appendix IV: rule part analysis

Part 1 -- Practice and Procedure

part 1, Subpart F -- Wireless Telecommunications Services Applications
and Procedures

Description

Part 1, subpart F sets forth procedural rules governing the filing of
applications and the issuance of wireless licenses.[^1] The rules cover
all of the basic types of applications associated with wireless
licensing, including initial applications, amendments and modifications,
waiver requests, requests for special temporary authorization,
assignment and transfer applications, and renewals. In addition, subpart
F includes rules concerning public notices, petitions to deny, dismissal
of applications, and termination of licenses.

The subpart F rules were adopted as part of the 1998 Biennial Regulatory
Review in the *Universal Licensing* proceeding, WT Docket No. 98-20.[^2]
The Commission initiated this proceeding in connection with the
implementation of the Universal Licensing System (ULS), an integrated,
automated system for electronic filing and processing of wireless
applications. In the *Universal Licensing* proceeding, the Commission
consolidated and streamlined its procedural rules into subpart F, which
replaced numerous service-specific rules that had previously applied to
different wireless services. In addition, the Commission adopted new
standardized application forms designed for use in ULS, and adopted
rules requiring all wireless telecommunications carriers, as well as
certain other classes of wireless licensees, to file applications
electronically.[^3] The Commission made minor changes to those rules in
the 1999 reconsideration of the *ULS Report and Order*.[^4]

Purpose

The purpose of subpart F is to: (1) establish uniform procedures for the
licensing of all wireless services; (2) minimize filing requirements;
and (3) ensure the collection of reliable information from applicants
and licensees.

Analysis

Status of Competition

As noted above, the Part 1, subpart F rules pertain to procedural
requirements relating to the many wireless radio services regulated
pursuant to other specific rule parts addressed in our rule part
analysis. Accordingly, we do not address here the status of competition
in specific wireless radio services, but instead will address this issue
in the context of rule parts affecting particular services, discussed
*infra.*

Advantages

Consolidating the wireless procedural rules into a single subpart
provides greater clarity, consistency, and predictability to the
licensing process than the prior array of sometimes inconsistent
service-specific rules, forms, and procedures. This lessens the filing
burden on applicants, and also facilitates more rapid and efficient
processing by the Commission.

Disadvantages

The requirement of electronic filing for all wireless telecommunications
carriers imposes certain technical burdens and costs. In addition, the
general procedural rules contained in subpart F impose administrative
burdens on wireless applicants and licensees that are inherent to the
licensing process.

Recent Efforts

In 2001, the Wireless Telecommunications Bureau completed its multi-year
conversion to the ULS of all wireless service application and licensing
activity.[^5] Conversion to ULS provides numerous benefits, including
fast and easy electronic filing, improved data accuracy through
automated checking of applications, and enhanced electronic access to
licensing information for the public. The Commission continues to review
its rules governing wireless licensing in this and other rule parts in
order to consolidate the licensing rules to the extent appropriate and
necessary in order to promote consistency among various wireless
services.

The Commission also has recently issued a Notice of Proposed Rulemaking
(NPRM) seeking comment on revising and streamlining its requirements for
applications affecting Quiet Zones (*Quiet Zones NPRM*).[^6] In that
NPRM, the Commission proposed several changes to its Part 1 rules
relating to Quiet Zones.

Comments

[Section 1.923 -- Litigation disclosure requirements on Forms 601 and
603]{.underline}. CTIA and RCA request that information regarding
"pending" and "non-FCC litigation" that applicants are required to file
pursuant to Section 1.923, as part of their ULS Forms 601 and 603,
should no longer be required.[^7] CTIA asserts that the Commission has
repeatedly stated that unless and until there is an adverse judgment,
pending litigation is not material to a licensee's qualifications. CTIA
further contends that this information is not necessary in a competitive
market, and that applicants that include information on pending and/or
non-FCC litigation have their applications "offlined," thus delaying
swift Commission action on the filing.[^8]

[Section 1.923 -- Foreign ownership disclosure requirements on Forms 601
and 603]{.underline}. CTIA also asserts that the data requirement on
Forms 601 and 603 relating to foreign ownership is an unnecessary and
burdensome reporting requirement, and that the forms should be revised
to require merely that applicants answer a simple yes or no as to
whether they comply with section 310(b).[^9] CTIA contends that the
foreign ownership question on these ULS forms has little, if any
correlation to the FCC's section 310(b) analysis required prior to
approval of such ownership. RCA similarly asserts that the Commission
should eliminate the requirement for disclosure of an applicant's
foreign ownership when the Commission has already approved compliance
with the foreign ownership requirements.[^10]

[Section 1.924 -- Quiet Zone requirements]{.underline}*.* CTIA seeks
amendment of section 1.924(d), which requires a CMRS provider to obtain
approval for wireless facilities within the FCC Quiet Zone Rules for
Arecibo Observatory.[^11] CTIA asserts that this requirement creates an
unnecessary interval of FCC approval, particularly since the Observatory
is willing to provide written approval for wireless modifications, as
explained in the *Quiet Zones NPRM*. Similarly, RCA asserts that the
Commission should not require approval of operation in a designated
Quiet Zone if it has already been reviewed and found not to be harmful
to protected operations, and that Section 1.924 should be modified
accordingly.[^12]

[Section 1.929 -- Certain frequency coordination
requirements]{.underline}. API requests that the Commission modify
section 1.929(c)(4)(v) and/or 1.929(k) so as to specify that the
deletion of a site from a multi-site license in the PLMRS service is a
"minor" change that requires neither frequency coordination (pursuant to
a Form 601 filing) nor the Commission's prior approval.[^13] API
recommends, instead, that such changes merely require a simple
notification to the Commission through ULS. API asserts that requiring
frequency coordination in this instance is unnecessarily burdensome on
the Commission and licensees and is not necessary in the public
interest. API claims that frequency coordinators will be able to access
the FCC database to determine whether the site deletion makes new
spectrum available to others that may want it. API also asserts that the
rules applicable to microwave services (*i.e.*, section 1.929(d)) do not
classify elimination or deletion of a site as a "major" change requiring
engineering analysis or frequency coordination, and that the PLMRS
service should be treated in the same manner. AMTA concurs with API and
asks the Commission to modify section 1.929(c)(4)(i) to permit licensees
to delete a frequency from an authorization without coordination.[^14]

[Section 1.935 -- Requirements relating to withdrawal of certain
applications and pleadings]{.underline}*.* CTIA and RCA also request
elimination of section 1.935, which requires applicants to obtain
Commission approval of agreements to withdraw applications, petitions,
informal objections, or other pleadings against an application.[^15]
They argue that the approval process often causes lengthy delays and is
unnecessary in a competitive CMRS market, particularly when the
Commission has the authority to request documents in specific cases.

Recommendation

The Part 1, subpart F rules establish general procedural requirements
applicable to our many different wireless services, and do not contain
substantive rules affecting any particular service. As such, the need
and purposes for these rules are not directly affected by competitive
developments that guide our Section 11 analysis. Accordingly, pursuant
to our Section 11 biennial review, we do not find that this rule subpart
is "no longer necessary in the public interest as the result of
meaningful economic competition between providers of such
\[telecommunications\] service."

While staff generally determines that Part 1, subpart F rules remain
necessary in the public interest, it also concludes that certain
modifications of this rule subpart may be in the public interest for
reasons other than those related to competitive developments that fall
within the scope of Section 11 review. In this regard, we discuss the
comments and our recommendations below.

[Section 1.923 -- Litigation disclosure requirements on Forms 601 and
603]{.underline}*.* Section 1.923 generally stipulates that applications
contain all information required by the Commission's rules, including
reference to docketed legal proceedings where required.[^16] Forms 601
and 603 specifically require that every applicant indicate whether it,
or any party directly or indirectly controlling the applicant, is
currently a party in "any pending matter" related to (a) a state or
federal felony or (b) unlawful monopolization or unlawful attempt "to
monopolize radio communication, directly or indirectly, through control
of manufacture or sale of radio apparatus, exclusive tariff arrangement,
or any other means or unfair methods of competition."[^17] Similar
filing requirements currently are placed on applicants with regard to
satellite licenses.[^18]

The staff concludes that this disclosure requirement, implemented
pursuant to section 1.923, may no longer be necessary in the public
interest, and accordingly recommends that the Commission institute a
proceeding to determine whether this filing requirement should be
revised or eliminated. While the current requirement focuses on matters
that could affect an entity's qualifications to hold a license under
Commission policy and provisions of the Act,[^19] the requirements
impose substantial burdens on many applicants. In addition, the
Commission has stated in other proceedings that it generally will
consider only adjudicated convictions when making certain licensing
determinations, not mere allegations of misconduct.[^20] Furthermore,
the Commission has eliminated similar requirements for broadcast
applicants.[^21]

[Section 1.923 -- Foreign ownership disclosure requirements on Forms 601
and 603]{.underline}. Under section 1.923, the Commission requires that
wireless applicants provide certifications on Forms 601 and 603
regarding foreign ownership, in order to facilitate the Commission's
ability to enforce its statutory obligations set forth in sections
310(a) and (b) of the Communications Act. WTB staff does not believe
that CTIA\'s and RCA\'s request for elimination of specific disclosure
requirements on the forms is in the public interest, because it is
beneficial to the application review process for applicants to provide
specific information regarding the manner in they comply with the
component elements of the statutory foreign ownership requirement.
Nonetheless, the staff finds that some of the specific information
sought on the forms may not be necessary to verify statutory compliance,
and accordingly recommends that the Commission consider ways in which
the disclosure requirements could be streamlined. Specifically, staff
believes that the question that pertains to applicants with indirect
foreign ownership in excess of the 25 percent benchmark contained in
section 310(b)(4) of the Act should be simplified. We recommend that
Forms 601 and 603 be revised to allow applicants to certify that they
have received from the Commission a declaratory ruling that approves
their indirect foreign ownership under section 310(b)(4) for the
particular service that is the subject of the application and that their
indirect foreign ownership continues to comply with that ruling. This
change in the forms would eliminate the perceived need for applicants to
restate the particulars of their indirect foreign ownership and clarify
the information required for the Commission to make its public interest
findings under the Act.

[Section 1.924 Quiet Zone requirements]{.underline}*.* As noted above,
the Commission has issued the *Quiet Zones NPRM* regarding several rule
changes affecting Quiet Zones.[^22] The staff believes that the proposed
rule changes to section 1.924 are within the scope of review
contemplated in that proceeding. Based on the comments filed in this
Biennial Review proceeding, staff believes that the rule in its current
form may not be necessary in the public interest and recommends that the
Commission consider revising the rule in its pending proceeding. The
staff further recommends that the comments of CTIA and RCA regarding
this rule be incorporated into the Commission's pending proceeding.

[Section 1.929 -- Certain frequency coordination
requirements]{.underline}*.* Staff finds that section 1.929 in its
current form may no longer be necessary in the public interest and
recommends that the Commission consider modifying section 1.929(c)(4)(v)
and/or 1.929(k) to specify that the deletion of a site from a multi-site
license in the PLMRS service is a "minor" change that requires neither
frequency coordination (pursuant to a Form 601 filing) nor the
Commission's prior approval.

[Section 1.935 -- Requirements relating to withdrawal of certain
applications and pleadings]{.underline}*.* The staff does not recommend
elimination of the requirement, under section 1.935, that applicants
obtain Commission approval of agreements to withdraw applications,
petitions, informal objections, or other pleadings against an
application. This requirement facilitates the Commission's enforcement
of its "greenmail" rules and policies, which bar settlement payments in
excess of legitimate and prudent expenses.[^23] Accordingly, we conclude
that these requirements implemented pursuant to section 1.935 remain
necessary in the public interest, and recommend that repeal or
modification is not warranted.

part 1, Subpart I -- Procedures Implementing the National Environmental
Policy Act of 1969

Description

Part 1, Subpart I of the Commission's rules[^24] implements the
requirements of the National Environmental Policy Act (NEPA)[^25] as
well as a series of other federal environmental laws, including the
Endangered Species Act of 1973, as amended,[^26] the National Historic
Preservation Act of 1966 (NHPA),[^27] the Wilderness Act of 1964, as
amended,[^28] statutory provisions relating to Indian religious
sites,[^29] and the Wildlife Refuge Laws.[^30] In addition, the
Commission's environmental rules implement Executive Orders regarding
flood plains and wetlands regulation.[^31] By statute and regulations of
the Council on Environmental Quality (CEQ),[^32] the Commission is
responsible for ensuring compliance with these laws. The rules identify
certain special issues for consideration, including the impact of
high-intensity white lights on towers in residential neighborhoods[^33]
and the effect of radio frequency emissions on the human
environment.[^34]

Purpose

The purpose of the Commission's environmental rules is to implement
NEPA, other federal environmental laws, and executive orders, and to
identify those sensitive environmental issues which Commission
licensees, applicants, and certain third parties must address. The
Commission complies with NEPA by requiring its licensees to assess and,
if found, report the potential environmental consequences of their
proposed projects.

If certain actions, such as the construction of a tower, might affect
the environment in one or more of the ways described in the rules, the
licensee or applicant is required to consider the potential
environmental effects of its project, describe those potential effects
in an environmental assessment (EA), and file that document with the
Commission.[^35] The Commission has concluded that actions not
identified in its rules are categorically excluded from environmental
review.[^36] The Commission's environmental rules explain what
information is required in an EA,[^37] the methods for the public to
file objections to EAs,[^38] and those situations in which a full
environmental impact statement must be completed,[^39] as required by
NEPA.

Comments

CTIA and RCA filed comments[^40] concerning the Commission's procedures
under Part 1, Subpart I relating to the NHPA.[^41] CTIA also requests
that the Commission revisit its decision that the construction and
registration of towers are federal undertakings.[^42] Sprint comments
that the Commission's rules which implement the NHPA are not necessary
as they apply to tower siting for Commercial Mobile Radio Service
(CMRS), and that they should be repealed.[^43]

Analysis

The Part 1, subpart I rules are beyond the scope of the Biennial Review
proceeding. These Commission rules implement NEPA,[^44] as well as other
federal environmental laws and executive orders.[^45] The rules were not
promulgated under the Communications Act of 1934, as amended, and
therefore are not part of the Biennial Review.[^46]

part 1, Subpart Q -- Competitive Bidding Proceedings

Description

Subpart Q implements section 309(j) of the Communications Act of 1934,
as added by the Omnibus Budget Reconciliation Act of 1993[^47] and
amended by the Balanced Budget Act of 1997.[^48] Subpart Q sets forth
rules governing the mechanisms and procedures for competitive bidding to
assign spectrum licenses.

Purpose

The purpose of subpart Q is to establish a uniform set of competitive
bidding rules and procedures for use in licensing of all services that
are subject to licensing by auction. The rules in this subpart: (1)
describe which services are subject to competitive bidding; (2) provide
competitive bidding mechanisms and design options; (3) establish
application, disclosure and certification procedures for short- and
long-form applications; and (4) specify down payment, withdrawal and
default mechanisms.

In addition, subpart Q contains rules by which the Commission determines
eligibility for "designated entity" (*i.e.*, small business) status, and
includes a schedule of bidding credits for which designated entities may
qualify in those auctions in which special provisions are made for
designated entities.[^49] The purpose of these provisions is to
implement section 309(j)(3)(B) of the Act, which states that an
objective of designing and implementing the competitive bidding system
is to "promot\[e\] economic opportunity and competition and ensur\[e\]
that new and innovative technologies are readily accessible to the
American people by avoiding excessive concentration in licenses and
disseminating licenses among a wide variety of applicants, including
small businesses, rural telephone companies, and businesses owned by
members of minority groups and women."[^50]

Analysis

Status of Competition

As noted above, the Part 1, subpart Q rules pertain to procedural
requirements relating to the many wireless radio services regulated
pursuant to other specific rule parts addressed in our rule part
analysis. Accordingly, we do not address here the status of competition
in specific wireless radio services, but instead will address this issue
in the context of rule parts affecting particular services, discussed
*infra.*

Advantages

The subpart Q competitive bidding rules establish procedures for the
efficient licensing of spectrum. Use of auction procedures allows for
substantially faster licensing and lower costs than alternative
licensing methods such as comparative hearings, and is more likely to
result in award of licenses to those entities that value the spectrum
the most and will use it most efficiently. Auction rules also enable the
Commission to recover a portion of the value of the spectrum for the
benefit of the public.

Subpart Q is the result of the Commission's consolidation of its auction
rules in the Part 1 rulemaking proceeding, WT Docket No. 97-82. Prior to
the Part 1 proceeding, the Commission implemented service-specific
auction rules for each new auctioned service. Consolidating the auction
rules in Part 1 has resulted in more consistency and predictability in
the auctions process from service to service.

Disadvantages

The auction rules in this subpart impose certain transaction costs on
auction participants (aside from the obligation on the winning bidder to
pay the amount bid). These auction-related costs may be somewhat higher
than the cost of filing a lottery application but significantly less
than the cost of a comparative hearing.[^51] In addition, certain
aspects of the auctions process (*e.g.*, setting of minimum opening bid
amounts, bid increments, and bidding credit levels) still require
service-specific notice and comment prior to each individual auction.

Recent Efforts

The Commission has made several changes to the competitive bidding rules
of subpart Q since the release of the 2000 Biennial Review.

In September 2001, the Commission released the *Part 1 Seventh Report
and Order*, which amended and clarified section 1.2105(c) of the
Commission's rules, the competitive bidding "anti-collusion rule."[^52]
Specifically, the Commission amended the rule so that its language
clearly reflects the Commission's practice of prohibiting communications
regarding bids or bidding strategies only between auction applicants
that have applied to bid on licenses in any of the same geographic
areas. In addition, the Commission amended the rule to (1) clarify that
it prohibits an auction applicant from discussing any competing
applicant's bids or bidding strategies with that or another competing
applicant, even if the first applicant does not discuss its own bids or
bidding strategies, and (2) require auction applicants that make or
receive a prohibited communication of bids or bidding strategies to
report the communication immediately to the Commission in writing.

The Commission also released the *Part 1 Eighth Report and Order* in
which it adopted two exceptions to its competitive bidding attribution
rule that certain ownership interests be counted on a "fully diluted"
basis. The Commission also clarified its rules regarding a third
exception to its attribution rule.[^53] In the *Part 1 Eighth Report and
Order* the Commission also declined to adopt a total assets test in its
ownership attribution rule for determining which entities are eligible
for small business provisions in competitive bidding proceedings.

On April 11, 2002, the Wireless Telecommunications Bureau released the
*Competitive Bidding Conforming Edits Order*[^54] making conforming
edits to service-specific competitive bidding rules and portions of the
Part 1 general competitive bidding rules in accordance with the
authority delegated by the Commission in the *Part 1 Fifth Report and
Order*.[^55] These conforming edits furthered the Bureau's continuing
efforts to streamline its procedures in accordance with the Commission's
biennial regulatory review obligations set forth at section 11(a) of the
Communications Act of 1934, as amended, and the recommendations
contained in the *2000 Biennial Staff Report*. In addition to making
these conforming edits, the Bureau also exercised its delegated
authority to make certain ministerial conforming amendments, including
edits to correct competitive bidding provisions that were inadvertently
altered or deleted by the *Part 1 Third Report and Order* and the
*Competitive Bidding Sixth Report and Order*.[^56] The Bureau also
removed service-specific provisions that were redundant with the
Bureau's delegated authority to conduct auctions. The effect of the
action was to eliminate approximately 66 pages of redundant or
unnecessary rules from the Code of Federal Regulations.

Pursuant to the Bureau's delegated authority, the *Competitive Bidding
Conforming Edits Order* identified and removed service-specific
competitive bidding rules that have been superseded or made redundant by
the Part 1 general competitive bidding rules.[^57] The Bureau modified
or removed service-specific competitive bidding rules in the following
areas: (1) scope of service-specific competitive bidding rules; (2)
competitive bidding design options; (3) competitive bidding mechanisms;
(4) bidding application and certification procedures, and prohibition of
collusion; (5) submission of upfront payments; (6) submission of down
and full payments, and filing of long-form applications; (7) procedures
for filing petitions to deny against long-form applications; (8) license
grant, denial, default, and disqualification; (9) designated entities;
(10) unjust enrichment in license assignment or transfer of control;
(11) ownership disclosure requirements for short- and long-form
applications; and (12) definitions. In those instances in which
service-specific departures from the Part 1 general competitive bidding
rules were tailored for a particular service, the Bureau retained such
rules. In addition, pursuant to the Bureau's delegated authority to make
ministerial conforming edits to Commission rules, we restored and
revised certain rule sections that were inadvertently altered, deleted,
or misstated.

The Bureau is currently addressing petitions for reconsideration
submitted in response to the *Part 1 Order on Reconsideration of the
Third Report and Order*, and *Part 1 Fifth Report and Order*. These
petitions seek, *inter alia*, amendment or clarification of the
controlling interest standard adopted as the competitive bidding
ownership attribution rule.

**Comments**

[Section 1.2105(a) -- Filing of ownership information in short-form
application]{.underline}. CTIA recommends that section 1.2105(a) of the
Commission's rules be amended so that short-form applicants are not
required to submit ownership information with their applications.[^58]
CTIA states that this information is required at the long-form stage for
winning bidders and that short-form applicants should not be burdened by
this requirement.[^59] The Rural Cellular Association (RCA) submitted
Reply Comments in support of CTIA's recommendation.[^60]

[Section 1.2110 -- Designated Entity Status of rural telephone
cooperatives]{.underline}. The National Telecommunications Cooperative
Association (NTCA) suggests that the Commission revise section 1.2110 of
its rules to exclude rural telephone cooperatives from the rule that
defines officers and directors as controlling interests for purposes of
determining designated entity status.[^61]

[Section 1.2111(a) -- Filing of transaction documents for applications
for transfers of control or assignment of licenses]{.underline}. CTIA
also recommends, and RCA concurs, that the Commission eliminate the
requirement that applicants for transfers of control or assignments of
licenses obtained through competitive bidding file transaction documents
with the Commission, as set forth in section 1.2111(a) of it rules.[^62]
CTIA believes that this requirement is duplicative because the
Commission already has rules governing unjust enrichment (*e.g*., 47
C.F.R. § 22.943(b)).[^63] CTIA believes that the scope of the Part 1
rule is too broad because licensees must go through these procedures
irrespective of their designated entity status.[^64]

**Recommendation**

The subpart Q rules only pertain to general procedural requirements
relating to competitive bidding in various different wireless services,
and not to the substantive rules affecting any particular service. As
such, the need and purposes for these rules are not directly affected by
competitive developments that guide our Section 11 analysis.
Accordingly, we do not find that this rule subpart is "no longer
necessary in the public interest as the result of meaningful economic
competition between providers of such \[telecommunications\] service."

While staff generally determines that Part 1, subpart Q rules remain
necessary in the public interest, it also concludes that certain
modifications of this rule subpart may be in the public interest for
reasons other than those related to competitive developments that fall
within the scope of Section 11 review. In this regard, we discuss the
comments and our recommendations below.

[Section 1.2105(a) -- Filing of ownership information in short-form
application]{.underline}. With regard to CTIA's Comments and RCA's Reply
Comments pertaining to section 1.2105(a), the Commission requires
auction applicants to submit ownership information, including the name,
address and citizenship of any party holding a 10% or higher interest in
the applicant.[^65] Under section 309(j)(5) of the Communications Act,
no party may participate in an auction "unless such bidder submits such
information and assurances as the Commission may require to demonstrate
that such bidder's application is acceptable for filing." The
legislative history of section 309(j) provides that the Commission
require that bidders' applications contain all information and
documentation sufficient to demonstrate that the application is not in
violation of the Commission's rules, and applications not meeting those
requirements may be dismissed prior to competitive bidding.[^66]

Under the Commission's rules, the minimum requirement for participation
in an auction is the submission of a short-form application together
with an appropriate upfront payment determined by the Bureau. The
short-form application must include, *inter alia*: identification and
ownership information of the applicant; basic qualification
certifications that indicate that the applicant is legally, technically,
financially and otherwise qualified to hold a Commission license
pursuant to section 308(b) of the Communications Act of 1934; and
disclosure of certain bidding arrangements and other agreements. By
submitting the short-form application, applicants declare, under penalty
of perjury, that "all matters and things stated in \[the\] application
and attachments, including exhibits, are true and correct."[^67]

In the *Competitive Bidding Second Report and Order*, the Commission
observed that "submission of a short-form application prior to the
auction, would reduce the administrative burdens of the auction process,
avoid unnecessary delay in the initiation of service, and encourage
applicants to participate in the process."[^68] In adopting this
approach, the Commission balanced the importance of limiting
participation in its auctions to those entities that are legally,
technically and financially qualified to hold a Commission license with
the need to conduct auctions expeditiously.[^69] Filing ownership
information in the short-form application prevents the administrative
expense and delay the Commission would incur if it could not determine
whether auction participants meet the threshold requirements to hold the
license(s) they win until after the auction had concluded. Disclosure of
ownership information also helps bidders by providing them with
information about their auction competitors and identifying the entities
that are subject to our anti-collusion rules, which are an integral part
of section 1.2105.[^70] Detailed ownership information is also necessary
to ensure that applicants comply with applicable ownership limits.[^71]

We find that there have been no intervening events that would cause us
to reconsider our findings set forth in the *Competitive Bidding Second
Report and Order*. Additionally, CTIA points to no intervening events
that affect the utility of this rule. Accordingly, and for the reasons
set forth in that order, the Bureau concludes that inclusion of
ownership information in the short-form application remains necessary in
the public interest and recommend that repeal or modification is not
warranted.

[Section 1.2110 -- Designated entity status of rural telephone
cooperatives]{.underline}. With regard to NTCA's Comments pertaining to
section 1.2110, staff notes that this issue has been raised by other
parties in petitions for reconsideration of the *Part 1 Fifth Report and
Order* and in comments NTCA filed in response to such petitions for
reconsideration, and thus is within the scope of the review contemplated
in the reconsideration. Staff recommends that NTCA's comments regarding
this rule be incorporated into the Commission's pending reconsideration
proceeding.

[Section 1.2111(a) -- Filing of transaction documents for applications
for transfers of control or assignment of licenses]{.underline}. Staff
concludes that section 1.2111(a) in its current form may no longer be
necessary in the public interest and accordingly recommends that the
Commission adopt CTIA and RCA's recommendation this rule be revised to
eliminate the requirement that applicants for transfers of control or
assignments of licenses obtained through competitive bidding file
transaction documents with the Commission. Under section 1.2111(a) of
the Commission's rules, applicants are required to file, together with
their applications, the associated contracts for sale, option
agreements, management agreements, or other documents disclosing the
total consideration, received in return for transfer of its license.
Although this requirement is not necessarily duplicative of the
Commission's unjust enrichment rules (which apply only to designated
entities), as CTIA contends, staff believes that the rule is outdated
and is not necessary for application of the Commission's unjust
enrichment payment rules in sections 1.2111(b), (c), and (d).

The Commission adopted section 1.2111(a) at the outset of the auction
program to accumulate the data necessary to evaluate our auction designs
and judge whether winning bids were reflective of the true market value
of the licenses.[^72] Therefore, the Commission decided to collect data
on license transfers and assignments for all auctioned licenses, not
just licenses won by designated entities, within three years of the
initial license grant. The Commission stated that this would put
particular focus on licenses transferred before the licensee had begun
commercial service, and help determine if there were any "unforeseen"
problems with respect to unjust enrichment outside the designated entity
context, *i.e.*, licenses being acquired at auction for less than true
market value and then being transferred at a significant profit.[^73]

Staff concludes that it may no longer be in the public interest to
retain the section 1.2111(a) requirement that applicants for transfer of
control or assignment of licenses acquired through competitive bidding
submit financial documents regarding the transfer or assignment. Staff
review suggests that this rule is no longer necessary for several
reasons. First, in the eight years since the rule was adopted, the
Commission has developed extensive experience with auctions and auction
design, so that collection of this data no longer appears to be needed
to monitor the effectiveness of our auction designs. Second, there is no
evidence that in open bidding, winning bidders have paid less than the
market price for their licenses, thus there is no evidence that unjust
enrichment problems have in fact occurred with resale of non-designated
entity licenses. Moreover, because the value of licenses changes with
time and circumstances, fluctuations in secondary market values from the
original auction price are not reliable indicators of whether licenses
were sold for their "market value" at auction. Third, the rule is
overinclusive because it requires parties to many routine transfers and
assignments to provide documentation that is not needed for the
Commission to conduct its public interest review of those transactions.
Finally, the provision appears to be unnecessary to application of the
Commission's designated entity unjust enrichment provisions. Section
1.2111(a) requires disclosure that focuses on the monetary or other
consideration received for the transfer or assignment of licenses.
However, determining whether unjust enrichment is owed with respect to
bidding credits or installment payments is based on the eligibility of
the transferee or assignee for the bidding credits or installment
payments, which is a question of attribution of gross revenues based on
principles of control rather than on the secondary market price of the
license.

By its recommendation, staff does not intend to suggest a limitation on
the Commission's authority under section 308(b) of the Act to require
disclosure of specific transaction information, including contract
documents and the transaction price, in any transfer or assignment
proceeding in which the Commission needs such information to conduct its
public interest review. Moreover, staff is not proposing any limitation
on the Commission's ability to use section 308(b) of the Act or sections
1.2110(j) and 1.2112 of the Commission's rules to collect whatever
information and documents are necessary to determining eligibility for
designated entity provisions or applicability of unjust enrichment
payments.

Part 17 -- Construction, Marking, and Lighting of Antenna Structures

Description

Part 17, which implements Section 303(q) of the Communications Act of
1934, as amended,[^74] establishes the procedures by which the
Commission registers and assigns painting and lighting requirements to
those antenna structures that may pose a physical hazard to
aircraft.[^75] The rules require registration, evaluation, and approval
by the Commission, in conjunction with the recommendations of the
Federal Aviation Administration (FAA), of any proposed construction or
modification of an antenna structure that is a potential hazard to
aircraft. The rules also require tower owners to paint and light their
antenna structures as necessary to protect air navigation.

The Antenna Structure Registration procedures set forth in Part 17 are
distinct from the FCC's licensing functions. The registration of an
antenna structure that affects air navigation is a pre-condition to FCC
licensing of radio facilities at a particular site.[^76]

Purpose

Part 17 rules ensure that tower owners do not construct structures that
may pose a hazard to air navigation, and FCC licensees do not site
facilities on such structures until the antenna structures comply with
federal aviation safety requirements.

Analysis

Status of Competition

Because the rules in this Part address air navigation safety issues,
general competitive developments in the services to which these rules
apply do not affect the need for these rules.

Advantages

These rules are limited to those classes of antenna structures that may
reasonably be expected to pose an air safety hazard (generally, antenna
structures that are taller than 200 feet or that are in close proximity
to airports). Antenna structure owners are responsible for compliance
with the rules; thus there is a single point of contact for a particular
antenna structure. This eliminates the need for each party on a
multi-tenant structure to undertake the registration process.

Disadvantages

The Part 17 rules may delay the commencement of service when proposed
facilities must be studied by the FAA and registered by the Commission
prior to construction.

Recent Efforts

None.

Comments

CTIA believes that certain Part 17 rules are not synchronized with FAA
regulations and requests that the Commission work with the FAA to
streamline procedures in this area. [^77] Specifically, CTIA contends
that certain FAA Advisory Circulars, to which the Commission's rules
require adherence, impose obligations with respect to notification of
modifications that conflict with section 17.23 of the Commission's
rules.[^78]

Recommendation

Part 17 rules pertain to air navigation safety issues. As such,
competitive developments have not affected the need for this rule part.
Accordingly, we do not find that this rule part is "no longer necessary
in the public interest as the result of meaningful economic competition
between providers of such \[telecommunications\] service."

While staff generally concludes that Part 17 rules remain necessary in
the public interest, it nonetheless also concludes, as discussed below,
that certain modifications may be in the public interest for reasons
other than those related to competitive developments that fall within
the scope of Section 11 review. Staff recommends that the Commission
institute a proceeding to examine the Part 17 rules to modify or
eliminate, without compromising public safety goals, any rules which
create unnecessary administrative burdens or are apt to confuse owners
and licensees who attempt to comply with our Part 17 rules.

Part 20 -- Commercial Mobile Radio Services, Section 20.6 CMRS Spectrum
Aggregation Limit

Description

Section 20.6[^79] limits the amount of broadband PCS, cellular, and
commercial SMR spectrum that any entity can control or influence in a
significant way in a common geographic area. The rule (commonly known as
the "spectrum cap") further defines the types of ownership and other
interests that are attributable under the cap.

On December 18, 2001, the Commission adopted a *Report and Order* that
eliminated the spectrum cap effective January 1, 2003.[^80] The
Commission decided that it should move from the use of an inflexible
spectrum aggregation limit to case-by-case review of spectrum
aggregation involved in the acquisition of spectrum used for mobile
telephony.[^81] The Commission determined, however, that a sunset period
was necessary in order to prepare for case-by-case review.[^82] The
Commission raised the spectrum cap to 55 MHz in all areas for the
duration of the rule's existence to address carriers' concerns about
near-term spectrum capacity constraints in the most constrained urban
areas.[^83]

Comments

No comments were filed with respect to this rule.

Analysis

Because the Commission has already decided to eliminate section 20.6 as
of January 1, 2003, further review of the rule is not necessary as part
of this Biennial Review.

part 20, section 20.11 Interconnection to facilities of local exchange
carriers

Description

Section 20.11 codifies section 332(c)(1)(B) of the Act,[^84] which was
enacted by Congress as part of the Omnibus Budget Reconciliation Act of
1993.[^85] Section 20.11[^86] provides that local exchange carriers
(LECs) must provide reasonable interconnection to commercial mobile
radio service (CMRS) providers on request, and that LECs and CMRS
providers must each reasonably compensate the other for terminating
traffic that originates on their respective facilities.

In the Telecommunications Act of 1996, Congress added sections 251 and
252 to the Act. These statutory provisions establish interconnection
rights among all telecommunications carriers, and set forth terms and
conditions under which interconnection must be provided by one carrier
to another.[^87] While enacting sections 251 and 252, Congress also left
section 332(c)(1)(B) of the Act intact. In the 1996 *First Local
Competition Order*, the Commission codified new interconnection rules in
Part 51 as part of its implementation of sections 251 and 252.[^88] The
Commission also concluded that, in light of Congress' retention of
section 332(c)(1)(B), the Commission retained separate authority over
LEC-CMRS interconnection pursuant to that section. [^89] Because the
Commission viewed sections 251, 252, and 332 of the Act as furthering a
common goal with respect to interconnection, the Commission declined at
that point to act further on or define the scope of its section 332
interconnection authority, but instead amended section 20.11 to require
that LECs and CMRS providers comply with the interconnection rules in
Part 51.[^90]

Section 20.11 is organized into three lettered sub-parts: Subsection (a)
requires LECs to provide the type of interconnection requested by mobile
radio service providers, within reason. Subsection (b) requires LECs and
CMRS providers to compensate each other reasonably for terminating
traffic that originates on each other's facilities. Subsection (c)
requires LECs and CMRS providers to comply with the Part 51
interconnection rules.

Purpose

The purpose of the LEC-CMRS interconnection rule is to promote
competition in the telecommunications market by ensuring that all LECs
and CMRS providers provide reasonable interconnection to one another
subject to reasonable rates, terms, and conditions. The rule regulates
the conduct of LECs with market power in their interconnection
relationships with CMRS providers. Historically, some LECs denied or
restricted interconnection options available to CMRS providers, or
required CMRS providers to compensate the LEC for LEC-originated traffic
that terminated on the CMRS provider's network. Congress enacted section
332(c)(1)(B), and the Commission adopted section 20.11 codifying this
provision, in order to curtail such practices.

Analysis

Status of Competition

In the *Seventh CMRS Competition Report*, the Commission found that
while firm data are difficult to come by, analysts estimate that 3 to 5
percent of wireless customers use their wireless phones as their only
phone. [^91] The Commission also found that there is growing evidence
that consumers are substituting wireless service for traditional
wireline communications, and that an increasing number of mobile
wireless carriers offer service plans designed to compete directly with
wireline local telephone service.[^92]

Advantages

Section 20.11 sets forth basic requirements for reasonable and
nondiscriminatory interconnection arrangements between LECs and CMRS
providers, but does not impose detailed standards or technical
requirements. It reduces the potential for anti-competitive behavior,
while affording carriers reasonable flexibility with respect to the
terms and conditions of interconnection so long as the basic
requirements of the rule are adhered to.

Disadvantages

Section 20.11 imposes certain transaction costs on carriers to ensure
that their interconnection arrangements comply with the rule, and may
lead to disputes and litigation between carriers about what constitutes
"reasonable" interconnection under the rule. In addition, the overlap
between this rule and the Part 51 interconnection rules may cause some
duplication of regulatory requirements.

Recent Efforts

The Commission has commenced a fundamental examination of all forms of
intercarrier compensation.[^93] The purpose of the rulemaking is to
examine the existing patchwork of interconnection rules and to seek an
approach that minimizes the need for regulatory intervention.

[]{.mark}

On September 30, 2002, the Commission sought comment on two
petitions[^94] that request rulings regarding the intercarrier
compensation regime applicable to certain types of wireless
traffic.[^95] In the *T-Mobile Petition*, CMRS petitioners seek a
declaratory ruling that the Commission "reaffirm that wireless
termination tariffs are not a proper mechanism for establishing
*reciprocal compensation* arrangements" between LECs and CMRS
providers.[^96] Petitioners contend that some rural LECs have filed
state tariffs to collect reciprocal compensation for the termination of
intra-MTA traffic originated by CMRS carriers. Petitioners assert that
compensation for such traffic should be paid only when the LEC and CMRS
carrier have entered into an interconnection agreement under section
251.

In the *US LEC Petition*, US LEC asks the Commission to "issue a ruling
reaffirming that LECs are entitled to recover *access charges* from IXCs
for the provision of access service on interexchange calls originating
from, or terminating on, the networks of CMRS providers."[^97] US LEC
asserts that industry practice is for IXCs to pay access charges to LECs
for this traffic, but that one IXC has recently declined to pay these
charges.

The Commission has also sought comment on a petition for declaratory
ruling filed by Sprint PCS (Sprint) that requests confirmation that: (1)
an incumbent local exchange carrier (ILEC) may not refuse to load
telephone numbering resources of an interconnecting carrier, and (2) an
ILEC may not refuse to honor the routing and rating points designated by
that interconnecting carrier.[^98]

All three petitions are part of the same docket as the *Intercarrier
Compensation NPRM*, which was released on April 27, 2001.[^99]

Comments

USTA recognizes that the Commission is considering intercarrier
compensation issues in the Intercarrier Compensation rulemaking and
states that it renews the comments it filed in the 2000 Biennial Review.
Specifically, USTA indicates that the Commission should deny requests to
expand the rules to require reciprocal compensation to CMRS providers
for the traffic sensitive elements of their mobile networks.

In addition, USTA states that the Commission should incorporate any
subsidiary intercarrier compensation issues, such as those raised in the
*Sprint PCS Petition*, into the ongoing broader Intercarrier
Compensation proceeding.[^100] USTA states that this will allow for more
efficient handling of all intercarrier compensation. Sprint argues that
USTA's request does not address the possible repeal of any regulation
and is outside the scope of the Biennial Review.[^101]

Recommendation

USTA's argument regarding the incorporation of related issues into the
broader proceeding is one of process that does not address whether any
particular regulation is no longer necessary or in the public interest.
Accordingly, staff concludes that these arguments fall outside of the
scope of this Biennial Review.

However, staff notes that the issues raised with regard to section 20.11
are within the scope of review of the rulemaking pending before the
Commission with regard to its *Intercarrier Compensation NPRM*. Staff
recommends that the comments of USTA regarding section 20.11 be
incorporated into the Commission's pending rulemaking proceeding.

part 20, Section 20.12 Resale

Description

Section 20.12(b)[^102] provides that any carrier of Broadband PCS
(except those C, D, E, and F block PCS licensees that do not own and
control and are not owned and controlled by firms also holding cellular,
A or B block licenses), Cellular Radio Telephone Service, or Specialized
Mobile Radio (SMR) Services that offers real-time, two-way
interconnected voice service with switching capability ("covered CMRS
provider") must permit resale of its services.

The resale provision sunset on November 24, 2002.

Comments

No comments were filed with respect to this rule.

Analysis

Because this rule is no longer in effect, no review is required as part
of this Biennial Review. Staff recommends that this rule be deleted from
the Code of Federal Regulations.

part 20, Section 20.12 Roaming

Description

Roaming occurs when the subscriber of one CMRS provider utilizes the
facilities of another CMRS provider with which the subscriber has no
direct, pre-existing service or financial relationship to place an
outgoing call, to receive an incoming call, or to continue an
in-progress call. Roaming can be done "manually," in which a subscriber
establishes a relationship with the host carrier usually by providing a
credit card number, or "automatically," in which the subscriber does
nothing more than turn on her telephone. Automatic roaming requires a
pre-existing contractual agreement between the host and home carriers.

Section 20.12(c)[^103] provides that any "covered CMRS" carrier must
provide mobile radio service upon request to any subscriber in good
standing, including roamers, while the subscriber is within any portion
of the licensee's licensed service area, assuming that the subscriber is
using technically compatible mobile equipment. The rule only mandates
that carriers offer manual roaming, and does not require provision of
automatic roaming. The manual roaming rule was adopted in 1996.[^104]

Purpose

The purposes of the roaming provision are to ensure seamless service to
wireless customers who roam out of their home service areas, and to
prevent carriers from restricting competition and consumer choice
through refusal to provide service to roamers.

Analysis

Status of Competition

Market forces are working to make roaming services, in particular
automatic roaming, widely available and increasingly less expensive.
Competition in the provision of roaming services has become increasingly
competitive over time.[^105] All the major nationwide carriers as well
as many regional and small carriers offer nationwide or nearly
nationwide plans and wide-area, single-rate calling plans that include
roaming service to their subscribers at no additional charge. Buildout
is widespread and continuously expanding. Most cellular carriers have
reached automatic roaming agreements among themselves, even though
section 20.12 only mandates manual roaming. However, some local and
regional carriers have alleged that they have been unable to enter into
roaming agreements with competing carriers. Consumers' ability to roam
may also be limited because they can only roam on networks that use the
same technical standard (CDMA, TDMA, GSM, iDEN) as the home carrier.

Advantages

The manual roaming rule provides a clear standard and is minimally
intrusive because it does not require CMRS carriers to reconfigure their
systems to support technically incompatible roaming.

Disadvantages

For carriers, manual roaming obligations impose some administrative and
technical burdens associated with caller verification, billing, and
similar issues. For consumers, manual roaming imposes considerably
higher fees than automatic roaming and has become an option of last
resort due to its cumbersome registration process and difficulty of use.

Recent Efforts

At the time that it adopted the manual roaming rule, the Commission also
issued a *Third Notice of Proposed Rulemaking* in CC Docket 94-54 asking
(1) whether to sunset the manual roaming rule, and (2) whether to
mandate automatic roaming for any carriers.[^106] On August 28, 2000,
the Commission released a *Third Report and Order and Memorandum Opinion
and Order on Reconsideration*, in which it affirmed the existing manual
roaming rule, with some modification and clarification.[^107] On October
4, 2000, the Commission initiated a new rulemaking proceeding in WT
Docket 00-193 to consider the impact of technological advances and the
rapid expansion of the CMRS market since the *1996 Roaming Order* on
issues relating to both automatic and manual roaming.[^108] In its
*Roaming Notice*, the Commission requested comment on whether it should
adopt an automatic roaming provision for any CMRS system and whether it
should retain, eliminate, or sunset the existing manual roaming
requirement. This proceeding remains pending.

Comments

No comments were filed with respect to this rule.

Recommendation

Staff notes that the Commission has an open proceeding, WT Docket
00-193, in which it is considering the continued necessity of the manual
roaming rule in light of competitive and other developments. Although
staff received no comments in the Biennial Review proceeding on section
20.12 relating to roaming issues, staff believes that the competitive
developments discussed above warrant consideration of whether the rule
remains necessary in the public interest as a result of meaningful
competition between service providers. Accordingly, the staff recommends
consideration of this issue in the pending proceeding.

part 20, Section 20.18 -- 911 Service

Description

Section 20.18[^109] requires certain broadband CMRS providers
(delineated in subpart (a) of this rule) to comply with guidelines set
by the Commission for the implementation of Enhanced 911 services (E911)
for all of their customers, including those customers requiring TTY
devices.

The rule provides for implementation of E911 in two phases. In Phase I,
CMRS carriers must implement E911 capability in their networks to
provide 911 dispatchers with a callback number and the location of the
cell site that received the call. In Phase II, carriers must provide
Automatic Location Identification (ALI) capability for all 911 calls
placed by wireless telephone users, so that the caller's location can be
more accurately determined.

The rule provides for implementation of Phase I by April 1, 1998, or
within six months of a request by a Public Safety Answering Point
(PSAP). In Phase II, licensees who employ network-based solutions must
provide service to at least 50 percent of their coverage area or their
population by October 1, 2001, and licensees employing handset-based
technologies must ensure that at least 50 percent of all new handsets
activated are location-capable by October 1, 2001.[^110] Section 20.18
further describes who must comply with E911 requirements, the basic E911
service that CMRS carriers must provide, as well as the accuracy
percentage and timeframe in which these services must be deployed.
Finally, the rule provides alternative requirements for carriers who
choose to employ an intermediary dispatcher rather than routing their
customers' 911 calls directly to a PSAP.

  -----------------------------------------------------------------------

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Purpose

The purpose of section 20.18 is to enhance public safety and facilitate
effective and efficient law enforcement. Unlike a wireline 911 call, a
dispatcher receiving a wireless 911 call can only obtain information
regarding the caller's location and callback number if the caller can
provide it. Section 20.18 rule attempts to provide the same reliable and
ubiquitous aid to wireless 911 callers that is available to wireline
callers.

Analysis

Status of Competition

Because the purpose of section 20.18 is to enhance public safety and
facilitate effective and efficient law enforcement, general competitive
developments in the services to which the rule applies do not affect the
need for this rule.

Advantages

The E911 rule sets national standards and deadlines to ensure that all
CMRS carriers throughout the United States will provide E911 services in
a timely manner. At the same time, the rule is technologically and
competitively neutral because it allows carriers and equipment
manufacturers to determine the best method to implement E911 capability.
Allowing manufacturers and carriers to adopt the technology of their
choice encourages the parties to arrive at a solution that is both
effective and cost-efficient. Finally, Section 20.18 allows the
Commission to determine easily which carriers have failed to comply with
the mandate and are providing insufficient E911 services.

Disadvantages

The E911 rule imposes administrative, technical, and economic costs on
carriers who must reconfigure their networks to comply with the rule.

Recent Efforts

The Commission continues to promote its goal of ensuring that wireless
E911 service is deployed as rapidly as possible. In a set of Orders
adopted in September 2000 and October 2001, the Commission granted
waivers to six major national wireless carriers from certain of the
initial Phase II deadlines, while adopting revised, specific, and
enforceable Phase II deployment schedules.[^111] In addition, the
Commission has taken steps to identify technical and operational
barriers to E911 deployment. In the fall of 2001, the Commission
selected an independent telecommunications expert, Dale N. Hatfield, to
conduct an inquiry on E911 technical issues, in order to help identify
technical and operational problems in wireless E911 deployment. A
*Report on Technical and Operational Issues Impacting the Provision of
Wireless Enhanced 911 Services* (Hatfield Report) was filed on October
15, 2002. The Commission will use the information in the Hatfield Report
and related public comments to assess the status of E911 deployment.

In addition, the Commission has recognized that non-nationwide CMRS
providers have much less ability than nationwide carriers to obtain the
specific vendor commitments necessary to deploy E911 immediately. On
July 11, 2002, the Commission adopted an order granting non-nationwide
(small and mid-sized) CMRS carriers temporary, limited relief from the
E911 Phase II implementation rules. While good cause exists to stay the
rules temporarily for these specific carriers, a modification or
elimination of the Phase II rules would have a detrimental affect on the
overall deployment of wireless E911. Finally, the Commission has
recently adopted rules clarifying what constitutes a valid Public Safety
Answering Point (PSAP) request so as to trigger a wireless carrier's
obligation to provide E911 service to that PSAP within six months.[^112]

Comments

CTIA, RCA, NENA/APCO/NASNA, and Sprint all indicate that the Commission
should clarify and/or modify certain aspects of the Commission's E911
Phase II rules. CTIA states that the Commission should modify the rules
to permit carriers and PSAPs to negotiate a mutually agreed upon
implementation period, and the six-month implementation period should be
tolled while a PSAP assembles documentation or during a readiness
dispute.[^113] RCa and NENA/APCO/NASNA agree with a negotiated
implementation period.[^114] NENA/APCO/NANSNA, however, notes that
negotiations are not inconsistent with a fixed rule, and disagrees with
CTIA's tolling suggestion as written.[^115] RCA also contends that the
Commission should resolve a discrepancy between the terms of the *Order
to Stay*[^116] and Section 20.18(f), which concerns phase-in
requirements for network-based E911 location-information
technologies.[^117]

In addition, CTIA and RCA contend that the Commission's E911 rules
should be clarified to permit any CMRS provider to opt into the
requirements of any FCC order that provides E911 waiver relief to other
CMRS licensees.[^118] Further, CTIA contends that the Commission should
amend its E911 rules to account for the widespread use of non-subscribed
phones.[^119] NENA/APCO/NASNA states that it is not persuaded that
clarifying the rules will be helpful or necessary, and indicates that it
intends to take related issues up anew in the current wireless
E911docket.[^120] However, NENA/APCO/NASNA argues that the Commission
should clarify that rule 20.18(b), which states that all 911 calls must
be delivered to a PSAP, does not preclude efforts to arrive at standards
for "congestion control."[^121] Sprint agrees that the "forward all
calls" requirement should be examined.[^122] Sprint states that while
some modifications of the E911 rules would be appropriate, they should
be addressed in the E911 proceeding.[^123]

Recommendation

As stated above, the purpose of section 20.18 is to enhance public
safety and facilitate effective and efficient law enforcement. As such,
the need for and purposes for this section are not affected by
competitive developments that guide our Section 11 analysis. We
accordingly do not find that the rule is "no longer necessary in the
public interest as the result of meaningful economic competition between
providers of such \[telecommunications\] service."

In addition, upon review of the comments submitted in this proceeding,
staff concludes that modification or repeal of section 20.18 is also not
warranted for reasons other than those related to competitive
developments that fall within the scope of section 11 review. First, the
Commission recently modified its rules to provide additional
clarification on the issue of PSAP readiness, and addressed the issue of
tolling the six-month period.[^124] Second, the Commission's E911 rules
do take non-subscriber phones into account. Section 20.18 takes into
account the fact that some phones may not be location capable by only
requiring 95% penetration of location-capable handsets among a carrier's
subscribers by 2005. Further, CTIA has not argued that carriers with
network-based solutions will not be capable of complying with Phase II
requirements.

Third, we view waiver applicability, rule interpretation, and the other
E911-related issues raised by commenters as beyond the scope of the
Biennial Review. The Commission addresses waivers on a case-by-case
basis to determine whether the public interest is better served by a
waiver of a rule than by compliance with the rule. CTIA's and RCA's "opt
in" suggestion does not request the streamlining or elimination of a
rule or set of rules but instead contemplates a wholesale revisitation
of the Commission's administrative procedures, and it is therefore
beyond the scope of the Biennial Review. Similarly, we agree with Sprint
that issues surrounding the "forward all calls" rule should be addressed
in the Commission's existing E911 docket. Further, we find that RCA's
comment alleging a discrepancy between the *Order to Stay* and Section
20.18(f) is outside the scope of the Biennial Review. RCA has not
requested that the Commission modify or eliminate this rule. Rather, RCA
alleges that the order is inconsistent with the rules. As such, this
request is beyond the scope of the Biennial Review. Finally, we will
treat NENA/APCO/NASNA's request regarding congestion control as a
petition for a rulemaking.

part 20, Section 20.20 CONDITIONS APPLICABLE TO

PROVISION OF CMRS SERVICE BY INCUMBENT

LOCAL EXCHANGE CARRIERS

Description

Section 20.20[^125] required incumbent LECs (ILECs) providing in-region
broadband CMRS to provide such services through a separate affiliate.
The rule imposed restrictions on the separate affiliate, including: (1)
maintaining separate books of account; (2) not jointly owning
transmission or switching facilities with the affiliated ILEC that the
ILEC uses for the provision of local exchange services in the same
market; and (3) acquiring any services from the affiliated ILEC on a
compensatory arm's length basis pursuant to our affiliate transaction
rules.[^126]

This separate affiliation rule sunset on January 1, 2002.

Comments

No comments were filed with respect to this rule.

Analysis

Because this rule is no longer in effect, no review is required as part
of this Biennial Review. Staff recommends that this rule be deleted from
the Code of Federal Regulations.

Part 21 -- Domestic Public Fixed Radio Services

Description

Statutory authority for Part 21 of the Commission's rules is found in
Titles I through III of the Communications Act of 1934, as amended. The
purpose of the rules and regulations in Part 21 is to prescribe the
manner in which portions of the radio spectrum may be made available for
domestic communication common carrier and multipoint distribution
service non-common carrier operations which require transmitting
facilities on land or in specified offshore coastal areas within the
continental shelf.

Part 21 is organized into seven lettered sub-parts:

A -- General

B -- Applications and Licenses

C -- Technical Standards

D -- Technical Operation

E -- Miscellaneous

F -- Developmental Authorizations

K -- Multipoint Distribution Service[^127]

Purpose

Part 21 is intended to ensure that licensees are financially and
technically qualified to provide service in a manner that will not
create interference with authorized transmissions. The procedures
prescribed in Part 21 are designed to provide the Commission and the
public with adequate information regarding licensees, prospective
licensees, facilities, and proposed changes in facilities or in the
ownership or control of licensees. Finally, the rules are intended to
promote efficient use of the radio spectrum and to encourage innovation
in communication services, equipment, and techniques.

Analysis

Status of Competition

As a result of the Commission's decision in its *Two-Way Order*,[^128]
Part 21 licensees may now offer two-way broadband transmission services
in competition with numerous wireline and wireless service
providers.[^129] Part 21 licensees also provide video programming in
competition with cable television systems, broadcast television
stations, direct broadcast satellite systems, and other multichannel
video programming distributors.[^130]

Advantages

Part 21 licenses are awarded through a competitive bidding process,
which creates an incentive for rapid deployment of services and, thus,
promotes efficient use of the radio spectrum. The technical standards in
Part 21 ensure interference protection and promote effective use of
proposed and authorized facilities. The Part 21 rules further benefit
the public by affording access to information regarding licensees,
prospective licensees, facilities, and proposed changes in facilities or
in the ownership or control of licensees. Such access also reduces the
cost of enforcing Commission rules by facilitating analysis by
interested parties, thereby supplementing Commission review and
enforcement efforts. Finally, Part 21 promotes innovation through the
availability of developmental authorizations for technical
experimentation.

Disadvantages

Part 21 contains language and requirements that have been superseded by
recent Commission rulemakings.

Recent Efforts

In 1998, the Commission adopted rule changes allowing MDS and ITFS
licensees to construct digital two-way systems capable of providing
high-speed, high-capacity broadband service, including two-way Internet
service via cellularized communication systems.[^131] In 2001, it took
the further step of permitting MDS and ITFS licensees to provide mobile
services.[^132] However, in neither case did it provide any additional
mechanisms for curtailing the interference that two-way or mobile
systems receive from traditional high-powered MDS or ITFS video
operations, the effects of which extend far beyond their effective
service areas.[^133]

On October 7, 2002, the Wireless Communications Association
International, Inc., the National ITFS Association, and the Catholic
Television Network filed "A Proposal for Revising the MDS and ITFS
Regulatory Regime." The Wireless Telecommunications Bureau has issued a
public notice seeking comment on the paper.[^134] The proposal states
that further rule changes are needed to facilitate provision of two-way
fixed and mobile services, while allowing others to continue to provide
one-way video services. The stated goals of the proposal are:

-   Eliminate site-by-site licensing requirements for Multichannel
    Multipoint Distribution Service (MMDS) and ITFS licensees;

-   modify interference protection rules to facilitate deployment of
    two-way cellular wireless services;

-   segregate high-power and low-power operations into separate band
    segments to avoid mutual interference;

-   consolidate licensed channels into contiguous blocks, replacing the
    existing interleaved licensing approach; and

-   remove regulatory underbrush and conform the MMDS/ITFS rules to
    those applicable to other services administered by the Bureau,
    particularly geographically licensed flexible use services.

The proposal suggests a variety of changes to the service rules
applicable to MMDS and ITFS licensees, urges the Commission to suspend
build-out requirements for all MMDS and ITFS licensees, and offers
suggestions for disposing of mutually-exclusive ITFS applications.

In the *Competitive Bidding Conforming Edits Order*, the Wireless
Telecommunications Bureau modified or eliminated certain Part 21 rules
pertaining to competitive bidding to conform with the general
competitive bidding rules set forth in Part 1 of the Commission's
rules.[^135]

Comments

No comments were filed with respect to this rule part.

Recommendation

The Part 21 rules are procedural, operational, and technical in nature,
and ensure interference protection, promote efficient use of facilities,
and set forth licensing requirements and application procedures. As
such, the need and purposes for these rules are not affected by
competitive developments that guide our Section 11 analysis.
Accordingly, we do not find that these Part 21 rules are "no longer
necessary in the public interest as the result of meaningful economic
competition between providers of such \[telecommunications\] service."

In addition, staff notes that the Commission is engaged in the ongoing
rulemaking embodied in the review of the aforementioned proposal.

Part 22 -- Public Mobile Services

Description

Part 22[^136] contains licensing, technical, and operational rules for
five CMRS services collectively referred to as Public Mobile Services.
These services are the Paging and Radiotelephone Service, the Cellular
Radiotelephone Service, the Rural Radiotelephone Service, the Air-Ground
Radiotelephone Service, and the Offshore Radiotelephone Service. In
general, the rules in this part: (1) specify the frequency bands
allocated to each service; (2) provide methods for determining the
protected service area of stations in each service; (3) establish
minimum construction or coverage requirements for licensees; and (4)
define technical limits on operation (*e.g*., transmitter power) to
reduce the likelihood of interference.

Part 22 comprises 10 subparts:

Subpart A - Scope and Authority

> Subpart B - Licensing Requirements and Procedures

Subpart C - Operational and Technical Requirements

> Subpart D - Developmental Authorizations
>
> Subpart E - Paging and Radiotelephone Service
>
> Subpart F - Rural Radiotelephone Service
>
> Subpart G - Air-Ground Radiotelephone Service
>
> Subpart H - Cellular Radiotelephone Service
>
> Subpart I - Offshore Radiotelephone Service
>
> Subpart J - Required New Capabilities Pursuant to the Communications
> Assistance for Law Enforcement Act (CALEA)

Subparts A, B, and C apply generally to all Part 22 licensees. Subpart D
provides for the licensing on a developmental basis of stations that are
to be used for testing new technologies or services. Each of the next
five subparts (subparts E through I) contains rules applicable to one of
the five specific Part 22 services. Finally, subpart J implements the
provisions of the Communications Assistance for Law Enforcement Act
(CALEA) as they apply to Part 22 services.

Purpose

Part 22 of the Commission's rules comprises a minimal regulatory
framework that facilitates the rapid, efficient provision of commercial
wireless telecommunications services to the general public at reasonable
rates, by: (1) utilizing a competitive bidding process to issue
exclusive licenses to the service provider applicants who value them
most; (2) preserving and enhancing competition among these service
providers once licensed; (3) ensuring that available spectrum
allocations are used efficiently; and (4) reducing the likelihood of
harmful interference between licensed stations.

Analysis

Status of Competition

As detailed in the *Seventh CMRS Competition Report*, CMRS providers,
including those licensed under Part 22, operate in an environment that
is marked by increased competition, innovation, lower prices for
consumers, and increased diversity of service offerings.[^137] Mobile
telephony operators experienced strong growth and competitive
development and continued to build out their footprints, deploy their
networks in an increasing number of markets, expand their digital
networks, and develop innovative pricing plans. Competition within the
mobile data industry is developing successfully, as evidenced by the
multitude of dynamic services, service packages, and pricing plans.

Advantages

Overall, the Part 22 rules provide a clear, predictable structure for
the assignment and use of spectrum. In Part 22, provision for accepting
competing mutually exclusive applications and selecting the licensee by
means of competitive bidding results in licenses being issued to the
entities that value them the most. Geographic area licensing minimizes
the amount of paperwork involved in obtaining a license and thus speeds
the authorization of new competitive services to the public. Minimal and
flexible technical standards facilitate the introduction of new
technologies.

Disadvantages

The Part 22 rules impose administrative burdens inherent to the
licensing process and necessary for compliance with technical and
operational rules. The technical standards in most Part 22 services
place the burden of coordination on the licensees themselves.

Recent Efforts

In the 2000 Biennial Review, staff found that Part 22 contained a number
of relatively old rules that were adopted when wireless technology and
competitive conditions were very different.[^138] Accordingly, staff
recommended that the Commission (1) initiate a rulemaking to review the
Part 22 cellular rules to consider which of these rules are obsolete
because of competitive or technological developments, and (2) review
rules regulating Part 22 non-cellular services on the same basis.[^139]
The Commission accepted these recommendations in the *2000 Biennial
Review Order*.[^140]

In May 2001, pursuant to the recommendation in the 2000 Biennial Review,
the Commission initiated a rulemaking proceeding to review the
Commission's cellular rules, as well as certain other Part 22 rules
affecting CMRS providers.[^141] In September 2002, the Commission
released two orders in this proceeding that modified or eliminated
various cellular and other Part 22 rules that had become outdated due to
technological change, increased competition in the CMRS, or supervening
rules.[^142] With respect to the 2000 Biennial Review recommendation to
review rules regulating Part 22 non-cellular services, staff is
currently reviewing these services -- including the Paging and
Radiotelephone Service, Rural Radio Service, Air-Ground Telephone
Service, and Offshore Radiotelephone Service -- in order to streamline
these rules, and revise or eliminate them wherever appropriate.

As noted in the Part 1, subpart Q section, in the *Competitive Bidding
Conforming Edits Order* the Wireless Telecommunications Bureau modified
or eliminated certain Part 22 rules pertaining to competitive bidding to
conform with the general competitive bidding rules set forth in Part 1
of the Commission's rules.[^143]

Comments

CTIA urges the Commission to adhere to a policy of regulatory parity and
eliminate unnecessary regulatory burdens imposed upon cellular service
providers. CTIA cites sections 22.303 (requiring cellular providers to
mark every transmitting facility with a station call sign) and 22.367
(imposing a vertical polarization requirement on cellular licensees) as
examples of obligations that are imposed on cellular licensees but not
on other CMRS providers.[^144] RCA also urges the Commission to
eliminate the section 22.303 requirement that cellular carriers post the
station call sign at every fixed transmitting facility of the
station.[^145] Radiosoft asks the Commission to standardize the
Commission's rules in terms of references to the Height Above Average
Terrain (HAAT) standard, including references in Part 22.[^146]

AMTA contends that the Part 22 rules governing permissible uses of the
spectrum should be clarified or modified. Specifically, AMTA proposes
that the section 22.7 definition of Part 22 licensees as "common
carriers" be modified to reflect more current regulatory delineations,
thereby making the spectrum available for a broader range of carriers.
AMTA recommends modifying section 22.7 to specify "telecommunications
carriers" rather than "common carriers" as the criterion for eligible
entities.[^147]

Comments on other Part 22 subparts will be addressed in the detailed
analysis of those subparts.

Recommendation

First, staff notes that the 2000 Biennial Review proceeding relating to
Cellular Service amended section 22.367 to eliminate the requirement for
cellular carriers that electromagnetic waves radiated by transmitters be
vertically polarized.[^148] The rule changes requested by CTIA, RCA,
AMTA, and Radiosoft concern licensing and technical rules. In
particular, these rules are concerned with operational and
interference-related issues (e.g., protection against interference)
among Part 22 licensees as well as licensees in adjacent services. As
such, the need and purposes for these rules are not directly affected by
competitive developments that guide our Section 11 analysis.
Accordingly, we do not find that these Part 22 rules are "no longer
necessary in the public interest as the result of meaningful economic
competition between providers of such \[telecommunications\] service."

We conclude, however, that modification or elimination of these rules
may be in the public interest for reasons other than those related to
competitive developments that fall within the scope of section 11
review. We therefore recommend that the Commission institute a
proceeding to determine whether to revise or eliminate these rules.
Other potential modifications to streamline the rules in other specific
subparts are noted below in the detailed analysis of those Part 22
subparts.

part 22, Subpart E -- Paging and Radiotelephone Service

Description

Part 22, subpart E contains licensing, technical, and operational rules
for the Paging and Radiotelephone Service (PARS).[^149] Most of the
application filing rules were moved from this subpart to Part 1 in
connection with implementation of electronic filing procedures and the
Universal Licensing System.[^150] This service was originally titled the
"Domestic Public Land Mobile Radio Service" (DPLMRS). The allocations
covered by subpart E are primarily used for tone, voice, numeric, and
alphanumeric paging services. In general, the rules in this subpart: (1)
specify the frequency bands allocated to PARS; (2) provide methods for
determining the reliable service area and interfering contour of
individual stations; (3) establish construction and commencement of
operation requirements for licensees; and (4) define technical limits on
operation (*e.g*., transmitter power) to reduce the likelihood of
interference.

The PARS rules have evolved over the years. The PARS rules currently
focus primarily upon paging. There are also rules pertaining to the
operation of internal point-to-point and point-to-multipoint fixed links
that are essential for local and regional paging systems.

Part 22, subpart E is organized into six groups of rules. The first
group of rules applies to all PARS stations.[^151] Each of the
subsequent five groups contains technical and operational rules
pertaining only to a particular type of operation on specified channels.
The types of operation are paging, one- and two-way mobile,
point-to-point, point-to-multipoint, and trunked mobile operation. Some
of the PARS 454-459 MHz channels are shared with basic exchange
telephone radio systems (providing Rural Radiotelephone Service) and
potentially with non-geostationary low earth orbit ("Little LEO")
satellite downlinks.

Purpose

The purpose of subpart E is to facilitate the provision of commercial
one-way and two-way wireless telecommunications services, in particular,
one-way paging, to the general public at reasonable rates by: (1)
utilizing a competitive bidding process to issue exclusive licenses to
the service provider applicants who value them most; (2) preserving and
enhancing competition between these service providers once licensed; (3)
ensuring that available spectrum allocations are used efficiently; and
(4) reducing the likelihood of harmful interference among licensed
stations.

Analysis

Status of Competition

PARS stations governed by subpart E compete directly with Part 90
commercial paging services and with Part 24 narrowband PCS, and they
compete indirectly with other CMRS. The *Seventh CMRS Competition
Report* notes that paging carriers have been experiencing financial
difficulties as a result of the continuing decline in demand for
traditional one-way paging services, which have long constituted the
bulk of these carriers' revenue, as well as intense competition from
other mobile data providers in the market for more advanced mobile data
services.[^152] Paging carriers have sought to compete with each other
and with other mobile data providers by offering advanced, two-way
mobile data services and by upgrading their networks to allow for these
services.[^153]

Advantages

The PARS rules provide a clear, predictable regulatory structure for the
assignment and use of the spectrum allocated to PARS service. Provision
for accepting competing mutually exclusive applications and selecting
the licensee by means of competitive bidding results in licenses being
issued to the entities that value them the most. Geographic area
licensing minimizes the administrative burden involved in obtaining a
license. The technical rules allow transition to narrowband technology
capable of providing wireless data services.

Disadvantages

The PARS rules impose some burdens related to compliance with technical
and operational rules. Although the Commission converted the
authorization of the PARS from the original site-by-site procedure to a
geographic area licensing process, several detailed technical rules
related to the site-by-site procedure have been retained in order to
protect the investment of grandfathered incumbent licensees in areas
where the geographic licensee is a different entity.

Recent Efforts

The Commission completed Auction 40 in December, 2001, and 182 bidders
won 5323 licenses in the lower paging bands and upper paging bands. See
Part 22 -- Public Mobile Services "Recent Efforts" discussion, *supra*.

Comments

Westel recommends that the Commission eliminate traffic loading studies
required pursuant to rule section 22.655 for trunked mobile systems
operating on 470-512 MHz. In its Reply Comments, APCO questions Westel's
proposal to eliminate the requirements that Part 22 licensees report
channel usage in the 470-512 MHz band, and states that the reports are
necessary to determine where spectrum in the band is underutilized and
could be made available for other uses (*e.g*. through waivers granted
to public safety entities).

In Reply Comments, AMTA requests that the Commission modify or eliminate
section 22.577, which governs operation of dispatch services in the
PARS. AMTA indicates that the rule serves no purpose given the
Commission's trend toward permitting flexible service offerings. Also,
AMTA seeks a clarification regarding rule section 22.569, which limits
entities to no more than two channels in a given area for two-way mobile
operation. AMTA indicates that the Commission did not apply this
restriction to Auction 40 applicants and requests that the Commission
clarify that section 22.569 does not apply to auction bidders seeking to
bid on more than two channels in a geographic area.

Recommendation

The various Part 22, subpart E rules commented upon by parties in this
proceeding concern licensing, technical, and operational rules relating
to channel usage and operational or interference-related issues among
Part 22 paging licensees as well as licensees in adjacent services. As
such, the need and purposes for these rules are not directly affected by
competitive developments that guide our Section 11 analysis.
Accordingly, we do not find that these Part 22 rules are "no longer
necessary in the public interest as the result of meaningful economic
competition between providers of such \[telecommunications\] service."

While staff generally determines that the Part 22, subpart E rules
generally remain necessary in the public interest, it also concludes
that certain modifications of these rules may be in the public interest
for reasons other than those related to competitive developments that
fall within the scope of section 11 review. In particular, staff
believes that the specific rules commented upon may no longer be
necessary in the public interest in their current forms. Accordingly,
staff recommends that the Commission institute a proceeding to review
these rules as well as other rules in this subpart to consider revising
or eliminating them.

part 22, Subpart F -- Rural Radiotelephone Service

Description

Part 22, subpart F[^154] contains licensing, technical, and operational
rules for the Rural Radiotelephone (Rural Radio) Service. The rules
contain provisions governing eligibility, assignment of channels, and
management of interference.

The Rural Radio service is the only service regulated under Part 22 that
is a fixed service. Rural Radio service makes basic telephone service
available to persons who live in remote rural locations where it is not
feasible, because of cost, environmental factors, or other practical
concerns, to provide such service by wire. The rules provide that Rural
Radio interoffice stations can also be used to link central offices
where wireline links are similarly infeasible.

Two types of facilities are authorized in the Rural Radio service --
conventional Rural Radio stations and basic exchange telephone radio
systems (BETRS). Conventional Rural Radio stations may be licensed to
any existing or proposed common carrier. These stations operate on
exclusively assigned paired channels and are considered for regulatory
purposes to be interconnected to, but not a part of, the local loop.
Consequently, conventional Rural Radio stations do not have to meet
state requirements affecting the local loop (*e.g.*, call blocking,
transmission quality).

BETRS facilities may only be licensed to entities that have been state
certified to provide local exchange service in the geographic area in
question (*e.g.*, LECs and CLECs). BETRS also operate on exclusively
assigned paired channels, but they are considered, for regulatory
purposes, to be a part of the local loop, and therefore must meet state
standards applicable to the local loop.

Purpose

The purpose of the Rural Radio rules is to facilitate provision of
telephone service to persons who live in remote rural locations where it
is infeasible to provide service by wire.

Analysis

Status of Competition

The Rural Radio service is generally used only as a last resort in the
most remote rural areas where wireline telephone service is infeasible
or not cost-effective. While historically, Rural Radio customers have
had few if any competitive alternatives for provision of telephony due
to their geographic isolation, other wireless services, such as cellular
and PCS, have begun to expand into areas served by Rural Radio, and
availability of competitive alternatives is likely to increase in the
future.

Advantages

The rules in Part 22, subpart F provide a clear, predictable structure
for the assignment and use of the spectrum co-allocated to the Rural
Radio service to provide basic telephone service to persons who live in
remote rural locations.

Disadvantages

Certain of the rules concerning Rural Radio appear to have become
outdated as a result of technological developments since the rules were
adopted.

Recent Efforts

See Part 22 -- Public Mobile Services "Recent Efforts" discussion,
*supra.*

Comments

No comments were filed with respect to this rule subpart.

Recommendation

The Part 22, subpart F rules are licensing, technical, and operational
in nature. These rules are concerned with licensing procedures, set
technical and operational standards, and protect against interference
among Part 22 rural radio service licensees as well licensees in
adjacent services. As such, the need and purposes for these rules are
not directly affected by competitive developments that guide our Section
11 analysis. Accordingly, we do not find that these Part 22 rules are
"no longer necessary in the public interest as the result of meaningful
economic competition between providers of such \[telecommunications\]
service."

Although the Bureau received no comments on these rules, WTB staff
believes that certain modifications of these rules may be warranted in
the public interest for reasons other than those related to competitive
developments that fall within the scope of section 11 review.
Accordingly, staff recommends that the Commission initiate a proceeding
to review these rules to determine whether any of them should be
modified or eliminated.

part 22, Subpart G -- Air-Ground Radiotelephone Service

Description

Part 22, subpart G[^155] contains licensing, technical, and operational
rules for the Air-Ground Radiotelephone Service (AGS). AGS provides
commercial telephone service to persons in airborne aircraft, using
telephone instruments that are permanently mounted in the aircraft.

AGS consists of two separate parts: General Aviation air-ground stations
and Commercial Aviation air-ground systems. General Aviation air-ground
stations serve only "general aviation" aircraft (aircraft owned by
individuals or businesses for their own use that do not carry passengers
for hire). These stations operate independently rather than as a system.
Consequently, when an aircraft flies out of range of a ground station,
any call in progress disconnects, and the user must then redial through
another ground station.

Commercial Aviation air-ground systems are permitted to serve any type
of aircraft, but primarily serve passengers aboard commercial airlines.
Commercial Aviation systems use seat-back and bulkhead-mounted
telephones often seen on commercial flights. Commercial aviation
air-ground systems are all nationwide systems and calls in progress
handoff from one ground station to another uninterrupted as the aircraft
flies across the country.

In general, the subpart G rules: (1) specify the frequency bands
allocated to the General Aviation and Commercial Aviation air-ground
services; (2) provide separation distance criteria for determining where
new ground stations may be established; (3) establish minimum
construction or coverage requirements for licensees; and (4) set forth
certain technical limits on operation (*e.g*., transmitter power).

Purpose

Subpart G facilitates the provision of commercial telephone service to
persons aboard airborne aircraft.

Analysis

Status of Competition

Although the Commission dedicated specific spectrum to commercial
air-ground service and contemplated the presence of six competing
licensees, only one licensee currently has any plans to provide service
on more than a short-term basis.[^156] At the same time, the Commission
has seen increased interest from a number of airlines in the possible
liberalization of the Commission's rules in this area.

A potential source of competition in the air-ground sector may be
provided by AirCell, Inc. AirCell does not operate on AGS frequencies,
but was granted a waiver in 1998 to provide air-ground service using
specialized equipment that operates on cellular frequencies.[^157]

Advantages

The AGS rules provide a clear, predictable structure for the assignment
and use of the air-ground spectrum allocation.

Disadvantages

The AGS rules include highly specific requirements for the technical
configuration of air-ground systems and the use of air-ground channels
that may inhibit licensee flexibility and technical innovation.

Recent Efforts

See Part 22 -- Public Mobile Services "Recent Efforts" discussion,
*supra.*

Comments

No comments were filed with respect to this rule subpart.

Recommendation

The Part 22, subpart G rules govern the licensing and operation of
air-ground radiotelephone stations and systems. In particular, these
rules are concerned with license application procedures, set technical
and operational standards, and protect against interference among Part
22 air-ground radio service licensees. As such, the need and purposes
for these rules are not directly affected by competitive developments
that guide our Section 11 analysis. Accordingly, we do not find that
these part 22 rules are "no longer necessary in the public interest as
the result of meaningful economic competition between providers of such
\[telecommunications\] service."

Although the Bureau received no comments on these rules, WTB staff
believes that certain modifications of these rules may be warranted in
the public interest for reasons other than those related to competitive
developments that fall within the scope of section 11 review.
Accordingly, staff recommends that the Commission initiate a proceeding
to review these rules to determine whether any of them should be
modified or eliminated.

part 22, Subpart H -- Cellular Radiotelephone Service

Description

Part 22, subpart H[^158] contains licensing, technical, and operational
rules for the Cellular Radiotelephone Service (cellular service).

The spectrum allocated to the cellular service is divided into two
channel blocks, A and B. This was done to provide for two competing,
facilities-based providers in each licensing area. Initially, the
cellular license for the B channel block in each licensing area was
issued to the wireline telephone company in that area and the license
for the A channel block was issued to a company other than that wireline
telephone company. There were multiple A block applicants in most
markets, and the initial licensee was selected by comparative hearings
for the first (largest) 30 markets. Random selection (lottery) was used
in the remaining markets. After Congress authorized the Commission to
select among mutually exclusive applications using competitive bidding
(auctions), the Commission began using auctions instead of lotteries to
award licenses in the cellular service.

In general, the rules in Part 22, subpart H: (1) specify the frequency
bands allocated to the cellular service; (2) provide methods for
determining the Cellular Geographic Service Area (protected service
area) of each system; (3) establish minimum construction and coverage
requirements for cellular licensees; and (4) set forth certain technical
limits on operation (*e.g*., transmitter power).

Purpose

Subpart H facilitates the provision of commercial cellular services to
the general public at reasonable rates, by: (1) utilizing a competitive
bidding process to issue exclusive licenses to the service provider
applicants who value them most; (2) preserving and enhancing competition
between these service providers once licensed; (3) ensuring that
available spectrum allocations are used efficiently; and (4) requiring
coordination procedures to prevent harmful interference among cellular
systems.

Analysis

Status of Competition

As detailed in the *Seventh CMRS Competition Report*, CMRS providers
operate in an environment that is marked by significant and increasing
competition in mobile telephony, paging/messaging, and mobile
data.[^159] As several of the largest providers of mobile telephony in
the country have combined cellular service and PCS into single networks,
it is no longer accurate to view cellular telephone service as separate
and distinct from service provided using PCS licenses. Mobile telephony
service providers compete with each other on the basis of pricing plans,
geographic coverage, and operational features. As detailed in the
*Spectrum Aggregation Limits Order*, the Commission has found that there
is meaningful economic competition in urban markets generally and that
cellular carriers no longer enjoy significant advantages in these areas.
The Commission, however, stated that rural markets are much less
competitive than urban markets and that cellular incumbents generally
continue to dominate in rural areas.[^160]

Advantages

The rules provide a clear, predictable structure for the assignment and
use of cellular spectrum. The rules provide for accepting competing,
mutually exclusive applications for unserved areas and selecting the
licensee by means of competitive bidding; in this manner, licenses are
issued to the entities that value them the most. In addition, the rules
contain minimal and flexible technical standards for alternative
cellular technologies that facilitate the introduction of digital
service and new features. Further, the rules seek to preserve
competitive choices for consumers.

Disadvantages

The cellular rules impose some administrative burdens inherent in the
cellular licensing process and necessary for compliance with technical
and operational rules.

Recent Efforts

The Commission recently released its *Cellular Biennial Review Orders*,
which eliminated a number of cellular technical and administrative rules
that have become outdated as a result of increased competition that
caused technology to evolve at a rapid pace.[^161] Part 22 cellular
rules modified or eliminated included the rules requiring cellular
systems to operate in conformance with AMPS compatibility
specifications,[^162] and various other technical rules that became
obsolete due to the rapid evolution of technology.

As part of the 2000 Biennial Review of the Commission's
telecommunications regulations, the Commission initiated a reexamination
of section 22.942, the cellular cross-interest rule.[^163] The cellular
cross-interest rule limits the ability of parties to have equity or
other interests in cellular carriers on different channel blocks in a
single geographic area.[^164] The Commission decided to eliminate the
cellular cross-interest rule in Metropolitan Statistical Areas (MSAs) in
recognition that the cellular carriers in these areas no longer enjoy
significant first-mover advantages. The Commission decided to retain the
cellular cross-interest rule in Rural Service Areas (RSAs), where the
cellular incumbents generally continue to dominate. The Commission
stated that it would reassess the continued need for the cellular
cross-interest rule in RSAs during the 2002 biennial review. Petitions
for Reconsideration were filed challenging the Commission's retention of
the cellular cross-interest rule in RSAs and remain pending.

Comments

[Section 22.911(b) -- Alternative CGSA determinations]{.underline}.
Commnet argues that we should remove as obsolete section 22.911(b) from
the Commission's rules,[^165] which allows carriers to provide either
drive tests or alternative calculation methodology in order to show that
a particular cell's 32 dBu contour is different from that calculated by
the standard service area boundary (SAB) formula found in section
22.911(a). Commnet argues that the rule permits carriers to claim a
larger CGSA than is actually being served. Commnet argues that there may
have been a legitimate reason to allow an alternative CGSA calculation
method when the rule was first put into place, perhaps because, at the
time the rule went into effect, the Commission would soon be lifting the
freeze upon unserved area applications, and there would not have been
sufficient time for carriers to engage in drive tests prior to the first
waves of Phase I unserved area applications.[^166]

Commnet argues that there is now no longer a reason to permit
alternative CGSA showings other than in cases of actual drive test data
because the Phase I unserved area process is now largely inapplicable.
Commnet asserts that it has identified over a dozen large rural areas
that are completely unserved by any reliable signal from the licensee,
and that these areas could be served by another carrier but for the
licensee's use of alternative CGSA showings. Commnet states that it
conducted a drive test in an area in Wyoming for which the incumbent
carrier had submitted an alternative CGSA calculation. Commnet asserts
that, if granted, the alternative showing would have permitted the
incumbent carrier to warehouse spectrum over a large area, even though
the drive test indicated that there was no reliable signal beyond the
area calculated by the standard formula.[^167]

RCA opposes Commnet's proposal to limit alternative CGSA determinations
to those derived pursuant to actual drive tests. RCA argues that drive
testing is so costly and time consuming that Commnet's proposal, even if
limited to a complete one-time drive test, would effectively remove the
use of alternative CGSA determinations. RCA states that the newest
modeling software is greatly improved, and argues that rather than
eliminate the use of predictive studies, consideration should be given
to the accuracy of the newest modeling methods, so that they are
credited accordingly.[^168]

[Section 22.911(d) -- digital control/pilot channels]{.underline}.
Commnet asserts that carriers with digital cellular facilities are
setting their control/pilot channels at an unacceptably high effective
radiated power (ERP), which causes a digital-capable handset to "lock"
onto the involved control/pilot channel even if that digital carrier
does not have a voice channel with the adequate signal strength to
process the call. Commnet argues that the offending carrier blocks
traffic, because virtually all dual-mode handsets lock onto a digital
control/pilot signal if one is detected, without regard to the existence
of a more powerful analog control/pilot signal, even where the digital
base station is too far away to process the call. Commnet asserts that,
in the case of one of its managed sites, a person using a dual-mode
CDMA/analog handset will be unable to access the Commnet affiliate's
system due to the CDMA control/pilot channel coming from the neighboring
carrier's cell site. Because the neighboring carrier's voice channels
are too weak to handle the calls, Commnet asserts that the area has
become a dead spot for those using dual-mode CDMA/analog phones.[^169]

Commnet argues that such incidences pose public safety problems. Commnet
argues that the presence of an offending digital control/pilot channel
will cause handsets to lock onto the digital control/pilot channel
rather than onto a stronger analog signal, thereby preventing an
emergency call from going through. Accordingly, Commnet requests that
the Commission clarify that a carrier operating in a digital format must
regulate the strength of its control/pilot signals, including, if
necessary, turning the control/pilot signal to a lower power than the
voice channels.[^170]

[Sections 22.919 and 22.941]{.underline}. CTIA argues that section
22.919[^171] should be clarified to allow carriers to use alternatives
to Electronic Serial Numbers (ESNs), or, in the alternative, eliminate
the provision as there is no equivalent requirement for broadband
PCS.[^172] CTIA requests that the Commission transfer the management of
cellular system identification numbers (SIDs) and amend section
22.941[^173] accordingly. These rule sections, which were the subject of
CTIA's petition for rulemaking, were eliminated in the *Cellular
Biennial Review First Report and Order*.[^174]

[Sections 22.917(b) and 24.934(b) -- Emission masks]{.underline}. After
reviewing the Commission's Year 2000 *Cellular Biennial Review Orders*,
Lucent believes that further modifications to the Commission's rules
regarding emissions limits are necessary.[^175] Lucent states that the
evolution to third generation systems will enhance the growth of spread
spectrum technology through the continued deployment of CDMA2000 and the
planned use of Universal Mobile Telecommunications Systems (UMTS).
Lucent believes that emissions from either CDMA2000 or UMTS spread
spectrum systems into the 1 MHz band immediately outside and adjacent to
the frequency block will be similar, and that the emission limitations
should not discriminate between these spectrum technologies. Lucent
argues that the measurement procedures for emissions in sections
22.917(b) and 24.238(b), as modified in the Year 2000 Biennial Review,
will subject carriers that employ UMTS to more stringent requirements
than carriers that deploy CDMA2000.[^176]

Lucent states that, consistent with the requirement that the power of
any emission outside of authorized operating frequency ranges must be
attenuated below the transmitting power (P) by a factor of at least 43 +
10 log(P), a CDMA2000 system would be allowed emissions of -13 dBm in a
12.5 KHz band (one percent of the CDMA2000 carrier band width of 1.25
MHz) within the 1 MHz band immediately adjacent to the frequency block,
but a UMTS system would be required to meet the -13 dBm objective in 50
KHz (one percent of the UMTS carrier band width of 5 MHz). Lucent
asserts that this reflects a requirement that is approximately 6dB more
stringent for UMTS emissions. Lucent argues that, because the two
systems present similar types of interference to any victim system in
the immediately adjacent 1 MHz, the emissions requirement should be the
same. Lucent further argues that because a resolution bandwidth of 12.5
kHz is currently allowed and is appropriate for the 1.25 MHz CDMA
system, it should also be appropriate for the wider bandwidth UMTS
system as well.[^177]

Lucent proposes that section 22.917(b) and section 24.238(b),
respectively, should read:

> § 22.917 (b) -- "*Measurement procedure.* Compliance with these
> provisions is based on the use of measurement instrumentation
> employing a resolution bandwidth of 100 kHz or greater. **However, in
> the 1 MHz bands immediately outside and adjacent to the frequency
> block a resolution bandwidth of either 12.5 KHz or one percent of the
> emission bandwidth of the fundamental emission of the transmitter may
> be employed.** A narrower resolution bandwidth is permitted in all
> cases to improve measurement accuracy provided the measured power is
> integrated over the full required measurement bandwidth (*i.e.* 100
> kHz or 1 percent of emission bandwidth, as specified). The emission
> bandwidth is defined as the width of the signal between two points,
> one below the carrier center frequency and one above the carrier
> center frequency, outside of which all emissions are attenuated at
> least 26 dB below the transmitter power. which all emissions are
> attenuated at least 26 dB below the transmitter power." (Emphasis
> added.)
>
> § 24.938(b) -- "*Measurement procedure.* Compliance with these
> provisions is based on the use of measurement instrumentation
> employing a resolution bandwidth of 1 MHz or greater. **However, in
> the 1 MHz bands immediately outside and adjacent to the frequency
> block a resolution bandwidth of either 12.5 KHz or one percent of the
> emission bandwidth of the fundamental emission of the transmitter may
> be employed.** A narrower resolution bandwidth is permitted in all
> cases to improve measurement accuracy provided the measured power is
> integrated over the full required measurement bandwidth (*i.e.* 1 MHz
> or 1 percent of emission bandwidth, as specified). The emission
> bandwidth is defined as the width of the signal between two points,
> one below the carrier center frequency and one above the carrier
> center frequency, outside of which all emissions are attenuated at
> least 26 dB below the transmitter power." (Emphasis added.)

Lucent states that the proposed change will not affect narrow band
systems such as TDMA and GSM. Lucent states that in the case of TDMA,
one percent of the transmit carrier bandwidth would be 300 Hz, and, for
GSM, one percent of the transmit carrier bandwidth would be 2 KHz.[^178]

[Section 22.942 -- Cellular cross-interest]{.underline}. Dobson et. al
request that the cellular cross-interest rule should be eliminated as
applied to cellular licenses in RSAs. The carriers argue that the
rationale for applying the cellular cross-interest rule in RSAs, but not
MSAs, did not accurately reflect the state of competition at the time of
the Commission's decision or the impact of the rule in specific
geographic areas.[^179] The carriers attach a copy of their pending
Petition for Reconsideration challenging the decision in the *Spectrum
Aggregation Limits Order*.

CTIA requests that the Commission eliminate the cellular cross-interest
rule for RSAs as it has done for MSAs. CTIA argues that a separate rural
cross-interest rule is unnecessary, since the case-by-case competitive
analysis applied to all other CMRS transfers will protect the public
interest.[^180]

[Section 22.953 -- Content and form of application]{.underline}.
Although CTIA applauds Commission efforts in streamlining the licensing
process for wireless carriers and establishing the Universal Licensing
System (ULS), CTIA argues that the Commission has overlooked certain
regulations such as section 22.953,[^181] which requires carriers to
file both full-sized maps and reduced maps with minor modifications,
that are inconsistent with the policies of ULS implementation.[^182]

Recommendation

With regard specifically to section 22.942, staff notes that the issues
raised concerning the cellular cross-interest rule are within the scope
of review of the reconsideration pending before the Commission with
regard to its *Spectrum Aggregation Limits Order.* Staff recommends that
the comments of Dobson et al. and CTIA regarding section 22.942 be
incorporated into the Commission's pending reconsideration proceeding.

The remaining Part 22 rules commented upon by parties in this proceeding
govern licensing in the cellular service and are technical and
operational in nature. Specifically, these rules are concerned with
licensing procedures, set technical and operational standards, and
protect against interference among Part 22 cellular licensees as well
licensees in adjacent services. As such, the need and purposes for these
rules are not affected by competitive developments that guide our
Section 11 analysis. Accordingly, we do not find that these Part 22
rules are "no longer necessary in the public interest as the result of
meaningful economic competition between providers of such
\[telecommunications\] service."

While staff generally determines that the Part 22, subpart H rules
remain necessary in the public interest, it nonetheless also concludes
that certain modifications of these rules may be warranted in the public
interest for reasons other than those related to competitive
developments that fall within the scope of section 11 review. In this
regard, we discuss the comments and our recommendations below.

[Section 22.911(b) -- Alternative CGSA determinations]{.underline}. The
Commission adopted the existing formula for determining the CGSAs of
cellular systems in 1992.[^183] In that proceeding, commenters asked the
Commission to allow alternative coverage showings to provide for certain
situations in which terrain and other unique circumstances would cause
the formula to calculate a CGSA that differed significantly from the
area of actual service. In adopting the alternative CGSA determinations,
however, the Commission noted that it did not envision routinely
determining the boundaries of CGSAs on the basis of alternative
showings, and stated that it would permit alternative CGSA showings only
when the change to the CGSA is substantial (plus or minus 20%) and
justified by unique or unusual circumstances, or where the standard
formula is clearly inapplicable.

In light of the Commission's careful review of each alternate CGSA
filing, the staff does not agree with Commnet's argument that
substantial areas being claimed as being with carriers' CGSAs are
actually not being served. Moreover, Commnet attacks the permissible
methodology of determining an alternative CGSA; it is not arguing under
section 11 that the rule provision allowing alternative CGSA
determinations is no longer necessary in the public interest.
Accordingly, the staff concludes that section 22.911(b) in its current
form remains necessary in the public interest and recommends that
modification or repeal is not warranted.

[Section 22.911(d) -- Digital control/pilot channels]{.underline}.
Commnet's request that the Commission add a provision to section 22.911
that digital operators must regulate the signal strength of
control/pilot channels is outside the scope of a Section 11 review.
Here, Commnet does not seek the removal of an outdated rule; it instead
requests additional regulation.

[Sections 22.917(b) and 24.934(b) -- Emission masks]{.underline}. In the
*Cellular Biennial Review First Report and Order*, the Commission
amended sections 22.917 and 24.934, which prescribe emission masks
limiting both in-band and out-of-band radio frequency emissions. In that
proceeding, the Commission noted that, in the Wireless Communications
Service (WCS), licensees are permitted the flexibility to operate
transmitters on frequencies closer to the edge of their authorized
spectrum than full compliance with the Commission's out-of-band emission
limits would normally permit if the carriers determine that different
limits are appropriate. Because the Commission seeks to ensure
regulatory uniformity where possible, sections 22.917 and 24.934 were
amended in order to give cellular and PCS licensees the same flexibility
as WCS operators regarding emissions limits.

In its comments, Lucent asserts that sections 22.917 and 24.934 as
modified result in a stricter limit to one type of spread spectrum
technology as opposed to another. The staff concludes that this request
is outside of the scope of a section 11 review. Lucent does not argue
that the underlying purpose of the rules (to provide an adequate measure
of interference protection to other licensees) no longer exists or is
not necessary in the public interest as a result of competitive
developments. Instead, Lucent seeks to gain more technical flexibility
for a specific technology.

Further, the staff notes that the issues raised by Lucent with regard to
these rules is within the scope of review of a reconsideration of the
*Cellular Biennial Review First Report and Order*. Staff recommends that
Lucent's comments regarding sections 22.917 and 24.934 be treated as a
petition for reconsideration in that proceeding.

[Section 22.953 -- Content and form of application]{.underline}. Section
22.953 requires that cellular unserved area applicants provide a
full-size map and a reduced map in their initial applications as well as
in modifications in which the applicant is seeking a change to existing
CGSA boundaries. CTIA argues that requiring both full-size maps and
reduced maps is inconsistent with the policies of ULS implementation. It
is not entirely clear what CTIA is arguing. It may be that CTIA objects
to the requirement to file the full-size maps (which cannot be uploaded
into ULS and must be paper-filed) in addition to reduced maps (which can
be uploaded), or that it objects to requiring the filing of maps at all
for minor modifications. In either case, however, the staff concludes
that these requirements generally remain necessary. Due to the
site-based nature of cellular service, maps are necessary to determine
the location of the CGSA the applicant is serving or is proposing to
serve. Although in most cases the Commission can process applications
using only reduced maps, in certain situations, full-size maps are the
only accurate means to determine where cellular systems are situated in
relation to each other.

To the extent, however, that the filing of a full-size map in every
unserved area application may be overly burdensome for cellular
carriers/applicants, the staff concludes that section 22.953 in its
current form may no longer be necessary in the public interest and
recommends that the Commission institute a proceeding that would either:
(1) amend the rule to require the filing of full-size maps only upon
Commission request; or (2) modify the requirement to enable applicants
to provide the requisite information through a more efficient/less
costly method.

part 22, Subpart I -- Offshore Radiotelephone Service

Description

Part 22, subpart I[^184] governs the licensing and operation of offshore
radiotelephone stations. The Offshore Radiotelephone Service allows CMRS
providers to use conventional duplex analog technology to provide
telephone service to subscribers located on (or in helicopters en route
to) oil exploration and production platforms in the Gulf of Mexico.

Purpose

The purpose of the subpart I rules is to establish basic rules and
procedures for the licensing and operation of offshore radiotelephone
stations.

Analysis

Status of Competition

There are several competitive alternatives to Offshore Radiotelephone
service in the Gulf. Two cellular companies currently operate in the
Gulf of Mexico Service Area (GMSA), and some SMR service providers also
operate there on a site-by-site basis. The Commission is also
considering licensing in the Gulf in several other spectrum bands,
including PCS and the 700 MHz band.[^185]

Advantages

The subpart I rules provide a clear, predictable structure for the
assignment and use of Offshore Radio spectrum.

Disadvantages

The subpart I rules impose limited administrative and technical burdens
that are inherent in the licensing process and necessary for compliance
with technical and operational rules.

Recent Efforts

See Part 22 -- Public Mobile Services "Recent Efforts" discussion,
*supra.*

Comments

No comments were filed with respect to this rule part.

Recommendation

The Part 22, subpart I rules are procedural, technical, and operational
in nature. These rules are concerned with licensing procedures, set
technical and operational standards, and protect against interference
among Part 22 offshore radiotelephone licensees as well licensees in
adjacent services. As such, the need and purposes for these rules are
not directly affected by competitive developments that guide our Section
11 analysis. Accordingly, we do not find that these Part 22 rules are
"no longer necessary in the public interest as the result of meaningful
economic competition between providers of such \[telecommunications\]
service."

Although the Bureau received no comments on these rules, staff believes
that certain modifications of these rules may be warranted in the public
interest for reasons other than those related to competitive
developments that fall outside the scope of section 11 review.
Accordingly, staff recommends that the Commission initiate a proceeding
to review these rules to determine whether any of them should be
modified or eliminated.

part 22, Subpart J -- Required New Capabilities Pursuant to the
Communications Assistance for Law Enforcement Act (CALEA)

Description

The Communications Assistance for Law Enforcement Act (CALEA) was
enacted by Congress to establish procedures for law enforcement to
obtain authorized access to wireless and wireline communications or
call-identifying information where such information is needed for law
enforcement purposes. [^186] Part 22, subpart J[^187] contains technical
standards and capabilities for cellular carriers to ensure that
communications and call-identifying information will be accessible to
law enforcement, as required by section 103 of CALEA.[^188] These rules
were adopted in 1999.[^189] The Commission has adopted parallel
requirements and standards for broadband PCS licensees in Part 24,
subpart J[^190] and for wireline telecommunications carriers in Part 64,
subpart W.[^191]

Purpose

The purpose of the CALEA rules is to ensure that law enforcement,
pursuant to court order or other lawful authorization, will have
reasonable access to wireless and wireline communications or
call-identifying information where such information is needed for law
enforcement purposes.

Comments

No comments were filed with respect to this rule subpart.

Analysis

While CALEA is a communications-specific statute codified in Title 47,
it does not fall within the Communications Act of 1934 as amended. As
such, the CALEA rules are not part of the Commission's section 11
biennial review.[^192]

Part 24 -- Personal Communications Services (PCS)

Description

Part 24 contains licensing, technical, operational, and auction rules
for broadband and narrowband Personal Communications Services
(PCS).[^193] The rules in this part: (1) define permissible
communications, terms, and definitions relating to PCS licenses; (2)
specify application and licensing requirements, including eligibility,
term of license, and renewal procedures; (3) establish the frequencies
available to PCS licensees; (4) establish operational parameters,
including technical standards and limits on operation (*e.g.*, antenna
height, transmitter power) to prevent harmful interference; (5) set
forth rules for narrowband and broadband PCS licensees, including
minimum coverage requirements; and (6) set forth application procedures
and competitive bidding rules for the auction and award of PCS licenses.

In addition, Part 24 contains requirements applicable to PCS under the
Communications Assistance for Law Enforcement Act (CALEA).[^194]
Specifically, these rules set forth certain capability standards
applicable to broadband PCS telecommunications carriers in order to
ensure that, when properly authorized, law enforcement has access to
communications or call-identifying information.

Part 24 is organized into ten subparts:

A.  General Information

B.  Applications and Licenses

C.  Technical Standards

D.  Narrowband PCS

E.  Broadband PCS

F.  Competitive Bidding Procedures for Narrowband PCS

G.  Interim Application, Licensing and Processing Rules for Narrowband
    PCS

H.  Competitive Bidding Procedures for Broadband PCS

I.  Interim Application, Licensing and Processing Rules for Broadband
    PCS

J.  Required New Capabilities Pursuant to the Communications Assistance
    for Law Enforcement Act (CALEA)

The Part 24 rules were initially adopted in 1993,[^195] and were
modified on reconsideration in 1994.[^196] In 2000, the Commission
issued an order further revising certain aspects of the Part 24
narrowband PCS rules.[^197] The CALEA rules were adopted in a separate
proceeding.[^198] In the *Competitive Bidding Conforming Edits Order*,
the Commission significantly modified the narrowband and broadband PCS
competitive bidding rules and eliminated several of those rules in order
to bring them into conformance with the Commission's Part 1 rules.[^199]

Purpose

The purposes of the Part 24 rules are to establish basic ground rules
for assignment of PCS spectrum, ensure efficient spectrum use by PCS
licensees, and prevent interference. In addition, Part 24 contains rules
that define eligibility for the PCS entrepreneurs' blocks and for
"designated entity" (*i.e.*, small business) status within these blocks.
The purpose of these provisions is to implement the objectives of
section 309(j)(3) of the Communications Act[^200] to ensure that the
distribution of PCS licenses is not excessively concentrated, and that
small businesses, rural telephone companies, and businesses owned by
women and minorities have opportunities to become PCS licensees.

Analysis

Status of Competition

Narrowband PCS providers primarily offer traditional one-way paging
services as well as two-way advanced messaging services. The Commission
estimates there were 18 million paging units in service as of
mid-2001.[^201] They compete with a rapidly proliferating array of other
messaging and mobile data services, including e-mail access and wireless
Internet services.[^202] During 2001, paging carriers endured financial
difficulties as a result of the continuing decline in demand for
traditional one-way paging services, which has long constituted the bulk
of these carriers' revenue, as well as intense competition from other
providers of more advanced mobile data services.[^203] Paging carriers
have continued to compete, however, by upgrading their networks and by
offering a variety of advanced two-way messaging services.[^204]

Broadband PCS providers offer mobile telephony service in competition
with cellular and some SMR services. As described in the *Seventh CMRS
Competition Report*, broadband PCS providers have contributed to a
significant increase in competition in the mobile telephony market since
the first broadband PCS providers were licensed seven years ago.[^205]
In addition, in the last couple of years there have been significant
developments on the road to deploying 3G data networks on broadband PCS
(along with similar developments on cellular and some SMR
networks).[^206] However, the mobile telephony or data networks on
broadband PCS have not yet achieved the same level of geographic
coverage or subscribership as cellular, particularly in smaller
markets.[^207]

Advantages

The Part 24 rules provide the basic regulatory structure necessary for
the orderly assignment and use of PCS spectrum, while otherwise
affording licensees substantial flexibility to determine what
technology, type of service, and business strategy they will use. The
Part 24 competitive bidding rules promote efficient licensing of PCS
spectrum to those entities that value it the most.

Disadvantages

The Part 24 rules impose limited administrative and technical burdens
that are inherent in the licensing process and necessary for compliance
with technical and operational rules. Certain of the licensing and
technical rules differ somewhat from those for other similar CMRS
services, such that there may be opportunity for further harmonization
in the interest of creating additional flexibility and regulatory
symmetry.

Recent Efforts

As part of its 2000 Biennial Review, the Commission recently amended the
out-of-band emission limit rules in Part 24 (section 24.238), along with
the corresponding rules for cellular services in Part 22 (section
22.917), in order to harmonize them with the greater flexibility
afforded in the emission limit rules set forth in Part 27 and applicable
to Wireless Communications Service (WCS).[^208] This action standardized
the requirements for minimum resolution bandwidth of the measuring
instrument as well as various procedures related to emission limits,
thus producing a more level playing field that allows affected services
to compete with each other on more equal terms. It also allows licensees
flexibility to use alternative limits when all affected parties agree to
the alternative.

Comments

[General Part 24 licensing issues and technical rules]{.underline}*.*
CTIA and Sprint request that section 24.16 of Subpart B, which covers
renewal procedures for PCS licenses, be modified to be more consistent
with other renewal processes, including the two-step process for
resolving renewal challenges that is set forth in the Part 22 rules
pertaining to cellular licenses.[^209]

RadioSoft requests that, to the extent possible, the Commission
standardize its technical rules across the various services -- including
the Part 24 services -- to ensure that technical algorithms in the rules
conform to those employed in the software that the Commission uses to
process applications.[^210] RadioSoft asserts that the rules specifying
how average terrain is to be calculated vary slightly among the
different services -- both wireless and those broadcast services within
the regulatory purview of the Media Bureau -- that the Commission
regulates.[^211]

[Section 24.103(b) -- Construction requirements for narrowband
PCS]{.underline}*.* Weblink proposes modifications to the construction
requirements for regional narrowband PCS licensees. Specifically, it
proposes that section 24.103(b) be amended to provide regional
narrowband PCS licensees the option of satisfying the construction
requirement for nationwide narrowband PCS licensees in the event that a
regional licensee holds each of the five contiguous regional
authorizations on the same frequency.[^212] Weblink argues that a
carrier holding each of the regional authorizations on the same channel
in effect has a *de facto* "nationwide" authorization and that requiring
compliance with a stricter set of construction benchmarks established
for regional licensees would be inefficient.[^213]

[Section 24.203(b) -- Construction requirements for broadband
PCS]{.underline}*.* Commnet seeks revision of the provisions relating to
the construction requirements for 10 MHz and 15 MHz licensees, as set
forth in section 24.203(b) of the rules. In particular, Commnet requests
that the rule simply state that each licensee must make a showing of
"substantial service," and that service to at least one quarter of the
market's population or one quarter of the market's land area would
satisfy a "safe harbor" for meeting this showing.[^214]

[Section 24.232(a) -- Power limitations]{.underline}. Powerwave requests
that the Commission review and revise what it asserts to be overly
restrictive power limitations set forth in section 24.232(a).
Specifically, Powerwave asserts that the current rule unfairly penalizes
the use of multi-carrier power amplifiers because it limits power on a
transmitter-by-transmitter basis, rather than a signal-by-signal basis.
Consequently, according to Powerwave, a multicarrier power amplifier,
which is a transmitter that may amplify as many as two dozen individual
signals (sometimes called "carriers"), is limited to the same maximum
power as a single-carrier amplifier.[^215]

[Section 24.238 -- Emission limits]{.underline}. Finally, Lucent
contends that the Commission should further revise and clarify the
emission limitations set forth in section 24.238. In particular, Lucent
seeks further relaxation of the out-of-band emission limits for wideband
CDMA emission types.[^216]

Recommendation

The Part 24 rules commented upon by parties in this proceeding concern
licensing rules and technical and operational rules, such as
interference-related issues among Part 24 licensees as well as licensees
in adjacent services. As such, the need and purposes for these rules are
not directly affected by competitive developments that guide our Section
11 analysis. Accordingly, we do not find that these Part 24 rules are
"no longer necessary in the public interest as the result of meaningful
economic competition between providers of such \[telecommunications\]
service."

While staff generally determines that the Part 24 rules remain necessary
in the public interest, it nonetheless also concludes that certain
modifications of these rules may be in the public interest for reasons
other than those related to competitive developments that fall within
the scope of Section 11 review. In this regard, we discuss the comments
and our recommendations below.

[General Part 24 licensing rules and technical
requirements]{.underline}. WTB staff concludes section 24.16 in its
current form may no longer be necessary in the public interest, and
recommends that the Commission institute a proceeding to consider
modifying the rule as proposed by CTIA and Sprint. Staff also concludes
that the HAAT rules (including section 24.53) and other similar rules
(*e.g*.*,* section 22.159) are not always consistent throughout the
wireless radio regulations and that these rules in their current forms
may no longer be necessary in the public interest. Accordingly, staff
recommends that the Commission institute a proceeding to consider
RadioSoft's comments and determine whether to revise these rules.

[Section 24.103(b) -- Construction requirements for narrowband
PCS]{.underline}*.* Staff does not agree with Weblink's suggestion that
the construction requirements for regional narrowband licensees, set
forth in section 24.103(b), should be modified at this time. Weblink
does not contend that the need for these requirements has been altered
by competitive developments, but instead seeks reconsideration of the
service rules adopted for narrowband PCS licensees. The present
allocation scheme for narrowband PCS licenses -- providing for licensing
on regional, MTA, and nationwide bases -- promotes the public interest
by accommodating the spectrum needs and business plans of a wide variety
of service providers, including small service providers, thereby leading
to the rapid provision of services to the public.[^217] By licensing
spectrum in different market sizes and by establishing varying
construction requirements, the Commission ensures that narrowband PCS
construction occurs on all these levels. Accordingly, staff believes
that section 24.103(b) in its current form remains necessary in the
public interest, and recommends that modification of the rule is not
warranted.

[Section 24.203(b) -- Construction requirements for broadband
PCS]{.underline}*.* The staff concludes that modification of section
24.203(b) along the lines proposed by Commnet is not necessary. Commnet
does not contend that this rule in its current form has become outmoded
or obsolete because of competitive developments. Moreover, the change to
the rule proposed by Commnet would not change the substantive effect of
the rule in any way; under either formulation, licensees have the same
alternatives for meeting their build-out requirements. Accordingly,
staff believes that section 24.203(b) in its current form remains
necessary in the public interest, and recommends that modification of
the rule is not warranted.

[Section 24.232(a) -- Power limitations]{.underline}. As for Powerwave's
request that the Commission revise section 24.232(a), the staff
concludes that the rule should be modified in order to regulate PCS base
station transmissions in a technologically-neutral manner. Specifically,
by limiting PCS base station power "per transmitter," the current rule
may hinder the development and deployment of technologies (*e.g.*, the
multi-carrier amplifiers described by Powerwave) that combine signals in
innovative ways yet do not increase the potential for harmful
interference to neighboring systems. A technologically-neutral approach
would provide for the efficient and effective deployment of advanced
telecommunications services, regardless of how signals are combined at a
PCS base station. Accordingly, staff believes that section 24.232(a) in
its current form may no longer be necessary in the public interest, and
recommends that the Commission institute a proceeding to consider
revising the rule.

[Section 24.238 -- Emission limits]{.underline}. Finally, with regard to
Lucent's request for further revisions and clarifications regarding the
emission limit rules set forth in section 24.238, as we noted above the
Commission recently amended the out-of-band emission limit rule in
section 24.238 as part of its 2000 Biennial Review proceeding for
cellular services.[^218] Staff notes that the issues raised by Lucent
with regard to this rule is within the scope of review of a
reconsideration of the *Cellular Biennial Review First Report and
Order*.[^219] Accordingly, staff recommends that Lucent's comments
regarding sections 24.238 be submitted as part of a petition for
reconsideration in that proceeding.

Part 27 -- Miscellaneous Wireless Communications Services

Description

Part 27[^220] contains licensing, technical, and operational rules for
the "miscellaneous wireless communications services" (WCS). The rules in
this part: (1) define WCS license areas; (2) specify the spectrum bands
available to WCS licensees; (3) permit flexible use for all services
within a given spectrum band's allocation;[^221] (4) establish license
terms and other general licensing requirements; (5) establish minimum
technical standards and limits on operation (*e.g.,* antenna height,
power limits) to prevent interference; and (6) set forth application
procedures and competitive bidding rules for the auction and award of
WCS licenses.

Part 27 is divided into seven sub-parts:

A -- General Information

B -- Applications and Licenses

C -- Technical Standards

> D -- Competitive Bidding Procedures for the 2305-2320 MHz and
> 2345-2360 MHz Bands

E -- Application, Licensing and Processing Rules for WCS

> F -- Competitive Bidding Procedures for the 746-764 MHz and 776-794
> MHz Bands
>
> G -- Guard Band Managers

Purpose

The purposes of the Part 27 rules are to establish initial definitions
to assign licenses at auction, ensure efficient spectrum use by
licensees, and prevent interference. Part 27 establishes a general
framework of rules to set forth an optimal initial scope of licenses for
spectrum allocated to flexible use. The Part 27 service rule framework
is designed to promote the efficient use of spectrum and permit service
providers to select the technologies and services that the market may
demand.

Part 27 also contains rules that define eligibility for small business
status within the spectrum bands available to WCS licensees. These
provisions implement the objectives of section 309(j)(3) of the Act that
the distribution of licenses not be excessively concentrated, and that
small businesses, rural telephone companies, and businesses owned by
women and minorities have opportunities to participate in the provision
of WCS and other wireless services.

Analysis

Status of Competition

Competition within the miscellaneous WCS is beginning to develop as Part
27 services are licensed. Because there is considerable range in the
frequency bands allocated for flexible use and licensing under Part 27,
the status of competition varies depending on the frequencies and their
feasibility of use to offer services within a particular market.
Accordingly, WCS licensees may not necessarily compete with one another
in the same market and will more than likely use their flexibility to
offer services that compete with existing fixed, mobile, and/or
broadcast services depending on market demand at any particular point in
time.

To date, the Commission has only held auctions and issued licenses for
spectrum in the 2.3 GHz frequency band and guard band portions of the
Upper 700 MHz Band. The providers of WCS in 2.3 GHz frequency bands have
mainly focused on the offering of fixed wireless voice and data services
in conjunction or competition with fixed wireless uses in several
spectrum bands, including Multipoint Distribution Service (MDS),[^222]
unlicensed spectrum bands, 24 GHz, Local Multipoint Distribution Service
(LMDS), and 39 GHz. Based on recent annual reports from 700 MHz guard
band managers, there has not yet been significant leasing or use of the
guard band frequencies in the Upper 700 MHz Band.

Advantages

The Part 27 rules provide a clearly defined umbrella structure for the
assignment of spectrum to various services with maximum practicable
flexibility. The service rules rely on a market-based approach that
affords flexibility to licensees to decide on development and deployment
of new services and products to consumers. This framework ensures that
licensees are not constrained to a single regulatory status nor use of
this spectrum and, therefore, can offer a mix of services and
technologies to their customers.

Disadvantages

The Part 27 rules impose administrative burdens inherent to the
licensing process and necessary for compliance with technical and
operational rules.

Recent Efforts

On November 7, 2002, the Commission allocated 90 megahertz of spectrum
that can be used to provide advanced wireless services (AWS), including
services commonly referred to as "Third Generation" or "IMT-2000." In a
companion *Notice of Proposed Rulemaking* in WT Docket No. 02-353, the
Commission proposed Part 27 licensing and service rules that would
permit these bands to be used for any service consistent with the bands'
fixed and mobile allocations, including the provision of AWS. The
Commission sought comment on Part 27 licensing, technical, and
operational rules to provide a flexible regulatory framework that
includes basic licensing requirements and sets out certain technical
requirements to prevent interference.

In February 2002, the Commission adopted a *Second Report and Order and
Further Notice of Proposed Rulemaking* in WT Docket No. 00-32,
allocating 50 megahertz of spectrum in the 4940-4990 MHz band (4.9 GHz
band) for fixed and mobile services (except aeronautical mobile service)
and designating the band for use in support of public safety.[^223] The
Commission sought comment *inter alia* on the possibility of regulating
all uses of the band pursuant to Part 27 of the Commission's Rules.

In the *Competitive Bidding Conforming Edits Order*, the Wireless
Telecommunications Bureau modified or eliminated certain Part 27 rules
pertaining to competitive bidding in the WCS to conform with the general
competitive bidding rules set forth in Part 1 of the Commission's
rules.[^224] The Bureau also modified or eliminated rules pertaining to
competitive bidding in the 700 MHz band to conform with the general
competitive bidding rules set forth in Part 1 of the Commission's
rules.[^225] In May 2002, the Commission adopted service and competitive
bidding rules to govern the licensing of 27 MHz of electromagnetic
spectrum, including the 1390-1395 MHz, 1432-1435 MHz, 1670-1675 MHz and
2385-2390 MHz bands which were recently reallocated for non-Government
use.[^226]

Comments

No comments were filed with respect to this rule part.

Recommendation

The Part 27 rules are concerned with licensing procedures and technical
and operational standards, which protect against interference among Part
27 licensees as well licensees in adjacent services. As such, the need
and purposes for these rules are not directly affected by competitive
developments in the services that guide our Section 11 analysis.
Accordingly, we do not find that these Part 27 rules are "no longer
necessary in the public interest as the result of meaningful economic
competition between providers of such \[telecommunications\] service."

Part 80, Subparts J and Y -- Public Coast Stations and Competitive
Bidding Procedures

Description

Part 80 contains licensing, technical, and operational rules for radio
stations in the maritime services, which provide for the distress,
operational, and personal communications needs of vessels at sea and on
inland waterways. [^227] Maritime frequencies are allocated
internationally by geographic region and type of communication in order
to facilitate interoperable radio communications among vessels of all
nations and stations on land worldwide. Land stations in the maritime
services are the links between vessels at sea and activities on shore.
They are spread throughout the coastal and inland areas of the United
States to carry radio signals and messages to and from ships.

Staff's review of Part 80 in this report focuses on the rules affecting
public coast stations (subparts J and Y), which are unique in the
Maritime Services in that they are used for commercial applications, are
licensed on a geographic, exclusive-use basis, and are subject to
licensing by the Commission's competitive bidding procedures. Public
coast stations are CMRS providers that allow ships to send and receive
messages and to interconnect with the public switched telephone network.
The remainder of the Part 80 rules do not apply to telecommunications
carriers.

Purpose

The Part 80 rules establish the mechanism for allocating licenses and
ensure spectrum use that provides public coast licensees with maximum
flexibility while concurrently respecting the unique nature of maritime
spectrum and preventing interference.

Analysis

Status of Competition

While competition in the CMRS industry as a whole has increased,
competition is generally less robust in the public coast services. This
is due in part to the unique nature of maritime communications and to
the predominant safety-of-life communications responsibilities required
of licensees. Other CMRS services (*e.g.* cellular and PCS) can serve as
substitutes for commercial ship-to-shore communications, particularly
for vessels operating near the coast and on inland waterways. A single
large-scale public coast operator (MariTel) is the predominant VHF Band
Public Coast Stations (VPC) licensee, as many small and independent
licensees have left the business. Competition is stronger in Automated
Maritime Telecommunications System Stations (AMTS) than on the high seas
bands.

Advantages

The subpart J rules promote the safety of life and property at sea,
while concurrently allowing licensees to compete as CMRS providers. The
rules allow partitioning and disaggregation, and permit VPC licensees to
use capacity that is not needed for maritime service to provide other
types of services. Subpart J consists of three distinct radio services:
VPC, AMTS, and High Seas Public Coast (which operates on Low Frequency
(.100-.160 MHz band), Middle Frequency (.405-.525 MHz and 2 MHz bands),
High Frequency (4, 6, 8, 12, 16, 18/19, 22, and 25/26 MHz bands)).

The subpart Y competitive bidding rules allow the efficient licensing of
spectrum and are likely to result in award of licenses to those entities
that value the spectrum the most and will use it most efficiently. These
rules also enable the Commission to recover a portion of the value of
the spectrum for the benefit of the public.

Disadvantages

Because of the unique characteristics of the maritime services, public
coast station licensees are subject to responsibilities that other CMRS
providers do not face. The international allocation of maritime
frequencies and the associated statutes, treaties, and agreements limit
the flexibility of use of maritime frequencies. There are additional
administrative burdens associated with the competitive bidding of public
coast station licenses, including filing and reporting requirements, as
well as the cost of maintaining staff and electronic resources to
participate in auctions.

Recent Efforts

In the 2002 *Maritime Second Memorandum Opinion and Order and Fifth
Report and Order*, the Commission converted AMTS to geographic
licensing.[^228] In a separate docket, the Commission has proposed to
consolidate, revise, and streamline the Part 80 rules to address new
international maritime requirements, improve the operational ability of
all users of marine radios, and remove unnecessary or duplicative
requirements.[^229] The Commission expects to address the additional
issues raised in the Further Notice of Proposed Rulemaking.

In the *Competitive Bidding Conforming Edits Order*, the Wireless
Telecommunications Bureau modified or eliminated certain Part 80 rules
pertaining to competitive bidding in the maritime communications
services to conform with the general competitive bidding rules set forth
in Part 1 of the Commission's rules.[^230]

Comments

API recommends that the Commission expand section 80.13(c) to VHF marine
radio operations on or in the vicinity of offshore platforms.[^231] This
provision exempts individual licensing requirements for ship stations
that: (1) do not travel to foreign ports; (2) do not engage in
international communications; and (3) are not required to carry a radio
by any statute, treaty, or agreement to which the United States is
signatory.[^232] API also recommends that the Commission amend its rules
to allow marine radio operators engaged in activities on offshore
platforms, currently limited to the frequencies set forth in section
80.373(f), to utilize the frequencies available to ship radio stations
pursuant to section 80.871(d).[^233] API adds that, if the Commission
adopts its recommendation, the Commission should not make marine radio
stations engaged in activities on or around offshore platforms subject
to additional regulatory burdens such as the watch requirements set
forth under section 80.1123.[^234]

LMS Wireless recommends that the Commission replace AMTS with a new Part
90 service for use in an "Advanced-Technology Land Infrastructure and
Safety Service (ATLIS)."[^235] It also recommends that the Commission
remove all VPC restrictions relating to maritime traffic and clarify the
rules on what inland VPC licenses (and non-inland VPC licenses, when
used solely to serve land areas) are permitted to do.[^236]

Globe Wireless recommends several revisions regarding the Part 80 rules:
elimination of sections 80.141(c)(1) and (2), 80.203(b)(3), 80.355,
80.357, and 80.802, modifications to sections 80.203(l), 80.205(a),
80.207(d), 80.363(a), 80.363(a)(1) and (2), 80.371(a) and (b), 80.375
and 80.836, and reevaluation of section 80.373.[^237]

Recommendation

The Part 80 rules commented upon by parties in this proceeding concern
licensing, technical, and operational rules, such as technical and
operational standards and interference-related issues among Part 80
licensees as well as licensees in adjacent services. As such, the need
and purposes for these rules are not directly affected by competitive
developments that guide our Section 11 analysis. Accordingly, we do not
find that these Part 80 rules are "no longer necessary in the public
interest as the result of meaningful economic competition between
providers of such \[telecommunications\] service."

While staff generally determines that the Part 80 rules generally remain
necessary in the public interest, it nonetheless also concludes that
certain modifications of these rules may be in the public interest for
reasons other than those related to competitive developments, that fall
within the scope of section 11 review. In this regard, we discuss the
comments and our recommendations below. Staff believes that the specific
rules commented upon by API remain necessary in the public interest in
their current forms, and accordingly recommends that modification or
repeal is not warranted. Staff does not believe that adoption of API's
recommendations is advisable due to the inherent difference between
offshore platforms and ship stations. Staff notes that offshore
platforms are fixed in location and would require both domestic and
international coordination, while ship stations do not operate from a
fixed location.

Because LMS Wireless' comments raise reallocation questions and other
issues involving the creation of new rules that are more in the nature
of a petition for rulemaking or waiver request than a review to modify
or eliminate existing rules, staff concludes that these comments are
beyond the scope of this Biennial Review proceeding and recommends that
they be considered in the various dockets as appropriate.

As regards Globe's *Ex Parte* comments, staff notes that the Commission
has issued a Notice of Proposed Rule Making regarding Part 80 rules in
WT Docket No. 00-48 and believes that rule changes proposed by Globe are
within the scope of the review contemplated by that Notice.[^238] WTB
staff believes that several of these rules in their current form may not
be necessary in the public interest and recommends that the Commission
consider revising these rules in its pending proceeding. The staff also
recommends that the Biennial Review *Ex Parte* comments of Globe
regarding Part 80 rules be incorporated into the Commission's pending
proceeding.

part 90 -- Private Land Mobile Radio Services

Description

Part 90 contains licensing, technical, and operational rules for the
group of mobile services historically described as "private land mobile
radio services" (PLMRS).[^239] Services regulated under this rule part
include commercial services such as Specialized Mobile Radio (SMR) and
private carrier paging (PCP), non-commercial services such as public
safety, and services that are used by utilities, transportation
companies, and other businesses for both commercial and private internal
purposes.

With the passage of the Omnibus Budget Reconciliation Act of 1993
(OBRA),[^240] Congress reclassified some PLMRS (*e.g.*, 800 MHz and 900
MHz SMR, PCP, and some 220 MHz and Business Radio services) as CMRS and
required providers in these services to be regulated as common
carriers.[^241] The regulatory status of non-CMRS Part 90 services were
unaffected by OBRA, and these services continue to be classified as
private services.

Part 90 contains 22 subparts. Some of these subparts apply generally to
all Part 90 licensees, while others establish rules for specific
services.[^242] In general, the rules in this part: (1) specify the
frequency bands in which each service operates; (2) define the service
area of licenses in each frequency band; (3) establish minimum
construction or coverage requirements for licensees; and (4) define
technical limits on operation (*e.g.*, antenna height, transmitter
power) to prevent interference. For certain CMRS services, Part 90 also
contains subparts dealing with the auction and award of licenses,[^243]
although the Commission eliminated many of the service-specific
licensing rules in Part 90 as part of its consolidation, in 1998, of all
wireless licensing rules into Part 1 in the *Universal Licensing*
proceeding.[^244]

The analysis of Part 90 in this report focuses on those subparts that
affect CMRS providers:

Subpart C -- Industrial/Business Pool

Subpart G -- Applications and Authorizations

Subpart H -- Policies Governing Assignment of Frequencies

Subpart I - General Technical Standards

Subpart L - Authorizations in 470-512 MHz Band

Subparts M, X - Intelligent Transportation Systems Radio Service/Auction
Rules

Subpart N -- Operating Requirements

Subpart P - Paging Operations

Subpart R -- Regulations Governing the Licensing and Use of Frequencies
in the 764-776 and 794-806 MHz Bands

Subparts S, U, V - 800/900 MHz SMR Service/Auction Rules

> Subparts T, W - 220 MHz Service/Auction Rules

Purpose

The purposes of the Part 90 rules are to establish basic ground rules
for assignment of spectrum in Part 90 services, to ensure efficient
spectrum use by licensees, and to prevent interference.

Analysis

Status of Competition

As detailed in the *Seventh CMRS Competition Report*, Part 90 CMRS
providers operate in an environment that is marked by significant and
increasing competition in mobile telephony, paging/messaging, and mobile
data, which has resulted in innovation, lower prices for customers, and
increased diversity of service offerings.[^245]

Advantages

The Part 90 rules provide a clear, predictable structure for the
assignment and use of spectrum. In the Part 90 frequency bands that are
licensed exclusively to CMRS providers (*e.g.*, SMR), auction rules
promote efficient licensing of spectrum to those entities that value it
the most. In other bands, site-specific licensing and frequency
coordination are used to promote efficient spectrum use.

Disadvantages

The Part 90 rules impose limited administrative and technical burdens
that are inherent to the licensing process and necessary for compliance
with technical and operational rules.

Recent Efforts

The Commission has made numerous changes to Part 90 rules in the
recently adopted *Report and Order* in the Part 90 Biennial Regulatory
Review proceeding.[^246] Also, in March, 2002, the Commission issued a
*Notice of Proposed Rulemaking* seeking comment on and proposals for how
best to remedy interference to 800 MHz public safety systems, including
addressing various possible means of reconfiguring the 800 MHz band to
eliminate or reduce interference.[^247]

In the *Competitive Bidding Conforming Edits Order,* the Wireless
Telecommunications Bureau modified or eliminated certain Part 90 rules
pertaining to competitive bidding in the 220-222 MHz SMR service, 800
MHz SMR service, 900 MHz SMR service,

220 MHz Radio service, and Location and Monitoring service to conform
with the general competitive bidding rules set forth in Part 1 of the
Commission's rules.[^248]

In May 2002, the Commission adopted service and competitive bidding
rules to govern the licensing of 27 MHz of electromagnetic spectrum,
including Part 90 bands (216-220 MHz, 1427-1429.5 MHz, and 1429.5-1432
MHz) which were recently reallocated for non-Government use.[^249]

Comments

Comments filed regarding Part 90 rules are addressed in specific Part 90
subparts.

**Recommendation**

Staff recommendations with respect to Part 90 rule sections are set
forth in the discussions of specific Part 90 subparts.

part 90, subpart c -- industrial/business radio pool

Description

Part 90, subpart C[^250] sets forth the regulations governing the
licensing and operations of the radio communications of entities engaged
in certain commercial activities, engaged in clergy activities,
operating educational, philanthropic, or ecclesiastical institutions, or
operating hospitals, clinics, or medical associations.

Purpose

The purpose of the subpart C rules is to establish the rules governing
eligibility, frequency availability, licensing, permissible
communications, and system requirements for licensees in the
industrial/business radio pool.

Analysis

Status of Competition

See Part 90 -- Private Land Mobile Radio Services "Status of
Competition" discussion, *supra*.

Advantages

The subpart C rules provide a clear structure for the assignment and use
of spectrum to assist eligible entities in the operation of their
day-to-day activities.

Disadvantages

The subpart C rules impose limited administrative and technical burdens
inherent to the licensing process and necessary for compliance with
technical and operational rules.

Recent Efforts

In 2001, the Commission initiated WT Docket No. 01-146 (Amendment of
Part 90 of the Commission's Rules and Policies for Applications and
Licensing of Low Operations in the Private Land Mobile 450-470 Band) and
sought comment on revisions to the Commission's rules and policies
governing low-power operations in the 450-470 MHz band.[^251]

Comments

API asks the Commission to consider amending 90.35(b)(3) to dedicate a
portion of channels in the 460-470 MHz band for data-primary use.[^252]
PCIA asserts that, because transmitters on data systems typically do not
have "push to talk" modes, the Commission must develop rules delineating
sharing standards or whether to establish data exclusive bands.[^253]

Recommendation

The Part 90, subpart C rules commented upon by parties in this
proceeding concern frequencies that are limited to communications
designed to aid in the pursuit of the eligible entities' primary line of
business, and not in the provision of commercial service to consumers.
As such, the need and purposes for these rules are not directly affected
by competitive developments that guide our Section 11 analysis.
Accordingly, we do not find that these Part 90 rules are "no longer
necessary in the public interest as the result of meaningful economic
competition between providers of such \[telecommunications\] service."

While staff generally determines that the Part 90, subpart C rules
remain necessary in the public interest, it nonetheless also concludes
that certain modifications of these rules may be in the public interest
for reasons other than those related to competitive developments that
fall within the scope of Section 11 review. In this regard, we discuss
the comments and our recommendations below.

Staff notes that the Commission has issued a Notice of Proposed Rule
Making in WT Docket No. 01-146 regarding Part 90 rules affecting
channels in the 460-470 MHz band and believes that the rule changes
proposed by API and PCIA are within the scope of the review contemplated
by that Notice. Based on the comments filed in this Biennial Review
proceeding, the staff believes that the rule in its current form may not
be necessary in the public interest and recommends that the Commission
consider revising the rule in its pending proceeding. The staff also
recommends that the Biennial Review comments of API and PCIA regarding
these rules be incorporated into the Commission's pending proceeding.

part 90, Subpart G -- Applications and authorizations

Description

Part 90, subpart G[^254] supplements subpart F of Part 1 of the
Commission's Rules which establishes the requirements and conditions
under which commercial and private radio stations may be licensed and
used in the Wireless Telecommunications Services.

In general, the rules in subpart G: (1) establish application
requirements; (2) define the license term; (3) establish licensing
procedures; and (4) define certain permissible preauthorization
activities (*e.g*, conditional authorization, and construction prior to
grant of an application.)

Purpose

The purposes of the subpart G rules are to establish basic rules for the
preparation, submission, and evaluation of applications to operate in
the Wireless Telecommunications Services.

Analysis

Status of Competition

See Part 90 -- Private Land Mobile Radio Services "Status of
Competition" discussion, *supra*.

Advantages

The subpart G rules provide a clear, predictable structure for the
preparation, submission and evaluation of applications.

Disadvantages

The subpart G rules impose limited administrative and technical burdens
that are inherent to the licensing process and necessary for compliance
with technical and operational rules.

Recent Efforts

See Part 90 -- Private Land Mobile Radio Services "Recent Efforts"
discussion, *supra*.

Comments

AMTA recommends that the Commission amend section 90.159 to extend
conditional temporary licensing authority (CTA) to coordinated systems
in the 470-512 MHz band.[^255] In 1989, the Commission amended section
90.159 to allow applicants for new land mobile stations in the shared
frequency bands below 470 MHz to commence operations under a CTA upon
completing the applicable frequency coordination process and filing
their application with the Commission.[^256] In making this
determination, the Commission specifically excluded the 470-512 MHz
band, which is licensed on an exclusive basis, from eligibility for
CTAs.[^257]

Recommendation

The Part 90, subpart G rules commented upon by parties in this
proceeding concern procedural rules. As such, the need and purposes for
these rules are not directly affected by competitive developments that
guide our Section 11 analysis. Accordingly, we do not find that these
Part 90 rules are "no longer necessary in the public interest as the
result of meaningful economic competition between providers of such
\[telecommunications\] service."

In addition, staff determines generally that the Part 90, subpart G
rules remain necessary in the public interest, and recommends that
modification or repeal of these rules is not warranted. Staff does not
recommend that the Commission consider adopting AMTA's proposal.

The Commission allows CTAs on shared PLMR frequencies because CTAs are
intended to allow operation on a conditional basis in situations in
which application for proposed radio stations raise no special issues
and are routinely granted.[^258] AMTA argues that the Commission has
continued to allow the use of CTAs in the frequencies below 470 MHz,
even after making substantive changes to the operational rules to the
band which increased the complexity of the licensing process. However,
the staff believes that the Commission should continue to be
conservative in implementing conditional licensing in bands licensed on
an exclusive use basis to minimize the likelihood of interference to
incumbent licensees on these bands.[^259] Accordingly, staff believes
that section 90.159 is necessary in the public interest and recommends
that modification or repeal is not warranted.

part 90, Subpart H -- policies governing assignment of frequencies

Description

Part 90, subpart H provides detailed information concerning the polices
under which the Commission assigns frequencies for the use of Part 90
licensees, frequency coordination requirements and procedures, and
certain procedures under which licensees may cooperatively share radio
facilities.[^260]

Purpose

The purposes of the subpart H rules are to establish basic ground rules
for assignment of spectrum in Part 90, including requirements regarding
frequency coordination and cooperative sharing of spectrum by various
licensees. Frequency coordination is performed by a private-sector
entity or organization certified to recommend the most appropriate
frequency for use by applicants and licensees in the private land mobile
radio services (PLMRS). This helps to ensure that the Commission
maximizes the efficient use of available spectrum, which is generally
shared spectrum, for the benefit of all members of the public while
mitigating the demand for Commission resources posed by the increasingly
complex and growing numbers of applications for PLMRS frequencies.

Analysis

Status of Competition

See Part 90 -- Private Land Mobile Radio Services "Recent Efforts"
discussion, *supra*.

Advantages

The subpart H rules provide a clear, predictable structure for the
assignment and use of spectrum. Site-specific licensing and frequency
coordination are used to promote efficient spectrum use.

Disadvantages

The subpart H rules impose limited administrative burdens, for example,
frequency coordination, that are inherent to the licensing process and
necessary to ensure efficient spectrum allocation and use, as well as
compliance with technical and operational rules.

Recent Efforts

In a recent *Notice of Proposed Rulemaking*,[^261] the Commission sought
comment on whether to modify the existing frequency coordination
procedures for the Public Safety Pool below 470 MHz by expanding
competitive frequency coordination.

Comments

[Section 90.175 -- General Category channels]{.underline}. CTIA seeks
revision or elimination of certain Commission rules, including rule
section 90.175 set forth in subpart H. CTIA requests that the Commission
exempt applications filed with respect to 800 MHz General Category
frequencies listed in section 90.615 from the 90.175 frequency
coordination requirements.[^262]

[Section 90.175 -- Transmitter site and/or frequency
deletions]{.underline}. CTIA also requests that the Commission clarify
section 90.175(i) not to require frequency coordination for applications
requesting only the deletion of a frequency.[^263] AMTA supports not
applying the frequency coordination requirement to frequency deletion,
noting that the coordinator was not actually performing a frequency
coordination function.[^264]

[Section 90.175 -- Shared 929 MHz Private Carrier Paging
channels]{.underline}. AAPC requests that the Commission eliminate the
requirement that licensees of shared Private Carrier Paging (PCP)
channels under Part 90 of the rules obtain prior frequency coordination
of their applications from a recognized frequency coordinator.[^265]
APCO disagrees with AAPC's position that the prior frequency
coordination be dispensed with for PCP carriers filing shared channel
applications.[^266] APCO notes that the purpose of the rule is to ensure
that potential licensees do not cause harmful interference to co-channel
or adjacent channel licensees in the same area, which is of particular
concern to Part 90 public safety operations, and that frequency
coordination is necessary in shared channel environments.

[Section 90.187 -- Frequency coordination for certain trunked
services]{.underline}. API asks the Commission to simplify frequency
coordination requirements by amending section 90.187(b)(2)(i) to ensure
that a contour analysis is required whenever a proposed system would
overlap any part of a bandwidth being employed by an existing
system.[^267] API notes that section 90.35(b)(2)(iii) requires
applicants for frequencies shared by the former Power, Petroleum,
Railroad, Manufacturers, Forest Products, Telephone Maintenance, Motor
Carrier, and/or Automobile Emergency Radio Services whose proposed
service contours overlap the service contour of an existing station on
one of these frequencies to obtain either written concurrence of the
industry specific coordinator or the licensee of the existing
station.[^268] API further notes that the Commission approved a
frequency coordinator consensus methodology for adjacent channel
service/interference values in these legacy radio service
frequencies.[^269] API contends that frequency coordinators are
interpreting section 90.187(b)(2)(i) in a manner inconsistent with
section 90.35(b)(2)(iii) and asks the Commission to harmonize the two
provisions.

PCIA argues that if the Commission modifies this rule it should
grandfather all systems coordinated under the previous interpretation of
this rule.[^270]

Recommendation

The Part 90, subpart H rules commented upon by parties in this
proceeding concern land mobile use of the Part 90 frequencies requiring
frequency coordination that primarily involves shared frequencies for
primarily shared frequencies for private internal communications uses by
commercial businesses, industrial and public safety entities. As such,
the need and purposes for these rules are not directly affected by
competitive developments that guide our Section 11 analysis.
Accordingly, we do not find that these Part 90 rules are "no longer
necessary in the public interest as the result of meaningful economic
competition between providers of such \[telecommunications\] service."

While staff generally determines that the Part 90, subpart H rules
remain necessary in the public interest, it nonetheless also concludes
that certain modifications of these rules may be warranted in the public
interest for reasons other than those related to competitive
developments that fall within the scope of section 11 review. In this
regard, we discuss the comments and our recommendations below.

[Section 90.175 -- General Category channels]{.underline}. Staff finds
that the frequency coordination requirements of section 90.175
provisions may no longer be necessary in the public interest for certain
800 MHz General Category frequencies, and accordingly recommends that
the Commission initiate a proceeding to consider modifying the rule.
Specifically, staff recommends that the Commission consider whether to
eliminate the frequency coordination requirement for auctioned licenses
and for new facilities that do not expand the applicable interference
contour. Staff notes, however, that the possible conversion of existing
site-by-site licensed general category frequencies to a different mode
of operation (*e.g.*, from conventional to trunked use), and the
potential shared use environment of the frequencies, makes elimination
of the coordination requirement a concern. Frequency coordination
remains beneficial in a shared use environment to ensure efficient use
and prevent interference.

[Section 90.175 -- Transmitter site and/or frequency
deletions]{.underline}. Staff also believes that the section 90.175
frequency coordination provisions that pertain to transmitter site
and/or frequency deletions may no longer be necessary in the public
interest, and recommends that the Commission consider modifying section
90.175 to exclude applications seeking to delete either a transmitter
site, a frequency, or both, from the frequency coordination requirement.
This would reduce the processing burden on both applicants and frequency
coordinators in cases in which the frequency coordination function is
unnecessary. However, to ensure that frequency coordinators have access
to updated information concerning such site and/or frequency deletions,
we recommend that, if the rule is modified as proposed above, applicants
should be required to notify the applicable frequency coordinator of the
deletion.

[Section 90.175 -- Shared 929 MHz private carrier paging
channels]{.underline}. Staff finds that the section 90.175 provisions
pertaining to shared 929 MHz private carrier paging channels remain
necessary in the public interest in their current form, and recommends
that their modification or elimination is not warranted. Because the
specified frequencies are shared and potentially subject to
overcrowding, the specific knowledge of the frequency coordinator
regarding the applicants and actual use of the paging channels in a
given market, and the paging industry as a whole, facilitates
recommendations to the Commission of the best frequencies available.
This helps eliminate interference among licensees in a shared channel
environment, including possible interference to public safety
operations, and promotes efficient channel usage.

[Section 90.187 -- Frequency coordination for certain trunked
services]{.underline}. Staff believes that section 90.187 in its current
form remains necessary in the public interest, and recommends that
modification or repeal is not warranted. Specifically, staff does not
recommend that the Commission consider adopting API's recommendation.
Staff notes that while coordinators are not required to use the
consensus methodology to satisfy section 90.187, if a coordinator uses
another method it has the burden to show that the method conforms to
generally accepted engineering practice. Moreover, staff notes that, if
it receives complaints that a given frequency coordination is not in
accordance with section 90.187 the Bureau has the ability to take
appropriate action including orders of modification.

part 90, Subpart I --general technical standards

Description

Part 90, subpart I establishes the general technical requirements for
the use of frequencies and equipment in the Part 90 radio
services.[^271] In general, the rules in subpart I: (1) establish
equipment certification procedures; and (2) set standards for frequency
tolerance, modulation, emissions, power, and bandwidths.

Purpose

The purpose of the subpart I rules is to establish basic technical rules
governing operation of radio stations in the Wireless Telecommunications
Services.

Analysis

Status of Competition

See Part 90 -- Private Land Mobile Radio Services "Recent Efforts"
discussion, *supra*.

Advantages

The subpart I rules provide a clear structure for technical operations
in the part 90 frequencies.

Disadvantages

The subpart I rules impose limited technical burdens intended to ensure
compliance with operational rules and necessary for compliance with
technical and operational rules.

Recent Efforts

None.

Comments

[Section 90.205 -- "Safe harbor" table]{.underline}. AMTA asks the
Commission to eliminate or amend the "Safe Harbor" table contained in
section 90.205 which defines the permissible power and antenna heights
for systems in the bands below 470 MHz in order to accommodate superior
approaches to increased spectrum efficiency. AMTA claims the table
unnecessarily restricts the operations of newer systems without
producing a demonstrable improvement in channel reuse or spectrum
efficiency.[^272]

[Section 90.210 -- Emission mask "G".]{.underline} Motorola seeks
revision of rule section 90.210, which describes several emission masks
for land mobile radio transmitters authorized to operate in the Private
Land Mobile Radio services. Emission masks are emission-limit
specifications which are schedules of attenuation as a function of
displacement frequency. Specifically, Motorola seeks a loosening of
emission mask "G," as described in section 90.210. Motorola notes that
emission mask "G" described in this rule section was originally
developed for digitally modulated FM Transmitters not equipped with
low-pass filters, used for paging and encrypted voice services in a 25
kHz channel. Motorola asserts that, because the emission mask was
designed with a specific application in mind, it is more restrictive
than other emission masks in the land mobile services.[^273]

Recommendation

The Part 90, subpart I rules commented upon by parties in this
proceeding concern technical and procedural rules, such as
interference-related issues among Part 90 licensees as well as licensees
in adjacent services. As such, the need and purposes for these rules are
not directly affected by competitive developments that guide our Section
11 analysis. Accordingly, we do not find that these Part 90 rules are
"no longer necessary in the public interest as the result of meaningful
economic competition between providers of such \[telecommunications\]
service."

While staff generally determines that the Part 90, subpart I rules
remain necessary in the public interest, it nonetheless also concludes
that certain modifications of these rules may be warranted in the public
interest for reasons other than those related to competitive
developments that fall within the scope of section 11 review. In this
regard, we discuss the comments and our recommendations below.

[Section 90.205 -- "Safe harbor" table]{.underline}. Staff believes that
section 90.205 remains necessary in the public interest, and recommends
that modification or repeal is not warranted. Specifically, staff does
not recommend adopting AMTA's proposal. The Commission developed the
"Safe Harbor" table to maximize channel reuse by limiting transmitter
power and antenna heights.[^274] Staff believes that the "Safe Harbor"
table is an improvement over the prior system because it encourages
system engineers to maintain signal throughout the required service
area.

[Section 90.210 -- Emission mask "G"]{.underline}. Staff believes that
the emission mask "G" provision of section 90.210 in its current form
may no longer be necessary in the public interest, and recommends that
the Commission consider adopting Motorola's request, which could
potentially enhance design flexibility without diminishing interference
protection.

part 90, Subpart L -- Regulations for Authorization and Use of
Frequencies in the 470-512 MHz Band

Description

Part 90, subpart L governs the authorization and use of the 470-512 MHz
band by both commercial and private land mobile stations.[^275] This
band is shared with television channels 14-20 and certain Part 22 radio
services.[^276] In the *Second Report and Order* in the Refarming
proceeding, the Commission authorized centralized trunking in the
470-512 MHz band if a licensee has an exclusive service area or obtains
consent from all co-channel and adjacent channel licensees and frequency
coordination is obtained. [^277] In 1997, the Commission created a
General Access Pool to permit greater flexibility and foster more
effective and efficient use of the 470-512 MHz band. Under current
rules, all unassigned channels, including those that subsequently become
unassigned, are considered to be in the General Access Pool and are
available to all eligible licensees on a first-come, first-served basis.
If a channel is assigned in an urbanized area, however, subsequent
authorizations on that channel will only be granted to users from the
same category.[^278]

In general, the rules in subpart L: (1) specify the frequencies
available for assignment in the 470-512 MHz band; (2) define the
location of stations and service area of licenses in each frequency
block; (3) establish maximum loading requirements for licensees; and (4)
define technical limits on operation (*e.g.*, antenna height,
transmitter power) to prevent interference. In accordance with these
rules, new applicants may apply for only one channel at a time.[^279]
Licensees are required to show that any assigned channels in this band
in a particular urbanized area are at full capacity before they can be
assigned additional 470-512 MHz channels in that area.[^280]

The rules in this subpart also specify the minimum allowable distance
between co-channel stations.[^281] For purposes of loading requirements,
licensees in the 470-512 MHz band are divided into two groups: the
Public Safety Pool and the Industrial/Business Pool.[^282] After loading
a channel to full capacity, a licensee may apply for another
channel.[^283] Current licensees may use existing loading to satisfy
this requirement and apply for more than one channel at one time.
Licensees that are operating above full capacity may use those units to
qualify for additional channels.

Purpose

The purposes of the subpart L rules are to establish basic ground rules
for assignment of spectrum in the 470-512 MHz service, to ensure
efficient spectrum use by licensees, and to prevent interference with
television channels 14-20.

Analysis

Status of Competition

Because land mobile use of the 470-512 MHz band is limited by the
sharing of the band with broadcast channels 14-20 and certain Part 22
services, service in the band has been narrowly geared to industrial and
public safety use in a limited number of urban locations. Demand for
these channels to provide commercial services to consumers has been
small.

Advantages

The subpart L rules provide a clear, predictable structure for the
assignment and use of spectrum. Site-specific licensing and frequency
coordination are used to promote efficient spectrum use.

Disadvantages

The subpart L rules impose limited administrative and technical burdens
that are inherent to the licensing process and necessary for compliance
with technical and operational rules. Because the band is shared with
television broadcast stations, the technical burden imposed on licensees
to prevent interference with co-channel operations is somewhat greater
than in other bands allocated exclusively to wireless services.

Recent Efforts

This band has been affected by a number of broadly applicable rulemaking
actions, such as the ULS proceeding that was initiated in conjunction
with the 1998 Biennial Regulatory Review.

Comments

AMTA recommends that the Commission amend section 90.159 to extend
conditional temporary licensing authority (CTA) to coordinated systems
in the 470-512 MHz band.[^284]

Recommendation

See the recommendation in Part 90, subpart G, *supra*.

part 90, Subpart M -- Intelligent Transportation Systems Radio Service
(ITS)

Description

Part 90, subpart M contains licensing, technical, and operational rules
for the Intelligent Transportation Systems (ITS) radio service. ITS
radio service consists of two sub-categories: the Location and
Monitoring Service (LMS) and the Dedicated Short Range Communications
Service (DSRCS).[^285]

In 1995, the Commission adopted service rules to provide for the
establishment of a new LMS to encompass the old Automatic Vehicle
Monitoring Service that was initiated in 1974. The Commission adopted
rules for the licensing of LMS, primarily in the 902-928 MHz Band. In
addition, the Commission determined that the definition of LMS would
also include certain operations below 512 MHz. Unlike other LMS
operations, however, LMS systems below 512 MHz may neither offer service
to the public nor provide service on a commercial basis.[^286]

LMS systems are used for such functions as vehicle tracking and
location, automated toll collection, and other communications functions
related to vehicles. In general, the subpart M rules: (1) specify the
frequency bands in which LMS licensees operate; (2) define the service
area of LMS licenses in each frequency band; (3) establish minimum
construction or coverage requirements for LMS licensees; and (4) define
technical limits on operation (*e.g.*, antenna height, transmitter
power) to prevent interference.[^287] The rules also establish
limitations on LMS systems' interconnection with the public switched
network and set forth a number of technical requirements intended to
ensure successful coexistence of all the services authorized to operate
in the band.

In June 1998, the Transportation Equity Act for the 21^st^ Century[^288]
required the Commission to consider the spectrum needs of intelligent
transportation systems, in particular for dedicated, short-range
communications. In October 1999, the Commission allocated seventy-five
megahertz of spectrum for use by DSRCS systems operating in the ITS
Radio Service.[^289] The Commission amended subpart M by adding
technical rules establishing power, emission, and frequency stability
limits for DSRCS operations but deferred consideration of DSRCS
licensing and service rules and spectrum channelization plans to a later
proceeding because the standards addressing those matters were still
being developed by the U.S. Department of Transportation (DOT). In July
2002, the Intelligent Transportation Society of America (ITS America),
the Federal Advisory Committee to DOT, submitted recommendations to the
Commission concerning the development of the licensing and service
rules. On November 15, 2002, the Commission released its *DSRCS Notice
of Proposed Rulemaking* seeking comment on a variety of issues
concerning the development of the licensing and service rules, including
the recommendations of ITS America.[^290]

Purpose

The purpose of Part 90, subpart M is to integrate radio-based
technologies into the nation's transportation infrastructure. In
developing the nation's intelligent transportation systems, these rules
provide a regulatory framework that allows entities to deploy
radio-based devices and systems effectively to enhance safety of life
and protection of property on the nation's highways, railways and other
transportation corridors, without causing harmful interference to other
radio services.

Analysis

Status of Competition

Although the number of LMS licensees has increased since the Commission
completed its auction of multilateration LMS licenses in March 1999,
there has not been significant deployment of these services in the
902-928 MHz band. The services originally envisioned for LMS, such as
vehicular tracking, tend to be niche services, and competition within
LMS is more limited than in other types of wireless services. The level
of competition from LMS-type service providers in other bands has
increased since 1995, when there were few providers of location service.
Today, consumers and businesses alike have an array of service providers
from which to obtain location service, including satellite-based service
providers Qualcomm (OmniTracs service) and ORBCOMM ("Little LEO"
service). General Motors, moreover, offers its OnStar location service
as an option in many of its new automobile models and now has more than
2 million U.S. customers.[^291]

The DSRCS service is not yet operational.

Advantages

The Part 90, subpart M rules on LMS provide users with a well-defined
structure for the assignment and use of this spectrum. The existing
technical standards and restrictions help ensure that any LMS systems
are utilized primarily to meet the Commission's stated purpose of
advancing ITS as a location service and not as a general messaging or
interconnected voice or data service. Many of these rules minimize the
potential for harmful interference to other important users of the
902-928 MHz band. (The Commission has not yet adopted licensing and
service rules for the DSRCS service.)

Disadvantages

The subpart M rules impose limited administrative and technical burdens
that are inherent to the LMS licensing process and necessary for
compliance with technical and operational rules. (As noted above, the
Commission has not yet adopted licensing and service rules for the DSRCS
service.)

Recent Efforts

The Wireless Telecommunications Bureau recently released a Public Notice
seeking comment on a Petition for Rulemaking filed by Progeny LMS, LLC
(Progeny) on March 5, 2002 regarding certain provisions of Part 90,
subpart M's rules on multilateration LMS.[^292] On November 15, 2002,
the Commission released its *DSCRS Notice of Proposed Rulemaking*
seeking comment on the licensing and service rules for the DSRCS radio
service.[^293]

Comments

LMS Wireless submitted reply comments regarding, *inter alia,* use of
the 902-928 MHz Band to support a new multiband Advanced-Technology Land
Infrastructure and Safety Service (ATLIS). LMS Wireless (or affiliated
parties) previously submitted comments in response to both the Public
Notice[^294] and the *DSRCS Notice of Proposed Rulemaking*[^295]
relating to the DSRCS service; those comments also supported a
nationwide multi-band service. The specific proposals rely on a White
Paper that was previously submitted to the Commission in various
dockets, including the recent docket involving the Commission's Spectrum
Policy Task Force.

Recommendation

Because LMS Wireless' comments raise reallocation questions and other
issues involving the creation of new rules that are more in the nature
of a petition for rulemaking or waiver request than a review to modify
or eliminate existing rules, staff concludes that these comments are
beyond the scope of this Biennial Review proceeding and recommends that
they be considered in the various dockets as appropriate.

In addition, the Part 90, subpart M rules concern procedural, technical,
and operational rules, such as licensing procedures and
interference-related issues among Part 90 licensees as well as licensees
in adjacent services. As such, the need and purposes for these rules are
not directly affected by competitive developments that guide our Section
11 analysis. Accordingly, we do not find that these Part 90 rules are
"no longer necessary in the public interest as the result of meaningful
economic competition between providers of such \[telecommunications\]
service."

Staff notes that the Commission is currently in the process of examining
the LMS service rules in the context of Progeny's Petition for
Rulemaking, and is currently evaluating issues relating to the licensing
and service rules for the DSRCS service in the context of the *DSRCS
Notice of Proposed Rulemaking* released on November 15, 2002.

part 90, subpart N -- operating requirements

Description

Part 90, subpart N sets forth general operating requirements for
stations operating Part 90 regulated radio stations.[^296]

Purpose

The purpose of the subpart N rules is to establish general rules
governing station operating procedures, points of communication,
permissible communications, methods of station identification, control
requirements, and station record keeping requirements for Part 90 radio
stations.

Analysis

Status of Competition

See Part 90 -- Private Land Mobile Radio Services "Recent Efforts"
discussion, *supra*.

Advantages

The subpart N rules provide a clear structure for the operation of part
90 regulated radio stations.

Disadvantages

The subpart N rules impose limited administrative and technical burdens
inherent to compliance with operational rules and necessary for
compliance with technical and operational rules.

Recent Efforts

The Commission reviewed subpart N as part of the recently concluded Part
90 Biennial Regulatory Review proceeding.[^297]

Comments

PCIA recommends that we eliminate section 90.419(b) for centralized
trunked systems. PCIA believes this section, which imposes secondary
status on communications between base stations on 450 MHz frequencies,
inhibits the ability of wide-area systems to permit inter-base station
communication and communication with operational fixed stations,
limiting wide-area dispatch.[^298]

Recommendation

The Part 90, subpart N rules commented upon by parties in this
proceeding concern technical and operational rules, such as technical
and operational standards and interference-related issues among Part 90
licensees as well as licensees in adjacent services. As such, the need
and purposes for these rules are not directly affected by competitive
developments that guide our Section 11 analysis. Accordingly, we do not
find that these Part 90 rules are "no longer necessary in the public
interest as the result of meaningful economic competition between
providers of such \[telecommunications\] service."

In addition, staff generally determines that the Part 90, subpart N
rules remain necessary in the public interest, and recommends that
modification or repeal of these rules is not warranted. Staff does not
support PCIA's recommendation regarding section 90.149(b). This rule is
intended to only allow base stations in the Industrial Business Pool and
certain base stations in the Public Safety pool to communicate with base
stations, operational fixed stations, or fixed receivers in certain
restricted circumstances involving *urgent* need to contact mobile
units.[^299] Staff believes sufficient fixed spectrum dedicated to
day-to-day operations such as those envisioned by PCIA exists without
eliminating this rule.[^300] Moreover, certain service specific
exceptions exist (*e.g.*, section 90.259 making fixed operations
co‑primary to land mobile on telemetry frequencies in the 217‑220 and
1427‑1432 MHz band).

Part 90, Subpart P Paging Operations in the 929 MHz Band

Description

Part 90, subpart P contains licensing, technical, and operational rules
for paging operations in the 929 MHz Band.[^301] This rule part includes
services such as commercial paging and private carrier paging (PCP).
Licensees may operate on exclusive channels or designated shared
channels on a CMRS or PMRS basis.

In general, the rules in this subpart (1) specify the exclusive channels
and shared channels; and (2) define technical limits on operation
(*e.g.*, antenna height, transmitter power) to prevent interference. For
paging operations on exclusive channels, the licensees are subject to
Part 22 of the Commission's rules regarding the Paging and
Radiotelephone Service.

The Commission has made significant changes to its Part 90, subpart P
rules in recent years. In the mid-1990s, the Commission converted the
authorization of stations in the 929 MHz Band from the original
site-by-site procedure to a geographic area licensing process. The
*Second Report and Order* established geographic area licensing for 929
MHz paging and adopted competitive bidding procedures.[^302] The *Third
Report and Order* changed the geographic area licensing of 929 MHz
paging from MTAs to MEAs, clarified that spectrum will automatically
revert to the geographic area licensee in all instances in which a
non-geographic area incumbent licensee permanently discontinues service,
and allowed geographic area licensees to partition their licenses and
disaggregate the spectrum.[^303] The Commission auctioned geographic
licenses for the exclusive channels in the 929 MHz band.[^304]
Furthermore, the Part 22 Rules regarding paging now apply to all 929 MHz
licensees on exclusive channels and, in 1999, the application filing
rules were moved from this subpart to Part 1 in connection with
implementation of electronic filing procedures and the Universal
Licensing System.

Purpose

The purposes of the Part 90, subpart P rules are to establish basic
ground rules for assignment and use of exclusive or shared channels in
the 929 MHz Band and to prevent interference.

Analysis

Status of Competition

As detailed in the *Seventh CMRS Competition Report*, Part 90 paging
providers operate in an environment that is marked by significant and
increasing competition in mobile telephony, paging/messaging, and mobile
data.[^305]

Advantages

The Part 90, subpart P rules provide a clear, predictable structure for
the assignment and use of spectrum. In Part 90, subpart P, frequency
bands that are licensed on an exclusive basis are subject to competitive
bidding. The shared channels are available to all eligible entities.

Disadvantages

The Part 90, subpart P rules impose limited administrative and technical
burdens that are inherent to the licensing process and necessary for
compliance with technical and operational rules.

Recent Efforts

In November 2001, the Commission eliminated interim licensing rules and
lifted the freeze on the filing of new applications for shared 929 MHz
frequencies by non-incumbent filers.[^306] As a result, any qualified
entity may submit applications for operation on the 929 MHz shared
paging frequencies, including commercial use. In December 2001, the
Commission completed Auction 40, and 182 bidders won 5323 licenses in
the lower paging bands and upper paging bands, including the
re-auctioning of previously unsold 929 MHz licenses.

Comments

There were no comments directly implicating a rule section contained in
subpart P; however, as discussed in subpart H, AAPC requests that the
Commission eliminate the section 90.175 frequency coordination
requirement for 929 MHz shared PCP applicants.

Recommendation

The Part 90, subpart P rules concern licensing, technical, and
operational rules, such as technical and operational standards and
interference-related issues among Part 90 licensees as well as licensees
in adjacent services. As such, the need and purposes for these rules are
not directly affected by competitive developments that guide our Section
11 analysis. Accordingly, we do not find that these Part 90 rules are
"no longer necessary in the public interest as the result of meaningful
economic competition between providers of such \[telecommunications\]
service."

For the reasons discussed in subpart H, staff believes that the section
90.175 provisions relating to 929 MHz shared PCP applicants remain
necessary in the public interest, and recommend that modification or
repeal is not warranted.

part 90, Subparts S, U, and V -- Regulations for Licensing and Use of
Frequencies in the 800 and 900 MHz Bands and Competitive Bidding
Procedures

Description

Subpart S contains licensing, technical, and operational rules for the
800 MHz and 900 MHz Specialized Mobile Radio (SMR) services, as well as
non-commercial services above 800 MHz, *i.e.*, public safety services
and services that are used by utilities, transportation companies, and
other businesses for internal purposes.[^307] With the passage of the
Omnibus Budget Reconciliation Act (OBRA), Congress reclassified 800 MHz
and 900 MHz SMR services as CMRS, and required all CMRS providers to be
regulated as common carriers.[^308]

In general, the rules in subpart S: (1) specify the frequency bands in
which each service operates; (2) define the service area of licenses in
each frequency band; (3) establish minimum construction or coverage
requirements for licensees; and (4) define technical limits on operation
(*e.g.*, antenna height, transmitter power) to prevent interference.
This subpart provides for geographic licensing of these bands.

Subparts U and V[^309] contain competitive bidding rules and procedures
for the 900 MHz SMR and 800 MHz SMR services, respectively. The rules in
these subparts: (1) identify the licenses to be sold by competitive
bidding; (2) establish the competitive bidding mechanisms to be used in
800 and 900 MHz SMR auctions; (3) establish application, disclosure, and
certification procedures for short- and long-form applications; (4)
specify down payment, withdrawal, and default mechanisms; (5) provide
definitions of gross revenues for designated entities and specify the
bidding credits for which designated entities qualify; and (6) provide
eligibility and technical requirements for partitioning and
disaggregation.

Purpose

The purposes of the subpart S rules are to establish basic ground rules
for the assignment of spectrum to the affected SMR and private wireless
licensees, to ensure efficient spectrum use by licensees, and to prevent
interference. The competitive bidding rules of subparts U and V ensure
access to new telecommunications offerings by ensuring that market
forces guide the allocation of licenses so that all customer segments
are served with the greatest economic efficiency. Additionally, the
designated entity provisions of the competitive bidding rules are
intended to provide opportunities for small businesses to participate in
the provision of telecommunications services.

Analysis

Status of Competition

As detailed in the *Seventh CMRS Competition Report*, Part 90 SMR
providers operate in an environment that is marked by significant and
increasing competition in mobile telephony, paging/messaging, and mobile
data.[^310] Some of the larger SMR carriers, particularly Nextel and
Southern, provide digital wide-area voice services that compete with
cellular and broadband PCS. Other SMR carriers provide more traditional
dispatch service on a local or regional basis. Although SMR channels
have been used primarily for voice communications, systems have also
been developed to carry data and facsimile services. Additionally, new
digital SMR technology is leading to the development of new features and
services, such as two-way acknowledgment paging, teleconferencing, and
voicemail.

Advantages

The subpart S rules provide a clear and predictable structure for the
assignment and use of SMR spectrum, and afford substantial flexibility
to licensees to choose the type of service they will provide based on
market demand. The subparts U and V auction rules promote efficient
licensing of SMR spectrum to those entities that value it the most.

Disadvantages

There continue to be differences between the licensing, technical, and
operational rules that apply to grandfathered site-based SMR licenses
and those that apply to geographic area licenses. This multiplicity of
rules is potentially burdensome to SMR licensees who have both
geographic and site-based systems, which may result in inconsistent
regulatory obligations (*e.g*., buildout requirements) for different
portions of their systems.

Recent Efforts

The SMR General Category auction (Auction No. 34) concluded on September
1, 2000, after 14 winning bidders purchased 1030 800-MHz General
Category licenses;[^311] the SMR lower band auction ended December 5,
2000, with 22 winning bidders obtaining 2800 800-MHz licenses (Lower 80
Channels);[^312] and a Multi-Radio Service auction (Auction 43)
consisting, in part, of previously unawarded General Category licenses
ended January 17, 2002, with 2 winning bidders obtaining 23 General
Category licenses.[^313]

Comments

[Sections 90.607(a), 90.621(b)(5), 90.629(e), 90.631(d) and (i),
90.635(a) and (c), 90.653, and 90.658]{.underline}. PCIA requests the
amendment or elimination of the following rules: (1) section 90.607(a),
which requires that applicants describe a planned mode of operation and
provide a statement regarding the eligibility of users on the system;
(2) section 90.631(d), which addresses increases in system capacity in
rural areas, but includes a definition of rural area to include former
"wait-list" areas; (3) section 90.635(a), which specifies power
limitations in suburban and urban areas; and (4) section 90.635(c),
which limits power for systems with an operational radius of less than
20 miles.[^314]

CTIA requests that the Commission: (1) amend section 90.621(b)(5)[^315]
not to require a construction certification from a licensee consenting
to co-channel system separation less than that required under section
90.621(b)(4);[^316] (2) eliminate as obsolete section 90.629(e),[^317]
which addresses SMR extended implementation periods and reporting
requirements; (3) eliminate as obsolete section 90.631(i),[^318] which
specifies time periods by which site-specific 900 MHz SMR systems must
meet certain loading requirements (4) eliminate as redundant section
90.653,[^319] which provides that there shall be no limit to the number
of systems authorized in a geographic area; and (5) eliminate as
obsolete section 90.658,[^320] which contains certain reporting
requirements for systems licensed before 1993.[^321] PCIA supports the
elimination of section 90.658.[^322]

Recommendation

The Part 90, subpart S rules commented upon by parties in this
proceeding are procedural, technical and operational in nature, and
ensure interference protection among SMR service licensees, as well as
non-commercial services above 800 MHz (*i.e.*, public safety and private
wireless services) licensees as well licensees in adjacent services. In
addition, the Part 90, subparts U and V rules contain competitive
bidding procedures for the 900 MHz and 800 MHz SMR services. As such,
the need and purposes for these rules are not directly affected by
competitive developments that guide our Section 11 analysis.
Accordingly, we do not find that these Part 90 rules are "no longer
necessary in the public interest as the result of meaningful economic
competition between providers of such \[telecommunications\] service."

While staff generally determines that the Part 90, subparts S, U, and V
rules remain necessary in the public interest, it nonetheless also
concludes that certain modifications of these rules may be warranted in
the public interest for reasons other than those related to competitive
developments that fall within the scope of section 11 review. In this
regard, we discuss the comments and our recommendations below.

[Sections 90.607(a), 90.629(e), 90.631(d) and (i), 90.635(a) and (c),
90.653, and 90.658]{.underline}. Because these particular rules
identified by commenters above may contain outdated or burdensome
requirements, may no longer serve a regulatory purpose, or are
inconsistent with the Commission's policies regarding flexible use of
spectrum, staff believes that these rules in their current forms may no
longer be necessary in the public interest. Staff recommends that the
Commission initiate a proceeding to consider whether to amend or
eliminate each of these rules.

[Section 90.621(b)(5)]{.underline}. Staff does not, however, recommend
that the Commission consider eliminating the Section 90.621(b)(5)[^323]
requirement that a certification of station construction and operation
be submitted by a licensee consenting to the short-spacing of its
system. Although staff recognizes that it may lead the Commission to
collect duplicative information in some situations, staff believes that
the rule remains necessary in the public interest and recommends that
elimination is not warranted. By requiring a certification that the
system of the concurring licensee is constructed and fully operational,
the rule serves as a safeguard against warehousing of spectrum by
licensees that have: (1) ceased operation or deconstructed and have not
informed the Commission of these actions; or (2) recently obtained an
authorization without an intent to use the channel(s), but rather to
sell short-space consent agreements to legitimate applicants. Without
the rule, a licensee without the intent to construct and operate could
receive compensation from a licensee seeking to short-space, while tying
up the channel during the one-year construction period. Accordingly,
staff finds that section 90.621(b)(5) in its current form remains
necessary in the public interest, and recommends that modification or
repeal is not warranted.

part 90, Subparts T and W -- Regulations for Licensing and Use of
Frequencies in the 220-222 MHz Band and Competitive Bidding Procedures

Description

Part 90, subpart T contains licensing, technical, and operational rules
for the 220-222 MHz (220 MHz) service.[^324] In general, the rules in
this part: (1) define the service area of 220 MHz licenses; (2) specify
the permissible operations for authorized systems; (3) specify the
frequencies available to 220 MHz licensees; (4) establish license terms;
(5) establish the minimum construction or coverage requirements for 220
MHz licensees; and (6) define technical limits on operation (*e.g.*,
antenna height, field strength) to prevent interference.

Part 90, subpart W contains competitive bidding rules and procedures for
commercial licenses in the 220 MHz service.[^325] The rules in this
subpart: (1) specify which 220 MHz licenses are eligible for competitive
bidding; (2) establish the competitive bidding mechanisms to be used in
220 MHz auctions; (3) establish application, disclosure, and
certification procedures for short- and long-form applications; and (4)
specify down payment, withdrawal, and default mechanisms.

In several orders, the Commission has taken steps to reduce regulatory
burdens and afford greater flexibility to 220 MHz licensees. For
example, the original 220 MHz rules required licensees to provide
two-way land mobile service on a primary basis, and allowed use of the
band for fixed services or for paging only on an "ancillary" basis. In
the 1997 *220 MHz Third Report and Order*, the Commission eliminated the
ancillary use limitation, thus allowing licensees to provide any or all
of these services on a co-primary basis. [^326] The Commission has also
adopted rules permitting partitioning and disaggregation of 220 MHz
licenses, and has eliminated the "40-mile rule" that previously limited
the number of site-based licenses that an individual licensee could hold
in a given geographic area.[^327] Finally, in 1998 the Commission
eliminated mandatory spectrum efficiency standards that had previously
been adopted for provision of voice and data over 220 MHz systems that
combined contiguous 5 kHz channels.[^328] The Commission concluded that
mandating technical standards was unnecessary because market forces
would spur efficient spectrum use, and that retaining mandatory
standards could impair rather than encourage technical innovation.[^329]

Purpose

The purposes of the subparts T and W rules are to facilitate the
assignment of spectrum in the 220 MHz service, to ensure efficient
spectrum use by licensees, and to prevent interference through
establishment of technical limits on operation (*e.g.*, siting
requirements and limits on transmitter power).

Analysis

Status of Competition

Licensees in the 220 MHz service are permitted to provide voice, data,
paging, and fixed communications. Many 220 MHz licensees have begun to
deploy their networks, and traditional dispatch services are being
increasingly offered in this band and other non-SMR bands.[^330]
Suppliers of 220 MHz equipment anticipate that there will be increased
buildout and demand for service in the next several years.[^331] Thus,
there is potential for the 220 MHz service to be increasingly
competitive and to contribute to inter-service CMRS competition.

Advantages

The subpart T rules provide a clear and predictable structure for the
assignment and use of 220-222 MHz band spectrum, and afford substantial
flexibility to licensees to choose the type of service they will provide
based on market demand. The subpart W auction rules promote efficient
licensing of 220 MHz spectrum to those entities that value it the most.

Disadvantages

Although the Commission has simplified and streamlined the 220 MHz rules
in many respects (see below), there continue to be differences among the
licensing, technical, and operational rules that apply to grandfathered
site-based licenses and those that apply to geographic area licenses.
This multiplicity of rules is potentially burdensome to 220 MHz
licensees who have systems comprised of both types of licenses, which
may result in inconsistent regulatory obligations (*e.g.*, buildout
requirements) for different portions of their systems.

Recent Efforts

On October 16, 2002, the Wireless Bureau granted a waiver request filed
by Access 220, LLC and its parent, Access Spectrum, LLC, to extend their
existing 700 MHz band management activities to Access 220's newly
acquired 220-222 MHz licenses. By authorizing a market-based mechanism
such as band management activities in the 220-222 MHz band, the
Commission is facilitating more efficient use of spectrum and is
creating additional options for deploying 220 MHz facilities.

As discussed above, in the *Competitive Bidding Conforming Edits Order*
the Wireless Telecommunications Bureau modified the section pertaining
to competitive bidding in the 220-222 MHz Specialized Mobile Radio (SMR)
service and 220 MHz SMR service to conform with the general competitive
bidding rules set forth in Part 1 of the Commission's rules.[^332]

Comments

LMS Wireless recommends that the Commission use the rules in the 220 MHz
service as the basic framework to create a new Part 90 service for use
in an "Advanced-Technology Land Infrastructure and Safety Service
(ATLIS)."[^333]

Recommendation

The Part 90, subpart T rules commented upon by parties in this
proceeding govern licensing in the 220 MHz service, set forth technical
and operational standards, and protect against interference among 220
MHz service licensees as well licensees in adjacent services. In
addition, the Part 90, subpart W rules contain competitive bidding
procedures for the 220 MHz service. As such, the need and purposes for
these rules are not directly affected by competitive developments that
guide our Section 11 analysis. Accordingly, we do not find that these
Part 90 rules are "no longer necessary in the public interest as the
result of meaningful economic competition between providers of such
\[telecommunications\] service."

While staff generally determines that the Part 90, subparts T and W
rules remain necessary in the public interest, it nonetheless also
concludes that certain modifications of these rules may be warranted in
the public interest for reasons other than those related to competitive
developments that fall within the scope of section 11 review. In this
regard, we discuss the comments and our recommendations below.

Because LMS Wireless' comments raise reallocation questions and other
issues involving the creation of new rules that are more in the nature
of a petition for rulemaking or waiver request than a review to modify
or eliminate existing rules, staff concludes that these comments are
beyond the scope of this Biennial Review proceeding and recommends that
they be considered in the various dockets as appropriate.

WTB staff believes that certain provisions of subpart T in its current
form may no longer be necessary in the public interest. Specifically,
staff recommends a technical change to clarify rule section
90.743(c)[^334] to reflect that Phase I non-nationwide licensees have
license terms of 10 years, and not 5 years as currently specified.
Further, staff recommends that consideration be given to whether certain
rules applicable to 220 MHz site-based licensees continue to be
necessary in the public interest. For example, section 90.737 imposes
certain reporting requirements and restrictions on assignments of
unconstructed site-based licenses that were intended to prevent
speculation and trafficking in licenses awarded by lottery.[^335] Now
that licensing by lottery has been discontinued, however, these rules
may actually impede the transferability of 220 MHz spectrum. Staff
therefore recommends that the Commission initiate a proceeding to
consider modifying or eliminating these rules.

Part 95, Subpart F -- 218-219 MHz Service

Description

For purposes of the Biennial Regulatory Review, the analysis of Part 95
in this report focuses on the 218-219 MHz Service (subpart F), which is
unique among the Personal Radio Services in that it may be used for
commercial applications, is licensed on a geographic exclusive-use
basis, and its licensure is subject to the Commission's competitive
bidding procedures. Part 95[^336] contains licensing, technical, and
operational rules for the Personal Radio Services, a collection of
wireless services that are generally used by individuals for personal
communications and to support the radio needs of their activities and
interests.

Subpart F was originally created to support the Interactive Video and
Data Service (IVDS), a short-distance communications service by which
licensees could provide information, products, or services to, and allow
interactive responses from, subscribers within the licensees' service
area. In 1998, the Commission renamed IVDS the 218-219 MHz Service and
revised subpart F to allow 218-219 MHz licensees greater flexibility to
identify and structure services in response to market demand.[^337]
Under the current service rules, both common carrier and private
operations are permitted, and both one- and two-way communications are
allowed.

The licensing and technical rules for the 218-219 MHz Service are
contained in subpart F, although certain rules that are broadly
applicable to all wireless telecommunications services (including the
218-219 MHz Service) have been consolidated in Part 1.[^338]

Purpose

The rules are intended to provide licensees with maximum flexibility to
structure their services, while protecting over-the-air television
reception of TV Channel 13.

Analysis

Status of Competition

The original IVDS service was generally not commercially successful, and
little or no competition emerged to use the 218-219 MHz band to provide
interactive television applications. Under the revised service rules,
218-219 MHz Service licensees have proposed wireless data applications
such as meter reading and vehicle tracking services. Accordingly, the
expectation is that the 218-219 MHz Service could soon provide sources
of competition for other wireless services. However, competition is
developing slowly, due in part to (1) the limited permissible use of the
service before its recent restructuring; (2) the fact that many 218-219
MHz Service markets are not currently licensed due to payment defaults;
and (3) the ongoing implementation of the service restructuring.

Advantages

The Part 95, subpart F rules provide licensees with the flexibility to
identify and implement services in response to market demand. For
example, the technical rules have general interference protection
requirements, and there is a substantial service requirement.

Disadvantages

The rules impose limited administrative and technical burdens that are
inherent to the licensing process and necessary for compliance with
technical and operational rules.

Recent Efforts

The Commission has made significant changes to its Part 95, subpart F
rules in recent years. As noted above, the Commission renamed the
service and revised the rules in 1998 to afford more flexibility to
licensees regarding use of the spectrum. The Commission adopted
additional sweeping changes to the 218-219 MHz service in September
1999, including permitting licensees eligible to participate in the
restructuring plan to elect among three options: (i) reamortization and
resumption of payments; (ii) amnesty; or (iii) prepayment.[^339] The
Wireless Telecommunications Bureau is still implementing these changes,
and several petitions for reconsideration remain pending in the docket.
In addition, the 218-219 MHz Service has been affected by a number of
broadly applicable rulemaking actions, such as the Universal Licensing
System (ULS) proceeding that was initiated in conjunction with the 1998
Biennial Regulatory Review.

Licensees eligible to participate in the restructuring plan for the
218-219 MHz Service were required to make an election for each of their
licenses on or before January 31, 2001.[^340] The licenses of licensees
who elected the amnesty or prepay-return options, or who failed to make
an election, cancelled as of January 31, 2001.

In the *Competitive Bidding Conforming Edits Order*, the Wireless
Telecommunications Bureau modified or eliminated certain Part 95 rules
pertaining to competitive bidding in the 218-219 MHz service to conform
with the general competitive bidding rules set forth in Part 1 of the
Commission's rules.[^341]

Comments

LMS Wireless recommends that the Commission replace the 218-219 MHz
service with a new Part 90 service for use in an "Advanced-Technology
Land Infrastructure and Safety Service (ATLIS)."[^342]

Recommendation

The Part 95, subpart F rules commented upon by parties in this
proceeding concern licensing, technical, and operational rules, such as
technical and operational standards and interference-related issues
among 218-219 MHz service licensees as well as licensees in adjacent
services. As such, the need and purposes for these rules are not
directly affected by competitive developments that guide our Section 11
analysis. Accordingly, we do not find that these Part 95 rules are "no
longer necessary in the public interest as the result of meaningful
economic competition between providers of such \[telecommunications\]
service."

In addition, staff finds that the 218-219 MHz service rules remain
necessary in the public interest, and recommends that modification or
repeal of rules in this subpart is not warranted. Due to the recent
comprehensive evaluation and restructuring of the 218-219 MHz Service,
the staff does not recommend any changes to this subpart at this time.
The rules that were retained in the 1999 restructuring are an integral
part of the basic licensing and spectrum management functions performed
by the Commission. The staff anticipates that provision of competitive
services within the 218-219 MHz Service will develop as a result of the
restructuring, and staff will continue to monitor developments in order
to determine whether any additional rule modifications are necessary to
foster competition.

Because LMS Wireless' comments raise reallocation questions and other
issues involving the creation of new rules that are more appropriate for
a Petition for Rulemaking or waiver request than a review to modify or
eliminate existing rules, these comments are beyond the scope of this
biennial review proceeding and will be considered in the various dockets
as appropriate.

Part 101 -- Fixed Microwave Services

Description

Part 101 contains licensing, technical, and operational rules for the
microwave services. Fixed microwave spectrum is primarily used to
deliver video, audio, data, and control functions for other specific
communications services from one point and/or hub to other points and/or
subscribers for distribution. [^343] Most Part 101 application
processing rules, technical standards, and operational requirements
apply to all Part 101 services, but others apply only to specific
services,[^344] or to common carrier services but not private services
(or vice versa).[^345]

Part 101 was created in 1996 through consolidation of the rules for the
common carrier and private operational fixed (POFS) microwave services
contained in Parts 21 and 94.[^346]

Part 101 contains 15 lettered subparts:

A -- General

> B -- Applications and Licenses
>
> C -- Technical Standards
>
> D -- Operational Requirements
>
> E -- Miscellaneous Common Carrier Provisions

F -- Developmental Authorizations

> G -- 24 GHz Services and Digital Electronic Message Service

H -- Private Operational Fixed Point-to-Point Microwave Service

I -- Common Carrier Fixed Point-to-Point Microwave Service

> J -- Local Television Transmission Service
>
> K -- \[Reserved\]
>
> L -- Local Multipoint Distribution Service
>
> M -- Competitive Bidding Procedures for LMDS

N -- Competitive Bidding Procedures for the 38.6-40.0 GHz Band

> O -- Multiple Address Systems

Purpose

The Part 101 rules are intended to reduce or eliminate the differences
in application processing between common carriers and private
operational fixed microwave service licensees, and to further the
regulatory parity among these microwave services.[^347]

Analysis

Status of Competition

Because the Part 101 microwave services encompass a variety of private
and common carrier applications, and because some services are licensed
on a point-to-point basis while others are licensed geographically, the
level of competition varies greatly among individual microwave services.

The largest commercial deployment of Part 101 microwave services has
occurred in the 24 GHz Digital Electronic Messaging Service (DEMS), 28
GHz (LMDS), and 39 GHz bands. The licensees in these bands have the
potential to create facilities-based competition in numerous industries,
including high-speed broadband services. In other Part 101 services,
licensees continue to rely on traditional point-to-point microwave
systems to meet their operational support and critical infrastructure
needs, as opposed to using microwave technologies to access customers
directly.

Advantages

The Part 101 rules provide for a unified regulatory approach for the
microwave services, and eliminate the differences in processing
applications between common carriers and POFS licensees that existed in
the former rules. Because each of the microwave services shares at least
some frequencies with other microwave services, and because some
frequencies are shared with government users, the rules minimize
repetition, reduce the potential for interference, and aid different
microwave users in efficient use of the microwave spectrum.

Part 101 also contains competitive bidding rules (Subparts M and N)
that, in conjunction with our spectrum allocation rules, promote
economic growth and enhance access to telecommunications service
offerings for consumers, producers, and new entrants. The competitive
bidding rules are structured to promote opportunity and competition. In
contrast to lotteries and comparative hearings, auctions are faster,
more efficient, and more likely to get spectrum to entities that value
it the most. Through these rules, the Commission has recovered a portion
of the value of the public spectrum.

Disadvantages

The Part 101 rules impose limited administrative and technical burdens
inherent to the licensing process and necessary for compliance with
technical and operational rules.

Recent Efforts

The Commission recently completed a comprehensive re-evaluation of the
Part 101 rules.[^348] This proceeding sought to eliminate rules that
were duplicative, outmoded, or otherwise unnecessary; it also sought
comment on specific proposals to streamline the regulations to make sure
that the regulations conform to the Communications Act of 1934, as
amended.[^349]

Specifically the Commission adopted rules to:

-   permit private operational fixed (POFS) microwave services to lease
    reserve capacity to common carriers for their common carrier
    traffic;

-   establish a band plan for the 23 GHz band; and

-   modify antenna standards in the 10 GHz and 23 GHz bands. [^350]

In May 2001, the Commission released an order adopting competitive
bidding rules for the 24 GHz band for Digital Electronic Messaging
Service.[^351]

In the *Competitive Bidding Conforming Edits Order*, the Wireless
Telecommunications Bureau modified certain Part 101 rules pertaining to
competitive bidding for the Fixed Microwave services, DEMS service,
LMDS, and Multiple Address Systems (MAS) service to conform with the
general competitive bidding rules set forth in Part 1 of the
Commission's rules.[^352]

Comments

Winstar recommends that the Commission amend the requirement in section
101.17 that licensees in the 38.6-40.0 GHz band (39 GHz band)
demonstrate "substantial service" at the time of license renewal.[^353]
Winstar contends that requiring such a showing as a condition precedent
to license renewal is inconsistent with prior Commission rules and
precedent which only used "substantial service" as a factor for
justifying a renewal expectancy.[^354]

Recommendation

The Part 101 rules commented upon by parties in this proceeding concern
licensing, technical, and operational rules, such as technical and
operational standards and interference-related issues among Part 101
licensees as well as licensees in adjacent services. As such, the need
and purposes for these rules are not directly affected by competitive
developments that guide our Section 11 analysis. Accordingly, we do not
find that these Part 101 rules are "no longer necessary in the public
interest as the result of meaningful economic competition between
providers of such \[telecommunications\] service."

In addition, after reviewing the comments submitted in this proceeding,
staff finds that the Part 101 rules in their current form remain
necessary in the public interest, and recommends that modification or
repeal is not warranted. In light of the recent Part 101 rulemaking, in
which the Commission conducted a thorough and substantial review of the
Part 101 rules, staff does not recommend making any additional changes
to the rules within the context of this Biennial Review.

As regards section 101.17, staff believes that the rules in its current
form remains necessary in the public interest, and recommends that
modification or repeal is not warranted. Staff does not recommend that
the Commission consider adopting Winstar's proposal. The Commission, in
adopting section 101.17, rejected specific build-out requirements for 39
GHz band licensees, believing that the substantial service showing
provided licensees greater flexibility to demonstrate they were
providing service to the public.[^355] Moreover, the fact that the
substantial service standard was originally used to determine renewal
expectancy does not preclude the Commission from applying it more
broadly as a performance requirement.[^356]

part 101, Subpart G -- 24 GHz Service and Digital Electronic Message
Service (DEMS)

Description

Part 101 contains licensing, technical, and operational rules for fixed
operational microwave services that require operating facilities on land
or in certain offshore coastal areas. Subpart G contains rules for the
24 GHz Service and the Digital Electronic Message Service (DEMS). DEMS
systems are common carrier point-to-multipoint microwave networks
designed to communicate information between a fixed (nodal) station and
a multiple fixed user terminals,[^357] and this subpart was originally
intended to accommodate operation of high-speed, two-way,
point-to-multipoint terrestrial microwave transmission systems.[^358]
The 24 GHz Service is now available for geographic licensing on either a
common carrier or private basis. DEMS is licensed for use in the
24.25-24.45 GHz and 25.05-25.25 GHz bands.[^359]

Purpose

The purpose of Part 101 subpart G is to establish the rules for
allocation and use of wireless services at 24 GHz, to ensure efficient
spectrum use, and to prevent interference.

Analysis

Status of Competition

The majority of licenses are currently held by a single entity. The 24
GHz spectrum used by DEMS has been identified as a potential competitor
in the local exchange telephone market.[^360] The dominant license
holder, which is now in bankruptcy, had completed its initial plan to
roll out service in 40 U.S. markets, including provision of a bundle of
broadband fixed wireless telecommunication services to small- and
medium-sized businesses.

Advantages

The current rules provide a clear regulatory framework for the
development of competitive fixed wireless services. The existing
technical and operational rules are necessary for administration of a
radio service at 24 GHz.

Disadvantages

The current subpart G rules were written when the primary use of DEMS
was expected to be by businesses requiring internal networks to
distribute documents, share data, and hold teleconferences. Accordingly,
some of the terminology contained in the rules reflects this initial
service concept. However, as detailed in the "Recent Efforts" section
below, while the subpart G rules contain dated terminology, the
Commission has made several changes to these rules that have increased
the amount of operational flexibility for licensees covered by this
subpart.

Recent Efforts

In a Report and Order adopted July 25, 2000, the Commission revised Part
101, subpart G to regulate operations within the 24 GHz band
comprehensively. Under the newly adopted changes, the Commission will
license the 24 GHz band in 40 MHz channel pairs, provide 24 GHz band
licensees more flexibility in system design, implement a ten-year
license term and a "substantial service" requirement at renewal, allow
24 GHz band licensees to partition and/or disaggregate their licenses,
and introduce flexible technical standards. In its recently completed
comprehensive re-evaluation of the Part 101 rules, the Commission
modified Section 101.139(a) to allow equipment self-verification in the
DEMS bands.[^361]

In the *Competitive Bidding Conforming Edits Order*, the Wireless
Telecommunications Bureau modified or eliminated certain Part 101 rules
pertaining to competitive bidding in the Digital Electronic Messaging
service to conform with the general competitive bidding rules set forth
in Part 1 of the Commission's rules.[^362]

Comments

No comments were filed with respect to this rule subpart.

Recommendation

The Part 101, subpart G rules concern licensing, technical, and
operational rules, such as technical and operational standards and
interference-related issues among 24 GHz and DEMS licensees as well as
licensees in adjacent services. As such, the need and purposes for these
rules are not directly affected by competitive developments that guide
our Section 11 analysis. Accordingly, we do not find that these Part 101
rules are "no longer necessary in the public interest as the result of
meaningful economic competition between providers of such
\[telecommunications\] service."

In addition, staff notes that the Commission recently completed a
comprehensive review of its 24 GHz rules in WT Docket No. 99-327 and
review of all the Part 101, subpart G rules. Staff finds that the
subpart G rules remain necessary in the public interest, and recommends
that modification or repeal is not warranted.

part 101, Subparts L and M -- Local Multipoint Distribution Service
(LMDS) and Competitive Bidding Procedures

Description

Part 101 contains licensing, technical, and operational rules for the
fixed microwave radio services. Local Multipoint Distribution Service
(LMDS) systems are fixed point-to-point or point-to-multipoint radio
systems that consist of hub and subscriber stations. [^363] LMDS
licensees may provide a variety of services, including high-speed data
and Internet services and multi-channel video programming
distribution.[^364]

Subpart L contains licensing, technical, and operational rules for LMDS.
In general, the rules in this part: (1) provide eligibility restrictions
in this service; (2) define the service areas of LMDS licenses; (3)
specify the permissible operations for authorized systems; (3) specify
the frequencies available to LMDS licensees; (4) establish license
terms; (5) establish the minimum construction or coverage requirements
for LMDS licensees; and (6) define system operations and permissible
communication services.

Subpart M contains competitive bidding rules and procedures for
commercial licenses in LMDS. In particular, the rules, on a
service-specific basis: (1) provide competitive bidding mechanisms and
design options; (2) establish application, disclosure, and certification
procedures for short- and long-form applications; (3) specify down
payment, unjust enrichment, withdrawal, and default mechanisms; (4)
provide definitions of gross revenues for designated entities and
specify the bidding credits for which designated entities qualify; and
(5) provide eligibility and technical requirements for partitioning and
disaggregation.

Purpose

The purpose of the Part 101 rules is to establish rules for assignment
of spectrum for private operational, common carrier, and LMDS fixed
microwave operations that require operating facilities on land or in
specified offshore coastal areas. Subpart L contains the basic licensing
and operational rules for LMDS. Subpart M helps to ensure access to new
telecommunications offerings by ensuring that all customer segments are
served, that there is not an excessive concentration of licenses, and
that small businesses, rural telephone companies, and businesses owned
by women and minorities will have genuine opportunities to participate
in the provision of service.

Analysis

Status of Competition

The initial LMDS operator no longer provides multi-channel video
programming distribution services and has announced plans to offer
high-speed data access on a portion of its original spectrum. The
remaining licenses were issued following auctions held in March 1998 and
April and May 1999. LMDS equipment is still subject to limited
availability, and the majority of licensees are still developing their
systems.[^365] LMDS will most likely compete with wireless and wireline
broadband service providers targeting small and medium-sized
businesses.[^366]

Advantages

The subpart L rules provide licensees with broad flexibility to identify
and implement services in response to market demand. The Commission
recently allowed LMDS eligibility restrictions for incumbent local
exchange carrier and cable companies to sunset;[^367] this development
should provide access to additional capital to develop LMDS fully, make
administration of LMDS consistent with other competitive services, and
aid the development of LMDS in rural markets.[^368]

The subpart M competitive bidding rules, in conjunction with our
spectrum allocation rules, promote economic growth and enhance access to
telecommunications service offerings for consumers, producers, and new
entrants. The competitive bidding rules of subpart M were structured to
promote opportunity and competition. This has resulted in the rapid
implementation of new and innovative services and the efficient use of
spectrum, thereby fostering economic growth. In contrast to other
licensing mechanisms such as lotteries and comparative hearings,
auctions are faster, more efficient, and more likely to get spectrum to
entities that value it the most. Through these rules, the Commission has
recovered a portion of the value of the public spectrum for the benefit
of the public.

Disadvantages

The subpart L rules impose administrative burdens inherent to the
licensing process and necessary for compliance with technical and
operational rules.

The auction rules in subpart M impose certain transaction costs on
auction participants (aside from the obligation on the winning bidder to
pay the amount bid). These auction-related costs may be somewhat higher
than the cost of filing a lottery application but significantly less
than the cost of a comparative hearing.[^369] In addition, certain
aspects of the auctions process (*e.g.*, setting of minimum opening bid
amounts, bid increments, and bidding credit levels) still require
service-specific notice and comment prior to each individual auction.

Recent Efforts

The June 23, 2000, *LMDS Third R&O* allowed the cross-ownership
restriction to expire on June 30. The decision to allow the
cross-ownership rule to sunset was based on a thorough analysis of
competitive issues and the LMDS market.

The Commission has made significant changes to the competitive bidding
rules of Part 1 Subpart Q. In the *Part 1 Third Report and Order*, the
Commission made substantive amendments and modifications to the
competitive bidding rules for all auctionable services.[^370] These
changes to the competitive bidding rules are intended to streamline
regulations and eliminate unnecessary rules wherever possible, increase
the efficiency of the competitive bidding process, and provide more
specific guidance to auction participants. The changes also advance our
auction program by reducing the burden on the Commission and the public
of conducting service-by-service auction rule makings, such as those
rule makings that created the competitive bidding rules of Subpart M.

In the *Competitive Bidding Conforming Edits Order*, the Wireless
Telecommunications Bureau modified or eliminated certain Part 101 rules
pertaining to competitive bidding in the Local Multipoint Distribution
service to conform with the general competitive bidding rules set forth
in Part 1 of the Commission's rules.[^371]

The Commission recently completed a comprehensive re-evaluation of the
Part 101 rules including changes to the LMDS technical rules.[^372]

Comments

No comments were filed with respect to these rule subparts.

Recommendation

The Part 101, subpart L rules concern licensing, technical, and
operational rules, such as technical and operational standards and
interference-related issues among LMDS licensees as well as licensees in
adjacent services. In addition, the Part 101, subpart M rules contain
competitive bidding procedures for the LMDS service. As such, the need
and purposes for these rules are not directly affected by competitive
developments that guide our Section 11 analysis. Accordingly, we do not
find that these Part 101 rules are "no longer necessary in the public
interest as the result of meaningful economic competition between
providers of such \[telecommunications\] service."

In addition, staff finds that the Part 101 rules in subparts L and M
remain necessary in the public interest, and recommends that
modification or repeal is not warranted.

part 101, Subpart O -- Multiple Address Systems (Mas)

Description

Part 101 contains licensing, technical, and operational rules for the
fixed microwave radio services.[^373] Multiple Address Systems (MAS)
consist of 3.2 MHz of spectrum for fixed point-to-point or
point-to-multipoint radio systems located in the 900 MHz band and have
been primarily used by the power, petroleum, and security industries for
various alarm, control, interrogation, and status reporting
requirements, and by the paging industry for control of multiple paging
transmitters in the same general geographic area.

Subpart O also contains licensing, technical, and operational rules for
MAS. In general, the rules in this part: (1) provide eligibility
restrictions in this service; (2) define the service area of MAS
licenses; (3) specify the permissible operations for authorized systems;
(3) specify the frequencies available to MAS licensees; (4) establish
license terms; (5) establish the minimum construction or coverage
requirements for MAS licensees; and (6) define system operations and
permissible communication services.

MAS uses competitive bidding rules and procedures set forth in Part 1,
subpart Q.

Purpose

The purpose of the Part 101 rules is to establish rules for assignment
of spectrum for private internal services that require operating
facilities on land or in specified offshore coastal areas.

Analysis

Status of Competition

Competition in the MAS market has been slow to develop. In November
2001, the Commission held Auction 42, which offered 5104 licenses for
sale in the 932/941 MHz and 928/959 MHz MAS bands. Bidders only
purchased 878 of the available licenses.

Advantages

The subpart O rules provide licensees with broad flexibility to identify
and implement services in response to market demand. Use of competitive
bidding rules, in conjunction with our spectrum allocation rules,
promote economic growth and enhance access to telecommunications service
offerings for consumers, producers, and new entrants. This has resulted
in the rapid implementation of new and innovative services and the
efficient use of spectrum use, thereby fostering economic growth. In
contrast to other licensing mechanisms such as lotteries and comparative
hearings, auctions are faster, more efficient, and more likely to get
spectrum to entities that value it the most. Through these rules, the
Commission has recovered a portion of the value of the public spectrum
for the benefit of the public.

Disadvantages

The MAS licensing rules impose administrative burdens inherent to the
licensing process and necessary for compliance with technical and
operational rules.

The auction rules in this subpart impose certain transaction costs on
auction participants (aside from the obligation on the winning bidder to
pay the amount bid). These auction-related costs may be somewhat higher
than the cost of filing a lottery application but significantly less
than the cost of a comparative hearing.[^374] In addition, certain
aspects of the auctions process (*e.g.*, setting of minimum opening bid
amounts, bid increments, and bidding credit levels) still require
service-specific notice and comment prior to each individual auction.

Recent Efforts

The May 29, 2001, *MAS MO&O* addressed four petitions for
reconsideration and/or clarification of rules in subpart O.
Additionally, the Commission recently completed a comprehensive
re-evaluation of the Part 101 rules.[^375]

In the *Competitive Bidding Conforming Edits Order*, the Wireless
Telecommunications Bureau modified or eliminated the following rules
pertaining to competitive bidding in the MAS service to conform with the
general competitive bidding rules set forth in Part 1 of the
Commission's rules.[^376]

Comments

API asks the Commission to amend section 101.31(b) to make conditional
temporary authorizations available for MAS applicants.[^377] In
addition, API asks the Commission to amend section 101.47 to reallocate
unsold commercial licenses for site-by-site private use.[^378]

Recommendation

The Part 101, subpart O rules concern licensing, technical, and
operational rules, such as technical and operational standards and
interference-related issues among MAS licensees as well as licensees in
adjacent services. As such, the need and purposes for these rules are
not directly affected by competitive developments that guide our Section
11 analysis. Accordingly, we do not find that these Part 101 rules are
"no longer necessary in the public interest as the result of meaningful
economic competition between providers of such \[telecommunications\]
service."

In addition, after reviewing the comments filed in this proceeding,
staff finds that the rules in subpart O remain necessary in the public
interest, and recommends that modification or repeal is not warranted.
Staff believes that API's proposals regarding sections 101.31(b) and
101.47 are outside of the scope of this review because they do not seek
to modify or eliminate existing rules but seek to add new requirements.
In addition, staff notes that the Commission addressed API's request for
conditional temporary authorizations as part of its recently completed
review of Part 101 rules.

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

[^2]: Amendment of Parts 0, 1, 13, 22, 24 26, 27, 80, 87, 90, 95, 97,
    and 101 of the Commission's Rules to Facilitate the Development and
    Use of the Universal Licensing System in the Wireless
    Telecommunications Service, WT Docket No. 98-20, *Report and Order*,
    13 FCC Rcd 21027 (1998) (*ULS Report and Order*).

[^3]: 47 C.F.R. §1.913.

[^4]: Amendment of Parts 0, 1, 13, 22, 24 26, 27, 80, 87, 90, 95, 97,
    and 101 of the Commission\'s Rules to Facilitate the Development and
    Use of the Universal Licensing System in the Wireless
    Telecommunications Service, *Memorandum Opinion and Order on
    Reconsideration*, 14 FCC Rcd 11476 (1999).

[^5]: *See* "Wireless Telecommunications Bureau to Begin Use of
    Universal Licensing System for Licensing in Commercial Radio
    Operator Services on May 21, 2001; Deployment Means Conversion of
    All WTB Services to ULS is Now Complete," *Public Notice*, 16 FCC
    Rcd 9472 (2001).

[^6]: *See* In the Matter of Review of Quiet Zones Application
    Procedures, WT Docket No. 01-319, *Notice of Proposed Rulemaking*,
    16 FCC Rcd 20690 (2001) (*Quiet Zones NPRM*).

[^7]: CTIA Petition at 6; RCA Reply Comments at 2.

[^8]: CTIA Petition at 6.

[^9]: *Id.* at 6-7.

[^10]: RCA Reply Comments at 3.

[^11]: CTIA Petition at 7.

[^12]: RCA Reply Comments at 3.

[^13]: API Comments at 13-14.

[^14]: AMTA Comments at 7-8.

[^15]: CTIA Petition at 7-8; RCA Reply Comments at 3.

[^16]: *See generally* 47 C.F.R. § 1.923(a).

[^17]: *See* Form 601 "Main Form" (question 48); Form 603 (question 77).

[^18]: *See* Form 312 "Main Form" (question 39).

[^19]: *See, e.g.,* 47 U.S.C. § 313 (Application of antitrust laws).

[^20]: *See, e.g.,* Policy Regarding Character Qualifications in
    Broadcast Licensing, *Policy Statement and Order*, 5 FCC Rcd 3252
    (1990).

[^21]: *See* Policy Regarding Qualifications in Broadcast Licensing,
    *Memorandum Opinion and Order*, 7 FCC Rcd 6564, 6566-67 (1992)
    (eliminating requirement that broadcast applicants report "pending
    litigation" relating to certain potential character qualifications,
    while maintaining requirement that applicants report adverse
    findings on these issues).

[^22]: *See generally Quiet Zones NPRM*, *supra*.

[^23]: *See generally* 47 C.F.R. § 1.935.

[^24]: The Commission's environmental rules are codified at 47 C.F.R. §§
    1.1301-1.1319.

[^25]: 42 U.S.C. §§ 4321-4347.

[^26]: 16 U.S.C. §§ 1531-1543.

[^27]: 16 U.S.C. §§ 470 *et seq.*

[^28]: 16 U.S.C. §§ 1131-1136.

[^29]: 42 U.S.C. § 1996.

[^30]: 16 U.S.C. § 668dd.

[^31]: *See* Executive Order 11988, 42 Fed Reg. 26,951 (May 24, 1977),
    *reprinted as amended in* 42 U.S.C. § 4321 note (floodplains);
    Executive Order 11990, 42 Fed Reg. 26,961 (May 24, 1977), *reprinted
    as amended in* 42 U.S.C. § 4321 note (wetlands).

[^32]: 40 C.F.R. §§ 1500-1508.

[^33]: 47 C.F.R. § 1.1307(a)(8).

[^34]: 47 C.F.R. § 1.1307(b).

[^35]: 47 C.F.R. § 1.1307(a).

[^36]: 47 C.F.R. § 1.1306.

[^37]: *See* 47 C.F.R. §§ 1.1308, 1.1311.

[^38]: 47 C.F.R. § 1.1313.

[^39]: 47 C.F.R. §§ 1.1314-1.1319.

[^40]: CTIA Comments at 9-15; RCA Reply Comments at 4. *See also* Texas
    RSA 15B2 et al. *Ex Parte* Comments at 2-5 (supporting CTIA's
    proposal to streamline the NEPA compliance procedures). We note that
    Texas RSA 15B2 et al. did not file comments until November 27, 2002,
    after the comment period had closed. In light of the importance of
    this proceeding, we will, pursuant to Section 1.1206 of the
    Commission's rules, consider these late-filed comments as an *ex
    parte* submission.

[^41]: The Commission's environmental rules require licensees and
    applicants to evaluate whether proposed facilities may affect
    properties that are "listed, or are eligible for listing, in the
    National Register of Historic Places." 47 C.F.R. § 1.1307(a)(4).

[^42]: CTIA Comments at 15 n.33.

[^43]: Sprint Reply Comments at 6-7.

[^44]: *See* 47 C.F.R. § 1.1301 (stating that provisions of Part 1,
    Subpart I of the Commission's rules implement Subchapter I of NEPA).

[^45]: 47 C.F.R. § 1.1307(a).

[^46]: Section 11 of the Communications Act instructs the Commission to
    review "all regulations issued *under this Act* . . ." 47 U.S.C. §
    161 (emphasis added).

[^47]: *See* Omnibus Budget Reconciliation Act of 1993, Pub. Law No.
    103-66 (1993).

[^48]: *See* Balanced Budget Act of 1997, Pub. Law No. 105-33, § 3002,
    111 Stat. 251 (1997) (amending 47 U.S.C. § 309(j)).

[^49]: In service-specific rule making proceedings, the Commission
    continues to establish the appropriate size standards for each
    auctionable service.

[^50]: 47 U.S.C. § 309(j)(3)(B).

[^51]: *See FCC Report to Congress on Spectrum Auctions*, WT Docket No.
    97-150, *Report*, FCC 97-353, Section III, at 8 (rel. October 9,
    1997) (citing studies estimating costs of \$800 per application
    under the lottery system and \$130,000 per application under the
    comparative hearing process).

[^52]: Amendment of Part 1 of the Commission's Rules -- Competitive
    Bidding Procedures, *Seventh Report and Order*, 16 FCC Rcd 17546
    (2001).

[^53]: Amendment of Part 1 of Commission's Rules -- Competitive Bidding
    Procedures, *Eighth Report and Order*, 17 FCC Rcd 2962 (2002).

[^54]: Amendment of Parts 1, 21, 22, 24, 25, 26, 27, 73, 74, 80, 90, 95,
    100 and 101 of Commission Rules \--Competitive Bidding, *Order*, 17
    FCC Rcd 6534 (2002); *Erratum,* 17 FCC Rcd 11146 (2002)
    (*Competitive Bidding Conforming Edits Order*).

[^55]: Amendment of Part 1 of the Commission's Rules -- Competitive
    Bidding Procedures*, Order on*

    *Reconsideration of the Third Report and Order, Fifth Report and
    Order, and Fourth Further Notice of Proposed Rule Making*, 15 FCC
    Rcd 15293, 15330, ¶ 78, 15336, ¶ 101 (2000) (*Part 1 Recon Order of
    the Third Report & Order* and *Part 1 Fifth Report and Order*) ("We
    hereby instruct the Wireless Telecommunications Bureau to make
    conforming edits to the Code of Federal Regulations consistent with
    this decision."); 47 U.S.C. § 155(c); 47 C.F.R. §§ 0.131(d) and
    0.331(d).

[^56]: Amendment of Part 1 of the Commission's Rules -- Competitive
    Bidding Procedures, *Third Report and*

    *Order and Second Further Notice of Proposed Rule Making*, 13 FCC
    Rcd 374, 530-31 (1997) (*Part 1 Third Report and Order*); Section
    309(j) of the Communications Act -- Competitive Bidding, *Sixth
    Report and Order*, 11 FCC Rcd 136 (1996) (*Competitive Bidding Sixth
    Report and Order*).

[^57]: *See generally Competitive Bidding Conforming Edits Order,
    supra*.

[^58]: CTIA Petition at 8.

[^59]: *Id.*

[^60]: RCA Reply Comments at 3.

[^61]: NTCA Comments at 2.

[^62]: CTIA Petition at 8; RCA Reply Comments at 4.

[^63]: CTIA Petition at 8.

[^64]: *Id.*

[^65]: 47 C.F.R. § 1.2112(a).

[^66]: *See* H.R. Rep. No. 111, 103d Cong., 1^st^ Sess. 258 (1993) (H.R.
    Rep. No. 103-111).

[^67]: 47 C.F.R. § 1.2105(a).

[^68]: Implementation of Section 309(j) of the Communications Act --
    Competitive Bidding, *Second Report and Order*, 9 FCC Rcd 2348,
    2375-2376 ¶¶ 161-162 (1994) (*Competitive Bidding Second Report and
    Order*).

[^69]: *See* Auction of Licenses for VHF Public Coast and Location and
    Monitoring Service Spectrum, *Order*, DA 02-2631 (rel. October 11,
    2002).

[^70]: *See Part 1 Recon Order of the Third Report & Order* and *Part 1
    Fifth Report and Order*, 15 FCC Rcd at 15298 ¶ 9; *Part 1 Third
    Report and Order*, 13 FCC Rcd at 417 ¶ 73.

[^71]: *Id. See also* 47 U.S.C. § 310 (foreign ownership restrictions).

[^72]: *Competitive Bidding Second Report and Order*, 9 FCC Rcd at 2385
    ¶ 214 (citing H.R. Rep. No. 103-111 at 257).

[^73]: *Id*.

[^74]: 47 U.S.C. § 303(q).

[^75]: 47 C.F.R. Part 17.

[^76]: Section 17.5 exempts geographically licensed services from this
    requirement. 47 C.F.R. § 17.5.

[^77]: CTIA Petition at 18.

[^78]: CTIA also recommends that the Commission work with the FAA to
    insure consistent application of the registration exemption embodied
    in section 17.14 (b) of the Commission's rules. *Id.*

[^79]: 47 C.F.R. § 20.6.

[^80]: *See* 2000 Biennial Regulatory Review Spectrum Aggregation Limits
    for Commercial Mobile Radio Services, WT Docket No. 01-14, *Report
    and Order*, 16 FCC Rcd 22668 (2001) (*Spectrum Aggregation Limits
    Order*).

[^81]: *See Spectrum Aggregation Limits Order*, 16 FCC Rcd at 22670-71.

[^82]: *See id.* at 22669.

[^83]: *See id.* at 22669-70.

[^84]: 47 U.S.C. § 332(c)(1)(B).

[^85]: *See* 47 U.S.C. § 332.

[^86]: 47 C.F.R. § 20.11.

[^87]: *See* 47 U.S.C. §§ 251, 252.

[^88]: Implementation of the Local Competition Provisions in the
    Telecommunications Act of 1996, CC Docket No. 96-68, Interconnection
    between Local Exchange Carriers and Commercial Mobile Radio Service
    Providers, *First Report and Order*, 11 FCC Rcd 15499, 16195 (1996)
    (*Local Competition First Report and Order*).

[^89]: *Local Competition First Report and Order*, 11 FCC Rcd at 16005,
    ¶ 1023.

[^90]: 47 C.F.R. § 20.11(c). *See* *also* *Local Competition First
    Report and Order*, 11 FCC Rcd at 16195.

[^91]: *See* Implementation of Section 6002(b) of the Omnibus Budget
    Reconciliation Act of 1993; Annual Report and Analysis of
    Competitive Market Conditions with Respect to Commercial Mobile
    Services*, Seventh Report*, 17 FCC Rcd 12985, 13017 (2002) (*Seventh
    CMRS Competition Report*).

[^92]: *See id.* at 13017-18.

[^93]: In the Matter of Developing a Unified Intercarrier Compensation
    Regime, CC Docket No. 01-92, *Notice of Proposed Rulemaking*, 16 FCC
    Rcd 9610 (2001) ("*Intercarrier Compensation NPRM*").

[^94]: T-Mobile USA, Inc., Western Wireless Corporation, Nextel
    Communications, Inc., and Nextel Partners, Inc. filed their petition
    on September 6, 2002, and US LEC filed its petition on September 18,
    2002. See In the Matter of Developing a Unified Intercarrier
    Compensation Regime, CC Docket No. 01-92, Petition for Declaratory
    Ruling of T-Mobile USA, Inc., et al. (filed Sept. 6, 2002)
    (*T-Mobile Petition*); Petition of US LEC Corp. for Declaratory
    Ruling Regarding LEC Access Charges for CMRS Traffic (filed Sept.
    18, 2002) (*US LEC Petition*).

[^95]: Comments Sought on Petitions for Declaratory Ruling Regarding
    Intercarrier Compensation for Wireless Traffic, CC Docket No. 01-92,
    *Public Notice*, 17 FCC Rcd 19046 (2002).

[^96]: In the Matter of Developing a Unified Intercarrier Compensation
    Regime, CC Docket No. 01-92, *Petition for Declaratory Ruling of
    T-Mobile USA, Inc., et al*. (filed Sept. 6, 2002).

[^97]: *US LEC Petition*. The Commission placed the petition into the
    record of CC Docket No. 01-92.

[^98]: In the Matter of Sprint Corp. Petition for Declaratory Ruling
    Regarding the Routing and Rating of Traffic by ILECs, CC Docket No.
    01-92, *Petition of Sprint* (filed May 9, 2002) (*Sprint PCS
    Petition*).

[^99]: *See* In the Matter of Developing a Unified Intercarrier
    Compensation Regime, CC Docket No. 01-92, *Notice of Proposed
    Rulemaking*, 16 FCC Rcd 9610 (2001).

[^100]: USTA Comments at 6.

[^101]: Sprint Reply Comments at 3.

[^102]: 47 C.F.R. § 20.12(b).

[^103]: 47 C.F.R. § 20.12(c).

[^104]: *See* Interconnection and Resale Obligations Pertaining to
    Commercial Mobile Radio Services, *Second Report and Order and Third
    Notice of Proposed Rulemaking*, 11 FCC Rcd 9462 (1996).

[^105]: *See generally Seventh CMRS Competition Report*, 17 FCC Rcd at
    13001.

[^106]: Interconnection and Resale Obligations Pertaining to Commercial
    Mobile Radio Services, *Second Report and Order and Third Notice of
    Proposed Rulemaking*, 11 FCC Rcd 9462 (1996).

[^107]: Interconnection and Resale Obligations Pertaining to Commercial
    Mobile Radio Services, *Third Report and Order and Memorandum
    Opinion and Order on Reconsideration*, 15 FCC Rcd 15975 (2000).

[^108]: Automatic and Manual Roaming Obligations Pertaining to
    Commercial Mobile Radio Service*, Notice of Proposed Rulemaking*, 15
    FCC Rcd 21628 (2000) (*Roaming Notice*).

[^109]: 47 C.F.R. § 20.18.

[^110]: Revision of the Commission's Rules to Ensure Compatibility with
    Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102,
    *Fourth Memorandum Opinion and Order*, 15 FCC Rcd 17422 (2000),
    *recon. petition pending;* Revision of the Commission's Rules to
    Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC
    Docket No. 94-102, *Third Report and Order*, 14 FCC Rcd 17388, 17436
    (1999) (*Third Report and Order*).

[^111]: *See, e.g.,* Revision of the Commission\'s Rules to Ensure
    Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket
    No. 94-102, *Order Addressing Request for Waiver by Cingular
    Wireless LLC*, 16 FCC Rcd 18305 (2001); Revision of the
    Commission\'s Rules to Ensure Compatibility with Enhanced 911
    Emergency Calling Systems, CC Docket No. 94-102, *Fourth Memorandum
    Opinion and Order,* 15 FCC Rcd 17422 (2000), *recon. petition
    pending*. All six waiver orders are posted at
    [www.fcc.gov/911/enhanced/](http://www.fcc.gov/911/enhanced/).

[^112]: Revision of the Commission's Rules to Ensure Compatibility with
    Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102,
    *Order*, 16 FCC Rcd 18982 (2001).

[^113]: CTIA Petition at 18-19.

[^114]: RCA Reply Comments at 4; NENA/APCO/NASNA Comments at 2. *See
    also* Texas RSA 15B2 et al. *Ex Parte* Comments at 6 (supporting
    CTIA's proposal to permit carriers to negotiate a mutually agreeable
    implementation schedule with the appropriate PSAP and to toll the
    six month implementation period while a PSAP prepares documentation
    or during a readiness dispute).

[^115]: NENA/APCO/NASNA Comments at 2.

[^116]: In the Matter of Revision of the Commission's Rules to Ensure
    Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket
    No. 94-102, *Order to Stay*, 17 FCC Rcd 14841 (2002).

[^117]: RCA Reply Comments at 5. *See also* Texas RSA 15B2 et al. *Ex
    Parte* Comments at 8-9 (asserting that the language in the *Order to
    Stay* is clearly in error and that the Commission should issue an
    Erratum to correct the discrepancy with the text of section
    20.18(f)).

[^118]: CTIA Petition at 20; RCA Reply Comments at 4-5.

[^119]: CTIA Petition at 19.

[^120]: NENA/APCO/NASNA Comments at 3.

[^121]: NENA/APCO/NASNA Comments at 4. *See also* Texas RSA 15B2 et al.
    *Ex Parte* Comments at 7 (opposes NENA/APCO/NASNA's suggestion that
    the carrier obligation to forward all 911 calls to the designated
    PSAP does not extend to "repeated abusive or harassing 911 calls").

[^122]: Sprint Reply Comments at 8.

[^123]: Texas RSA 15B2 et al. also asserts that the Commission should
    amend the 911 rules to reinstate the provision conditioning a
    carrier's obligation to provide 911 services on the availability of
    a cost recovery mechanism for the carrier's costs. Texas RSA 15B2 et
    al. *Ex Parte* Comments at 7-8. Because Texas RSA 15B2 et al.'s
    proposal is more appropriate for a petition for rulemaking than a
    review to modify or eliminate existing rules, staff concludes that
    their request is beyond the scope of this Biennial Review
    proceeding.

[^124]: Revision of the Commission's Rules to Ensure Compatibility with
    Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102, *Order
    on Reconsideration*, FCC 02-318 (rel. Nov. 26, 2002).

[^125]: 47 C.F.R. § 20.20.

[^126]: 47 C.F.R. § 20.20(a).

[^127]: On March 25, 2002, the Bureau assumed the regulatory duties
    associated with the Multipoint Distribution Service (MDS) and the
    Instructional Television Fixed Service (ITFS). *See* Radio Services
    Are Transferred From Mass Media Bureau to Wireless
    Telecommunications Bureau, *Public Notice*, 17 FCC Rcd 5077 (2002).
    The Commission regulates ITFS pursuant to Part 74 of its rules, 47
    C.F.R. §§ 74.1 *et seq.* The Bureau does not, however, consider ITFS
    to be a telecommunications service and therefore examination of this
    service falls outside of the scope of this Biennial Review.

[^128]: Amendment of Parts 21 and 74 to Enable Multipoint Distribution
    Service and Instructional Television Fixed Service Licensees to
    Engage in Fixed Two-Way Transmissions, MM Docket No. 97-217, *Report
    and Order*, 13 FCC Rcd 19112 (1998), *recon.,* 14 FCC Rcd 12764
    (1999), *further recon*., 15 FCC Rcd 14566 (2000) (*Two-Way Order*).

[^129]: *See Inquiry Concerning the Deployment of Advanced
    Telecommunications Capability*, 15 FCC Rcd 20913 (2000).

[^130]: *See Annual Assessment of the Status of Competition in Markets
    for the Delivery of Video Programming*, 17 FCC Rcd 1244 (2002).

[^131]: *See generally Two Way Order*, 15 FCC Rcd at 14566

[^132]: Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Service to Support the
    Introduction of New Advanced Wireless Services, Including Third
    Generation Wireless Systems, *First Report and Order and Memorandum
    Opinion and Order*, 16 FCC Rcd 17222 (2001).

[^133]: *See* FCC Spectrum Study of the 2500-2690 MHz Band: Final
    Report, March 30, 2001, at 31 (ITFS/MDS and third-generation
    wireless systems must be separated by distances exceeding 100 miles
    to ensure that ITFS/MDS transmitters will not cause harmful
    interference to 3G receivers).

[^134]: Wireless Telecommunications Bureau Seeks Comment on Proposal to
    Revise Multichannel Multipoint Distribution Service and the
    Instructional Television Fixed Service Rules, *Public Notice*, DA
    02-2732 (rel. Oct. 17, 2002).

[^135]: *See Competitive Bidding Conforming Edits Order, supra*
    (modifying or eliminating sections 21.950-21.953 and 21.955-21.960).

[^136]: 47 C.F.R. Part 22.

[^137]: *See Seventh CMRS Competition Report*, 17 FCC Rcd at 12988.

[^138]: *See* Federal Communications Commission Biennial Regulatory
    Review 2000, CC Docket No. 00-175, *Updated Staff Report*, Appendix
    IV at 56, 59-60, 62, 64, 67-68 (rel. Jan. 17, 2001) (*2000 Biennial
    Review Staff Report*).

[^139]: *Id*.

[^140]: In the Matter of the 2000 Biennial Regulatory Review, CC Docket
    No. 00-175, *Report*, 16 FCC Rcd 1207, 1230-31 ¶ 67 (2001) (*2000
    Biennial Review Order*).

[^141]: Year 2000 Biennial Regulatory Review -- Amendment of Part 22 of
    the Commission\'s Rules to Modify or Eliminate Outdated Rules
    Affecting the Cellular Radiotelephone Service and other Commercial
    Mobile Radio Services, WT Docket No. 01-108, *Notice of Proposed
    Rulemaking*, 16 FCC Rcd 11169 (2001).

[^142]: Year 2000 Biennial Regulatory Review -- Amendment of Part 22 of
    the Commission's Rules to Modify or Eliminate Outdated Rules
    Affecting the Cellular Radiotelephone Service and other Commercial
    Mobile Radio Services, WT Docket No. 01-108, *Report and Order*, 17
    FCC Rcd 18401 (2002); Year 2000 Biennial Regulatory Review --
    Amendment of Part 22 of the Commission's Rules to Modify or
    Eliminate Outdated Rules Affecting the Cellular Radiotelephone
    Service and other Commercial Mobile Radio Services, WT Docket No.
    01-108, *Second Report and Order*, 17 FCC Rcd 18485 (2002); Year
    2000 Biennial Regulatory Review -- Amendment of Part 22 of the
    Commission's Rules to Modify or Eliminate Outdated Rules Affecting
    the Cellular Radiotelephone Service and other Commercial Mobile
    Radio Services, WT Docket No. 01-108, *Erratum*, DA 02-2969 (rel.
    Nov. 4, 2002) (*Cellular Biennial Review First Report and Order* and
    *Cellular Biennial Review Second Report and Order*, respectively;
    collectively *Cellular Biennial Review Orders*).

[^143]: *See Competitive Bidding Conforming Edits Order*, *supra*
    (modified or eliminated sections 22.201, 22.203, 22.205, 22.207,
    22.209, 22.211, 22.213, 22.215, 22.217, 22.223, 22.225,
    22.227-22.228, 22.960-22.961, and 22.967).

[^144]: CTIA Petition at 20-22.

[^145]: RCA Reply Comments at 5.

[^146]: Radiosoft Comments at 1.

[^147]: AMTA Reply Comments at 8-9.

[^148]: *Cellular Biennial Review First Report and Order,* 17 FCC Rcd at
    18401.

[^149]: 47 C.F.R Part 22, subpart E.

[^150]: *See ULS Report and Order*, 13 FCC Rcd 21027.

[^151]: 47 C.F.R. §§ 22.501-22.529.

[^152]: *See Seventh CMRS Competition Report*, 17 FCC Rcd at 13049-51.

[^153]: *See id.* at 13050.

[^154]: 47 C.F.R. Part 22, subpart F.

[^155]: 47 C.F.R. Part 22, subpart G.

[^156]: Although there currently are two nationwide commercial
    air-ground radiotelephone licensees, only one (Verizon Airfone)
    intends to continue to provide commercial air-ground service.

[^157]: In the Matter of AirCell, Inc., Petition Pursuant to Section 7
    of the Act, for a Waiver of the Airborne Cellular Rule, or, in the
    Alternative for a Declaratory Ruling, *Order*, 14 FCC Rcd 806 (WTB
    1998) (*AirCell Order*), *affirmed, Memorandum Opinion and Order,*
    15 FCC Rcd 9622 (2000).

[^158]: 47 C.F.R. Part 22, subpart H.

[^159]: *See Seventh CMRS Competition Report*, 17 FCC Rcd at
    12993-13028, 13051-68.

[^160]: *Spectrum Aggregation Limits Order*, 16 FCC Rcd at 22669-70 ¶ 2,
    22670 ¶ 5.

[^161]: *See Cellular Biennial Review First Report and Order,* 17 FCC
    Rcd 18401; *Cellular Biennial Review Second Report and Order,* 17
    FCC Rcd 18485.

[^162]: 47 C.F.R. §§ 22.901, 22.933.

[^163]: *Spectrum Aggregation Limits Order*, 16 FCC Rcd at 22675-76 ¶
    17.

[^164]: *Spectrum Aggregation Limits Order*, 16 FCC Rcd at 22674-75 ¶
    15.

[^165]: 47 C.F.R. § 22.911(b).

[^166]: Commnet Comments at 4.

[^167]: *Id.* at 4-5.

[^168]: RCA Reply Comments at 6.

[^169]: Commnet Comments at 6 and n.7.

[^170]: *Id.* at 7.

[^171]: 47 C.F.R. § 22.919.

[^172]: CTIA Petition at 21.

[^173]: 47 C.F.R. § 22.941.

[^174]: *See Cellular Biennial Review First Report and Order,* 17 FCC
    Rcd 18401*.*

[^175]: *See generally* Lucent Comments.

[^176]: *Id.* at 1-2.

[^177]: *Id.* at 2-3.

[^178]: *Id.* at 3.

[^179]: Dobson et al. Comments at 2.

[^180]: CTIA Petition at 22-23; CTIA Further Comments at 6.

[^181]: 47 C.F.R. § 22.935.

[^182]: CTIA Petition at 22.

[^183]: In the Matter of Amendment of Part 22 of the Commission\'s Rules
    to Provide for Filing and Processing of Applications for Unserved
    Areas in the Cellular Service and to Modify Other Cellular Rules, CC
    Docket No. 90-6, *Second Report and Order*, 7 FCC Rcd 2449 (1992).

[^184]: 47 C.F.R. Part 22, subpart I.

[^185]: Service is provided by other services as well: *e.g.*, WCS,
    satellite, VHF maritime, private radio (formerly petroleum radio
    service), private (offshore), and microwave.

[^186]: 47 U.S.C. § 1002.

[^187]: 47 C.F.R. Part 22, subpart J.

[^188]: *Id.*

[^189]: *See* Communications Assistance for Law Enforcement Act*,*
    *Third Report and Order*, 14 FCC Rcd 16794 (1999).

[^190]: 47 C.F.R. Part 24, subpart J.

[^191]: 64 C.F.R. Part 64, subpart W.

[^192]: Section 11 of the Communications Act instructs the Commission to
    review "all regulations issued *under this Act* . . ." 47 U.S.C. §
    161 (emphasis added).

[^193]: 47 C.F.R. Part 24. Narrowband PCS operates in the 901-902,
    930-931, and 940-941 MHz bands. Broadband PCS operates in the
    1850-1910 and 1930-1990 MHz bands.

[^194]: *See* Communications Assistance for Law Enforcement Act (CALEA),
    Pub. Law No. 103-414, 108 Stat. 4279 (1994). We discuss these rules,
    *supra*, when discussing Part 22, Subpart J.

[^195]: *See* Amendment of the Commission's Rules to Establish New
    Personal Communications Services, *Second Report and Order*, 8 FCC
    Rcd 7700 (1993); Amendment of the Commission's Rules to Establish
    New Personal Communications Services, *Third Report and Order*, 9
    FCC Rcd 1337 (1994).

[^196]: *See* Implementation of Section 309(j) of the Communications Act
    -- Competitive Bidding*,* *Fifth Report and Order*, 9 FCC Rcd 5532
    (1994); Implementation of Section 309(j) of the Communications Act
    -- Competitive Bidding, *Fourth Memorandum Opinion and Order*, 9 FCC
    Rcd 6858 (1994); Implementation of Section 309(j) of the
    Communications Act -- Competitive Bidding, *Fifth Memorandum Opinion
    and Order*, 10 FCC Rcd 403 (1994).

[^197]: *See* Amendment of the Commission's Rules to Establish New
    Personal Communications Services, Narrowband PCS, *Second Report and
    Order,* 15 FCC Rcd 10456 (2000).

[^198]: *See* Communications Assistance for Law Enforcement Act, CC
    Docket No. 97-213, *Third Report and Order*, 14 FCC Rcd 16794
    (1999), *aff'd in part, rev'd in part, United States Telecom Ass'n
    v. FCC,* D.C. Circuit No. 99-1442 (Aug. 15, 2000).

[^199]: *See Competitive Bidding Conforming Edits Order*, *supra*. As
    discussed in the analysis of Part 1 Subpart Q, above, in the
    *Competitive Bidding Conforming Edits Order* the Wireless
    Telecommunications Bureau modified or eliminated the following
    narrowband and broadband PCS rules pertaining to competitive bidding
    to conform with the general competitive bidding rules set forth in
    Part 1 of the Commission's rules: 24.301, 24.321, 24.701-24.702,
    24.704, 24.706, 24.708-24.709, 24.711-24.712, 24.714, 24.716-24.717,
    and 24.720.

[^200]: 47 U.S.C. § 309(j)(3).

[^201]: *See* *Seventh CMRS Competition Report*, 17 FCC Rcd at 13049.

[^202]: *See id.* at 13067.

[^203]: *See id.* at 13049-50.

[^204]: *See id.* at 13067.

[^205]: *See id.* at 13007-09.

[^206]: *See id.* at 13038-10, 13012-14.

[^207]: *See id.* at 13008.

[^208]: *See Cellular Biennial Review First Report and Order*, 17 FCC
    Rcd at 18424-26 ¶¶ 44-46.

[^209]: CTIA Petition at 22-23; Sprint Reply Comments at 8-10.

[^210]: RadioSoft Comments at 1-3.

[^211]: *Id.* A significant portion of RadioSoft's comments specifically
    request harmonizing and streamlining of several of the broadcast
    rules within the purview of the Media Bureau and regulated pursuant
    to Part 73 of the Commission's regulations. *Id.*

[^212]: Weblink Comments at 3.

[^213]: *Id.* at 3-4.

[^214]: Commnet Comments at 7-8.

[^215]: *See generally* Powerwave Comments.

[^216]: *See generally* Lucent Comments.

[^217]: *See* Amendment of the Commission's Rules to Establish New
    Personal Communications Services, Narrowband PCS, *Third Report and
    Order and Order on Reconsideration*, 16 FCC Rcd 9713, 9719-20
    (2001); Amendment of the Commission's Rules To Establish New
    Personal Communications Services, Narrowband PCS, *Second Report and
    Order*, 15 FCC Rcd 10456, 10462 (2000).

[^218]: *See Cellular Biennial Review First Report and Order*, 17 FCC
    Rcd at 18424-26 ¶¶ 44-46.

[^219]: The petition for reconsideration period ends on January 17,
    2003.

[^220]: 47 C.F.R. Part 27.

[^221]: Section 303(y)(2) authorizes the Commission to allocate spectrum
    to provide flexibility of use upon making certain findings. *See* 47
    U.S.C. § 303(y)(2). The Commission must make affirmative findings
    that such flexibility: (1) is consistent with international
    agreements, (2) would be in the public interest, (3) would not deter
    investment in communications services and systems, or technology
    development, and (4) would not result in harmful interference among
    users. *See* *id.*

[^222]: What is commonly referred to as MDS or wireless cable spectrum
    includes 33 different 6 megahertz channels in the 2.1-2.2 GHz and
    2.5-2.7 GHz spectrum bands. These channels include MDS, MMDS, and
    ITFS channels. MDS operators generally use the MMDS and MDS channels
    and lease excess capacity from ITFS operators.

[^223]: The 4.9GH Band Transferred From Federal Government Use, WT
    Docket No. 00-32, *Second Report and Further Notice* *of Proposed
    Rulemaking*, 17 FCC Rcd 3955 (2002).

[^224]: *See Competitive Bidding* *Conforming Edits Order*, *supra*
    (modifying or eliminating sections 27.201- 27.206, 27.208, and
    27.210).

[^225]: *Id.* (modifying or eliminating sections 27.501-27.502, and
    27.701).

[^226]: Amendments to Parts 1, 2, 27 and 90 of Commission's Rules to
    License Services in 216-220 MHz, 1390-1395 MHz, 1427-1429 MHz,
    1429-1432 MHz, 1432-4135 MHz, 1670-1675 MHz and 2385-2390 MHz
    Government Transfer Bands, *Report and Order*, 17 FCC Rcd 9980
    (2002).

[^227]: 47 C.F.R. Part 80.

[^228]: Amendment of the Commission's Rules Concerning Maritime
    Communications, PR Docket 92-257, *Second Memorandum Opinion and
    Order and Fifth Report and Order*, 17 FCC Rcd 6685 (2002).

[^229]: Amendment of Parts 13 and 80 of the Commission's Rules
    Concerning Maritime Communications, WT Docket No. 00-48, *Report and
    Order and Further Notice of Proposed Rulemaking*, 17 FCC Rcd 6741,
    5943 (2002).

[^230]: *See Competitive Bidding Conforming Edits Order*, *supra*
    (modifying or eliminating sections 80.1251 and 80.1252).

[^231]: API Comments at 16.

[^232]: 47 C.F.R. § 80.13(c).

[^233]: API Comments at 16-17, *citing* 47 C.F.R. §§ 80.373(f),
    80.871(d).

[^234]: API Comments at 17, *citing* 47 C.F.R. § 80.1123.

[^235]: LMS Wireless Reply Comments at 10.

[^236]: *Id.* at 10-11.

[^237]: *See* Globe Wireless *Ex Parte* Comments. We note that Globe did
    not file these comments until November 8, 2002, after the comment
    period had closed. In light of the importance of this proceeding, we
    will, pursuant to Section 1.1206 of the Commission's rules, consider
    these late-filed comments as an *ex parte* submission.

[^238]: Amendment of Parts 13 and 80 of the Commission's Rules
    Concerning Maritime Communications, WT Docket No. 00-48, *Report and
    Order and Further Notice of Proposed Rulemaking*, 17 FCC Rcd 6741
    (2002).

[^239]: 47 C.F.R. Part 90.

[^240]: Omnibus Budget Reconciliation Act of 1993, Pub. Law No. 103-66,
    107 Stat. 312 (largely codified at 47 U.S.C. § 332 *et seq.*) (1993
    Budget Act or OBRA).

[^241]: Implementation of Sections 3(n) and 332 of the Communications
    Act Regulatory Treatment of Mobile Services, *Second Report and
    Order*, 9 FCC Rcd 1411 (1994) (*CMRS Second Report and Order*).

[^242]: *See*, *e.g.*, Part 90, subpart L (Authorization and Use of
    Frequencies in the 470-512 MHz Band).

[^243]: *See*, *e.g.*, Part 90, subpart U (Competitive Bidding
    Procedures for the 900 MHz Specialized Mobile Radio Service).

[^244]: Biennial Regulatory Review -- Amendment of Parts 0, 1, 13, 22,
    24, 26, 27, 80, 87, 90, 95, 97, and 101 of the Commission's Rules to
    Facilitate the Development and Use of the Universal Licensing System
    in the Wireless Telecommunications Services*, Report and Order*, 13
    FCC Rcd 21027 (1998); *Memorandum Opinion and Order on
    Reconsideration*, 14 FCC Rcd 11145 (1998).

[^245]: *Seventh CMRS Competition Report*, 17 FCC Rcd at 12988-13024.

[^246]: 1998 Biennial Regulatory Review -- 47 C.F.R. Part 90 - Private
    Land Mobile Radio Services, WT Docket No. 98-182, *Memorandum
    Opinion and Order and Second Report and Order*, 17 FCC Rcd 9830
    (2002) (*PLMRS MO&O and Second R&*O). *See also* 1998 Biennial
    Regulatory Review -- 47 C.F.R. Part 90 - Private Land Mobile Radio
    Services, WT Docket No. 98-182, *Report and Order and Further Notice
    of Proposed Rule Making*, 15 FCC Rcd 16673 (2000).

[^247]: In the Matter of Improving Public Safety in the 800 MHz Band;
    Consolidating the 900 MHz Industrial/Land Transportation and
    Business Pool Channels, WT Docket No. 02-55, *Notice of Proposed
    Rulemaking,* 17 FCC Rcd 4873, *modified by erratum*, 17 FCC Rcd 7169
    (2002).

[^248]: *See Competitive Bidding Conforming Edits Order, supra*
    (modifying or eliminating sections 90.705 (220-222 MHz SMR service);
    90.901-90.903, 90.905-90.910, and 90.912-90.913 (800 MHz SMR);
    90.801-90.803, 90.805-90.807, 90.809-90.810, 90.812-90.815 (900 MHz
    SMR); 90.1001, 90.1003, 90.1005, 90.1007, 90.1009, 90.1011, 90.1013,
    90.1015, 90.1017, 90.1021, 90.1023, and 90.1025 (220 MHz Radio
    Service); and 90.1101 and 90.1103 (Location and Monitoring
    Service)).

[^249]: Amendments to Parts 1, 2, 27 and 90 of Commission's Rules to
    License Services in 216-220 MHz, 1390-1395 MHz, 1427-1429 MHz,
    1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz and 2385-2390 MHz
    Government Transfer Bands, *Report and Order*, 17 FCC Rcd 9980
    (2002).

[^250]: 47 C.F.R. Part 90, subpart R.

[^251]: Amendment of Part 90 of the Commission's Rules and Policies for
    Applications and Licensing of Low Operations in the Private Land
    Mobile 450-470 Band, WT Docket No. 01-146, *Notice of Proposed
    Rulemaking*, 16 FCC Rcd 14949 (2001).

[^252]: API Comments at 14-15.

[^253]: PCIA Reply Comments at 2-3.

[^254]: 47 C.F.R. Part 90, subpart G.

[^255]: AMTA Reply Comments at 3.

[^256]: *See* Amendment of Part 90 of the Commission's Rules to
    Implement a Conditional Authorization Procedure for Proposed Private
    Land Mobile Radio Service Stations, *Report and Order*, 4 FCC Rcd
    8280 (1989).

[^257]: *Id.* at 8283 ¶ 25.

[^258]: *Id.*

[^259]: *Id*.

[^260]: 47 C.F.R. Part 90, subpart H.

[^261]: In the Matter of Amendment of Sections 90.20 and 90.175 of the
    Commission's Rules for Frequency Coordination of Public Safety
    Frequencies in the Private Land Mobile Radio Below 470 MHz Band,
    *Notice of Proposed Rulemaking*, 17 FCC Rcd 17534 (2002).

[^262]: CTIA Petition at 26-27.

[^263]: CTIA Petition at 27.

[^264]: AMTA Reply Comments at 7.

[^265]: AAPC Comments at 2-3.

[^266]: APCO Reply Comments at 2.

[^267]: API Comments at 13.

[^268]: API Comments at 12.

[^269]: *See* Wireless Telecommunications Bureau Accepts and Approves
    Consensus Analytical Method for Determining Additional Frequency
    Coordination Requirements for Certain Private Land Mobile
    150-470-MHz Applications, *Public Notice*, 17 FCC Rcd 10628 (2002).

[^270]: PCIA Reply Comments at 2.

[^271]: 47 C.F.R. Part 90, subpart G.

[^272]: AMTA Reply Comments at 6-7.

[^273]: Motorola Comments at 1-2.

[^274]: *See* Replacement of Part 90 by Part 88 to Revise the Private
    Land Mobile Radio Services and Modify the Policies Governing Them,
    *Report and Order and Further Notice of Proposed Rulemaking*, 10 FCC
    Rcd 10076, 10113 ¶ 71 (1995).

[^275]: 47 C.F.R. Part 90, subpart L.

[^276]: *See* 47 C.F.R. §§ 22.621 and 22.651.

[^277]: *See* Replacement of Part 90 by Part 88 to Revise the Private
    Land Mobile Radio Services and Modify the Policies Governing Them,
    PR Docket No. 92-235, *Report and Order,* 10 FCC Rcd 10076 (1995);
    *Memorandum Opinion and Order*, 11 FCC Rcd 17676 (1996); Replacement
    of Part 90 by Part 88 to Revise the Private Land Mobile Radio
    Services and Modify the Policies Governing Them, PR Docket No.
    92-235, *Second Report and Order*, 12 FCC Rcd 14307 (1997). *See* 47
    C.F.R. § 90.187(b). The FCC has recognized two types of trunking:
    centralized and decentralized. A centralized trunked system uses one
    or more control channels to transmit channel assignment information
    to the mobile radios. In a decentralized trunked system, the mobile
    radios scan the available channels and find one that is clear.

[^278]: The seven categories of eligible users are: (1) Public safety;
    (2) Power and telephone maintenance licensees; (3) Special
    industrial licensees; (4) Business licensees; (5) Petroleum, forest
    products, and manufacturers licensees; (6) Railroad, motor carrier,
    and automobile emergency licensees; and (7) Taxicab licensees. 47
    C.F.R. § 90.311.

[^279]: 47 C.F.R. § 90.311.

[^280]: *Id*.

[^281]: 47 C.F.R. § 90.307.

[^282]: 47 C.F.R. § 90.313(a).

[^283]: 47 C.F.R. § 90.313(c).

[^284]: AMTA Reply Comments at 3.

[^285]: 47 C.F.R. Part 90, subpart M.

[^286]: *See* Amendment of Part 90 of the Commission's Rules to Adopt
    Regulations for Automatic Vehicle Monitoring Systems, *Report and
    Order*, 10 FCC Rcd 4695, 4738 ¶ 86 (1995) (*LMS Report and Order*).

[^287]: The definition of LMS also includes existing Automatic Vehicle
    Monitoring operations below 512 MHz. Unlike other LMS operations,
    LMS systems below 512 MHz may neither offer service to the public
    nor provide service on a commercial basis. *See LMS Report and
    Order*, 10 FCC Rcd at 4738 ¶ 86.

[^288]: Transportation Equity Act for the 21^st^ Century, Pub. L.
    105-178, 112 Stat. 107 (1998).

[^289]: Amendment of Parts 2 and 90 of the Commission's Rules to
    Allocate the 5.850-5.925 GHz Band to the Mobile Service for
    Dedicated Short Range Communications of Intelligent Transportation
    Services, *Report and Order*, 13 FCC Rcd 14321 (1999).

[^290]: Amendment of the Commission's Rules Regarding Dedicated
    Short-Range Communication Services in the 5.850-5.925 GHz Band (5.9
    GHz Band), WT Docket No. 01-90, *Notice of Proposed Rulemaking and
    Order*, FCC 00-302 (rel. Nov. 15, 2002) (*DSRCS NPRM*).

[^291]: Because LMS systems below 512 MHz may neither offer service to
    the public nor provide service on a commercial basis, the status of
    competition is not relevant to this analysis.

[^292]: On April 10, 2002, the Wireless Telecommunications Bureau issued
    a public notice seeking comment on Progeny's Petition. *See*
    "Wireless Telecommunications Bureau Seeks Comment On Petition For
    Rulemaking Regarding Location And Monitoring Service Rules," *Public
    Notice,* 17 FCC Rcd 6438 (2002).

[^293]: *See DSRCS NPRM and Order,* FCC 00-302*.*

[^294]: "Wireless Telecommunications Bureau Seeks Comment Regarding
    Intelligent Transportation System Applications Using Dedicated Short
    Range Communications," WT Docket 01-90, *Public Notice*, 16 FCC Rcd
    5558, 16 FCC Rcd 6764, 16 FCC Rcd 7985 (2001).

[^295]: *See DSRCS NPRM and Order,* FCC 00-302.

[^296]: 47 C.F.R. Part 90, subpart R.

[^297]: *PLMRS MO&O and Second R&*O, 17 FCC Rcd 9830.

[^298]: PCIA Reply Comments at 3.

[^299]: *See* Amendment of the Commission's Rules governing the Private
    Land Mobile Radio Services to provide a New Part 90 that
    re-regulates and consolidates Parts 89, 91, and 93, *Notice of
    Proposed Rulemaking*, 65 FCC 2d 975, 980 ¶18 (1977).

[^300]: *See* 47 C.F.R. § 90.35.

[^301]: 47 C.F.R. Part 90, subpart P.

[^302]: *See* Revision of Part 22 and Part 90 of the Commission's Rules
    to Facilitate Future Development of Paging Systems, *Second Report
    and Order and Further Notice of Proposed Rulemaking*, 12 FCC Rcd
    2732 (1997) (*Second Report and Order*).

[^303]: *See* Revision of Part 22 and Part 90 of the Commission's Rules
    to Facilitate Future Development of Paging Systems, *Memorandum
    Opinion and Order on Reconsideration and* *Third Report and Order*,
    14 FCC Rcd 10030 (1999) (*Third Report and Order*).

[^304]: *See* "929 and 931 MHz Paging Auction Closes," *Public Notice*,
    15 FCC Rcd 4858 (2000).

[^305]: *See Seventh CMRS Competition Report*, 17 FCC Rcd at
    13049-13058.

[^306]: In the Matter of Revision of Part 22 and Part 90 of the
    Commission's Rules to Facilitate Future Development of Paging
    Systems, *Order*, 16 FCC Rcd 20229 (CWD 2001).

[^307]: 47 C.F.R. Part 90, subpart S.

[^308]: Implementation of Sections 3(n) and 332 of the Communications
    Act Regulatory Treatment of Mobile Services, *Second Report and
    Order*, 9 FCC Rcd 1411 (1994).

[^309]: 47 C.F.R. Part 90, subparts U and V.

[^310]: *See Seventh CMRS Competition Report*, 17 FCC Rcd at 13049-58.

[^311]: "800 MHz Specialized Mobile Radio (SMR) Service General Category
    (851-854 MHz) and Upper Band (861-865 MHz) Auction Closes; Winning
    Bidders Announced," *Public Notice*, DA 00-2037 (rel. Sept. 6,
    2000).

[^312]: "800 MHz SMR Service Lower 80 Channels Auction Closes; Winning
    Bidders Announced," *Public Notice*, DA 00-2752 (rel. Dec. 7, 2000).

[^313]: "Multi-Radio Service Auction Closes; Winning Bidders Announced,"
    *Public Notice*, 17 FCC Rcd 1446 (2002).

[^314]: PCIA Reply Comments at 4-6.

[^315]: 47 C.F.R. § 90.621(b)(5).

[^316]: 47 C.F.R. § 90.621(b)(4).

[^317]: 47 C.F.R. § 90.629(e).

[^318]: 47 C.F.R. § 90.631(i).

[^319]: 47 C.F.R. § 90.653.

[^320]: 47 C.F.R. § 90.658.

[^321]: CTIA Petition at 27-28.

[^322]: PCIA Reply Comments at 6.

[^323]: 47 C.F.R § 90.621(b)(5).

[^324]: 47 C.F.R. Part 90, subpart T.

[^325]: 47 C.F.R. Part 90, subpart W.

[^326]: *See* Amendment of Part 90 of the Commission's Rules to Provide
    for the Use of the 220-222 MHz Band by the Private Land Mobile Radio
    Services, PR Docket No. 89-552, *Third Report and Order; Fifth
    Notice of Proposed Rulemaking*, 12 FCC Rcd 10943 (1997) (*220 MHz
    Third Report and Order*).

[^327]: *See* Amendment of Part 90 of the Commission's Rules to Provide
    for the Use of the 220-222 MHz Band by the Private Land Mobile Radio
    Services*, Fourth Report and Order*, 12 FCC Rcd 13453 (1997).

[^328]: *See* Amendment of Part 90 of the Commission's Rules to Provide
    for the Use of the 220-222 MHz Band by the Private Land Mobile Radio
    Services, *Memorandum Opinion Order on Reconsideration*, 13 FCC Rcd
    14569 (1998).

[^329]: *Id.*

[^330]: *See Seventh CMRS Competition Report*, 17 FCC Rcd at 12996*.*

[^331]: *Id.*

[^332]: *See Competitive Bidding Conforming Edits Order*, *supra*
    (modifying or eliminating sections 90.705 (220-222 MHz SMR service)
    and 90.1001, 90.1003, 90.1005, 90.1007, 90.1009, 90.1011, 90.1013,
    90.90.1015, 90.1017, 90.1021, 90.1023, and 90.1025 (220 MHz SMR
    service)).

[^333]: LMS Wireless Reply Comments at 9-10.

[^334]: 47 C.F.R. § 90.743 (c).

[^335]: 47 C.F.R. § 90.737.

[^336]: 47 C.F.R. Part 95.

[^337]: Amendment of Part 95 of the Commission's Rules to Provide
    Regulatory Flexibility in the 218-219 MHz Service*, Memorandum
    Opinion and Order and Notice of Proposed Rulemaking*, 13 FCC Rcd
    19064 (1988), *recon. granted* 14 FCC Rcd 21078 (1999), *recon.
    denied* 15 FCC Rcd 25020 (2000).

[^338]: 47 C.F.R. Part 1.

[^339]: Amendment of Part 95 of the Commission's Rules to Provide
    Regulatory Flexibility in the 218-219 MHz Service, *Report and Order
    and Memorandum Opinion and Order*, 15 FCC Rcd 1497 (1999).

[^340]: *See* Federal Communications Commission Announces Change to The
    Election Date For 218-219 MHz Service, *Public Notice,* 16 FCC Rcd
    4007 (2000); Wireless Telecommunications Bureau Announces Revised
    Election Date (January 31, 2001) And Amended Eligibility List For
    218-219 MHz Service, *Public Notice*, 16 FCC Rcd 5937 (2001).

[^341]: *See Competitive Bidding Conforming Edits Order*, *supra*
    (modifying or eliminating sections 95.816 and 95.823).

[^342]: LMS Wireless Reply Comments at 5, 9-10.

[^343]: 47 C.F.R. Part 101.

[^344]: *See, e.g.,* 47 C.F.R. §§ 101.21(e), 101.61(c).

[^345]: *See, e.g.*, 47 C.F.R. §§ 101.13, 101.15.

[^346]: Reorganization and Revision of Parts 1, 2, 21, and 94 of the
    Rules to Establish a New Part 101 Governing Terrestrial Microwave
    Fixed Radio Services*, Report and Order*, 11 FCC Rcd 13449 (1996)
    (*Part 101 Order*).

[^347]: *Id.* at 13452-53.

[^348]: *See* Amendment of Part 101 of the Commission's Rules to
    Streamline Processing of Microwave Applications in the Wireless
    Telecommunications Services, *Report and Order*, 17 FCC Rcd 15040
    (2002) (*Microwave Report and Order*).

[^349]: *Id.* at 15041 ¶ 1.

[^350]: *Id.* at 15042-43 ¶¶ 2-3.

[^351]: In the Matter of Amendment to Parts 1, 2, 87 and 101 of the
    Commission's Rules to License Fixed Services at 24 GHz, *Order on
    Reconsideration*, 16 FCC Rcd 11156 (2001).

[^352]: *See Competitive Bidding Conforming Edits Order*, *supra*
    (modifying or eliminating sections 101.56 (Fixed Microwave
    services); 101.531, 101.537, and 101.538 (Digital Electronic
    Messaging service); 101.1101-101.1102, 101.1107, 101.1109-101.1110,
    101.1112, 101.1201-101.1209 (Local Multipoint Distribution service);
    101.1317 and 101.1319 (Multiple Address Service)).

[^353]: Winstar Comments at 1-2, *citing* 47 C.F.R. § 101.17.

[^354]: Winstar Comments at 3, *citing* Amendment of Part 22 of the
    Commission's Rules Relating to License Renewals in the Domestic
    Public Cellular Radio Telecommunications Service, *Report and
    Order*¸7 FCC Rcd 719 (1992); Amendment of Part 22 of the
    Commission's Rules Relating to License Renewals in the Domestic
    Public Cellular Radio Telecommunications Service, *Memorandum
    Opinion and Order on Reconsideration*, 8 FCC Rcd 2834 (1993).

[^355]: *See* Amendment of the Commission's Rules Regarding the
    37.0-38.6 and 38.6-40.0 GHz Bands, *Report and Order and Second
    Notice of Proposed Rulemaking*, 12 FCC Rcd 18600, 18623-18625
    (1997).

[^356]: *See*, *e.g.*, Applications for Renewal of Licenses to Provide
    Microwave Services in the 38.6-40.0 GHz Band, *Memorandum Opinion
    and Order*, 17 FCC Rcd 4404 (2002).

[^357]: *See* Amendment of Parts 2, 21, 74 and 94 of the Commission's
    Rules to Allocate Spectrum at 18 GHz for, and to Establish other
    Rules and Policies Pertaining to, the Use of Radio in Digital
    Termination Systems and in Point-to-Point Microwave Radio Systems
    for the Provision of Digital Electronic Message Services, and for
    other Common Carrier, Private Radio, and Broadcast Auxiliary
    Services, 54 Rad. Reg. 2d 1091 (1983).

[^358]: *See id*.

[^359]: *See* Amendment to Parts 1, 2, 87 and 101 of the Commission's
    Rules to License Fixed Services at 24 GHz*,* *Report and Order*, 15
    FCC Rcd 16934 (2000).

[^360]: *See* Amendment to Parts 1, 2, 87 and 101 of the Commission's
    Rules to License Fixed Services at 24 GHz*,* *Notice of Proposed
    Rulemaking*, 14 FCC Rcd 19263, 19275 ¶ 20 (1999).

[^361]: *See Microwave Report and Order*, 17 FCC Rcd at 15063-64 ¶ 50.

[^362]: *See Competitive Bidding Conforming Edits Order*, *supra*
    (modifying or eliminating sections 101.531, 101.537, and 101.538).

[^363]: 47 C.F.R. Part 101.

[^364]: 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*, Sixth Notice of Proposed Rulemaking*, 14 FCC Rcd 21520,
    21532 ¶ 32 (1999).

[^365]: *See generally* 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, *Third Report and Order and Memorandum
    Opinion and Order*, 15 FCC Rcd 11857, 11875 App. B (comprehensive
    list of LMDS launches and the types of service each carrier is
    providing) (*LMDS Third Report and Order*).

[^366]: *See id*.

[^367]: *Id.*

[^368]: *Id.* at 11871 ¶ 33.

[^369]: *See* FCC Report to Congress on Spectrum Auctions, WT Docket No.
    97-150, *Report*, FCC 97-353, Section III, p. 8 (rel. October 9,
    1997) (citing studies estimating costs of \$800 per application
    under the lottery system and \$130,000 per application under the
    comparative hearing process).

[^370]: *See* Amendment of Part 1 of the Commission's Rules Competitive
    Bidding Procedures, Allocation of Spectrum Below 5 GHz Transferred
    from Federal Government Use*, Third Report and Order and Second
    Further Notice of Proposed Rule Making*, 13 FCC Rcd 374 (1997),
    *modified by* *erratum*, 13 FCC Rcd 10274 (1998) (*Part 1 Third
    Report and Order*).

[^371]: *See Competitive Bidding Conforming Edits Order*, *supra*
    (modifying or eliminating sections 101.1101-101.1102, 101.1107, and
    101.1109-101.1110, 101.1112).

[^372]: *See Microwave Report and Order, supra.*

[^373]: 47 C.F.R. Part 101.

[^374]: *See FCC Report to Congress on Spectrum Auctions*, WT Docket No.
    97-150, *Report*, FCC 97-353, Section III, pg. 8 (rel. October 9,
    1997) (citing studies estimating costs of \$800 per application
    under the lottery system and \$130,000 per application under the
    comparative hearing process).

[^375]: *See Microwave Report and* Order, 17 FCC Rcd 15040.

[^376]: *See Competitive Bidding Conforming Edits Order*, *supra*
    (modifying or eliminating sections 101.1317 and 101.1319).

[^377]: API Comments at 7.

[^378]: *Id.* at 6.