Before the

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In the Matter of )

)

The 4.9 GHz Band Transferred from ) WT Docket No. 00-32

Federal Government Use )

**NOTICE OF PROPOSED RULEMAKING**

Adopted: February 23, 2000 Released: February 29, 2000

**Comment Date:** April 26, 2000

**Reply Comment Date:** May 17, 2000

By the Commission:

**TABLE OF CONTENTS**

Paragraph

I. INTRODUCTION 1

II\. BACKGROUND 3

III\. DISCUSSION 13

A. Re-allocation of the Band 4940-4990 MHz 13

B. Public Safety 25

C. Application, Licensing, and Processing Rules 27

1\. Regulatory Status 31

2\. Eligibility; Spectrum Aggregation 34

3\. Foreign Ownership Restrictions 38

4\. Geographic Areas and Spectrum Blocks 41

5\. License Term; Renewal Expectancy 48

6\. Partitioning and Disaggregation of Licenses 51

7\. Performance Requirements 58

8\. Public Notice 63

D. Operating Rules 65

1\. General Common Carrier Obligations; Forbearance 65

2\. Equal Employment Opportunity 70

E. Technical Rules 72

1\. In-Band Interference Control 73

2\. U.S. Navy Cooperative Engagement Capability System 84

F. Competitive Bidding Procedures 90

1\. Statutory Requirements 92

2\. Incorporation by Reference of Part 1 Standardized Auction Rules 97

3\. Provisions for Designated Entities 98

a\. Background 98

b\. Small Business Definitions 99

IV\. PROCEDURAL MATTERS 104

A. Initial Regulatory Flexibility Analysis 104

B. Paperwork Reduction Analysis 106

C. *Ex Parte* Presentations 108

D. Pleading Dates 109

E. Further Information 112

V. ORDERING CLAUSES 113

Appendix A: Initial Regulatory Flexibility Analysis

Appendix B: Proposed Rules

Appendix C: CEC Operating Area Descriptions

Appendix D: CEC Impacted EAs

# I. INTRODUCTION

1.  In this Notice of Proposed Rulemaking (Notice), we propose to
    allocate and establish licensing and service rules for the band
    4940-4990 MHz (4.9 GHz band) that has recently been transferred from
    Federal Government to private sector use as substitute spectrum for
    the band 4635-4685 MHz reclaimed for Federal Government use. We
    believe this band can support a variety of new and advanced wireless
    applications. We propose to allocate the 4.9 GHz band for fixed and
    mobile services, except aeronautical mobile service, on a primary
    basis and we seek comment on the geographic area and spectrum blocks
    that should be used to license this spectrum. We anticipate that
    this proposed action will benefit the public by permitting and
    encouraging the introduction of new services and the enhancement of
    existing services.

2.  In addition, we propose to license the 4.9 GHz band under Part 27 of
    the Commission\'s Rules,[^1] except to the extent that we propose to
    modify those rules in this Notice to reflect the particular
    characteristics of this spectrum and the services that will be
    permitted to operate in this band.[^2] We also propose that initial
    licenses for the 4.9 GHz band be acquired through competitive
    bidding under Part 1 of the Commission\'s Rules.[^3] Furthermore, in
    a few instances, we propose to codify and conform certain rules for
    the 2.3 GHz band to provide for consistent regulation of Part 27
    services.[^4] Finally, we grant in part a Petition for Rulemaking
    filed by Global Frontiers, Inc. (Global) to revise, among other
    requests, the Commission's rules relating to this band.

# II. BACKGROUND

3.  The Omnibus Budget Reconciliation Act of 1993[^5] required that the
    Secretary of Commerce identify at least 200 megahertz of spectrum
    then allocated for use by Federal Government agencies to be
    transferred to private sector use. All of the 200 megahertz of
    spectrum recommended for reallocation was required to be located
    below 5 gigahertz, with at least 100 megahertz of this spectrum
    below 3 gigahertz.[^6]

4.  OBRA also required the Secretary of Commerce to issue within six
    months of enactment a Preliminary Report identifying bands of
    frequencies for potential reallocation and, furthermore, to issue
    within 18 months a Final Report recommending the spectrum for
    reallocation.[^7] In its report making a preliminary identification
    of spectrum, the Department of Commerce was required to identify at
    least 50 megahertz of spectrum for immediate reallocation,[^8] to
    reserve a significant portion of the 200 megahertz of spectrum until
    after a 10-year period, [^9] and to make the remaining spectrum
    available over the intervening 10 years.[^10]

5.  In accordance with the requirements of OBRA, on February 10, 1994,
    the Department of Commerce released its Preliminary Report.[^11] The
    Preliminary Report identified 10 bands for reallocation, with three
    of these bands identified for immediate reallocation.[^12] One of
    the three frequency bands identified in the Preliminary Report for
    immediate reallocation and private sector use was the band 4660-4685
    MHz.[^13] In February 1995, the Department of Commerce released its
    Final Report on spectrum for reallocation. In pertinent part, the
    Final Report stated that for the band 4660-4685 MHz reallocation had
    already been completed. The Final Report also identified the band
    4635-4660 MHz, the band adjacent to the band 4660-4685 MHz, for
    transfer from Federal Government use to private sector use as of
    January 1, 1997.[^14]

6.  OBRA also required that the Commission allocate and propose
    regulations for the assignment of the immediately available 50
    megahertz of spectrum no later than 18 months after enactment.[^15]
    Thus, on February 7, 1995, the Commission adopted the *GWCS First
    Report and Order* and *Second Notice of Proposed Rulemaking*.[^16]
    The Commission, among other decisions there, allocated the band
    4660-4685 MHz on a primary basis to fixed and mobile services and
    proposed to designate this band for a new service entitled the
    General Wireless Communications Service (GWCS).

7.  On August 2, 1995, the Commission released the *GWCS Second Report
    and Order* that established GWCS and adopted Part 26 of its rules
    setting out licensing and operating rules for the service in the
    band 4660-4685 MHz.[^17] The Commission found that GWCS should
    accommodate a wide variety of potential fixed and mobile service
    uses, such as voice, video and data transmission, private microwave,
    broad­cast auxiliary, and ground-to-air voice and video. The
    Commission also found that GWCS should facilitate the availability
    of frequencies for new tech­nol­o­gies and servic­es, encourage research
    and investment to invent, develop, and market new tech­nol­o­gies, and
    spur their deployment to serve custom­ers.[^18]

8.  On December 17, 1997, the Wireless Telecommunications Bureau
    announced that the auction for licenses in the band 4660-4685 MHz
    would commence on May 27, 1998.[^19] In April 1998, however, the
    Bureau postponed the commencement of the auction[^20] due to a
    demonstrated absence of demand for licenses in the band 4660-4685
    MHz.[^21] This lack of interest may have been due in part to the
    relatively small size of the spectrum block (*i.e.,* 25 megahertz)
    and to potential interference problems in the band.[^22] The U.S.
    Navy uses the spectrum immediately above the 4685 MHz band, as well
    as the spectrum immediately below the 4635 MHz band, to operate its
    Cooperative Engagement Capability (CEC) system.[^23] As a result, as
    detailed in a General Accounting Office Report to Congress, the Navy
    believed that commercial use of the band 4635-4685 MHz could
    adversely affect the CEC system.[^24]

9.  On March 30, 1999, pursuant to Section 6001(a)(3) of OBRA, [^25] the
    Department of Commerce notified the Commission that the Federal
    Government was reclaiming the band 4635-4685 MHz and identifying, as
    substitute spectrum, the 4.9 GHz band.[^26] As required by OBRA, the
    Department of Commerce submitted a Statement of Reasons in support
    of its decision. Among other justifications, the Statement of
    Reasons provides that: (1) the Department of Defense has concluded
    that the loss of the band 4635-4685 MHz would seriously jeopardize
    the national security interests of the United States by adversely
    impacting the operational capabilities of the Navy's CEC
    program; (2) reclaiming this spectrum and substituting the 4.9 GHz
    band will avert this operational impact to the Navy and preserve the
    resources already expended on the three billion dollar CEC
    program; (3) substitution of the 4.9 GHz spectrum will not disrupt
    nor displace any private sector entities; and (4) given that the
    band 4635-4685 MHz has not been auctioned and that no licenses for
    this band have been issued, there is no cost to the private sector
    associated with this decision. The Navy currently plans to use the
    band 4635-4685 MHz and adjacent bands for its CEC system.[^27]

10. Partially in response to the Department of Commerce's decision to
    reclaim the band 4635-4685 MHz, the Offices of Engineering and
    Technology and Managing Director recently released a Memorandum
    Opinion and Order revising Part 2 of the Commission's Rules making
    non-substantive revisions to the Table of Frequency Allocations.
    [^28] One of the changes made by this order was to return the band
    4660-4685 MHz to the *status quo ante*, *i.e.*, to delete the
    allocation to non-Federal Government fixed and mobile services,
    while retaining the prior allocation on a primary basis to
    fixed-satellite service.[^29] Because the band 4635-4660 MHz
    transferred from Federal Government to non-Federal Government use,
    had never been reallocated, the order did not need to make any
    changes to the allocations for that band.

11. On November 24, 1999, Global filed a Petition for Rulemaking
    requesting that the Commission: (1) designate the 4.9 GHz band for
    GWCS in lieu of the reclaimed band 4660-4685 MHz; (2) make the
    service more attractive to applicants that require broadband
    capability in order to serve the public; (3) speed the process of
    licensing applicants that are not mutually exclusive; and (4) allow
    mutually exclusive applicants to consult and negotiate solutions to
    their mutual exclusivity.[^30] Global states that it is an Internet
    Service Provider (ISP) located in Portland, Oregon and is interested
    in offering its customers in the Portland area, and eventually
    customers in other areas, a simple, economical, and rapid means of
    downloading large files from the Internet. In order to achieve this
    objective, Global states that it has entered into an agreement with
    a French manufacturer to market and distribute in this country a
    terrestrial wireless transmission system that will permit consumers
    with a small horn-shaped antenna attached to their modems, pointed
    toward the ISP transmitter, to download files at speeds that are
    substantially in excess of those permitted by other competing
    technologies.[^31] According to Global, the service, when
    authorized, will operate in the band 4940-4990 MHz utilizing a
    transmission bandwidth of 39 megahertz.

12. Global requests that the Commission make available for GWCS the
    entire 4.9 GHz band, that the band be broken down into five 10
    megahertz wide blocks, and, apparently, that the band be licensed
    using Economic Areas (EAs).[^32] Global also requests that the 15
    megahertz aggregation limit contained in Section 26.101(a) be
    increased[^33] and that GWCS licensees be able to partition their
    service territories to entities other than just rural telephone
    companies.[^34] In addition, Global requests that the Commission
    clarify how applications are to be filed and that the Commission
    promptly process GWCS applications. Finally, Global requests that
    the Commission encourage the avoidance of mutual exclusivity through
    negotiated engineering solutions. We here grant Global's Petition to
    the extent indicated below.

# III. DISCUSSION

## A. Re-allocation of the Band 4940-4990 MHz {#a.-re-allocation-of-the-band-4940-4990-mhz .unnumbered}

13. Internationally, the band 4940-4990 MHz is part of the band
    4800-4990 MHz, which is allocated to the fixed and mobile services
    on a co-primary, worldwide basis, except in the sub-band 4950-4990
    MHz, where the allocation to the mobile service is restricted by
    international footnote S5.442 to the mobile, except aeronautical
    mobile, service.[^35] The band 4800-4990 MHz is also allocated to
    the radio astronomy service on a secondary,[^36] worldwide
    basis.[^37] Furthermore, in making assignments to stations of other
    services to which the sub-band 4950-4990 MHz is allocated,
    international footnote S5.149 states, in pertinent part, that
    "administrations are urged to take all practicable steps to protect
    the radio astronomy service from harmful interference" and that
    "emissions from spaceborne or airborne stations can be particularly
    serious sources of interference to the radio astronomy
    service."[^38] Finally, the sub-band 4950-4990 MHz is allocated to
    the space research (passive) and earth exploration-satellite
    (passive) services on a secondary, worldwide basis.[^39]

14. In the United States, the band 4940-4990 MHz (*i.e.*, the 4.9 GHz
    band) is Federal Government transfer spectrum that became available
    for exclusive non-Federal Government use in March 1999. The purpose
    of this instant proceeding is to develop the guidelines for
    non-Federal Government use of this spectrum. Currently, the band
    4940-4990 MHz is part of a much larger Federal Government band that
    extends from 4400 MHz to 4990 MHz. The band 4800-4990 MHz is
    allocated to the Federal Government fixed and mobile services on a
    co-primary basis. [^40] In its *Reallocation Letter*, NTIA states
    that the Federal Government uses the band 4940-4990 MHz for such
    fixed services as conventional point-to-point microwave, tactical
    radio relay, and high power tropospheric scatter systems, and such
    mobile services as control of remote piloted vehicles, video and
    data telemetry links, target drone control links, and fleet defense
    systems.[^41] In addition, the Federal Government uses the band for
    aerostat systems, tethered at an altitude of approximately 15,000
    feet above mean sea level, along the U.S. southern borders.

15. The sub-band 4950-4990 MHz is also allocated to the Federal
    Government and non-Federal Government space research (passive) and
    earth exploration-satellite (passive) services on a secondary
    basis.[^42] Radio astronomy observations may be made in the sub-band
    4950-4990 MHz at certain Federal Government/non-Federal Government
    observatories that are listed in footnote US257. In addition,
    international footnote S5.149 has previously been added to both the
    Federal Government and non-Federal Government Tables. Thus, the only
    authorized non-Federal Government use of the band 4940-4990 MHz is
    currently passive.

16. In initially establishing GWCS in August 1995, the Commission
    concluded that authorizing a wide variety of fixed and mobile
    services bounded only by international allocations comported with
    the Commission\'s statutory authority and served the public interest
    by fostering the provision and mix of services most desired by the
    public.[^43] In keeping with this conclusion, we propose to allocate
    the band 4940-4990 MHz to the non-Federal Government fixed and
    mobile services, except aeronautical mobile service, on a co-primary
    basis. This allocation will permit the provision of a broad range of
    fixed and mobile services, except aeronautical mobile service. In
    keeping with this broad allocation, we propose to permit licensees
    to utilize this spectrum for any service permitted within any of the
    allocation categories of fixed and mobile, except aeronautical
    mobile uses, subject to international requirements and coordination.
    Finally, since the band 4940-4990 MHz is being transferred as a
    non-Federal Government exclusive band, we also propose to delete the
    Federal Government fixed and mobile service allocations from the
    band 4940-4990 MHz.

17. We note that the sub-band 4950-4990 MHz, together with the adjacent
    band 4990-5000 MHz, is extremely useful in studying the brightness
    distributions of both galactic and extra-galactic objects such as
    ionized hydrogen clouds and supernova remnants. We also note that
    radio astronomy is particularly vulnerable to potential interference
    from other services because it is a passive service that involves
    the reception of exceptionally weak cosmic radio waves emanating
    from a great distance from the Earth. Therefore, consistent with
    international footnote S5.442, we proposed above to prohibit
    aeronautical mobile service use of the sub-band 4950-4990 MHz.[^44]
    Moreover, we proposed above to prohibit aeronautical mobile service
    use of the adjacent sub-band 4940-4950 MHz in order to provide
    additional protection for adjacent band radio astronomy
    observations. These proposals are consistent with footnote US257 and
    the Department of Commerce\'s request that we protect radio
    astronomy operations.[^45]

18. The National Science Foundation (NSF) has requested that we update
    the list of radio astronomy observatories identified in footnote
    US257 to accurately reflect radio astronomy use of the sub-band
    4950-4990 MHz. The NSF states that the observatories currently
    observing in the sub-band 4950-4990 MHz are listed in footnote US311
    and recommends that we update the Table of Frequency Allocations by
    adding the sub-band 4950-4990 MHz to footnote US311 and by deleting
    footnote US257. Accordingly, we propose to delete footnote US257 and
    to revise footnote US311 to read as follows:

19. US311 Radio astronomy observations may be made in the bands
    1350-1400 MHz and 4950-4990 MHz on an unprotected basis at certain
    radio astronomy observatories indicated below:

  ------------------------------ -------------------- --------------------
  National Astronomy and         Rectangle between    
  Ionosphere Center, Arecibo,    latitudes 17° 30\' N 
  Puerto Rico                    and 19° 00\' N and   
                                 between longitudes   
                                 65° 10\' W and       
                                 68° 00\' W.          

  National Radio Astronomy       Rectangle between    
  Observatory, Socorro, New      latitudes 32° 30\' N 
  Mexico                         and 35° 30\' N and   
                                 between longitudes   
                                 106° 00\' W and      
                                 109° 00\' W.         

  National Radio Astronomy       Rectangle between    
  Obser-vatory, Green Bank, West latitudes 37° 30\' N 
  Virginia                       and 39° 15\' N and   
                                 between longitudes   
                                 78° 30\' W and       
                                 80° 30\' W.          

  National Radio Astronomy       80 kilometers (50    
  Observatory, Very Long         mile) radius         
  Baseline Array Stations        centered on:         

                                 Latitude (North)     Longitude (West)

  Pie Town, NM                   34° 18\'             108°  07\'

  Kitt Peak, AZ                  31° 57\'             111° 37\'

  Los Alamos, NM                 35° 47\'             106° 15\'

  Fort Davis, TX                 30° 38\'             103° 57\'

  North Liberty, IA              41° 46\'             91° 34\'

  Brewster, WA                   48° 08\'             119° 41\'

  Owens Valley, CA               37° 14\'             118° 17\'

  Saint Croix, VI                17° 46\'             64° 35\'

  Mauna Kea, HI                  19° 48\'             155° 27\'

  Hancock, NH                    42° 56\'             71° 59\'
  ------------------------------ -------------------- --------------------

Every practicable effort will be made to avoid the assignment of
frequencies in the bands 1350-1400 MHz and 4950-4990 MHz to stations in
the fixed and mobile services which could interfere with radio astrono­my
observa­tions within the geographic areas given above. In addi­tion, every
practicable effort will be made to avoid assignment of fre­quencies in
these bands to sta­tions in the aeronauti­cal mobile service which operate
outside of those geograph­ic areas, but which may cause harmful
interference to the listed observa­tories. Should such assignments result
in harmful interfer­ence to these observatories, the situation will be
reme­died to the extent practica­ble.

We request comment on these proposals.

20. In summary, we propose that licensees in the 4.9 GHz band will be
    authorized to provide any fixed, land mobile, or maritime mobile
    service, but not aeronautical mobile service. In proposing this
    broad allocation, we seek to ensure that the spectrum is put to its
    best and most valued use and that the greatest benefit to the public
    is attained. We believe that a broad and general allocation is most
    likely to achieve this objective. Such an approach will allow
    flexible use of these bands so that licensees will be able to offer
    a wide range of services employing varying technologies. We
    therefore request comment on our proposal to allocate the band
    4940-4990 MHz to the fixed and mobile services, except aeronautical
    mobile service, and to permit any fixed or non-aeronautical mobile
    service use in this spectrum, rather than specify this band for
    particular uses.[^46]

21. Upon completion of this rulemaking, the Department of Commerce will
    require all current Federal Government assignments, except those for
    radio astronomy observatories, to be withdrawn or limited in the
    band 4940-4990 MHz. Federal Government licensees are expected to
    retune their equipment to operate in the remaining portion of the 4
    GHz band (*i.e.*, 4400-4940 MHz).[^47] Because the band 4940-4990
    MHz is transferred from Federal Government to non-Federal Government
    use as a replacement for the band 4635-4685 MHz, which was
    transferred pursuant to the provisions of OBRA, the Department of
    Commerce concluded that the new non-Federal Government licensees
    will not be required to pay Federal Government agencies vacating the
    band for the marginal cost of their relocation, as is required in
    spectrum transferred pursuant to the Balanced Budget Act of 1997
    (BBA-97),[^48] according to the provisions of the Defense
    Authorization Act of 1998.[^49]

22. We also tentatively conclude that allocating the band 4940-4990 MHz
    to the non-Federal Government fixed and mobile services, except
    aeronautical mobile service, is consistent with Section 303(y)(2) of
    the Communications Act (Act),[^50] as amended by the BBA-97. We seek
    comment on this tentative conclusion. Section 303(y)(2) grants the
    Commission authority to allocate spectrum for flexible use if the
    Commission finds that such an allocation: (1) is in the public
    interest; (2) would not deter investment in communications services
    and systems, or technology development; and (3) would not result in
    harmful interference among users. We tentatively find that
    allocating the spectrum for fixed and mobile, except aeronautical
    mobile, use and making the spectrum available for commercial use
    under the Part 27 Rules is in the public interest because it will
    contribute to technological and service innovation, create new jobs
    for the American workforce, fos­ter national eco­nom­ic growth, and
    enhance opportunities for all Americans to utilize, and realize the
    benefits of, the national telecommu­nications infrastructure. We seek
    comment on this tentative finding.

23. To satisfy the requirements of Section 303(y)(2)(B) of the Act, we
    seek comment on whether a flexible spectrum allocation in this band
    would deter investment in communications services and systems, or
    technology development.[^51]

24. To the extent commenters believe such flexibility will deter
    investment, they should also suggest specific restrictions on how
    spectrum should be used by a licensee, and detailed analyses of the
    economic trade-offs between flexibility and investment that justify
    the recommended use restriction. We seek to develop a record to help
    quantify any trade-offs between flexibility and investment in
    technology and new services. Such a record will assist us in
    structuring these rules so as to avoid deterring investment in new
    technology and communications services. We also seek comment
    regarding the extent to which significant flexibility in service
    rules may encourage such investments.

25. Finally, we tentatively find that the technical rules that we are
    proposing in this Notice for the band 4940-4990 MHz satisfy the
    requirements of Section 303(y)(2)(C).[^52] These rules provide
    licensees with a framework to provide a wide variety of services
    with a minimum of interference. As the Commission stated in the
    *GWCS Second Report and Order*, any interference issues that may
    arise among licensees can be satisfactorily resolved by general
    non-interference standards and technical rules.[^53] We believe that
    this conclusion applies for licensees in the 4.9 GHz band. We seek
    comment on this tentative finding.

## B. Public Safety {#b.-public-safety .unnumbered}

26. In response to the *GWCS Second Notice of Proposed Rulemaking*, the
    Association of Public-Safety Communications Officials-International,
    Inc. (APCO) filed comments proposing that the Commission should
    designate at least a portion of the band 4660-4685 MHz for public
    safety mobile and aeronautical video operations.[^54] The Commission
    found, however, that the record did not provide a sound basis for
    concluding that any or all of the band 4660-4685 MHz should be
    assigned as APCO suggested.[^55] In denying APCO\'s request, the
    Commission noted that the Commission and the National
    Telecommunications and Information Administration (NTIA) had
    recently formed a Public Safety Wireless Advisory Committee (PSWAC)
    to prepare a report on operational, technical, and spectrum
    requirements of Federal, State, and local public safety entities
    through the year 2010. On September 11, 1996, PSWAC submitted to the
    Commission and NTIA its Final Report on public safety wireless
    frequency and related requirements through the year 2010.[^56] As
    part of this report, PSWAC recommended that "\[t\]he 4635-4685 MHz
    band should be allocated for Public Safety systems . . . ."[^57] In
    support of its recommendation PSWAC stated that this spectrum was
    needed to ensure sufficient public safety spectrum allocations
    through the year 2010.

27. Recently, however, the Commission has acted pursuant to BBA-97[^58]
    to allocate 24 megahertz of spectrum solely for public safety use.
    Specifically, the Commission allocated the band 764-776 MHz and the
    band 794-806 MHz on a primary basis to fixed and mobile services,
    and designated this spectrum solely for public safety use.[^59] In
    addition, the Commission has adopted rules to govern licensing and
    operations for public safety in those bands.[^60] Because of this
    recent public safety allocation, we do not propose designating the
    4.9 GHz band, or any portion of the band, for public safety use. We
    tentatively conclude that the action taken by the Commission in the
    *Public Safety Reallocation Order* constitutes a significant
    commitment of spectrum to serve public safety needs into the next
    century, making it unnecessary to set aside spectrum in the 4.9 GHz
    band for public safety use.[^61] We seek comment on this tentative
    conclusion.

## C. Application, Licensing, and Processing Rules {#c.-application-licensing-and-processing-rules .unnumbered}

28. Except as discussed below, we propose that the 4.9 GHz band should
    be governed by Part 27 of the Commission\'s Rules.[^62] When the
    Commission adopted Part 26 of its Rules[^63] for the band 4660-4685
    MHz, it sought to ensure that those rules would accommodate a wide
    variety of potential fixed and mobile service uses, such as voice,
    video and data transmission, private microwave, broadcast auxiliary,
    and ground-to-air voice and video.[^64] We believe that the rules
    contained in Part 27 will preserve and enhance that flexibility. The
    Commission adopted Part 27 after the promulgation of Part 26, and,
    in doing so, updated its rules, eliminated unnecessary burdens, and
    provided for additional licensing flexibility than had been
    established in Part 26.[^65] We tentatively conclude that potential
    4.9 GHz licensees will benefit from these reduced burdens and
    additional flexibility and that, by making the 4.9 GHz rules more
    flexible, public demand for this spectrum will increase.

29. In keeping with our proposal to regulate the 4.9 GHz band under Part
    27 of the Commission's Rules, we also propose to delete Part 26 of
    the Commission's Rules. With the return of the band 4660-4685 MHz to
    exclusive Federal Government use, Part 26 of the Commission's Rules
    serves no specific purpose. As part of our continuing effort to
    eliminate redundancy and to streamline our rules, we propose to
    delete Part 26. Because there are no Part 26 licensees, this
    proposal should not have any adverse impact. We seek comment on our
    tentative conclusion to delete Part 26 of the Commission's Rules.

30. As discussed above,[^66] other than aeronautical mobile, we do not
    propose to restrict the types of fixed and mobile services that can
    be provided in the 4.9 GHz band. Consistent with this approach, we
    note that licensees may be required to comply with rules contained
    in other Parts of the Commission\'s Rules. For example, to the
    extent a licensee provides a Commercial Mobile Radio Service (CMRS),
    such service will also be subject to the provisions of Part 20 of
    the Commission\'s Rules.[^67] Part 20 applies to all CMRS providers,
    even though the stations may be licensed under other Parts of the
    Rules. We seek comment generally on any provisions in existing,
    service-specific rules that may require specific recognition or
    adjustment to comport with the supervening application of Part 27,
    as well as any provisions that may be necessary in Part 27 to fully
    describe the scope of covered services and technologies. For
    instance, if a 4.9 GHz licensee provides a fixed service, we seek
    comment on whether there are any specific provisions in Part 101 of
    the Commission's Rules that the licensee should be subject to even
    though the licensee's stations will be licensed under Part 27.[^68]

31. We also note that the 4.9 GHz service will be subject to the
    Universal Licensing System (ULS).[^69] ULS is the Commission\'s new
    automated licensing system and integrated database for wireless
    services. ULS includes new consolidated applications forms, which
    will enable 4.9 GHz licensees and applicants to file applications
    electronically, thus increasing the speed and efficiency of the
    application process. All 4.9 GHz licensees filing applications and
    other filings using FCC Forms 601 through 605 or associated
    schedules must make these filings electronically in accordance with
    the electronic filing instructions provided by ULS.[^70] Use of ULS
    will permit Commission staff to process filings more efficiently and
    will enhance the availability of 4.9 GHz licensing information to
    the public.

### 1. Regulatory Status

32. To fulfill its enforcement obligations and ensure compliance with
    the statutory requirements of Titles II and III of the
    Communications Act, the Commission has often required applicants to
    identify whether or not they seek to provide common carrier
    services. The Commission\'s current mobile service license
    application, for example, requires an applicant for mobile services
    to indicate whether the service it intends to offer will be CMRS,
    Private Mobile Radio Service (PMRS), or both. In the *LMDS Second
    Report and Order,* the Commission required applicants for fixed
    services to indicate if they planned to offer services as a common
    carrier, a non-common carrier, or both, and to notify the Commission
    of any changes in status without prior authorization.[^71] In
    adopting a similar licensing framework for Part 27, the Commission
    has permitted applicants to request common carrier status as well as
    non-common carrier status for authorization in a single license,
    rather than require the applicant to choose between common carrier
    and non-common services.[^72] We propose to adopt the same procedure
    for licensing services in the 4.9 GHz band and to codify this
    procedure for the 2.3 GHz band.[^73] The licensee will be able to
    provide all allowable services anywhere within its licensed area at
    any time, consistent with its regulatory status. We tentatively
    conclude that, in the case of services offered in the 4.9 GHz band,
    this approach is likely to achieve efficiencies in the licensing and
    administrative process.

33. In adopting Part 27, the Commission stated that, apart from this
    designation of regulatory status, the Commission would not require
    applicants to describe the services they seek to provide. The
    Commission stated that it is sufficient that an applicant indicate
    its choice for regulatory status in a streamlined application
    process.[^74] In providing guidance on this issue to applicants, the
    Commission pointed out that an election to provide service on a
    common carrier basis requires that the elements of common carriage
    be present;[^75] otherwise, the applicant must choose non-common
    carrier status.[^76] The Commission advised potential applicants
    that, if they are unsure of the nature of their services and their
    classification as common carrier services, they may submit a
    petition with their applications, or at any time, requesting
    clarification and including service descriptions for that
    purpose.[^77]

34. We propose that applicants and licensees with respect to services in
    the 4.9 GHz band also not be required to describe their proposed
    services, but be required to indicate a regulatory status based on
    any services they choose to provide. We also propose that if
    licensees change the service or services they offer, such that it
    would change their regulatory status, they must notify the
    Commission, although such change would not require prior Commission
    authorization.[^78] We propose that licensees be require to notify
    the Commission within 30 days of the change, unless the change
    results in the discontinuance, reduction, or impairment of the
    existing service, in which case a different time period may
    apply.[^79] In addition to making these procedures applicable to the
    4.9 GHz band, we propose to codify these procedures for the 2.3 GHz
    band. In summary, under our proposal, a 4.9 GHz licensee would be
    authorized to provide a variety or combination of fixed, mobile
    (except aeronautical mobile), common carrier, and non-common carrier
    services. We seek comment on these proposals.

### 2. Eligibility; Spectrum Aggregation

35. Sections 27.12 and 27.302 of the Commission\'s Rules[^80] impose no
    restrictions on eligibility, other than the foreign ownership
    restrictions set forth in Section 310 of the Communications
    Act,[^81] and discussed below.[^82] Consistent with these sections
    of the existing rules in Part 27, we propose that there will be no
    additional restrictions on eligibility for a license in the 4.9 GHz
    band.[^83] We believe that opening the 4.9 GHz market to a wide
    range of applicants will permit and encourage entrepreneurial
    efforts to develop new technologies and services, while helping to
    ensure the highest and best use of this spectrum.[^84] We seek
    comment on this tentative conclusion.

36. Part 27 of the Commission\'s Rules does not contain a limitation on
    the amount of spectrum a licensee may aggregate for each geographic
    area.[^85] Consistent with the existing Part 27 Rules, we
    tentatively conclude that we will permit licensees in the 4.9 GHz
    band to obtain all of the 4.9 GHz licenses in a given geographic
    area. This tentative conclusion is consistent with the proposal put
    forth by Global.[^86] We believe that the flexibility this approach
    permits will help licensees operating in the 4.9 GHz band to offer
    regional and national services, and will therefore create interest
    in the commercial development of the 4.9 GHz band. By permitting
    licensees to acquire all of the spectrum in a given geographic area,
    licensees will be able to offer a wider variety of services and this
    flexibility in turn should create more consumer interest in these
    services. The more consumer interest there is in a service, the more
    likely a licensee will offer this service on a regional or national
    basis.

37. In addition, we believe that a spectrum cap is not necessary to
    prevent a 4.9 GHz licensee from exercising market power. The
    Commission has made available ample spectrum in other bands for
    licensees to offer services that likely will compete with those
    offered by 4.9 GHz licensees.[^87] We seek comment on our tentative
    conclusion not to impose a geographic area spectrum aggregation
    limit on 4.9 GHz licensees. Commenters that oppose our proposal
    should provide a rationale for whatever limit they deem appropriate,
    considering the varying bandwidth requirements of the different
    types of services that could be offered over the 4.9 GHz band. In
    addition, commenters who advocate a spectrum cap should discuss why
    the availability of spectrum in other bands does not eliminate the
    need for a spectrum cap.

38. The current spectrum cap applicable to CMRS licensees covers
    broadband Personal Communications Service (PCS), cellular, and
    certain covered Specialized Mobile Radio (SMR) services, and,
    therefore, by its terms does not apply to licensees in the 4.9 GHz
    band. [^88] We tentatively conclude not to extend this cap with
    respect to those licensees in the 4.9 GHz band who may be operating
    as CMRS providers. This approach is consistent with the decision the
    Commission reached in the *GWCS Second Report and Order*[^89] and
    the *746-764 and 776-794 MHz First Report and Order*.[^90] We seek
    comment on this tentative conclusion.

### 3. Foreign Ownership Restrictions

39. Sections 310(a) and 310(b) of the Communications Act[^91] impose
    foreign ownership and citizenship requirements that restrict the
    issuance of licenses to certain applicants. Section 27.12 of the
    Commission's Rules, which implements Section 310 of the Act, would
    by its terms apply to applicants for licenses in the 4.9 GHz
    band.[^92] An applicant requesting authorization only for non-common
    carrier services would be subject to Section 310(a) but not to the
    additional prohibitions of Section 310(b). An applicant requesting
    authorization for common carrier services (or for both common
    carrier and non-common carrier services) would be subject to both
    Section 310 (a) and 310(b).

40. In the filing of an application under the Multipoint Distribution
    Service (MDS), satellite, and Local Multipoint Distribution Service
    (LMDS) rules, the Commission requires any applicant electing
    non-common carrier status to submit the same information that common
    carrier applicants submit to address the alien ownership
    restrictions under Section 310(b) of the Act.[^93] We propose to
    follow the same approach in the case of applicants for the 4.9 GHz
    spectrum. Under our proposal to permit licensees to change status
    with a minimum of regulatory oversight, updated information can be
    used whenever the licensee changes to common carrier status without
    imposing an additional filing requirement when the licensee makes
    the change.[^94] We seek comment on this proposal.

41. Like common carriers, non-common carriers would be required under
    our proposal to file the information whenever there are changes to
    their foreign ownership information. Under our proposed rules,
    however, we would not disqualify an applicant requesting
    authorization exclusively to provide non-common carrier services if
    its citizenship information reflects that it would be disqualified
    from a common carrier license or required to file a waiver. As the
    Commission stated in the *Satellite Rules Report and Order* and in
    the *LMDS Second Report and Order*, the Commission is requiring
    non-common carriers to address all the alien ownership prohibitions
    to better enable the Commission to monitor all of the licensed
    providers in light of their ability to provide *both* common and
    non-common carrier services.[^95] We request comment on this
    proposal.

### 4. Geographic Areas and Spectrum Blocks

42. The band 4660-4685 MHz was to be licensed using Economic Areas (EAs)
    and EA-like areas. [^96] There are 172 EAs, as defined by the U.S.
    Department of Commerce, and three additional Commission-defined
    EA-like areas.[^97] In addition, for the band 4660-4685 MHz each EA
    and EA-like area was to be composed of five channel blocks, [^98]
    and each channel block was to be 5 megahertz wide.[^99] As a result,
    for the band 4660-4685 MHz, the Commission\'s rules provided for 875
    licenses.

43. The Commission has licensed or proposed to license other spectrum
    using EAs, and EA-like areas. Specifically, the Commission has
    licensed the bands 37.0-38.6 GHz and 38.6-40.0 GHz using EAs and has
    proposed to use EAs to license the 24 GHz band.[^100] The Commission
    has also used larger geographic areas to license spectrum. For
    instance, the Commission licensed the 2.3 GHz band using the twelve
    Regional Economic Area Groupings (REAs) and the 52 Major Economic
    Areas (MEAs).[^101] REAs and MEAs are also based on the 172 EAs, as
    modified by the Commission. More recently, the Commission has chosen
    to license the bands 746-764 MHz and 776-794 MHz using the even
    larger Economic Area Groupings (EAGs). [^102] There are six EAGs and
    these are as well based on EAs.

44. We seek comment on the appropriate geographic area to use for
    licensing the 4.9 GHz band. We are mindful of the competing need to
    provide large enough service areas for those wishing to provide
    national services in the 4.9 GHz band and the need to chose a
    geographic licensing area that will permit the dissemination of 4.9
    GHz licenses among the largest number of entities. We also wish to
    ensure service to rural areas[^103] and to promote investment in and
    rapid deployment of new technologies and services.[^104] If
    commenters support licensing based on service territories other than
    those discussed above, they should discuss why other types of
    service areas are more appropriate.

45. We note that whatever service area is used to license the 4.9 GHz
    band some of those service areas will be substantially affected by
    the radio astronomy geographic areas identified in revised footnote
    US311 to the U.S. Table of Frequency Allocations, and addressed in
    the section on allocation above.[^105] In recognition of this issue,
    we seek comment on whether we should adjust the licensing areas to
    take into account the radio astronomy geographic areas. We also seek
    comment on whether we should license the Gulf of Mexico as part of
    larger service areas, as we did for the upper 700 MHz bands, or
    whether we should separately license a service area or service areas
    to cover the Gulf of Mexico.[^106] Commenters who advocate a service
    area or areas to cover the Gulf of Mexico should discuss what
    boundaries should be used and whether a special interference
    protection criteria or performance requirements are necessary due to
    the unique radio propagation characteristic and antenna siting
    challenges that exist for Gulf licensees.

46. We also seek comment on the appropriate size spectrum block or
    blocks that should be used to license the 4.9 GHz band. In keeping
    with the Commission\'s original approach to the band 4660-4685 MHz,
    the 4.9 GHz band could be divided into ten 5 megahertz wide channel
    blocks. Global has requested that the spectrum be divided into five
    10 megahertz wide spectrum blocks.[^107] Alternatively, we seek
    comment on whether this spectrum should be auctioned in two 25 MHz
    licenses. We seek comment on whether larger or smaller blocks would
    provide more options for services provided by licensees in the band.
    For instance, larger spectrum blocks might better facilitate
    provision of broadband services by licensees.[^108] We also request
    comment on whether we should adopt a channelization plan that
    provides for different sized blocks. We further request comment on
    what impact a variety of blocks of different sizes would have on the
    diversity of the types of service offered to consumers, the adequacy
    of spectrum for flexible uses, the time necessary to implement the
    grants, and the ability of small business to provide niche services.

47. We request comment on whether the spectrum should be auctioned in
    paired spectrum blocks. For instance, under one approach, we could
    pair 5 MHz spectrum blocks into licenses of 10 MHz. Alternatively,
    we could pair two 12.5 MHz channel blocks into 25 MHz licenses. This
    licensing approach would provide each licensee with a separate
    transmit and receive channel and would, therefore, work with
    traditional wireless network architectures.

48. We also seek comment on whether we should license unpaired spectrum
    in the 4.9 GHz band. This alternative approach could save time and
    resources, and also could expedite the development and offering of
    services. While paired spectrum is ideal for such services as
    frequency division duplex (FDD) services, it is unnecessary for
    one-way or time division duplex (TDD) communications. By allocating
    spectrum in unpaired blocks, licensees planning to offer these types
    of services would not be required to acquire more spectrum than they
    need for their operations. We also seek comment on whether we should
    make any changes to our bidding rules to promote bidder
    flexibility.[^109]

### 5. License Term; Renewal Expectancy

49. Section 27.13 of the Commission\'s Rules[^110] provides for
    authorizations for license terms not to exceed 10 years from the
    date of original issuance or renewal. Section 27.14 of the
    Commission\'s Rules[^111] establishes a right to a renewal
    expectancy. We seek comment on whether to apply these license term
    and renewal expectancy provisions in the case of licensees in the
    4.9 GHz band. We seek comment on whether a 10-year license term,
    combined with a renewal expectancy, will help to provide a stable
    regulatory environment that will be attractive to investors and
    thereby encourage development of this spectrum. We also seek comment
    on whether a license term longer than 10 years is appropriate to
    achieve these goals and better serve the public interest.[^112]
    Commenters who favor a license term in excess of ten years should
    specify the appropriate license term and include a basis for the
    period proposed.

50. Consistent with Part 27, we propose that in the event that a license
    is partitioned or disaggregated, any partitionee or disaggregatee
    shall be authorized to hold its license for the remainder of the
    original licensee\'s 10-year term, and the partitionee or
    disaggregatee may obtain a renewal expectancy on the same basis as
    other licensees in the 4.9 GHz band.[^113] We further propose that
    all licensees meeting the substantial service requirement will be
    deemed to have met this part of the renewal expectancy requirement
    regardless of which of the construction options the licensees have
    chosen. We tentatively conclude that this approach is appropriate
    because a licensee, through partitioning, should not be able to
    confer greater rights than it was awarded under the terms of its
    license grant.[^114] We seek comment on this tentative conclusion.

51. In addition, in order to claim a renewal expectancy, we seek comment
    on our tentative conclusion that a 4.9 GHz licensee involved in a
    comparative renewal proceeding[^115] must include at a minimum the
    following showing required by Section 27.14(c) of the Commission\'s
    Rules:[^116]

> • A description of current service in terms of geographic coverage and
> population served or links installed.
>
> • An explanation of the licensee\'s record of expansion, including a
> timetable for the construction of new base sites or links to meet
> changes in demand for service.

• A description of the licensee\'s investments in its system.

> • Copies of any Commission Orders finding the licensee to have
> violated the Communications Act or any Commission rule or policy, and
> a list of any pending proceedings that relate to any matter described
> by the requirements for the renewal expectancy.[^117]

### 6. Partitioning and Disaggregation of Licenses

52. On December 20, 1996, the Commission released a Further Notice of
    Proposed Rulemaking proposing, among other actions, to revise the
    partitioning rules for the band 4660-4685 MHz and to establish
    disaggregation rules for this band.[^118] The proposals contained in
    that notice are superseded by the proposals below and that
    proceeding is terminated to the extent that it addressed
    partitioning and disaggregation rules for the band 4660-4685 MHz.

53. We hereby tentatively conclude to allow all 4.9 GHz licensees the
    flexibility to partition their service areas without any
    restriction, and to disaggregate their spectrum. This approach is
    consistent with Global's request[^119] and we tentatively conclude
    that geographic partitioning and spectrum disaggregation can result
    in efficient spectrum use and economic opportunity for a wide
    variety of applicants, including small business, rural telephone,
    minority-owned, and women-owned applicants, as required by Section
    309(j)(4)(C) of the Communications Act.[^120] We also tentatively
    conclude that our proposed approach will provide a means to overcome
    entry barriers through the creation of smaller licenses that require
    less capital, thereby facilitating greater participation by rural
    telephone companies and other smaller entities, many of which are
    owned by minorities and women.[^121]

54. Section 27.15 of the Commission\'s Rules[^122] permits licensees
    seeking approval for partitioning and disaggregation arrangements to
    request authorization from the Commission for partial assignment of
    a license, and provides that licensees may apply to partition their
    licensed geographic service areas or disaggregate their licensed
    spectrum at any time following the grant of their licenses.[^123] In
    adopting the rule, the Commission decided to permit geographic
    partitioning of any service area defined by the partitioner and
    partitionee, to permit spectrum disaggregation without restriction
    on the amount of spectrum to be disaggregated, and to permit
    combined partitioning and disaggregation.[^124] The Commission
    concluded that allowing parties to decide without restriction the
    exact amount of spectrum to be disaggregated will encourage more
    efficient use of the spectrum and permit the deployment of a broader
    mix of service offerings, both of which will lead to a more
    competitive wireless marketplace.[^125] We request comment on our
    proposal that licensees in the 4.9 GHz band be eligible to the same
    extent to partition service areas and disaggregate spectrum. We also
    request comment on what limits, if any, should be placed on the
    ability of licensees to partition service areas and disaggregate
    spectrum.

55. Section 27.15(b)(1) of the Commission's Rules provides that, in the
    case of partitioning, applicants and licensees must file FCC Form
    603 and list the partitioned service area on a schedule to the
    application.[^126] Section 27.15(c) contains provisions against
    unjust enrichment in order to address situations where a licensee
    under Part 27 who received a bidding credit partitions a section of
    its service area or disaggregates a portion of its spectrum to an
    entity that would not qualify for a similar bidding credit.[^127] We
    propose to apply these provisions, as well as the remaining
    provisions governing partitioning and disaggregation in Section
    27.15 of the Commission\'s Rules, to 4.9 GHz licensees.

56. We also seek comment on our proposal to apply the methods that the
    Commission adopted in the *Part 27 Report and Order* for parties to
    partitioning, disaggregation, or combined partitioning and
    disaggregation agreements to meet construction requirements, and to
    codify these methods for 2.3 GHz licensees.[^128] Specifically, we
    propose to allow parties to partitioning agreements to choose
    between two options for satisfying the construction
    requirements.[^129] Under the first option, the partitioner and
    partitionee would each certify that it will independently satisfy
    the substantial service requirement for its respective partitioned
    area. If a licensee fails to meet its substantial service
    requirement during the relevant license term, the non-performing
    licensee\'s authorization would be subject to cancellation at the
    end of the license term. Under the second option, the partitioner
    certifies that it has met or will meet the substantial service
    requirement for the entire market. If the partitioner fails to meet
    the substantial service standard during the relevant license term,
    however, only its license would be subject to cancellation at the
    end of the license term. The partitionee\'s license would not be
    affected by that failure.

57. Our proposal to offer two options to partitioning parties is based
    on our tentative conclusion that licensees in the 4.9 GHz band may
    be motivated to enter into partitioning arrangements for different
    reasons and under various circumstances. For example, a 4.9 GHz
    licensee might be motivated to partition its license in order to
    reduce its construction costs. In that case, the original licensee
    would have less population to cover in order to meet its substantial
    service requirement. Thus, it may find the first option more
    attractive for its purposes. Under another scenario, a 4.9 GHz
    licensee who has met or is close to meeting its substantial service
    requirement may be approached by another entity interested in
    serving a niche market in a portion of the service area. Under these
    circumstances, the second option may seem more attractive to the
    parties. In either instance, the public interest is advanced by
    permitting that flexibility, in terms of service areas and niche
    markets, conducive to optimizing the viability and value of the
    licenses partitioned, while precluding circumvention of our
    construction requirements.[^130]

58. Finally, we propose to allow parties to disaggregation agreements to
    choose between two options for satisfying the construction
    requirements.[^131] Under the first option, the disaggregator and
    disaggregatee would certify that they each will share responsibility
    for meeting the substantial service requirement for the geographic
    service area. If parties choose this option, both parties\'
    performance will be evaluated at the end of the relevant license
    term and both licenses could be subject to cancellation. The second
    option would allow the parties to agree that either the
    disaggregator or the disaggregatee would be responsible for meeting
    the substantial service requirement for the geographic service area.
    If parties choose this option, and the party responsible for meeting
    the construction requirement fails to do so, only the license of the
    non-performing party would be subject to cancellation. As with
    partitioned licenses, providing these options preserves the public
    interest in developing the spectrum to the same degree as that
    required had the disaggregation (or partitioning) not
    occurred.[^132]

### 7. Performance Requirements

59. Section 27.14(a) of the Commission\'s Rules[^133] requires 2.3 GHz
    licensees to provide "substantial service" in their service areas
    within 10 years of being licensed, and also states that a failure to
    meet this requirement will result in forfeiture of the license and
    the licensee\'s ineligibility to regain it. This section defines
    substantial service "as service which is sound, favorable, and
    substantially above a level of mediocre service which just might
    minimally warrant renewal."[^134] The *Part 27 Report and Order*
    provided several examples of safe harbors that would demonstrate
    substantial service.[^135] Later, for LMDS, the Commission adopted
    the same build-out requirement and safe harbor provisions.[^136]
    Recently, the Commission adopted these same safe harbor provisions
    for the bands 747-762 MHz and 777-792 MHz.[^137] We propose that
    licensees in the 4.9 GHz band be governed by the same construction
    standards, including the same safe harbor provisions.

60. Our construction proposal includes the requirement that licensees
    submit an acceptable showing to the Commission at the end of the
    license period demonstrating that they have provided substantial
    service during the license term or are providing substantial service
    at the end of the term.[^138] We propose to amend Part 27 to adopt
    the following safe harbors that would be applicable to 2.3 GHz
    licensees, as well as 4.9 GHz licensees: [^139]

> • For a licensee who chooses to offer fixed, point-to-point services,
> the construction of four permanent links per one million people in its
> licensed service area during its license term or at the
> license-renewal mark would constitute substantial service.
>
> • For a licensee who chooses to offer mobile services or
> point-to-multipoint services, a demonstration of coverage to 20
> percent of the population of its licensed service area during its
> licensed term or at the license-renewal mark would constitute
> substantial service.

We recognize that the second safe harbor proposal for licensees who
choose to offer mobile or point-to-multipoint services is different from
our safe harbor proposal for licensees who choose to offer these kinds
of services at 24 GHz.[^140] Unlike at 24 GHz, however, there are no
commercial licensees already offering services at 4.9 GHz. For 4.9 GHz
licensees, therefore, there might be equipment availability issues that
do not exist for 24 GHz licensees.

61. Our safe harbor proposals are intended to provide licensees an
    opportunity to achieve certainty as to compliance with the
    substantial service requirement during or by the end of the initial
    license term. If they comply with the safe harbors, they will have
    met the substantial service requirement. In addition, the
    substantial service requirement could be met in other ways, and we
    propose to review licensees\' showings on a case-by-case
    basis.[^141] In reviewing licensees\' showings, we propose to
    consider such factors as whether the licensee is offering a
    specialized or technologically sophisticated service that does not
    require wide coverage to be of benefit to customers,[^142] and
    whether the licensee\'s operations serve niche markets or focus on
    serving populations outside of areas served by other
    licensees.[^143] Although licensees will have incentives to
    construct facilities to meet the service demands in their licensed
    service areas, we tentatively conclude that the minimum requirements
    we propose for the 4.9 GHz band will promote efficient use of the
    spectrum, encourage the provision of service to rural, remote, and
    insular areas, and prevent the warehousing of spectrum.

62. We tentatively conclude that these build-out provisions fulfill our
    obligations under Section 309(j)(4)(B) of the Act.[^144] We also
    tentatively conclude that the auction rules that we propose to apply
    to these services, together with the service rules that we are
    proposing and our overall competition and universal service
    policies, constitute effective safeguards and performance
    requirements for licensing this spectrum. Because a license would be
    assigned in the first instance through competitive bidding, it will
    be assigned efficiently to a licensee that has shown by its
    willingness to pay market value its intention to put the spectrum to
    use. We also believe that, combined with the universal service
    policies of the 1996 Act,[^145] service to rural areas will be
    promoted by our proposal to allow partitioning of service areas and
    disaggregation of spectrum and by our proposal, as outlined
    below,[^146] to permit parties to disaggregation and partitioning
    agreements to negotiate between themselves the responsibility for
    meeting the applicable construction requirements.

63. Finally, under this proposed approach, we intend to reserve the
    right to review our construction requirements in the future if we
    receive complaints related to Section 309(j)(4)(B), or if a
    reassessment is warranted because spectrum is being warehoused or is
    otherwise not being used despite demand. We will also reserve the
    right to impose additional, more stringent construction requirements
    on licenses in the future in the event that actual anticompetitive
    or universal service problems develop. We solicit comment on these
    proposals and views regarding performance requirements.

### 8. Public Notice

64. Section 309(b) and Section 309(d) of the Communications Act require
    public notice for initial applications and substantial amendments
    thereto filed by radio common carriers. [^147] These requirements
    state that no such application shall be granted earlier than 30 days
    following the issuance of public notice by the Commission, and that
    the Commission may not require petitions to deny such applications
    to be filed earlier than 30 days following the public notice. The
    same provisions also grant the Commission the authority to impose
    public notice requirements for other licenses, even though public
    notice is not required by the statute. However, the administrative
    procedures for spectrum auctions adopted by Section 3008 of the
    BBA-97[^148] permit the Commission to shorten notice periods in the
    auction context to a five-day petition to deny period and a
    seven-day public notice period, notwithstanding the provisions of
    Section 309(b) of the Communications Act.

65. In the *Part 1 Third Report and Order*[^149] the Commission
    exercised this statutory authority, and amended Section 1.2108(b)
    and Section 1.2108(c) of the Commission\'s Rules[^150] to provide
    for a five-day period for filing petitions to deny and a seven-day
    public notice period for all auctionable services. We tentatively
    conclude below that services in the 4.9 GHz band will be auctionable
    services, so that the seven-day public notice period is
    applicable.[^151] We therefore seek comment on our tentative
    conclusion that the seven-day public notice period is applicable for
    applicants for spectrum in the 4.9 GHz band seeking to provide
    common carrier or non-common carrier services. We note, however,
    that in the *Part 1 Second Further Notice* the Commission has sought
    comment regarding whether longer periods should be applicable for
    some services.[^152]

## D. Operating Rules {#d.-operating-rules .unnumbered}

### 1. General Common Carrier Obligations; Forbearance

66. Title II of the Communications Act imposes a variety of obligations
    on the operations of common carriers that are not otherwise imposed
    on wireless communications services. In addition to the alien
    ownership restrictions and the licensing requirements for public
    notice in Title III of the Communications Act, discussed
    above,[^153] there are a number of operational requirements that
    apply to common carriers, including the filing of tariffs,
    maintaining of records, liabilities, and discontinuance of
    service.[^154] While Section 332(c)(1)(A) of the Communications Act
    mandates common carrier treatment for CMRS, this same Section
    provides that the Commission may specify by regulation that certain
    of the Title II provisions setting forth such requirements for
    common carriers will be inapplicable to CMRS.[^155] In the *CMRS
    Second Report and Order*, the Commission, pursuant to Section
    332(c)(1)(A), promulgated Section 20.15 of its Rules, specifying
    those Title II requirements that would apply to CMRS, and those that
    would not.[^156] Common carriers that are providing mobile service
    under the Commission's rules applicable to services in the 4.9 GHz
    band would be classified as CMRS, and therefore these Section 20.15
    requirements and exemptions would apply to such 4.9 GHz licensees.
    Under the exemptions for CMRS providers specified in Section 20.15,
    CMRS providers (including those who would operate in the 4.9 GHz
    band) are not required to file contracts of service, seek authority
    for interlocking directors, submit applications for new facilities
    or discontinuance of existing facilities, or file tariffs.[^157]

67. While common carriers that offer fixed services in the 4.9 GHz band
    would not be exempt from those specific provisions pursuant to
    Section 20.15, they are exempt, like all common carriers, from
    having to seek authority for interlocking directorates.[^158]
    Furthermore, the Commission has forborne from enforcing certain
    requirements on nondominant common carriers that would apply to
    wireless nondominant fixed common carriers using this spectrum. For
    instance, the Commission has granted permissive detariffing for
    provision of interstate exchange access services by providers other
    than the incumbent local exchange carrier.[^159] We have also
    recently amended Section 63.71 of the Commission's Rules to provide
    for the automatic grant of a nondominant carrier's application for
    discontinuance after 31 days.[^160]

68. The 1996 Act provides the Commission with the authority to forbear
    from Title II requirements.[^161] The Commission issued a Notice of
    Proposed Rulemaking seeking comment regarding forbearance from
    applying any regulation or provision of the Communications Act to
    wireless telecommunications carriers licensed by the
    Commission.[^162] This proceeding covers regulations and provisions
    of the Communications Act that affect wireless common carriers
    offering fixed services. Decisions we take in that proceeding would
    accordingly apply to common carriers offering fixed services under
    Part 27 of the Commission's Rules, including 4.9 GHz licensees and
    2.3 GHz licensees.[^163]

69. We seek comment in this proceeding on whether we should exercise our
    authority to forbear from enforcing the same Title II requirements
    that the Commission has determined not to apply to CMRS licensees
    for 4.9 GHz and 2.3 GHz licensees that provide common carrier fixed
    services.[^164] The statute requires that, before forbearing from
    applying any section of Title II, the Commission must find that each
    of the following applies:

> \(1\) Enforcement of such regulation or provision is not necessary in
> order to ensure that the charges, practices, classifications, or
> regulations by, for, or in connection with that telecommunications
> carrier or telecommunications service are just and reasonable and are
> not unjustly or unreasonably discriminatory;
>
> \(2\) Enforcement of such regulation or provision is not necessary for
> the protection of consumers; and
>
> \(3\) Forbearance from applying such provision or regulation is
> consistent with the public interest.

In applying the last criteria, the Commission is directed to consider
whether forbearance from enforcing the provision or regulation will
promote competitive market conditions, including the extent to which
such forbearance will enhance competition among providers of
telecommunications services. If the Commission determines that such
forbearance will promote competition among providers, that determination
may be the basis for finding that forbearance is in the public interest.

70. We seek comment on application of each of these three criteria in
    the context of fixed services that may be offered in the 4.9 GHz
    band and in the context of fixed services in the 2.3 GHz band. Under
    the first two parts of the test, we request comment on the
    definition of consumer, what information we should consider when
    performing these evaluations, and examples of applying these tests
    in evaluating whether forbearance is appropriate. With respect to
    the third criteria, we seek comment on the appropriate market that
    would apply to fixed, common carrier licensees in the 4.9 GHz band
    and in the 2.3 GHz band. Commenters should also address whether the
    level of competition in the marketplace for fixed common carrier
    services is sufficient to permit us to forbear.

### 2. Equal Employment Opportunity

71. Part 27 does not include an explicit Equal Employment Opportunity
    (EEO) provision. Nor does Part 24.[^165] We note that there are
    specific EEO provisions for fixed service providers in Parts 21 and
    101, including both common carrier and non-common carrier LMDS
    licensees;[^166] and for common carrier mobile service providers in
    Parts 22 and 90 of the Commission\'s Rules, though these latter
    provisions do not apply to PMRS providers because they are not
    common carriers.[^167]

72. We seek comment regarding whether to include an EEO provision in the
    Commission\'s rules applicable to services in the 4.9 GHz band and,
    if so, which of the Commission\'s EEO rules we should adopt.
    Commenters should address the advisability of having different EEO
    requirements depending on the service a licensee provides.
    Commenters supporting the adoption of EEO requirements should
    address what statutory authority should be invoked to support these
    requirements and how these rules should be tailored to withstand
    judicial review.[^168] We also solicit comment on whether the
    Commission\'s EEO rules should apply to licensees at 2.3 GHz.

## E. Technical Rules {#e.-technical-rules .unnumbered}

73. The application of general provisions of Part 27 would include
    technical standards relating to power limits,[^169] equipment
    authorization,[^170] Radiofrequency (RF) safety standards,[^171]
    emission limits,[^172] frequency stability,[^173] antenna structures
    and air navigation safety,[^174] international coordination,[^175]
    and disturbance of AM broadcast station antenna patterns.[^176] In
    addition, other technical standards contained in other sections of
    the Commission's rules would apply to 4.9 GHz licensees. These
    standards would include, among others, Part 17 (antenna
    registration),[^177] Section 1.924 (quiet zones),[^178] and 1.1307
    (environmental requirements).[^179] We tentatively conclude that all
    of these technical rules and the technical rules discussed below
    would apply to all 4.9 GHz licensees, regardless of the actual
    service provided or technology used, including those licensees who
    acquire licenses through partitioning of service areas or
    disaggregation of spectrum. We seek comment on these proposals.

### 1. In-Band Interference Control

74. Section 27.55 of the Commission\'s Rules provides that the field
    strength at any location on the border of a 2.3 GHz licensee's
    service area shall not exceed 47 dBuV/m unless licensees operating
    in adjacent areas agree to a higher field strength along their
    mutual borders. [^180] In addition to Part 27, we note that the
    Commission has permitted flexibility in services and technologies in
    other frequency bands, such as cellular service and PCS. In these
    cases, as with Part 27 services, the Commission generally has
    addressed the control of co-channel interference between licensees
    in adjacent geographic regions by establishing field strength limits
    at the edge of the service areas and encouraging the licensees to
    resolve interference problems on their own before coming to the
    Commission.

75. Because development of services and technologies that will use the
    4.9 GHz band is just beginning, we do not have reliable information
    at this time regarding the technical parameters for services that
    will be offered. We recognize that licensees will be permitted to
    implement a broad range of services and technologies in this
    spectrum, and that the implementation of these services and
    technologies must take into account the potential for interference
    between licensees using the same spectrum in adjacent service areas.

76. We also note that the Commission has recently concluded two
    rulemaking proceedings concerning fixed services at 28 GHz and 39
    GHz.[^181] In those two proceedings, the Commission relied
    principally upon the use of coordination procedures to avoid harmful
    interference between the operations of licensees in adjacent service
    areas. Specifically, licensees are required to follow the
    appropriate provisions of Section 101.103 of the Commission\'s
    Rules[^182] when they construct new facilities or modify existing
    facilities within a certain distance of the edge of their licensed
    service areas. In the case of 28 GHz LMDS licensees, this distance
    is 20 kilometers; for 39 GHz licensees the distance is 16
    kilometers. In deciding to use a coordination requirement instead of
    a field strength limit in the 39 GHz proceeding, the Commission
    noted a lack of consensus regarding the appropriate power flux
    density or field strength limit, and expressed concern about
    adopting a limit without such information.[^183]

77. The situation for licensees in the 4.9 GHz band differs somewhat
    from both of these situations. Under our proposed rules, 4.9 GHz
    licensees will have the flexibility to provide mobile, except
    aeronautical mobile, and fixed services. In this respect they have
    operational flexibility similar to 2.3 GHz licensees, who are
    subject to a field strength limit at the service area boundary. On
    the other hand, the principal use for the 4.9 GHz band might be for
    fixed services, as in the 28 GHz and 39 GHz bands, which are subject
    to a general coordination procedure.

78. We believe that either method, when properly applied, can provide a
    satisfactory means of controlling harmful interference between
    systems, although, on balance, there may be reasons to prefer one
    over the other in the 4.9 GHz band. For example, a general
    coordination requirement may minimize the potential for interference
    to coordinated facilities but may also impose unnecessary
    coordination costs for facilities with a low potential for
    interference, and increase the potential for undesirable strategic
    or anti-competitive behavior. A field strength limit, on the other
    hand, may reduce the need for coordination by giving licensees the
    ability unilaterally to deploy facilities in boundary areas as long
    as the limit is met, but by itself may provide insufficient
    assurance against interference to such facilities. Even with a
    boundary field strength limit, some degree of coordination and joint
    planning between bordering licensees appears likely to be needed to
    ensure efficient spectrum use on each side of the boundary.[^184]

79. Parties are therefore asked to provide their analyses of the
    advantages and disadvantages of both approaches or, possibly, other
    approaches that combine the elements of both a boundary field
    strength limit and a coordination requirement. Comments should
    address the advantages of different approaches in controlling
    interference across geographic boundaries in the 4.9 GHz band, the
    kinds of incentives each may create for undesirable strategic or
    anti-competitive behavior, and the effect on licensee costs.

80. If we do adopt a general coordination approach, we tentatively
    conclude that such coordination would be required with co-channel
    4.9 GHz licensees in adjacent geographic service areas and with
    adjacent channel 4.9 GHz licensees in adjacent geographic service
    areas, as well as the same or overlapping area. We propose to have
    each licensee coordinate with licensees in other relevant areas and
    develop agreements. We note that for 28 GHz LMDS and 39 GHz
    licensees, the need for coordination is triggered based on the
    distance that the station will be from the licensees' service area
    boundary. Instead of specifying a fixed distance, we propose that
    licensees coordinate their facilities whenever their facilities have
    line-of-sight into co-channel and adjacent channel licensee
    facilities.[^185] Under our proposal, both types of coordination
    must be successfully completed before operation is permitted. In the
    event that there is no 4.9 GHz licensee immediately available in an
    adjacent, same or overlapping area, the licensee must be prepared to
    coordinate its stations in the future in order to accommodate other
    licensees to ensure cooperative and effective use of the spectrum in
    each area. We solicit comment on these coordination procedures and
    criteria.[^186]

81. We also seek comment on what, if any, power limits (in terms of
    equivalent isotropically radiated power (EIRP) or effective radiated
    power (ERP)) are necessary or appropriate under either a
    coordination or field strength limit approach. We observe that
    transmitters used in the private land mobile service, cellular radio
    service, and point-to-point microwave services typically employ
    substantially different output powers. Accordingly, if commenters
    believe that power limits are necessary, we invite comments as to
    what those limits should be and the basis for the suggested limits.
    We also solicit views as to whether we should establish limits on
    output power for all transmitters, or just mobile equipment. We note
    that it is often more difficult to control interference from mobile
    equipment, which can operate anywhere throughout an area.

82. If commenters believe that the Commission should apply a field
    strength limit at service area boundaries for the 4.9 GHz band as a
    means to control interference to neighboring systems, then an
    analysis should be presented to justify the use of any proposed
    value. Various maximum field strengths have been prescribed by the
    Commission for other services. These include 47 dBuV/m for PCS[^187]
    and 55 dBuV/m for 4660-4685 MHz licenses.[^188] In Section 27.55 of
    the Commission\'s Rules,[^189] the Commission adopted a field
    strength limit of 47 dBuV/m for licensees in the 2.3 GHz band.[^190]
    Therefore, commenters who support a boundary limit should propose a
    specific value and explain the method they have used in deriving it.

83. Section 27.64 of the Commission\'s Rules[^191] states generally that
    Part 27 stations operating in full accordance with applicable
    Commission rules and the terms and conditions of their
    authorizations are normally considered to be non-interfering, and
    provides for Commission action, after notice and hearing, to require
    modifications to eliminate significant interference. In view of the
    variety of services that might be provided by Part 27 licensees,
    including 4.9 GHz licensees, we seek comment on whether we should
    modify or delete this rule. Commenters should address whether
    interference protection can be guaranteed and whether this rule, if
    retained, should be changed to direct adjacent service area
    licensees to cooperate to eliminate or ameliorate interference. This
    alternative would require each licensee ultimately to assume
    responsibility for protecting its own receiving system from
    interference from transmitters in adjoining areas that meet our
    standards.[^192] We also seek comment on whether we should apply any
    changes with respect to Section 27.64 to the 2.3 GHz band.

84. Finally, in order to protect radio astronomy operations, we are
    seeking comment on whether power limits and coordination procedures
    should be imposed on 4.9 GHz licensees operating in those geographic
    areas defined in revised footnote US311 to the Table of Frequency
    Allocations.[^193] We request comment on whether restrictions on
    operations should be imposed in order to adequately protect radio
    astronomy operations. Commenters who believe that we should allow
    fixed or mobile operations, except aeronautical mobile, in the
    designated geographic areas should present specific recommendations
    for ensuring that interference to radio astronomy operations does
    not occur.

### 2. U.S. Navy Cooperative Engagement Capability System

85. The Cooperative Engagement Capability ("CEC") system is a major new
    networking system being developed by the military to provide
    connectivity between air, land, and sea units for Theater Air
    Defense.[^194] The system will operate in the band immediately below
    the 4.9 GHz band. In order to minimize mutual interference between
    the CEC system and prospective licensees operating in the 4.9 GHz
    band, certain CEC technical characteristics have been released so
    that 4.9 GHz equipment can be designed to reduce susceptibility to
    interference.[^195]

86. The CEC operates on multiple frequencies in the bands below the 4.9
    GHz band. The authorized bandwidth of the transmitted signal on a
    specific frequency is 22 MHz. In order to comply with NTIA
    regulations, the CEC-authorized bandwidth will be contained wholly
    within the adjacent Federal band so that it does not interfere with
    the 4.9 GHz band. To achieve this objective, the center frequency of
    any CEC transmitted signal will not fall above the frequency 4929
    MHz.

87. The CEC system employs high power transmitters with directional
    antennas to achieve a maximum EIRP of 58 dBW (630 Kw). Under most
    deployment scenarios, this maximum EIRP level will be directed
    towards the operational areas or out to sea. Under certain
    conditions, however, this maximum EIRP value may be directed at the
    horizon and inland from aircraft operating in the operational areas.
    The CEC emission characteristic was designed to be spectrally
    efficient to exceed NTIA requirements for unwanted emissions.
    Specific spectral parameters as identified by NTIA are as
    follows:[^196]

    CEC Out-of-Band Emissions

    1\. At +/- 7.65 MHz from the transmitter center frequency -3 dBc

    2\. At +/- 12.1 MHz from the transmitter center frequency -30 dBc

    **Transmitter Noise** at greater than +/- 25.6 MHz from the
    transmitter center frequency Less than --145 dBc/Hz

    **Harmonics and Spurious** Less than --80 dBc

88. The locations in which large numbers of CEC nodes will be operating
    include a number of Naval and joint military exercise areas. CEC
    units will be located on ships and aircraft, and at land based
    sites. The normal operating areas are coastal waters and the
    contiguous land mass that extends 30 nautical miles inland. The
    operating altitude of CEC-equipped aircraft will typically extend to
    35,000 feet.

89. The Department of Commerce identified ten areas as essential to
    support training with a large number of cooperating units in a CEC
    network.[^197] The technical parameters and operational areas on
    adjacent band Federal spectrum use were provided for information so
    that potential auction bidders could make informed decisions. The
    significance of these areas is that airborne CEC units with high
    power transmitters are expected to be flown directly overhead and
    extend out to sea in and around existing military operational areas.
    These ten areas will affect 91 EAs.[^198]

90. We seek comment on what measures should be taken to protect the 4.9
    GHz licensees from interference from Federal Government use of the
    adjacent band. While we seek to protect 4.9 GHz licensees from
    interference, we also wish to provide 4.9 GHz licensees operating in
    the affected EAs with as much flexibility as possible in terms of
    the types of services they can offer and the types of systems they
    can install. We seek comment on whether certain technical standards
    should be imposed on 4.9 GHz licensees to meet these goals.

## Competitive Bidding Procedures

91. In 1998 we revised most of the auction rules for the band 4660-4685
    MHz, which was previously allocated to the service that is now
    proposed for the 4.9 GHz band.[^199] Specifically, we replaced most
    of the Part 26 auction rules with streamlined Part 1 rules. With
    regard to auction provisions for designated entities, we simplified
    the definition of small business, eliminated installment payments,
    and increased the bidding credit. Furthermore, we directed the
    Wireless Telecommunications Bureau to determine the competitive
    bidding mechanisms, upfront payments, and minimum opening bids that
    will apply to the band 4660-4685 MHz.

92. Below we propose to use the Part 1 auction rules to initially
    license the 4.9 GHz band. In addition, under our proposal, the
    remaining Part 26 auction rules for the band 4660-4685 MHz would be
    moved to Part 27 and made applicable to the 4.9 GHz band.

### 1. Statutory Requirements

93. The BBA-97 amended Section 309(j) of the Act to require the
    Commission to award mutually exclusive applications for initial
    licenses or permits using competitive bidding procedures, with very
    limited exceptions.[^200] Thus, if not exempted by the statute, a
    service will be auctionable if we implement a licensing process that
    permits the filing and acceptance of mutually exclusive
    applications. In establishing particular licensing schemes or
    methodologies, the Commission is required to consider the public
    interest objectives described in section 309(j)(3).

94. Pursuant to Section 309(j)(6)(E) of the Act, the Commission has an
    "obligation in the public interest to continue to use engineering
    solutions, negotiation, threshold qualifications, service
    regulations, and other means in order to avoid mutual exclusivity in
    application and licensing proceedings."[^201] In the BBA-97,
    Congress highlighted the Commission's obligation under Section
    309(j)(6)(E) by referencing that obligation in the general auction
    authority provision. Global argues in its Petition for Rulemaking
    that the Commission should fulfill its obligation under Section
    309(j)(6)(E) by seeking to avoid mutual exclusivity through
    engineering solutions achieved by negotiation among applicants after
    the filing of short-form auction applications.[^202] The Commission
    recently sought comment on the scope and content of the Commission's
    obligation under Section 309(j)(6)(E). [^203] In determining whether
    to assign licenses in the 4.9 GHz band through competitive bidding,
    we intend to adhere to any conclusions we reach in the Balanced
    Budget Act proceeding regarding the scope of our auction authority,
    in light of our conclusions concerning our obligations under Section
    309(j)(6)(E).

95. As discussed above, we propose to license the 4.9 GHz band using a
    licensing system based on geographic areas.[^204] Because we have
    tentatively concluded that it would serve the public interest to
    implement a geographic area licensing scheme under which mutual
    exclusivity is possible, we also tentatively conclude that mutually
    exclusive initial applications for the 4.9 GHz band must be resolved
    through competitive bidding. We seek comment on this tentative
    conclusion. We also note that the Commission previously concluded
    that GWCS spectrum, originally allocated at 4660-4685 MHz, should be
    assigned by auction in case of mutually exclusive
    applications.[^205] In the *BBA NPRM*, we reiterated our conclusion
    that the Commission will not re-examine previous determinations that
    specific services or frequency bands were auctionable under the 1993
    Budget Act.[^206] Accordingly, we tentatively conclude that our
    previous determination of auctionability is dispositive here with
    regard to the substituted spectrum.

96. Section 3002 of the BBA-97[^207] also directs the Commission to
    provide for the "design and conduct (for purposes of testing) of
    competitive bidding using a contingent combinatorial bidding system
    that permits prospective bidders to bid on combinations or groups of
    licenses in single bid and to enter multiple alternative bids within
    a single bidding round." The Commission has contracted for the
    development and testing of a means to employ combinatorial bidding
    in a spectrum auction environment.[^208] Should the combinatorial
    bidding tests produce a feasible and appropriate auction
    methodology, we seek comment on whether the 4.9 GHz auction may
    present a suitable opportunity for the use of such combinatorial
    procedures.

97. Section 113(g) of the National Telecommunications and Information
    Administration Organization Act generally does not require
    commercial licensees to reimburse the relocation costs of federal
    entities that used frequencies reallocated to commercial uses
    pursuant to OBRA 1993.[^209] Moreover, the Department of Commerce
    has determined that successful bidders will not be required to
    compensate Federal agencies required to relocate from the band
    4940-4990 MHz.[^210]

### 2. Incorporation by Reference of Part 1 Standardized Auction Rules

98. In the *Part 1 Third Report and Order*, the Commission streamlined
    its auction procedures by adopting general competitive bidding rules
    applicable to all auctionable services,[^211] and, in the same
    proceeding, issued a *Second Further Notice of Proposed Rule Making*
    concerning designated entities and attribution rules, among other
    issues.[^212] We propose to conduct the auction for initial licenses
    in the 4.9 GHz band in conformity with the general competitive
    bidding rules set forth in Part 1, subpart Q of the Commission\'s
    rules, and consistent with the bidding procedures that have been
    employed in previous Commission auctions. Specifically, we propose
    to employ the Part 1 rules governing designated entities,
    application issues, payment issues, competitive bidding design,
    procedure and timing issues, and anti-collusion.[^213] These rules
    would be subject to any modifications that the Commission adopts in
    relation to the *Second Further Notice of Proposed Rule Making*. We
    seek comment on this proposal and on whether any of our Part 1 rules
    would be inappropriate in an auction for this service.

### 3. Provisions for Designated Entities

####  a. Background

99. The Communications Act provides that, in developing competitive
    bidding procedures, the Commission shall consider various statutory
    objectives and consider several alternative methods for achieving
    them.[^214] Specifically, the statute provides that, in establishing
    eligibility criteria and bidding methodologies, the Commission
    shall:[^215]

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 of licenses and by
disseminating licenses among a wide variety of applicants, including
small businesses, rural telephone companies, and businesses owned by
members of minority groups and women\[.\]

####  b. Small Business Definitions

100. In the *Competitive Bidding Second Memorandum Opinion and Order*,
     the Commission stated that it would define eligibility requirements
     for small businesses on a service-specific basis, taking into
     account the capital requirements and other characteristics of each
     particular service in establishing the appropriate threshold.[^216]
     While the *Part 1 Third Report and Order* standardizes many auction
     rules, it provides that the Commission will continue a
     service-by-service approach to defining small businesses. For the
     4.9 GHz band, we propose to adopt the definitions the Commission
     adopted for broadband PCS for "small" and "very small"
     businesses,[^217] which the Commission also adopted for 2.3 GHz and
     39 GHz applicants.[^218] The Commission previously adopted the same
     definition for the band 4660-4685 MHz, which is presently contained
     in Section 26.4 of the Commission rules.[^219] We tentatively
     conclude that the capital requirements are likely to be similar to
     the capital requirements in those services. Specifically, we
     propose to define a small business as any firm with average annual
     gross revenues for the three preceding years not in excess of \$40
     million. For entities that qualify as small businesses, we propose
     to provide a bidding credit of 15 percent.[^220]

101. We also seek to adopt small business size standards that afford
     licensees substantial flexibility. Thus, in addition to our
     proposal to adopt the general small business standard the
     Commission used in the case of broadband PCS, 2.3 GHz, and 39 GHz
     licenses, we propose to adopt the definition for very small
     businesses used for 39 GHz licenses[^221] and for the PCS C and F
     block licenses:[^222] businesses with average annual gross revenues
     for the three preceding years not in excess of \$15 million. For
     entities that qualify as very small businesses, we propose to
     provide a bidding credit of 25 percent.[^223]

102. We seek comment on the use of these standards for services licensed
     in the 4.9 GHz band, with particular focus on the appropriate
     definitions of small and very small businesses as they relate to
     the size of the geographic area to be covered and the spectrum
     allocated to each license. In discussing these issues, commenters
     are requested to provide data demonstrating the build-out and other
     capital requirements for services in the 4.9 GHz band, as well as
     the anticipated start-up costs for providing service, and how these
     costs compare with costs for other services. Commenters are invited
     to use comparisons with other services for which the Commission has
     already established auction procedures as a basis for their
     comments regarding the appropriate definitions for small and very
     small businesses. Commenters also should address to what extent, if
     any, the proposed size standards, with the applicable bidding
     credits, would impact the ability of small businesses to acquire
     financing. We also seek comment on the advantages of a two-tiered
     standard, as opposed to a single size standard.

103. Furthermore, we seek comment on whether the proposed designated
     entity provisions, if adopted and applied to this service, would be
     sufficient to promote participation by businesses owned by
     minorities and by women, and participation by rural telephone
     companies. To the extent that commenters propose additional
     provisions to ensure participation by minority-owned and
     women-owned businesses, we also invite them to address how such
     provisions should be crafted to meet the relevant standards of
     judicial review.[^224]

104. In calculating gross revenues for purposes of small business
     eligibility in the 4.9 GHz auction, we propose to attribute the
     gross revenues of the applicant, its controlling interests and its
     affiliates. This approach is consistent with our proposal in the
     *Part 1 Second Further Notice,*[^225] and is similar to the
     attribution rules we have employed for the recent LMDS, 800 MHz
     SMR, and LMS auction proceedings.[^226] As we noted in the *Part 1
     Second Further Notice*, under this proposed controlling interest
     standard we would apply our comprehensive affiliation rule to all
     investors in the applicant.[^227] Thus, passive interests that were
     otherwise non-attributable would be attributable if they are
     affiliates under this rule.[^228]

# IV. PROCEDURAL MATTERS

## A. Initial Regulatory Flexibility Analysis {#a.-initial-regulatory-flexibility-analysis .unnumbered}

105. As required by the Regulatory Flexibility Act of 1980 (RFA),[^229]
     the Commission has prepared an Initial Regu­latory Flexibility
     Analysis (IRFA) of the possible significant economic impact on
     small entities of the policies and rules proposed in the
     Notice.[^230] We request written public comment on the analysis. In
     or­der to fulfill the mandate of the Contract with America
     Advancement Act of 1996 regarding the Final Regulatory Flexibility
     Analysis, we ask a number of questions in our IRFA regarding the
     prevalence of small businesses in the affected indus­tries.

106. Comments must be filed in accordance with the same filing deadlines
     as comments filed in this rulemaking proceeding, but they must have
     a separate and distinct heading designating them as responses to
     the IRFA. The Commission\'s Consumer Information Bureau, Reference
     Information Center, will send a copy of this Notice, including the
     IRFA, to the Chief Counsel for Advocacy of the Small Business
     Administration.

## B. Paperwork Reduction Analysis {#b.-paperwork-reduction-analysis .unnumbered}

107. This Notice contains either a proposed or modified information
     collection. As part of our continuing effort to reduce paperwork
     burdens, we invite the general public and the Office of Management
     and Budget (OMB) to take this opportunity to comment on the
     infor­mation collections contained in this Notice, as required by
     the Paperwork Reduction Act of 1995.[^231] Public and agency
     comments are due at the same time as other comments on this Notice;
     OMB comments are due 60 days from the date of publication of this
     Notice in the Federal Register. Comments should address:

-   Whether the proposed collection of information is necessary for the
    proper performance of the functions of the Commission, including
    whether the information shall have practi­cal utility.

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

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

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-   Ways to minimize the burden of the collection of information on the
    respondents, in­cluding the use of automated collection techniques or
    other forms of information tech­nology.

108. Written comments by the public on the proposed and/or modified
     information collec­tions are due April 26, 2000. Written comments
     must be submitted by the OMB on the proposed and/or modified
     information collections on or before 60 days after the date of
     publication in the Federal Register. In addition to filing comments
     with the Secretary, a copy of any comments on the information
     collections contained herein should be submitted to Judy Boley,
     Federal Communications Commission, Room 1-C804, 445 Twelfth Street,
     S.W., Washington, D.C. 20554, or via the Internet to
     jboley@fcc.gov, and to Virginia Huth, OMB Desk Officer, Room 10236
     New Executive Office Building, 725 Seventeenth Street, N. W.,
     Washington, D.C. 20503, or via the Internet to vhuth@omb.eop.gov.

## C. *Ex Parte* Presentations {#c.-ex-parte-presentations .unnumbered}

109. For purposes of this permit-but-disclose notice and comment
     rulemaking proceed­ing, members of the public are advised that *ex
     parte* presentations are permitted, except dur­ing the Sunshine
     Agenda period, provided they are disclosed under the Commission\'s
     Rules.[^232]

## D. Pleading Dates {#d.-pleading-dates .unnumbered}

110. Pursuant to applicable procedures set forth in Sections 1.415 and
     1.419 of the Commission\'s Rules,[^233] interested parties may file
     comments on or before April 26, 2000 and re­ply comments on or
     before May 17, 2000. Comments and reply comments should be filed in
     WT Docket No. 00-32. All relevant and timely comments will be
     considered by the Commission before final action is taken in this
     proceeding. To file formally in this proceeding, interested parties
     must file an original and four copies of all comments, reply
     comments, and supporting comments. If interested parties want each
     Commissioner to receive a personal copy of their comments, they
     must file an original plus nine copies. Interested parties should
     send comments and reply comments to the Office of the Secretary,
     Federal Communications Commission, Room TW-A325, 445 Twelfth
     Street, S.W., Washington, D.C. 20554, with a copy to Eli Johnson,
     Policy Division, Wireless Telecommunications Bureau, 445 Twelfth
     Street, S.W., Washington, D.C. 20554.

111. Comments may also be filed using the Commission\'s Electronic
     Comment Filing System (ECFS).[^234] Comments filed through the ECFS
     can be sent as an electronic file via the Internet to
     \<http://www.fcc.gov/e-file/ecfs.html\>. Generally, only one copy
     of an electronic submission must be filed. In completing the
     transmittal screen, commenters should include their full name,
     Postal Service mailing address, and the applicable docket or
     rulemaking number. Parties may also submit an electronic comment by
     Internet E-Mail. To obtain filing instructions for E-Mail comments,
     commenters should send an e-mail to ecfs@fcc.gov, and should
     include the following words in the body of the message, "get form
     \<your E-Mail address\>." A sample form and directions will be sent
     in reply.

112. Comments and reply comments will be available for public inspection
     during regu­lar business hours at the FCC Reference Center, Room
     CY-A257, at the Federal Communica­tions Commission, 445 Twelfth
     Street, S.W., Washington, D.C. 20554. Copies of comments and reply
     comments are available through the Commission\'s duplicating
     contractor: International Transcription Service, Inc. (ITS, Inc.),
     1231 20th Street, N.W., Washington, D.C. 20037, (202) 857-3800.

## E. Further Information {#e.-further-information .unnumbered}

113. For further information concerning this rulemaking proceeding,
     contact Eli Johnson at (202) 418-1310, Wireless Telecommunications
     Bureau, Federal Communications Commission, Washington, D.C. 20554.

# V. ORDERING CLAUSES

114. Accordingly, IT IS ORDERED that these actions ARE TAKEN pursuant to
     Sections 1, 4(i), 7, 10, 201, 202, 208, 214, 301, 303, 308, 309(j),
     and 310 of the Communications Act of 1934, as amended, 47 U.S.C. §§
     151, 154(i), 157, 160, 201, 202, 208, 214, 301, 303, 308, 309(j),
     310.

115. IT IS FURTHER ORDERED that NOTICE IS HEREBY GIVEN of the proposed
     regulatory changes described above and in Appendix B, and that
     comment is sought on these proposals.

116. IT IS FURTHER ORDERED that the Petition for Rulemaking of Global
     Frontiers, Inc. To Revise Title 47, Chapter I, Parts 2 and 26, Code
     of Federal Regulations, in Order To Reallocate Frequencies to GWCS
     and Make Related Changes, is GRANTED TO THE EXTENT INDICATED HERE
     IN.

117. IT IS FURTHER ORDERED that, pursuant to Sections 1, 4(I) and 332 of
     the Communications Act of 1934, as amended, 47 U.S.C. §§ 151,
     154(I) and 332, the rulemaking proceeding captioned Geographic
     Partitioning and Spectrum Disaggregation by Commercial Mobile Radio
     Services Licensees, WT Docket No. 96-148, IS TERMINATED TO THE
     EXTENT INDICATED HERE IN.

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

> FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

**Appendix A**

**Initial Regulatory Flexibility Analysis**

As required by the Regulatory Flexibility Act (RFA),[^235] the
Commission has prepared this Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact on small entities by
the policies and rules proposed in this Notice of Proposed Rulemaking
(Notice), WT Docket No. 00-32. Written public comments are requested on
this IRFA. Comments must be identified as responses to the IRFA and must
be filed by the deadlines for comments on the Notice as provided above
in paragraph 110. The Commission will send a copy of the Notice,
including the IRFA, to the Chief Counsel for Advocacy of the Small
Business Administration.[^236] In addition, the Notice and IRFA (or
summaries thereof) will be published in the Federal Register.[^237]

**A. Need for, and Objectives of, the Proposed Rules**

In this Notice, we propose to allocate and establish licensing and
service rules for the band 4940-4990 MHz (4.9 GHz band) that has
recently been transferred from Federal Government to private sector use
as substitute spectrum for the band 4635-4685 MHz that has been
reclaimed for Federal Government use. Specifically, we propose to
allocate the 4.9 GHz band to fixed and mobile services, except
aeronautical mobile service, on a primary basis and we seek comment on
the geographic area and spectrum blocks that should be used to license
this spectrum. We also propose to delete Part 26 of the Commission\'s
Rules[^238] containing the General Wireless Communications Service
(GWCS) rules and to regulate the 4.9 GHz band under Part 27 of the
Commission\'s Rules,[^239] except to the extent we propose to modify
those rules in this Notice to reflect the particular characteristics of
this spectrum and the services that will be permitted to use this
spectrum. We also propose that initial licenses for the 4.9 GHz band be
acquired through competitive bidding under Part 1 of the Commission\'s
Rules.[^240] Furthermore, in a few instances, we propose to codify and
conform certain rules for the 2.3 GHz band to provide for consistent
regulation of Part 27 services.

Our objectives for the Notice are to: (1) accommodate the introduction
of new uses of spectrum and the enhancement of existing uses; (2)
encourage commercial development of equipment that can operate in the
4.9 GHz band; (3) facilitate the awarding of licenses to entities who
value them the most; and (4) create new jobs, foster economic growth and
improve access to communications by industry and the American public.
The Commission also seeks to ensure a regulatory plan for the 4.9 GHz
band that will allow for the efficient licensing and use of the band,
eliminate unnecessary regulatory burdens, enhance the competitive
potential of the band, and provide a wide variety of radio services to
the public.

**B. Legal Basis for Proposed Rules**

The proposed action is authorized under Sections 1, 4(i), 7, 10, 201,
202, 208, 214, 301, 303, 308, 309(j), and 310 of the Communications Act
of 1934, 47 U.S.C. §§ 151, 154(i), 157, 160, 201, 202, 208, 214, 301,
303, 308, 309(j), 310.

**C. Description and Estimate of the Number of Small Entities To Which
the Proposed Rules Will Apply**

The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted.[^241] The RFA generally
defines the term "small entity" as having the same meaning as the terms
"small business," "small organization," and "small governmental
jurisdiction." In addition, the term "small business" has the same
meaning as the term "small business concern" under Section 3 of the
Small Business Act, unless the Commission has developed one or more
definitions that are appropriate for its activities.[^242] Under the
Small business Act, a "small business concern" is one that: (1) is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
Small Business Administration (SBA).[^243] A small organization is
generally "any not-for-profit enterprise which is independently owned
and operated and is not dominant in its field."[^244] Nationwide, as of
1992, there were approximately 275,801 small organizations.[^245]

The definition of "small governmental entity" is one with populations of
fewer than 50,000.[^246] There are 85,006 governmental entities in the
nation.[^247] This number includes such entities as states, counties,
cities, utility districts and school districts. There are no figures
available on what portion of this number has populations of fewer than
50,00. However, this number includes 38,978 counties, cities and towns,
and of those, 37,556, or ninety-six percent, have populations of fewer
than 50,000.[^248] The Census Bureau estimates that this ratio is
approximately accurate for all government entities. Thus, of the 85,006
governmental entities, we estimate that ninety-six percent, or about
81,600, are small entities that may be affected by our rules.

The proposals in the Notice affect applicants who wish to provide
services in the 4.9 GHz band. We note that pursuant to 47 C.F.R. §
24.720(b), the Commission has previously defined "small entity" for
Blocks C and F broadband PCS licensees as firms that had average gross
revenues of less that \$40 million in the three previous calendar years.
This regulation defining "small entity" in the context of broadband PCS
auctions has been approved by the SBA.[^249] We also note that the
Commission has adopted this same definition for 2.3 GHz and 39 GHz
applicants,[^250] as well as for the band 4660-4685 MHz.[^251] With
respect to prospective 4.9 GHz license applicants, we propose to use the
small entity definition adopted in the Broadband PCS proceeding.[^252]

In addition, we note that if the above-proposed special small business
definition were not to be used, the applicable definition of small
entity is the definition under the SBA rules applicable to
radiotelephone (wireless) companies. This provides that a small entity
is a radiotelephone company employing no more than 1,500 persons.[^253]
According to the Bureau of the Census, only twelve radiotelephone firms
from a total of 1,178 such firms which operated during 1992 had 1,000 or
more employees.[^254]

The Notice observes that the capital costs of operational facilities in
the 4.9 GHz band are likely to vary widely. Accordingly, the Notice
seeks to adopt small business size standards that afford licensees
substantial flexibility. Thus, in addition to its proposal to adopt the
general small business standard the Commission used in the case of
broadband PCS, 2.3 GHz, 39 GHz, and 4660-4685 MHz licenses, the Notice
also proposes to adopt the definition for very small businesses used for
39 GHz licenses[^255] and for the PCS C and F block licenses:[^256]
businesses with average annual gross revenues for the three preceding
years not in excess of \$15 million.

While the Notice proposes to use these definitions, the Commission has
not yet determined or proposed how many licenses will be awarded, nor
will it know how many licensees will be small businesses until the
auction, if required, is held. In addition, at this point in the
proceeding, the Commission does not know how many licensees will
partition their license areas or disaggregate their spectrum blocks, if
partitioning and disaggregation are allowed. We therefore assume that,
for purposes of our evaluations and conclusions in the IRFA, all of the
prospective licensees are small entities, as that term is defined by the
SBA or our proposed definitions for the 4.9 GHz band.

We invite comment on this analysis.

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

Entities interested in acquiring spectrum in the 4.9 GHz band will be
required to submit license applications and high bidders will be
required to apply for their individual licenses.[^257] The proposals
under consideration in this item also include requiring commercial
licensees to make showings that they are in compliance with construction
requirements,[^258] file applications for license renewals[^259] and
make certain other filings as required by the Communications Act.[^260]
We request comment on how these requirements can be modified to reduce
the burden on small entities and still meet the objectives of the
proceeding.

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

In the Notice, we seek data demonstrating build-out and other capital
requirements for services in the 4.9 GHz band, as well as the
anticipated start-up costs for providing service, and how these costs
compare with costs for other services.[^261] Commenters are invited to
use comparisons with other services for which the Commission has already
established auction procedures as a basis for their comments regarding
the appropriate definitions for small and very small businesses.
Commenters are ask to address to what extent the proposed size standards
will impact the ability of small businesses to acquire financing. In
addition, we seek comment on whether the proposed designated entity
provisions would be sufficient to promote participation by businesses
owned by minorities and by women, and participation by rural telephone
companies.[^262]

We have reduced burdens wherever possible. To minimize any negative
impact, however, we propose certain incentives for small entities which
will redound to their benefit. These special provisions include
partitioning and spectrum disaggregation.[^263] We have also sought
comment on different approaches to minimizing the burdens of
interference management.[^264] In addition, we have sought comment on
combinatorial auction procedures, which may enable small entities to
participate in the licensing process with more flexibility.[^265]

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

**F. Federal Rules that May Duplicate, Overlap, or Conflict With the
Proposed Rules**

None.

# Appendix B

# Proposed Rules

For the reasons discussed in the preamble, parts 2, 26, and 27 of Title
47 of the Code of Federal Regulations are proposed to be amended as
follows:

PART 2 \-- FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS;

GENERAL RULES AND REGULATIONS

1\. The authority citation for part 2 continues to read:

Authority: 47 U.S.C. 154, 302, 303, 307, 336, and 337 unless otherwise
noted.

2.  Page 55 of Table of Frequency Allocations, 47 CFR § 2.106, is
    revised to read as follows.

3.  In the list of United States footnotes, footnote US257 is removed
    and footnote US311 is revised.

The additions and revisions read as follows:

§ 2.106 Table of Frequency Allocations.

+-----------+-----------+-----------+-----------+-----------+---------+
| 3700-5650 |           |           |           |           | Page 55 |
| MHz (SHF) |           |           |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| Inte      |           |           | United    |           | FCC     |
| rnational |           |           | States    |           | Rule    |
| Table     |           |           | Table     |           | Part(s) |
+-----------+-----------+-----------+-----------+-----------+---------+
| Region 1  | Region 2  | Region 3  | Federal   | No        |         |
|           |           |           | G         | n-Federal |         |
|           |           |           | overnment | G         |         |
|           |           |           |           | overnment |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| See       | 3700-4200 |           |           | 3700-4200 | 37      |
| previous  |           |           |           |           | 00-4200 |
| page for  | FIXED     |           |           |           |         |
|           |           |           |           |           | FIXED   |
| 3600-4200 | FIXED-    |           |           |           | NG41    |
| MHz       | SATELLITE |           |           |           |         |
|           | (space-   |           |           |           | F       |
|           | to-Earth) |           |           |           | IXED-SA |
|           |           |           |           |           | TELLITE |
|           | MOBILE    |           |           |           |         |
|           | except    |           |           |           | (s      |
|           | aer       |           |           |           | pace-to |
|           | onautical |           |           |           | -Earth) |
|           | mobile    |           |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 4200-4400 |           |           |           |           | 42      |
|           |           |           |           |           | 00-4400 |
| AER       |           |           |           |           |         |
| ONAUTICAL |           |           |           |           | AERON   |
| RADION    |           |           |           |           | AUTICAL |
| AVIGATION |           |           |           |           | R       |
| S5.438    |           |           |           |           | ADIONAV |
|           |           |           |           |           | IGATION |
| S5.437    |           |           |           |           |         |
| S5.439    |           |           |           |           | S5.440  |
| S5.440    |           |           |           |           | US261   |
+-----------+-----------+-----------+-----------+-----------+---------+
| 4400-4500 |           |           |           |           | 44      |
|           |           |           |           |           | 00-4500 |
| FIXED     |           |           |           |           |         |
|           |           |           |           |           | FIXED   |
| MOBILE    |           |           |           |           |         |
|           |           |           |           |           | MOBILE  |
+-----------+-----------+-----------+-----------+-----------+---------+
| 4500-4800 |           |           |           |           | 45      |
|           |           |           |           |           | 00-4800 |
| FIXED     |           |           |           |           |         |
|           |           |           |           |           | FIXED   |
| FIXED-    |           |           |           |           |         |
| SATELLITE |           |           |           |           | MOBILE  |
| (space-   |           |           |           |           |         |
| to-Earth) |           |           |           |           | US245   |
| S5.441    |           |           |           |           |         |
|           |           |           |           |           |         |
| MOBILE    |           |           |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 4800-4990 |           |           |           |           | 48      |
|           |           |           |           |           | 00-4940 |
| FIXED     |           |           |           |           |         |
|           |           |           |           |           | FIXED   |
| MOBILE    |           |           |           |           |         |
| S5.442    |           |           |           |           | MOBILE  |
|           |           |           |           |           |         |
| Radio     |           |           |           |           | S5.149  |
| astronomy |           |           |           |           | US203   |
+-----------+-----------+-----------+-----------+-----------+---------+
| S5.149    |           |           |           |           | 49      |
| S5.339    |           |           |           |           | 40-4990 |
| S5.443    |           |           |           |           |         |
|           |           |           |           |           | S5.149  |
|           |           |           |           |           | S5.339  |
|           |           |           |           |           | US311   |
+-----------+-----------+-----------+-----------+-----------+---------+
| 4990-5000 |           |           |           |           | 49      |
|           |           |           |           |           | 90-5000 |
| FIXED     |           |           |           |           |         |
|           |           |           |           |           | RADIO   |
| MOBILE    |           |           |           |           | AS      |
| except    |           |           |           |           | TRONOMY |
| aer       |           |           |           |           | US74    |
| onautical |           |           |           |           |         |
| mobile    |           |           |           |           | Space   |
|           |           |           |           |           | r       |
| RADIO     |           |           |           |           | esearch |
| ASTRONOMY |           |           |           |           | (p      |
|           |           |           |           |           | assive) |
| Space     |           |           |           |           |         |
| research  |           |           |           |           | US246   |
| (passive) |           |           |           |           |         |
|           |           |           |           |           |         |
| S5.149    |           |           |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 5000-5150 |           |           |           |           | 50      |
|           |           |           |           |           | 00-5250 |
| AER       |           |           |           |           |         |
| ONAUTICAL |           |           |           |           | AERON   |
| RADION    |           |           |           |           | AUTICAL |
| AVIGATION |           |           |           |           | R       |
|           |           |           |           |           | ADIONAV |
| S5.367    |           |           |           |           | IGATION |
| S5.444    |           |           |           |           | US260   |
| S5.444A   |           |           |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
|           |           |           |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+

\* \* \* \* \*

UNITED STATES (US) FOOTNOTES

\* \* \* \* \*

US311 Radio astronomy observations may be made in the bands 1350-1400
MHz and 4950-4990 MHz on an unprotected basis at certain radio astronomy
obser­vatories indicated below:

  -------------------------- --------------------- -----------------------
  National Astronomy and     Rectangle between     
  Ionosphere Center,         latitudes 17° 30\' N  
  Arecibo, Puerto Rico       and 19° 00\' N and    
                             between longitudes    
                             65° 10\' W and        
                             68° 00\' W.           

  National Radio Astronomy   Rectangle between     
  Observatory, Socorro, New  latitudes 32° 30\' N  
  Mexico                     and 35° 30\' N and    
                             between longitudes    
                             106° 00\' W and       
                             109° 00\' W.          

  National Radio Astronomy   Rectangle between     
  Obser-vatory, Green Bank,  latitudes 37° 30\' N  
  West Virginia              and 39° 15\' N and    
                             between longitudes    
                             78° 30\' W and        
                             80° 30\' W.           

  National Radio Astronomy   80 kilometers (50     
  Observatory, Very Long     mile) radius centered 
  Baseline Array Stations    on:                   

                             Latitude (North)      Longitude (West)

  Pie Town, NM               34° 18\'              108°  07\'

  Kitt Peak, AZ              31° 57\'              111° 37\'

  Los Alamos, NM             35° 47\'              106° 15\'

  Fort Davis, TX             30° 38\'              103° 57\'

  North Liberty, IA          41° 46\'              91° 34\'

  Brewster, WA               48° 08\'              119° 41\'

  Owens Valley, CA           37° 14\'              118° 17\'

  Saint Croix, VI            17° 46\'              64° 35\'

  Mauna Kea, HI              19° 48\'              155° 27\'

  Hancock, NH                42° 56\'              71° 59\'
  -------------------------- --------------------- -----------------------

Every practicable effort will be made to avoid the assignment of
frequencies in the bands 1350-1400 MHz and 4950-4990 MHz to stations in
the fixed and mobile services which could interfere with radio astrono­my
observa­tions within the geo­graphic areas given above. In addi­tion, every
practicable effort will be made to avoid as­signment of fre­quencies in
these bands to sta­tions in the aeronauti­cal mobile service which operate
outside of those geograph­ic areas, but which may cause harmful
interference to the listed observa­tories. Should such assignments result
in harmful interfer­ence to these obser­vatories, the situation will be
reme­died to the extent practica­ble.

\* \* \* \* \*

PART 26 \-- GENERAL WIRELESS COMMUNICATIONS SERVICE

4\. Part 26 of Title 47 of the Code of Federal Regulations is removed in
its entirety.

PART 27 --- WIRELESS COMMUNICATIONS SERVICE

5\. The authority citation for part 27 continues to read as follows:

Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, and 332.

6\. Section 27.1 is amended by adding paragraph (b)(3) to read as
follows:

**[§ 27.1 Basis and purpose.]{.underline}**

\(b\) \* \* \*

\(3\) 4940-4990 MHz.

\* \* \* \* \*

7\. Section 27.14 is amended by adding paragraphs (a)(1) and (a)(2) to
read as follows:

**[§ 27.14 Construction requirements; Criteria for comparative renewal
proceedings.]{.underline}**

\(a\) \* \* \*

\(1\) As examples of "safe-harbors," for a WCS licensee that chooses to
offer fixed services or point-to-point services, the construction of
four permanent links per one million people in its licensed service area
at the 10-year renewal mark would constitute substantial service. For a
WCS licensee that chooses to offer mobile services or
point-to-multipoint services, a demonstration of coverage to 20 percent
of the population of its licensed service area at the 10-year renewal
mark would constitute substantial service.

\(2\) In addition, the Commission may consider such factors as whether
the licensee is offering a specialized or technologically sophisticated
service that does not require wide coverage to be of benefit to
customers, and whether the licensee\'s operations serve niche markets or
focus on serving populations outside of areas served by other licensees.
These safe-harbor examples are intended to provide WCS licensees a
degree of certainty as to compliance with the substantial service
requirement by the end of the initial license term. Licensees can meet
this requirement in other ways, and licensees\' showings will be
reviewed on a case-by-case basis.

\* \* \* \* \*

8\. Section 27.53 is amended by adding new paragraph (f) as follows:

**[§ 27.53 Emission limits.]{.underline}**

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

\(f\) [For the band 4940-4990 MHz]{.underline}: The peak power of any
emission outside the licensee\'s authorized band, either measured in, or
referred to a 1 MHz instrument bandwidth, shall be attenuated below the
maximum peak spectral density by at least 43 + 10 log (p) dB or 80 dB,
whichever is less.

9\. Section 27.57 is revised to read as follows:

**[§ 27.57 International coordination.]{.underline}**

WCS licensees shall comply with the appropriate coordination agreements
between the United States and Canada and the United States and Mexico
concerning cross-border sharing and use of WCS bands. Operations in the
border areas shall be subject to coordination with bordering countries
and provide protection to non-U.S. operations in the appropriate
frequency bands. In addition, satellite operations in WCS spectrum shall
be subject to international satellite coordination procedures.

10\. Section 27.65 is added to read as follows:

[§ 27.65 Interference protection criteria.]{.underline}

\(a\) All harmful interference to other users and blocking of adjacent
channel use in the same or adjacent geographical area is prohibited. In
areas where EAs are in close proximity, careful consideration should be
given to minimum power requirements and to the location, height, and
radiation pattern of the transmitting antenna. Licensees are expected to
cooperate fully in attempting to resolve problems of potential
interference before bringing the matter to the attention of the
Commission.

\(b\) As a condition for use of frequencies in this service each
licensee is required to:

\(1\) Engineer the system to be reasonably compatible with adjacent and
co-channel operations in the same or adjacent areas; and

\(2\) Cooperate fully and in good faith to resolve whatever potential
interference and transmission security problems may be present in
adjacent and co-channel operations.

\(c\) Licensee shall coordinate their facilities whenever the facilities
have line-of-sight into co-channel and adjacent channel licensee
facilities. Licensees are encouraged to develop operational agreements
with relevant licensees in the same or adjacent areas.

Appendix C

CEC Operating Area Descriptions

(1) The area extending 30 nautical miles (nm) inland from the Atlantic
    Ocean between Wilmington, North Carolina (NC) and Lewes, Delaware
    (DE) facilitate Atlantic Fleet exercises. The land based CEC
    terminals at Wallops Island, Virginia (VA), Eastville, VA, and Dam
    Neck, VA are within the boundaries established for the Atlantic
    Fleet exercises. The Cherry Point and Onslow Bay NC areas are also
    included. The Naval Air Warfare Center at Patuxent River,
    Maryland (MD) and facilities at Greenville, South Carolina (SC),
    Jacksonville, Florida (FL), and St. Petersburg, FL are not included
    in the inland areas. The exclusion of the four sites does not
    preclude CEC Radio Frequency (RF) emissions at these sites.

(2) The area extending 30 nm inland from the Gulf of Mexico between the
    Louisiana (LA)-Mississippi (MS) state border and Panama City, FL, to
    support Gulf of Mexico exercises. The area includes Gulfport and
    Biloxi, MS, and Pensacola and Eglin AFL, FL.

(3) The area extending 30 nm inland from the Pacific Ocean between
    Vandenberg Air Force Base, California (CA) and Point Mugu Naval Air
    Station, CA, to support Pacific Fleet exercises.

(4) The area extending 30 nm inland from the Pacific Ocean between
    Newport Beach, CA, and the CA-Mexico international border to support
    Pacific Fleet exercises. The area includes Camp Pendleton, CA.

(5) The area that includes the White Sands Missile Range, New Mexico
    (NM) and the Fort Bliss Military Reservation, Texas (TX) and NM to
    support the joint Chiefs of Staff Roving Sands Exercise.

(6) The area that includes the China Lake Naval Weapons Center and the
    Fort Irwin Military Reservation, CA.

(7) All of Hawaii, including the Pacific Missile Range Facility.

(8) All of Puerto Rico, including the Armed Forces Weapons Test
    Facility.

(9) The area extending 30 nm inland and 30 nm south of the Georgia-South
    Carolina state line.

(10) The area within 5 nm of Wright Army Field and Hunter Army Air Field
     near Savannah, Georgia.

Appendix D

CEC Impacted EAs

  ----- ----------------------------------------------------- ------ -----
  EA    Name                                                  MEA    REA

  3     Boston-Worcester-Lawrence-Lowell-Brockton,            1      1
        MA-NH-RI-VT                                                  

  5     Albany-Schenectady-Troy, NY                           2      1

  6     Syracuse, NY-PA                                       2      1

  7     Rochester, NY-PA                                      2      1

  8     Buffalo-Niagara Falls, NY-PA                          3      1

  9     State College, PA                                     12     3

  10    New York-No. New Jer.-Long Island, NY-NJ-CT-PA-MA-VT  2      1

  11    Harrisburg-Lebanon-Carlisle, PA                       4      1

  12    Philadelphia-Wilmington-Atl. City, PA-NJ-DE-MD        4      1

  13    Washington-Baltimore, DC-MD-VA-WV-PA                  5      2

  14    Salisbury, MD-DE-VA                                   5      2

  15    Richmond-Petersburg, VA                               6      2

  16    Staunton, VA-WV                                       6      2

  17    Roanoke, VA-NC-WV                                     6      2

  18    Greensboro-Winston-Salem-High Point, NC-VA            7      2

  19    Raleigh-Durham-Chapel Hill, NC                        7      2

  20    Norfolk-Virginia Beach-Newport News, VA-NC            6      2

  21    Greenville, NC                                        7      2

  22    Fayetteville, NC                                      7      2

  23    Charlotte-Gastonia-Rock Hill, NC-SC                   7      2

  24    Columbia, SC                                          7      2

  EA    Name                                                  MEA    REA

  25    Wilmington, NC-SC                                     7      2

  26    Charleston-North Charleston, SC                       7      2

  27    Augusta-Aiken, GA-SC                                  8      2

  28    Savannah, GA-SC                                       8      2

  29    Jacksonville, FL-GA                                   9      2

  30    Orlando, FL                                           10     2

  33    Sarasota-Bradenton, FL                                10     2

  34    Tampa-St. Petersburg-Clearwater, FL                   10     2

  35    Tallahassee, FL-GA                                    9      2

  36    Dothan, AL-FL-GA                                      24     4

  37    Albany, GA                                            8      2

  38    Macon, GA                                             8      2

  39    Columbus, GA-AL                                       8      2

  40    Atlanta, GA-AL-NC                                     8      2

  41    Greenville-Spartanburg-Anderson, SC-NC                7      2

  42    Asheville, NC                                         7      2

  43    Chattanooga, TN-GA                                    8      2

  44    Knoxville, TN                                         220    4

  45    Johnson City-Kingsport-Bristol, TN-VA                 22     4

  46    Hickory-Morganton, NC-TN                              7      2

  47    Lexington, KY-TN-VA-WV                                23     4

  48    Charleston, WV-KY-OH                                  13     3

  53    Pittsburgh, PA-WV                                     12     3

  EA    Name                                                  MEA    REA

  54    Erie, PA                                              15     3

  73    Memphis, TN-AR-MS-KY                                  26     4

  74    Huntsville, AL-TN                                     24     4

  75    Tupelo, MS-AL-TN                                      26     4

  76    Greenville, MS                                        26     4

  77    Jackson, MS-AL-LA                                     26     4

  78    Birmingham, AL                                        24     4

  79    Montgomery, AL                                        24     4

  80    Mobile, AL                                            27     4

  81    Pensacola, FL                                         27     4

  82    Biloxi-Gulfport-Pascagoula, MS                        27     4

  83    New Orleans, LA-MS                                    27     4

  84    Baton Rouge, LA-MS                                    27     4

  85    Lafayette, LA                                         27     4

  86    Lake Charles, LA                                      31     5

  87    Beaumont-Port Arthur, TX                              31     5

  88    Shreveport-Bossier City, LA-AR                        32     5

  89    Monroe, LA                                            32     5

  90    Little Rock-North Little Rock, AR                     28     4

  122   Wichita, KS-OK                                        35     5

  126   Western Oklahoma, OK                                  37     5

  127   Dallas-Fort Worth, TX-AR-OK                           32     5

  128   Abilene, TX                                           32     5

  EA    Name                                                  MEA    REA

  129   San Angelo, TX                                        32     5

  131   Houston-Galveston-Brazoria, TX                        31     5

  135   Odessa-Midland, TX                                    32     5

  136   Hobbs, NM-TX                                          39     5

  137   Lubbock, TX                                           32     5

  138   Amarillo, TX-NM                                       32     5

  139   Santa Fe, NM                                          39     5

  140   Pueblo, CO-NM                                         33     5

  141   Denver-Boulder-Greeley, CO-KS-NE                      33     5

  151   Reno, NV-CA                                           43     6

  152   Salt Lake City-Ogden, UT-ID                           42     6

  153   Las Vegas, NV-AZ-UT                                   44     6

  154   Flagstaff, AZ-UT                                      40     5

  155   Farmington, NM-CO                                     39     5

  156   Albuquerque, NM-AZ                                    39     5

  157   El Paso, TX-NM                                        39     5

  158   Phoenix-Mesa, AZ-NM                                   40     5

  159   Tucson, AZ                                            40     5

  160   Los Angeles-Riverside-Orange County, CA-AZ            44     6

  161   San Diego, CA                                         44     6

  162   Fresno, CA                                            43     6

  163   San Francisco-Oakland-San Jose, CA                    43     6

  164   Sacramento-Yolo, CA                                   43     6

  EA    NAME                                                  MEA    REA

  172   Honolulu, HI                                          48     8

  174   Puerto Rico and the U.S. Virgin Islands               50     10

  176   Gulf of Mexico                                        52     12
  ----- ----------------------------------------------------- ------ -----

[^1]: 47 C.F.R. Part 27. Because it applies only to the band 4660-4685
    MHz, we propose to delete Part 26 of the Commission\'s Rules
    containing the General Wireless Communications Service (GWCS) rules.
    47 C.F.R. Part 26. Therefore, we will refer to GWCS only in
    describing prior rules for the band 4660-4685 MHz.

[^2]: Where we make specific proposals to amend the Part 27 Rules we
    include those proposals in Appendix B. Likewise, in those situations
    where we are not making specific proposals to amend rule sections,
    we are not including any proposed rule revisions for those sections
    in Appendix B.

[^3]: 47 C.F.R. Part 1.

[^4]: The issues being raised in this proceeding with regard to the 2.3
    GHz band have also been raised in another proceeding. Amendment to
    Parts 2, 15, and 97 of the Commission\'s Rules To Permit Use of
    Radio Frequencies Above 40 GHz for New Radio Applications, ET Docket
    No. 94-124, RM-8308, International Harmonization of Frequency Bands
    Above 40 GHz, Petition of Sky Station International, Inc. For
    Amendment of the Commission\'s Rules To Establish Requirements for a
    Global Stratospheric Telecommunications Service in the 47.2-47.5 GHz
    and 47.9-48.2 GHz Frequency Bands, RM-8784, Amendment to Part 27 of
    the Commission\'s Rules To Revise Rules for Services in the 2.3 GHz
    Band and To Include Licensing of Services In the 47 GHz Band, WT
    Docket No. 98-136, Memorandum Opinion and Order on Reconsideration
    and Notice of Proposed Rulemaking, 13 FCC Rcd 16947 (1998) (*47 GHz
    Notice*). Since we only received one comment filed jointly by two
    2.3 GHz licensees in that proceeding, we are incorporating that
    comment into this proceeding and plan to address the 2.3 GHz issues
    in this proceeding.

[^5]: Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, 107
    Stat. 312 (1993) (OBRA).

[^6]: *See* Federal Communications Commission Plan for Transferred
    Government Spectrum, Report to the President and the Congress,
    released Mar. 1999 (report to the President and Congress on the
    allocation and assignment of transferred spectrum).

[^7]: *See* *id.*, § 6001(a)(3), as codified at 47 U.S.C. § 923.

[^8]: At least one-half of the 50 megahertz identified for immediate
    reallocation had to be below the 3 GHz band and all of it had to be
    identified for exclusive non-Federal use.

[^9]: 47 U.S.C. § 925 (b)(1)(B).

[^10]: OBRA, § 6001(a)(3), as codified at 47 U.S.C. § 923(e)(2)(A).

[^11]: Preliminary Spectrum Reallocation Report, U.S. Department of
    Commerce, NTIA Special Publication 94**-**27, Feb. 1994.

[^12]: *Id*. at Appendix A.

[^13]: By letter dated October 27, 1994, the President notified the
    Chairman of the Commission that Federal Government frequency
    assignments in this band, along with the other two bands, had been
    withdrawn and that the National Table of Frequency Allocations had
    been modified to reflect the reallocation of these bands for private
    sector use.

[^14]: *See* Spectrum Reallocation Final Report, U.S. Department of
    Commerce, NTIA Special Publication 95-32, Feb. 1995 (*Spectrum
    Reallocation Final Report*).

[^15]: OBRA, § 6001(a)(3), as codified at 47 U.S.C. § 925(a).

[^16]: Allocation of Spectrum Below 5 GHz Transferred from Federal
    Government Use, ET Docket No. 94-32, First Report and Order and
    Second Notice of Proposed Rulemaking, 10 FCC Rcd 4769 (1995) (*GWCS
    First Report and Order*) (*GWCS Second Notice of Proposed
    Rulemaking*).

[^17]: Allocation of Spectrum Below 5 GHz Transferred from Federal
    Government Use, 4660-4685 MHz, ET Docket No. 94-32, Second Report
    and Order, 11 FCC Rcd 624 (1995) (*GWCS Second Report and Order*).

[^18]: *Id*. at 630-31 (para. 12). On December 20, 1996, the Commission
    issued a *Further Notice of Proposed Rulemaking* in which it
    proposed, among other actions, to revise the partitioning rules for
    the band 4660-4685 MHz and to establish disaggregation rules for
    this band. Geographic Partitioning and Spectrum Disaggregation by
    Commercial Mobile Radio Services Licensees, WT Docket No. 96-148,
    Implementation of Section 257 of the Communications Act --
    Elimination of Market Entry Barriers, GN Docket No. 96-113, Report
    and Order and Further Notice of Proposed Rulemaking, 11 FCC Rcd
    21831 (1996). Subsequently, on November 25, 1998, the Commission
    released a *Memorandum Opinion and Order* that addressed petitions
    for reconsideration of the *GWCS First Report and Order* and the
    *GWCS Second Report and Order*. Allocation of Spectrum Below 5 GHz
    Transferred from Federal Government Use, ET Docket No. 94-32,
    Memorandum Opinion and Order, 13 FCC Rcd 23830 (1998).

[^19]: Public Notice, FCC Announces Auction Schedule for the General
    Wireless Communications Service, DA 97-2634, released Dec. 17, 1997;
    *see also* Public Notice, Auction Schedule for the General Wireless
    Communications Service Correction, DA 97-2662, released Dec. 19,
    1997.

[^20]: Public Notice, Wireless Telecommunications Bureau Announces
    Postponement of General Wireless Communications Service (GWCS)
    Auction, Report No. AUC-98-19-B (Auction No. 19), DA 98-792,
    released Apr. 24, 1998.

[^21]: This absence of demand was evident when, in preparation to
    auction licenses for the band 4660-4685 MHz, the Bureau's Auctions
    Division received no responses when it sought public comment in
    January 1998 on a proposal for specific auction procedures and on
    methods for prescribing reserve prices or minimum opening bids.
    *See* Public Notice, Comment Sought on Reserve Prices or Minimum
    Opening Bids for the General Wireless Communications Service (GWCS)
    in the 4660-4685 MHz Band, Report No. AUC-98-19-A (Auction No. 19),
    DA 98-162, released Jan. 30, 1998 (*Reserve Prices PN*).

[^22]: *See* Letter to the Honorable W. J. (Billy) Tauzin, Chairman,
    Subcommittee on Telecommunications, Trade and Consumer Protection,
    Committee on Commerce, from William E. Kennard, Chairman, Federal
    Communications Commission, released Apr. 23, 1998 (*Kennard Letter*)
    (letter seeking guidance on whether to move forward with auctioning
    the band 4660-4685 MHz).

[^23]: *See Reserve Prices PN* (Attachment A at 1).

[^24]: *See* Report to Congressional Committees, Defense Communications:
    Federal Frequency Spectrum Sale Could Impair Military Operations,
    General Accounting Office, GAO/NSIAD-97-131 (June 1997). The then
    Chairman of the Commission, Reed Hundt, responded to this report by
    letter on August 19, 1997. Letter to the Honorable Dan Burton,
    Chairman, Committee on Government Reform and Oversight, from Reed
    Hundt, Chairman, Federal Communications Commission, released Aug.
    19, 1997. The National Telecommunications and Information
    Administration (NTIA) in turn provided the Commission with
    information from the Navy illustrating that CEC operations might
    cause harmful interference to GWCS licensees in certain regions.
    *See Reserve Prices PN* (Attachment A).

[^25]: OBRA, § 6001(a)(3), as codified at 47 U.S.C. §§ 924(b), 926.

[^26]: Letter to the Honorable William E. Kennard, Chairman, Federal
    Communications Commission, from Larry Irving, the Assistant
    Secretary for Communications, United States Department of Commerce,
    released Mar. 30, 1999 (*Reallocation Letter*).

[^27]: *See* paras. 85-90, *infra*.

[^28]: Amendment of Part 2 of the Commission's Rules to Make
    Non-Substantive Revisions to the Table of Frequency Allocations,
    Memorandum Opinion and Order, DA 99-2743, released Dec. 20, 1999 (65
    FR 4636 (Jan. 31, 2000)) (*Part 2 MO&O*).

[^29]: *Id*. at para. 39.

[^30]: Petition for Rule Making of Global Frontiers, Inc. To Revise
    Title 47, Chapter I, Parts 2 and 26, Code of Federal Regulations, in
    Order To Reallocate Frequencies to GWCS and Make Relate Changes,
    filed Nov. 24, 1999 (*Global Frontiers Petition for Rulemaking*).

[^31]: Global has filed an application on FCC Form 442 seeking an
    experimental authorization to construct a facility in the Portland,
    Oregon area. Global Frontiers, Inc., Applicant for New or Modified
    Radio Station Under Part 5 of FCC Rules -- Experimental Radio
    Service (Other Than Broadcast), File No. 0314-EX-PL-1999, filed Dec.
    1, 1999.

[^32]: *Global Frontiers Petition for Rulemaking* at 10-11.

[^33]: 47 C.F.R. § 26.101(a).

[^34]: 47 C.F.R. § 26.209(a).

[^35]: Table of Frequency Allocations, 47 C.F.R. § 2.106, international
    footnote S5.442. The aeronautical mobile service is defined as a
    mobile service between aeronautical stations and aircraft stations,
    or between aircraft stations. 47 C.F.R. § 2.1(c). Footnote S5.442
    also limits the sub-band 4825-4835 MHz to the mobile, except
    aeronautical mobile, service.

[^36]: *See* 47 C.F.R. § 2.105(c)(2) (setting forth restrictions for
    secondary services).

[^37]: Per international footnote S5.443, in Argentina, Australia, and
    Canada, the allocation of the sub-bands 4825-4835 MHz and 4950-4990
    MHz to the radio astronomy service is on a primary basis.

[^38]: Table of Frequency Allocations, 47 C.F.R. § 2.106, international
    footnote S5.149.

[^39]: Table of Frequency Allocations, 47 C.F.R. § 2.106, international
    footnote S5.339.

[^40]: *See* Table of Frequency Allocations, 47 C.F.R. § 2.106.

[^41]: *Reallocation Letter* at Annex D.

[^42]: These allocations were made by adopting international footnote
    S5.339 domestically.

[^43]: *See* *GWCS Second Report and Order*, 11 FCC Rcd at 630-32
    (paras. 12-15).

[^44]: *See* para. 16, *supra*.

[^45]: *Reallocation Letter*, Statement of Reasons at n. 5.

[^46]: *See* Appendix B, Proposed Section 2.106 of the Commission\'s
    Rules, 47 C.F.R. § 2.106.

[^47]: The Departments of Justice, Treasury, and Energy have 35, 5, and
    4 frequency assignments in the band 4940-4990 MHz, respectively. The
    Department of Commerce anticipates that these agencies will explore
    retuning as the most cost-effective option. *Reallocation Letter*,
    Statement of Reasons at n. 6.

[^48]: Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat. 251.

[^49]: *See* Defense Authorization Act of 1998, Pub. L. No. 105-261
    (1998) (amending 47 U.S.C. § 923(g)); *see also* para. 97, *infra*.

[^50]: 47 U.S.C. § 303(y)(2).

[^51]: 47 U.S.C. § 303(y)(2)(B).

[^52]: *Id.* § 303(y)(2)(C).

[^53]: *GWCS Second Report and Order*, 11 FCC Rcd at 633 (para. 18);
    *see e.g.*, Service Rules for the 746-764 and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission's Rules, WT Docket No.
    99-168, First Report and Order, FCC 00-5, released Jan. 7, 2000
    (*746-764 and 776-794 MHz First Report and Order*) (establishing
    general non-interference standards and technical rules).

[^54]: *Id*. at 636 (para. 25).

[^55]: *Id*. at 637 (para. 27).

[^56]: PSWAC, *Final Report of the Public Safety Wireless Advisory
    Committee to the Federal Communications Commission*, Reed E. Hundt,
    Chairman, and the National Telecommunications and Information
    Administration, Larry Irving, Assistant Secretary of Commerce for
    Communications and Information (Final Report)(1996).

[^57]: *Id*. at 22 (para. 2.2.2.5).

[^58]: *See* footnote Error: Reference source not found.

[^59]: Reallocation of Television Channels 60-69, the 746-806 MHz Band,
    ET Docket No. 97-157, Report and Order, 12 FCC Rcd 22953 (1998)
    (*Public Safety Reallocation Order*).

[^60]: The Development of Operational, Technical and Spectrum
    Requirements For Meeting Federal, State and Local Public Safety
    Agency Communication Requirements Through the Year 2010,
    Establishment of Rules and Requirements For Priority Access Service,
    WT Docket No. 96-86, First Report and Order and Third Notice of
    Proposed Rulemaking, 14 FCC Rcd 152 (1998).

[^61]: Our tentative conclusion would not prevent public safety
    agencies, however, from acquiring the spectrum through competitive
    bidding and using it in a manner consistent with our allocation.

[^62]: 47 C.F.R. Part 27.

[^63]: 47 C.F.R. Part 26.

[^64]: *GWCS Second Report and Order*, 11 FCC Rcd at 630 (para. 12).

[^65]: *See* Amendment of the Commission\'s Rules to Establish Part 27,
    the Wireless Communications Service ("WCS"), GN Docket No. 96-228,
    Report and Order, 12 FCC Rcd 10785 (1997) (*Part 27 Report and
    Order*).

[^66]: *See* para. 16, *supra*.

[^67]: 47 C.F.R. Part 20; *see also* 47 C.F.R. § 27.3(g), as amended by
    *746-764 and 776-794 MHz First Report and Order*.

[^68]: 47 C.F.R. Part 101.

[^69]: Biennial Regulatory Review \-- Amendment of Parts 0, 1, 13, 22,
    24, 26, 27, 80, 87, 90, 95, 97, and 101 of the Commission\'s Rules
    to Facilitate the Development and Use of the Universal Licensing
    System in the Wireless Telecommunications Services, WT Docket No.
    98-20, Amendment of the Amateur Service Rules to Authorize Visiting
    Foreign Amateur Operators to Operate Stations in the United States,
    WT Docket No. 96-188, RM-8677, Report and Order, 13 FCC Rcd 21027
    (1998) (*ULS Report and Order*).

[^70]: 47 C.F.R. § 1.913(b).

[^71]: LMDS Rulemaking, Second Report and Order, Order on
    Reconsideration, and Fifth Notice of Proposed Rulemaking, 12 FCC Rcd
    12545, 12636-38, 12644-45, 12652-53 (paras. 205-208, 225-226,
    245-251) (1997) (*LMDS Second Report and Order*) (*Fifth NPRM*);
    *aff\'d*, Melcher v. FCC, 134 F.3d 1143 (D.C. Cir. 1998); Erratum,
    released Apr. 7, 1997 (*First Erratum*); Erratum, released May 1,
    1997 (*Second Erratum*); Order on Reconsideration, 12 FCC Rcd 6424
    (1997) (*First Reconsideration*); Second Order on Reconsideration,
    FCC 97-323, released Sept. 12, 1997 (*Second Reconsideration*);
    Third Report and Order, FCC 97-378, released Oct. 15, 1997; Third
    Order on Reconsideration, FCC 98-15, 63 Fed. Reg. 9443, released
    Feb. 11, 1998 (*Third Reconsideration*); Fourth Report and Order, 13
    FCC Rcd 11655 (1998) (*LMDS Fourth Report and Order*); *see also* 47
    C.F.R. § 101.1017.

[^72]: *Part 27 Report and Order*, 12 FCC Rcd at 10846, 10848 (paras.
    119, 122).

[^73]: *See* 47 C.F.R. § 27.10, as amend by *746-764 and 776-794 MHz
    First Report and Order*.

[^74]: *Part 27 Report and Order*, 12 FCC Rcd at 10848 (para. 121); *see
    also* *LMDS Second Report and Order*, 12 FCC Rcd at 12644 (para.
    223); 47 C.F.R. § 101.1013.

[^75]: *See* 47 U.S.C. § 153(44) ("A telecommunications carrier shall be
    treated as a common carrier under this Act . . ."); *see also* 47
    U.S.C. § 332(C)(1)(A) ("A person engaged in the provision of a
    service that is a commercial mobile service shall, insofar as such
    person is so engaged, be treated as a common carrier for purposes of
    this Act . . . ").

[^76]: *Part 27 Report and Order*, 12 FCC Rcd at 10790-91 (para. 12).
    The Commission examined services in the *LMDS Second Report and
    Order* and explained that any video programming service would be
    treated as a non-common carrier service. *LMDS Second Report and
    Order*, 12 FCC Rcd at 12639-41 (paras. 213-215). Thus, any applicant
    intending to provide a video programming service would appropriately
    indicate a choice of non-common carrier regulatory status.

[^77]: *Part 27 Report and Order*, 12 FCC Rcd at 10848 (para. 121).

[^78]: *See* Sections 101.61(b)(3) and 101.61(c)(9) of the Commission\'s
    Rules, 47 C.F.R. §§ 101.61(b)(3), 101.61(c)(9). A change in
    regulatory status would require Commission prior authorization,
    however, if the change raised issues concerning the benchmark
    contained in Section 310(b)(4) of the Act. *See* footnote Error:
    Reference source not found.

[^79]: *See* 47 C.F.R. § 27.66, as codified by *746-764 and 776-794 MHz
    First Report and Order*; *see also* paras. 66-70, *infra*.

[^80]: 47 C.F.R. §§ 27.12, 27.302.

[^81]: 47 U.S.C. § 310.

[^82]: *See* paras. 39-41, *infra*.

[^83]: For Commission decisions regarding relevant factors in deciding
    whether license eligibility restrictions are necessary or
    appropriate, *see* Amendment of the Commission\'s Rules Regarding
    the 37.0-38.6 GHz and 38.6-40.0 GHz Bands, ET Docket No. 95-183,
    RM-8553, Implementation of Section 309(j) of the Communications Act
    Competitive Bidding, 37.0-38.6 GHz and 38.6-40.0 GHz, PP Docket No.
    93-253, Report and Order and Second Notice of Proposed Rulemaking,
    12 FCC Rcd 18600, 18619-20 (paras. 32-35) (1997) (*39 GHz Report and
    Order*); *LMDS Second Report and Order*, 12 FCC Rcd at 12614-16
    (paras. 157-161); Rulemaking to Amend Parts 1, 2, 21, and 25 of the
    Commission's Rules to Redesignate the 27.5-29.5 GHz Frequency Band,
    to Reallocate the 29.5-30.0 GHz Frequency Band, to Establish Rules
    and Policies for Local Multipoint Distribution Service and for Fixed
    Satellite Services, CC Docket No. 92-297, Sixth Notice of Proposed
    Rule Making, FCC 99-379, released Dec. 13, 1999.

[^84]: *See* *GWCS Second Report and Order*, 11 FCC Rcd at 649 (para.
    60).

[^85]: *Cf*. 47 C.F.R. § 26.101(a) (for each geographic area, a licensee
    in the band 4660-4685 MHz may not aggregate more than 15 megahertz
    of spectrum).

[^86]: *Global Frontiers Petition for Rulemaking* at 11.

[^87]: *See Part 27 Report and Order*; *LMDS Second Report and Order*;
    Amendment of the Commission's Rules Regarding the 37.0-38.6 GHz and
    38.6-40.0 GHz Band, ET Docket No. 95-183, Memorandum Opinion and
    Order, released July 26, 1999; Amendments to Parts 1, 2 and 101 of
    the Commission's Rules To License Fixed Services at 24 GHz, WT
    Docket No. 99-327, Notice of Proposed Rulemaking, at paras. 9-10,
    released Nov. 10, 1999 (*24 GHz NPRM*); *746-764 and 776-794 MHz
    First Report and Order*.

[^88]: *See* 47 C.F.R. § 20.6(a); *see also* 1998 Biennial Regulatory
    Review Spectrum Aggregation Limits for Wireless Telecommunications
    Carriers, Cellular Telecommunications Industry Association's
    Petition for Forbearance From the 45 MHz CMRS Spectrum Cap, WT
    Docket 98-205, Amendment of Parts 20 and 24 of the Commission's
    Rules -- Broadband PCS Competitive Bidding and Commercial Mobile
    Radio Service Spectrum Cap, WT Docket No. 96-59, Implementation of
    Sections 3(n) and 332 of the Communications Act, Regulatory
    Treatment of Mobile Services, GN Docket No. 93-252, Report and
    Order, FCC 99-244, rel. Sept. 22, 1999; Amendment of Parts 20 and 24
    of the Commission\'s Rules Broadband PCS Competitive Bidding and the
    Commercial Mobile Radio Service Spectrum Cap, WT Docket No. 96-59,
    Report and Order, 11 FCC Rcd 7824, 7869-76 (paras. 94-107) (1996)
    (maintaining the 45 megahertz CMRS spectrum cap and eliminating the
    35 megahertz cellular and PCS spectrum cap, and the 40 megahertz PCS
    spectrum cap).

[^89]: *GWCS Second Report and Order*, 11 FCC Rcd at 645 (para. 50).

[^90]: *746-764 and 776-794 MHz First Report and Order* at paras. 51-53.

[^91]: 47 U.S.C. §§ 310(a), 310(b).

[^92]: 47 C.F.R. § 27.12; *see also* 47 C.F.R. § 27.302.

[^93]: 47 U.S.C. § 310(b). *See* Revisions to Part 21 of the
    Commission\'s Rules Regarding the Multipoint Distribution Service, 2
    FCC Rcd 4251, 4253 (para. 16) (1987) (*MDS Report and Order*);
    Streamlining the Commission\'s Rules and Regulations for Satellite
    Application and Licensing Procedures, IB Docket No. 95-117, Report
    and Order, 11 FCC Rcd 21581, 21599 (para. 43) (1996) (*Satellite
    Rules Report and Order*); *LMDS Second Report and Order*, 12 FCC Rcd
    at 12650-51 (para. 243).

[^94]: We note, however, that to the extent that a licensee's decision
    to change its regulatory status raises issues with respect to that
    licensee exceeding the benchmark contained in Section 310(b)(4), the
    rules require the Commission's prior approval before the licensee
    can make this change. Rules and Policies on Foreign Participation in
    the U.S. Telecommunications Market and Market Entry and Regulation
    of Foreign-Affiliated Entities, IB Docket Nos. 97-142 and 95-22,
    Report and Order and Order on Reconsideration, 12 FCC Rcd 23891,
    23940-41 (paras. 111-118) (1997).

[^95]: *Satellite Rules Report and Order*, 11 FCC Rcd at 21599 (para.
    43); *LMDS Second Report and Order*, 12 FCC Rcd at 12651 (para.
    243).

[^96]: 47 C.F.R. § 26.102.

[^97]: The three additional EA-like services areas were: (1) Guam and
    the Northern Mariana Islands (combined as one service area); (2)
    Puerto Rico and the United States Virgin Islands (combined as one
    service area); and (3) American Samoa.

[^98]: 47 C.F.R. § 26.103.

[^99]: The channel blocks and frequency bands for the band 4660-4685 MHz
    were to be: Block A: 4660-4665 MHz; Block B: 4665-4670 MHz; Block C:
    4670-4675 MHz; Block D: 4675-4680 MHz; and Block E: 4680-4685 MHz.

[^100]: Amendment of the Commission's Rules Regarding the 37.0-38.6 GHz
    and 38.6-40.0 GHz Band, ET Docket No. 95-183, Memorandum Opinion and
    Order, released July 26, 1999; *24 GHz NPRM*, at paras. 9-10.

[^101]: 47 C.F.R. § 27.6; *see also* *Part 27 Report and Order*, 12 FCC
    Rcd at 10814-16 (paras. 54-60). At the time of the 2.3 GHz auction,
    REAs were know as Regional Economic Area Groupings (REAGs).

[^102]: *746-764 and 776-794 MHz First Report and Order* at para. 56.

[^103]: *See* 47 U.S.C. § 309(j)(3)(A).

[^104]: *Id.* at 309(j)(4)(C)(iii).

[^105]: *See* para. 18, *supra*.

[^106]: *See 746-764 and 776-794 MHz First Report and Order*.

[^107]: *Global Petition for Rulemaking* at 10.

[^108]: The Commission has granted or proposed spectrum in larger blocks
    for PCS, LMDS and 24 GHz services.

[^109]: *See* para. 96, *infra*.

[^110]: 47 C.F.R. § 27.13.

[^111]: 47 C.F.R. § 27.14.

[^112]: *Cf*. 47 U.S.C. § 307(c) (limiting broadcasting station licenses
    to eight years).

[^113]: 47 C.F.R. §§ 27.15(d), 27.324(b)(4).

[^114]: *See Part 27 Report and Order*, 12 FCC Rcd at 10840 (para. 106).

[^115]: A comparative renewal proceeding is one in which an existing
    licensee is challenged by another applicant. The existing licensee
    must demonstrate sufficient reason for the Commission to renew its
    license for an additional license term rather than issue the license
    to another applicant. 47 C.F.R. § 27.14(b); *see also Part 27 Report
    and Order*, 12 FCC Rcd at 10840, 10843-44 (paras. 106, 113).

[^116]: 47 C.F.R. § 27.14(c); *see also Part 27 Report and Order*, 12
    FCC Rcd at 10840-41 (para. 107).

[^117]: *Cf*. Sections 22.940(a)(2)(i)-(iv) of the Commission\'s Rules,
    47 C.F.R. §§ 22.940(a)(2)(i)-(iv). We note that, because of the
    anticipated difference in the nature of the respective services, we
    are not proposing that licensees in the 4.9 GHz band would be
    required to demonstrate an ability to serve roamers, as cellular
    licensees are required to do pursuant to the cited provisions of
    Part 22 of the Commission\'s Rules.

[^118]: Geographic Partitioning and Spectrum Disaggregation by
    Commercial Mobile Radio Services Licensees, WT Docket No. 96-148,
    Implementation of Section 257 of the Communications Act --
    Elimination of Market Entry Barriers, GN Docket No. 96-113, Report
    and Order and Further Notice of Proposed Rulemaking, 11 FCC Rcd
    21831 (1996); *see also* footnote Error: Reference source not found.

[^119]: *Global Petition for Rulemaking* at 17-18.

[^120]: 47 U.S.C. § 309(j)(4)(C).

[^121]: *See* *Partitioning and Disaggregation Report and Order*, 11 FCC
    Rcd at 21843-44 (paras. 13-17) (1996).

[^122]: 47 C.F.R. § 27.15.

[^123]: *See Part 27 Report and Order*, 12 FCC Rcd at 10836-39 (paras.
    96-103), adopting 47 C.F.R. § 27.15.

[^124]: *Id*. at 10836-37, 10839 (paras. 97-99, 102), citing
    *Partitioning and Disaggregation Report and Order*, 11 FCC Rcd at
    21847-48 (paras. 23-24).

[^125]: *Id*. at 10836 (para. 97).

[^126]: 47 C.F.R. § 27.15(b)(1); *see also* *ULS Report and Order*, 13
    FCC Rcd at 21078-83 (paras. 109-122).

[^127]: 47 C.F.R. § 27.15(c); *see also* *Part 27 Report and Order*, 12
    FCC Rcd at 10838-39 (par. 101); 47 C.F.R. § 1.2111.

[^128]: *Part 27 Report and Order*, 12 FCC Rcd at 10836 (para. 96)
    (concluding that the specific rules pertaining to partitioning and
    disaggregation in WT Docket No. 96-148 should apply to 2.3 GHz
    licensees); *see also Partitioning and Disaggregation Report and
    Order*, 11 FCC Rcd at 21857, 21865 (paras. 42, 62-63); *LMDS Fourth
    Report and Order*, 13 FCC Rcd 11655, 11664-66 (paras. 16-19).

[^129]: *See* 47 C.F.R. § 27.15(e)(1), as amended by *746-764 and
    776-794 MHz First Report and Order*.

[^130]: *See* *Partitioning and Disaggregation Report and Order*, 11 FCC
    Rcd at 21857 (para. 43).

[^131]: *See* 47 C.F.R. § 27.15(e)(2), as amended by *746-764 and
    776-794 MHz First Report and Order*.

[^132]: *See* *Partitioning and Disaggregation Report and Order*, 11 FCC
    Rcd at 21864-65 (para. 61).

[^133]: 47 C.F.R. § 27.14(a).

[^134]: *Id*.; *see also Part 27 Report and Order*, 12 FCC Rcd at
    10843-45 (paras. 111-115).

[^135]: *Part 27 Report and Order*, 12 FCC Rcd at 10844 (para. 113).

[^136]: *LMDS Second Report and Order*, 12 FCC Rcd at 12660 (para. 270).

[^137]: *746-764 and 776-794 MHz First Report and Order*, at para. 70.

[^138]: *Part 27 Report and Order*, 12 FCC Rcd at 10843-44 (para. 113);
    *see also* 47 C.F.R. § 27.14(c).

[^139]: *See* Appendix B, Proposed Section 27.14(a)(1) of the
    Commission\'s Rules, 47 C.F.R. § 27.14(a)(1).

[^140]: *24 GHz NPRM*, at para. 339 (one-third coverage of the
    geographic area's population after five years and two-thirds after
    10 years).

[^141]: *See* Appendix B, Proposed Section 27.14(a)(2) of the
    Commission\'s Rules, 47 C.F.R. § 27.14(a)(2).

[^142]: *Part 27 Report and Order*, 12 FCC Rcd at 10844 (para. 113),
    citing Amendment of Parts 2 and 90 of the Commission\'s Rules to
    Provide for the Use of 200 Channels Outside the Designated Filing
    Areas in the 896-901 MHz and the 935-940 MHz Bands Allotted to the
    Specialized Mobile Radio Pool, Implementation of Section 309(j) of
    the Communica­tions Act Competitive Bidding, and Implementation of
    Sections 3(n) and 322 of the Communica­tions Act, GN Docket No.
    93-252, Second Report and Order and Second Further Notice of
    Proposed Rulemaking, 10 FCC Rcd 6884, 6887 (para. 4) (1995).

[^143]: *Id*., citing Amendment of Parts 2 and 90 of the Commission\'s
    Rules to Provide for the Use of 200 Channels Outside the Designated
    filing Areas in the 896-901 MHz and the 935-940 MHz Bands Allotted
    to the Specialized Mobile Radio Pool Implementation of Sections 3(n)
    and 322 of the Communications Act, GN Docket No. 93-252, Third Order
    on Reconsideration, 11 FCC Rcd 1170 (para. 2) (1995).

[^144]: *Id*. at 10844-45 (paras. 114-115), citing 47 U.S.C. §
    309(j)(4)(B); *see also* Melcher v. FCC, 134 F.3d 1143 (D.C.Cir.
    1998).

[^145]: Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat.
    56 (1996) (1996 Act).

[^146]: *See* paras. 56-58, *supra*.

[^147]: 47 U.S.C. §§ 309(b), 309(d).

[^148]: Pub. L. No. 105-33, 111 Stat. 251 (1997), § 3008 (Balanced
    Budget Act of 1997).

[^149]: Amendment of Part 1 of the Commission\'s Rules Competitive
    Bidding Proceeding, WT Docket No. 97-82, Allocation of Spectrum
    Below 5 GHz Transferred from Federal Government Use, 4660-4685 MHz,
    ET Docket No. 94-32, Third Report and Order and Second Further
    Notice of Proposed Rulemaking, 13 FCC Rcd 374, 431 (para. 98) (1997)
    (*Part 1 Third Report and Order*) (*Part 1 Second Further Notice*).

[^150]: 47 C.F.R. §§ 1.2108(b), 1.2108(c).

[^151]: *See* para. 95, *infra*.

[^152]: *Part 1 Second Further Notice*, 13 FCC Rcd at 431 (para. 98).

[^153]: *See* paras. 39-41, 64-65, *supra*.

[^154]: The Commission has recently eliminated for all common carriers,
    including wireless common carriers, the obligations that were
    imposed by Part 41 of the Commission\'s Rules concerning the
    issuance of franks for interstate and foreign telegraph and
    telephone service. The Commission also eliminated the recordkeeping
    requirement of carriers who issue reports of positions of ships at
    sea. 1998 Biennial Regulatory Review \-- Elimination of Part 41
    Telegraph and Telephone Franks, CC Docket No. 98-119, Report and
    Order, 14 FCC Rcd 2379 (1999).

[^155]: 47 U.S.C. § 332(c)(1)(A); 47 C.F.R. § 20.15. In order to
    prescribe such regulations, the Commission must make a three-part
    determination that the exemption is warranted. 47 U.S.C. §
    332(c)(1)(A)(i)-(iii).

[^156]: Implementation of Sections 3(n) and 332 of the Communications
    Act Regulatory Treatment of Mobile Services, GN Docket No. 93-252,
    Second Report and Order, 9 FCC Rcd 1411, 1463-90 (paras. 124-213)
    (1994) (*CMRS Second Report and Order*), *recon. pending*.

[^157]: *CMRS Second Report and Order*, 9 FCC Rcd at 1475-93, 1510-11
    (paras. 164-219, 272) (authorizing forbearance from 47 U.S.C. §§
    203, 204, 205, 211, 212, 214).

[^158]: 1998 Biennial Regulatory Review -- Repeal of Part 62 the
    Commission's Rules, CC Docket No. 98-195, Report and Order, FCC
    99-163, released July 16, 1999.

[^159]: Hyperion Telecommunications, Inc. Petition Requesting
    Forbearance, CCB/CPD No. 96-3, Time Warner Communications Petition
    for Forbearance, CCB/CPD No. 96-7, Complete Detariffing for
    Competitive Access Providers and Competitive Local Exchange
    Carriers, CC Docket No. 97-146, Memorandum Opinion and Order and
    Notice of Proposed Rulemaking, 12 FCC Rcd 8596 (1997). In the Notice
    of Proposed Rulemaking, the Commission proposed to forbear further
    and establish complete detariffing for all non incumbent local
    exchange providers of interstate exchange access services.

[^160]: Implementation of Section 402(B)(2)(A) of the Telecommunications
    Act of 1996, Petition for Forbearance of the Independent Telephone &
    Telecommunications Alliance, CC Docket No. 71.11, AAD File No.
    98-43, Report and Order, FCC 99-104, released June 30, 1999.

[^161]: 47 U.S.C. § 160, as added by the 1996 Act.

[^162]: Personal Communications Industry Association\'s Broadband
    Personal Communications Services Alliance\'s Petition for
    Forbearance For Broadband Personal Communications Services, Biennial
    Regulatory Review \-- Elimination or Streamlining of Unnecessary and
    Obsolete CMRS Regulations, Forbearance from Applying Provisions of
    the Communications Act to Wireless Telecommunications Carriers, WT
    Docket No. 98-100, Further Forbearance from Title II Regulation for
    Certain Types of Commercial Mobile Radio Service Providers, GN
    Docket No. 94-33, GTE Petition for Reconsideration or Waiver of a
    Declaratory Ruling, MSD-92-14, Memorandum Opinion and Order and
    Notice of Proposed Rulemaking, 13 FCC Rcd. 16857 (1998), *recon.
    denied.*, FCC 99-250, (released Sept. 27, 1999), *additional recon.
    pending*.

[^163]: *See also* *24 GHz NPRM*, at para. 35 (seeking comment on
    whether the Commission should forbear from applying certain
    obligations on common carrier licensees in the 24 GHz band).

[^164]: We note that Section 332(c)(3) of the Communications Act, 47
    U.S.C. § 332(c)(3), preempts State regulation of rates and entry for
    CMRS providers, and that no equivalent statutory provision exists
    for fixed wireless providers.

[^165]: 47 C.F.R. Part 24.

[^166]: *See, e.g.*, 47 C.F.R. § 101.311.

[^167]: 47 C.F.R. §§ 22.321, 90.168.

[^168]: *See* Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C.
    Cir. 1998) (striking down the Commission\'s EEO program requirements
    for radio broadcast stations as unconstitutional and remanding to
    the Commission the issue of whether the non-discrimination rule was
    within its statutory authority), *reh'g denied*, 154 F.3d 487 (D.C.
    Cir. 1998).

[^169]: 47 C.F.R. § 27.50. The same transmission limits currently in
    place for the 2.3 GHz band would be used for the 4.9 GHz band.

[^170]: 47 C.F.R. § 27.51.

[^171]: 47 C.F.R. § 27.52.

[^172]: 47 C.F.R. § 27.53.

[^173]: 47 C.F.R. § 27.54.

[^174]: 47 C.F.R. § 27.56.

[^175]: 47 C.F.R. § 27.57.

[^176]: 47 C.F.R. § 27.63.

[^177]: 47 C.F.R. Part 17.

[^178]: 47 C.F.R. § 1.924.

[^179]: 47 C.F.R. § 1.1307.

[^180]: 47 C.F.R. § 27.55.

[^181]: *See* *LMDS Second Report and Order*; *39 GHz Report and Order*.

[^182]: 47 C.F.R. § 101.103.

[^183]: *39 GHz Report and Order*, 12 FCC Rcd at 18633 (para. 68).

[^184]: *See 47 GHz Notice*, 13 FCC Rcd at 16994-97 (paras. 119-129).

[^185]: At a minimum, stations whose radio horizon overlaps adjacent
    areas should contact the relevant licensees regarding coordination
    of facilities.

[^186]: *See* Appendix B, Proposed Sections 27.57 and 27.65 of the
    Commission's Rules, 47 C.F.R. §§ 27.57, 27.65.

[^187]: 47 C.F.R. § 24.236.

[^188]: 47 C.F.R. § 26.55.

[^189]: 47 C.F.R. § 27.55.

[^190]: *See Part 27 Report and Order*, 12 FCC Rcd at 10864 (para. 159).

[^191]: 47 C.F.R. § 27.64.

[^192]: *Cf*. 47 C.F.R. § 22.352, which governs predominantly mobile
    operations.

[^193]: *See* para. 18, *supra*.

[^194]: *See* Report to Congressional Committees, Defense
    Communications: Federal Frequency Spectrum Sale Could Impair
    Military Operations, General Accounting Office, GAO/NSIAD-97-131
    (June 1997).

[^195]: *Reallocation Letter* at Annex C; *see also Reserve Prices PN*,
    Attachment A.

[^196]: The unit of dBc refers to dB below the carrier power. The unit
    of dBc/Hz refers to dB below the carrier power measured in a one Hz
    bandwidth.

[^197]: In its *Reallocation Letter*, the Department of Commerce
    identified eight areas. *Reallocation Letter* at Annex C,
    Enclosure 1. Since that time, the Department has identified two
    additional areas. *See* Appendix C for a list of the ten areas.

[^198]: *See* Appendix D for a list of the affected EAs.

[^199]: Allocation of Spectrum Below 5 GHz Transferred from Federal
    Government Use, 4660-4685, ET Docket No. 94-32, Fourth Report and
    Order, 13 FCC Rcd. 18939 (1998) (*GWCS Fourth Report and Order*).

[^200]: *See* 47 U.S.C. § 309(j)(1)(2). Section 309(j)(2) exempts from
    auctions licenses and construction permits for public safety radio
    services, digital television service licenses and permits given to
    existing terrestrial broadcast licensees to replace their analog
    television service licenses, and licenses and construction permits
    for noncommercial educational broadcast stations and public
    broadcast stations.

[^201]: *See* 47 U.S.C. § 309(j)(6)(E).

[^202]: *Global Frontiers Petition for Rulemaking* at 13-17.

[^203]: *See* Implementation of Sections 309(j) and 337 of the
    Communications Act of 1934 as Amended*,* WT Docket No. 99-87,
    Promotion of Spectrum Efficient Technologies on Certain Part 90
    Frequencies, RM-9332, Establishment of Public Service Radio Pool in
    the Private Mobile Frequencies Below 800 MHz, RM-9405, Notice of
    Proposed Rule Making, 14 FCC Rcd 5206 (1999) (*BBA NPRM*).

[^204]: *See* para. 44, *supra*.

[^205]: *See* *GWCS Second Report and Order*, 11 FCC Rcd at 642 (para.
    42).

[^206]: *See BBA NPRM*, 14 FCC Rcd at 5222 (para. 25).

[^207]: *See* 47 U.S.C. § 309(j)(3).

[^208]: *See* *Part 1 Third Report and Order*, 13 FCC Rcd at 453 (para.
    137); *See also* Wireless Bureau Begins Process of Designing a
    Combinatorial Bidding System for Future Commission Auctions, News
    Report No. WT 98-35, released Sept. 28, 1998.

[^209]: Section 113(g) of the National Telecommunications and
    Information Administration Organization Act, 47 U.S.C. § 923(g), was
    amended by the Strom Thurmond National Defense Authorization Act of
    1998, Pub. L. No. 105-33, Title III, 111 Stat. 251(1997), to create
    mandatory reimbursement rights for federal agencies required to
    relocate to make spectrum available for commercial uses. With the
    exception of the band 1710-1755 MHz of spectrum, the mandatory
    reimbursement rights do not apply to Federal spectrum identified for
    reallocation pursuant to OBRA 1993. *See* 47 U.S.C. § 923(g)(1)(F).

[^210]: In 1995, the Department of Commerce issued a report, pursuant to
    the requirements of OBRA 1993, that identified a 50 MHz segment from
    4635-4685 MHz for reallocation to commercial uses. *See* *Spectrum
    Reallocation Final Report*. Subsequently, the Department of Commerce
    exercised, on behalf of the President, the right to reclaim that
    band segment and substitute the band 4940-4990 MHz. *See* para. 8,
    *supra.* In making this spectrum substitution, the Department of
    Commerce specifically determined that "successful bidders will not
    be required to compensate Federal agencies required to relocate as a
    result of this action." *Reallocation Letter*, Statement of Reasons
    at n. 8.

[^211]: *See* *Part 1Third Report and Order*, 13 FCC Rcd at 381-470
    (paras 4-169).

[^212]: *Part 1 Second Further Notice*, 13 FCC Rcd at 471-481 (paras.
    170-194).

[^213]: We note that Global Frontiers' suggestion with respect to
    avoidance of mutual exclusivity pursuant to 47 U.S.C. § 309(j)(6)(E)
    would require an exception to the Commission's general competitive
    bidding rules, 47 C.F.R. § 1.2105. *See* *Global Frontiers Petition
    for Rulemaking* at 13-17.

[^214]: *See* Sections 309(j)(3) and 309(j)(4) of the Communications
    Act, 47 U.S.C. §§ 309(j)(3), 309(j)(4).

[^215]: *See* 47 U.S.C. § 309(j)(3)(B).

[^216]: Implementation of Section 309(j) of the Communications Act --
    Competitive Bidding, PP Docket No. 93-253, Second Memorandum Opinion
    and Order, 9 FCC Rcd 7245, 7269 (para. 145) (1994) (*Competitive
    Bidding Second Memorandum Opinion and Order*).

[^217]: Implementation of Section 309(j) of the Communications Act --
    Competitive Bidding, PP Docket No. 93-253, Fifth Memorandum Opinion
    and Order, 10 FCC Rcd 403 (1994).

[^218]: *See* 47 C.F.R. §§ 27.210(b)(1)(2), 101.1209(b)(1)(i).

[^219]: We propose to move this rule into Part 27 (*see* para. 92,
    *supra*). This standard was approved by the Small Business
    Administration. Letter to Daniel B. Phythyon , Chief, Wireless
    Telecommunications Bureau, from Aida Alvarez, Administrator, Small
    Business Administration, dated May 19, 1998.

[^220]: *See* 47 C.F.R. § 1.2110(e)(2)(iii).

[^221]: *See* 47 C.F.R. § 101.11209(b)(ii).

[^222]: *See* 47 C.F.R. § 27.210(b)(1)(2).

[^223]: *See* 47 C.F.R. § 1.2110(e)(2)(ii).

[^224]: *See* Adarand Constructors v. Peña, 515 U.S. 200 (1995); United
    States v. Virginia, 518 U.S. 515 (1996).

[^225]: *See* *Part 1 Third Report and Order*, 13 FCC Rcd at 477-78
    (paras. 185-87).

[^226]: *See* Amendment of Parts 1, 2, 21, and 25 of the Commission\'s
    Rules to Redesignate the 27.5-29.5 GHz Frequency Band, to Reallocate
    the 29.5-30.0 GHz Frequency Band, to Establish Rules and Policies
    for Local Multipoint Distribution Service and for Fixed Satellite
    Services, CC Docket No. 92-297, *Second Report and Order, Order on
    Reconsideration, and Fifth Notice of Proposed Rulemaking*, 12 FCC
    Rcd 12545, 12692-93 (1997); Amendment of Part 90 of the
    Commission\'s Rules to Facilitate Future Development of SMR Systems
    in the 800 MHz Frequency Band, PR Docket No. 93-144, *Second Report
    and Order*, 12 FCC Rcd 19079, 19169 (1997); Amendment of Part 90 of
    the Commission\'s Rules to Adopt Regulations for Automatic Vehicle
    Monitoring Systems, PR Docket No. 93-61, *Second Report and Order*,
    13 FCC Rcd 15182, 15194 (1997).

[^227]: 47 C.F.R. § 1.2110(b)(4).

[^228]: *Part 1 Second Further Notice*, 13 FCC Rcd at 478 (para. 187).

[^229]: 5 U.S.C. § 603.

[^230]: *See* Appendix A.

[^231]: Pub. L. No. 104-13.

[^232]: *See generally* 47 C.F.R. §§ 1.1202, 1.1203, 1.1206(a).

[^233]: 47 C.F.R. §§ 1.415, 1.419.

[^234]: *See* Electronic Filing of Documents in Rulemaking Proceedings,
    63 Fed. Reg. 24,121 (1998).

[^235]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601 *et. seq.*,
    has been amended by the Contract with America Advancement Act of
    1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAA). Title II of
    the CWAA is the Small Business Regulatory Enforcement Fairness Act
    of 1996 (SBREFA).

[^236]: 5 U.S.C. § 603(a).

[^237]: *See id*.

[^238]: 47 C.F.R. Part 26.

[^239]: 47 C.F.R. Part 27. Because we are proposing to delete Part 26
    (GWCS) and regulate the 4.9 GHz band under Part 27 (Wireless
    Communications Service), we will only refer to GWCS in describing
    prior rules for the band 4660-4685 MHz.

[^240]: 47 C.F.R. Part 1.

[^241]: 5 U.S.C. § 603(b)(3).

[^242]: *Id*. § 601(3).

[^243]: *Id*. § 632.

[^244]: *Id*. § 601(4).

[^245]: Department of Commerce, U.S. Bureau of the Census, 1992 Economic
    Census, Table 6 (special tabulation of data under contract to Office
    of Advocacy of the U.S. Small Business Administration).

[^246]: 5 U.S.C. § 601(5).

[^247]: 1992 Census of Governments, U.S. Bureau of the Census, U.S.
    Department of Commerce.

[^248]: *Id*.

[^249]: *See* Implementation of Section 309(j) of the Communications Act
    Competitive Bidding, PP Docket No. 93-253, Fifth Report and Order, 9
    FCC Rcd 5532, 5581-82 (para. 115) (1994).

[^250]: *See* 47 C.F.R. §§ 27.210(b)(1)(2), 101.1209(b)(1)(ii).

[^251]: For the band 4660-4685 MHz, this standard was approved by the
    SBA. Letter to Daniel B. Phythyon, Chief, Wireless
    Telecommunications Bureau, from Aida Alvarez, Administrator, Small
    Business Administration, dated May 19, 1998.

[^252]: We are coordinating with the SBA for approval of this small
    business size standard, as with the second standard discussed below,
    for 4.9 GHz.

[^253]: 13 C.F.R. §121.201, SIC code 4812.

[^254]: *1992 Census,* Series UC92-S-1, at Table 5, SIC code 4812.

[^255]: *See* 47 C.F.R. § 101.11209(b)(ii).

[^256]: *See* 47 C.F.R. § 27.210(b)(1)(2).

[^257]: *See* para. 31, *supra*.

[^258]: *See* paras. 59-63, *supra*.

[^259]: *See* paras. 51, *supra*.

[^260]: *See* paras. 40-41, *supra*.

[^261]: *See* para. 102, *supra*.

[^262]: *See* para. 103, *supra*.

[^263]: *See* paras. 52-58, *supra*.

[^264]: *See* paras. 74-84, *supra*.

[^265]: *See* para. 96, *supra*.