

[^100]: *See Reallocation Report and Order* at ¶ 49.

[^101]: *BBA Report and Order,* 15 FCC Rcd at 22727.

[^102]: *See* Service Rules for the 746-764 and 776-794 MHz Bands and
    Revisions to Part 27 of the Commission's Rules, *Second Report and
    Order*, WT Docket No. 99-168, 15 FCC Rcd 5299 (2000) (*Guard Band
    Second Report and Order*).

[^103]: *See, e.g., Guard Band Second Report and Order, supra*, note
    102, (limiting band managers and affiliated entity spectrum use).

[^104]: *See, e.g.,* 47 C.F.R. § 90.35(a) (requiring eligibility for
    Part 90 licenses on Industrial/Business Pool frequencies).

[^105]: In the *BBA Report and Order,* we consider this issue in the
    context of whether to permit a band manager in a particular service
    to act as a spectrum broker that leases spectrum and as a user of
    its licensed spectrum, with respect to future allocations, such as
    the instant proceeding. *BBA Report and Order,* 15 FCC Rcd at 22734.

[^106]: *See* 47 C.F.R. Part 27, Subpart G.

[^107]: *See* 47 C.F.R. § 27.607.

[^108]: *See, e.g.,* Implementation of Sections 309(J) and 337 of the
    Communications Act of 1934 as Amended,

    WT Docket No. 99-87, *Report and Order and Further Notice of
    Proposed Rulemaking,* 16 FCC Rcd 6803 (2000) (reviewing some of the
    considerations that the Commission might take into account in
    defining a band manager\'s rights and responsibilities in the
    context of particular services).

[^109]: The Commission adopted rules allowing AMTS licensees to serve
    fixed and mobile (including hand-held) units operating on land in
    areas around their stations so long as they give priority to
    communications from stations operating on the water. *See* Amendment
    of the Commission\'s Rules Concerning Maritime Communications,
    *Second Report and Order and Second Further Notice of Proposed Rule
    Making,* PR Docket No. 92-257, 12 FCC Rcd 16949, 16969 (1997).

[^110]: *See Reallocation Report and Order* at ¶¶ 26, 33. Consistent
    with this decision, beginning January 1, 2002, we are no longer
    accepting new applications for telemetry licenses in the 216-217 MHz
    frequency band, including applications for major modifications of
    existing licenses. *See* 47 C.F.R. § 1.929. New and major
    applications received after January 1, 2002, in the 216-217 MHz
    frequency band, will be returned as not accepted for filing.

[^111]: *Reallocation Report and Order* at Table 2 and ¶ 54.

[^112]: *Id*.

[^113]: AMTS base stations are currently licensed on a site-by-site
    basis along U.S. coastlines and inland waterways. Service rules for
    AMTS are being updated in the *AMTS Fourth R&O and Third NPRM.*
    Amendment of the Commission\'s Rules Concerning Maritime
    Communications; Petition for Rule Making filed by RegioNet Wireless
    License, LLC, PR Docket 92-257, *Fourth Report and Order and Third
    Further Notice of Proposed Rule Making*, PR 92-257, 15 FCC Rcd
    22,585 (2000) (proposing to transition the AMTS from site-by-site
    licensing to geographic service area licensing) (*AMTS Fourth R&O
    and Third NPRM*).

[^114]: 47 C.F.R. § 95.1009. The Low Power Radio Service operates on
    frequencies between 216-217 MHz. LPRS is a private, short-distance
    communication service providing auditory assistance to persons with
    disabilities, health care assistance for the ill, law enforcement
    tracking services in cooperation with law enforcement and
    point-to-point network control for AMTS coast stations. LPRS is
    licensed by rule under Part 95 of our Rules, therefore, no
    individual station license is needed for LPRS operations.

[^115]: The service rules for the "218-219 MHz" Service were updated in
    the *"218-219 MHz" Order.* Amendment of Part 95 of the Commission's
    Rules to Provide Regulatory Flexibility in the 218-219 MHz Service,
    *Report and Order and Memorandum Opinion and Order*, WT Docket No.
    98-169, RM-8951, 15 FCC Rcd 1497, 1499 ¶ 2 (1999) (*218-219 MHz
    Order*) (Recons. pending)

[^116]: *See AMTS Fourth R&O and Third NPRM, supra* note 113.

[^117]: *Data Flow Petition* at 3. Data Flow is a Florida corporation
    that manufactures and sells Supervisory Control and Data Acquisition
    (SCADA) telemetry systems to public and private water utility
    companies throughout the United States. *Id.*

[^118]: *Id. See* 47 C.F.R. § 90.35.

[^119]: 47 C.F.R. § 90.259 (emphasis added).

[^120]: *Data Flow Petition* at 1, 3.

[^121]: *Id*. at 3.

[^122]: *Id*. at 3-4.

[^123]: As we are no longer permitting new secondary telemetry
    operations at 216-217 MHz, Data Flow\'s petition is now limited to
    the 217-220 MHz sub-band.

[^124]: *See* Securicor Comments at 5*.* Securicor is a service provider
    in the 220 MHz Service.

[^125]: *Id.* at 5.

[^126]: *Id.* at 6.

[^127]: *Id.* at 7.

[^128]: *See Reallocation Report and Order* at ¶ 35.

[^129]: *Id.*

[^130]: *See* Havens Comments at 3. Havens holds AMTS authorizations to
    serve five inland navigable waterways and also holds licenses in the
    220-222 MHz service.

[^131]: *Id.* at 4-8*.*

[^132]: *See Reallocation Report and Order* at ¶ 35.

[^133]: *Id.*

[^134]: *Id.* at ¶ 58.

[^135]: AHA/Itron propose switching the primary allocation between
    medical telemetry and telemetry in the following locations:
    Pittsburgh, PA, Washington, DC metropolitan area, Richmond/Norfolk,
    VA, Austin/Georgetown, TX, Battle Creek, MI, Detroit, MI and
    Spokane, WA.

[^136]: *See* attachment to Itron comments filed March 8, 2001.
    Attachment is entitled Joint Statement of Position by the American
    Medical Hospital Association Task Force on Medical Telemetry and
    Itron, Inc. (*Joint Statement*).

[^137]: 47 C.F.R. § 90.259.

[^138]: *See Reallocation Report and Order* at Table 2 and ¶ 54.

[^139]: *Id.*

[^140]: AHA *Ex Parte* comments, filed on August 29, 2001, at 2.

[^141]: AHA *Ex Parte* comments, filed on June 12, 2001, at 3.

[^142]: *See Reallocation Report and Order* at ¶ 57.

[^143]: *See* AHA *Ex Parte* comments, filed on August 29, 2001, at 5.

[^144]: A database search of the Commission's Universal Licensing System
    reveals seven licensees between 1427-1432 MHz who operate
    non-utility and/or non-fixed telemetry.

[^145]: 47 C.F.R. § 90.259. To date, these operations have not been
    coordinated. *See infra* ¶ 64*.*

[^146]: *BBA Report and Order* at 22725; *see also* 47 U.S.C. § 309(j).

[^147]: *BBA Report and Order* at 22725.

[^148]: *See Reallocation Report and Order* at ¶¶ 26, 33.

[^149]: *Id.* at ¶ 54.

[^150]: AHA *Ex Parte* comments, filed August 29, 2000, at 2.

[^151]: *Id.* *See also* *supra* ¶¶ 50-52 where we tentatively conclude
    that it is in the public interest to elevate the telemetry
    allocation to primary status in the 1427-1429.5 MHz band in the
    seven geographic areas, and specify WMTS as primary in the
    corresponding seven areas in the 1429.5-1432 MHz band.

[^152]: *See* Implementation of Section 309(j) of the Communications Act
    -- Competitive Bidding for Commercial Broadcast and Instructional
    Television Fixed Service Licenses, MM Docket No. 97-234, *First
    Report and Order*, 13 FCC Rcd 15920, 15972-15980 ¶¶ 136-154 (1998).

[^153]: *See* Implementation of Sections 309(j) and 337 of the
    Communications Act of 1934 as Amended, WT Docket No. 99-87, *Notice
    of Proposed Rule Making*, 14 FCC Rcd 5206, 5216 ¶ 13 (1999).

[^154]: *See Reallocation Report and Order* at note 181.

[^155]: Earlier in this *Notice*, we sought comment on whether to
    grandfather these incumbents or remove them from the band in order
    to protect WMTS from harmful interference. *See supra* ¶*¶* 50-52.

[^156]: *See* Appendix B. Station WPCG645 is licensed to Itron, Inc. for
    temporary fixed and mobile operations throughout continental U.S.

[^157]: *See* 47 C.F.R. § 90.175(i)(13).

[^158]: In the Matter of Frequency Coordination in the Private Land
    Mobile Radio Services, PR Docket No. 83-737, *Report and Order*, 103
    FCC 2d 1093, 1149-1150 ¶ 114 (1986).

[^159]: Only certain fixed and mobile telemetry applications will need
    FAS referral. *See* *infra* ¶¶ 124-127.

[^160]: 47 C.F.R. § 90.175.

[^161]: 47 C.F.R. § 90.259.

[^162]: In the Matter of Amendment of Parts 2, 87 and 91 of the Rules to
    Delete Provisions for Aeronautical Telemetering and to Make
    Provisions for Land Mobile Telemetering in the Industrial Radio
    Services in the Frequency Band 216-220 MHz, *Report and Order*,
    Docket No. 18924, 29 FCC 2d 360, 363 ¶ 11 (1971).

[^163]: Footnote US229 in §2.106 of the FCC Rules contains the locations
    and protection radii of co-primary SPASUR sites.

[^164]: TV Channel 13 broadcasts in the frequency band 210-216 MHz.

[^165]: *See supra* ¶¶ 55-56.

[^166]: 47 C.F.R. § 90.209.

[^167]: *See* 47 U.S.C. § 309(j)(1), (2) (as amended by Balanced Budget
    Act, § 3002). As explained above, in BBA-97 Congress also directed
    the Secretary of Commerce to identify spectrum for transfer to
    non-Government use to be assigned in compliance with Section 309(j).
    NTIA identified the 216-220 MHz, 1432-1435 MHz, and 2385-2390 MHz
    bands. *See* *supra* ¶ 12.

[^168]: *Id*. 47 U.S.C. § 309(j)(2) exempts from auctions licenses and
    construction permits for public safety radio services, digital
    television service licenses and permits given to existing
    terrestrial broadcast licensees to replace their analog television
    service licenses, and licenses and construction permits for
    noncommercial educational broadcast stations and public broadcast
    stations described in 47 U.S.C. § 397(6) of the Communications Act.

[^169]: *See* 47 U.S.C. §§ 309(j)(1), 309(j)(6)(E).

[^170]: *See* 47 U.S.C. § 309(j)(3).

[^171]: *See BBA Report and Order,* 15 FCC Rcd 22708.

[^172]: *Id.* at 22718-22723.

[^173]: *Id.*

[^174]: *Id.*

[^175]: *See Benkelman Telephone Co., et al. v. FCC*, 220 F.3d 601, 606
    (D.C. Cir. 2000), *petition for rehearing on other grounds pending*.

[^176]: *Id.* (citations omitted) (citing *DIRECTV, Inc. v. FCC*, 110
    F.3d 816, 828 (D.C. Cir. 1997)).

[^177]: *See* Amendment of the Commission\'s Rules Concerning Maritime
    Communications, *Second Report and Order and Second Further Notice
    of Proposed Rule Making*, PR Docket No. 92-257, 12 FCC Rcd 16949
    (1997) and *AMTS Fourth R&O and Third NPRM*, 15 FCC Rcd 22585
    (2000).

[^178]: *See 218-219 MHz* *Order*, 15 FCC Rcd at 1558-1560 ¶¶ 116-121.
    *See also* 47 C.F.R. § 95.816.

[^179]: *See Reallocation Report and Order* at ¶¶ 22-26. *See also*
    *supra* note 27.

[^180]: *See supra* ¶¶ 29-33; 47 U.S.C. § 309(j)(3).

[^181]: *See supra* ¶ 31.

[^182]: *See Reallocation Report and Order* at ¶¶ 46-58. *See also
    supra* ¶ 26.

[^183]: *See* Pub. L. 106-180, 114 Stat. 48 § 647 (codified at 47 U.S.C.
    § 647) (ORBIT Act). Section 647 provides: "Notwithstanding any other
    provision of law, the Commission shall not have the authority to
    assign by competitive bidding ... spectrum used for the provision of
    international or global satellite communications services." ORBIT
    Act § 647.

[^184]: *See* 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, ET Docket No. 98-206, *First
    Report and Order and Further Notice Of Proposed Rule Making*, 16 FCC
    Rcd 4096, 4218 (2000) (stating that the ORBIT Act does not prohibit
    the Commission from auctioning licenses for terrestrial services
    merely because the terrestrial service operates on the same
    frequencies as a satellite service); Amendment of the Commission\'s
    Rules With Regard to the 3650-3700 MHz Government Transfer Band, ET
    Docket No. 98-237; The 4.9 GHz Band Transferred from Federal
    Government Use, *First Report and Order and Second Notice of
    Proposed Rule Making,* WT Docket No. 00-32, 15 FCC Rcd 20488, 20498
    n.64 (2000) (stating that the assignment of licenses for terrestrial
    services by competitive bidding is not prohibited by the ORBIT Act);
    *24 GHz Report and Order*, 15 FCC Rcd 16934 (2000) (adopting rules
    to award licenses for terrestrial fixed service by competitive
    bidding in 24 GHz band, which is also allocated to satellite
    services); *39 GHz* *R&O*, 12 FCC Rcd 18600 (1997); 39 GHz Band
    Auction Closes, *Public Notice,* DA 00-1035, Report No. AUC-30-E
    (rel. May 10, 2000) (assigning terrestrial fixed service licenses by
    auction in the 39 GHz band, which is also allocated to satellite
    services). *See also* TRW INC., Waiver of the Commission's Rules to
    provide Fixed Satellite Service in the 39 GHz Band, *Memorandum
    Opinion and Order*, DA 01-371, File No. 0000137436 (rel. March 12,
    2001).

[^185]: 47 C.F.R. § 95.1101 *et seq*.

[^186]: *Id*.; s*ee also supra* ¶ 57 (tentatively concluding that it
    would be in the public interest to retain the existing license
    assignment process for secondary telemetry operations in this band).

[^187]: *See supra* ¶*¶* 60-61*.*

[^188]: *See Reallocation Report and Order* at ¶¶ 46-59.

[^189]: *Id.* at ¶ 49.

[^190]: *Id.* at ¶ 50.

[^191]: *Id.* at ¶ 64.

[^192]: *Id.* at ¶ 71.

[^193]: *Id.* at ¶¶ 52-56 and 59.

[^194]: 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. *LMDS Second Report and Order, Order on
    Reconsideration, and Fifth Notice of Proposed Rulemaking,* 12 FCC
    Rcd 12545, 12636-38, 12644-45, 12652-53 ¶¶ 205-208, 225-226, 245-251
    (1997) (*LMDS Second Report and Order*) (*Fifth NPRM*); aff\'d,
    *Melcher v. FCC*, 134 F.3d 1143 (D.C. Cir. 1998).

[^195]: 47 C.F.R. Part 27.

[^196]: *Part 27 Report and Order,* 12 FCC Rcd at 10846, 10848 ¶¶ 119,
    122.

[^197]: *See Part 27 Report and Order*, 12 FCC Rcd at 10848 ¶ 121*; see
    also LMDS Second Report and Order*, 12 FCC Rcd at 12644 ¶ 223; 47
    C.F.R. § 101.1013.

[^198]: *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 \...\").

[^199]: *Part 27 Report and Order,* 12 FCC Rcd at 10790-91 ¶ 121. 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- 215.

[^200]: *Part 27 Report and Order,* 12 FCC Rcd at 10848 ¶ 121.

[^201]: *See* 47 C.F.R. §§ 27.66 (a)-(b).

[^202]: A change in regulatory status would require Commission prior
    authorization, however, if the change raised issues concerning the
    benchmark contained in Section 310(b)(4) of the Act.

[^203]: *See* 47 C.F.R. §§ 27.66 (a)-(b).

[^204]: *See* 47 U.S.C. §§ 310(a), 310(b), and 310(d).

[^205]: *See* 47 U.S.C. § 309(j)(3).

[^206]: 47 U.S.C. §§ 310(a), 310(b).

[^207]: 47 C.F.R. § 27.12; *see also* Section 27.302 of the Commission's
    Rules, 47 C.F.R. § 27.302.

[^208]: *See* 47 C.F.R. § 27.12.

[^209]: The commitments are incorporated into the General Agreement of
    Trade in Services (GATS) by the Fourth Protocol to the GATS. *See*
    Fourth Protocol to the General Agreement on Trade in Services (WTO
    1997), 36 I.L.M. 366 (1997).

[^210]: *See* Rules and Policies on Foreign Participation in the U.S.
    Telecommunications Market and Market Entry and Regulation of
    Foreign-Affiliated Entities, *Report and Order and Order on
    Reconsideration,* 12 FCC Rcd 23891, 23935-47 ¶¶ 97-132 (1997).

[^211]: *Id.*

[^212]: *See* Streamlining the Commission's Rules and Regulations for
    Satellite Application and Licensing Procedures, *Report and Order,*
    IB Docket No. 95-117, 11 FCC Rcd 21581, 21599 ¶ 43 (1996).

[^213]: *See* 47 U.S.C. § 151 *et seq.* Substantial service is service
    that is sound, favorable, and substantially above a level of
    mediocre service which might just minimally warrant renewal. *See*
    47 C.F.R. § 22.940(a)(1)(i).

[^214]: *See infra* at Section III.C.1., regarding performance
    requirements.

[^215]: These proposed requirements are based on those we ordered for
    LMDS. *See* Sectnio101.1011 of the Commission's Rules, 47 C.F.R. §
    101.1011.

[^216]: *See* Section 22.940(a)(2)(i) through Section 22.940(a)(2)(iv)
    of the Commission's Rules, 47 C.F.R. §§22.940(a)(2)(i)-(iv).

[^217]: *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, *Report
    and Order,* 10 FCC Rcd 9589, 9614 ¶ 46 (1995).

[^218]: *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, *Report and Order and Further Notice of Proposed
    Rulemaking,* WT Docket No. 96-1148, 11 FCC Rcd 21831, 21870 ¶¶ 76-77
    (1996) (*Partitioning and Disaggregation Report and Order*).

[^219]: "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 area operated by different
    companies (thus the possibility of harmful interference increases).

[^220]: 47 C.F.R. § 27.15.

[^221]: *Part 27 Report and Order*, 12 FCC Rcd at 10836-39 ¶¶ 96-103.

[^222]: 47 C.F.R. § 27.15(b)(1).

[^223]: 47 C.F.R. § 27.15(c)(1)(2); *see also* 47 C.F.R. § 1.2111.

[^224]: 47 C.F.R. § 1.1307.

[^225]: *See, e.g.,* 47 C.F.R. § 1.928 (regarding frequency coordination
    arrangements between the U.S. and Canada).

[^226]: 47 C.F.R. § 1.924.

[^227]: We will discuss FAS coordination in the section describing
    coordination with Government incumbents. *See infra* at Section
    III.E.3.

[^228]: *Cf.* Section 22.940(a)(2)(I) through Section 22.940(a)(2)(iv)
    of the Commission's Rules, 47 C.F.R. §§ 22.940(a)(2)(i)-(iv).

[^229]: *See LMDS Second Report and Order,* 12 FCC Rcd at 12659 ¶¶
    263-267.

[^230]: *See, e.g.,* 47 C.F.R. § 22.940(a)(1)(i).

[^231]: *See* 47 U.S.C. § 160(a)(1-3). Section 10 provides the
    Commission with authority to forbear from application of virtually
    any regulation or any provision of the Act to a telecommunications
    carrier or telecommunications service, or a class of carriers or
    services. But, the Commission may not forbear from applying the
    requirements of Sections 251(c) or 271 until it determines that
    those requirements have been fully implemented. *See* 47 U.S.C. §
    160(d).

[^232]: *See* Implementation of Sections 3(n) and 332 of the
    Communications Act, Regulatory Treatment of Mobile Services, *Second
    Report and Order,* 9 FCC Rcd 1411, 1463-93 (1994). The Commission
    decided to forbear Sections 203, 204, 205, 211, 212, and most
    applications of section 214. *Id.* at 1478-80.

[^233]: *See* *CMRS Second Report and Order* at 1478 (declining to
    forbear Sections 201 and 202 of the Communications Act); In the
    Matter of Personal Communications Industry Association\'s Broadband
    Personal Communications Services Alliance\'s Petition for
    Forbearance for Broadband Personal Communications Services,
    Forbearance from Applying Provisions of the Communications Act to
    Wireless Telecommunications Carriers, WT Docket No. 98- 100,
    *Memorandum Opinion and Order and Notice of Proposed Rulemaking,* 13
    FCC Rcd 16857, 16914 (1998) (declining to forbear from applying
    Section 20.12(b) of the Commission\'s Rules (resale rule) and
    Sections 201 and 202 of the Communications Act).

[^234]: *See* In the Matters of Hyperion Telecommunications, Inc.
    Petition Requesting Forbearance, Time Warner Communications Petition
    for Forbearance, Complete Detariffing for Competitive Access
    Providers and Competitive Exchange Carriers, *Memorandum Opinion and
    Order and Notice of Proposed Rulemaking,* 12 FCC Rcd 8596, 8608-10
    (1997).

[^235]: 47 C.F.R. § 27.51.

[^236]: 47 C.F.R. § 27.52.

[^237]: 47 C.F.R. § 27.54.

[^238]: 47 C.F.R. § 27.56.

[^239]: 47 C.F.R. § 27.63.

[^240]: *See* 47 C.F.R. §§ 1.924, 1.1307.

[^241]: *See* *supra* ¶¶ 66-69.

[^242]: *See* 47 C.F.R. §§ 24.236, 27.55(a). *See also* 47 C.F.R. §
    101.103.

[^243]: *See* 47 C.F.R. § 24.236 for PCS. *See also* 47 C.F.R. § 27.55
    for 2.3 GHz band.

[^244]: *See* 47 C.F.R. § 101.103 for fixed microwave services.

[^245]: *See* Amendment of Parts 2, 15, and 97 of the Commission's Rules
    to Permit Use of Radio Frequencies Above 40 GHz for New Radio
    Applications, *Memorandum Opinion and Order on Reconsideration and
    Notice of Proposed Rulemaking*, ET Docket No. 94-124, 13 FCC Rcd
    16947, 16994-97 (1998).

[^246]: 47 C.F.R. § 24.236.

[^247]: 47 C.F.R. § 27.55.

[^248]: 47 C.F.R. § 26.55.

[^249]: 47 C.F.R. § 101.103.

[^250]: *See* AeroAstro Comments at 4.

[^251]: *Id.* at 5.

[^252]: *See* ArrayComm Comments at 21.

[^253]: *See* MicroTrax Comments at 3.

[^254]: *See* *infra* ¶ 123.

[^255]: *See* AeroAstro Comments at 5.

[^256]: *See* MicroTrax Comments at 3.

[^257]: *See* ArrayComm Comments at 20.

[^258]: *See* *Guard Band Second Report and Order, supra* note 102, at ¶
    19.

[^259]: 47 C.F.R. § 2.106, footnotes US229, US352, US361, US352, US362
    and US363. *See also Reallocation Report and Order* at Appendix C.

[^260]: *Reallocation Report and Order* at ¶ 73.

[^261]: *Id*.

[^262]: *Id.*

[^263]: *Id.* at ¶ 14.

[^264]: *See* *1998 NTIA Spectrum Reallocation Report,* § 3, at 3-18 and
    Table 3-2.

[^265]: 47 C.F.R. § 2.106, footnote US229. *See also Reallocation Report
    and Order* at Appendix C.

[^266]: *See Reallocation Report and Order* at Appendix C.

[^267]: *Id*.

[^268]: *See* *1995 NTIA* *Spectrum Reallocation Report,* § 4, p. 5 and
    Table 4-2.

[^269]: 47 C.F.R. § 2.106, footnote US352. *See also* *Reallocation
    Report and Order* at ¶ 38.

[^270]: *See Reallocation Report and Order* at ¶ 38.

[^271]: *See* *1998 NTIA Spectrum Reallocation Report,* § 3, at 3-37 and
    Table 3-4.

[^272]: 47 C.F.R. § 2.106, footnote US361. *See also Reallocation Report
    and Order* at ¶ 40.

[^273]: *See Reallocation Report and Order* at ¶ 40.

[^274]: S*ee* *1995 NTIA Spectrum Reallocation Report,* § 4, p. 3 and
    Table 4-1.

[^275]: 47 C.F.R. § 2.106, footnote US351.

[^276]: *See* *1998 NTIA* *Spectrum Reallocation Report*, § 3, at 3-47
    and Table 3-6.

[^277]: 47 C.F.R. § 2.106, footnote 363. *See also Reallocation Report
    and Order* at ¶ 68.

[^278]: *See Reallocation Report and Order* at ¶ 68.

[^279]: *See* 47 C.F.R. § 2.106, footnote US362. *See also*
    *Reallocation Report and Order* at ¶ 61.

[^280]: *See* *1995 NTIA Spectrum Reallocation Report,* § 4, p. 6.

[^281]: 47 C.F.R. § 2.106, footnote US362.

[^282]: 47 C.F.R. § 1.924(f). *See also* *Reallocation Report and Order*
    at Appendix C.

[^283]: See Letter to Bruce Franca, Acting Chief, Office of Engineering
    and Technology, Federal Communications Commission, from William T.
    Hatch, Associate Administrator, Office of Spectrum Management (Nov.
    19, 2001) (NTIA Letter).

[^284]: *See* *infra* ¶¶ 130-135.

[^285]: 47 C.F.R § 2.106, footnote US311. *See* *also* the *Reallocation
    Report and Order* at Appendix C.

[^286]: *See* *Reallocation Report and Order* at Appendix C.

[^287]: *Id. See also Reallocation Report and Order* at ¶ 37.

[^288]: 47 C.F.R. § 2.106, footnote US74.

[^289]: 47 C.F.R. § 95.639(e).

[^290]: 47 C.F.R. § 95.1121.

[^291]: *See Reallocation Report and Order* at Appendix C.

[^292]: *See* 47 C.F.R. § 95.1111. Prior to operation, our Rules require
    authorized health care providers to register all WMTS devices with a
    designated frequency coordinator. *Id.* The frequency coordinator is
    required to maintain a database of WMTS use. 47 C.F.R. §
    95.1113(b)(2).

[^293]: *See Reallocation Report and Order* at ¶ 73.

[^294]: This refers to telemetry in 216-220 MHz, 1427-1429.5 MHz and
    1429.5-1432 MHz bands.

[^295]: This refers to those services in the paired 1392-1395 MHz and
    1432-1435 MHz bands and unpaired 1390-1392 MHz, 1670-1675 MHz and
    2385-2390 MHz bands.

[^296]: *See Reallocation Report and Order* at ¶ 73.

[^297]: [Lloyd Apirian, Department of Defense, Joint Spectrum Center,
    GSFC B/U Protection from Potential Environmental RF Transmitters
    (2001).]{.smallcaps}

[^298]: *See* NTIA letter, *supra* note 283.

[^299]: *See* attachment to *Ex Parte* Letter from Randall S. Coleman,
    ArrayComm, to Magalie Roman Salas, Secretary, Federal Communications
    Commission, dated December 21, 2001.

[^300]: *Id.* at 3.

[^301]: *Id.* at 3-4.

[^302]: *Id.*

[^303]: *Id.* at 3.

[^304]: *Id.* at 2.

[^305]: *Id.*

[^306]: *See* Aerospace and Flight Test Radio Coordinating Council
    Comments filed March 8, 2001 at 4. AFTRCC is an association of
    aerospace companies engaged in the design, development, manufacture
    and testing of commercial and military aircraft, space vehicles,
    missiles and weapons systems.

[^307]: *Id.* at 5-6.

[^308]: *Id.* at 6.

[^309]: *Reallocation Report and Order* at ¶ 71.

[^310]: 47 C.F.R. § 2.106, footnote US363. *See also Reallocation Report
    and Order* at Appendix C.

[^311]: *See Reallocation Report and Order* at ¶ 71.

[^312]: *See* 47 C.F.R. § 2.301.

[^313]: *See* *supra* ¶¶ 70-76.

[^314]: This proposal applies to initial licenses for primary telemetry
    services in the 1429.5-1432 MHz band as well as initial licenses for
    primary telemetry services in the seven geographic "carve-out" areas
    in the 1427-1429.5 MHz band. *See supra* ¶¶ 50-52.

[^315]: *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); Amendment of Part 1 of the Commission\'s Rules
    --- Competitive Bidding Procedures, Allocation of Spectrum Below 5
    GHz Transferred from Federal Government Use, *Third Report and Order
    and Second Further Notice of Proposed Rule Making*, 13 FCC Rcd 374
    (1997) (modified by Erratum, DA 98-419 (rel. March 2, 1998)) (*Part
    1 Third Report and Order)*; Amendment of Part 1 of the Commission\'s
    Rules -- Competitive Bidding Procedures, *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)
    (*Part 1 Recon Order and Part 1 Fifth Report and Order,* *Fourth
    Further Notice of Proposed Rule Making*); Amendment of Part 1 of the
    Commission\'s Rules \-- Competitive Bidding Procedures, *Seventh
    Report and Order*, FCC 01-270 (rel. Sept. 27, 2001).

[^316]: *See* 47 C.F.R. Section 1.2101 *et. seq.*

[^317]: *See Fourth Further Notice of Proposed Rule Making*, 15 FCC Rcd
    15293 (2000). *See also Part 1 Recon Order and Part 1 Fifth Report
    and Order*, 15 FCC Rcd 15293 (2000) (recons. pending)*.*

[^318]: *See Part 1 Third Report and Order*, 13 FCC Rcd 374, 448-49,
    454-55 ¶¶ 125, 139 (directing the Bureau to seek comment on specific
    mechanisms relating to auction conduct pursuant to the Balanced
    Budget Act).

[^319]: *See* 47 U.S.C. § 309(j)(4)(D).

[^320]: *See* 47 U.S.C. § 309(j)(3)(B).

[^321]: 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*).

[^322]: *Part 1 Third Report and Order*, 13 FCC Rcd at 388 ¶ 18.

[^323]: *See* AeroAstro Comments at 2-3; MicroTrax Comments at 2;
    ArrayComm Comments at 10.

[^324]: *See supra* ¶ 15. *See also* 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) (*WCS
    Report and Order*).

[^325]: *See WCS* *Report and Order,* 12 FCC Rcd 10785, 10879 ¶ 194.

[^326]: *See Guard Band Second Report and Order,* 15 FCC Rcd 5299,
    5343-5345 ¶¶ 106-110.

[^327]: *See supra* ¶¶ 36-42.

[^328]: *See Guard Band Second Report and Order,* 15 FCC Rcd 5299,
    5343-5345 ¶¶ 106-110*.*

[^329]: Examples of current uses of this band include utility telemetry
    as well as other forms of telemetry.

[^330]: This proposal applies to primary general telemetry services in
    the 1429.5-1432 MHz band as well as primary general telemetry
    services in the seven geographic "carve-out" areas in the
    1427-1429.5 MHz band.

[^331]: In the *Part 1 Third Report and Order*, we 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).

[^332]: *Part 1 Third Report and* Order, 13 FCC Rcd at 403-04 ¶ 47.

[^333]: *See Adarand Constructors v. Peña*, 515 U.S. 200 (1995)
    (requiring a strict scrutiny standard of review for Congressionally
    mandated race-conscious measures); *United States v. Virginia*, 518
    U.S. 515 (1996) (applying an intermediate standard of review to a
    state program based on gender classification).

[^334]: MicroTrax Comments at 18-19.

[^335]: *Id.*

[^336]: *Id.*

[^337]: *See, e.g.,* ArrayComm Reply at 8; AeroAstro Reply at 2-3.

[^338]: *See* 47 U.S.C. § 309(j)(4)(D).

[^339]: *See* 47 U.S.C. § 309(j)(2).

[^340]: *See BBA Report and Order,* 15 FCC Rcd at 22750 ¶ 83.

[^341]: *See* Pub. L. No. 104-13.

[^342]: *See generally* 47 C.F.R. §§ 1.1202, 1.1203, 1.1206(a).

[^343]: *See* 47 C.F.R. §§ 1.415, 1.419.

[^344]: *See* Electronic Filing of Documents in Rulemaking Proceedings,
    63 Fed. Reg. 24,121 (1998).

[^345]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601 *et. seq.*,
    has been amended by the Contract with America Advancement Act of
    1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAA). Title II of
    the CWAA is the Small Business Regulatory Enforcement Fairness Act
    of 1996 (SBREFA).

[^346]: 5 U.S.C. § 603(a).

[^347]: *See id*.

[^348]: Prior to the release of the *Reallocation Report and Order*,
    Section 90.259 of our Rules permitted telemetry operations
    throughout the entire 216-220 MHz band and in the 1427-1435 MHz
    band. *See* 47 C.F.R. § 90.259 (2000). We note that in the
    *Reallocation Report and Order*, telemetry is limited to the 216-220
    MHz band (secondary), the 1427-1429.5 MHz band (secondary) and the
    1429.5-1432 MHz band (primary). New telemetry operations in the
    216-217 MHz portion of the 216-220 MHz band will no longer be
    authorized after January 1, 2002. *See Reallocation Report and
    Order* at ¶ 26.

[^349]: 47 U.S.C. § 309(j).

[^350]: 47 C.F.R. § Part 1, Subpart Q.

[^351]: Petition for Rulemaking filed by Data Flow Systems, Inc. on
    March 6, 2000, RM-9882 (*Data Flow Petition for Rulemaking*). The
    Commission's Rules currently do not permit this use. *See* 47 C.F.R.
    §§ 90.35 and 90.259.

[^352]: *See* Securicor Comments filed on March 8, 2001 (*Securicor
    Comments*).

[^353]: *See* Warren Havens Comments filed on March 8, 2001 (*Havens
    Comments*).

[^354]: 5 U.S.C. § 603(b)(3).

[^355]: 5 U.S.C. § 601(6).

[^356]: 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).

[^357]: Small Business Act, 15 U.S.C. § 632 (1996).

[^358]: 5 U.S.C. § 601(4).

[^359]: 1992 Economic Census, U.S. Bureau of the Census, Table 6
    (special tabulation of data under contract to Office of Advocacy of
    the U.S. Small Business Administration).

[^360]: 47 C.F.R. § 1.1162.

[^361]: 5 U.S.C. § 601(5).

[^362]: U.S. Dept. of Commerce, Bureau of the Census, \"1992 Census of
    Governments.\"

[^363]: *Id.*

[^364]: *See* Letter from Aida Alvarez, Administrator for Size
    Standards, U.S. Small Business Administration, to Margaret W.
    Wiener, Deputy Chief, Auctions and Industry Analysis Division,
    Wireless Telecommunications Bureau, Federal Communications
    Commission, dated November 3, 2000. *See also* *AMTS Fourth Report
    and Order and Third NPRM,* 15 FCC Rcd 22585 (2000).

[^365]: *See* 13 C.F.R. § 121.201.

[^366]: ^?^ Implementation of Section 309(j) of the Communications Act
    -- Competitive Bidding, PP Docket No. 93‑253, *Fourth Report and
    Order*, 9 FCC Rcd 2330, 2336 (1994).

[^367]: *See* Letter from Aida Alvarez, Administrator for Size
    Standards, U.S. Small Business Administration, to Daniel B.
    Phythyon, Chief, Auctions and Industry Analysis Division, Wireless
    Telecommunications Bureau, Federal Communications Commission, dated
    January 6, 1998.

[^368]: *See* Small Business Administration Tabulation File, SBA Size
    Standards Table 2C, January 23, 1996, SBA, Standard Industrial Code
    (SIC) categories 8050 (Nursing and Personal Care Facilities) and
    8060 (Hospitals). (SBA Tabulation File).

[^369]: 47 C.F.R. § 1.2105.

[^370]: 47 C.F.R. § 1.913(a)(1).

[^371]: 47 C.F.R. § 1.2107.

[^372]: 47 C.F.R. § 1.1307.

[^373]: *See, e.g.,* 47 C.F.R. § 1.928 (regarding frequency coordination
    arrangements between the U.S. and Canada).

[^374]: 47 C.F.R. § 1.924.

[^375]: We discuss FAS coordination in the section describing
    coordination with Government incumbents. *See supra* Section
    III.E.3*.*

[^376]: *See* 5 U.S.C. § 603(c).

[^377]: *See* *supra* Section III.B.5

[^378]: *See supra* Section III.A.3.