**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | WT Docket No. 05-62          |
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| Amendment of Part 90 of the      | ** | DA 04-3013                   |
| Commission's Rules to Provide    |    |                              |
| for Flexible Use of the 896-901  | *  |                              |
| MHz and 935-940 MHz Bands        | *) |                              |
| Allotted to the Business and     | ** |                              |
| Industrial Land Transportation   |    |                              |
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| Oppositions and Petitions for    | ** |                              |
| Reconsideration of 900 MHz Band  |    |                              |
| Freeze Notice                    | *  |                              |
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**NOTICE OF PROPOSED RULEMAKING**

**AND MEMORANDUM OPINION AND ORDER**

**Adopted: February 10, 2005 Released: February 16, 2005**

**Comment Date: \[30 days after publication in the Federal Register\]**

**Reply Comment Date: \[45 days after publication in the Federal
Register\]**

By the Commission:

**[Table of Contents:]{.underline}**

Heading Paragraph \#

I. INTRODUCTION 1

II\. BACKGROUND 5

III\. state of the industry 10

IV\. DISCUSSION 11

A. General Provisions 11

1\. Flexible Use 12

2\. Regulatory Framework 15

3\. Assignment of Licenses 16

B. Band Plan 17

1\. Geographic Area Licensing 17

2\. Size of Geographic Service Areas 21

3\. Channel Block Size 26

C. Rights and Obligations of Geographic Area Licensees 32

1\. Operational Flexibility 32

2\. Treatment of Incumbent Systems 34

3\. Emission and Field Strength Limits 41

4\. Performance Requirements 45

5\. Other Operating and Technical Rules 53

D. Competitive Bidding Procedures 56

1\. Incorporation by Reference of Part 1 Standardized Competitive
Bidding Rules. 57

2\. Provisions for Designated Entities. 58

V. 900 MHz Band Freeze MEMORANDUM OPINION AND Order 64

VI\. procedural matters 69

A. *Ex Parte* Rules -- Permit-But-Disclose 69

B. Comment Period and Procedures 70

C. Initial Regulatory Flexibility Analysis 75

D. Initial Paperwork Reduction Analysis 76

E. Further Information 78

VII\. ordering clauses 79

Apendix A: PROPOSED RULES

APPENDIX B: INITIAL REGULATORY FLEXIBILITY ANALYSIS

# INTRODUCTION

1.  By this Notice of Proposed Rulemaking (*Notice*), we propose
    amendments to Part 90 of the Commission's Rules to facilitate more
    flexible use of the 199 channels allocated to the Business and
    Industrial Land Transportation (B/ILT) Pools in the 896-901/935-940
    MHz (900 MHz) bands.[^1] We propose to permit any use of the B/ILT
    channels in the 900 MHz band that is consistent with the band's
    fixed and mobile allocations.[^2] We also propose to license the
    remaining spectrum using a geographic area licensing scheme.
    Accordingly, we propose service rules, including licensing,
    technical and operational rules for the new geographic licensees,
    and seek comment on defining the rights of B/ILT licensees already
    operating in the 900 MHz band. We also seek comment on competitive
    bidding rules and procedures to be used in the event that mutually
    exclusive applications are filed for the 900 MHz proposed geographic
    licenses. We believe that our new proposed framework for flexible
    spectrum access in this band will facilitate the provision of
    telecommunications services to consumers by eliminating unnecessary
    regulatory restrictions, and thereby provide greater flexibility in
    deploying the spectrum to respond to evolving market demands.[^3]

2.  Finally, concurrently with this *Notice*, we address the petitions
    for reconsideration, informal letter requests, and informal
    opposition filed in response to the freeze placed on new
    applications for 900 MHz licenses on September 17, 2004. [^4]

3.  We believe the proposed rules will serve our goals of providing
    service to the public consistently and expeditiously, and allowing
    the marketplace to respond to consumer demands. Moreover, we believe
    that allowing for flexible use of this spectrum will greatly aid in
    facilitating band reconfiguration occurring at 800 MHz.[^5] In
    particular, the policies and rules adopted in the *800 MHz R&O*
    changed the nature of the 900 MHz spectrum by providing additional
    flexibility in the 900 MHz private land mobile radio (PLMR) service
    by permitting licensees the rights to initiate commercial mobile
    radio service (CMRS) operations on their currently authorized
    spectrum or to assign their authorizations to others for CMRS
    use.[^6] As discussed in more detail below, continuing to allow the
    current site-based licensing approach in this band would be
    inefficient, resulting in increased transaction costs, and would
    ultimately hinder rather than facilitate rebanding efforts in the
    800 MHz band.

4.  We believe that this *Notice*, and the proposed shift in licensing
    paradigm, is vital to ensuring the success of band reconfiguration
    in the 800 MHz band while providing opportunities for incumbents to
    continue to pursue their business plans. We expect that the rules
    and policies proposed herein will encourage the most efficient use
    of the spectrum, promote the rapid deployment of facilities and
    services, and support secondary market transactions (including
    spectrum leasing). We also believe that our actions strike a fair
    and equitable balance between the interests of incumbent B/ILT
    licensees, and those seeking to provide geographic area service.

# BACKGROUND

5.  In 1986, based on its favorable experience gained with the pool
    structure used in the 800 MHz band, the Commission established a
    pool structure for the 900 MHz PLMR spectrum and allocated 10 MHz of
    spectrum in the 896-901 and 935-940 bands into different pools: 5
    MHz (200 channels) for the Specialized Mobile Radio (SMR) Pool, 2.5
    MHz for the Industrial/Land Transportation (99 channels) and 2.5 MHz
    for the Business Pool (100 channels).[^7]

6.  The SMR Pool was established to accommodate the growing demand for
    private land mobile spectrum for SMR systems and to alleviate
    congestion in the 800 MHz SMR band.[^8] In 1993, Congress amended
    the Communications Act of 1934 to reclassify most SMR licensees as
    CMRS providers, and soon thereafter, the Commission proceeded to
    create service rules and auction rules for 900 MHz SMR licenses as
    geographic overlays to the incumbent SMR licensees.[^9] In 1996,
    after a two-phase licensing process, the Commission completed its
    auction of 900 MHz SMR licenses in twenty ten-channel blocks using
    Major Trading Areas (MTAs) as service areas.[^10]

7.  The B/ILT Pools were established for use by site-by-site licensees
    engaged in commercial activities, the operation of educational,
    philanthropic, or ecclesiastical institutions, clergy activities, or
    the operation of hospitals, clinics, or medical associations.[^11]
    In addition, eligibility was also provided for any corporations
    furnishing nonprofit radio communication service to its parent
    corporation or subsidiary.[^12] Currently, applications for use of
    the B/ILT frequencies are limited to private, internal use systems,
    and thus SMR systems and other non-eligible users, are not
    authorized applicants on these channels.[^13]

8.  On July 8, 2004, the Commission adopted significant technical and
    procedural measures designed to address the problem of interference
    to public safety communications in the 800 MHz band.[^14] As part of
    its reconfiguration plan at 800 MHz, the Commission consolidated the
    B/ILT Pools in the 800 MHz and 900 MHz bands, allowing any eligible
    B/ILT licensee to be licensed on the consolidated channels.[^15] In
    doing so, the Commission indicated that consolidation of the B/ILT
    Pools would increase operational flexibility and spectrum
    efficiency, while rendering moot inter-category sharing and
    associated resource burdens.[^16] The Commission also provided for
    additional flexibility in the 900 MHz band by allowing 900 MHz PLMR
    licensees to initiate CMRS operations on their currently authorized
    spectrum or to assign their authorizations to others for CMRS
    use.[^17] The Commission reasoned that since it permitted CMRS use
    of PLMR frequencies in the 800 MHz land mobile band, similar rules
    should apply in the 900 MHz land mobile spectrum, in the interest of
    regulatory symmetry.[^18] The Commission also noted that in order to
    provide the "green space" necessary to effect reconfiguration of the
    800 MHz band, some operations may need to shift from the 800 MHz to
    900 MHz band \-- a factor that further merited complementary CMRS
    rules in both bands.

9.  On September 17, 2004, shortly after release of its *800 MHz R&O*,
    the Commission received an unusually large number of applications
    for new 900 MHz licenses in the B/ILT category. Concerned that so
    many new authorizations might compromise the use of the 900 MHz band
    for facilitating band reconfiguration at 800 MHz, the Wireless
    Telecommunications Bureau (Bureau) released a Public Notice freezing
    applications for new 900 MHz licenses, commencing September 17,
    2004.[^19] Accordingly, the Bureau is no longer accepting
    applications for new 900 MHz licenses as of the release date of the
    Public Notice and until further notice.

# state of the industry

10. According to the Commission's Universal Licensing System (ULS)
    database, there are 1,774 licensees at 10,059 discrete sites in the
    900 MHz B/ILT Pool. While the service is used throughout the
    country, we note that the greatest number of stations appear to be
    clustered along the coastal Northeast (Pennsylvania through
    Massachusetts), the Carolinas, Florida, the Great Lakes region
    (Wisconsin through Michigan), and the Gulf Coast area (Louisiana
    through the Texas coast). We also see a large demand for the areas
    of central Texas north to Kansas (including Oklahoma), coastal
    Washington State, and northern and southern California, both coast
    and inland. There is less demand for this spectrum in all other
    parts of the American West and upper Midwest, the Mississippi
    Valley, and the inland Northeast (Maine through the Virginias).
    Demand is greatest in more populated counties, with 8,341 unique
    sites, while rural counties have 1,579 such sites.[^20] While the
    number of new applications for the 896-901/935-940 MHz
    Industrial/Land Transportation (conventional and trunked) and
    Business (conventional) services has generally remained static over
    the past four years, the number of new applications for the Business
    (trunked) service has increased significantly in 2004; from 37 new
    applications in 2000, to 263 in 2001, 215 in 2002, 143 in 2003, and
    613 through mid-September 2004. The areas of greatest demand for
    Business (trunked) services through September 2004 (*i.e.,* when the
    Bureau's freeze took effect) are Colorado, with 233 new
    applications, followed by California with 61, Texas with 47, Florida
    with 42, and Georgia with 37.

# DISCUSSION

## General Provisions

11. As we have recently done with other spectrum re-allocated or
    re-designated for licensed fixed and mobile services, we propose to
    give new licensees for these 900 MHz channels the flexibility to
    provide any fixed or mobile service that is consistent with the
    allocations for this spectrum. We also propose to license this
    spectrum under our Part 90 Private Land Mobile Radio Services rules,
    employing a geographic area licensing scheme.

### Flexible Use

12. We propose service rules for the new 900 MHz channels that would
    provide licensees with the flexibility to employ this spectrum for
    any use permitted by the United States Table of Frequency
    Allocations contained in Part 2 of our rules (*i.e.*, fixed or
    mobile services). Furthermore, Congress has recognized the potential
    benefits of flexibility in allocations of the electromagnetic
    spectrum and amended the Communications Act in 1999 to give the
    Commission the authority to provide for flexibility of use pursuant
    to section 303(y) if: "(1) such use is consistent with international
    agreements to which the United States is a party; and (2) the
    Commission finds, after notice and an opportunity for public
    comment, that (A) such an allocation would be in the public
    interest; (B) such use would not deter investment in communications
    services and systems, or technology development; and (C) such use
    would not result in harmful interference among users."[^21]

13. Our proposal for flexibility fully meets the section 303(y) criteria
    listed above. First, such use would be consistent with applicable
    international agreements. In addition, the public interest benefits
    of flexibility are manifold. The Commission has identified the
    establishment of maximum feasible flexibility in both spectrum
    designations and allocations and service rules as a critical means
    of ensuring that spectrum is put to its most beneficial use. We
    would expect the economic efficiencies of flexibility to foster, not
    deter, technology development and investment in communications
    services and systems. Further, the technical rules we are proposing
    herein would prevent harmful interference among users.

14. Accordingly, we seek comment on our tentative conclusion to provide
    for flexible use of the remaining 900 MHz white space (*i.e.,* the
    geographic areas not served by the existing B/ILT licenses),
    especially in light of the section 303(y) criteria noted above. For
    those commenters that believe restrictions are warranted, we ask
    that they detail what restrictions are needed and why.[^22] We also
    ask commenters to consider whether there are trade-offs between
    flexibility and investment in technology, and restrictions on
    spectrum use. To the extent commenters may believe flexible use is
    not appropriate for this band, we ask that they provide specific
    suggestions on how spectrum should be used by a licensee, and
    provide appropriate analysis. We also seek comment on whether
    certain authorizations may pose a greater risk of interference to
    other uses planned by parties interested in deploying in this
    spectrum.

### Regulatory Framework

15. While we propose to permit flexible use of the remaining 900 MHz
    white space, we tentatively conclude that we will continue to
    license these bands under the framework of Part 90 of our rules.
    Part 90 prescribes a comprehensive set of licensing and operating
    rules for the spectrum for which it applies. Regulations governing
    the licensing and use of frequencies in the 896-901 and 935-940 MHz
    bands are set forth in Part 90, Subpart S.[^23] We seek comment on
    our proposal to adopt these flexible use policies for these 900 MHz
    channels regulated under Part 90. As set forth in more detail below,
    we also seek comment on what additional and modified rule provisions
    should be included in Part 90 or incorporated by reference,
    consistent with flexible use spectrum management principles. We
    believe it appropriate, in the interest of consistency and symmetry
    within the 900 MHz band, to apply Part 90 rules to licensing these
    channels in the 900 MHz band, and to continue to apply Part 90 to
    incumbents also operating in this band. Nevertheless, we seek
    comment on whether these bands should be governed by an alternative
    regulatory framework.

### Assignment of Licenses

16. Section 309(j) of the Communications Act requires that the
    Commission assign initial licenses through the use of competitive
    bidding when mutually exclusive applications for such licenses are
    accepted for filing, except in the case of certain specific
    statutory exemptions not applicable here.[^24] In this *Notice*, we
    tentatively conclude that we should adopt a geographic area
    licensing scheme for the 900 MHz spectrum because this is consistent
    with flexible use spectrum management principles. Should we find
    that it would serve the public interest to implement a geographic
    licensing scheme under which mutually exclusive applications are
    possible, then, consistent with section 309(j), we must resolve such
    applications for initial licenses through competitive bidding.[^25]
    We propose competitive bidding procedures *infra* at section IV.D.

## Band Plan

### Geographic Area Licensing

17. We tentatively conclude that we should license this 900 MHz spectrum
    using a geographic area licensing scheme, and we seek comment on
    this tentative conclusion. As opposed to a station-defined
    site-by-site licensing approach, we believe that a geographic area
    licensing scheme is better suited for the types of fixed and mobile
    services that will likely develop in this overlay band.

18. It has been our experience that geographic area licensing offers
    many advantages over site-by-site licensing.[^26] Geographic area
    licensing will maximize flexibility and permit new and innovative
    technologies to rapidly develop in these bands. Geographic area or
    wide-area licensing also allows a licensee substantial flexibility
    to respond to market demand, which results in significant
    improvements in spectrum utilization. In particular, geographic area
    licensing permits economies of scale because it allows a licensee to
    coordinate usage across an entire geographic area to maximize the
    use of spectrum. It also reduces regulatory burdens and transaction
    costs, because wide-area licensing does not require site-by-site
    approval and a licensee can aggregate its service territories
    without incurring the administrative costs and delays associated
    with site-by-site licensing. This approach is especially
    advantageous where spectrum is likely to be used for services that
    require ubiquity and mobility over wide areas. As a result,
    licensees can more rapidly roll out their services, as was the
    Commission's experience with Personal Communications Services (PCS).
    We note that this licensing scheme is consistent with the licensing
    approach adopted for the 900 MHz SMR service.[^27] As with the 900
    MHz SMR service bands, this spectrum is suitable for all manner of
    CMRS. Finally, we believe that geographic area licensing would
    enable the most efficient use of the licensed spectrum, and would be
    suitable for policies that facilitate the availability of spectrum
    for a wide variety of users and uses through secondary market
    mechanisms, including partitioning, disaggregation, and spectrum
    leasing.

19. For those that do not support geographic licensing for the
    flexible-use spectrum, we invite commenters to explain any
    opposition and the costs and benefits associated with any preferable
    licensing proposal.

20. *Partitioned Licenses and disaggregated spectrum*. We tentatively
    conclude that we should permit partitioning and disaggregation,
    subject to the rules we have proposed for each.[^28] We seek comment
    on this proposal. Commenters should address any conflicts in the
    partitioning and disaggregation rules and whether any modifications
    regarding eligibility, technical standards or other requirements are
    necessary.

### Size of Geographic Service Areas

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

22. We note that the Commission utilized MTAs as the service area for
    900 MHz SMR licensing.[^29] In doing so, the Commission concluded
    that such service area licensing "was more likely to create
    opportunities for both existing licensees and new entrants to meet
    customer demands for wide-area service."[^30] We believe that using
    Major Economic Areas (MEAs) \-- the rough equivalent of MTAs \-- for
    900 MHz spectrum may have similar positive effects.[^31] We also
    note, however, that use of smaller geographic areas such as Basic
    Economic Areas (EAs)[^32] may provide greater opportunities for
    small and medium-sized businesses to successfully compete against
    larger, well-financed bidders. Accordingly, we seek comment on
    whether the geographic service area we adopt in this proceeding
    should be based on MEAs or BEAs. In particular, we ask commenters to
    consider the advantages and disadvantages of adopting a licensing
    scheme based on either geographic service area.

23. With regard to MEA-based licensing, allowing 900 MHz licensees the
    use of frequencies for systems providing coverage across wider areas
    may serve to increase spectrum efficiency, provide better quality
    service to end users, and allow service to reach potential end users
    that may otherwise be without adequate communication options.
    MEA-based licensing might also grant the degree of flexibility, both
    geographically and operationally, necessary to construct wide-area
    systems. MEAs may also offer a balance between smaller, more
    numerous BEAs that could impede wider-area service, versus larger
    geographic areas that may result in a small number of licensees.
    Commenters should consider whether CMRS systems, including SMR
    services, are likely uses for the spectrum, and if so, whether MEAs
    are the most appropriate geographic area boundary here. Commenters
    should also discuss whether MEA-based licensing is more appropriate
    in light of the band reconfiguration taking place at 800 MHz, in
    terms of facilitating the ability to shift displaced CMRS operations
    from 800 MHz to 900 MHz.[^33]

24. On the other hand, EAs, which are more than three times the number
    of delineated economic areas than MEAs, may facilitate the ability
    of incumbents and other small and medium-sized operators of smaller
    systems to participate in geographic area licensing. Adopting an
    EA-based licensing scheme may permit small bidders and rural
    companies wishing smaller license areas to obtain them directly at
    auction rather than facing the uncertainty and transaction costs of
    working out post-auction partitioning agreements. Commenters should
    consider what geographic area type best mirrors the geographic areas
    for the likely systems to operate on these channels. We also solicit
    comments regarding whether a larger number of licenses created under
    this approach would (1) deter some bidders due to perceived
    additional difficulty in aggregating licenses, or (2) result in a
    large number of unsold licenses (particularly in markets where an
    entire EA is encumbered).[^34]

25. We also ask parties to detail what other alternative service area
    licensing boundaries are preferable and why. In discussing
    geographic license areas, commenters are requested to take into
    consideration whether a particular licensing area band plan serves
    the Commission's spectrum management goals, including flexible and
    efficient spectrum use.[^35]

### Channel Block Size

26. The 896-901/935-940 MHz band is currently comprised, in part, of
    twenty blocks of ten contiguous channels each allocated to 900 MHz
    SMR services.[^36] These 900 MHz SMR channel blocks are interleaved
    with 199 channels allocated in 10-channel blocks assigned to B/ILT
    services.[^37] We seek comment on our proposal to license the 900
    MHz flexible-use channels in nineteen blocks of ten contiguous
    channels each, and one block of nine contiguous channels.[^38] We
    also propose that each ten channel block should be separately
    licensed, and that applicants should be permitted to aggregate
    blocks if they wish.

27. When assessing the need to restrict the opportunity of any class of
    service provider to obtain spectrum for the provision of
    communications services, our overall goal has been to determine
    whether the restriction is necessary to ensure that consumers will
    receive communications services in a spectrum-efficient manner and
    at reasonable prices. Under our precedent, eligibility restrictions
    are imposed only when (1) there is a significant likelihood of
    substantial competitive harm in specific markets, and (2)
    eligibility restrictions will be effective in addressing such
    harm.[^39] Under this standard, the Commission relies on market
    forces to guide license assignment absent a compelling showing that
    regulatory intervention to exclude potential participants is
    necessary.[^40] Accordingly, in furtherance of competition, we will
    not restrict eligibility for any channel block. Rather, we believe
    it is appropriate to allow both incumbents and new entrants to bid
    for one or more 900 MHz channel blocks that will be licensed. Below
    is a visual representation of our proposed band plan:

    ![](media/image1.png){width="6.620138888888889in"
    height="0.8784722222222222in"}

28. We believe that the proposed configuration can provide operational
    flexibility and efficiency by allowing providers to use new
    technologies and compete effectively with other commercial
    providers. By using this configuration, the Commission also avoids
    the transaction costs associated with reaggregation of spectrum,
    while promoting the flexibility necessary to facilitate secondary
    market uses. In addition, licensing the spectrum in contiguous
    blocks promotes the viability of CMRS services, including SMR
    services, since it permits the flexible and efficient use of
    technologies over the contiguous spectrum. As a result, the proposed
    channel block size will accommodate displaced CMRS services from 800
    MHz, should the need arise. We further believe that our proposed 900
    MHz channel block plan strikes a balance in affording small, medium
    and large operators the opportunity to obtain sufficient spectrum to
    establish viable and competitive wide-area systems. Specifically, we
    believe it offers a middle ground between larger channel blocks that
    may block entry to new, smaller operators, and smaller block sizes
    that may hinder wide-area operations. Finally, we note that a
    configuration of ten-channel blocks is the maximum amount of
    contiguous spectrum attainable, given that the blocks (AA-TT) are
    interleaved with existing 900 MHz SMR licensees (A-T).

29. We ask commenters to address whether our proposal to license the 900
    MHz flexible-use channels in nineteen blocks of ten contiguous
    channels each, and one block of nine contiguous channels is
    sufficient or excessive for likely spectrum uses. We request comment
    on whether our proposed allocation is a fair division of channels
    within the geographic area and will lead to efficient spectrum use.
    Commenters are particularly encouraged to address the
    appropriateness of alternative block sizes both smaller and larger
    than proposed. In this regard, we recognize that there are other
    possible alternatives that could prove feasible. Each option
    presents a trade-off between the benefits of providing each licensee
    a large number of channels, and the benefits of increased
    competition by having more licensees.

30. Although we believe that that our further proposal provides the best
    allotment of channels for likely uses, other options could prove
    viable. In particular, should we adopt an EA-based licensing
    approach, a more viable option might include nine blocks of twenty
    non-contiguous channels each and one block of nineteen
    non-contiguous channels. This band configuration would allow
    potential bidders to acquire a larger number of channels, albeit in
    smaller geographic areas. Other options to consider may be
    thirty-nine blocks of five contiguous channels and one block of four
    contiguous channels. Commenters might also consider the option of
    dedicating the upper four channel blocks (*i.e.,* QQ, RR, SS, TT) to
    traditional B/ILT services. We also ask commenters to consider
    whether we should permit potential bidders to bid on licenses
    comprising multiple band plans according to the band plan
    configuration they prefer and use the bidders\' collective valuation
    of licenses consistent with each band plan in determining which band
    plan to implement. We seek comment on these and any other preferred
    channel allotment plan. Commenters should support their preferred
    channel allotment plan through a detailed description of their
    preferred plan and a thorough analysis of why their plan best serves
    the public interest. In particular, commenters should consider
    whether their proposal will lead to the development of
    technologically advanced systems, while maintaining sufficient
    competition through multiple licensees. We also ask commenters to
    address our proposal to permit licensees to aggregate blocks and to
    allow both incumbents and new entrants to bid on the spectrum. We
    seek comment on this proposal.

31. *Licensing in Mexican/Canadian Border Areas*. Frequencies available
    for use in the U.S./Mexico and U.S./Canada border areas correspond
    to the 900 MHz B/ILT channels.[^41] As such, we propose to use the
    same allocation of geographic licensed channel block sizes in border
    areas as in non-border areas. Notably, those frequencies with power
    flux density limitations are secondary in the U.S. to Mexico/Canada
    frequencies (*i.e.*, these frequencies are the neighboring country's
    primary frequencies). We also note that use of channels in
    geographic areas that encompass border areas are subject to the
    relevant rules regarding international assignments and coordination
    of such channels.[^42] Accordingly, applicants will need to assess
    the impact of the border requirements in their valuation of those
    blocks for competitive bidding purposes. We ask commenters to
    discuss whether this approach is appropriate for these channels or
    whether some other channel assignment mechanism would better serve
    the public interest.

## Rights and Obligations of Geographic Area Licensees 

### Operational Flexibility

32. We believe that a key element in any new licensing scheme is that
    licensees be extended flexibility in terms of the location, design,
    construction, and modification of their facilities throughout their
    service area. Accordingly, consistent with the flexibility granted
    to cellular, PCS and SMR licensees, we tentatively conclude that
    geographic area licensees in the 900 MHz band should be permitted to
    construct stations at any authorized site and on any available
    channel within their licensing area. We also propose to allow a
    geographic area licensee to expand or modify facilities throughout
    its service area without prior Commission approval, so long as the
    system continues to be in compliance with our technical and
    operational rules, protects incumbents, and is consistent with
    international requirements and approvals as noted above.

33. We believe that granting these flexible rights to the 900 MHz
    geographic area licensees will lessen administrative burden on both
    licensees and the Commission with respect to future management of
    the spectrum contained in the licensed area overlay blocks. We seek
    comment on this proposal and other alternatives, including the costs
    and benefits associated with each alternative in markets that are
    heavily occupied by incumbent licensees.

### Treatment of Incumbent Systems

34. Given the number of systems already authorized in the 900 MHz B/ILT
    band, a critical issue associated with our geographic area licensing
    proposals is its impact on existing incumbent 900 MHz B/ILT
    licensees. We believe it appropriate to require geographic area
    licensees to afford the same protection to incumbent B/ILT systems
    as is provided to incumbents by existing 900 MHz SMR MTA licensees.
    Therefore, we propose to require geographic area licensees to afford
    protection to incumbent B/ILT systems either: (1) by locating their
    stations at least 113 km (70 miles) from any incumbent's
    facilities; (2) by complying with the co-channel separation
    standards of our "short-spacing" rule if they seek to operate
    stations located less than 113 km (70 miles) from an incumbent
    licensee's facilities; or (3) by negotiating an even shorter
    distance with the incumbent licensee.[^43] We also seek comment on
    our tentative conclusion that the geographic area licensee's
    co-channel obligations cease upon the deletion of a revoked or
    terminated co-channel station authorization from the Commission's
    licensing records. The geographic area licensee would then be
    allowed to construct and operate base stations using such frequency,
    subject to the rules we have proposed.[^44]

35. We believe this interference protection proposal will adequately
    protect incumbent operations without hindering the ability of
    geographic area licensees to construct stations throughout their
    authorized service area. We ask commenters to address whether
    applying these existing interference requirements to geographic area
    licensee protection of incumbents would hamper the geographic area
    licensee's ability to fully construct its system. We also ask
    commenters to consider whether additional interference protection
    requirements are necessary and if so, what additional rules should
    apply and why. In particular, we note that the architecture of
    incumbent systems within the band may be significantly different
    than new entrants and could lead to interference mechanisms, such as
    receiver overload or intermodulation, that may not be fully
    addressed by our interference protection proposal or co-channel
    spacing requirements. We note that licensees may be faced with the
    same interference problems that necessitated the remedies adopted in
    the *800 MHz R&O* unless equivalent interference abatement
    requirements are established at 900 MHz. In this regard, we
    specifically ask whether the overall approach to interference
    protection should be modified to include the interference abatement
    reached in the *800 MHz R&O*,[^45] or an enhanced or voluntary Best
    Practices[^46] approach to address potential interference in this
    band, or whether the appropriate interference avoidance mechanisms
    are best left to private arrangements and negotiations between
    licensees.

36. *Grandfathering provisions for incumbent licensees.* Consistent with
    the flexibility provided to incumbent 900 MHz SMR licensees, we
    propose to define the existing service area of an incumbent B/ILT
    system by its originally-licensed 40 dBµV/m field strength
    contour.[^47] As our objective is to allow incumbents to continue
    existing operations without harmful interference and to give them
    flexibility to modify or augment their systems so long as they do
    not encroach on the geographic area licensee's operations, we
    propose to permit incumbent licensees to add or modify transmit
    sites[^48] in their existing service area, without prior approval or
    without post construction notification to the Commission, so long as
    their original 40 dBµV/m signal is not expanded. We also propose to
    allow incumbent licensees operating at multiple sites to exchange
    multiple site licenses for a single license throughout the
    contiguous and overlapping 40 dBµ/Vm field strength contours of the
    multiple sites. We would expect incumbents exercising this option to
    submit specific information for each of their external base sites
    after the close of the 900 MHz spectrum auction. We solicit comments
    on our approach in adopting these provisions for incumbent B/ILT
    systems.

37. *Option for incumbent licensees to transition through auction.* We
    also seek comment on whether to provide an option for incumbent
    licensees to return their licensees through an auction that includes
    the new geographic area overlay licenses for white space as well as
    any site-based licenses currently held by incumbent licensees who
    may be willing to exchange or sell their licenses.[^49] In such an
    auction, interested parties would be able to bid on licenses
    covering both the site-based and overlay areas, thereby increasing
    their ability seamlessly to use more of the geographic area covered
    by the new license and eliminating the need to protect those
    incumbents who give up their licenses or to negotiate post-auction
    with incumbents that may wish to.

38. Participation by incumbent licensees would be voluntary. They could
    choose to continue their current operations under their site-based
    licenses; bid in the auction for additional overlay licenses; or
    return their current licenses in exchange for means to obtain
    comparable spectrum access. There are various methods by which this
    framework could be implemented, including an auction in which
    incumbents would exchange their licenses for tradable bidding offset
    credits, the value of which would be linked to the winning bids for
    licenses sold in the auction. Another option is to conduct an
    auction which permits incumbents to participate not only as
    potential buyers of overlay rights, but also as sellers of their
    existing site-based licenses, with the right to set a reserve price
    below which they would choose not to sell the licenses.

39. Because, in effect, both site-based and white-space rights would be
    available at the same time, bidders wishing to put together full
    area licenses would not be deterred from participating because of
    the uncertainty and transaction costs of dealing with incumbents
    post-auction; they would face those costs directly during the
    auction. In general under this type of auction mechanism, the
    assignment would be economically efficient; since bidders could
    place bids that reflected the full value of the combined existing
    and residual rights, the auction could assign the rights to the
    highest valuing bidders. In versions of this general form of auction
    discussed by the Commission, existing licensees would not be
    required to relinquish their rights, but they would be likely to do
    so if compensation for their license exceeded the value to them of
    continuing with their current use.[^50]

40. Such a mechanism to promote the efficient transition of incumbent
    users may be most useful in situations in which the anticipated use
    of the spectrum under new service rules is incompatible with the
    continued existence of incumbents operating legacy systems in the
    band as, for example, in the BRS/EBS proceeding where the
    interleaved nature of the former MDS/ITFS band plan seriously
    compromises a move to higher valued uses of the spectrum. While we
    expect that the overlay licenses we make available in this
    proceeding will be useful for providing new services regardless of
    the existence of site-based B/ILT users, it may be the case that an
    auction option in which the licenses of incumbent providers are also
    made available would encourage a quicker and smoother transition of
    the 900 MHz spectrum to uses consistent with the more flexible
    service rules adopted here. We seek comment on such an option (an
    auction option in which the licenses of incumbent providers are also
    made available). To the extent that commenters propose auction
    mechanisms beyond the scope of prior Commission proposals, as in the
    *BRS/EBS FNPRM,* commenters should address the Commission's
    authority to employ such mechanisms..

### Emission and Field Strength Limits

41. *Emission Limits*. As a protection against adjacent channel
    interference, the Commission has subjected most mobile radio
    services to emission mask rules that restrict transmitter emissions
    on the spectrum adjacent to the licensee's assigned channel. In the
    *CMRS Third R&O*, the Commission affirmed its out-of-band emission
    rules for CMRS services as applicable to "outer" channels in each
    block and to "interior" channels where there are incumbent
    licensees.[^51] The Commission concluded that these channels have
    the potential to affect operations outside of the geographic
    licensee's authorized bandwidth and noted that its approach was
    consistent with similar rules imposed in the broadband PCS and 800
    MHz SMR context.[^52]

42. We propose similar rules for geographic area licensees in the 900
    MHz band. Specifically, on any frequency in a geographic area
    licensee's spectrum block that is adjacent to a non-geographic area
    frequency, we propose that the power of any emission shall be
    attenuated below the transmitter power (P) by at least 43 plus 10
    log~10~ (P) decibels or 80 decibels, whichever is the lesser
    attenuation. We tentatively conclude that this emission mask would
    adequately protect licensees in neighboring spectrum. Nevertheless,
    we seek comment on any alternatives appropriate for any unique
    operational issues presented by geographic area-based CMRS systems,
    and ask commenters to include a technical analysis of each proposal.

43. *Field Strength Limits*. We also tentatively conclude that the
    predicted or measured field strength at any location on the border
    of the service area for geographic area licensees should not exceed
    40 dBµV/m unless all bordering geographic area licensees agree to a
    higher field strength. We propose to require geographic area
    licensees to coordinate their frequency usage with all other
    affected parties. However, to the extent a single entity obtains
    licenses for adjacent geographic areas on the same channel block, we
    will not require such entities to coordinate their frequency usage,
    subject to co-channel protection requirements to incumbents. This
    requirement is similar to that imposed on cellular and PCS services,
    and is also consistent with the approach taken for 900 MHz SMR
    services.

44. We request comment on whether 40 dBµV/m is an appropriate field
    strength level for a geographic area licensee's operations at its
    service area border. Commenters should address whether this limit
    furthers our goal of avoiding harmful interference or whether
    stricter requirements are necessary. If alternative limits are
    proposed, we ask commenters to explain why stricter limits are
    required and to provide a technical analysis of any alternative
    proposal.

###  Performance Requirements

45. Section 309(j)(4)(B) of the Communications Act requires the
    Commission to include safeguards to protect the public interest in
    the use of spectrum, and "performance requirements . . . to ensure
    prompt delivery of service to rural areas, to prevent stockpiling or
    warehousing of spectrum by licensees or permittees, and to promote
    investment in and rapid development of new technologies and
    services."[^53] In addition, we seek to promote the efficient and
    effective use of the spectrum.[^54] In this regard, we tentatively
    propose that we should require 900 MHz licensees to submit to the
    Commission a showing of substantial service in their licensed area
    within ten years of being licensed. We believe this performance
    requirement could provide greater flexibility for parties interested
    in entering into spectrum leasing arrangements involving this
    spectrum, as well as for providing service to rural or sparsely
    populated areas. We note, however, that some commenters may prefer a
    more "accelerated" requirement, and we therefore solicit comment on
    whether to adopt a five-year substantial service performance
    requirement or other performance standard.

46. With regard to a ten-year substantial service requirement, we
    recognize that this is less stringent than the coverage standards
    imposed in both the narrowband and broadband PCS and 900 MHz SMR
    contexts.[^55] Nevertheless, we believe that a showing of
    substantial service by the tenth year of license grant may be
    appropriate for 900 MHz flexible-use licensees, and may best
    accomplish the Commission's goals for this spectrum.

47. In the alternative, we seek comment from those that believe a
    five-year substantial service requirement would be more efficient
    for the 900 MHz flexible-use licenses. We ask those commenters to
    elaborate on how an accelerated performance requirement is the best
    option for potential licensees and consumers, while at the same
    time, fulfilling the Commission's goals of providing flexible use
    with innovative technologies. For example, we seek comment on our
    understanding that the market for 900 MHz equipment is relatively
    mature and robust and should not unnecessarily delay service
    deployment. We also seek comment on whether a five-year substantial
    service requirement may bring services more rapidly to the market or
    other reasons why a more accelerated requirement may be preferable.

48. We believe the flexibility offered through substantial service (as
    opposed to a population benchmark) would allow licensees to provide
    service to rural areas that may have a high service demand, as
    compared with heavily-populated urban areas with less demand. We
    note, though, that what constitutes "substantial service" may vary
    from market to market, depending on the levels of incumbency and
    other unique circumstances, and we ask parties to consider this in
    their comments. Of course, a substantial service requirement,
    whether at five or ten years, may not suit all licensees, and we
    seek comment on the applicability of the Commission's waiver process
    in addressing substantial service given the levels of incumbency in
    this band**.**

49. We note that in the *SMR Second R&O*, the Commission required 900
    MHz SMR licensees to provide coverage to one-third of the population
    of their service area within three years of initial license grant
    and to two-thirds of the population of their service area within
    five years. Alternatively, at the five year mark, SMR licensees may
    submit a showing to the Commission demonstrating that they are
    providing substantial service.[^56] The Commission noted that
    including a showing of substantial service for 900 MHz MTA licensees
    was appropriate since several offerings in that band included
    specialized services or niche markets.[^57]

50. In the interest of flexibility and regulatory symmetry within the
    900 MHz band, and consistent with the questions above, we seek
    comment on whether we should modify existing coverage requirements
    for 900 MHz SMR services to mirror the proposed substantial service
    showing for those 900 MHz licensees permitted flexible spectrum use.
    We believe that flexible performance standards may enhance the rapid
    deployment of new technologies, expedite service to rural areas, and
    allow licensees to respond to market demands for service. Finally,
    we note that under this proposed rule, licensees that have met their
    construction requirements need take no further action; this rule
    would apply only to 900 MHz licensees that have not yet filed their
    construction notifications. We seek comment on this proposal.

51. We solicit comments on whether the above proposals strike a balance
    between ensuring that spectrum is used effectively and promptly,
    while providing an adequate deterrent to competitors that might seek
    to warehouse spectrum. If stricter standards are warranted, what
    should they be and why are they needed? We also request comments on
    the cost and benefits of imposing coverage requirements on these
    licensees and the specific coverage standard proposed. We also ask
    commenters to discuss how any alternative standards are consistent
    with the requirements of Section 309(j) of the Act that the spectrum
    is used efficiently and deployed rapidly.[^58]

52. *Loading Requirements.* We note that the Commission previously
    eliminated loading requirements for future licensing of all CMRS
    providers.[^59] The Commission has noted that loading requirements
    are not a reliable indicator of efficient channel usage and that
    spectrum warehousing concerns can be adequately addressed by other
    means, including performance requirements.[^60] We note that
    incumbent B/ILT licensees are subject to loading requirements.[^61]
    While we do not propose to adopt loading requirements for the 900
    MHz licensees, we seek comment on whether we should retain or
    eliminate loading requirements as they apply to existing B/ILT
    authorizations. We question the usefulness of retaining loading
    requirements for B/ILT incumbents who are currently permitted to
    initiate CMRS operations without any holding periods on their
    currently authorized spectrum or to assign their authorizations to
    others for CMRS use. Given that B/ILT incumbents would now
    additionally have the ability to obtain a geographic area license,
    or to sell their current frequencies, we seek comment on the
    practicality of retaining loading requirements for incumbents.

### Other Operating and Technical Rules

53. *Other Part 90 Requirements*. The application of general provisions
    of Part 90[^62] would include rules related to applications and
    authorizations, assignment, licensing and use of frequencies,
    general technical standards, including power and antenna height
    limits, types of emissions, frequency stability, and transmitter
    measurements, as well as general operating requirements.[^63] We
    seek comment on applying these provisions to the spectrum that is
    the subject of this *Notice*. We propose that all of these technical
    and operating rules would apply to all 900 MHz flexible-use
    licensees in this band, including those who acquire their licenses
    through partitioning and disaggregation. We seek comment on this
    proposal.

54. *Other Rule Part Requirements*. As noted above, although licenses in
    the 896-901 and 935-940 MHz band may be issued pursuant to one rule
    part, licensees in this band may be required to comply with rules
    contained in other parts of the Commission's rules by virtue of the
    particular services they provide. For example:

-   Applicants and licensees will be subject to the application filing
    procedures for the Universal Licensing system, set forth in Part 1
    of our rules.[^64]

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

-   Licensees will be required to comply with the Commission's
    environmental provisions, including section 1.1307.[^65]

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

-   Licensees will be required to comply with the CMRS provisions of
    Part 20 and the public (common carrier) mobile radio services of
    Part 22, to the extent applicable.[^66]

55. We seek comment generally on any provision in existing
    service-specific rules that may require specific recognition or
    modification to comport with the supervening application of another
    rule part, as well as any additional provisions that may be
    necessary to fully describe the scope of covered services and
    technologies. We seek comment on applying these rules to the
    spectrum that is the subject of this *Notice* and specifically on
    any rules that would be affected by our proposal.

## Competitive Bidding Procedures

56. If mutually-exclusive applications are filed for these 900 MHz
    channels, the Commission will be required to resolve such
    applications by competitive bidding pursuant to the requirements of
    47 U.S.C. § 309(j).[^67] Accordingly, in this *Notice*, we request
    comment on a number of issues relating to competitive bidding for
    these 900 MHz channels.

### Incorporation by Reference of Part 1 Standardized Competitive Bidding Rules.

57. We propose to conduct the auction for these 900 MHz channel licenses
    in conformity with the general competitive bidding rules established
    in Part 1, Subpart Q of the Commission\'s Rules, and substantially
    consistent with the bidding procedures that have been employed in
    previous Commission auctions.[^68] Specifically, we propose to
    employ the Part 1 rules governing designated entities, application
    and payment procedures, reporting requirements, collusion issues,
    and unjust enrichment.[^69] Under this proposal, such rules would be
    subject to any modifications that the Commission may adopt in its
    Part 1 proceeding.[^70] In addition, consistent with current
    practice, matters such as the appropriate competitive bidding
    design, as well as minimum opening bids and reserve prices, would be
    determined by the Bureau pursuant to its delegated authority.[^71]
    We seek comment on this proposal. In particular, we request comment
    on whether any of our Part 1 competitive bidding rules would be
    inappropriate, or should be modified, for an auction of these 900
    MHz channel licenses. In addition, we request comment on whether any
    of our Part 1 competitive bidding rules should be modified if we
    provide an option for incumbent licensees to transition through the
    auction process.

### Provisions for Designated Entities.

58. 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." [^72] In addition, section
    309(j)(3)(B) of the Communications Act of 1934 requires that in
    establishing eligibility criteria and bidding methodologies, the
    Commission must 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.\"[^73] One of the principal
    means by which the Commission furthers these statutory goals is the
    award of bidding credits to small businesses.[^74] The Commission
    defines eligibility requirements for small business bidding credits
    on a service-specific basis, taking into account the capital
    requirements and other characteristics of the particular
    service.[^75]

59. In this *Notice*, we propose small business bidding credits to
    further these statutory goals. Specifically, we propose to establish
    appropriate small business thresholds by taking into account the
    capital requirements and other characteristics for these particular
    900 MHz channel licenses.[^76]

60. In the *SMR Seventh Report and Order*, the Commission adopted
    criteria for defining two groups of small business for purposes of
    determining bidding credit eligibility to promote and facilitate the
    participation of small businesses in the competitive bidding for
    licenses in the 900 MHz SMR service. [^77] In that proceeding, the
    Commission defined a small business as an entity that, together with
    its affiliates, controlling interests and affiliates of controlling
    interests, has average gross revenues not exceeding \$15 million for
    the preceding three years.[^78] In the same proceeding, the
    Commission defined a very small business as an entity that, together
    with its affiliates, controlling interests and affiliates of
    controlling interests, has average gross revenues not exceeding \$3
    million for the preceding three years. [^79]

61. For competitive bidding for these particular 900 MHz channel
    licenses, we propose to adopt the definitions of small businesses
    and very small businesses which the Commission adopted for the 900
    MHz SMR service, and which were used in the most recent auction of
    900 MHz SMR licenses, Auction No. 55.[^80] We tentatively conclude
    that the 900 MHz channel licenses may have capital requirements
    similar to the 900 MHz SMR service licenses recently auctioned. In
    addition, competitive bidding for these 900 MHz licenses may attract
    the same type of businesses who participated in Auction No. 55.
    Accordingly, we seek to adopt small business size standards that
    provide a variety of businesses with the same opportunity to
    participate in competitive bidding for the new 900 MHz channel
    licenses as was provided for other licenses in the 900 MHz SMR band.
    Specifically, we propose to define a small business as an entity
    with average annual gross revenues for the three preceding years not
    to exceed \$15 million.[^81] In addition, we propose to adopt a
    definition for a very small business as an entity with average
    annual gross revenues for the three preceding years not to exceed
    \$3 million.[^82] We also propose to provide small businesses with a
    bidding credit of 10 percent and very small businesses with a
    bidding credit of 15 percent. In the interest of regulatory
    symmetry, we propose the same level of bidding credits the
    Commission provides to designated entities that are winning bidders
    for 900 MHz SMR licenses.[^83] We seek comment on the use of these
    size standards, and associated bidding credits, with particular
    focus on the appropriate definitions of small and very small
    businesses as they may relate to the size of the geographic area to
    be served and the spectrum allocated to each 900 MHz channel
    license.

62. In discussing these issues, we request commenters to address the
    expected capital requirements for services in these bands and other
    characteristics of 900 MHz channel operations. We invite commenters
    to use comparisons with other services for which the Commission
    previously established auction procedures as a basis for their
    comments regarding the appropriate small business size standards. To
    the extent commenters support a different bidding credit
    regime,[^84] or believe that there are any distinctive
    characteristics for these particular 900 MHz channel operations that
    suggest we should not employ bidding credits in this instance,
    commenters should support their proposals with relevant information.
    For example, such comments should provide information on the types
    of system architecture that licensees are likely to deploy for these
    particular 900 MHz channels, the availability of equipment, market
    conditions, and other factors that may affect capital requirements
    for deploying services on these 900 MHz channels.[^85]

63. We also seek comment on whether our proposed designated entity
    provisions, if applied to these 900 MHz channel licenses, would
    promote participation by businesses owned by minorities and by
    women, as well as participation by rural telephone companies. To the
    extent that commenters propose additional or substitute provisions
    to enhance participation by minority-owned or women-owned
    businesses, commenters should address how we should craft such
    provisions to meet the relevant standards of judicial review.[^86]

# 900 MHz Band Freeze MEMORANDUM OPINION AND Order

64. As previously noted, in September 2004 the Bureau issued a Public
    Notice freezing its acceptance of applications for new 900 MHz
    licenses until further notice.[^87] The Bureau indicated that an
    exceptionally large number of applications for 900 MHz
    authorizations had been filed subsequent to the release of the *800
    MHz R&O*. The Bureau noted its concern that additional such filings
    might compromise the ability to accommodate displaced systems while
    the 800 MHz band is reconfigured to abate unacceptable interference
    to Public Safety, Critical Infrastructure, and other "high site" 800
    MHz systems.[^88] The Bureau provided that applications for
    modification of existing facilities, assignment of license, or
    transfer of control of a licensee would continue to be accepted,
    subject to applicable rules regarding eligibility, loading, and
    other requirements.[^89] In addition, applicants were advised that
    they may have recourse via the Commission's waiver provisions to
    request an exception to the freeze.[^90]

65. In response to this Public Notice, several interested parties have
    filed letters, informal oppositions, and petitions for
    reconsideration of the Bureau's action.[^91] Generally, all of the
    parties oppose the Bureau's course. UTC, for example, requests that
    the Bureau lift the freeze in the interest of critical
    infrastructure personnel that may be threatened with significant
    exposure to loss of communications.[^92] ITA suggests that any
    legitimate concerns regarding warehousing spectrum could be
    addressed through correct application of our rules governing loading
    and eligibility.[^93] Advanced Metering Data Systems notes that this
    action "impedes the use of the 900 MHz band for all PLMR licensees
    and directs the agency's focus away from protecting the rights of
    legitimate applicants."[^94] Similarly, Small Business in
    Telecommunications asserts that the freeze "works as a prejudice
    against all other *legitimate* applicants and existing users" that
    might need additional 900 MHz spectrum.[^95] Finally, the National
    Association of Manufacturers/MRFAC recommends that the Bureau
    require a showing of a licensee's eligibility and proposed loading
    as a way of screening for legitimate applications.[^96] All of the
    interested parties asked the Bureau to lift the freeze on new
    applications for 900 MHz B/ILT licenses, or, in the case of Verizon
    Wireless, requests the Bureau to dismiss the pending PMRS
    applications submitted by ACI 900, Inc.

66. We recognize that the freeze may prevent otherwise eligible business
    entities from applying for new 900 MHz B/ILT licenses, and we are
    mindful that some of the applications that would have been accepted
    (absent the freeze) may be for legitimate and eligible business
    purposes. However, because of the fundamental changes we are
    proposing in the service areas and channel blocks for future
    licensees in this service, we find it appropriate and necessary to
    suspend new 900 MHz applications in the B/ILT category Pools. We
    believe that allowing applications for new 900 MHz licenses might
    limit the effectiveness of the decisions ultimately made in the
    context of this proceeding. Moreover, our action is consistent with
    the Commission's past practices.[^97]

67. Accordingly, to preserve the potential of realizing the goals and
    policies underlying this proceeding, we affirm the Bureau's decision
    to suspend the acceptance of applications for new 900 MHz licenses
    as of the release date of the *Freeze Public Notice*. Being
    cognizant of the needs of existing licensees, we note that
    incumbents may continue to file modification applications, and we
    will consider requests for waiver of the application freeze for new
    authorizations (*e.g.,* a licensee with a legitimate business need
    to expand coverage or add channels).[^98] We believe this strikes an
    appropriate balance of our need to keep the spectrum as unencumbered
    as possible, with the needs of current licensees with business plans
    that need to be effectuated. We stress that the waiver applicant
    bears the burden of demonstrating compliance with waiver standards.
    We also note that all 900 MHz band applications for new licenses
    which were filed prior to the freeze and are still pending will be
    processed in the normal course. We emphasize, however, that each
    pending application will be subject to strict scrutiny, especially
    with respect to eligibility and channel loading requirements, and
    defective applications will be dismissed.

68. Accordingly, we deny the Petitions for Reconsideration filed by the
    ITA and SBT, and deny the informal requests for Commission action
    filed UTC, AMDS, and NAM/MRFAC to the extent they request a lift of
    the freeze on new 900 MHz applications. We also defer action on the
    Informal Opposition of Verizon Wireless as its request for relief
    may be mooted by the outcome of this *Notice*.

# procedural matters

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

69. This is a permit-but-disclose notice and comment rulemaking
    proceeding. *Ex parte* presentations are permitted, except during
    the Sunshine Agenda period, provided they are disclosed pursuant to
    the Commission's rules.[^99]

## Comment Period and Procedures

70. Pursuant to applicable procedures set forth in sections 1.415 and
    1.419 of the Commission**'**s rules,[^100] interested parties may
    file comments on this *Notice* on or before \[**30 days after
    publication in the Federal Register\]**, and reply comments on or
    before **\[45 days after publication in the Federal Register\]**.
    Comments and reply comments should be filed in WT Docket No. 05-62,
    and may be filed using the Commission's Electronic Comment Filing
    System (ECFS) or by filing paper copies.[^101] All relevant and
    timely comments will be considered by the Commission before final
    action is taken in this proceeding.

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

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

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

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

## Initial Regulatory Flexibility Analysis

75. As required by the Regulatory Flexibility Act of 1980 (RFA),[^102]
    the Commission has prepared an Initial Regulatory Flexibility
    Analysis (IRFA) of the possible significant economic impact on small
    entities of the policies and rules proposed in the Notice. The
    analysis is found in Appendix B. We request written public comment
    on the analysis. Comments must be filed by the same dates as listed
    in paragraph 70, and must have a separate and distinct heading
    designating them as responses to the IRFA. The Commission**'**s
    Consumer and Governmental Affairs Bureau, Reference Information
    Center, will send a copy of this Notice, including the IRFA, to the
    Chief Counsel for Advocacy of the Small Business Administration.

## Initial Paperwork Reduction Analysis

76. This document contains proposed new or modified information
    collection requirements. The Commission, as part of its continuing
    effort to reduce paperwork burdens, invites the general public and
    the Office of Management and Budget (OMB) to comment on the
    information collection requirements contained in this document, as
    required by the Paperwork Reduction Act of 1995, Public Law 104-13.
    Public and agency comments are due 60 days after date of publication
    in the Federal Register. Comments should address: (a) whether the
    proposed collection of information is necessary for the proper
    performance of the functions of the Commission, including whether
    the information shall have practical utility; (b) the accuracy of
    the Commission\'s burden estimates; (c) ways to enhance the quality,
    utility, and clarity of the information collected; and (d) ways to
    minimize the burden of the collection of information on the
    respondents, including the use of automated collection techniques or
    other forms of information technology. In addition, pursuant to the
    Small Business Paperwork Relief Act of 2002,[^103] we seek specific
    comment on how we might "further reduce the information collection
    burden for small business concerns with fewer than 25 employees."

77. In addition to filing comments with the Secretary, a copy of any
    comments on the information collections contained herein should be
    submitted to Judith Boley Herman, Federal Communications Commission,
    445 12^th^ Street, S.W., Room 1-C804, Washington, D.C. 20554, or via
    the Internet to \<jboley@fcc.gov\>, and to Kristy LaLonde, Policy
    Analyst, Office of Information and Regulatory Affairs (OIRA), Office
    of Management and Budget (OMB), Docket Library, Room 10234, New
    Executive Office Building (NEOB), 725 17^th^ Street, N.W.,
    Washington, D.C. 20503, or via the Internet at
    \<LaLonde@omb.eop.gov\>.

## Further Information

78. For further information concerning this rulemaking proceeding,
    contact Michael Connelly, Wireless Telecommunications Bureau,
    at (202) 418-0132, Federal Communications Commission, 445 12^th^
    Street, S.W., Washington, D.C. 20554; or via the Internet to
    \<michael.connelly@fcc.gov\>.

# ordering clauses

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

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

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

82. IT IS FURTHER ORDERED that the Petitions for Reconsideration filed
    by the Industrial Telecommunications Association, Inc. on September
    24, 2004, and by Small Business in Telecommunications filed on
    October 4, 2004, are DENIED, and that the informal requests for
    Commission action filed by the United Telecom Council on September
    23, 2004, by Advanced Metering Data Systems on October 4, 2004, and
    by the National Association of Manufacturers/MRFAC on October 12,
    2004, are DENIED to the extent they request a lift of the freeze on
    new 900 MHz applications.

83. IT IS FURTHER ORDERED that the Informal Opposition filed by Verizon
    Wireless on September 14, 2004 is DEFERRED pending the outcome of
    this proceeding.

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

# Appendix A: PROPOSED Rules {#appendix-a-proposed-rules .unnumbered}

> **PART 90 -- PRIVATE LAND MOBILE RADIO SERVICES**

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

**: 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).**

2\. Section 90.7 is amended to read as follows:

**§ 90.7 Definitions.**

\* \* \* \* \*

*Major Economic Area (MEA).* An aggregation of Basic Economic Areas
(BEAs) into 52 regions, including the Gulf of Mexico.

\* \* \* \* \*

*MEA-based license or MEA license*. A license authorizing the right to
use a specified block of SMR spectrum with one of the 52 Major Economic
Areas ("MEAs").

3\. Section 90.210 is amended to add a footnote 4 to the frequency band
896-901/935-940 MHz that says:

Equipment used in this band licensed to MTA, EA or MEA or non geographic
based systems shall comply with the emission mask provisions of §90.669.

4\. Section 90.617 is amended by revising paragraph (c) and removing the
undesignated text before Table 3 and Table 3 remains unchanged. The
revisions read as follows:

**§ 90.617   Frequencies in the 809.750--824/854.750--869 MHz, and
896--901/935--940 MHz bands available for trunked, conventional or
cellular system use in non-border areas.**

> \(c\) The channels listed in Table 3 are available to applicants
> eligible in the Industrial/Business Pool of subpart C of this part but
> exclude Special Mobilized Radio Systems as defined in §90.603(c).
> These frequencies are available in non-border areas. Specialized
> Mobile Radio (SMR) systems may be authorized on these frequencies
> after **\[Effective date of *Report and Order*\]**. For multi-channel
> systems, channels may be grouped vertically or horizontally as they
> appear in the below table
>
> Table 3 -- Business/Industrial/Land Transportation Pool
> 896-901/935-940 MHz Band Channels
>
> \[199 Channels\]
>
> Channel Nos.

  -------------------------------------- --------------------------------
  11-12-13-14-15                         211-212-213-214-215

  16-17-18-19-20                         216-217-218-219-220

  31-32-33-34-35                         231-232-233-234-235

  36-37-38-39-40                         236-237-238-239-240

  51-52-53-54-55                         251-252-253-254-255

  56-57-58-59-60                         256-257-258-259-260

  71-72-73-74-75                         271-272-273-274-275

  76-77-78-79-80                         276-277-278-279-280

  91-92-93-94-95                         291-292-293-294-295

  96-97-98-99-100                        296-297-298-299-300

  111-112-113-114-115                    311-312-313-314-315

  116-117-118-119-120                    316-317-318-319-320

  131-132-133-134-135                    331-332-333-334-335

  136-137-138-139-140                    336-337-338-339-340

  151-152-153-154-155                    351-352-353-354-355

  156-157-158-159-160                    356-357-358-359-360

  171-172-173-174-175                    371-372-373-374-375

  176-177-178-179-180                    376-377-378-379-380

  191-192-193-194-195                    391-392-393-394-395

  196-197-198-199-200                    396-397-398-399
  -------------------------------------- --------------------------------

\* \* \* \* \*

> \(f\) The channels listed in Table 6 are available for operations only
> to eligibles in the SMR category -- which consists of Specialized
> Mobile Radio (SMR) stations and eligible end users. These frequencies
> are available in non-border areas.
>
> The channels listed in Table 7 are available to
> Business/Industrial/Land Transportation or SMR eligibles for EA or MEA
> based licensing.
>
> \[200 Channels\]

+--------------------+-------------------------------------------------+
| Table 6 -- SMR     | Channel Nos.                                    |
| Category           |                                                 |
| 896-901/935-940    |                                                 |
| MHz Band Channels  |                                                 |
|                    |                                                 |
| Block              |                                                 |
+--------------------+-------------------------------------------------+
| A                  | 1-2-3-4-5-6-7-8-9-10                            |
+--------------------+-------------------------------------------------+
| B                  | 21-22-23-24-25-26-27-28-29-30                   |
+--------------------+-------------------------------------------------+
| C                  | 41-42-43-44-45-46-47-48-49-50                   |
+--------------------+-------------------------------------------------+
| D                  | 61-62-63-64-65-66-67-68-69-70                   |
+--------------------+-------------------------------------------------+
| E                  | 81-82-83-84-85-86-87-88-89-90                   |
+--------------------+-------------------------------------------------+
| F                  | 101-102-103-104-105-106-107-108-109-110         |
+--------------------+-------------------------------------------------+
| G                  | 121-122-123-124-125-126-127-128-129-130         |
+--------------------+-------------------------------------------------+
| H                  | 141-142-143-144-145-146-147-148-149-150         |
+--------------------+-------------------------------------------------+
| I                  | 161-162-163-164-165-166-167-168-169-170         |
+--------------------+-------------------------------------------------+
| J                  | 181-182-183-184-185-186-187-188-189-190         |
+--------------------+-------------------------------------------------+
| K                  | 201-202-203-204-205-206-207-208-209-210         |
+--------------------+-------------------------------------------------+
| L                  | 221-222-223-224-225-226-227-228-229-230         |
+--------------------+-------------------------------------------------+
| M                  | 241-242-243-244-245-246-247-248-249-250         |
+--------------------+-------------------------------------------------+
| N                  | 261-262-263-264-265-266-267-268-269-270         |
+--------------------+-------------------------------------------------+
| O                  | 281-282-283-284-285-286-287-288-289-290         |
+--------------------+-------------------------------------------------+
| P                  | 301-302-303-304-305-306-307-308-309-310         |
+--------------------+-------------------------------------------------+
| Q                  | 321-322-323-324-325-326-327-328-329-330         |
+--------------------+-------------------------------------------------+
| R                  | 341-342-343-344-345-346-347-348-349-350         |
+--------------------+-------------------------------------------------+
| S                  | 361-362-363-364-365-366-367-368-369-370         |
+--------------------+-------------------------------------------------+
| T                  | 381-382-383-384-385-386-387-388-389-390         |
+--------------------+-------------------------------------------------+

> Table 7 - 896-901/935-940 MHz Band Channels (199 Channels) available
> AFTER **\[Effective date of *Report and Order*\]** FOR
> BUSINESS/INDUSTRIAL/LAND TRANSPORTATION OR SMR ELIGIBLES FOR EA OR MEA
> BASED LICENSING.

  --------------------- -------------------------------------------------
  Block                 Channel Nos.

  AA                    11-12-13-14-15-16-17-18-19-20

  BB                    31-32-33-34-35-36-37-38-39-40

  CC                    51-52-53-54-55-56-57-58-59-60

  DD                    71-72-73-74-75-76-77-78-79-80

  EE                    91-92-93-94-95-96-97-98-99-100

  FF                    111-112-113-114-115-116-117-118-119-120

  GG                    131-132-133-134-135-136-137-138-139-140

  HH                    151-152-153-154-155-156-157-158-159-160

  II                    171-172-173-174-175-176-177-178-179-180

  JJ                    191-192-193-194-195-196-197-198-199-200

  KK                    211-212-213-214-215-216-217-218-219-220

  LL                    231-232-233-234-235-236-237-238-239-240

  MM                    251-252-253-254-255-256-257-258-259-260

  NN                    271-272-273-274-275-276-277-278-279-280

  OO                    291-292-293-294-295-296-297-298-299-300

  PP                    311-312-313-314-315-316-317-318-319-320

  QQ                    331-332-333-334-335-336-337-338-339-340

  RR                    351-352-353-354-355-356-357-358-359-360

  SS                    371-372-373-374-375-376-377-378-379-380

  TT                    391-392-393-394-395-396-397-398-399
  --------------------- -------------------------------------------------

> 5\. Section 90.619 is amended by revising paragraph (b)(1) and
> removing the undesignated text before Table 1 and Table 1 remains
> unchanged. The revisions read as follows:

**§ 90.619   Frequencies available for use in the U.S./Mexico and
U.S./Canada border areas.**

> \(b\) *Use of Frequencies in 900 MHz Band in Mexico Border Region.*
> All operations in the 896-901/935-940 MHz band within the Mexico
> border region shall be in accordance with international agreements
> between the U.S. and Mexico.
>
> \(1\) The channels listed in Table 1 below are available to applicants
> eligible in the Industrial/Business Pool of subpart C of this part but
> exclude Special Mobilized Radio Systems as defined in §90.603(c).
> These frequencies are available within the Mexico border region.
> Specialized Mobile Radio (SMR) systems may be authorized on these
> frequencies after **\[Effective date of *Report and Order*\]**. For
> multi-channel systems, channels may be grouped vertically or
> horizontally as they appear in the following table. Channels numbered
> above 200 may be used only subject to the power flux density limits
> stated in paragraph (a)(2) of this section.
>
> Table 1 -- United States/Mexico Border Area, Business/Industrial/Land
> Transportation Pool 896-901/935-940 MHz Band
>
> \[199 Channels\]

*Channels Nos.*

  -------------------------------------- --------------------------------
  11-12-13-14-15                         131-132-133-134-135

  16-17-18-19-20                         136-137-138-139-140

  31-32-33-34-35                         231-232-233-234-235

  36-37-38-39-40                         236-237-238-239-240

  51-52-53-54-55                         171-172-173-174-175

  56-57-58-59-60                         176-177-178-179-180

  71-72-73-74-75                         271-272-273-274-275

  76-77-78-79-80                         276-277-278-279-280

  91-92-93-94-95                         211-212-213-214-215

  96-97-98-99-100                        216-217-218-219-220

  111-112-113-114-115                    311-312-313-314-315

  116-117-118-119-120                    316-317-318-319-320

  151-152-153-154-155                    351-352-353-354-355

  156-157-158-159-160                    356-357-358-359-360

  191-192-193-194-195                    391-392-393-394-395

  196-197-198-199-200                    396-397-398-399

  251-252-253-254-255                    331-332-333-334-335

  256-257-258-259-260                    336-337-338-339-340

  291-292-293-294-295                    371-372-373-374-375

  296-297-298-299-300                    376-377-378-379-380
  -------------------------------------- --------------------------------

> \(2\) The channels listed in Table 2A below are available for
> operations only to eligibles in the SMR category -- which consists of
> Specialized Mobile Radio (SMR) stations and eligible end users. These
> frequencies are available in the Mexico border region.
>
> The channels listed in Table 2B are available to
> Business/Industrial/Land Transportation or SMR eligibles for EA or MEA
> based licensing in the Mexico border region after **\[Effective date
> of *Report and Order*\]**.
>
> Table 2A -- United States-Mexico Border Area, SMR Category
> 896-901/935-940 MHZ Band (200 Channels)

  --------------------- -------------------------------------------------
  Block                 Channel Nos.

  Channels numbered     
  above 200 may only be 
  used subject to the   
  power flux density    
  limits at or beyond   
  the Mexico border as  
  stated in paragraph   
  (4) of this section.  

  A                     1-2-3-4-5-6-7-8-9-10

  B                     21-22-23-24-25-26-27-28-29-30

  C                     41-42-43-44-45-46-47-48-49-50

  D                     61-62-63-64-65-66-67-68-69-70

  E                     81-82-83-84-85-86-87-88-89-90

  F                     101-102-103-104-105-106-107-108-109-110

  G                     121-122-123-124-125-126-127-128-129-130

  H                     141-142-143-144-145-146-147-148-149-150

  I                     161-162-163-164-165-166-167-168-169-170

  J                     181-182-183-184-185-186-187-188-189-190

  K                     201-202-203-204-205-206-207-208-209-210

  L                     221-222-223-224-225-226-227-228-229-230

  M                     241-242-243-244-245-246-247-248-249-250

  N                     261-262-263-264-265-266-267-268-269-270

  O                     281-282-283-284-285-286-287-288-289-290

  P                     301-302-303-304-305-306-307-308-309-310

  Q                     321-322-323-324-325-326-327-328-329-330

  R                     341-342-343-344-345-346-347-348-349-350

  S                     361-362-363-364-365-366-367-368-369-370

  T                     381-382-383-384-385-386-387-388-389-390
  --------------------- -------------------------------------------------

> Table 2B - 896-901/935-940 MHz Band Channels (199 Channels) available
> AFTER **\[Effective date of *Report and Order*\]** FOR
> BUSINESS/INDUSTRIAL/LAND TRANSPORTATION OR SMR ELIGIBLES FOR EA OR MEA
> BASED LICENSING IN UNITED STATES-MEXICO BORDER AREA.

  --------------------- -------------------------------------------------
  Block                 Channel Nos.

  Channels numbered     
  above 200 may only be 
  used subject to the   
  power flux density    
  limits at or beyond   
  the Mexico border as  
  stated in paragraph   
  (4) of this section.  

  AA                    11-12-13-14-15-16-17-18-19-20

  BB                    31-32-33-34-35-36-37-38-39-40

  CC                    51-52-53-54-55-56-57-58-59-60

  DD                    71-72-73-74-75-76-77-78-79-80

  EE                    91-92-93-94-95-96-97-98-99-100

  FF                    111-112-113-114-115-116-117-118-119-120

  GG                    131-132-133-134-135-136-137-138-139-140

  HH                    151-152-153-154-155-156-157-158-159-160

  II                    171-172-173-174-175-176-177-178-179-180

  JJ                    191-192-193-194-195-196-197-198-199-200

  KK                    211-212-213-214-215-216-217-218-219-220

  LL                    231-232-233-234-235-236-237-238-239-240

  MM                    251-252-253-254-255-256-257-258-259-260

  NN                    271-272-273-274-275-276-277-278-279-280

  OO                    291-292-293-294-295-296-297-298-299-300

  PP                    311-312-313-314-315-316-317-318-319-320

  QQ                    331-332-333-334-335-336-337-338-339-340

  RR                    351-352-353-354-355-356-357-358-359-360

  SS                    371-372-373-374-375-376-377-378-379-380

  TT                    391-392-393-394-395-396-397-398-399
  --------------------- -------------------------------------------------

\* \* \* \* \*

> 6\. Section 90.621 is amended as follows:

**§ 90.621   Selection and assignment of frequencies.**

> \* \* \* \* \*
>
> \(b\) Stations authorized on frequencies listed in this subpart,
> except for those stations authorized pursuant to paragraph (g) of this
> section and geographic-area-based systems, will be assigned
> frequencies solely on the basis of fixed distance separation criteria.
> The separation between co-channel systems will be a minimum of 113 km
> (70 mi) with one exception. For incumbent licensees in Channel Blocks
> G through V, that have received the consent of all affected parties or
> a certified frequency coordinator to utilize an 18 dBμV/m signal
> strength interference contour (see §90.693), the separation between
> co-channel systems will be a minimum of 173 km (107 mi). The following
> exceptions to these separations shall apply:
>
> \* \* \* \* \*

7\. Section 90.669 is amended to read as follows:

**§ 90.669   Emission limits.**

> \(a\) Out-of-band emission requirements shall apply only to the
> "outer" channels included in an MTA, EA, or MEA licensee and to
> spectrum adjacent to interior channels used by incumbent licensees.
> The emission limits are as follows:
>
> \(1\) On any frequency in a MTA, EA, or MEA geographic-area-based
> licensee\'s spectrum block that is adjacent to another licensee's
> frequency, the power of any emission shall be attenuated below the
> transmitter power (P) by at least 43 plus 10 log~10~(P) decibels or 80
> decibels, whichever is the lesser attenuation.

\* \* \* \* \*

8\. Section 90.671 is amended to read as follows:

##### § 90.671   Field strength limits. {#field-strength-limits. .unnumbered}

The predicted or measured field strength at any location on the border
of the service area for 896-901/935-940 MHz geographic-area-based
licensees shall not exceed 40 dBuV/m unless all co-channel bordering
geographic-area-based licensees agree to a higher field strength.
Geographic-area-based licensees are also required to coordinate their
frequency usage with co-channel adjacent geographic-area-based licensees
and all other affected parties. To the extent that a single entity
obtains licenses for adjacent MTAs, EAs or MEAs on the same channel
block, it will not be required to coordinate its operations in this
manner. In the event that this standard conflicts with the
geographic-area-based licensee\'s obligation to provide co-channel
protection to incumbent licensees under §90.621(b), the requirements of
§90.621(b) shall prevail.

9\. Sections 90.678 through 90.680 are added to Subpart S as follows:

##### Regulations Governing Licensing and Use of EA or MEA-Based BUSINESS/INDUSTRIAL/LAND TRANSPORTATION or SMR Systems in the 896--901/935--940 MHz Band {#regulations-governing-licensing-and-use-of-ea-or-mea-based-businessindustrialland-transportation-or-smr-systems-in-the-896901935940-mhz-band .unnumbered}

\* \* \* \* \*

##### § 90.678   EA or MEA-Based BUSINESS/INDUSTRIAL/LAND TRANSPORTATION or SMR service areas. {#ea-or-mea-based-businessindustrialland-transportation-or-smr-service-areas. .unnumbered}

> EA or MEA licenses for spectrum blocks AA, BB, through TT, in the
> 896-940 MHz band listed in table 7 of §90.617(f) are available in 175
> Economic Areas (EAs) or 52 Major Economic Areas (MEAs) as defined in
> §90.7. Within these EAs or MEAs, licenses will be authorized in ten
> channel blocks as specified in table 7 of §90.617(f) through the
> competitive bidding procedures described in subpart U of this part.

**§ 90.679   EA or MEA-based Business/Industrial/Land Transportation or
SMR system operations.**

> \(a\) EA or MEA-based licensees authorized in the 896--901/935--940
> MHz band pursuant to §90.678 may construct and operate base stations
> using any frequency identified in their spectrum block anywhere within
> their authorized licensed area, provided that:
>
> \(1\) The EA or MEA licensee complies with any rules and international
> agreements that restrict use of frequencies identified in their
> spectrum block, including the provisions of §90.619 relating to
> U.S./Canadian and U.S./Mexican border areas.
>
> \(2\) The EA or MEA licensee limits its field strength at any location
> on the border of the service area in accordance with §90.671 and masks
> its emissions in accordance with §90.669.
>
> \(c\) In the event that the authorization for a previously authorized
> co-channel station within the geographic-area-based licensee\'s
> authorized spectrum block is terminated or revoked, the licensee\'s
> co-channel obligations to such station will cease upon deletion of the
> facility from the Commission\'s licensing record. The EA or MEA
> licensee then will be able to construct and operate base stations
> using such frequency.

**§ 90.680   Authorization, construction and implementation of EA or
MEA-based licenses and Grandfathering provisions for incumbent
licensees.**

> **Authorization, construction and implementation of EA or MEA-based
> licenses**
>
> \(a\) Geographic-area-based licenses in the 896--901/935--940 MHz band
> will be issued for a term not to exceed ten years.
>
> \(b\) Each geographic-area-based licensee in the 896--901/935--940 MHz
> band must demonstrate, through a showing to the Commission ten years
> from the date of license grant, that it is providing substantial
> service within its service area.
>
> \(c\) Geographic-area-based licensees who fail to make a convincing
> showing of substantial service by the end of the tenth year after
> grant of authorization will forfeit the portion of the
> geographic-area-based license that exceeds licensed facilities
> constructed and operating on the date of the license grant.
>
> **Grandfathering provisions for incumbent licensees**

(a) An incumbent licensee's service area shall be defined by its
    originally-licensed 40 dBu field strength contour. Incumbent
    licensees are permitted to add new or modify transmit sites in this
    existing service area so long as the original 40 dBu field strength
    contour is not expanded.

**Appendix B**

**Initial Regulatory Flexibility Analysis**

As required by the Regulatory Flexibility Act of 1980, as amended
(RFA),[^104] the Commission has prepared this present Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on a substantial number of small entities by the policies and rules
proposed in this Notice of Proposed Rulemaking (*Notice*). 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* provided in paragraph 70 of the item. The Commission
will send a copy of the *Notice*, including this IRFA, to the Chief
Counsel for Advocacy of the Small Business Administration (SBA).[^105]
In addition, the *Notice* and IRFA (or summaries thereof) will be
published in the [Federal Register]{.underline}.[^106]

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

In this *Notice,* the Commission proposes amendments to Part 90 of the
Commission's Rules to facilitate more flexible use of the 199 channels
allocated to the Business and Industrial Land Transportation (B/ILT)
Pool in the 896-901/935-940 MHz (900 MHz) bands.[^107] The Commission
proposes to permit any use of the B/ILT channels in the 900 MHz band
that is consistent with the band's fixed and mobile allocations,[^108]
and to license the remaining spectrum or "white space" using a
geographic area licensing scheme and propose competitive bidding rules
to select from among mutually exclusive applicants. The Commission also
sets forth proposals for auction procedures for the remaining 900 MHz
spectrum in the B/ILT category channels. The Commission believes these
proposed rules will serve its twin goals of providing service to the
public consistently and expeditiously, and allowing the marketplace to
respond to consumer demands, and notes that allowing for flexible use of
this spectrum will greatly aid in facilitating band reconfiguration
occurring at 800 MHz.[^109] The Commission believes that the rules and
policies proposed herein strike a fair and equitable balance between the
interests of incumbent B/ILT licensees, and those seeking to provide
geographic area service, and further believes that these rules and
policies will promote competition, while providing opportunities for
incumbents to continue to pursue their business plans.

Concurrently with the adoption of the *Notice*, the Commission addresses
the petitions for reconsideration, informal letter requests, and
informal opposition filed in response to the freeze placed on new
applications for 900 MHz licenses on September 17, 2004. [^110]

## Legal Basis

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

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

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 and policies, if adopted.[^111] The RFA
generally defines the term "small entity" as having the same meaning as
the terms "small business," "small organization," and "small
governmental jurisdiction."[^112] In addition, the term "small business"
has the same meaning as the term "small business concern" under the
Small Business Act.[^113] 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
SBA.[^114]

**Small Businesses.** Nationwide, there are a total of 22.4 million
small businesses, according to SBA data.[^115]

**Small Organizations.** Nationwide, there are approximately 1.6 million
small organizations.[^116]

**Small Governmental Jurisdictions.** The term \"small governmental
jurisdiction\" is defined as "governments of cities, towns, townships,
villages, school districts, or special districts, with a population of
less than fifty thousand."[^117] As of 1997, there were approximately
87,453 governmental jurisdictions in the United States.[^118] This
number includes 39,044 county governments, municipalities, and
townships, of which 37,546 (approximately 96.2%) have populations of
fewer than 50,000, and of which 1,498 have populations of 50,000 or
more. Thus, we estimate the number of small governmental jurisdictions
overall to be 84,098 or fewer.

The Commission has determined that 1,040 licenses will be awarded in the
896-901 MHz and 935-940 MHz B/ILT MHz bands; the Commission does not yet
know how many applicants or licensees in these bands will be small
entities. Thus, the Commission assumes, for purposes of this IRFA, that
all prospective licensees are small entities as that term is defined by
the SBA or by our proposed small business definitions for these bands.
The Commission invites comment on this analysis.

**Wireless Service Providers.** The SBA has developed a small business
size standard for wireless firms within the two broad economic census
categories of "Paging"[^119] and "Cellular and Other Wireless
Telecommunications." [^120] Under both SBA categories, a wireless
business is small if it has 1,500 or fewer employees. For the census
category of Paging, Census Bureau data for 1997 show that there were
1,320 firms in this category, total, that operated for the entire
year.[^121] Of this total, 1,303 firms had employment of 999 or fewer
employees, and an additional 17 firms had employment of 1,000 employees
or more.[^122] Thus, under this category and associated small business
size standard, the great majority of firms can be considered small. For
the census category Cellular and Other Wireless Telecommunications,
Census Bureau data for 1997 show that there were 977 firms in this
category, total, that operated for the entire year.[^123] Of this total,
965 firms had employment of 999 or fewer employees, and an additional 12
firms had employment of 1,000 employees or more.[^124] Thus, under this
second category and size standard, the great majority of firms can,
again, be considered small.

**Wireless Telephony.** Wireless telephony includes cellular, personal
communications services, and specialized mobile radio telephony
carriers. The SBA has developed a small business size standard for
"Cellular and Other Wireless Telecommunications" services.[^125] Under
that SBA small business size standard, a business is small if it has
1,500 or fewer employees.[^126] According to Commission data, 447
carriers reported that they were engaged in the provision of wireless
telephony.[^127] We have estimated that 245 of these are small under the
SBA small business size standard.

**Broadband Personal Communications Service.** The broadband personal
communications services (PCS) spectrum is divided into six frequency
blocks designated A through F, and the Commission has held auctions for
each block. The Commission has created a small business size standard
for Blocks C and F as an entity that has average gross revenues of less
than \$40 million in the three previous calendar years.[^128] For Block
F, an additional small business size standard for "very small business"
was added and is defined as an entity that, together with its
affiliates, has average gross revenues of not more than \$15 million for
the preceding three calendar years.[^129] These small business size
standards, in the context of broadband PCS auctions, have been approved
by the SBA.[^130] No small businesses within the SBA-approved small
business size standards bid successfully for licenses in Blocks A and B.
There were 90 winning bidders that qualified as small entities in the
Block C auctions. A total of 93 "small" and "very small" business
bidders won approximately 40 percent of the 1,479 licenses for Blocks D,
E, and F.[^131] On March 23, 1999, the Commission reauctioned 155 C, D,
E, and F Block licenses; there were 113 small business winning
bidders.[^132]

On January 26, 2001, the Commission completed the auction of 422 C and F
Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in
this auction, 29 qualified as "small" or "very small" businesses.[^133]
Subsequent events concerning Auction 35, including judicial and agency
determinations, resulted in a total of 163 C and F Block licenses being
available for grant.

**Cellular Licensees.** The SBA has developed a small business size
standard for wireless firms within the broad economic census category
"Cellular and Other Wireless Telecommunications."[^134] Under this SBA
category, a wireless business is small if it has 1,500 or fewer
employees. For the census category Cellular and Other Wireless
Telecommunications firms, Census Bureau data for 1997 show that there
were 977 firms in this category, total, that operated for the entire
year.[^135] Of this total, 965 firms had employment of 999 or fewer
employees, and an additional 12 firms had employment of 1,000 employees
or more.[^136] Thus, under this category and size standard, the great
majority of firms can be considered small. According to Commission data,
447 carriers reported that they were engaged in the provision of
cellular service, personal communications service, or specialized mobile
radio telephony services, which are placed together in the data.[^137]
We have estimated that 245 of these are small, under the SBA small
business size standard.[^138]

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

The *Notice* proposes to amend Part 90 of the Commission's Rules to
facilitate more flexible use of the 199 channels allocated to the
Business and Industrial Land Transportation (B/ILT) Pools in the
896-901/935-940 MHz (900 MHz) bands, to permit any use of the B/ILT
channels in the 900 MHz band that is consistent with the band's fixed
and mobile allocations. It also proposes to license the unencumbered
spectrum through geographic area licensing. Accordingly, the Commission
proposes service rules, including licensing, technical and operational
rules for the new geographic licensees, and seeks comment on defining
the rights of B/ILT licensees already operating in the 900 MHz band. The
Commission also seeks comment on competitive bidding rules and
procedures to be used in the event that mutually exclusive applications
are filed for the 900 MHz proposed geographic licenses.

In paragraphs 12-14, the Commission proposes service rules for the new
900 MHz channels that would provide licensees with the flexibility to
employ this spectrum for any use permitted by the United States Table of
Frequency Allocations contained in Part 2 of our rules (*i.e.*, fixed or
mobile services), believing that such flexibility fully meets criteria
set forth in section 303(y) of the Communications Act of 1934, as
amended. The *Notice* tentatively concludes that such use would be
consistent with applicable international agreements, and that the public
interest benefits of flexibility are numerous, and notes that the
Commission has identified the establishment of maximum feasible
flexibility in both spectrum designations and allocations and service
rules as a critical means of ensuring that spectrum is put to its most
beneficial use. The Commission believes that the economic efficiencies
of flexibility foster, rather than deter, technology development and
investment in communications services and systems.

In paragraphs 17-19, the Commission seeks comment on its proposal to
license this 900 MHz spectrum using geographic area licensing, believing
that such a licensing scheme is well-suited for the types of fixed and
mobile services that will likely develop in this overlay band. The
Commission invites commenters to explain any opposition and the costs
and benefits associated with any preferable licensing proposal. In
paragraphs 21-25, the Commission seeks comment on its proposal to adopt
Major Economic Areas ("MEAs"),or, in the alternative, Economic Areas
('EAs") as the appropriate geographic size. On the one hand, allowing
the new 900 MHz licensees the use of frequencies for systems providing
coverage across wide areas will increase spectrum efficiency, provide
better quality service to end users, and allow service to reach
potential end users that may otherwise be without adequate communication
options, and that the MEA-based licensees will be in a better position
to address the needs of system users, customers, or lessees that have
wide-area requirements; on the other hand, EAs, which are more than
three times the number of delineated economic areas than MEAs, may
facilitate the ability of incumbents and other small and medium-sized
operators of smaller systems to participate in geographic area
licensing. Adopting an EA-based licensing scheme may permit small
bidders and rural companies wishing smaller license areas to obtain them
directly at auction rather than facing the uncertainty and transaction
costs of working out post-auction partitioning agreements.

In paragraphs 26-30, the *Notice* proposes to license the 900 MHz
flexible-use channels in nineteen blocks of ten contiguous channels
each, and one block of nine contiguous channels, with each ten-channel
block separately licensed. Under the Commission's proposal, applicants
would be permitted to aggregate blocks if they wish, without eligibility
restriction for any channel block. The Commission seeks comment on
whether the proposed 900 MHz channel block plan strikes a balance in
affording small, medium and large operators the opportunity to obtain
sufficient spectrum to establish viable and competitive wide-area
systems, and whether the plan offers a middle ground between larger
channel blocks that may block entry to new, smaller operators, and
smaller block sizes that may hinder wide-area operations.

In paragraphs 45-51, the *Notice* proposes that the new 900 MHz
licensees submit to the Commission a showing of substantial service in
their licensed area within ten years of being licensed. In making this
proposal, the Commission notes that a population-based benchmark may be
a considerable obstacle for the provision of services in rural or
sparsely populated areas, and that population-based coverage
requirements may be difficult to achieve due to existing band
encumbrances. The Commission also believes that the ten-year substantial
service requirement provides greater flexibility for parties interested
in entering into spectrum leasing arrangements involving this spectrum.

In paragraphs 58-63, the Commission proposes small business bidding
credits to further the goals of ensuring 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, and promoting 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. To that end, the Commission
proposes a 10 percent bidding credit for small business and a 15 percent
bidding credit for very small businesses.

The Commission requests comment on how these proposed rules may be
modified to reduce the burden on small entities and still meet the
objectives of the proceeding.

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

The RFA requires an agency to describe any significant alternatives that
it has considered in reaching its proposed approach, which may include
the following four alternatives (among others): (1) the establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use of
performance rather than design standards; and (4) an exemption from
coverage of the rule, or any part thereof for small entities.[^139]

As noted above, the *Notice* proposes to establish small business
bidding credits to further the goals of ensuring 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, with a 10 percent bidding credit
for small business and a 15 percent bidding credit for very small
businesses. In addition, the *Notice* solicits comment on a number of
proposals and alternatives regarding the service rules for the 900 MHz
band, and seeks to adopt rules that will reduce regulatory burdens,
promote innovate services and encourage flexible use of this spectrum.
The Commission believes the proposed rules will open up economic
opportunities to a variety of spectrum users, which could include small
businesses. Because the Commission seeks to minimize, to the extent
possible, the economic impact on small businesses, the *Notice* sets
forth various proposals and alternatives for parties to consider.

The *Notice* invites comment on various alternative licensing and
service rules and on a number of issues relating to how the Commission
should craft service rules for this spectrum that could have an impact
on small entities. The *Notice* proposes a geographic area approach to
service areas, as opposed to a station-defined licensing approach, and
seeks comment on the appropriate size of service areas. Specifically,
the *Notice* asks for comment on whether smaller geographic areas would
better serve the needs of small entities.

The regulatory burdens proposed in the *Notice* appear necessary in
order to ensure that the public receives the benefits of innovative new
services, or enhanced existing services, in a prompt and efficient
manner. The Commission will continue to examine alternatives in the
future with the objectives of eliminating unnecessary regulations and
minimizing any significant economic impact on small entities. The
Commission invites comment on any additional significant alternatives
parties believe should be considered and on how the approach outlined in
the *Notice* will impact small entities, including small businesses and
small government entities.

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

None.

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

[^1]: 47 C.F.R. § 90.617(b), Table 2B -- Industrial/Land Transportation
    Category 896-901/935-940 MHz Band Channels (99 Channels);
    § 90.617(c), Table 3B -- Business Category 896-901/935-940 MHz Band
    Channels (100 Channels) (2003).

[^2]: 47 C.F.R. § 2.106.

[^3]: Further, the Commission's Spectrum Policy Task Force Report points
    to increased flexibility in the use of spectrum as an important
    means of promoting greater technical, economic, and marketplace
    efficiency. *See* FCC Staff Report, *Spectrum Policy Task Force
    Report,* ET Dkt No 02-135 at 3 (rel. Nov. 2002).

[^4]: *See* "Wireless Telecommunications Bureau Freezes Applications in
    the 900 MHz Band," *Public Notice*, 19 FCC Rcd 18,277 (2004)
    (*Freeze Public Notice*); *see also* section V. *infra*.

[^5]: *See* Improving Public Safety Communications in the 800 MHz Band,
    WT Docket No. 02-55, *Report and Order*, 19 FCC Rcd 14,969 (2004)
    (*800 MHz R&O*).

[^6]: *See* *800 MHz R&O*, 19 FCC Rcd at 15,127-28 ¶¶ 335-337. In doing
    so, the Commission declined to impose a holding period requirement.
    *See id*.

[^7]: *See* Amendment of Parts 2 and 22 of the Commission's Rules
    Relative to Cellular Communications Systems Amendment of Parts 2,
    15, and 90 of the Commission's Rules and Regulations to Allocate
    Frequencies in the 900 MHz Reserve Band for Private Land Mobile Use
    Amendment of Parts 2, 22 and 25 of the Commission's Rules to
    Allocate Spectrum for, and to Establish Other Rules and Policies
    Pertaining to the Use of Radio Frequencies in a Land Mobile
    Satellite Service for the Provision of Various Common Carrier
    Services, GEN Docket No. 84-1231 RM-4812, GEN Docket No. 84-1233
    RM-4829, GEN Docket No. 84-1234 RM-4247, *Report and Order*, 2 FCC
    Rcd 1825, 1830-31 ¶¶ 45-46, 50 (1986) (*Allocation R&O*). The
    Commission also adopted "inter-pool" sharing to permit sharing of
    frequencies by those entities eligible in other service pools. *Id*.
    at 1831 ¶¶ 51-52.

[^8]: *Allocation R&O*, 2 FCC Rcd at 1830-31 ¶¶ 41, 46, 50.

[^9]: *See* Omnibus Reconciliation Act of 1993, Pub.L. No. 103-66,
    (Budget Act), § 6002(b), 107 Stat. 312, 392 (1993) (codified at 47
    U.S.C. § 332).

[^10]: *See* "FCC Announces Grant of 900 MHz Specialized Mobile Radio
    MTA Licenses," *Public Notice*, 12 FCC Rcd 13,055 (1996);
    Implementation of Sections 3(n) and 332 of the Communications Act --
    Regulatory Treatment of Mobile Services, *Second Report and Orde*r,
    9 FCC Rcd 1411 (1994) (*CMRS Second R&O*); *CMRS Third Report and*
    Order, 9 FCC Rcd 7988 (1994) (*CMRS Third R&O*). S*ee also*
    Amendment of Parts 2 and 90 of the Commission's Rules to Provide for
    the Use of 200 Channels Outside the Designated Filing Areas in the
    896-901 MHz and the 935-940 MHz Bands Allotted to the Specialized
    Mobile Radio Pool, PR Docket No. 89-553, *Second Report and Order
    and Second Further Notice of Proposed Rule Making*, 10 FCC Rcd 6884
    (1995) (*SMR Second R&O*) (adopting final service rules); Amendment
    of Parts 2 and 90 of the Commission's Rules to Provide for the Use
    of 200 Channels Outside the Designated Filing Areas in the 896-901
    MHz and the 935-940 MHz Bands Allotted to the Specialized Mobile
    Radio Pool, PR Docket No. 89-553, *Second Order on Reconsideration
    and Seventh Report and Order*, 11 FCC Rcd 2639 (1995) (*SMR Final
    R&O*) (adopting final auction procedure rules).

[^11]: 47 C.F.R. §§ 90.31, 90.35.

[^12]: 47 C.F.R. § 90.33.

[^13]: Applications for frequencies in the B/ILT Category 900 MHz Band
    Pools are coordinated by frequency coordinators certified in the
    B/ILT Pools. *See* 47 C.F.R. § 90.35. As previously noted, the
    Commission recently provided that 900 MHz PLMR licensees may convert
    to CMRS use, or assign their authorizations to others for such use.
    *See* *800 MHz R&O*, 19 FCC Rcd at 15,127-28 ¶ 337*.*

[^14]: *See* *800 MHz R&O*.

[^15]: *800 MHz R&O*, 19 FCC Rcd at 15,126 ¶ 334.

[^16]: *800 MHz R&O*, 19 FCC Rcd at 15,126 ¶ 334.

[^17]: *800 MHz R&O*, 19 FCC Rcd at 15,127-28 ¶ 337; *but see,* Motion
    of the Land Mobile Communications Council (LMCC) for Partial Stay,
    WT Docket No. 02-55 *et al*., filed Jan. 12, 2005 (asking that the
    Commission stay the effective date of its rule allowing 900 MHz
    B/ILT licensees to convert to CMRS operations). LMCC limited its
    request to applications that were filed after release of the *800
    MHz R&O* and before the 900 MHz freeze, believing that those
    applications were speculative, and that the application filer, ACI
    900, Inc., was engaged in spectrum trafficking. The Public Safety
    and Critical Infrastructure Division, WTB, denied LMCC's request.
    *See* In the Matter of Improving Public Safety Communications in the
    800 MHz Band, *et seq*., WT Docket 02-55 *et seq., Order*, DA 05-166
    (rel. Jan. 25, 2005).

[^18]: *800 MHz R&O*, 19 FCC Rcd at 15,127 ¶ 335. In 2000, the
    Commission amended its rules to permit CMRS use of B/ILT frequencies
    in the 800 MHz land mobile band and allowed B/ILT licensees to
    transfer their licenses to CMRS entities. *See* 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*, 15 FCC Rcd 22,709, 22,761 ¶¶ 110-11 (2000).

[^19]: *See* *Freeze Public Notice* at 1.

[^20]: Further, there are 2,345 rural counties (*i.e.,* less than 100
    persons per square mile), of which 545 (or 23%) have a B/ILT site,
    while 452 of the 796 non-rural counties (or 56%) have a B/ILT site.

[^21]: 47 U.S.C. § 303(y).

[^22]: *See, e.g.,* Letter from Jill M. Lyon, Vice President & General
    Counsel, United Telecom Council, and Mark E. Crosby, President &
    Chief Executive Officer, Industrial Telecommunications Association,
    Inc., to John Muleta, Chief, Wireless Bureau (filed Dec. 27, 2004)
    (asking the Commission consider the impact of an auction of 900 MHz
    B/ILT white space on critical infrastructure entities, and
    suggesting that the marketplace values alternatives to commercial
    service, as evidenced by the small number of 800 MHz private mobile
    radio service licensees that have converted their authorizations to
    CMRS).

[^23]: 47 C.F.R. §§ 90.601-699.

[^24]: 47 U.S.C. §§ 309(j)(1)-(2).

[^25]: *See* Implementation of Section 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*, 15 FCC Rcd
    22,709 (2000) (*BBA Report and Order*); *see also* Implementation of
    Section 309(j) of the Communications Act - - Competitive Bidding, PP
    Docket No. 93-253, *Second Report and Order*, 9 FCC Rcd 2348, ¶¶
    59-66 (1994) (*Competitive Bidding Second Report and Order*),
    *recon. Second Memorandum Opinion and Order*, 9 FCC Rcd 7245 (1994)
    (determining to use competitive bidding to choose among mutually
    exclusive initial applications in the CMRS services).

[^26]: *See, e.g.,* Amendment of Part 1, 21, 73, 74 and 101 of the
    Commission's Rules to Facilitate the Provision of Fixed and Mobile
    Broadband Access, Educational and Other Advanced Services in the
    2150-2162 and 2500-2690 MHz Bands, *et al.;* WT Docket Nos. 03-66,
    *et al., Report and Order and Further Notice of Proposed
    Rulemaking,* 19 FCC Rcd 14,165 (2004).

[^27]: *CMRS Third R&O*, 9 FCC Rcd 7988, 8050-51 ¶ 113.

[^28]: *See* Appendix A.

[^29]: MTAs are based on the Rand McNally 1992 Commercial Atlas &
    Marketing Guide, 123^rd^ Edition. *Major Trading Areas delineated by
    the Rand McNally 1992 Commercial Atlas & Marketing Guide* 123^rd^
    Edition, at pp 38-39, extended and excepted by the Federal
    Communications Commission, 59 Fed. Reg. 14115 (March 25, 1994).

[^30]: *CMRS Third Report & Order*, 9 FCC Rcd at 8050-51 ¶ 113-15.

[^31]: MEAs, which were created by Commissions staff, are an aggregation
    of Basic Economic Areas (BEAs) into 52 regions, including the Gulf
    of Mexico. *Major Economic Areas delineated by the Federal
    Communications Commission*, 62 Fed. Reg. 9636 (March 3, 1997).

[^32]: EAs are based on the Economic Areas delineated by the Regional
    Economic Analysis Division, Bureau of Economic Analysis, U.S.
    Department of Commerce (February 1995) and, as used by the
    Commission, include 176 areas, including Guam and the Northern
    Mariana Islands, Puerto Rico and the U.S. Virgin Islands, American
    Samoa and the Gulf of Mexico. *Economic Areas delineated by the
    Regional Economic Analysis Division, Bureau of Economic Analysis,
    U.S. Department of Commerce* February 1995 and extended by the
    Federal Communications Commission, 62 FR 9636 (March 3, 1997).

[^33]: *800 MHz R&O*, 19 FCC Rcd at 15,127 ¶ 336.

[^34]: We note that adopting a licensing schedule using EAs would result
    in a significantly greater number of licenses and may preclude the
    use of certain design options such as package bidding.

[^35]: *See* 47 U.S.C. §309(j)(3)(D).

[^36]: 47 C.F.R. § 90.617, Table 4B, SMR Category 896-901/935-940 MHz
    Band-Channels (200 channels).

[^37]: 47 C.F.R. § 90.617, Tables 2B, 3B.

[^38]: As noted earlier, the 900 MHz B/ILT Pools contain 199 channels,
    thus one channel block would include nine rather than ten channels.

[^39]: *See, e.g*., Amendment of the Commission's Rules Regarding the
    37.0-38.6 GHz and 38.6-40.0 GHz Bands, ET Docket No. 95-183, *Report
    and Order and Second Notice of Proposed Rule Making*, 12 FCC Rcd
    18,600, 18,619-20 ¶¶ 32-35 (1997); Rulemaking to Amend Parts 1, 2,
    21, and 25 of the Commission\'s Rules to Redesignate the 27.5-29.5
    GHz Frequency Band, to Reallocate the 29.5-30.0 GHz Frequency Band,
    to Establish Rules and Policies for Local Multipoint Distribution
    Service and for Fixed Satellite Services, Hyperion Communications
    Long Haul, L.P., Application for Expedited Review, *Third Report and
    Order and Memorandum Opinion and Order*, 15 FCC Rcd 11,857, 11860-62
    ¶¶ 6-12 (2000).

[^40]: *See, e.g.*, Amendment of Parts 1, 21, 73, 74 and 101 of the
    Commission's Rules to Facilitate the Provision of Fixed and Mobile
    Broadband Access, Educational and Other Advanced Services in the
    2150-2162 and 2500-2690 MHz Bands; WT Docket Nos. 03-66, *Notice of
    Proposed Rule Making and Memorandum Opinion and Order*, 18 FCC Rcd
    6722, 6773 ¶ 121 (2003).

[^41]: Specifically, in the 896-901/935-940 MHz band (900 MHz B/ILT),
    the same channels that are available for use in non-border areas in
    the B/ILT services (47 C.F.R. § 90.617, Tables 2B and 3B) are also
    available in the U.S./Mexico border area (47 C.F.R. § 90.619, Table
    2B and 3B). Channels numbered above 200 may be used only subject to
    the power flux density limits stated in 47 C.F.R. § 90.619(a)(2).
    Similarly, the same channels available for use in non-border areas
    in the B/ILT services are also available in the U.S./Canada border
    area (47 C.F.R. § 619(d)(1) Table 27 and (d)(6) Table 28. The
    channels identified in Table 28 have power flux density limitations
    at the U.S./Canada border.

[^42]: Specifically, bidders should be aware that there may be special
    coordination or other limitations in certain border regions. *See
    generally* 47 C.F.R. §§ 90.619(a)-(d).

[^43]: *See generally* 47 C.F.R. § 90.621(b).

[^44]: *See* Appendix A.

[^45]: *See 800 MHz R&O*, 19 FCC Rcd at 15,021-41 ¶¶ 88-132; *see also,
    e.g.,* Petition of the Association of American Railroads for
    Reconsideration, WT Docket No. 02-55 *et al.,* filed Dec. 17, 2004
    (requesting the Commission to adopt interference abatement
    procedures for incumbents in the 900 MHz band equivalent to those
    adopted in the *800 MHz R&O*); Petition of the National Association
    of Manufacturers and MRFAC, Inc. (NAM/MRFAC) for Reconsideration, WT
    Docket No. 02-55 *et al.,* filed Dec. 22, 2004 (seeking adoption of
    Enhanced Best Practices and stringent interference protection for
    900 MHz B/ILT incumbents against CMRS operations); Petition of
    Exelon Corporation for Reconsideration, WT Docket No. 02-55 *et
    al.,* filed Dec. 22, 2004 (urging the Commission to extend the
    interference abatement requirements of the *800 MHz R&O* to
    incumbent 900 MHz licensees).

[^46]: *See, e.g., 800 MHz R&O*, 19 FCC Rcd at 15,034-37 ¶¶ 115-123.

[^47]: *See* 47 C.F.R. § 90.667(a); *see also SMR Second R&O*, 10 FCC
    Rcd at 6901 ¶ 46.

[^48]: That is, incumbents are permitted to fill in "dead spots" in
    coverage or to reconfigure their systems to increase capacity within
    their service area.

[^49]: A working paper published by the Commission discusses how
    auctions and exchanges can be used to transition rapidly from
    existing spectrum band plans and policies to new plans and more
    flexible policies. *See, generally,* Evan Kwerel and John Williams,
    2002, "A Proposal for a Rapid Transition to Market Allocation of
    Spectrum" Office of Plans and Policy Working Paper No. 38, Federal
    Communications Commission ("*Spectrum Market Allocation Transition
    Paper*").

[^50]: *See generally, Spectrum Market Allocation Transition Paper.*
    Another variation on this general type of auction is discussed in
    the Further Notice of Proposed Rulemaking with respect to rules and
    policies governing the licensing of the Instructional Television
    Fixed Service (ITFS) and Multipoint Distribution Service (MDS).
    *See* Amendment of Parts 1, 21, 73, 74 and 101 of the Commission's
    Rules to Facilitate the Provision of Fixed and Mobile Broadband
    Access, Educational and Other Advanced Services in the 2150-2162 and
    2500-2690 MHz Bands, *et seq*.; WT Docket No. 03-66, *et seq*.,
    *Report and Order and Further Notice of Proposed Rulemaking*, 19 FCC
    Rcd 14,165, 14,276 ¶ 303 (2004) (*BRS/EBS FNPRM*) (proposing to
    provide certain existing licensees with bidding offset credits).

[^51]: *CMRS Third R&O*, 9 FCC Rcd at 8067-68 ¶¶ 160-61. "Outer"
    channels are those on the outer edges of the geographic licensee's
    channel block while "interior" channels are those inside the
    geographic licensee's channel block assignment that are adjacent to
    other licensees. *Id*.

[^52]: *See SMR Second R&O*, 10 FCC Rcd at 6907 ¶¶ 60-61; *CMRS Third
    R&O*, 9 FCC Rcd at 8067-68 ¶¶ 160-61.

[^53]: 47 U.S.C. § 309(j)(4)(B).

[^54]: 47 U.S.C. § 309(j)(3)(D).

[^55]: *See* 47 C.F.R. § 24.203(a) and (b); 47 C.F.R. §§ 90.665(b) and
    (c).

[^56]: *SMR Second R&O*, 10 FCC Rcd at 6898 ¶ 40.

[^57]: *SMR Second R&O*, 10 FCC Rcd at 6898 ¶ 41.

[^58]: 47 U.S.C. § 309(j)(3).

[^59]: *See* *CMRS R&*O, 9 FCC Rcd at 8081 ¶¶ 190-91. Loading rules
    require an applicant to demonstrate that it will "load" a channel
    with a certain number of mobiles in order to obtain exclusive use of
    that channel or to load a channel to full capacity before requesting
    additional spectrum.

[^60]: *CMRS R&*O, 9 FCC Rcd at 8081 ¶ 191 & n.351.

[^61]: *See e.g.,* 47 C.F.R. §§ 90.631, 90.633. Under Part 90, non-SMR
    trunked and conventional systems are authorized on the basis of a
    minimum loading criteria of one hundred or seventy (respectively)
    mobile stations for each channel authorized.

[^62]: *See* section IV.A.2. *supra.*

[^63]: *See e.g.,* 47 C.F.R. Part 90, Subpart G (Applications and
    Authorizations), Subpart H (Policies Governing Assignment of
    Frequencies), Subpart I (General Technical Standards), Subpart N
    (Operating Requirements) and Subpart S (Regulations Governing
    Licensing and Use of Frequencies in the 806-824, 851-869, 896-901,
    and 935-40 MHz Bands).

[^64]: 47 C.F.R. Part 1, Subpart F.

[^65]: 47 C.F.R. § 1.1307.

[^66]: 47 C.F.R. Part 20, Part 22; *see also* 47 C.F.R. § 90.5 (setting
    forth various other applicable rule parts).

[^67]: The Balanced Budget Act of 1997, Pub. L. No. 105-33, Title III,
    111 Stat. 251 (1997), amended Section 309(j) to require the
    Commission to award mutually exclusive applications for initial
    licenses or permits using competitive bidding procedures, with very
    limited exceptions. These exceptions are 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 under 47 U.S.C. §
    397(6). *See* 47 U.S.C. § 309(j)(1), (2).

[^68]: *See* 47 C.F.R. §§ 1.2101-1.2113.

[^69]: *See, e.g*., Amendment of Part 1 of the Commission's Rules --
    Competitive Bidding Procedures, WT Docket No. 97-82, *Second Order
    on Reconsideration of the Third Report and Order, and Order on
    Reconsideration of the Fifth Report and Order*, 18 FCC Rcd 10180
    (2003); *id*., *Eighth Report and Order*, 17 FCC Rcd 2962 (2002);
    *id*., *Seventh Report and Order*, 16 FCC Rcd 17546 (2001); *id*.,
    *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) (*Competitive Bidding Part 1 Fifth
    Report and Order*); *id*., *Part 1 Competitive Bidding Third Report
    and Order*, 13 FCC Rcd 374; *id*., *Order, Memorandum Opinion and
    Order and Notice of Proposed Rule Making*, 12 FCC Rcd 5686 (1997)
    ("*Part 1 Order*").

[^70]: *See id*.

[^71]: *See Part 1 Order*, 12 FCC Rcd at 5679 ¶ 16 (clarifying that
    pursuant to Section 0.131 of the Commission's Rules, 47 C.F.R. §
    0.131, the Chief, Wireless Telecommunications Bureau, has delegated
    authority to implement all of the Commission's rules pertaining to
    auctions procedures).

[^72]: *See* 47 U.S.C. §§ 309(j)(4)(D). Such entities are collectively
    described as "designated entities." *See* 47 C.F.R. § 1.2110(a).

[^73]: 47 U.S.C. § 309(j)(3)(B).

[^74]: Bidding credits allow eligible designated entities to receive a
    payment discount for their winning bid in an auction. *See SMR
    Seventh Report and Order,* 11 FCC Rcd at 2702 ¶ 157.

[^75]: 47 C.F.R. § 1.2110(c)(1); *see also* Amendment of Part 1 of the
    Commission's Rules -- Competitive Bidding Procedures, WT Docket No.
    97-82, *Third Report and Order and Second Further Notice of Proposed
    Rule Making*, 13 FCC Rcd 374, 388 ¶18 (1997) (modified by *Erratum*,
    13 FCC Rcd 4621 (Wireless Telecom. Bur. 1998)) (*Part 1 Competitive
    Bidding Third Report and Order*); *see also* 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*).

[^76]: 47 C.F.R. § 1.2110(c)(1); *see Part 1 Competitive Bidding Third
    Report and Order,* 13 FCC Rcd at 388 ¶ 18; *see also* 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).

[^77]: Amendment of Parts 2 and 90 of the Commission\'s Rules to Provide
    for the Use of 200 Channels Outside the Designated Filing Areas in
    the 896-901 MHz and the 935-940 MHz Bands Allotted to the
    Specialized Mobile Radio Pool, PR Docket No. 89-553, *Second Order
    on Reconsideration and Seventh Report and Order*, 11 FCC Rcd 2639,
    2702-07 ¶¶ 157-165 (1995) (*SMR Seventh Report and Order*).

[^78]: *SMR Seventh Report and Order*, 11 FCC Rcd at 2702-07 ¶¶ 157-165.
    *See* 47 C.F.R. § 90.814.

[^79]: *SMR Seventh Report and Order*, 11 FCC Rcd at 2702-07 ¶¶ 157-165.
    *See* 47 C.F.R. § 90.814. Section 1.2110(b) of the Commission\'s
    rules, 47 C.F.R. § 1.2110(b), describes affiliate and controlling
    interest relationships in the designated entity context generally.
    *See also Part 1 Competitive Bidding Fifth Report and Order,* 15 FCC
    Rcd at 15,323-25 ¶¶ 59-62 (\"\[A\]pplication of the \'controlling
    interest\' standard will ensure that only those entities truly
    meriting small business status qualify for our small business
    provisions\").

[^80]: Auction of 900 MHz Specialized Mobile Radio Service Licenses
    Scheduled for February 11, 2004, Notice and Filing Requirements,
    Minimum Opening Bids, Upfront Payments and Other Auctions
    Procedures, *Public Notice*, 18 FCC Rcd 21,176, 21,188 (Wireless
    Telecom. Bur. 2003).

[^81]: *See* 47 C.F.R. §§ 90.810, 90.814(b)(2).

[^82]: *See* 47 C.F.R. §§ 90.810, 90.814(b)(1). We will coordinate these
    proposed small business size standards with the Small Business
    Administration.

[^83]: *See* 47 C.F.R. § 90.810. We note that neither section 90.810 nor
    section 90.814 use the term "very small business." Instead, these
    particular rules use the term "small business" to cover both a small
    business and a very small business.

[^84]: *See* 47 C.F.R. § 1.2110(f)(2) for the standardized bidding
    credit schedule.

[^85]: *See* 47 C.F.R. § 1.2110(c)(1) (provides factors used to
    determine appropriate bidding credit thresholds).

[^86]: *See* *United States v. Virginia*, 518 U.S. 515 (1996); *Adarand
    Constructors v. Pena*, 515 U.S. 200 (1995).

[^87]: *See* *Freeze Public Notice* at 18,277; *see also supra* section
    II., para. 9.

[^88]: *See* *Freeze Public Notice* at 18,278 (citing *800 MHz R&O*).

[^89]: *See* *Freeze Public Notice* at 18,278 n.7.

[^90]: *See* *Freeze Public Notice* at 18,278 n.7 (citing 47 C.F.R. §
    1.925).

[^91]: *See* Informal Opposition of Verizon Wireless, File No.
    00001845839, *et al.* (Verizon Informal Opposition) (filed Sept. 14,
    2004) (We note that Verizon filed its opposition prior to the
    Commission issuing the *Freeze Public Notice*. Verizon is opposed to
    the Commission granting the now pending applications for 900 MHz
    private mobile radio service (PMRS) submitted by ACI 900, Inc., a
    subsidiary of Nextel Communications, Inc. *See* Verizon Informal
    Opposition at 1); Letter from Jill M. Lyon, Vice President & General
    Counsel, United Telecom Council, to Michael Wilhelm, FCC, WT Docket
    No. 02-55, DA 04-3013 (filed Sept. 23, 2004) ("UTC Sept. 23
    Letter"); Industrial Telecommunications Assn., Inc. Petition for
    Reconsideration, WT Docket No. 02-55, DA 04-3013 (filed Sept. 24,
    2004) (ITA Petition); Letter from Robert H. Schwaninger, Jr.,
    Counsel for Advanced Metering Data Systems, L.L.C. to Michael
    Wilhelm, FCC, WT Docket No. 02-55, DA 04-3013 (filed Sept. 29, 2004)
    (AMDS Letter); Small Business in Telecommunications Petition for
    Reconsideration Expedited Treatment Requested, WT Docket No. 02-55,
    DA 04-3013 (filed Oct. 4, 2004) (SBT Petition); Letter from Marvin
    W. McKinley, President, Lawrence A. Fineran, Vice-President,
    Regulation and Competition, NAM/MRFAC, WT Docket No. 02-55 (filed
    Oct. 12, 2004) (NAM/MRFAC Letter).

[^92]: *See* UTC Sept. 23 Letter at 1.

[^93]: *See* ITA Petition at 1; specifically, ITA notes that the
    Commission should ensure that applications comply with both section
    90.621(a)(iii) (number of trunked frequency pair authorizations for
    non-SMR stations) and section 90.631(a) (loading criteria for
    non-SMR trunked systems) of the Commission's rules. *See* ITA
    Petition at 3 n.7.

[^94]: *See* AMDS Letter at 2.

[^95]: *See* SBT Petition at 2. (Emphasis in original).

[^96]: *See* NAM/MRFAC Letter at 2.

[^97]: *See, e.g., CMRS Third R&O,* 9 FCC Rcd at 8047-48 ¶ 108.

[^98]: *See Freeze Public Notice* at 2 n.7.

[^99]: *See generally* 47 C.F.R. §§ 1.1202, 1.1203, 1.1206.

[^100]: *See* 47 C.F.R. §§ 1.415, 1.419.

[^101]: Electronic Filing of Documents in Rulemaking Proceedings,
    *Report and Order*, 13 FCC Rcd 11322 (1998).

[^102]: 5 U.S.C. § 603.

[^103]: Public Law 107-198, *see* 44 U.S.C. 3506(c)(4).

[^104]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601-612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. 104-121, Title II, 110 Stat. 857
    (1996).

[^105]: *See* 105 § 603(a).

[^106]: *See* 105 § 603(a).

[^107]: 47 C.F.R. § 90.617(b), Table 2B -- Industrial/Land
    Transportation Category 896-901/935-940 MHz Band Channels (99
    Channels); § 90.617(c), Table 3B -- Business Category
    896-901/935-940 MHz Band Channels (100 Channels) (2003).

[^108]: 47 C.F.R. § 2.106.

[^109]: *See* Improving Public Safety Communications in the 800 MHz
    Band, WT Docket No. 02-55, *Report and Order*, 19 FCC Rcd 14969
    (2004).

[^110]: *See* "Wireless Telecommunications Bureau Freezes Applications
    in the 900 MHz Band," *Public Notice*, DA 04-3013 (WTB PSCID rel.
    Sept. 17, 2004).

[^111]: 5 U.S.C. § 603(b)(3).

[^112]: 5 U.S.C. § 601(6).

[^113]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small-business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), 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."

[^114]: 15 U.S.C. § 632.

[^115]: *See* SBA, Programs and Services, SBA Pamphlet No. CO-0028, at
    page 40 (July 2002).

[^116]: Independent Sector, The New Nonprofit Almanac & Desk Reference
    (2002).

[^117]: 5 U.S.C. § 601(5).

[^118]: U.S. Census Bureau, Statistical Abstract of the United States:
    2000, Section 9, pages 299-300, Tables 490 and 492.

[^119]: 13 C.F.R. § 121.201, NAICS code 513321 (changed to 517211 in
    October 2002).

[^120]: 13 C.F.R. § 121.201, NAICS code 513322 (changed to 517212 in
    October 2002).

[^121]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    "Information," Table 5, Employment Size of Firms Subject to Federal
    Income Tax: 1997, NAICS code 513321 (issued October 2000).

[^122]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    "Information," Table 5, Employment Size of Firms Subject to Federal
    Income Tax: 1997, NAICS code 513321 (issued October 2000). The
    census data do not provide a more precise estimate of the number of
    firms that have employment of 1,500 or fewer employees; the largest
    category provided is "Firms with 1000 employees or more."

[^123]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    "Information," Table 5, Employment Size of Firms Subject to Federal
    Income Tax: 1997, NAICS code 513322 (issued October 2000).

[^124]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    "Information," Table 5, Employment Size of Firms Subject to Federal
    Income Tax: 1997, NAICS code 513322 (issued October 2000). The
    census data do not provide a more precise estimate of the number of
    firms that have employment of 1,500 or fewer employees; the largest
    category provided is "Firms with 1000 employees or more."

[^125]: 13 C.F.R. § 121.201, NAICS code 513322 (changed to 517212 in
    October 2002).

[^126]: 13 C.F.R. § 121.201, NAICS code 513322 (changed to 517212 in
    October 2002).

[^127]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, "Trends in Telephone Service" at Table 5.3,
    page 5-5 (May 2004). This source uses data that are current as of
    October 22, 2003.

[^128]: *See* Amendment of Parts 20 and 24 of the Commission's Rules --
    Broadband PCS Competitive Bidding and the Commercial Mobile Radio
    Service Spectrum Cap, *Report and Order*, 11 FCC Rcd 7824,
    7850-7852, paras. 57-60 (1996); *see also* 47 C.F.R. § 24.720(b).

[^129]: *See* Amendment of Parts 20 and 24 of the Commission's Rules --
    Broadband PCS Competitive Bidding and the Commercial Mobile Radio
    Service Spectrum Cap, *Report and Order*, 11 FCC Rcd 7824, 7852,
    para. 60.

[^130]: *See* Letter to Amy Zoslov, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, from Aida Alvarez, Administrator, Small
    Business Administration, dated December 2, 1998.

[^131]: FCC News, "Broadband PCS, D, E and F Block Auction Closes," No.
    71744 (released January 14, 1997).

[^132]: *See* "C, D, E, and F Block Broadband PCS Auction Closes,"
    *Public Notice*, 14 FCC Rcd 6688 (WTB 1999).

[^133]: *See* "C and F Block Broadband PCS Auction Closes; Winning
    Bidders Announced," *Public Notice*, 16 FCC Rcd 2339 (2001).

[^134]: 13 C.F.R. § 121.201, NAICS code 513322 (changed to 517212 in
    October 2002).

[^135]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    "Information," Table 5, Employment Size of Firms Subject to Federal
    Income Tax: 1997, NAICS code 513322 (issued October 2000).

[^136]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    "Information," Table 5, Employment Size of Firms Subject to Federal
    Income Tax: 1997, NAICS code 513322 (issued October 2000). The
    census data do not provide a more precise estimate of the number of
    firms that have employment of 1,500 or fewer employees; the largest
    category provided is "Firms with 1000 employees or more."

[^137]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, "Trends in Telephone Service" at Table 5.3,
    page 5-5 (May 2004). This source uses data that are current as of
    October 22, 2003.

[^138]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, "Trends in Telephone Service" at Table 5.3,
    page 5-5 (May 2004). This source uses data that are current as of
    October 22, 2003.

[^139]: 5 U.S.C. § 603(c).