**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | WT Docket No. 03-66          |
|                                  | *) |                              |
| Amendment of Parts 1, 21, 73, 74 | ** | RM-10586                     |
| and 101 of the Commission's      |    |                              |
| Rules to Facilitate the          | *  | WT Docket No. 03-67          |
| Provision of Fixed and Mobile    | *) |                              |
| Broadband Access, Educational    | ** | WT Docket No. 02-68          |
| and Other Advanced Services in   |    |                              |
| the 2150-2162 and 2500-2690 MHz  | *  | RM-9718                      |
| Bands                            | *) |                              |
|                                  | ** | IB Docket No. 02-364         |
| Part 1 of the Commission\'s      |    |                              |
| Rules - Further Competitive      | *  | ET Docket No. 00-258         |
| Bidding Procedures               | *) |                              |
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| Amendment of Parts 21 and 74     |    |                              |
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| of the Commission\'s Rules With  | *) |                              |
| Regard to                        | ** |                              |
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| Licensing in the Multipoint      | *  |                              |
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| Distribution Service and in the  | ** |                              |
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| Instructional Television Fixed   | *  |                              |
| Service for the                  | *) |                              |
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| Gulf of Mexico                   |    |                              |
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| Review of the Spectrum Sharing   | *) |                              |
| Plan Among Non-Geostationary     | ** |                              |
| Satellite Orbit Mobile Satellite |    |                              |
| Service Systems in the 1.6/2.4   | *  |                              |
| GHz Bands                        | *) |                              |
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| Amendment of Part 2 of the       |    |                              |
| Commission's Rules to Allocate   | *  |                              |
| Spectrum Below 3 GHz for Mobile  | *) |                              |
| and Fixed Services to Support    | ** |                              |
| the Introduction of New Advanced |    |                              |
| Wireless Services, Including     | *  |                              |
| Third Generation Wireless        | *) |                              |
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+----------------------------------+----+------------------------------+

**THIRD ORDER ON RECONSIDERATION AND SIXTH MEMORANDUM OPINION AND ORDER
AND**

**FOURTH MEMORANDUM OPINION AND ORDER AND SECOND FURTHER NOTICE OF
PROPOSED RULEMAKING AND DECLARATORY RULING**

**Adopted: March 18, 2008 Released: March 20, 2008**

**Comment Date:** 60 days after publication in the Federal Register

**Reply Comment Date:** 90 days after publication in the Federal
Register

By the Commission:

Table of Contents

Heading Paragraph \#

I. introduction 1

II\. Executive Summary 2

III\. background 3

A. BRS/EBS R&O and FNPRM 3

B. BRS/EBS 3rd MO&O and 2nd R&O 7

IV\. discussion 11

A. Licensing Unassigned Spectrum in the Band. 11

B. BRS Competitive Bidding Rules 21

C. Transition 29

1\. Self-transitioning before January 21, 2009 29

2\. Proponent-driven transitions 38

3\. Technical corrections 40

D. Multichannel Video Programming Distributors (MVPD) Opt-Out 42

1\. The Waiver Standard 42

2\. Misaligned channels in overlapping GSAs 45

E. Technical Issues 48

1\. Antenna height benchmarking 48

2\. Out-of-band emissions 53

a\. For user stations 53

b\. Measuring out-of-band emissions for contiguous channels 56

c\. Interference complaint process 60

\(i\) Deadlines for compliance 60

\(ii\) Limiting Right to File Documented Interference Complaints to
First Adjacent Channel Licensees 66

3\. GSA Boundaries 70

a\. Straight Line v. Great Ellipses 70

b\. GSA Boundaries -- Pending Applications 75

4\. Grandfathering of EBS facilities under Section 27.55 (a)(4)(iii) 79

5\. Technical corrections 84

F. Simultaneous Operation on Old and New BRS Channels 1 and 2/2A 85

G. 2496-2502 MHz Band Sharing Issues 88

H. BRS 2/2A Channel Issues 95

I. Grandfathered E and F Group Channel EBS Stations 101

J. Gulf of Mexico Proceeding and Related Issues 115

K. Leasing 130

1\. Automatic Renewal Provisions in EBS leases executed before January
10, 2005 130

2\. Equipment on Lease Termination 138

L. Substantial Service 140

1\. Credit for Discontinued Service 140

2\. Safe Harbors \-- heavily encumbered or highly truncated GSAs and
BTAs 143

M. EBS Eligibility 146

1\. Nonprofit Educational Organizations 146

2\. Commercial EBS Licensees 150

N. Mutually Exclusive Applications 152

V. DECLARATORY RULING -- LATE-FILED APPLICATIONS 161

VI\. second further notice of proposed rulemaking 180

A. Licensing EBS Spectrum in the Gulf of Mexico 180

B. Licensing Available and Unassigned EBS Spectrum 181

> 1\. Introduction 181
>
> 2\. Competitive Bidding 189
>
> 3\. Other Assignment Mechanisms 196

VII\. Procedural matters 205

A. Ex Parte Rules -- Permit-But-Disclose 205

B. Comment Period and Procedures 206

C. Final Regulatory Flexibility Analysis of BRS/EBS 4th MO&O 211

D. Initial Regulatory Flexibility Analysis 212

E. Paperwork Reduction Analysis 213

F. Further Information 216

VIII\. ORDERING CLAUSES 217

> APPENDIX A - Final Rules
>
> APPENDIX B - Final Regulatory Flexibility Analysis

APPENDIX C - Initial Regulatory Flexibility Analysis

> APPENDIX D - List of Petitioners to *BRS/EBS 3^rd^ MO&O*

# introduction

1.  In this *Third Order on Reconsideration and Sixth Memorandum Opinion
    and Order and Fourth Memorandum Opinion and Order and Second Further
    Notice of Proposed Rulemaking (Big LEO 3rd Order on Reconsideration
    and AWS 6^th^ MO&O and BRS/EBS 4th MO&O and 2nd FNPRM)*, we continue
    our efforts to transform our rules and policies governing the
    licensing of the Educational Broadband Service (EBS) and the
    Broadband Radio Service (BRS) in the 2495-2690 MHz (2.5 GHz band).
    In particular, we adopt rules for auctioning unassigned BRS spectrum
    as proposed in the *Further Notice of Proposed Rulemaking (BRS/EBS
    FNPRM)*,[^1] and seek further comment on alternatives for licensing
    unassigned EBS spectrum. In addition, we address petitions for
    reconsideration filed in response to the *Order on Reconsideration
    and Fifth Memorandum Opinion and Order and Third Memorandum Opinion
    and Order and Second Report and Order* (*Big LEO Order on
    Reconsideration and AWS 5^th^ MO&O and BRS/EBS 3^rd^ MO&O and 2nd
    R&O*, as appropriate) in this proceeding[^2] by, among other things,
    further refining our technical rules to enable licensees to deploy
    new and innovative wireless services in the 2.5 GHz band. We believe
    that the actions we take today will facilitate the promotion of
    broadband service to all Americans.

# Executive Summary

2.  In the *Big LEO 3^rd^ Order on Reconsideration and AWS 6^th^ MO&O
    and BRS/EBS 4th MO&O*, we take the following actions with respect to
    petitions for reconsideration filed in response to the *Big LEO
    Order on Reconsideration and AWS 5^th^ MO&O and BRS/EBS 3rd MO&O*
    and *2nd R&O*:

-   Grant a petition, in part, by adopting the Part 1, Subpart Q
    competitive bidding rules for future BRS auctions, seeking further
    comment on rules for future licenses for EBS spectrum, and directing
    WTB to review inventory and schedule auction(s) of unassigned BRS
    spectrum as soon as practicable.

-   Adopt the small business size standards and bidding credits proposed
    in the *BRS/EBS* *FNPRM* ("small business" \-- an entity with
    attributed average annual gross revenues not exceeding \$40 million
    for the preceding three years; "very small business" \-- an entity
    with attributed average annual gross revenues not exceeding \$15
    million for the same period; and an "entrepreneur" \-- an entity
    with attributed annual average gross revenues not exceeding \$3
    million for the same period).

-   Deny a petition requesting that the Commission permit licensees to
    self-transition before January 21, 2009, the deadline for proponents
    to file an Initiation Plan with the Commission.

-   Grant a petition asking the Commission to correct the inconsistency
    between the *BRS/EBS* *3rd MO&O* and the text of Section
    27.1236(b)(6), and on the Commission's own motion, change references
    in Sections 27.1231(f), 27.1236(a), 27.1236(b)(1) and 27.1236(b)(6)
    to dates certain.

-   Deny as moot a petition requesting that the Commission clarify the
    requirements for multichannel video programming distribution (MVPD)
    operators seeking to opt-out of the transition.

-   Deny a petition seeking reconsideration on the effect of MVPD
    opt-out on adjacent licensees with overlapping geographic service
    areas (GSAs).

-   Grant a petition asking the Commission to modify the height
    benchmarking rule to establish deadlines for compliance.

-   Grant a petition asking the Commission to modify the out-of-band
    emissions rule to establish deadlines for compliance.

-   Grant a petition asking the Commission to modify the out-of-band
    emissions rule to provide that out-of-band emissions are to be
    measured from the outermost edge of the channels when two or more
    channels are combined.

-   Deny a petition and reaffirm that only first adjacent channel
    licensees may file an interference complaint concerning adjacent
    channel interference.

-   Deny a petition and affirm the Commission's decision regarding
    out-of-band emissions for mobile digital stations.

-   Deny a petition asking to establish different deadlines for user
    stations to cure interference where an existing base station suffers
    interference from an outdoor antenna user station.

-   Grant a petition and allow licensees to maintain existing operations
    post-transition in the mid-band segment (MBS) at 2572-2614 MHz, even
    if such operations exceed the current -73.0 dBW/m^2^ contour limit.

-   Deny a petition asking the Commission to adopt technical standards
    should it become necessary to "split the football" to determine each
    licensee's GSA.

-   Grant a petition and permit BRS Channels No. 1 and 2/2A licensees to
    operate simultaneously in the 2150-2160/62 MHz and 2496-2690 MHz
    bands until every subscriber is relocated to the 2496-2690 MHz band.

-   Deny a petition asking the Commission to provide greater protection
    to BRS Channel No. 1 operations by reducing the power flux density
    (PFD) radiated from the Mobile Satellite Service (MSS) in the
    2496-2500 MHz band.

-   Deny a petition and affirm the use of splitting the football for BRS
    Channels No. 2 and 2A licensees.

-   Deny petitions concerning overlaps between grandfathered EBS E and F
    Group licensees and co-channel BRS E and F Group licensees and
    affirm the existing rule.

-   Deny a petition asking for procedural changes to the 90-day
    negotiation period for significant GSA overlaps (more than 50
    percent) between grandfathered EBS E and F Group channel licensees
    and incumbent BRS E and F Group channel licensees.

-   Grant a petition and reinstate a Gulf of Mexico Service Area.

-   Establish the Gulf of Mexico boundary 12 nautical miles from the
    shore.

-   Apply the existing technical rules to the Gulf of Mexico Service
    Area.

-   Grant a petition and affirm that EBS excess capacity leases executed
    before January 10, 2005, are limited to 15 years.

-   Deny a petition relating to pre-1998 legacy, video-only excess
    capacity leases but affirm that leases executed before January 10,
    2005, are limited to 15 years.

-   Grant a petition and amend rules to permit lessees to offer EBS
    licensees/lessors the actual equipment used or comparable equipment
    on lease termination.

-   Deny a petition asking that licensees be permitted to demonstrate
    substantial service based on past-discontinued service.

-   Grant a petition asking for a new safe harbor for heavily encumbered
    or highly truncated Basic Trading Areas (BTAs) and GSAs.

-   Grant a petition seeking minor changes in the EBS eligibility rule
    to conform it to other changes made by the Commission.

-   Grant a petition asking the Commission to adopt a rule that
    clarifies that commercial EBS licensees are not subject to
    educational programming requirements or the special EBS leasing
    restrictions.

-   Deny a petition asking the Commission to reinstate pending mutually
    exclusive applications for new EBS stations.

-   Grant in part requests for declaratory ruling and clarify how the
    splitting the football process for determining GSAs works with
    respect to licenses that were expired on January 10, 2005.

    In the *BRS/EBS 2nd FNPRM*, we seek comment on whether and how to
    license EBS spectrum in the Gulf of Mexico. We also seek comment on
    various alternatives for licensing unassigned EBS spectrum.
    Specifically, we seek comment on the following issues:

-   We ask whether it would be in the public interest to develop a
    scheme for licensing unassigned EBS spectrum that avoids mutual
    exclusivity.

-   We ask whether EBS eligible entities could participate fully in a
    spectrum auction.

-   We seek comment on the use of small business size standards and
    bidding credits for EBS if we adopt a licensing scheme that could
    result in mutually exclusive applications.

-   We seek comment on the proper market size and size of spectrum
    blocks for new EBS licenses.

-   We seek comment on issuing one license to a State agency designated
    by the Governor to be the spectrum manager, using frequency
    coordinators to avoid mutually exclusive EBS applications, as well
    as other alternative licensing schemes.

# background[^3] 

## BRS/EBS R&O and FNPRM

3.  On July 19, 2004, the Commission, in response to a "White Paper"
    submitted by the Wireless Communications Association International,
    Inc. (WCA), the Catholic Television Network (CTN), and the National
    ITFS Association (NIA) (the Coalition) released the *BRS/EBS R&O &
    FNPRM.*[^4] In the *BRS/EBS R&O & FNPRM*, the Commission
    restructured the 2500-2690 MHz band from an interleaved band plan to
    a three-segment band plan divided into upper and lower-band segments
    (UBS and LBS, respectively) for low-power operations and a mid-band
    segment (MBS) for high-power operations, and designated the
    2495-2500 MHz band for use in connection with the 2500-2690 MHz
    band.[^5] The following charts illustrate the former and current
    band plans:

    FORMER BRS/EBS BAND PLAN:

  ------ --- ------ ------ ---- ------ ---- ---- ---- -- ---- ---- ---- ---- -- ---- ---- ---- ---- -- ---- ---- ---- ---- ---- ------ ---- ---- ---- ---- ---- ---- ---- ------ ---- ---- ---- ---- ---- ---- ---- ---- ------ --- ------ --
         1   2/2A                      A1   B!   A2      B2   A3   B3   A4      B4   C1   D1   C2      D2   C3   D3   C4   D4          E1   F1   E2   F2   E3   F3   E4          F4   G1   H1   G2   H2   G3   H3   G4          R          

  2150              2162        2500                                                                                            2596                                      2644                                           2686       2690   
  ------ --- ------ ------ ---- ------ ---- ---- ---- -- ---- ---- ---- ---- -- ---- ---- ---- ---- -- ---- ---- ---- ---- ---- ------ ---- ---- ---- ---- ---- ---- ---- ------ ---- ---- ---- ---- ---- ---- ---- ---- ------ --- ------ --

> CURRENT BRS/EBS BAND PLAN:

  -------------- ------------ ------------ ------------------- ------------
  **Commission                                                 
  Band Plan**                                                  

  Channel        Lower        Upper                            
  Designation    Frequency    Frequency                        

  N/A            2495         2496          Guard Band          

  BRS 1          2496         2502                              

  A1             2502         2507.5                            

  A2             2507.5       2513                              

  A3             2513         2518.5                            

  B1             2518.5       2524                              

  B2             2524         2529.5                            

  B3             2529.5       2535                              

  C1             2535         2540.5                            LBS

  C2             2540.5       2546                              

  C3             2546         2551.5                            

  D1             2551.5       2557                              

  D2             2557         2562.5                            

  D3             2562.5       2568                              

  J              2568         2572          Guard Band          

  A4             2572         2578                              

  B4             2578         2584                              

  C4             2584         2590                              

  D4             2590         2596                              MBS

  G4             2596         2602                              

  F4             2602         2608                              

  E4             2608         2614                              

  K              2614         2618          Guard Band          

  BRS 2          2618         2624                              

  E1             2624         2629.5                            

  E2             2629.5       2635                              

  E3             2635         2640.5                            

  F1             2640.5       2646                              

  F2             2646         2651.5                            

  F3             2651.5       2657                              UBS

  H1             2657         2662.5                            

  H2             2662.5       2668                              

  H3             2668         2673.5                            

  G1             2673.5       2679                              

  G2             2679         2684.5                            

  G3             2684.5       2690                              
  -------------- ------------ ------------ ------------------- ------------

The Commission also renamed the Multipoint Distribution Service (MDS)
and Instructional Television Fixed Service (ITFS) as the "Broadband
Radio Service" and "Educational Broadband Service," respectively, to
better reflect the new services anticipated for this band.[^6] In
addition, the Commission retained conditions on the use of EBS licenses
in continued furtherance of the educational objectives that led to the
establishment of ITFS, and removed all non-statutory eligibility
restrictions applicable to cable and digital subscriber line (DSL)
operators for the BRS (thus permitting these operators to provide
non-video services like broadband internet access).[^7] Further, the
Commission adopted service rules and took actions that gave licensees
increased flexibility, reduced administrative burdens on both licensees
and the Commission, and promoted regulatory parity. In particular, among
other actions, the Commission implemented geographic area licensing for
all licensees in the band; consolidated licensing and service rules for
EBS and BRS in Part 27; allowed spectrum leasing for BRS and EBS under
our secondary markets spectrum leasing policies and procedures; provided
licensees with the flexibility to employ the technologies of their
choice in the band; applied the Part 1 Wireless Telecommunications
Bureau rules to the BRS/EBS spectrum; and dismissed pending mutually
exclusive applications for new ITFS stations.[^8]

4.  To facilitate the transition to the new band plan, the Commission
    adopted a market-oriented transition mechanism, in which a proponent
    would transition the 2.5 GHz band within a Major Economic Area
    (MEA).[^9] The transition timeline consisted of the following three
    phases: the Initiation Phase (which was to have lasted three years
    starting on January 10, 2005), in which potential proponents contact
    all the BRS and EBS licensees in the MEA by sending them a
    Pre-transition Data Request and a Transition Notice; the 90-day
    Transition Planning Phase, in which the proponent and BRS and EBS
    licensees negotiate the Transition; and the 18-month Transition
    Completion Phase, in which the proponent replaces downconverters and
    migrates video programming tracks for EBS licensees in the MEA.[^10]
    Under this transition mechanism, the transition costs of EBS
    licensees were to be shared by the proponent and all commercial
    licensees and lessees in the MEA.[^11] Transition plans were
    required to conform to certain safeguards to ensure a smooth
    transition and equitable treatment of incumbents. The Commission
    permitted qualifying MVPD operators to seek a waiver to opt-out of
    the transition.[^12]

5.  In addition, the *BRS/EBS R&O* resolved certain technical issues as
    follows: set the signal strength limits for the low-power bands at
    the boundaries of the geographic service areas to 47 dBV/m;
    restricted the transmitter output power of response stations to 2.0
    watts; modified emission limits for stations that would operate on
    the LBS and UBS channels; and refrained from allowing high-power
    unlicensed operations in the 2500-2690 MHz band, but allowed
    unlicensed operation under our existing Part 15 rules in the
    2655-2690 MHz band.[^13]

6.  In the *BRS/EBS FNPRM*, the Commission sought comment on a proposal
    to use competitive bidding to assign any new licenses, as well as
    competitive bidding mechanisms to transition licensees to the extent
    that licensee-negotiated transitions do not occur within the
    three-year transition period.[^14] Among other methods, we sought
    comment on a process whereby the Commission would offer incumbent
    licensees modified non-renewable licenses that would become
    secondary to new licenses to be assigned pursuant to the new band
    plan.[^15] Under this process, the Commission also would offer
    incumbent licensees tradable bidding offset credits that could be
    used to obtain new licenses, and that would provide spectrum access
    valued comparably to that provided by the incumbent's existing
    license.[^16] In addition to alternate transition methods, we also
    sought further comment on the following issues: the Gulf of Mexico
    service area; performance requirements for licensees in the band;
    grandfathered ITFS stations on the E and F channel groups;
    limitations on the holdings of ITFS stations; the "wireless cable"
    exception to the ITFS eligibility rules; regulatory fees; methods of
    streamlining our review of transactions involving these services;
    and continuing our review of rules relating to these services.[^17]

## BRS/EBS 3rd MO&O and 2nd R&O

7.  In the *BRS/EBS 3rd MO&O*, the Commission made further changes to
    the transition rules to further encourage the transition of the 2.5
    GHz band. In reviewing the petitions filed in response to the
    *BRS/EBS R&O and FNPRM*, the Commission found that the selection of
    MEAs as the transition area size discouraged potential proponents
    from filing Initiation Plans.[^18] Thus, the Commission changed the
    transition area size from MEA to the much-smaller Basic Trading Area
    (BTA).[^19] Moreover, since at the time the Commission released the
    *BRS/EBS 3rd MO&O* not one Initiation Plan had been filed, the
    Commission changed the timeframe of the Initiation Planning Period
    from January 10, 2005 through January 10, 2008 to July 19, 2006
    through January 21, 2009.[^20] Also, in response to petitioners who
    were afraid that they would lose their licenses if a proponent did
    not file or withdrew an Initiation Plan on or before January 21,
    2009, the Commission adopted a rule permitting licensees to
    self-transition to their default channel locations after January 21,
    2009 if a proponent has not filed or has withdrawn an Initiation
    Plan on or before January 21, 2009.[^21] Other significant changes
    made by the Commission to the transition included the following:
    adopting a cost-sharing formula for proponent-driven and self
    transitions; adopting a "first-in time" rule in which the first
    entity to file an Initiation Plan with the Commission for a given
    BTA would be the proponent; requiring licensees to respond to the
    Pre-transition Data request within 45 days; and permitting
    proponents to file the Post-transition notification on behalf of
    itself and all of the BRS and EBS licensees in the BTA.[^22] The
    Commission clarified that BRS licensees and lessees, EBS lessees,
    and commercial EBS licensees must pay their own transition costs and
    share the cost to transition EBS licensees; that BRS licensees and
    lessees and EBS licensees and lessees may be a proponent; and that
    channel swapping to effectuate the transition is permitted.[^23] The
    Commission declined, however, to permit qualifying multichannel
    video programming distributors (MVPD) operators to automatically
    opt-out of the transition, but reaffirmed their right to seek a
    waiver to opt-out of the transition.[^24]

8.  The Commission also made a series of decisions concerning the
    technical rules applicable to BRS and EBS. Specifically, the
    Commission clarified that during the transition, all downconverters
    within the EBS geographic service area (GSA) must be replaced
    regardless of the desired or undesired signal strength, allowed a
    -10 dB adjacent channel desired-to-undesired signal ratio (D/U) for
    transitioned EBS receive sites, and reaffirmed its decision to
    permit licensees to exceed the signal level at the GSA boundary
    provided no constructed licensee providing service is affected.[^25]
    The Commission also reaffirmed its decision to require that a
    licensee receive a documented interference complaint before it is
    subject to a stricter emission mask for base stations, reaffirmed
    its decision that only the first adjacent channel licensee may
    submit a documented interference complaint, and amended the rules to
    permit the interfering licensee 60 days after receiving the
    documented interference complaint to resolve the complaint.[^26] In
    addition, the Commission declined to modify its decision to apply
    the attenuation factor, not less than 43 + 10 log (P) dB at the
    channel edge and 55 + 10 log (P) dB at 5.5 megahertz from the
    channel edges, only to mobile digital stations; and reaffirmed its
    decision to require licensees to measure emission limits as close to
    the edges, both upper and lower, of the licensee's bands of
    operation as the design permits, including BRS Channel No. 1
    licensees.[^27] Further, the Commission reaffirmed its decision to
    bifurcate and define overlapping GSA boundaries by drawing a chord
    between the intersection points of the licensee's previous 35-mile
    Protected Service Area (PSA) and those of the respective adjacent
    market co-channel licensee.[^28] Also, the Commission reaffirmed its
    decision to permit two-way mobile operations prior to the
    transition, and reaffirmed its decision to permit low-power
    unlicensed operations in the 2655-2690 MHz portion of the band.[^29]

9.  In response to a request from EBS licensees, the Commission modified
    the application of the Secondary Markets rules and policies to EBS
    excess capacity leases entered into on or after July 19, 2006.[^30]
    Specifically, the Commission limited the term of these leases to 30
    years and required them to permit the EBS licensee/lessor to retain
    the right at year 15 and every five years thereafter to review the
    lease in light of their educational requirements.[^31] The
    Commission also stated that these leases could not be automatically
    renewed, although they could contain a right of first refusal
    clause.[^32] Also, the Commission affirmed its decision not to
    specify the manner in which EBS licensees reserve 5 percent of the
    capacity of their channels for educational usage when they lease
    their channels to a commercial lessee and reaffirmed its decision to
    permit cable operators and incumbent local exchange carriers (ILECs)
    to acquire or lease BRS or EBS spectrum for non-MVPD services.[^33]
    The Commission also reaffirmed its decision to dismiss mutually
    exclusive applications for new EBS stations.[^34]

10. In the *BRS/EBS 2nd R&O*, the Commission declined to adopt
    assignment rules for unassigned BRS or EBS spectrum at that time and
    terminated the Gulf of Mexico proceeding.[^35] The Commission did,
    however, adopt substantial service as the performance standard for
    EBS and BRS licensees; established May 1, 2011 as the deadline for
    licensees to demonstrate substantial service for each license they
    hold; adopted safe harbors, including safe harbors for EBS licensees
    and rural areas; and indicated that a licensee's prior, discontinued
    service may be considered as a factor in the substantial service
    determination made by the Commission.[^36] Also, the Commission
    adopted rules to resolve conflicts between the overlapping GSAs of
    grandfathered E and F Group EBS licensees and co-channel BRS E and F
    Group licensees.[^37]

# discussion

## Licensing Unassigned Spectrum in the Band

11. *Background.* The Commission previously assigned all spectrum
    allocated to the MDS and Multichannel Multipoint Distribution
    Service (MMDS), the predecessor services to BRS. Specifically, in
    1996, the Commission conducted competitive bidding and issued 493
    BTA licenses granting access to all BRS spectrum nationwide that was
    not assigned to pre-existing MDS or MMDS site-based licenses.[^38]
    Since the auction, 73 of the 493 BRS overlay licenses have cancelled
    and the related spectrum access rights are now unassigned although
    any underlying, pre-existing site-based licenses remain intact. With
    respect to EBS spectrum, the Commission has extensively, but not
    exhaustively, assigned this spectrum through site-based licensing.
    Commission analysis indicates that in 11 of 493 BTAs, there are
    currently no geographic or site-based BRS or EBS licensees. In
    addition, there are six additional BTAs where only a very small
    portion of the BTA is covered by a BRS or EBS license.

12. In the *BRS/EBS FNPRM*, the Commission sought comment on procedures
    for assigning new licenses in these services by competitive
    bidding.[^39] Commenters were asked to address these issues in
    addition to a larger proposal to use competitive bidding to transfer
    existing licensees to the new band plan.[^40] Specifically, the
    Commission asked parties to comment on adopting Part 1 competitive
    bidding rules for these services, as well as the adoption of three
    levels of size-based bidding credits.[^41]

13. Commenters addressing competitive bidding issues in response to the
    *BRS/EBS FNPRM* generally focused on when to conduct competitive
    bidding, and whether and how to distinguish among EBS applicants for
    purposes of offering small businesses bidding preferences.[^42]
    Then, as now, several parties sought early auctions of currently
    unassigned spectrum.[^43] Organizations representing EBS licensees,
    however, argued that auctions of EBS licenses should wait until
    after the transition, so that EBS licensees could devote appropriate
    attention to the transition process.[^44] In addition, there were
    divergent views regarding what frequencies in the band should be
    licensed together (particularly whether or not to group low and high
    power frequencies) and the appropriate geographic area for
    licensing.[^45] These latter concerns primarily pertained to new EBS
    licenses.

14. In the *BRS/EBS 2d R&O*, the Commission concluded that it would be
    premature to decide how to license currently unassigned spectrum in
    the band until after the period for existing licensees to transition
    to the new band plan expires.[^46] The Commission reached this
    conclusion based on the limited amount of currently unassigned
    spectrum relative to assigned spectrum subject to transitioning; the
    limited utility of new licenses in areas where existing licensees
    were transitioning from the old to the new band plan; and the
    efficiency of licensing all available spectrum at one time.[^47]
    Moreover, the Commission observed that completion of the transition
    would permit an assessment of existing and potential uses of new
    licenses and might lead to the identification of additional spectrum
    available for assignment.[^48] The Commission concluded that waiting
    to assign new licenses until after the completion of the transition
    therefore might enable a more effective initial assignment of new
    licenses.[^49]

15. NextWave Broadband, Inc. (NextWave) asks the Commission to
    reconsider this conclusion and immediately auction "all available
    and unassigned" BRS and EBS spectrum.[^50] In seeking
    reconsideration, NextWave asserts that the benefits from assigning
    new licenses prior to the end of the transition outweigh any
    potential benefits that could be obtained from waiting to assign
    licenses for more available spectrum at one time.[^51] WiMAX Forum
    (WiMAX), Sprint Nextel, Clearwire Corporation (Clearwire), the
    Hispanic Information and Telecommunications Network (HITN) and WCA
    support NextWave's request.[^52] Proponents of earlier licensing of
    BRS BTA licenses contend that new BRS BTA licensees may be more
    likely to initiate transitions to the new band plan than other
    existing licensees, thereby furthering the transition.[^53] More
    broadly, WCA and NextWave contend that the sooner the Commission
    licenses unassigned spectrum, the sooner new licensees can begin
    planning their post-transition deployments.[^54]

16. A few parties, specifically NIA, CTN, and ITFS/2.5 GHz Mobile
    Wireless Engineering & Development Alliance, Inc. (IMWED), oppose
    NextWave\'s petition with respect to assigning EBS spectrum. NIA and
    CTN contend that "EBS licensees will be significantly occupied with
    other matters over the next few years, including transitions to the
    new band plan, spectrum lease negotiations, and, critically, the
    development of educational service plans that focus on new
    technologies tailored to the revised plan and rules."[^55] IMWED
    contends that auctioning EBS spectrum in urban areas is unnecessary
    because there is insufficient white space available to institute new
    services in those areas.[^56] IMWED states that the primary purpose
    of EBS is educational, not commercial.[^57] Finally, IMWED
    anticipates that auctions would not materially expedite the
    provision of wireless broadband service because widespread
    deployment will not occur until after transitions take place.[^58]

17. *Discussion.* With respect to BRS spectrum, we now conclude that the
    public interest favors expeditious relicensing of BTA authorizations
    in those areas where the authorization was forfeited or turned in
    for cancellation, regardless of the presence of other BRS or EBS
    incumbents. BTA authorization holders eligible to pay for their
    licenses in installments recently submitted their final payments.
    With final payment in hand, the possibility that additional BTA
    licenses will be added to the FCC's auction inventory due to failure
    to pay is now foreclosed. In addition, initial action has been taken
    with respect to requests regarding forfeited authorizations.[^59]
    These developments provide greater certainty regarding the
    geographic areas available for the grant of new BRS licenses.

18. We find that the expeditious licensing of BRS in those 11 BTAs where
    there is no existing BRS or EBS licensee serves the public interest
    by facilitating service in unserved areas.[^60] Expedited licensing
    in those markets will not disrupt the band plan transition process
    because there are no existing operations. Transitions in adjacent
    BTAs will be protected by the requirements in our technical rules
    that new BTA licensees operate pursuant to the post-transition band
    plan and provide protection to adjacent operations. We also note
    that Sprint Nextel and Clearwire, two entities that have proposed
    transitions in other markets, support expeditious relicensing of
    available BRS spectrum.[^61]

19. We also conclude that, on balance, early issuance of BTA
    authorizations serves the public interest in markets where there are
    incumbent non-BTA BRS or EBS licensees. Unlike the handful of
    markets without any existing BRS or EBS licensees, issuance of
    licenses where there are existing incumbents will supplement --
    rather than initiate -- service within the BTA. Nonetheless, a new
    BTA authorization will make service more widely available and will
    increase the opportunities for competitive offerings within the
    market. We believe that our existing technical rules afford
    incumbent licensees protection against unwarranted interference.
    Specifically, any new BTA licenses will be required to limit their
    signal strength at the border of their GSA,[^62] provide adjacent
    channel protection in the same manner as any other licensee,[^63]
    and comply with the height benchmarking rule to ensure that base
    stations near the border of GSAs do not interfere with stations in
    neighboring GSAs.[^64] We also note that no party to this proceeding
    expressed concern that awarding new BRS BTA licenses would cause
    problems to existing operations. Moreover, we will require new
    licensees to operate pursuant to the new band plan. This requirement
    will protect existing licensees by ensuring that any future
    high-power video operations are restricted to the MBS. To the extent
    a market has existing pre-transition operations, requiring the BTA
    operator to operate pursuant to the new band plan will provide that
    operator with maximum incentive to transition existing operations.
    Furthermore, as an increasing number of adjacent markets are
    transitioned, requiring new licensees to operate pursuant to the new
    band plan will ensure that the new licensees operate in conformity
    with adjacent markets. We expect that these requirements on how BRS
    licensees may operate under new BTA licenses pending the transition
    to the new band plan should provide an incentive for these licensees
    to propose transitions in markets currently lacking a transition
    plan.

20. Although we decide to move forward with auctioning licenses for
    unassigned BRS spectrum, we believe that a broader record should be
    developed on how to distribute licenses for unassigned EBS spectrum.
    EBS is a unique service designed to meet the unique needs of
    educators and students.[^65] Given the wide variety of educators and
    educational needs, we could foresee situations in which the ideal
    license size could be as small as a school district or as large as a
    state. Furthermore, educators may encounter a variety of unique
    challenges that commercial operators may not face, such as state or
    county imposed budgeting cycles, the need to obtain grants, or
    state-imposed limitations on their ability to participate in
    spectrum acquisition. Accordingly, as noted in further detail below,
    the *Second Further Notice of Proposed Rulemaking* seeks further
    comment on the best means of licensing unassigned EBS spectrum.

## BRS Competitive Bidding Rules

21. *Background*. The *BRS/EBS FNPRM* proposed to conduct any auction of
    new licenses in the BRS/EBS band in conformity with the general
    competitive bidding rules set forth in Part 1, Subpart Q, of the
    Commission's rules, for example, rules governing competitive bidding
    design, designated entities, application and payment procedures,
    collusion issues, and unjust enrichment.[^66] We did not receive any
    noteworthy objection to the use of these competitive bidding rules
    with respect to new BRS licenses.

22. In the *BRS/EBS FNPRM*, the Commission sought comment on the
    appropriate geographic area size for new licenses in this band.[^67]
    With limited exceptions, commenters generally assert that new
    geographic area licenses should be BTAs.[^68] Commenters contend
    that BTAs are consistent with prior geographic area licensing in the
    band, *i.e.* MDS BTA overlay licenses; that BTAs are closer to the
    market size likely to be served by a licensee; and that areas larger
    than BTAs will result in inefficient license assignments, as
    bidders' licenses may cover some areas in which they have no
    interest.[^69] A few commenters suggest geographic areas smaller
    than BTAs, such as counties (School Board of Miami Dade County
    Florida), telephone servicing areas (Gila River Telecommunications,
    Inc.), or MSAs/RSAs (National Telecommunications Cooperative
    Association -- for MBS).[^70]

23. With respect to bidding credits, in the *BRS/EBS FNPRM*, the
    Commission proposed to define three categories: \"small business\"
    \-- an entity with average annual gross revenues not exceeding \$40
    million for the preceding three years; \"very small business\" \--
    an entity with average gross revenues not exceeding \$15 million for
    the same period; and \"entrepreneur\" \-- an entity with average
    gross revenues not exceeding \$3 million for the same period.[^71]
    The Commission also proposed to provide qualifying "small
    businesses" with a bidding credit of 15%, qualifying "very small
    businesses" with a bidding credit of 25%; and qualifying
    "entrepreneurs" with a bidding credit of 35%, consistent with
    Section 1.2110(f)(2) of the Commission's Rules.[^72]

24. Commenters responding to the *BRS/EBS FNPRM* focused on bidding
    credits for EBS licenses, rather than BRS licenses. For example, one
    party proposed substantial bidding credits, of at least 50%, for EBS
    applicants not receiving financial support from outside
    parties.[^73] WCA, which opposes bidding credits with respect to EBS
    licenses generally, advocates that any bidding credits for EBS
    applicants be based on their educational objectives, rather than
    their revenues.[^74]

25. With respect to other competitive bidding rules, the *BRS/EBS FNPRM*
    proposed to use Part 1, Subpart Q rules to auction geographic area
    licenses to access spectrum in the 2500-2690 MHz band.[^75] We did
    not receive any comments objecting to the use of these Part 1 rules.

26. *Discussion*. With respect to the assignment of new BRS licenses, we
    adopt the competitive bidding rules set forth in Part 1, Subpart Q,
    of the Commission's Rules, consistent with the bidding procedures
    that have been employed in many previous auctions.[^76]
    Specifically, we will adopt the Part 1 rules governing, among other
    things, competitive bidding design, designated entities, application
    and payment procedures, collusion issues, and unjust
    enrichment.[^77] We note that such rules would be subject to any
    modifications by the Commission in our ongoing Part 1
    proceeding.[^78] In addition, consistent with current practice,
    matters such as the appropriate competitive bidding design, minimum
    opening bids and reserve prices, will be determined by the Wireless
    Telecommunications Bureau pursuant to its delegated authority.[^79]

27. We adopt rules providing that new licenses for unassigned BRS
    spectrum will be assigned by BTA, with each license authorizing
    access for all BRS spectrum not otherwise assigned either at the
    time of licensing or in the future.[^80] We agree with those
    commenters that there are benefits to issuing new licenses on a BTA
    basis because this approach is consistent with the existing BRS
    geographic overlay licenses. Furthermore, adopting different
    geographic service areas for the available BRS licenses would be
    difficult to administer and would not appear to lead to any benefits
    for either potential licensees or the public.

28. We also adopt rules providing for three size-based bidding credits
    in competitive bidding for new BRS licenses. We have used similar
    credits in a range of other services and conclude that they are
    appropriate for BRS. Applicants with attributable average annual
    gross revenues not exceeding \$3 million for the preceding three
    years, "entrepreneurs," will be eligible for a 35% discount on their
    winning bids; those with attributable average annual gross revenues
    not exceeding \$15 million for the same period, "very small
    businesses," will be eligible for a 25% discount; and those with
    attributable average annual gross revenues not exceeding \$40
    million for the same period, "small businesses," will be eligible
    for a 15 percent discount. Applicants claiming eligibility will do
    so pursuant to our established Part 1 competitive bidding rules and
    procedures.

## Transition

### Self-transitioning before January 21, 2009

29. *Background.* The primary means of transitioning BRS and EBS
    stations is the proponent-based transition. The proponent-based
    transition process is a market-oriented process for relocating EBS
    licensees and BRS licensees from their current interleaved channel
    locations to their new contiguous spectrum blocks in the LBS, MBS,
    or UBS. The transition occurs by BTAs and is undertaken by a
    proponent or multiple proponents. The transition occurs in the
    following five phases: (1) initiating the transition process by
    filing an Initiation Plan with the Commission; (2) planning the
    transition; (3) reimbursing the costs of the transition; (4)
    terminating existing operations in transitioned markets; and (5)
    filing the post-transition notification.[^81] A proponent must
    migrate an EBS licensee's eligible video programming tracks to the
    MBS[^82] and provide an EBS licensee with downconverters at every
    eligible EBS receive site.[^83] The proponent may seek reimbursement
    for the migration and downconverters they provide from BRS licensees
    and lessees, EBS lessees, and commercial EBS licensees.[^84] BRS
    licensees and lessees, EBS lessees, and commercial EBS licensees
    must pay their own transition costs.[^85]

30. In markets where no transition plan is filed by January 21, 2009,
    the date the proponent must file an Initiation Plan with the
    Commission or withdraw a filed Initiation Plan, the Commission
    permits BRS and EBS licensees to self-transition to their default
    channel locations.[^86] Consistent with the rules applying to
    proponent-based transitions, the Commission also permits
    self-transitioning EBS licensees to seek reimbursement from
    commercial operators in the 2.5 GHz band for the costs of
    transitioning to their default channel locations.[^87] The
    Commission decided to limit self-transitions to markets where no
    transition plan had been filed as of January 21, 2009 or where a
    transition plan had been withdrawn as of that date because allowing
    earlier self-transitions "would negatively affect the incentives for
    proponents to transition their BTAs."[^88]

31. Although Broward County asks the Commission to reconsider its
    decision regarding early self-transitions, it expresses different
    positions in its petition for reconsideration and its reply. First,
    in its Petition for Reconsideration, Broward County asks the
    Commission to reconsider its decision and allow licensees to
    self-transition before January 21, 2009.[^89] Broward County further
    asks the Commission to permit early self-transitioning licensees to
    transition not only to their default channel locations, but also to
    an MBS channel belonging to another licensee, if certain conditions
    are met. Specifically, that channel must be the self-transitioning
    licensee's MBS channel following the transition of the licensee, or
    the self-transitioning licensee must have an agreement with the
    other licensee to allow the self-transitioning licensee to maintain
    its post-transition programming on that MBS channel.[^90] Broward
    County asks that an early self-transitioning licensee be permitted
    to "take its other channels dark" in anticipation of the arrival of
    the proponent and the completion of the transition process and to be
    reimbursed for its transition costs.[^91] Broward County argues that
    a self-transitioning licensee would cause less interruption to
    school curricula and programming availability, when compared with a
    proponent-driven transition.[^92] In its Reply, however, Broward
    County asserts that licensees can self-transition before January 21,
    2009 and that the only question before the Commission is whether
    licensees who transition early may be reimbursed for the *costs* of
    transitioning.[^93] WCA, Sprint Nextel, and WiMAX oppose permitting
    licensees to self-transition before January 21, 2009. They argue
    that permitting early self-transitions would complicate the
    transition and be more costly.[^94]

32. *Discussion.* As a preliminary matter, we disagree with Broward
    County's assertion that a licensee may self-transition before
    January 21, 2009 and that the only question before the Commission is
    whether the costs incurred by the early self-transitioning licensees
    are reimbursable. In the *BRS/EBS 3rd MO&O*, the Commission stated
    that a licensee may not self-transition before January 21, 2009
    because doing so would discourage proponents from transitioning the
    2.5 GHz band.[^95] Thus, we now turn to Broward County\'s request
    that we reconsider this decision.

33. We reaffirm our decision that a licensee may not self-transition
    before January 21, 2009 and reiterate that a proponent-driven
    transition is the most efficient method of transitioning a BTA.[^96]
    In particular, we find that early self-transitions would complicate
    the transition process for the proponent \-- as discussed by WCA,
    Sprint Nextel, and WiMAX[^97] \-- and would not provide sufficient
    benefits to the self-transitioning licensee to offset those
    additional complications.

34. We disagree with Broward County\'s argument that permitting a
    licensee to self-transition early would reduce the planning and
    technical burden on the proponent because the self-transitioning
    licensee, rather than a proponent, would make the necessary
    equipment changes for EBS stations.[^98] We believe that permitting
    a licensee to self-transition early would thwart the proponent's
    ability to develop a BTA-wide transition plan in which some MBS
    channels are digitized, some licensees swap channels, and other
    licensees share digitized channels. Under our rules, the proponent
    is responsible for transitioning all EBS licensees in the BTA
    through the development of a Transition Plan (to which every BRS and
    EBS licensee in the BTA must agree). Moreover, if licensees are
    permitted to self-transition prior to January 21, 2009, a proponent
    planning to transition a market after these self-transitions will
    have difficulty determining which licensees in the market already
    have transitioned.

35. While we acknowledge that permitting licensees to self-transition
    early may result in a more rapid transition for these individual
    licensees, we find unpersuasive Broward County's argument that a
    self-transitioning licensee would cause less interruption to school
    curricula and programming availability, when compared with a
    proponent-driven transition. The Commission's Rules already require
    the proponent to coordinate with every EBS licensee to minimize the
    extent of any disruption and allow a proponent to interrupt EBS
    transmissions for only a short time (less than seven days) at any
    reception site.[^99] Moreover, allowing early self-transitions may
    disrupt other EBS licensees that are participating in the
    proponent-driven transition process.

36. In addition, the existing proponent-driven transition process
    provides an opportunity for EBS licensees to make counterproposals
    to the proponent's Transition Plan.[^100] In those circumstances,
    the proponent either must redraft the Transition Plan to account for
    the licensee's concerns, or seek dispute resolution. We believe that
    it is in the interest of the proponent to accommodate an EBS
    licensee because the transition for the entire BTA will be tolled
    pending resolution of the dispute. In contrast, if we were to permit
    self-transitions prior to January 21, 2009, the proponent does not
    have a similar incentive to reach an agreement with the EBS licensee
    regarding reimbursement because the transition of the BTA will not
    be tolled pending dispute resolution (*i.e.*, the EBS licensee has
    already self-transitioned, which by definition is not under the
    Transition Plan). In addition, since the reimbursement of costs
    would not have been pre-negotiated under an early self-transition
    scenario, we note that the EBS licensee who opts for an early
    self-transition may not ultimately receive reimbursement for all of
    its costs under dispute resolution. Furthermore, allowing early
    self-transitions may increase the possibility of disputes concerning
    cost reimbursement because EBS licensees who transition without the
    involvement of the proponent may be more likely to incur expenses
    that are not reimbursable (or that the proponent may view as not
    reimbursable).

37. We conclude that early self-transitioning would make the transition
    process more complicated, more difficult to administer, and
    unpredictable. We therefore deny Broward County's petition.

### Proponent-driven transitions

38. *Background*. On November 2, 2006, HITN filed a Request for
    Clarification of the *BRS/EBS 3rd MO&O*, more than three months
    after the July 19, 2006 deadline for filing Petitions for
    Reconsideration. HITN asks the Commission to clarify four alleged
    inconsistencies between the text of the *BRS/EBS 3rd MO&O* and the
    text of the adopted rules concerning proponent-driven
    transitions.[^101] Specifically, HITN\'s Request focuses on the
    following issues: (1) the penalties imposed on licensees who do not
    timely respond to pre-transition data requests;[^102] (2) whether a
    proponent may implement its original transition plan after it seeks
    dispute resolution;[^103] (3) whether the rules should specify
    penalties imposed on the proponent for withdrawing the Initiation
    Plan;[^104] and (4) self-transitions.[^105] We discuss the first
    three issues below. The fourth issue is discussed in the next
    section, in the context of WCA\'s Petition for Reconsideration.

39. *Discussion*. We agree with WCA that three of the four issues for
    which HITN requests clarification are substantive changes and not
    technical corrections.[^106] Thus, we conclude that HITN's request
    for clarification, which was filed after the deadline for petitions
    for reconsideration of the *BRS/EBS 3rd MO&O*, is an untimely filed
    petition for reconsideration, which under Section 405(a) of the Act
    we are unable to address.[^107] Nonetheless, to the extent that
    there is any uncertainty about the obligations in a proponent-driven
    transition, we note that, in cases where the text of the rules is
    inconsistent with the text of an Order, the text of the rule
    controls. We find that HITN's fourth request is for a technical
    correction, rather than a substantive change, and can be addressed,
    notwithstanding the fact that it was raised after the deadline for
    petitions for reconsideration. In any event, the fourth issue raised
    by HITN also was raised by WCA in its timely-filed petition for
    reconsideration, and is discussed in the next section.[^108]

### Technical corrections

40. *Background.* In the *BRS/EBS 3rd MO&O*, the Commission stated that
    it is necessary to coordinate the timing of self-transitions with
    proponent-driven transitions.[^109] WCA identifies an inconsistency
    between the text of paragraph 143 of the *BRS/EBS* *3rd MO&O* and
    Section 27.1236(b)(6) of the Commission's Rules.[^110] Specifically,
    paragraph 143 of the *BRS/EBS* *3rd MO&O*, states that licensees who
    decide to self-transition must complete the self-transition within
    51 months of the effective date of the amended rules, July 19,
    2006.[^111] Section 27.1236(b)(6), however, states that
    self-transitions must be completed within 57 months of July 19,
    2006.[^112] WCA asks that the Commission amend Section 27.1236(b)(6)
    of the Rules by deleting "57" and inserting in its place "51."[^113]
    HITN asks that the Commission clarify how long self-transitioning
    licensees have to transition.[^114] HITN insists that the *BRS/EBS
    3rd MO&O* is ambiguous because paragraphs 141-143 of the *BRS/EBS
    3rd MO&O* state that a self-transitioning licensee must file a
    notification within 90 days of the date the Initiation Plan has been
    filed and must complete the self-transition 21 months after the
    Initiation Plan has been filed.[^115]

41. *Discussion.* We agree that a change is appropriate. We also will
    amend Sections 27.1231(f) and 27.1236(a), 27.1236(b)(1), and
    27.1236(b)(6) to specify dates certain.[^116] Thus, Sections
    27.1231(f) and 27.1236(a) reference January 21, 2009, the date the
    Initiation Plan must be filed with the Commission; Section
    27.1236(b)(1) references April 21, 2009, the date a
    self-transitioning licensee must notify the Commission; and Section
    27.1236(b)(6) references October 20, 2010, the date self-transitions
    must be completed.[^117] Because the time line for self-transitions
    parallels the timeline for proponent-driven transitions, we note
    that proponent-driven transitions must also be completed on or
    before October 20, 2010, unless stayed pending alternative dispute
    resolution.

## Multichannel Video Programming Distributors (MVPD) Opt-Out

### The Waiver Standard

42. *Background*. In the *BRS/EBS 3rd MO&O*, the Commission reaffirmed
    the right of qualifying MVPD operators to seek a waiver to opt-out
    of the transition.[^118] HITN asks the Commission to clarify the
    minimum requirements related to the filing of an MVPD opt-out waiver
    request. HITN contends that the current procedure is unfair to
    potentially affected parties, many of whom will be non-profit
    educational licensees, because they must expend large sums of money
    on legal and engineering counsel to defend themselves against poorly
    conceived opt-out waiver requests that fail to analyze properly
    their effect on the operations of neighboring GSA stations, or to
    provide sufficient discussions of mitigation techniques that might
    be employed to allow for the opt-out while not impairing the ability
    of neighbors to transition their channels to the new band
    plan.[^119]

43. HITN urges the Commission to clarify that any MVPD operator seeking
    an opt-out waiver from the mandatory band plan transition must, at a
    minimum: (1) serve neighboring EBS and BRS stations and other
    potentially affected licensees with a copy of the waiver request,
    including an engineering analysis of the predicted impact of the
    opt-out request on such stations; (2) if interference is predicted,
    explain why the MVPD operator cannot provide its services while
    meeting the interference protection requirements contained within
    the new rules; (3) detail specific techniques and efforts the MVPD
    operator will undertake at its sole expense to mitigate any
    interference its special operating parameters would cause to
    affected parties; (4) provide sufficient information about its
    current operations in order to allow for an objective case-specific
    determination of its eligibility and need for a waiver; and (5)
    provide signed statements from all licensees that are proposed to
    participate in the opt-out, thus, making clear that such licensees
    wish to have their stations excluded from the band transition
    plan.[^120] The BRS Rural Advocacy Group opposes HITN's
    petition.[^121]

44. *Discussion.* We decline to adopt the requirements that HITN
    requests with respect to MVPD opt-out waiver requests because, at
    this point, such changes are unnecessary. The last date for filing
    requests to opt out of the transition plan was April 30, 2007, and
    that date has passed.[^122] To the extent HITN contends that a
    specific showing is defective, we will consider its arguments in the
    context of any oppositions or petitions filed against specific
    waiver requests.

### Misaligned channels in overlapping GSAs

45. *Background*. HITN describes a set of issues that have arisen due to
    the overlapping application of several Commission decisions and asks
    the Commission to clarify how opt-out waiver requests should be
    handled under these circumstances. The relevant Commission decisions
    are as follows: first, the Commission established a station's GSA
    based on the station's PSA under the old rules; second, the
    Commission adopted a splitting the football methodology for
    determining a station's GSA when its PSA overlapped another
    station's PSA;[^123] and third, the Commission decided to permit
    qualified MVPDs to opt out of transitioning to the new band plan and
    technical rules.[^124] As a result of these three decisions, when
    one station transitions and its neighboring station (formerly
    overlapping PSA) does not, the channels become misaligned so that,
    for example, an untransitioned high-power high-site A3 channel in
    the opt-out market would be co-channel with a post-transition B2
    channel in the neighboring market.[^125]

46. Because the GSAs of these two stations differ, and each would have a
    right under the rules[^126] to serve part of the same geographic
    area, HITN argues that the Commission must clarify: (1) whether an
    opt-out is possible; (2) whether one station's opt-out would
    preclude its co-channel neighbor from transitioning; and (3) if it
    would not, what interference protection and service rights each
    station would have in such a situation with respect to the
    overlapping area within their GSAs.[^127] The BRS Rural Advocacy
    Group argues that the Commission should reject any suggestion from
    HITN that an opt-out is not possible in the case of overlapping
    GSAs.[^128]

47. *Discussion*. We agree with the BRS Rural Advocacy Group that
    foreclosing an opt-out in the case of overlapping GSAs is
    unnecessary. Instead, the transitioning operator and the
    non-transitioning operator may resolve this situation among
    themselves or the transitioning licensee may file comments for
    Commission consideration in response to the non-transitioning
    operator's opt-out waiver request. Because the deadline for filing
    opt-out waiver requests was April 30, 2007, we have received all of
    the opt-out waiver requests that will be filed. We conclude that
    action by the Commission to resolve a situation that affects few
    operators is inappropriate and unwarranted when the Commission has
    established a process to individually review opt-out waiver
    requests.

## Technical Issues

### Antenna height benchmarking

48. *Background.* In the *BRS/EBS 2nd R&O*, the Commission adopted
    antenna height benchmarking criteria in Section 27.1221, based on
    the concept proposed by WCA, the Catholic Television Network (CTN),
    and the National ITFS Association (NIA). The rule affords licensees
    the flexibility to deploy Time Division Duplex (TDD) and Frequency
    Division Duplex (FDD) technologies in the 2.5 GHz band that present
    a risk of interference that is not present in other bands where only
    FDD is permitted upstream and downstream on designated
    channels.[^129] The antenna height benchmarking concept is intended
    to mitigate that risk, by requiring interference protection in
    certain situations while posing no restrictions on the height of
    base station antennas.[^130] Accordingly, a base station receive
    antenna with a height above average terrain less than or equal to
    the threshold showing of the rule is accorded protection from a
    transmitting antenna that exceeds the threshold showing required by
    the rule. A base station transmitting antenna with a height above
    average terrain equal to or less than the threshold showing of the
    rule is unlikely to cause interference. Finally, a base station
    transmitting antenna greater than the threshold showing would not
    need to protect a base station receive antenna that also exceeds the
    threshold showing.[^131]

49. Several proposals to modify the antenna height benchmarking rule
    were considered by the Commission upon reconsideration of the
    *BRS/EBS 2nd R&O* but were not adopted in the *BRS/EBS 3rd MO&O*.
    Thereafter, WCA convened discussions among those who had raised
    concerns about the benchmarking rule in the hope of reaching a
    consensus, and now offers a revised proposal to modify Section
    27.1221 of the Rules. The proposal would modify the rule by adding
    deadlines by which licensees must act where documented interference
    from a base station operating outside its height benchmarking
    threshold harms a base station operating within its height
    benchmark.[^132] Under WCA's proposal, where the interferer is a new
    or modified facility, it must bring its operation into compliance,
    either by modifying its antenna height within the height benchmark,
    or by limiting its received signal at the other party's base station
    to no more than -107 dBm/5.5 megahertz, within 24 hours of receiving
    a documented interference complaint.[^133] If the interferer is an
    existing base station that is causing interference to a new base
    station, however, the existing licensee would have 90 days to come
    into compliance.[^134] WCA states that its approach strikes a
    balance among the interests of all involved, particularly those
    consumers served by existing facilities who might be forced to
    suffer an extended impairment of service if remedial action was
    required immediately.[^135] WCA also asks that Section 27.1221
    require licensees to provide information concerning their base
    station to any nearby licensee upon request.[^136]

50. WiMAX supports WCA's petition on this issue.[^137] WiMAX contends
    that providing specific deadlines will enhance deployments in the
    2.5 GHz band by eliminating the present regulatory uncertainty and
    providing system operators with the assurance that service to
    consumers from BRS and EBS facilities will not be unreasonably
    impaired.[^138]

51. WCA has also submitted an *Ex Parte* letter seeking to clarify the
    proper interpretation of Section 27.1221 of our rules with regard to
    the following issues. First, WCA asks that Section 27.1221 specify
    that a base station would be within its height benchmark if its
    height *in meters* does not exceed the distance between the
    station's location and the boundary of the GSA, *in kilometers*
    squared, divided by 17.[^139] Second, WCA asks that Section 27.1221
    clarify that when the GSAs of two neighboring licensees do not
    touch, the height benchmark is calculated according to the distance
    between the base station and the nearest boundary of the other
    station's GSA along the radial between the two base stations.[^140]
    Third, WCA asks that Section 27.1221 require licensees to cooperate
    in good faith with each other to avoid interference.[^141]

52. *Discussion.* After considering WCA's proposal, we agree that in the
    event a facility operating outside of its height benchmarking
    threshold would cause interference to an existing licensee,
    specifying a timeline would expedite the coordination process
    between the licensees. While we have some concern that requiring a
    new or modified base station to take corrective action 24 hours
    after receiving notification could prove challenging, we note that
    no party opposed this change. We also believe that placing the
    burden on the interfering operator is appropriate to assure that
    noncompliant stations provide protection to existing services. We
    further adopt WCA's modified proposal regarding the formula used to
    calculate height benchmarking and clarifying how non-contiguous
    licensees calculate their height benchmark. We reject, however,
    WCA's request to mandate good faith cooperation as inappropriate.
    The Commission expects all licensees to cooperate in good faith at
    all times, and we see no purpose in establishing a special good
    faith rule for this situation. Thus, we amend Section 27.1221 of the
    Rules as discussed above.

### Out-of-band emissions

#### For user stations

53. *Background*. In the *BRS/EBS R&O*, the Commission adopted the
    Coalition's proposal to establish out-of-band emission requirements
    for mobile BRS and EBS stations.[^142] For mobile digital stations,
    the Commission established that the attenuation factor shall be not
    less than 43 + 10 log (P) dB at the channel edge and 55 + 10 log (P)
    dB at 5.5 megahertz from the channel edges.[^143] WCA filed a
    petition for reconsideration arguing that these restrictions should
    apply to all user stations, not just mobile digital user
    stations.[^144] In the *BRS/EBS 3rd MO&O*, the Commission found that
    the rules adopted in the *BRS/EBS R&O* were adequate to protect a
    licensee from out-of-band emissions.[^145] The Commission explained
    that it will not modify the emission limits because it has not been
    demonstrated by any party that the emission limits adopted in the
    *BRS/EBS R&O* for these services are inadequate.[^146]

54. WCA has requested that the Commission reconsider its decision on
    this issue and raises the same arguments it presented in its
    previous petition for reconsideration.[^147] WCA states that no
    party to this proceeding has presented a cogent argument against
    requiring all user stations, not just those that are mobile, to
    attenuate their emissions at least 55 + 10 log (P) dB measured 5.5
    megahertz from the appropriate band edge.[^148] Thus, on
    reconsideration, WCA urges that the Commission adopt the
    modification proposed by WCA and require all stations to comply with
    the same spectral mask.[^149]

55. *Discussion*. We affirm our prior decision and decline to make the
    change proposed by WCA. The Commission fully considered WCA's
    arguments and concluded that the existing rules were adequate. In
    the instant petition, WCA does not offer any new arguments beyond
    those previously considered and rejected by the Commission.
    Accordingly, we will maintain our earlier decision regarding
    out-of-band emissions for mobile stations in this service.

#### Measuring out-of-band emissions for contiguous channels

56. *Background.* The band plan adopted in the *BRS/EBS R&O* provided
    for LBS and UBS segments comprised of 12 contiguous 5.5-megahertz
    channels.[^150] The Commission further indicated that these blocks
    would enable licensees to deploy any possible combination of the
    most current FDD and TDD standard channel sizes, which are based on
    five-megahertz channels.[^151]

57. In the Coalition White Paper, WCA, CTN, and NIA suggested that the
    Commission retain the provisions of then-current Section 21.908(a)
    of the Rules and allow all of the various out-of-band emission
    requirements imposed on base stations and user stations to be
    measured at the outermost edges of the combined channels where two
    or more channels (licensed to one or more entities) are used as part
    of the same system.[^152] Although the *BRS/EBS R&O* did not discuss
    the issue of measuring across contiguous channels, the Commission
    adopted Section 27.53(m) which applied out-of-band emission limits
    at the edge of each individual channel.[^153] In the *BRS/EBS
    Modification Order*, the Commission modified Section 27.53(m) to
    state that licensees should measure out-of-band emissions at three
    megahertz from their channel's edges.[^154] WCA filed a petition for
    reconsideration of the *BRS/EBS R&O* asserting that the Commission
    should have adopted the Coalition's unopposed proposal on this
    issue. The *BRS/EBS 3rd MO&O* did not address this issue.

58. On reconsideration, WCA again urges the Commission to adopt the
    Coalition's approach.[^155] WCA contends that imposing the
    out-of-band emission limits at the edge of each channel within a
    system provides no identifiable public benefit, yet reduces spectrum
    capacity and increases the price to consumers of spectrum services
    in this band.[^156] WCA contends that applying the spectral masks
    proposed by the Coalition worked well for the BRS/EBS industry for
    years, and a similar approach is utilized with success for broadband
    Personal Communications Service (PCS).[^157] Accordingly, WCA urges
    the Commission to revise Section 27.53(m) to clarify that where two
    or more contiguous channels are utilized as part of a system, the
    out-of-band emission limits are to be measured at the outermost
    edges of those contiguous channels.[^158] WiMAX supports each of
    WCA's proposed changes to Section 27.53(m) of the Commission's Rules
    for the reasons stated by WCA.[^159]

59. *Discussion*. We agree with WCA that it is appropriate to clarify
    that when two or more contiguous channels are combined to form a
    single channel, out-of-band emissions are to be measured at three
    megahertz from the outermost edges of the combined channel. We
    believe that measuring out-of-band emissions at the outer limit of
    each individual channel, when these channels have been combined into
    one contiguous channel, unnecessarily restrains spectral efficiency
    without any countervailing benefit. Therefore, we will modify this
    rule to allow licensees to measure out-of-band emissions from the
    outermost edges of the combined channels.

#### Interference complaint process

##### Deadlines for compliance

60. *Background*. As discussed above, Section 27.53(m) of the
    Commission's Rules sets forth the out-of-band emission limits
    imposed on BRS and EBS licensees.[^160] The rule requires that for
    fixed and temporary fixed digital stations, the attenuation shall
    not be less than 43 +10 log (P) dB, unless a documented interference
    compliant is received from an adjacent channel licensee.[^161] In
    the event that the complaint cannot be mutually resolved between the
    parties, both licensees of existing and new systems shall reduce
    their out-of-band emissions by at least 67 + 10 log (P) dB measured
    3 megahertz from their channel's edges for distances between
    stations exceeding 1.5 kilometers (km).[^162] In the *BRS/EBS 3rd
    MO&O*, the Commission required that the interfering licensee either
    resolve the interference situation or employ the more rigorous
    emission mask within 60 days after receiving a documented
    interference complaint.[^163]

61. In its petition for reconsideration, WCA asserts that a new or
    modified base station causing out-of-band emission interference
    should meet the more restrictive spectral mask requirement within 24
    hours of receipt of a documented interference complaint from the
    first adjacent channel licensee.[^164] However, an existing base
    station that causes out-of-band emission interference to a new base
    station would, consistent with the current rule, have 60 days to
    comply with the more restrictive spectral mask requirement.[^165]

62. In addition, WCA states that Section 27.53(m) should include special
    provisions for fixed user stations that utilize a transmission
    antenna that is affixed to an outside structure.[^166] WCA asserts
    that those user stations will employ higher gain antennas and tend
    to be higher above ground level, thus posing a risk of interference
    that is not present with other user stations.[^167] Therefore, WCA
    proposes that Section 27.53(m) be revised to require a cure within
    24 hours where an existing base station suffers interference from a
    new or modified outdoor antenna user station, and within 14 days
    where a new or modified base station suffers such interference from
    an existing outdoor antenna user station.[^168]

63. WCA further proposes that Section 27.53(m) be amended to state that,
    in other cases of documented interference from a user station to a
    base station, both licensees have an obligation to cooperate in good
    faith to reasonably mitigate the interference.[^169] WCA states that
    adoption of its proposed revisions will provide licensees with
    greater certainty, reduce the length of time that service to
    consumers is disrupted due to out-of-band emission interference, and
    minimize the number of disputes that are presented to the Commission
    for resolution.[^170]

64. *Discussion*. As with the height benchmarking rule, we have some
    concern about requiring the licensee of a new or modified base
    station to curtail its out-of-band emissions within 24 hours of
    receipt of a documented interference complaint from an existing base
    station. We will adopt WCA's proposal, however, because we are
    committed to insuring that existing facilities are able to provide
    continuous service, without impermissible interference. We also note
    that the proposal is unopposed. Therefore, any new or modified
    outdoor antenna user station, within 24 hours of receipt of a
    documented interference complaint from an existing base station
    regarding out-of-band emissions, must make adjustments to limit
    out-of-band emissions into that adjacent channel operation.

65. We conclude, however, that WCA has not established a need for
    special rules for outdoor fixed user stations. Rather, we believe
    that applying the existing deadlines to disputes between base
    stations and outdoor user stations will be sufficient. WCA has not
    demonstrated that outdoor fixed user stations are sufficiently
    different from other types of facilities to justify a unique 14-day
    deadline for compliance. Furthermore, WCA has not explained why a
    special rule provision mandating good faith cooperation is needed.
    Accordingly, we deny WCA's petition on this issue.

##### Limiting Right to File Documented Interference Complaints to First Adjacent Channel Licensees

66. *Background.* Section 27.53(m)(2) of the Commission's Rules states
    that only adjacent channel licensees may file documented
    interference complaints.[^171] In its petition for reconsideration
    of the *BRS/EBS R&O*, WCA asserts that any LBS or UBS licensee
    should be able to invoke the more stringent dual mask set forth in
    Section 27.53(m)(2) so long as such licensee has a GSA overlapping
    the GSA of the recipient of the request, regardless of whether it is
    licensed to operate on a first adjacent channel.[^172] In the
    *BRS/EBS 3rd MO&O*, the Commission affirmed that the right to file a
    documented interference complaint should be limited to first
    adjacent channel licensees because the level of interference that
    would be most severe and most likely to affect a licensee would be
    from first adjacent channel operations.[^173]

67. WCA again urges the Commission to adopt the proposal advanced by the
    Coalition to allow an out-of-band emission complaint to be filed by
    any LBS or UBS licensee that had an overlapping GSA, regardless of
    whether the interferer is licensed to operate on the first channel
    adjacent to the other party.[^174] While the Commission in the
    *BRS/EBS* *3rd MO&O* acknowledged the potential of interference, it
    reasoned that "the level of interference that would be most severe
    and most likely to affect a licensee would be from adjacent channel
    operations.[^175]

68. While WCA recognizes that the potential for interference due to
    out-of-band emissions increases when the frequencies involved are
    immediately adjacent, it contends permitting all licensees with
    overlapping GSAs to submit documented interference complaints would
    help to avoid harmful interference in the band.[^176] According to
    WCA, because the rules permit TDD and FDD in the band and do not
    require synchronization of TDD operations, interference due to
    out-of-band emissions is a greater threat than in bands like PCS and
    1.7/2.1 GHz Advanced Wireless Services (AWS), where FDD is mandated
    and upstream and downstream channels are designated.[^177]

69. *Discussion*. The Commission has twice affirmed a limitation on the
    right to file a documented interference complaint to first adjacent
    channel licensees because the level of interference that would be
    most severe and most likely to affect a licensee would be to first
    adjacent channel operations. WCA's petition repeats arguments
    previously considered and rejected. We believe that the
    Commission\'s previous decisions strike the right balance between
    protecting against interference that is most likely to occur and
    avoiding unnecessary limitations on a licensee\'s ability to
    operate. Accordingly, we deny WCA's request to amend Section
    27.53(m)(2) to allow any licensee to file a documented interference
    complaint.

### GSA Boundaries

#### Straight Line v. Great Ellipses

70. *Background*. In the *BRS/EBS R&O*, the Commission established GSAs
    for all BRS and EBS stations.[^178] The Commission noted that in
    other bands where it contemplated the development of mobile or other
    wide-area services, it concluded that geographic licensing based on
    predefined service areas has significant advantages over site-based
    licensing because of the greater operational flexibility and reduced
    operating costs for licensees.[^179] In addition, the Commission
    concluded that geographic area licensing reduces administrative
    burdens for consumers, licensees, and regulators by allowing
    licensees to modify, move, and add to their facilities within
    specified geographic areas without prior Commission approval.[^180]
    Therefore, the Commission adopted geographic area licensing for all
    operations in all segments of the band.[^181] The Commission stated
    that the GSAs for BRS and EBS stations would be based on the
    licensee's current protected service area, which would extend
    56.3255 km (35 miles) from the transmitter site, as provided by
    former Sections 21.902(d) and 74.903(d) of the Commission
    Rules.[^182]

71. The Commission also recognized that the rules defining protected
    service areas have changed or otherwise been modified in a manner
    that has resulted in overlapping PSAs being assigned to co-channel
    incumbent BRS and EBS licensees.[^183] Accordingly, in establishing
    GSAs, the Commission adopted a mechanism for resolving overlaps by
    drawing a boundary line or chord through a "football" shaped area
    where the PSAs intersect, with each licensee agreeing to limit the
    interference it generates across the boundary line.[^184]

72. In WCA's Petition for Reconsideration of the *BRS/EBS R&O*, WCA
    requested that the Commission modify Section 27.1206 to clarify how
    GSA boundaries would be established under certain
    circumstances.[^185] To avoid conflicts regarding GSA boundaries,
    WCA proposed that the Commission modify this section of the rules to
    clarify that "great ellipses" should be used instead of straight
    lines or chords to "split the football."[^186] WCA argued that if
    the ellipses were not employed, there would be areas, sometimes as
    wide as a kilometer, which would not be assigned to either
    GSA.[^187] In the *BRS/EBS 3rd MO&O*, the Commission rejected WCA's
    proposal because it received minimal support and the Commission was
    not convinced that the proposal was "necessary or beneficial."[^188]

73. WCA now renews its request to use "great ellipses" in calculating
    GSA boundaries.[^189] WCA argues that the failure to use "great
    ellipses" will result in areas that will not be assigned to any
    licensee because licensees could use different methodologies for
    calculating a straight line.[^190] WCA also cites to support it
    received for its proposal from ComSpec Corp. and CelPlan
    Technologies, Inc. in comments to the *BRS/EBS NPRM*.[^191]

74. *Discussion*. In establishing GSAs, the Commission recognized that
    there would be overlap of geographical service area boundaries in
    certain areas and situations and adopted the industry\'s proposal to
    "split the football" to bifurcate overlapping GSA boundaries as a
    means to determine a licensee's service area. We disagree with WCA's
    proposal that the "great ellipses" methodology should be
    standardized in the rules to establish GSA boundaries to preclude an
    area from being unserved. Licensees have been using the splitting
    the football methodology since January 10, 2005, and it has worked
    well. Accordingly, we affirm the Commission's prior determination
    that WCA's proposal to establish the "great ellipses" methodology to
    establish GSA boundaries is neither necessary nor beneficial.

#### GSA Boundaries -- Pending Applications

75. *Background.* In the *BRS/EBS 3rd MO&O*, the Commission addressed
    the issue of how to handle pending applications for new or modified
    stations in the newly established geographic area licensing
    framework.[^192] The Commission adopted WCA's unopposed suggestions
    as to how to accommodate pending applications.[^193] One of the
    suggestions adopted by the Commission was: "Where there is pending
    as of January 10, 2005, an application for a new incumbent station
    with a PSA that overlaps that of a licensed incumbent station, the
    GSA of the incumbent station is created by splitting the football
    and, if the pending application is ultimately dismissed or denied,
    the territory covered by the GSA of the applied for station reverts
    to the BRS BTA holder (if a BRS application) or to EBS white space
    (if an EBS application)."[^194]

76. Although HITN did not comment on this issue earlier, HITN now seeks
    reconsideration of that decision.[^195] HITN argues that the
    decision not to restore to an incumbent station the portion of a GSA
    split with a pending application is inconsistent with other
    decisions made by the Commission.[^196] Specifically, HITN contends
    that this decision is inconsistent with the treatment of pending
    modification applications, where the pending application does not
    affect the GSA until granted.[^197] HITN contends that the decision
    to take away a portion of an incumbent's GSA because of the pendency
    of an application for a new station is arbitrary and capricious
    because it is inconsistent with the treatment of GSAs involving
    modification applications.[^198]

77. WCA, Sprint Nextel, and WiMAX oppose HITN on this issue.[^199] Those
    parties contend that there is no inconsistency in the two scenarios
    because they involve different situations.[^200] WCA points out that
    in the situation involving modification applications, there is no
    territory to be forfeited, and the only question is where to draw
    the boundary of the GSA.[^201] In contrast, when an application for
    a new station is involved, there are three interested parties: the
    incumbent licensee; the applicant for a new station; and the BRS BTA
    license holder or future EBS licensee.[^202] WCA and WiMAX contend
    that the Commission's approach is reasonable and prevents the
    incumbent licensee from reaping a windfall.[^203] Sprint Nextel
    argues that the auction winners purchased the rights to acquire
    forfeited spectrum and that the Commission cannot award those same
    rights a second time to another party.[^204] Sprint Nextel also
    contends that the two situations are different because applicants
    for new stations had to "satisfy a more stringent threshold showing"
    than applicants for modifications.[^205]

78. *Discussion*. We disagree with HITN that the rules are inconsistent.
    We agree with WCA, Sprint Nextel, and WiMAX that the two situations
    are distinct and that the rules the Commission adopted in the
    *BRS/EBS 3rd MO&O* strike the appropriate balance among the
    interests of incumbent licensees, parties with pending applications
    for new stations, BRS BTA license holders, and possible future EBS
    licensees. We therefore affirm the existing rules and deny HITN's
    petition for reconsideration.

### Grandfathering of EBS facilities under Section 27.55 (a)(4)(iii)

79. *Background.* In the *BRS/EBS R&O*, the Commission established
    signal strength limits at the boundary of each licensee's GSA.[^206]
    In the MBS, the Commission decided to retain the -73.0 dBW/m^2^
    limit for post-transition operations "because it provides adequate
    service for high-power stations operating in the MBS.[^207] No party
    sought reconsideration of the *BRS/EBS R&O* on this point, and the
    rule was not modified in the *BRS/EBS 3rd MO&O*. Now, however, WCA
    asks that we modify the rule and allow licensees in the MBS to
    exceed that limit if the facilities "otherwise comport with the
    Commission's mandate that an EBS licensee be provided with
    facilities in the MBS that are substantially similar to the
    licensee's pre-transition facilities."[^208] WCA contends that the
    rule modification is needed to ensure that EBS licensees are
    provided with comparable facilities after the transition.[^209] WCA
    cites to the Commission's statement in the *BRS/EBS R&O* that the
    transition plan "must provide for the MBS channels to be authorized
    to operate with the transmission parameters that are substantially
    similar to those of the \[EBS\] licensee's current operation."[^210]

80. WiMAX supports WCA's proposed rule change.[^211] CTN and NIA also
    support WCA's proposal, but assert that the grandfathering of signal
    levels should only apply to the EBS licensee's pre-transition
    operations (including modifications to those facilities).[^212] CTN
    and NIA point out that an EBS licensee should not be subject to
    interference from an adjacent licensee that has discontinued
    high-powered video operations and converted to cellularized,
    low-power operations.[^213] In response, WCA agrees that licensees
    should not be allowed to exceed the power limit in perpetuity and
    urges the adoption of CTN's and NIA's proposal with one modification
    (the underlined material represents WCA's proposed modification):

> Following transition, for stations in the MBS, the signal strength at
> any point along the licensee's GSA boundary must not exceed the
> greater of (a) -73.0 + 10 log(X/6) dBW/m², where X is the bandwidth in
> megahertz of the channel, or (b) for facilities that are substantially
> similar to the licensee's pre-transition facilities (including
> modifications [that do not alter the fundamental nature or use of the
> transmissions]{.underline}), the signal strength at such point that
> resulted from the station's operations immediately prior to the
> transition, provided that such operations comported with §
> 27.55(a)(4)(i).[^214]

81. HITN supports WCA's original proposal as striking the best possible
    balance under the circumstances between the competing interests of
    maintaining existing pre-transition service and allowing adjacent
    licensees to fully utilize their spectrum.[^215] HITN urges the
    Commission to require that a grandfathered facility transitioned
    pursuant to this provision inform the Commission of the transition
    and provide the Commission with a copy of its last site-based
    authorization.[^216] HITN also urges that the Commission note in the
    Universal Licensing System (ULS) that the station has been
    grandfathered and that the site-based license be placed in the
    ULS.[^217] WCA responds that such a requirement is unnecessary
    because the post-transition notification required by Section
    27.1235(b) of the Commission's Rules provides the information
    necessary to calculate a predicted signal strength.[^218] Finally,
    HITN asks that the Commission state that any grandfathering shall
    expire ten years after any new rules are adopted pursuant to WCA's
    request, unless the EBS licensee requests an extension.[^219] WCA
    believes that such a requirement would be an unnecessary regulatory
    burden, although it does not object to a requirement that a licensee
    report when it is no longer eligible to be grandfathered because it
    discontinued or modified its pre-transition operations.[^220]

82. *Discussion*. We will amend our rules as suggested by WCA, CTN, and
    NIA and allow MBS licensees to exceed the authorized -73.0 dBW/m²
    limit at the border provided the facilities are needed to comply
    with the Commission's mandate that an EBS licensee be provided with
    facilities in the MBS that are substantially similar to the
    licensee's pre-transition facilities. We agree with the parties that
    the proposed modification is appropriate to ensure licensees are
    provided with substantially similar facilities after the transition.

83. We also agree with CTN and NIA that licensees should not be subject
    to interference from an adjacent licensee and that grandfathering of
    signal levels should only apply to the licensee's pre-transition
    operations (including modification to those facilities). A facility
    in the MBS should not be subject to interference from an adjacent
    licensee that has discontinued high-powered operations and converted
    to cellularized, low-power operations. Therefore, we are amending
    our rules and adopting CTN's and NIA's proposed modification, with
    WCA's noted exception. Accordingly, stations operating in the MBS,
    subsequent to transition, may not exceed the greater of (a) -73 + 10
    logX/6 dBW/m², where X is the bandwidth of the channel in megahertz,
    or (b) for facilities that are substantially similar to the
    licensee's pre-transition facilities (including modifications that
    do not alter the fundamental nature or use of the transmissions),
    the signal prior to the transition, provided that such operations
    comport with Section 27.55(a)(4)(i). We decline to adopt the
    additional filing requirements proposed by HITN because we believe
    the information contained in the post-transition notification will
    provide adequate information to all licensees.

### Technical corrections

84. We make several rule corrections on our own motion. Specifically, we
    correct an error in the channel plan for post-transition EBS Channel
    KG2. Section 27.5(i)(2)(iii) of the Commission's Rules mistakenly
    assigns EBS channel KG2 at 2615.33333--261**6**.66666 MHz.[^221] The
    correct assignment for EBS Channel KG2 is 2615.33333--261**5**.66666
    MHz. We further correct an error in Section 27.5(i)(2)(iii), which
    mistakenly assigns Channels G1-G3 to the BRS. The correct assignment
    of channels G1-G3 is to the EBS. We also correct an error in
    Sections 27.55(a)(4)(i) and (ii), which reference 47 dB \[mµ\]V/m.
    The correct reference is 47 dBµV/m. In addition, we correct a
    typographical error in Section 27.53(m)(4) of our Rules. The second
    sentence states that "Mobile Service Satellite licensees. . ." when
    it should state "Mobile Satellite Service licensees . . . ."
    Finally, we correct an omission and incorporate the existing license
    terms for BRS and EBS into Section 27.13 of the Commission's
    Rules.[^222]

## Simultaneous Operation on Old and New BRS Channels 1 and 2/2A

85. *Background*. In the *BRS/EBS 3rd MO&O*, the Commission discussed
    the relationship between the transition within the 2.5 GHz band and
    the relocation of the BRS Channels No. 1 and No. 2/2A incumbents
    currently operating within the 2150-2160/62 MHz band.[^223] In that
    regard, the Commission held that licensees on these channels may
    operate in either 2150-2156 or 2496-2500 MHz (for BRS Channel 1) or
    2156-2160/62 or 2686-2690 MHz band (for BRS Channel 2/2A)
    pre-transition, but not in both bands.[^224]

86. WCA seeks reconsideration of the Commission's decision prohibiting
    BRS Channels No. 1 and No. 2 from simultaneously operating in their
    old channel locations in the 2150-2160/62 MHz band and their
    temporary, pre-transition locations at 2496-2500 MHz (BRS Channel 1)
    and 2686-2690 MHz (BRS Channel 2) before they are transitioned to
    their new permanent channel locations at 2496-2502 MHz (BRS
    Channel 1) and 2618-2624 MHz (BRS Channel 2).[^225] WiMAX supports
    WCA\'s position.[^226]

87. *Discussion*. WCA argues persuasively that it will be impossible to
    make a "flash cut" of all subscribers from the old frequency band to
    their pre-transition locations in the 2.5 GHz band and that it is
    therefore necessary to have simultaneous operation in order to
    ensure a seamless relocation.[^227] We also are concerned that
    attempting a "flash cut" will unnecessarily jeopardize service to
    existing customers. Thus, we agree with WCA and conclude that BRS
    Channels 1 and 2/2A licensees may operate simultaneously in their
    old channel locations in the 2150-2160/62 MHz band and their
    temporary, pre-transition locations at 2496-2500 MHz (BRS Channel 1)
    and 2686-2690 MHz (BRS Channel 2) until every subscriber is
    relocated to the 2.5 GHz band, at which point the licensees must
    cease all operations in the 2150-2160/62 MHz band.

##  2496-2502 MHz Band Sharing Issues 

88. *Background.* The new BRS Channel 1 band at 2496-2502 MHz, relocated
    from the 2150-2156 MHz band, partly overlaps a number of services in
    the 2483.5-2500 MHz band, including Broadcast Auxiliary Service
    (BAS) Channel A10 operations at 2483.5-2500 MHz. As an initial
    matter, we note that a pending petition for reconsideration filed by
    the Society of Broadcast Engineers asks us to adopt a revised band
    plan for BAS Channels A8-A10 that would remove BAS operations from
    the 2496-2502 MHz band.[^228] We defer consideration of this matter
    to a separate decision. The 2496-2502 MHz band also partially
    overlaps the Big LEO MSS band at 2483.5-2500 MHz, with Code Division
    Multiple Access (CDMA) MSS downlink operations operating on an
    unprotected basis vis-à-vis BRS licensees.[^229] In the *Big LEO
    Order on Reconsideration and AWS 5th MO&O*, to provide protection to
    BRS-1 operations, the Commission codified requirements for CDMA MSS
    operators in the 2483.5-2500 MHz band not to exceed the existing,
    world-wide, ITU power-flux density (pfd) coordination trigger limits
    established for the band.[^230] These pfd limits are set forth in
    the ITU Radio Regulations at Appendix 5, Annex 1 (ITU-RR App. 5,
    Annex 1).[^231] The Commission stated that these coordination
    trigger limits would permit BRS-1 licensees to construct and operate
    comparable facilities to those being relocated from the 2150-2156
    MHz band.[^232] Although the Commission recognized that the pfd
    coordination threshold values in ITU-RR App. 5, Annex 1 do not
    address all potential interference cases between MSS and BRS, such
    as mobile terrestrial use, the lower gains of antennas associated
    with mobile handheld units make them less vulnerable to the
    emissions of satellite systems than antennas of fixed systems, and
    thus, the ITU-RR App. 5, Annex 1 pfd coordination threshold values
    should protect mobile terrestrial uses as well.[^233]

89. The Commission noted that Globalstar, the only currently operational
    MSS provider in the 2483.5-2500 MHz band, has the capability to
    control its pfd in the 2496-2500 MHz band by limiting the number of
    users on a particular channel in a given geographical region.[^234]
    The Commission also noted that, since BRS-1 systems were not yet
    operational, BRS-1 networks could be designed to accept
    interference-to-noise ratios higher than they might find in a
    non-shared environment, which should compensate for the effect of
    low-level, external noise sources, thereby yielding systems with the
    same throughput, availability and operating costs as currently exist
    in the 2150-2156 MHz band.[^235] To further protect BRS-1
    operations, the Commission stated that if MSS operators intend to
    operate at power levels that exceed the codified pfd limits, or if
    actual operations routinely exceed the codified pfd limits, those
    operators are required to receive approval from each operational
    BRS-1 system in the region in which the pfd limits are
    exceeded.[^236] Furthermore, the Commission emphasized that, if the
    MSS footprint overlaps multiple BRS areas, later arriving BRS
    operators are not obligated to accept higher pfd limits previously
    approved by an adjacent BRS operator.[^237]

90. BellSouth's petition for reconsideration of the *Big LEO Order on
    Reconsideration and AWS 5th MO&O* requests that the Commission
    modify the adopted pfd limits in the 2496-2500 MHz band to
    correspond to the more stringent pfd limits set forth in draft U.S.
    proposals to the WRC-07 regarding protection of terrestrial
    operations in the 2500-2690 MHz band from satellite downlink
    interference.[^238] BellSouth argues that the pfd limits codified by
    the Commission in the *Big Leo Order on Reconsideration and AWS 5th
    MO&O* will not be sufficient to provide BRS protection from
    MSS.[^239] According to BellSouth, the current pfd limits are
    approximately 10 dB less stringent than the draft U.S. proposal for
    the 2500-2690 MHz band, and therefore, provide less interference
    protection than the draft proposal.[^240] WCA agrees with BellSouth,
    though WCA supports the WRC-07 proposed limits somewhat reluctantly,
    since it is still not convinced that even the proposed pfd limits
    can fully protect BRS operations within the United States.[^241] WCA
    claims that the expectation that most MSS operations will take place
    below 2495 MHz does not afford BRS real protection against
    co-channel interference.[^242] BellSouth's position is also
    supported by Clearwire[^243] and WiMAX.[^244]

91. Globalstar objects to modifying the pfd limits set for MSS
    licensees.[^245] Specifically, Globalstar claims that MSS providers
    have been able to operate service downlinks in the 2483.5-2500 MHz
    band since the initial allocation was made at the 1992 World
    Administrative Radio Conference, and that the pfd levels for its
    operational band adopted initially at the 1995 World
    Radiocommunication Conference (WRC 95), and now codified in the
    Commission's rules, were extensively studied and adopted at
    WRC-95.[^246] WCA refutes Globalstar's characterization, claiming
    that the pfd limits Globalstar refers to relate to co-frequency
    operations with fixed systems and not the types of mobile systems
    that BRS licensees are likely to deploy in the 2496-2502 MHz
    band.[^247] BellSouth says that maintaining the existing pfd rules
    for 2496-2500 MHz would "unfairly, unjustifiably and inexplicably
    result in one standard for domestic licensees and another standard
    for the international community."[^248]

92. Globalstar claims that while the Commission anticipated that both
    BRS and MSS entities would have to employ engineering solutions --
    such as network design that would permit BRS to operate with higher
    interference-to-noise ratios -- BellSouth's proposed changes to the
    pfd limits would render three of Globalstar's channels largely
    unusable, undermining the shared nature of operations in the
    band.[^249] According to Globalstar, such an outcome is particularly
    unfair in light of the large amount of spectrum available in the
    larger BRS band.[^250] WCA claims that Globalstar's rationale is
    flawed because it does not take into account MSS spectrum as a whole
    and does not consider BRS spectrum that it or any other party could
    potentially lease.[^251]

93. *Discussion.* BellSouth accurately describes how U.S. commercial
    interests, operating through the U.S. International
    Telecommunication Union --Radiocommunication (ITU-R) process,
    submitted a study specifying the pfd limits they believe are
    necessary to protect terrestrial base stations and mobile stations
    from potential interference caused by selected satellite systems in
    the 2500-2690 MHz band. [^252] This study is one of several studies
    submitted to ITU-R Joint Task Group 6-8-9 (JTG 6-8-9) by a number of
    administrations to assist in the development of Conference
    Preparatory Meeting (CPM) text that was prepared for WRC‑07 within
    the ITU-R. The U.S. study indicated that a pfd limit about 10 dB
    lower than the codified MSS/BRS-1 pfd limits for 2496-2500 MHz would
    be required to protect the terrestrial systems from the satellite
    systems that were studied. This study, however, involves the
    adjacent band beginning at 2500 MHz, not Globalstar's band below
    2500 MHz; there is no international proposal to change the pfd
    limits in Globalstar's band. Furthermore, this study only addresses
    sharing with geostationary and highly elliptical satellites and does
    not consider a low-orbit satellite constellation such as
    Globalstar's. The study also assumes that the satellite system
    operates across the full terrestrial band instead of the situation
    at 2496-2500 MHz, which is a partial-band overlap.[^253]
    Additionally, the CPM text outlines a number of potential mitigation
    measures that terrestrial systems could use to compensate for
    possible increase in noise levels from satellite systems, if it
    should occur.[^254] Specific pfd limits or coordination thresholds
    were not determined at the CPM and were selected at the
    WRC-07.[^255] Finally, because the Commission rejected a request to
    allocate portions of the 2500-2690 MHz band for MSS,[^256] there is
    no reason for the United States to consider the impact of more
    stringent pfd limits on the operation of MSS systems in the
    2500-2690 MHz band at the CPM or WRC.

94. The WRC-07 adopted pfd limits for MSS systems operating in the
    2500-2535 MHz that are close to those put forth in the U.S. CPM
    contribution, mentioned above, and in the U.S. proposals to the
    WRC-07.[^257] In doing so, the ITU stated that for MSS systems that
    were operational prior to the end of WRC-07, the existing
    coordination thresholds pfd values applied.[^258] These are the same
    pfd values that the Commission codified for the protection of
    terrestrial systems in 2495-2500 MHz in the *Big LEO Order on
    Reconsideration and AWS 5th MO&O*, in which the Commission
    anticipated that both BRS and MSS entities would be able to develop
    and operate systems on a shared basis using the specified pfd, and
    employ engineering solutions as necessary to accommodate sharing
    with the other service. We believe that this is still the proper
    approach, and therefore, we deny BellSouth\'s Petition. The use of a
    study that addresses different satellite systems operating in an
    adjacent band is an insufficient basis to make changes to the pfd
    limits, changes that would undermine the shared nature of operations
    in the band. We continue to believe that the currently codified pfd
    limits will permit a shared solution if proper engineering
    techniques are applied to the MSS and BRS systems.

## BRS 2/2A Channel Issues

95. *Background*. In the *BRS/EBS 3rd MO&O*, the Commission affirmed
    that the splitting the football methodology it adopted in the
    *BRS/EBS R&O* should be applied to GSA overlaps of all BRS and EBS
    licensees, including BRS Channels 1 and 2/2A licensees.[^259] Ad Hoc
    MDS Alliance[^260] requests that the Commission modify its rules so
    that primary BRS Channel 2 licensees are not required to "split the
    football" with either BRS Channel 2A or secondary BRS Channel 2
    incumbent licensees when they transition to the 2.5 GHz band.[^261]

96. Ad Hoc MDS Alliance argues that under the current rules, BRS Channel
    2A licensees will uniquely and unilaterally benefit from a license
    upgrade, a significant part of which will be taken directly out of
    the BRS Channel 2 licensed areas at the expense of the BRS Channel 2
    licensees.[^262] Specifically, Ad Hoc MDS Alliance claims that, in
    this situation, an incumbent BRS Channel 2A licensee receives a
    licensing increase of 50% during the transition/relocation process
    by being upgraded from a four-megahertz license at 2156-2160 MHz to
    a six-megahertz license at 2618-2624 MHz, and that a secondary MDS
    Channel 2 incumbent licensee is getting a similar windfall by being
    upgraded from a four-megahertz primary license at 2156-2160 MHz to a
    six-megahertz primary license at 2618-2624 MHz.[^263]

97. Ad Hoc MDS Alliance recommends that this situation be corrected by
    not requiring primary BRS Channel 2 licensees to "split the
    football" with either BRS Channel 2A or secondary BRS Channel 2
    incumbent licensees.[^264] Ad Hoc MDS Alliance notes that it knows
    of no situation -- and believes there is none -- in which an
    incumbent BRS Channel 2A licensee overlaps with a primary BRS
    Channel 2 incumbent licensee by as much as 50%.[^265] Therefore, Ad
    Hoc MDS Alliance argues that, even if the primary BRS Channel 2
    incumbent licensee in an overlap situation is afforded the full
    35-mile geographic service area normally contemplated by Section
    27.1206(a)(1) of the Rules[^266] -- that is, the licensee obtains
    the entire football rather than splitting it -- the incumbent BRS
    Channel 2A will receive a substantial gain in the transition to
    2618-2624 MHz because the increase in channel capacity from 4
    megahertz to 6 megahertz is greater than the relative loss of
    overlapped territory to the primary BRS Channel 2 incumbent.[^267]
    Ad Hoc MDS Alliance explains that because the 2-megahertz increase
    in licensed area by itself is greater than the area the Channel 2A
    licensee would obtain by splitting the football, the Channel 2A
    licensee still would net a substantial increase in licensed area at
    2.5 GHz even when the adjacent BRS Channel 2 (former Channel 2
    primary licensee) is awarded all of the territory within the
    football.[^268]

98. WCA opposes Ad Hoc MDS Alliance's proposal.[^269] WCA states that
    any material departure from the standard splitting the football
    rules at this late date will frustrate ongoing efforts to make
    productive use of the 2.5 GHz band.[^270] WCA notes that Sprint
    Nextel and other licensees are already in the midst of the network
    design implementation process, and argues that Ad Hoc MDS Alliance's
    failure to raise its concerns in a timely manner is critical.[^271]
    Ad Hoc MDS Alliance denies that it raised this issue too late.[^272]

99. WCA further argues that grant of Ad Hoc MDS Alliance's approach will
    yield a windfall for Ad Hoc MDS Alliance's members as it relates to
    the 4 megahertz that is shared between BRS Channels 2 and 2A
    licensees.[^273] WCA states that where there is an overlap between
    the PSA of a BRS Channel 2 licensee and the PSA of a BRS Channel 2A
    licensee, both stations had been co-primary, but the overlap area
    was effectively unused by either licensee because of the applicable
    interference protection rules.[^274] Thus, notes WCA, when that 4
    megahertz is allocated to exclusive GSAs using the splitting the
    football approach, the effect is to give each party access to
    territory that it could not previously serve.[^275]

100. *Discussion*. We agree with WCA that Ad Hoc MDS Alliance has not
     justified a change in Section 27.1206(a)(1) of the Rules that would
     exempt primary BRS Channel 2 licensees from splitting the football
     with either BRS Channel 2A or secondary BRS Channel 2 incumbent
     licensees. Initially, we note that Ad Hoc MDS Alliance ignores the
     fact that secondary BRS Channel 2 and 2A licensees were secondary
     to AWS, not to other BRS licensees. Moreover, maintaining the rule
     as adopted will provide clarity to all licensees, and will not
     overturn any of the planning which has been ongoing over the years
     since Section 27.1206(a)(1) of the Rules was adopted. The rule
     gives all Channel 2 licensees an area in which they have exclusive
     use of all 6 megahertz of Channel 2, and does not affect the rights
     of primary BRS Channel 2 licensees that are to be relocated by AWS
     auction winners. Accordingly, we reject Ad Hoc MDS Alliance's
     proposal and affirm the use of our regular splitting the football
     rule for BRS Channel 2 and 2A licensees.

## Grandfathered E and F Group Channel EBS Stations

101. *Background.* In 1983, the Commission redesignated the E and F
     Group Instructional ITFS channels from the ITFS service to the
     MDS.[^276] The Commission took this action in an effort to spur the
     development of MDS to promote effective and intense utilization of
     the spectrum leading to its highest valued use.[^277] As part of
     its decision, the Commission grandfathered ITFS licensees operating
     on the E Group and F Group channels subject to the following
     limitations:

> Grandfathered ITFS stations operating on the E and F channels will
> only be protected to the extent of their service that is either in the
> operation or the application stage as of May 26, 1983. These licensees
> or applicants will not generally be permitted to change transmitter
> location or antenna height, or to change transmission power. In
> addition, any new receive stations added after May 26, 1983 will not
> be protected against interference from MDS transmissions. In this
> fashion, all facets of grandfathered ITFS operations were frozen as of
> May 26, 1983.[^278]

The Commission stated that "there may be instances where the natural
evolution of an ITFS station may reasonably require the addition of
receive stations without changing the nature or the scope of the ITFS
operation" that would justify the addition of additional receive
sites.[^279] In those instances, the Commission stated that the
grandfathered ITFS licensee could request a waiver of Section
74.902(c).[^280] The Commission's Rules provided that "in those areas
where Multipoint Distribution Service use of these channels is allowed,
Instructional Television Fixed Service users of these channels will
continue to be afforded protection from harmful co-channel and adjacent
channel interference from Multipoint Distribution Service
stations."[^281]

102. In the *BRS/EBS FNPRM*, the Commission sought comment on how to
     modify its rules concerning grandfathered E and F Group channel
     ITFS stations to equitably allow both MDS and ITFS stations to
     provide advanced broadband wireless services.[^282] The Commission
     envisaged three scenarios: (1) the PSA of the grandfathered E and F
     Group EBS licensee almost entirely overlaps the PSA of the
     co-channel MDS licensee; (2) the PSA of the grandfathered E and F
     Group EBS licensee overlaps to some extent, but not as much as in
     the first scenario, and (3) the grandfathered E and F Group EBS
     licensee remains frozen, unable to modify its system, and there is
     no co-channel MDS licensee.[^283]

103. In the *BRS/EBS* *2nd R&O*, the Commission concluded that where
     there is no overlap between the EBS and BRS licensees, the
     Commission would free up the grandfathered E and F Group channel
     EBS licensees, grant these licensees a GSA, and allow them to
     modify or assign their license.[^284] In cases where the GSAs of
     grandfathered EBS and BRS licensees overlap, but that overlap is
     less than 50%, the Commission would divide the GSAs by splitting
     the football, as is done with other overlapping GSAs.[^285] Both
     the BRS and EBS licensees would be free to add, modify, and remove
     facilities within their GSAs, consistent with the Commission's new
     technical rules. In addition, the grandfathered EBS facility would
     be free to assign its license.[^286] In cases where the GSAs
     overlap 50% or greater, the Commission concluded that different
     treatment was warranted because splitting the football might no
     longer be the best solution for accommodating the needs of both
     licensees. In those cases, the Commission established a 90-day
     mandatory negotiation period during which both the BRS and EBS
     licensees would have an explicit duty to work to accommodate each
     other\'s communications requirements. If, at the end of 90 days,
     the parties could not reach a mutual agreement, the Commission
     would then split the football on its own accord.[^287]

104. In their petitions for reconsideration, NY3G, Line of Site, Inc.
     (LOSI), and BellSouth argue the Commission should address
     significant overlap situations by dividing channels rather than
     dividing the geographic overlap itself, which would ensure that
     each party involved could provide full coverage of its service area
     on at least some channels.[^288] They recommend that the EBS
     licensee receive the high-power channel (E4 or F4) and one
     low-power channel and the BRS licensee receive two low-power
     channels.[^289] Specifically, BellSouth recommends that BRS
     licensees be assigned the E1/F1 and E2/F2 channels and the EBS
     licensees assigned the E3/F3 and E4/F4 channels.[^290]

105. CTN, NIA, and Miami-Dade maintain that the Commission has already
     considered and rejected NY3G's proposal to mandate a division of
     channels between the licensees.[^291] CTN and NIA contend that NY3G
     is still attempting to divide the channels for all grandfathered
     EBS and BRS licensees with GSA overlaps of more than 50% in a way
     that will benefit NY3G.[^292]

106. NextWave recommends that if the parties cannot reach an agreement
     within the mandatory 90-day negotiation period, the Commission
     should adopt a formula for splitting the football rather than the
     Commission randomly splitting the football on its own accord.[^293]
     Specifically, NextWave recommends that the Commission require
     licensees to split the spectrum between them, within 30 days
     following the end of 90-day mandatory negotiation period according
     to the following procedure.[^294] First, the licensees would
     determine the total population in the overlap area based upon the
     most recent official United States Census numbers.[^295] Licensees
     can privately agree whether or not they will use population growth
     factors in this calculation.[^296] Any discrepancy between the
     population numbers of the licensees will be averaged for purposes
     of all calculations.[^297] Then the overlap area would be split
     using the traditional splitting the football methodology.[^298] The
     population contained in each licensee\'s half or slice of the
     overlap area would then be calculated and each licensee\'s
     corresponding relative percentage of the total population would be
     calculated.[^299] This percentage would then be used to split the
     spectrum among the licensees in relative proportion to the
     percentage of population each licensee commands in the overlap
     area.[^300] The percentage would be rounded to the percentile
     closest to 0%, 25%, 50%, 75% or 100%.[^301] A licensee with a
     population ratio closest to 25%, for example, would retain one of
     the four channels.[^302] Finally, the licensees would decide among
     themselves, according to their individual educational or business
     needs, the channels each would retain and provide a joint notice to
     the Commission.[^303] The grandfathered EBS licensee would have a
     right of first refusal to access the MBS channel.[^304]

107. By way of example, NextWave offers two scenarios. First, where the
     geographic service areas of each licensee completely overlap, and
     thus the licensees have command of the same population number, each
     licensee would be accorded half of the channels to serve the entire
     overlapping area (for a four channel group, each licensee would
     receive two channels).[^305] In this scenario, the licensees would
     only need to determine which channels each will retain, and provide
     the Commission with joint notice.[^306] Second, where the
     overlapping geographic service area contains a population of
     400,000, and where one licensee\'s sliver or half of the
     overlapping area includes a population of 100,000, and the other
     licensee\'s sliver or half of the overlapping area includes a
     population of 300,000, the licensee with the greatest population
     would receive three channels to serve the entire overlapping area
     (300,000 / 400,000 = 75% = 3 channels), and the other licensee
     would receive one channel (100,000 / 400,000=25% = 1
     channel).[^307] NextWave argues that this approach serves the
     public interest by avoiding the random partitioning of the
     geographic service area by the Commission under the presently
     adopted approach.[^308] The resolution would provide each licensee
     with the ability to preserve its entire geographic service area and
     the flexibility to serve the entire overlap area with a lesser
     amount of spectrum.[^309]

108. LOSI, CTN, and NIA oppose NextWave's methodology.[^310] LOSI states
     that under NextWave's approach only the overlap is assessed,
     divided, and its spectrum apportioned.[^311] LOSI contends that,
     under this method, a licensee might have all four channels in its
     non-overlapping area but only a fractional channel within the
     overlap area.[^312] LOSI argues that such a solution would
     necessitate the licensing of apportioned overlap areas under new
     separate call signs, and could ultimately lead to confusion.[^313]

109. If after considering the petitions on this matter, the Commission
     retains the mandatory 90-day negotiation period, LOSI requests that
     the Commission provide parties with some guidance as to what is
     expected from them during and following the negotiation
     period.[^314] LOSI suggests that the Commission establish: (1) a
     reporting requirement on the results of such negotiations; (2) a
     mechanism for Commission approval of negotiated settlements; (3) a
     timeframe and mechanism for the filing of applications needed to
     implement a negotiated settlement; (4) a mechanism for Commission
     intervention should a party refuse to negotiate; (5) penalties for
     parties refusing to negotiate; and (6) dispute resolution
     procedures.[^315]

110. CTN, NIA, and BellSouth oppose LOSI on this matter.[^316] CTN and
     NIA state that certain of the proposed requirements, such as
     Commission intervention where a party refuses to negotiate and
     penalties for parties refusing to negotiate could lead to disputes
     as to when a party determines the other party is refusing to
     negotiate.[^317] With respect to proposals such as reporting on the
     negotiation results and mechanisms for filing applications, CTN and
     NIA describe these as unnecessary, as the parties reaching a
     negotiated solution will out of necessity file applications with
     the Commission if required to implement the solution.[^318]
     BellSouth states that it is not necessary for the Commission to
     police private negotiations, which will either succeed because the
     parties can achieve a better result than the Commission's default
     solution, or will fail because at least one party believes that the
     Commission's solution better suits the party's communications
     requirements.[^319]

111. *Discussion*. We conclude that we should retain the existing
     Section 27.1206 of the Rules[^320] to eliminate overlaps of 50
     percent or greater between grandfathered E and F Group channel EBS
     stations and co-channel incumbent BRS stations by splitting the
     football, as opposed to adopting the petitioners' request to split
     the channels. Splitting the football would permit grandfathered E
     and F Group EBS licensees, which have been providing service for 20
     years, to modernize their systems to better serve the public,
     including allowing EBS licensees to transition to low-power
     cellularized operations, which increases spectrum utilization.
     Granting the flexibility that negotiations between affected parties
     allows is consistent with the *BRS/EBS R&O's* approach of utilizing
     geographic area licensing and promoting greater flexibility, and
     encourages negotiations and market-based solutions to overlap
     problems. In addition, this procedure tailors resolutions of
     overlap situations to the circumstances of each class of licensee.

112. Resolving significant overlap situations by dividing channels
     rather than dividing the geographic overlap itself is an approach
     we have already considered and rejected.[^321] We note that under
     this approach, one licensee would receive only 5.5 megahertz of UBS
     spectrum,[^322] which may be insufficient to provide any service.
     While certain commercial commenters support this approach, it has
     not received support from any educational commenter. In addition,
     this approach assumes that educational licensees would not be
     interested in providing broadband-type services. We have seen no
     support for this assumption. We also find that the record does not
     support NextWave's population based proposal which is founded on
     the premise that population should be the primary basis for
     assessing a licensee's channel requirements. Under NextWave's
     proposal, for example, in areas where there is a large discrepancy
     in population, a licensee may be relegated to one channel, which
     may be insufficient to meet its needs. Furthermore, NextWave's
     proposal is complicated and difficult to administer, and no other
     commenter supports it. Accordingly, we deny NY3G's, NextWave's, and
     BellSouth's petitions on this issue.

113. We next address LOSI's proposal that, having retained the mandatory
     90-day negotiation period, we provide parties with some guidance as
     to what is expected from them during and following the negotiation
     period. We find that LOSI has not shown that its proposed
     requirements, which are supported by no other commenter, are
     necessary or appropriate.

114. We note that NY3G filed a supplement to its petition for
     reconsideration,[^323] which was opposed by Sprint Nextel.[^324]
     Although this supplement was not timely filed, we will address the
     substance of the petition to clarify a misunderstanding. NY3G asks
     the Commission to adopt a rule to enable co-channel BRS and EBS
     licensees to exchange or transfer service area territory between
     one another to facilitate intersystem coordination of co-channel
     operations or to reduce or mitigate the harmful effects of
     interference.[^325] We do not adopt a rule because it is
     unnecessary to do so. All BRS and EBS licensees, including
     grandfathered E and F Group channel EBS licensees and incumbent BRS
     licenses that "split the football" with such licensees, may
     partition, disaggregate, assign, or transfer their spectrum.[^326]
     The use of the splitting the football mechanism to divide
     overlapping service areas does not preclude subsequent agreements
     to partition, disaggregate, assign, or transfer spectrum. NY3G
     argues that because of the eligibility restrictions on EBS
     spectrum, EBS licensees cannot partition their service areas or
     disaggregate their spectrum to reach a resolution with their
     co-channel BRS licensees.[^327] The E and F channels, however, are
     classified as both EBS and BRS spectrum.[^328] We have granted
     waivers to allow assignments or transfers of grandfathered EBS
     stations to BRS licensees upon a suitable public interest
     showing.[^329] Upon a similar showing, an EBS licensee could
     partition part of its service area or disaggregate its spectrum to
     its co-channel BRS licensee.

## Gulf of Mexico Proceeding and Related Issues

115. *Background*. On May 21, 1996, the Gulf Coast MDS Service Company
     (Gulf Coast) filed a Petition for Rulemaking requesting that the
     Commission amend its rules to permit licensing of MDS and ITFS
     spectrum in the Gulf of Mexico.[^330] On May 3, 2002, the
     Commission issued the *Gulf NPRM* seeking comments on whether to
     authorize two licenses in the Gulf of Mexico and whether to adopt
     eligibility restrictions to avoid excessive concentration of
     licenses.[^331] In the *Gulf NPRM*, the Commission proposed to
     establish a GSA in the Gulf of Mexico ("Gulf Service Area"),
     extending approximately 12 nautical miles from the United States
     coastline.[^332]

116. On April 2, 2003, in the *BRS/EBS NPRM*, the Commission
     incorporated the Gulf of Mexico proceeding into the BRS/EBS
     proceeding and established a Gulf Service Area.[^333] The
     Commission noted that it did not receive any comments on its
     proposal to exclude ITFS channels, sought further comment on
     whether to reallocate ITFS channels in the Gulf Service area for
     other uses, and sought comment on whether it should consider
     unlicensed uses in the Gulf Service Area.[^334]

117. In the *BRS/EBS FNPRM*, the Commission noted that WCA and PetroCom
     (the successor in interest to Gulf Coast MDS Service Company)
     disagreed on the boundary for the Gulf Service Area.[^335] PetroCom
     preferred establishing the boundary at the land water-line while
     WCA preferred a boundary twelve nautical miles from shore. [^336]
     The Commission sought comment on the boundaries for the Gulf
     Service Area.[^337] The Commission expressed concern that the
     record was not sufficiently developed to resolve issues concerning
     the amount of spectrum to license in the Gulf Service Area,
     competitive bidding, partitioning and disaggregation, interference
     protection requirements, construction periods, and the length of
     the license term, and the Commission asked for additional comment
     on these issues.[^338]

118. In the *BRS/EBS 2nd R&O*, the Commission found that the record did
     not demonstrate a demand for BRS or EBS operations in the Gulf of
     Mexico, that the record was not sufficiently developed to resolve
     issues concerning the amount of spectrum to license in the Gulf
     Service Area, and that no parties demonstrated an interest in
     providing BRS or EBS in the Gulf of Mexico.[^339] In light of these
     findings, the Commission decided to reverse its decision to create
     a Gulf Service Area for BRS or EBS.[^340] The Commission then
     terminated the Gulf Service proceeding, but reserved the right to
     revisit the Gulf Service Area issue for BRS and EBS should future
     circumstances warrant.[^341]

119. Now, the American Petroleum Institute (API) asks the Commission to
     reconsider its decision to terminate the Gulf Service
     proceeding.[^342] To further the nation's energy policies, API
     states that its members require access to the 2.5 GHz spectrum
     either directly as private licensees or through customer
     relationships with Sprint Nextel or other carriers.[^343] API
     recommends that the Commission establish a Gulf Service Area,[^344]
     adopt essentially the same rules in the Gulf as are used for BTA
     licensees elsewhere,[^345] make available the full range of BRS
     spectrum to potential Gulf Service Area licensees,[^346] permit
     Gulf Service Area licensees to negotiate interference rights with
     other BTA authorization holders and incumbents,[^347] divide the
     Gulf Service Area into three zones for licensing purposes,[^348]
     and consider rules authorizing BRS service in the offshore areas of
     the Atlantic and Pacific Oceans.[^349]

120. WCA and Sprint Nextel oppose API's petition on procedural
     grounds.[^350] They argue that the petition is procedurally
     defective because API relied on information not previously
     presented to the Commission.[^351] In addition, WCA argues that
     because the Commission has never sought comment on whether to
     license BRS spectrum off the outer continental shelves in the
     Atlantic and Pacific Oceans, to do so here would be beyond the
     scope of this proceeding, and consequently, a violation of the
     Administrative Procedure Act.[^352] Aside from their procedural
     concerns, Sprint Nextel and WCA emphasize that they are concerned
     about interference between land-based facilities and Gulf
     facilities, caused, in part, by "ducting." [^353] WCA recommends
     that the Commission draw the innermost boundary of a new "Gulf
     Service Area" at the limit of the territorial waters of the United
     States in the Gulf, approximately twelve nautical miles from the
     coastline.[^354] Sprint Nextel recommends that any Gulf Service
     Area boundary should begin at the greater distance of either: (1)
     the edge of the land-based BRS-EBS licensee's GSA boundary; or (2)
     approximately 12 nautical miles from the shoreline at mean high
     tide.[^355]

121. In addition, WCA submits the following proposals if the Commission
     decides to establish a Gulf Service Area. WCA asks that the
     Commission adopt the licensing and technical rules WCA proposed for
     the Gulf of Mexico in WCA's earlier filings in this
     proceeding.[^356] Second, WCA asks that any auction winner's Gulf
     Service Area exclude the circular 35-mile radius GSAs of any
     incumbent BRS or EBS licensee, just as the service area awarded to
     any land-based BRS BTA auction winner excluded the protected
     service area of an incumbent pursuant to the Commission's
     Rules.[^357] Third, WCA argues that the BRS BTA authorizations for
     areas bordering the Gulf should extend at least to the boundaries
     of the counties that comprise the BTA, including areas that are
     within counties but beyond the coastline.[^358] Fourth, WCA states
     that the Commission should follow the approach taken in its recent
     proceedings regulating cellular service in the Gulf and establish a
     "Gulf Coastal Zone" that would extend from the boundaries of the
     BTAs bordering the Gulf to the limit of the territorial waters of
     the United States. Within the Gulf Coastal Zone, the holder of
     either the adjacent BTA authorization or the Gulf Service Area
     authorization could provide service, provided the one holder meets
     the new co-channel interference protection requirements at the
     other's service area boundary.[^359] Fifth, subject to WCA's
     proposals set forth above, operations in any new Gulf Service Area
     should generally be subject to the rules applicable to the LBS/UBS
     or MBS, as appropriate, and, specifically, Gulf operations should
     be required to comply with the signal strength limit at the
     boundary of the GSAs of incumbent BRS/EBS licensees and BTA
     authorization holders, and should not be excused even if
     non-compliance is caused by ducting.[^360]

122. *Discussion.* Although in the *BRS/EBS 2nd R&O* the Commission
     declined to create a Gulf Service Area for BRS or EBS and
     terminated the Gulf Service proceeding,[^361] it reserved the right
     to revisit the Gulf Service Area issue for BRS and EBS should
     future circumstances warrant.[^362] We now agree with API and
     PetroCom that we should re-establish service areas in the Gulf of
     Mexico for BRS. It is clear that establishing BRS service areas in
     the Gulf could provide a means for meeting an important
     communications need in a critical area, as well as enhance
     emergency communications in the region. Accordingly, we shall grant
     API's petition and re-establish Gulf of Mexico Service Areas for
     BRS.

123. Over the course of the past two years, circumstances have
     significantly changed. In addition to the unprecedented devastation
     caused by Hurricanes Katrina and Rita in 2005,[^363] including the
     impact on the oil industry, we note the major Gulf of Mexico
     deepwater oil discovery in 2006.[^364] We further note the recent
     enactment of the Gulf of Mexico Energy Security Act of 2006,[^365]
     which has opened up 8.3 million acres of the Gulf of Mexico 125
     miles or more from the Florida panhandle to offshore drilling. We
     believe that these circumstances warrant revisiting the issue of
     Gulf of Mexico Service Areas, as contemplated by the Commission's
     decision in the *BRS/EBS 2nd R&O*.[^366] Thus, we reject the
     arguments of WCA and Sprint Nextel that API's petition should be
     dismissed as procedurally defective, and, in light of the
     information presented by API, find under 1.429(b)(3) of our Rules
     that it is in the public interest to reconsider the Commission's
     decision to terminate the Gulf Service proceeding.[^367]

124. Specifically, we are persuaded by API's two interrelated reasons
     for seeking reconsideration of the Commission's decision. First, in
     light of the devastation caused by Hurricanes Rita and Katrina,
     API's members have re-evaluated their communications needs in the
     Gulf of Mexico. In particular, the oil and natural gas industry has
     placed increased importance on the use of rapidly deployable
     IP-enabled broadband services to support both permanent facilities
     and disaster recovery efforts.[^368] Although a number of
     commercial entities currently provide telecommunications service in
     the Gulf of Mexico through wireless, wireline, or satellite
     systems, we are concerned that currently the Gulf of Mexico may be
     an underserved area where spectrum licenses generally are not
     available.[^369] Moreover, some oil and gas facilities are too far
     from shore to receive wireless services from land-based
     providers.[^370] We agree with API that licensing BRS spectrum in
     the Gulf will encourage service providers to explore and offer new
     services in the underserved Gulf region.[^371]

125. Second, API persuasively argues that the 2495-2690 MHz band is one
     of the few bands available and adequate for operations in support
     of off-shore oil and gas facilities.[^372] With respect to
     Industrial/Business licensees, the 1850-1990 MHz band, the
     2130-2150/2180-2200 MHz band, and much of the spectrum previously
     available in the 2.4 GHz band, have been allocated for other
     purposes.[^373] Although spectrum in the 900 MHz band supports
     relatively short distance, narrow band point-to-point and
     point-to-multipoint systems, API notes that, above 900 MHz, the
     next band with a substantial amount of available spectrum is found
     at 6 GHz, which API contends is not adequately suited for use in
     marine environments such as the Gulf.[^374] Moreover, production
     platforms are often separated by too much distance to support use
     of 6 GHz spectrum for point-to-point systems.[^375] While many
     energy companies and service providers have deployed systems in the
     Part 15 bands, according to API, these frequencies are quickly
     becoming saturated and unsuitable for critical applications.[^376]
     Because of the critical role that communications plays in ensuring
     the safe, effective production of oil and natural gas in the Gulf,
     we find granting API's petition is in the public interest.[^377]

126. With respect to setting the boundary of the Gulf Service Area, we
     agree with WCA and establish the boundary at twelve nautical miles
     from the shoreline, as we proposed in the *Gulf NPRM*.[^378]
     Establishing the boundary of a Gulf Service Area at this point will
     ensure that land-based providers can provide service to land-based
     areas near the shore, which would not be the case were we to
     establish the boundary at the shoreline, as providers would need to
     limit their signal level at the boundary. We believe that this
     approach is a balanced resolution of the matter and also is
     consistent with the rules for other Part 27 services.[^379] While
     API originally recommended that we establish the boundary at the
     shoreline, we note that API "no longer opposes establishing the
     boundary of the Gulf Service Area at 12 nautical miles from the
     shoreline to the extent that doing so would allow the Commission to
     move towards the greater objective of licensing the 2.5 GHz band in
     the Gulf."[^380]

127. We accept API's proposal,[^381] unchallenged by other commenters,
     that the Gulf Service Area be divided into three zones for purposes
     of licensing. In response to WCA's concerns, we clarify that the
     Gulf Service areas will exclude any area currently occupied by an
     incumbent BRS station. This approach is consistent with other
     areas, where BTA authorization holders may not operate in areas
     occupied by incumbent BRS stations.[^382] Finally, in light of our
     decision to set the boundary of the Gulf Service Areas twelve
     nautical miles from the shoreline, we find no basis for considering
     WCA's proposal to establish a Gulf Coastal Zone where both the
     land-based BTA licensee and the Gulf of Mexico licensee may
     operate. We note that when land-based licensees previously had
     overlapping service areas, such overlap often made it more
     difficult for both licensees to provide service.

128. We agree with API that the Commission's existing technical rules
     should be applied to the Gulf Service Areas, and can easily be
     utilized to resolve any interference problems that may arise on a
     case-by-case basis. Ducting is not a phenomenon that is limited to
     the Gulf of Mexico, and the record does not support separate or
     special rules only for the Gulf. Using our existing rules has the
     benefit of treating all service providers equally: while land-based
     licensees will have to protect the service areas of Gulf-based
     licensees, Gulf-based licensees will still have to meet signal
     strength limits at the borders of their service areas, protecting
     land-based licensees. WCA has not shown that Gulf licensees are
     incapable or unwilling to work out interference problems in the
     same manner as other licensees. In addition, utilizing our existing
     rules will provide Gulf licensees with the flexibility necessary to
     provide service, which would not be the case were we to adopt WCA's
     proposed rule provisions. Gulf licensees will still have to meet
     signal strength limits at the borders of their service areas.

129. Finally, with respect to API's proposal that we also consider
     whether rules authorizing BRS service in the offshore areas of the
     Atlantic and Pacific Oceans may be warranted,[^383] we see no
     reason to address this issue at this time. API concedes that there
     is currently little need for licensing in these areas.[^384] Should
     circumstances change, API and other interested parties are welcome
     to return to the Commission with a more fully developed proposal.

## Leasing

### Automatic Renewal Provisions in EBS leases executed before January 10, 2005

130. *Background.* Clarendon and HITN ask the Commission to reconsider
     certain issues regarding EBS excess capacity leases. Clarendon asks
     the Commission to clarify whether automatic renewal clauses in
     leases entered into before January 10, 2005 may be interpreted to
     extend the length of the lease indefinitely.[^385] This situation
     arises because of the effect of the Commission's decision in the
     *BRS/EBS R&O* (applying the rules and policies of the Secondary
     Markets proceeding to EBS excess capacity leases entered into from
     January 10, 2005 until July 18, 2006) on the interpretation of a
     boilerplate clause frequently used in EBS excess capacity
     leases.[^386] The boilerplate clause can be interpreted to permit
     automatic one-year extensions indefinitely, if the Commission
     revises its rules to permit leases to be longer than 15
     years.[^387] According to Clarendon, some lessees argue that
     because the length of leases entered into from January 10, 2005 to
     July 18, 2006 was unlimited, leases entered into before January 10,
     2005 may be extended indefinitely by operation of the boilerplate
     clause.[^388] Clarendon, however, states that it is unsure that
     this interpretation of the boilerplate clause is an accurate
     reflection of the Commission's decision in the *BRS/EBS R&O*
     because of inconsistent statements made by the Commission in the
     *BRS/EBS 3rd MO&O* concerning the length of EBS leases entered into
     before January 10, 2005.[^389] Thus, to determine the lease term
     for EBS leases entered into before January 10, 2005, Clarendon asks
     that the Commission reconcile its statement in paragraph 266 that
     "the length of the EBS leases entered into between January 10, 2005
     and \[July 18, 2006\] was not limited under the Commission's Rules"
     with its statement in paragraph 269 that leases entered into before
     January 10, 2005 "would be grandfathered under the then-existing
     EBS leasing framework, thus, such leases would be subject to the
     existing 15-year lease limitation."[^390] Clarendon notes that a
     state court has found that an EBS lease could not be interpreted to
     give a lessee a perpetual lease.[^391]

131. HITN asks the Commission to void EBS leases for one-way only video
     services entered into prior to the release of the *Two-Way Order*
     in 1998.[^392] In addition to the boilerplate clause described
     above, HITN contends that these leases also contain an unknown
     start date; thus, not only has the lease term been extended in
     perpetuity, it has not yet begun.[^393] As a result of the
     operation of these two clauses, HITN argues, many operators have
     warehoused spectrum for more than ten years without providing
     service to the public or lease payments to the
     licensees/lessors.[^394] And, HITN surmises, lessees intend to
     continue warehousing spectrum to pressure licensees/lessors who
     want to take advantage of the new rules into unfavorable lease
     negotiations or costly litigation.[^395] HITN further surmises that
     lessees are using the May 1, 2011 substantial service deadline to
     further pressure licensee/lessors to renegotiate their leases
     within the next few years.[^396] HITN requests that, given the
     present inability of operators to launch and operate new wireless
     cable video systems on the majority of this spectrum band, the
     Commission should declare void all legacy video-only leases entered
     into under pre-1998 rules, the terms of which have never
     commenced.[^397]

132. Clearwire, CTN, NIA, and IMWED support the petitions of Clarendon
     and HITN and ask that the Commission clarify its position on
     whether EBS excess capacity leases entered into before January 10,
     2005, can be interpreted to run in perpetuity.[^398] Clearwire
     states that although it believes that the Commission should not
     become involved in the interpretation of terms of commercial
     agreements such as EBS leases, it strongly agrees with Clarendon
     that the Commission should declare such an interpretation a
     violation of public policy.[^399] IMWED also supports Clarendon's
     and HITN's petitions concerning lease limitations.[^400]

133. WiMAX, WCA, Sprint Nextel, and BellSouth oppose the petitions and
     argue that the Commission should not become involved in the
     interpretation of private contractual agreements.[^401] They argue
     that individualized agreements need individualized scrutiny.[^402]
     BellSouth further argues, as does Sprint Nextel, that one-way video
     leases may not be obsolete as HITN describes because if there is
     sufficient demand for these services, the Commission's Rules
     provide BRS/EBS licensees with the flexibility to provide these
     applications.[^403]

134. *Discussion.* The Commission\'s policy regarding the length of EBS
     leases has evolved since it first permitted EBS licensees to lease
     excess capacity in 1983. Originally, the Commission's policy
     prohibited an EBS licensee from executing a lease agreement that
     extended beyond the 10-year license term because such provisions
     were viewed as inconsistent with the terms of the license.[^404] In
     1995, however, the Commission changed its policy to permit an EBS
     licensee to enter into a 10-year lease agreement without regard to
     the duration of the licensee's license term, but required the lease
     to note that such an extension was contingent on the renewal of the
     license.[^405] In 1998, in the *Two-Way Order*, the Commission
     again changed its policy and permitted an EBS licensee to enter
     into 15-year lease agreement, and again required that the lease
     specify that such an extension be subject to the renewal of the
     underlying license.[^406] The Commission also grandfathered
     existing EBS excess capacity leases entered into before March 31,
     1997.[^407] In 2000, in the *Two-Way Order on Further
     Reconsideration*, the Commission further grandfathered EBS excess
     capacity leases entered into before March 31, 1997 that contained
     an automatic renewal clause that would be effective after March 31,
     1997, provided that the total term of the lease did not exceed 15
     years.[^408]

135. In 2004, in the *BRS/EBS R&O*, the Commission applied the Secondary
     Markets rules to EBS excess capacity leases executed between
     January 10, 2005 and July 18, 2006. In 2006, in the *BRS/EBS 3rd
     MO&O*, the Commission modified the application of the rules and
     policies of the Secondary Markets proceeding to EBS leases.[^409]
     With regard to EBS leases, the Commission stated that although the
     rules and policies of the Secondary Markets proceeding applied to
     EBS leases, EBS licensees may enter into an excess capacity lease
     agreement for 30 years so long as the lease agreement ensures that
     EBS licensees retain the right to review their educational use
     requirements at year 15 and every 5 years thereafter.[^410]
     Moreover, the Commission permitted the use of "rights of first
     refusal" clauses, but prohibited the use of automatic renewal
     clauses.[^411] The Commission then clarified that the length of EBS
     excess capacity leases entered into between January 10, 2005 and
     July 18, 2006, was not limited because such EBS excess capacity
     leases were entered into under the Secondary Markets rules and
     policies.[^412] The Commission reaffirmed that EBS excess capacity
     leases entered into before January 10, 2005 are grandfathered under
     the "then-existing EBS leasing framework, thus, such leases would
     be subject to the existing 15-year lease limitation."[^413]

136. We first turn to the question of whether EBS excess capacity leases
     entered into before January 10, 2005 may be interpreted consistent
     with the Commission's Rules to last indefinitely. We agree with
     Sprint Nextel, WCA, BellSouth, and WiMAX that we should not resolve
     this issue by interpreting private contractual agreements. The
     interpretation of private contractual agreements is best left to
     the individual state courts and, therefore, we reject the
     recommendations of Clearwire, IMWED, and Clarendon to find such an
     interpretation to be a violation of public policy. The resolution
     of this issue, however, does not depend on the application of that
     particular principle of administrative law. This issue is resolved
     by clarifying the rules and policies adopted by the Commission in
     the *Two-Way Order*, the *BRS/EBS R&O*, and the *BRS/EBS 3rd MO&O.*
     The Commission stated in the *BRS/EBS R&O*, and reiterated in the
     *BRS/EBS 3rd MO&O,* that EBS leases executed before January 10,
     2005 are limited to a term of 15 years from the date of execution.
     To the extent that these leases contain an automatic renewal
     clause, such leases are grandfathered after January 10, 2005 if
     they have an automatic renewal clause effective after January 10,
     2005, only to the extent that such leases do not exceed 15 years in
     total length (including the automatic renewal period(s)). This
     decision is consistent with the Commission's decision in the
     *Two-Way Order on Reconsideration*. Thus, these leases cannot be
     extended in perpetuity. To further clarify, lease terms for EBS
     leases entered under the rules and policies of the *BRS/EBS R&O*
     (those entered into between January 10, 2005 and July 18, 2006) are
     not limited by the Commission's rules (but are subject to relevant
     state laws limiting the length of contracts). Leases entered into
     under the rules and policies of the *BRS/EBS 3rd MO&O* (on or after
     July 19, 2006) may be up to 30 years in length, so long as the EBS
     licensee retains the right at year 15 and every 5 years thereafter
     to review its educational needs.

137. We next turn to the question of whether the Commission should void
     EBS leases for one-way only video services entered into prior to
     the release of the *Two-Way Order.* While we are concerned by the
     situation described by HITN, we do not have the authority to void
     contracts executed by two private parties under the laws of
     individual states. We also agree with Sprint Nextel, WCA, WiMAX,
     and BellSouth, that even if we could void private contracts, such
     an action would deter private parties from entering into spectrum
     leasing agreements not only in the 2.5 GHz band (60 percent of
     which is licensed to EBS entities), but also in other bands as
     well, thus creating uncertainty among all parties that have entered
     into or are contemplating agreements under our Secondary Markets
     rules and policies.[^414] We find, however, that the alleged
     unknown start date is contrary to the rules and policies adopted by
     the Commission in the *Two-Way Order*, which limited the term of
     EBS leases to 15 years from the date they are executed between the
     parties. Any other interpretation of the *Two-Way Order* would
     permit the warehousing of valuable spectrum for decades and is
     contrary to the underlying purpose of the rule. Therefore, we
     conclude that video-only leases executed more than 15 years ago
     have expired under the terms of the *Two-Way Order*. Aggrieved EBS
     licensees subject to these one-way only video lease agreements that
     have not yet expired must renegotiate them or pursue contractual
     remedies through the State courts or through an alternative dispute
     resolution process.

### Equipment on Lease Termination

138. *Background.* In the *BRS/EBS* *3rd MO&O*, the Commission amended
     Section 27.1214(c) to clarify that the EBS licensee/lessor could
     "purchase or lease dedicated common equipment used for educational
     purposes in the event that the spectrum leasing arrangement" was
     terminated by either the EBS licensee/lessor or the lessee.[^415]
     WCA asks that the Commission amend Section 27.1214(c) of the Rules
     to further clarify that a lessee of EBS spectrum has the option of
     offering the EBS licensee/lessor either the actual equipment used
     on its own channels or comparable equipment on termination of the
     lease.[^416] WCA maintains that it appears that the rules adopted
     in the *BRS/EBS* *3rd MO&O* require the lessee to offer the EBS
     licensee/lessor the actual equipment deployed by the lessee,
     including equipment shared among multiple licensees within a single
     system, which is inconsistent with Commission policy.[^417] WCA
     maintains that Commission policy has recognized that lessees of EBS
     spectrum, by necessity, must cobble together spectrum from multiple
     licensees and therefore the equipment used in the system will not
     be devoted to a single licensee.[^418] Therefore, WCA asks that the
     Commission amend Section 27.1214(c) to permit the lessee the option
     of offering the EBS licensee/lessor either the equipment actually
     used in the system or comparable equipment on termination of the
     lease by the EBS licensee/lessor or the lessee.[^419] WiMAX, CTN,
     and NIA support WCA's petition on this issue.[^420]

139. *Discussion.* We agree with WCA and the other parties that the
     proposed rule change is an appropriate modification that reflects
     the fact that equipment is often shared among multiple licensees.
     We therefore amend Section 27.1214(c) of our Rules accordingly.

## Substantial Service

### Credit for Discontinued Service

140. *Background.* BellSouth asks the Commission to permit a licensee to
     demonstrate substantial service by showing that it met a safe
     harbor at anytime during the license term -- that is, that
     licensees be permitted to use past-discontinued service to meet the
     substantial service standard.[^421] BellSouth argues that the
     Commission's decision in the *BRS/EBS 2nd R&O* to permit
     past-discontinued service to be considered as just a factor in
     meeting the substantial service standard is inconsistent with the
     Commission's decision in the *BRS/EBS R&O* to eliminate the
     discontinuance of service rules and permit licensees to go dark
     during the transition.[^422] BellSouth also argues that the record
     supports its position because commenters favored a rule that would
     acknowledge past-discontinued service as substantial service rather
     than a rule that looked only at a snapshot taken at a particular
     point in the term.[^423] BellSouth also cites as support a WTB
     decision where a microwave licensee met the substantial service
     standard because it satisfied a safe harbor during its license
     term.[^424] BellSouth argues that it relied on the Commission's
     decision in the *BRS/EBS R&O* by curtailing its legacy wireless
     cable video services and investing in pioneering technology testing
     and market trials.[^425] BellSouth argues that the Commission
     cannot achieve its goal of radically changing the services offered
     in the 2.5 GHz band if licensees are forced to continue legacy
     operations solely to preserve their authorizations.[^426] In
     supporting BellSouth, Ad Hoc MDS Alliance explains that using prior
     service as just a factor in a substantial service showing
     particularly disadvantages BRS Channels 1 and 2/2A licensees
     because those licensees were in limbo for more than a decade when
     the Commission announced plans to relocate them from the 2.1 GHz
     band in favor of AWS.[^427] In opposing BellSouth, Clearwire argues
     that the Commission struck the appropriate balance in the *BRS/EBS
     2nd R&O* between spurring broadband deployment at 2.5 GHz and
     considering prior operations and other factors in adopting
     substantial service requirements.[^428]

141. *Discussion*. In the *BRS/EBS 2nd R&O*, the Commission adopted a
     substantial service standard, with safe harbors, as the performance
     requirement for BRS and EBS licensees in the 2495-2690 MHz band and
     required BRS and EBS licensees to demonstrate substantial service
     no later than May 1, 2011.[^429] In addition, the Commission stated
     that it would consider prior service, even if discontinued, as a
     factor in determining whether a licensee met the substantial
     service standard, but stressed that the most significant
     consideration in evaluating substantial service demonstrations is
     the licensee's current service.[^430]

142. We decline to grant BellSouth's request to permit past-discontinued
     service to be used as the sole factor to demonstrate substantial
     service. The Commission adopted a substantial service standard to
     ensure the prompt delivery of service to rural areas, to prevent
     stockpiling or warehousing of spectrum by licensees or permittees,
     to promote investment in and rapid deployment of new technologies
     and services, and to facilitate the availability of broadband to
     all Americans.[^431] Permitting licensees to demonstrate
     substantial service by using past-discontinued service alone would
     not achieve any of these goals. Nevertheless, the Commission, by
     permitting the use of past-discontinued service as a factor in the
     substantial service determination, struck the appropriate balance
     between encouraging broadband development in the 2.5 GHz band and
     recognizing that licensees were permitted to discontinue service in
     anticipation of the transition to the new band plan and technical
     rules. If we were to adopt BellSouth's recommendation, we would
     permit licensees to forego providing any service in the 2.5 GHz
     band from January 10, 2005 (the date licensees were permitted to
     discontinue service) until beyond May 1, 2011 (the date licensees
     must demonstrate substantial service under the new rules).
     Moreover, we note that the Commission gave licensees additional
     flexibility to meet the substantial service standard by adopting
     five safe harbors applicable to BRS and EBS licensees (one safe
     harbor applicable solely to EBS licensees) and a rule that a
     licensee would be deemed to be providing substantial service if its
     lessee was providing substantial service.[^432]

### Safe Harbors \-- heavily encumbered or highly truncated GSAs and BTAs

143. *Background*. WCA asks that the Commission adopt a special safe
     harbor to address situations in which a licensee's GSA is either
     heavily encumbered by incumbent licensees or truncated through the
     splitting the football process to the point that the licensee
     cannot be expected to meet current safe harbors and comply with the
     restrictions on signal level at the GSA border and the height
     benchmarking requirements.[^433] With regard to heavily encumbered
     BTAs, WCA recommends that the Commission consider deployments
     within the BTA on all spectrum owned or leased by the BTA
     authorization holder or its lessee.[^434] Specifically, WCA
     recommends that where a BRS BTA authorization holder's GSA is less
     than one-half the size of the BTA on every BRS channel included in
     its BTA license, it should be permitted to invoke a special safe
     harbor under which all of its lessee's deployments on BRS channels
     within the BTA will be considered.[^435] With regard to highly
     truncated GSAs, WCA recommends that an incumbent BRS or EBS
     licensee be deemed to have provided substantial service when the
     GSA for all of its channels is less than 1924 square miles in size
     (*i.e*., is less than one-half of a 35-mile radius circle) and the
     licensee satisfies one of the safe harbors in Section 27.14(e) of
     the Commission's Rules (adopted by the Commission in the *BRS/EBS
     2nd R&O*)[^436] in its former PSA (including areas that are within
     overlapping co-channel incumbent GSAs licensed to or released by
     the licensee or its lessee).[^437] WiMAX supports WCA's position,
     and CTN and NIA support WCA's position with regard to EBS
     licensees.[^438]

144. *Discussion*. We agree with WCA that it is appropriate to give some
     relief to licensees whose GSAs are heavily truncated to remedy a
     situation created by several factors. First, for BRS BTA licensees,
     this situation arises because the Commission auctioned a
     substantial number of BTAs that were so heavily encumbered that it
     is difficult for the BRS BTA authorization holder to locate a
     station anywhere in the BTA and provide interference-free service
     and the necessary interference protection to incumbents\'
     areas.[^439] Second, for BRS and EBS site-based licensees, this
     situation arises in a limited number of situations (particularly
     among EBS stations that tend to be more closely spaced than BRS
     stations) when splitting the football results in a GSA so highly
     truncated that a licensee cannot be reasonably expected to comply
     with the restrictions on signal level at the GSA boundary and the
     height benchmarking rule, and still be able to meet a quantitative
     safe harbor.[^440] According to WCA, in most cases, the neighboring
     co-channel facilities are likely under common ownership or
     lease.[^441] Third, the Commission\'s decision in the *BRS/EBS 2nd
     R&O* to require a licensee to demonstrate substantial service on a
     per license basis, rather than on a per system basis, makes it
     impossible in the situations described above for these licensees to
     meet a substantial service standard without a special safe harbor
     applicable solely to them.

145. Under those circumstances, we will adopt a rule allowing licensees
     whose GSA is less than 1924 square miles in size to demonstrate
     substantial service by combining its GSA with an overlapping
     co-channel station licensed or leased by the licensee or its
     affiliate. The licensees would need to demonstrate substantial
     service with respect to the combined GSAs of both stations. As an
     example, assume that a licensee offering fixed service intended to
     meet the six links per million safe harbor, and that licensee had
     two overlapping co-channel licenses, one of which had a GSA less
     than 1924 square miles in size. If the combined population within
     the GSAs was two million people, the licensee could meet the safe
     harbor by demonstrating that it had 12 active links within the
     combined GSAs of both stations. For BRS BTA authorization holders,
     we will adopt a similar rule if the GSA of a BTA authorization
     holder is less than one-half of the area within the BTA for every
     BRS channel. While the rule text is different from what WCA
     proposed, we believe the adopted rule provides the relief that WCA
     seeks.

## EBS Eligibility

### Nonprofit Educational Organizations

146. *Background.* HITN asks the Commission to make minor changes to
     conform Section 27.1201(a)(3) of the Commission's Rules to the
     changes made by the Commission in the *BRS/EBS* *3rd MO&O*.[^442]
     Section 27.1201(a)(3) permits the following entities to be eligible
     for EBS licenses: accredited educational institutions; governmental
     organizations engaged in the formal education of enrolled students;
     and nonprofit organizations whose purposes are educational and
     include providing educational and instructional television material
     to such accredited educational institutions or governmental
     organizations.[^443] Nonprofit organizations must establish
     eligibility through the provision of services to the enrolled
     students of another accredited educational institution or
     governmental entity.[^444] Section 27.1201(a)(3) requires these
     non-profit applicants to provide documentation from proposed
     receive sites demonstrating they will receive and use the
     non-profit applicants' educational usage.[^445] Section
     27.1201(a)(3) also states that "\[n\]o receive site more than 35
     miles from the transmitter site shall be used to establish basic
     eligibility."[^446]

147. HITN asks that the rule be modified in two respects. First, HITN
     recommends that the Commission amend Section 27.1201(a)(3) of the
     Commission's Rules to clarify that an educational institution may
     receive education-enhancing broadband services, which it intends to
     use in furtherance of its educational mission.[^447] HITN notes
     that Section 27.1201(a)(3) of the Commission's Rules, as originally
     crafted, anticipated the provision of letters from accredited
     schools regarding their intent to receive and use educational video
     programming.[^448] HITN argues that many entities qualifying to
     operate EBS stations will be contemplating the provision of
     educational content or education facilitating services that may not
     include instructional video programming created by, or packaged for
     delivery by, the EBS licensee.[^449] HITN states that in the case
     of broadband services, an educational institution may be interested
     in receiving and using any of the following types of services at
     fixed, temporary fixed, or mobile sites: voice over IP; one or
     two-way streamed video content; teleconferencing and remote
     classroom hookups; high speed Internet or data services; and
     wireless local or wide area networks.[^450] Therefore, HITN notes
     that the requirement letter would recognize the reality that
     educational content available over the World Wide Web and
     downloaded at any specific site is essentially user-directed.[^451]
     HITN argues that neither the service provider nor the site's school
     administrator can preview or make specific advance statements
     regarding the content that will be accessed.[^452] According to
     HITN, the most that can be said is that the services will be used
     in the furtherance of the receiving institution's educational
     mission and will be made available to enrolled students, faculty
     and staff in a manner and in a setting conducive to such
     usage.[^453]

148. Second, HITN asks that Section 27.1201(a)(3) be changed to reflect
     the transition of the EBS service from a site-based to a geographic
     licensing structure.[^454] Thus, HITN asks that restrictive
     language in Section 27.1201(a)(3) regarding the absolute distance
     from the transmit site for qualified schools supplying letters
     should be based on distance from the proposed center reference
     point, and should be further qualified to ensure that such school
     will be within the proposed geographic service area.[^455]
     Clearwire, CTN, and NIA also support a re-examination and revision
     of those EBS eligibility and substantive use rules to better
     reflect the current permitted uses of this spectrum.[^456]

149. *Discussion.* We agree with HITN that it is appropriate to update
     the EBS eligibility rules to reflect the wider variety of services
     EBS licensees will use and offer. In particular, as written, the
     rules contemplate video programming where the licensee will know
     the specific content being offered in advance. With the provision
     of broadband services, HITN is correct that it will be impossible
     for the licensee to know in advance what content is being accessed.
     We will adopt the rule changes proposed by HITN, and supported by
     commenters, in order to reflect the wider variety of services being
     used by EBS licensees. Furthermore, we agree with HITN that it is
     appropriate to make its proposed changes to the rule to reflect the
     advent of geographic area licensing. We will amend our rules
     accordingly.

### Commercial EBS Licensees

150. *Background.* WCA asks that the Commission amend paragraph (d) of
     Section 27.1201 of the Commission's Rules to clarify that
     commercial EBS licensees are not subject to the educational
     programming requirements in Section 27.1203(b)-(d) of the
     Commission's Rules or the special EBS leasing requirement under
     Section 27.1214 of the Commission's Rules.[^457] WCA notes that
     these changes are necessary to clarify that, although the
     Commission continues to regulate commercial EBS licensees under the
     EBS rules, neither the instructional programming requirements nor
     the special EBS leasing rules apply to commercial EBS
     licensees.[^458]

151. *Discussion.* We agree with WCA that the proposed change accurately
     reflects our intentions and is consistent with the nature of
     commercial EBS stations. We therefore amend our rules accordingly.

## **Mutually Exclusive Applications**

152. *Background.* HITN asks the Commission to reconsider its decision
     dismissing six HITN applications to construct new stations as
     mutually exclusive with other pending new station
     applications.[^459] First, HITN argues that, although it previously
     sought reconsideration of the dismissal of these applications, the
     Commission failed to provide a reasoned decision in the *BRS/EBS
     3rd MO&O* to HITN's numerous arguments and thus, should again
     reconsider this issue.[^460] Second, HITN claims that the decision
     to dismiss the mutually exclusive applications was arbitrary and
     capricious because the Commission failed to give a reasoned
     explanation of how the dismissals would further the Commission's
     stated goals, why the Commission is deviating from stated policy,
     and how the goal achieved justifies the effects of dismissing the
     applications.[^461] Third, HITN argues, the Commission made
     inconsistent statements regarding the dismissal of the
     applications, and argues that the Commission should auction these
     discrete geographic areas to resolve these mutually exclusive
     applications.[^462] HITN also states that it is ready and willing
     to construct and transition stations in order to provide wireless
     broadband services immediately.[^463] Clearwire seconds HITN's
     position that the proposed plan to auction the white space after
     the adoption of auction rules will limit the development of
     wireless broadband and educational services in the geographic areas
     where the pending mutually exclusive licenses were dismissed.[^464]
     Clearwire argues that reinstating the applications would facilitate
     the transition by identifying an operator that would serve as a
     proponent for that specific geographic area.[^465] Clearwire also
     suggests that if the mutually exclusive pending applications are
     granted, the licensees should be denied transition rights.[^466]

153. Clearwire argues that the public interest would be better served if
     EBS licensees were given one more chance to demonstrate their
     intention to provide educational services and to facilitate
     broadband deployment.[^467] Clearwire states that the spectrum
     would be able to be utilized immediately by educators and
     commercial broadband operators.[^468] Finally, Clearwire argues
     that reinstating the dismissed mutually exclusive licenses would
     allow the Commission to fulfill its policy objectives in a more
     timely fashion.[^469]

154. WCA argues that the decision to dismiss mutually exclusive
     applications "represents a reasonable determination that the most
     efficient mechanism for moving to EBS geographic licensing and the
     auctioning of unlicensed EBS white space is to wipe the slate as
     clean as possible."[^470] WCA accuses HITN of ignoring the
     Commission's discretion to manage the Commission's processes
     through doctrines of general applicability.[^471]

155. *Discussion*. In the *BRS/EBS 3rd MO&O,* the Commission affirmed
     its decision not to reconsider the dismissal of pending mutually
     exclusive applications for new EBS stations.[^472] The Commission
     stated that its decision was supported by well-established
     Commission precedent (to dismiss pending mutually exclusive
     applications when converting from a site-based to a geographic area
     licensing scheme), was in the public interest (to facilitate the
     transition of the 2.5 GHz band), and resolved long-standing
     apparently intractable issues.[^473]

156. We deny WCA's request that we dismiss HITN's petition as
     repetitious under Section 1.429(i) of the Commission's Rules.[^474]
     HITN argues that the Commission neither adequately explained why it
     dismissed the mutually exclusive applications nor responded to the
     numerous arguments HITN raised in its petition for reconsideration
     of the *BRS/EBS R&O*.[^475] We disagree with HITN's contention and
     note that this issue has twice been discussed and resolved by the
     Commission. In the interests of developing a full and complete
     record on this issue, however, we will not dismiss HITN's petition
     on procedural grounds, but will instead address HITN's arguments
     here.

157. We reject HITN's argument that the Commission's dismissal of the
     mutually exclusive applications was inconsistent with precedent.
     Specifically, HITN argues that the Commission's decision in the
     *BRS/EBS 3rd MO&O* was based on the *Maritime Services
     Order*,[^476] (where the Commission froze the acceptance of new
     applications while changing service rules from site-based licensing
     to geographic area licensing).[^477] HITN argues that the *Maritime
     Services Order* misconstrued the D.C. Circuit's holding in
     *Kessler v. FCC*.[^478] According to HITN, *Kessler* holds that
     while the Commission does have procedural rights under the APA to
     institute application filing freezes in the name of administrative
     efficiency and convenience, it may not take away substantive rights
     of which parties are entitled to have applications processed that
     have been accepted for filing.[^479]

158. We disagree with HITN's analysis of *Kessler* and agree with WCA's
     analysis.[^480] In *Kessler*, the D.C. Circuit found that
     *Ashbacker*[^481] procedural rights apply to potential applicants
     whose applications would have been mutually exclusive but for an
     application filing freeze.[^482] Here, however, the implementation
     of the filing freeze on April 2, 2003 (the release date of the
     *BRS/EBS NPRM*) had no effect on the mutual exclusivity of HITN's
     applications.[^483] Those applications had been pending for years,
     unable to be processed, because the parties could not privately
     reach a settlement to resolve mutual exclusivity. When the
     Commission initiated a rulemaking to develop a new, more efficient
     licensing scheme, it dismissed all mutually exclusive applications
     that did not have a settlement agreement on file with the
     Commission by April 2, 2003.[^484] The Commission's decision was
     not only consistent with past Commission decisions \-- such as the
     dismissal of pending mutually exclusive applications when
     transitioning the paging industry, the maritime industry, and the
     39 GHz band to geographic area licensing[^485] \-- but also was
     consistent with the D.C. Circuit's decision to uphold the
     Commission's decision to dismiss pending mutual exclusive
     applications when the Commission adopted a new licensing scheme for
     the 39 GHz band.[^486]

159. Second, we disagree with HITN's assertion that the Commission's
     decision was arbitrary and capricious. As detailed above, the
     Commission's decision was consistent with our policies and with
     case law. The dismissal of the mutually exclusive applications was
     necessary because neither the Commission nor the parties could
     resolve this mutual exclusivity under the then applicable
     site-based licensing scheme. The dismissal of those applications,
     therefore, furthers the Commission's goal of developing a licensing
     scheme that not only resolves issues of mutual exclusivity, but
     also ensures the efficient use of EBS spectrum by educators. The
     Commission's decision to license EBS stations on a geographic basis
     is the first step toward achieving that goal. Today, we take the
     second step, by releasing a *Second Further Notice of Proposed
     Rulemaking* in which we seek comment on various options to license
     EBS spectrum. Permitting mutually exclusive applications to stay in
     pending status for years does not advance our goal of promoting the
     efficient use of EBS spectrum by educators, and thus, the
     Commission dismissed them.

160. Third, we disagree with HITN's assertion that the Commission has
     made inconsistent statements with regard to dismissing the mutually
     exclusive applications. Specifically, HITN faults the Commission
     for concluding that dismissing mutually exclusive applications
     would allow for a more efficient transition while stating in the
     *BRS/EBS 3rd MO&O* that, "it may be possible to make new licenses
     available in a way that does not interfere with potential
     transitions to the new band plan."[^487] We disagree that any
     inconsistency exists. One reason dismissal of mutually exclusive
     applications served the public interest is that allowing the
     mutually exclusive applications to remain on file would create
     considerable uncertainty for potential proponents who would be
     uncertain of the ultimate licensee in a market. Resolving that
     uncertainty would have required the Commission to hold a special
     auction between applicants that filed their applications over ten
     years ago that did not reflect the radical changes in technology
     and rules that had occurred since the filings. In contrast, the
     statement HITN refers to involves establishing a new process for
     future applications that could be granted pursuant to the new band
     plan. The two situations are quite different, and there is no
     inconsistency. We therefore deny HITN's petition on this issue and
     affirm the Commission's decision to dismiss the mutually exclusive
     applications.

# declaratory ruling -- late-filed applications

161. The Wireless Telecommunications Bureau has pending a number of
     late-filed EBS renewal applications and applications for extensions
     of construction deadlines. Although these matters have not been
     considered by the Commission in this proceeding, a number of
     pleadings before the agency indicate that there is considerable
     confusion concerning the splitting the football methodology used to
     divide overlapping protected service areas, as it related to
     late-filed renewal applications. In particular, Clearwire, CTN/NIA,
     WCA, NextWave, Sprint Nextel, and Xanadoo (the Joint Commenters)
     filed a letter proposing clarifications of our splitting the
     football treatment of reinstated licenses.[^488] In addition, four
     licensees \-- Instructional Telecommunications Foundation, Inc.
     (ITF), New Trier Township, High School District 203 (New Trier),
     Shekinah Network (Shekinah), Boston Catholic Television Center,
     Inc. (BCTC) -- have asked the Commission to issue a declaratory
     ruling that their Stations do not have to split the football with
     overlapping stations whose licenses have been reinstated *nunc pro
     tunc*.[^489] Also, in Clearwire's opposition to petitions for
     reconsideration in the instant proceeding, it asks the Commission
     to give leniency to late-filed EBS applicants.[^490] As discussed
     below, we believe the proper vehicle for considering these issues
     is to adopt a declaratory ruling clarifying our treatment of the
     splitting the football policy as applied to late-filed renewal
     applications.

162. *Background.* Clearwire asks the Commission to give these
     applicants one last opportunity to demonstrate an intent to use
     their previously licensed spectrum and to cure any defects that may
     exist with respect to their licenses.[^491] Clearwire recommends
     that, if no such showing is made, those licenses should be
     cancelled and the resulting white space made available for
     auction.[^492] Clearwire argues that these applications demonstrate
     that many EBS licensees were left in a difficult situation because
     of the uncertainties of operating in the 2.5 GHz band, including
     the following: operators/lessees that went bankrupt or breached
     their leases; leases that were bought and sold; the Commission's
     consideration of reallocating the 2.5 GHz band for other uses; and
     the lengthy development and release of the final rules.[^493] If
     the Commission were to grant these applications, Clearwire argues,
     educators and commercial broadband operators would be able to
     immediately use this spectrum and the public interest would be
     served.[^494] Although Clearwire notes that it understands the need
     for the Commission to clean up its ULS database by resolving these
     applications so that the EBS white space can be auctioned, it
     argues that the public interest is better served by giving these
     EBS applicants this one last opportunity.[^495]

163. WCA and Sprint Nextel oppose Clearwire's request.[^496] WCA argues
     that the Commission's adoption of Clearwire's proposal would be
     counterproductive to the goal of expediting the EBS white space
     auction.[^497] Instead of granting Clearwire's request, WCA
     recommends that the Commission quickly resolve the pending
     cases.[^498] Sprint Nextel argues that Clearwire has not explained
     how its proposed "one final opportunity" would be administered or
     how long the process would take (including resolution of any
     subsequent requests for reconsideration or what kind of showing
     former EBS licensees would be required to make in order to
     reinstate their authorizations).[^499] Sprint Nextel further argues
     that the Commission cannot clarify which EBS spectrum will be
     available at auction if the former EBS licenses are not removed
     from the ULS database.[^500]

164. An issue related to Clearwire's request involves overlaps between
     expired licenses and active licenses. The Commission generally uses
     the splitting the football methodology to divide overlapping
     protected service areas.[^501] Upon the effective date of this new
     policy, January 10, 2005, all overlapping PSAs would be split, and
     new geographic service areas would be established for all EBS
     licensees who had previously experienced an overlap issue. The
     Commission clarified its split the football policy in the *BRS/EBS
     3^rd^ MO&O*. Specifically, in response to an unopposed petition
     from WCA, the Commission ruled as follows: 

> Where an incumbent station license was in existence as of January 10,
> 2005 and caused a splitting of the football, and that incumbent
> station license is later forfeited, the reclaimed territory reverts to
> the BRS BTA holder (if BRS spectrum) or to EBS white space (if EBS
> spectrum) regardless of whether the action/inaction that caused the
> forfeiture occurred prior to January 10, 2005.[^502]

No party sought reconsideration of this specific issue or otherwise
opposed it.

165. On January 25, 2007, the Broadband Division of the Wireless
     Telecommunications Bureau granted waivers *nunc pro tunc* to 41
     late-filed EBS renewal applications.[^503] One of the licensees
     granted a waiver pursuant to that order was Eudora Unified School
     District (Eudora), licensee of EBS Station WLX327. Instructional
     Telecommunications Foundation, Inc. (ITF), licensee of EBS Station
     WHR511, whose PSA overlaps with Station WLX327, has requested that
     the Commission issue a declaratory ruling that Station WHR511 does
     not have to split the football with Eudora.[^504] ITF did not
     challenge Eudora's late-filed request for reinstatement of its EBS
     license, but nonetheless argues that it does not have to split the
     football with Eudora because Eudora's license was expired on
     January 10, 2005, the date that the footballs were split,
     notwithstanding the Bureau's later decision to reinstate such
     license *nunc pro tunc*.[^505] ITF argues that if it splits the
     football with Eudora, it would lose a significant portion of its
     GSA to Eudora.[^506] ITF has leased the excess capacity of WHR511
     to a subsidiary of Clearwire which intends to use that capacity for
     educational purposes as well as for telecommunications services
     that will benefit the general public.[^507]

166. New Trier, which held a license for Station KGZ66, has also filed a
     request for a declaratory ruling asking the Commission to declare
     that New Trier does not have to split the football with Station
     WHR850, licensed to Waubonsee Community College (Waubonsee).[^508]
     New Trier asserts that it has operated on EBS channels since 1967,
     and now serves approximately 12,000 students.[^509] New Trier
     argues that because Waubonsee's license expired in July, 1997, its
     license was not "in existence" on January 10, 2005 when the
     football was split.[^510] Therefore, New Trier urges that we
     declare that it does not have to split the football with Waubonsee
     in the event Waubonsee's license for WHR850 is reinstated.[^511]

167. In a similar case, Shekinah has asked that we declare that EBS
     Stations WLX259 (licensed to Western Nevada Community College),
     WMX642 (licensed to Spectrum Alliance Harrison F Partnership), and
     WLX260 (licensed to Chippewa Valley Technical College), all of
     which expired more than 6 years ago, have not and will not be
     considered in determining the GSAs of Shekinah's EBS
     stations.[^512] Despite the fact that the Commission sent
     termination letters to WLX259, WMX642, and WLX260 on October 19,
     2007, Shekinah feels that a broader declaratory ruling is necessary
     to clarify the "significant uncertainty concerning the Commission's
     GSA-formulation rules."[^513]

168. Finally, BCTC requests a declaratory ruling that it is not required
     to "split the football" with EBS Stations WHR888 and WLX771,
     formerly licensed to Connecticut Public Broadcasting, Inc. (CPB)
     and which expired in 1998.[^514] BCTC asserts that although the
     Commission sent termination letters to these licenses on October
     19, 2007 and they are not the subject of reinstatement
     applications, it is nonetheless concerned about the uncertainty of
     the status of its GSA for its stations WND259 and KLC85.[^515]

169. On September 28, 2007, Clearwire, CTN/NIA, WCA, NextWave, Sprint
     Nextel, and Xanadoo (the Joint Commenters) filed a letter proposing
     clarifications that they believe represent a consensus position of
     a majority of the 2.5 GHz industry and that, on balance, most
     effectively and fairly advance the Commission's 2.5 GHz band goals
     and objectives.[^516] The Joint Commenters ask that we clarify our
     splitting the football treatment of expired licenses to add the
     following new rules:

     If an EBS license term expired before January 10, 2005, it was not
     considered "in existence" and thus was not accorded a protected
     service area ("PSA") used to split overlapping footballs (i.e.,
     other stations on the same channel(s) that had PSAs which would
     have overlapped the expired license would not take the expired
     license into account in determining their GSAs) unless it has been
     renewed nunc pro tunc to date.

     If the FCC grants additional late-filed EBS license-renewal
     applications that expired before January 10, 2005, the renewed
     license will be accorded a GSA that does not include any
     overlapping PSA areas (i.e., the license will be reinstated but not
     nunc pro tunc for purposes of making it "in existence" as of
     January 10, 2005) except in cases of manifest Commission error
     where reinstatement is in the public interest.[^517]

170. West Central Illinois Educational Telecommunications Corp.[^518]
     and Waubonsee[^519] do not object to the Joint Commenters'
     proposal. Hempstead Independent School District argues that the
     Joint Commenters lack standing to request the relief they seek,
     that the "clarifications" they seek are not consistent with
     Commission policy, and that it would be impermissible to reinstate
     licenses without reinstating them *nunc pro tunc*.[^520] Texas
     State Technical College objects to losing over half of its formerly
     anticipated service area and argues that the proposal is
     inconsistent with the relief granted to the 41 reinstated
     licensees.[^521] JRZ Associates, Liberty University, and Lois
     Hubbard argue that the Joint Commenters lack standing, that their
     request is an untimely petition for reconsideration of the *BRS/EBS
     3^rd^ MO&O*, and that adopting a policy under which a license would
     not exist for a period of time "would seriously and chaotically
     destabilize" the regulatory regime applicable to BRS and EBS.[^522]
     Burlington College, Champlain College, Norwich University, and
     Saint Michael's College (collectively, the Vermont Licensees)
     assert that the proposal would redraw the GSAs of their licenses in
     a manner that would generally exclude each Vermont Licensee's
     campus from the resulting license coverage areas.[^523]

171. *Discussion.* We deny Clearwire's original request to establish a
     blanket leniency for late-filed renewal applications. We believe it
     is appropriate to continue to consider such requests on a
     case-by-case basis based on all pertinent circumstances.

172. It is apparent, however, that, further clarification and review of
     our policy of addressing overlaps between active licenses and
     expired licenses is appropriate. The pleadings before us show that
     there is considerable confusion concerning our policies and how
     they apply to expired licenses that are subsequently reinstated
     *nunc pro tunc*. We believe the proper vehicle for considering
     these issues is to issue a declaratory ruling clarifying our
     treatment of such licenses. Section 1.2 of the Commission's Rules
     allows us to issue a declaratory ruling, either by request or on
     our own motion, to terminate a controversy or remove
     uncertainty.[^524] We agree with the Joint Commenters that
     additional certainty surrounding GSAs is imperative, especially
     given the activity surrounding transition planning and
     implementation, and buildout of broadband services in this
     band.[^525] We note that several opponents of the Joint Commenters'
     filing argue that the Joint Commenters have no legitimate interest
     in opposing their renewal applications.[^526] Although we do not
     decide today whether Sprint Nextel or any other party has standing
     to file a petition to deny a late-filed EBS renewal application, we
     do believe that the Joint Commenters have a legitimate interest in
     ensuring certainty in the rules for establishing geographic service
     areas. Accordingly, we will consider their filings, as well as all
     other relevant filings, including the petitions for declaratory
     ruling filed by ITF and New Trier.

173. Initially, we agree with New Trier, Shekinah, and BCTC that there
     is no public interest benefit in requiring an active EBS licensee
     to "split the football" with a license that was expired as of
     January 10, 2005, especially where no attempt has been made to
     resurrect such license by filing a late-filed renewal
     application.[^527] Accordingly, we issue a ruling that an active
     licensee whose former PSA overlapped with a license that was
     expired as of January 10, 2005 need not split the football with
     such expired license if the expired licensee has not had its
     license reinstated prior to adoption of this order.

174. Second, we deny ITF's request for a declaratory ruling with respect
     to late-filed renewal applications granted prior to the adoption of
     this order. While we are sympathetic to ITF's policy arguments, the
     late-filed renewal applications that have been granted to this
     point have been granted *nunc pro tunc*.[^528] Consistent with
     established Commission policy,[^529] a *nunc pro tunc*
     reinstatement has the effect of reinstating the license such that
     there was no interruption in the existence of the license.[^530]
     Thus, when a license that expired prior to January 10, 2005 was
     subsequently reinstated *nunc pro tunc*, there would be no lapse in
     the authorization of the license, and such reinstated license was
     entitled to split the football with any neighboring authorizations
     with overlapping service areas. We believe it would be inequitable
     to retroactively change the rules for renewal applications that
     have already been granted pursuant to an existing Commission
     policy, especially when most of the late-filed applications that
     were granted to date were unopposed at the time of grant. We note
     that the Joint Commenters do not challenge the right of renewal
     applicants that have been previously granted to split the
     football.[^531] Accordingly, ITF is required to split the football
     with Eudora because Eudora's license must be considered in
     existence as of January 10, 2005.

175. With respect to future grants of late-filed renewal applications,
     however, we agree with ITF and the Joint Commenters that it is
     appropriate to modify our treatment of overlapping service areas
     involving licenses that are reinstated *nunc pro tunc*. When a
     licensee allows its license to expire, the remaining active
     licensees may reasonably take action based on their expectation
     that their neighbors had no further interest in maintaining their
     expired licenses. For this reason, we believe that, even in cases
     where it is appropriate to grant late-filed renewal applications,
     it is also appropriate to require licensees who allowed their
     licenses to lapse to forfeit their rights to areas that overlap
     with other licensees. Although applicants seeking to reinstate
     their licenses *nunc pro tunc* have an interest in reacquiring
     their entire GSA, that interest should not outweigh the interest of
     licensees who maintained their licenses and may have made plans
     based on the availability of the entire overlap area. In the
     future, absent agency error or other unique circumstances,
     applicants seeking to reinstate their licenses *nunc pro tunc* who
     receive a waiver will not be allowed to split the football with
     licensees whose licenses were active on January 10, 2005 and on the
     date the applicant's late-filed renewal applications is granted.

176. The Vermont Licensees argue that adoption of the Joint Commenters'
     proposal will have strange and adverse consequences in Vermont as
     it will prevent these licensees from serving their campuses.[^532]
     As the Joint Commenters recognize, we agree (without evaluating the
     merits of the arguments made by the Vermont Licensees) that there
     may be unusual or unique circumstances where it would be unfair to
     hold that a licensee had forfeited its right to the overlap
     area.[^533] For example, there may be cases where a licensee timely
     filed a renewal application that was erroneously dismissed. In
     cases of agency error or other unique circumstances, we direct the
     Wireless Telecommunications Bureau to rule that the reinstated
     licensee is entitled to split the football with other active
     licensees. The Bureau will need to determine in each case whether
     such circumstances exist. Therefore, notwithstanding our
     implementation of this proposal, the Vermont Licensees and other
     affected licensees who believe their circumstances are sufficiently
     unique to warrant a departure from this new policy will nonetheless
     retain the ability to have their circumstances evaluated on a
     case-by-case basis.

177. We note that commenters opposing this approach argue that modifying
     the policy would be inconsistent with relief granted to previously
     granted renewal applications.[^534] While the opponents are correct
     that they would be treated differently from previously granted
     renewal applications, that difference is a result of our analysis
     and decision that a clarification and modification in policy is
     appropriate. For the reasons discussed above, we believe the
     difference in treatment is warranted.

178. Lastly, we note that Hempstead and JRZ *et al* argue that that it
     would be unfair and contrary to precedent to grant their renewal
     applications in any way other than *nunc pro tunc.* We agree with
     Hempstead[^535] and JRZ *et al.*[^536] that granting renewal
     applications on a non-*nunc pro tunc* basis would be inconsistent
     with the policy established in the *ULS MO&O*[^537] and would be
     problematic with respect to any licensees that may have been
     operating. We also agree that, to the extent we grant waivers in
     the future to when considering late-filed renewal applications, any
     future grants of late-filed renewal applications should continue to
     be on a *nunc pro tunc* basis, subject to our guidance in this
     order regarding their ability to split the football with other
     licensees.

179. Accordingly, in response to the petitions for declaratory ruling
     and other filings we have considered, we issue the following
     clarifications of our splitting the football policy:

-   An active BRS or EBS licensee whose former protected service area
    overlapped with a co-channel license that was expired on January 10,
    2005 need not split the football with such expired license if the
    licensee has not had its license reinstated.

-   If a BRS or EBS license was expired on January 10, 2005, and such
    license is later reinstated *nunc pro tunc* pursuant to a waiver
    granted for a late-filed renewal application granted after the
    adoption date of this *Fourth Memorandum Opinion and Order*, that
    licensee's geographic service shall not include any portion of its
    former protected service area that overlapped with another licensee
    whose license was in active status on January 10, 2005 and on the
    date the expired licensee's late-filed renewal application was
    granted, unless a finding is made that splitting the football is
    appropriate because of manifest Commission error or other unique
    circumstances.

# second further notice of proposed rulemaking

## Licensing EBS spectrum in the Gulf of Mexico

180. In the *BRS/EBS 4th MO&O*, we created a Gulf of Mexico Service
     Area, in part, because API persuasively argued for BRS licensing in
     the Gulf of Mexico because the Gulf is an underserved area and that
     the 2496-2690 MHz band is one of the few bands available and
     adequate for operations in support of off-shore oil and gas
     facilities. We note that of the 194 megahertz of spectrum available
     in the 2496-2690 MHz band, 112.5 megahertz is assigned to the EBS,
     leaving 73.5 megahertz (excluding the 2-four-megahertz guard bands)
     for commercial licensing in the Gulf of Mexico. Therefore, we seek
     comment on whether we should license EBS spectrum in the Gulf of
     Mexico. Commenters should address the issue of whether there is a
     need in the Gulf of Mexico for the type of educational services
     that EBS is designed to meet. Because there are no schools or
     universities in the Gulf of Mexico, we seek comment on whether any
     changes to our educational use requirements are appropriate for the
     Gulf of Mexico. In light of the questions we ask below on how to
     license vacant and available EBS spectrum generally, should we use
     the same assignment mechanism for EBS spectrum in the Gulf of
     Mexico? Alternatively, should we use a different assignment
     mechanism to account for the difference between EBS spectrum in the
     Gulf and EBS spectrum in the rest of the country? We seek comment
     on these questions and any other questions relating to licensing
     EBS spectrum in the Gulf of Mexico.

## Licensing available and unassigned EBS spectrum

### Introduction

181. As explained in the *BRS/EBS 4th MO&O*, while the Commission had
     previously decided to wait for the transition of the 2.5 GHz band
     to develop rules to auction BRS spectrum, we now believe that the
     need for commercial spectrum is such that we should promptly
     auction available and unassigned BRS spectrum.[^538] Hence, today
     we have adopted rules for competitive bidding, designated entities,
     and small business size standards to enable an auction of BRS
     spectrum.[^539]

182. As also noted in the *BRS/EBS 4th MO&O*, we are seeking further
     comment on the appropriate licensing scheme for new EBS licenses.
     We note that the opportunities presented by the new technical rules
     and band plan create additional demand for EBS spectrum, and that
     EBS eligible entities have not been able to file applications for
     new stations since 1995.[^540] In 1993, the Commission suspended
     the processing of EBS applications,[^541] except for major change
     proposals for EBS applications to accommodate settlement agreements
     among mutually exclusive applicants.[^542] Since 1993, the
     Commission has twice opened filing windows for EBS applications but
     those windows have been of short duration and applicable only to
     certain types of applications. For instance, in 1995, the
     Commission provided a five-day window for the filing of
     applications for new construction permits and for major changes to
     existing EBS facilities.[^543] In 1996, the Mass Media Bureau
     announced a sixty-day filing window for a limited class of
     applications, permitting the filing of EBS modification
     applications and amendments to pending EBS applications proposing
     to co-locate with an authorized wireless cable facility, in order
     to facilitate market wide settlements.[^544]

183. The Balanced Budget Act of 1997 (Budget Act) expanded the
     Commission\'s competitive bidding authority under Section 309(j) of
     the Communications Act by adding, among other things, provisions
     governing auctions for broadcast and other previously exempt
     services.[^545] In a subsequent order, the Commission concluded
     that the legislation required that mutually exclusive applications
     for new ITFS stations be subject to auction.[^546] The Commission
     concluded that ITFS did not fall within the exemption from
     competitive bidding for noncommercial educational broadcast
     stations.[^547] The Commission expressed concern that Section
     309(j), as adopted, might not reflect Congress\' intent with regard
     to the treatment of competing ITFS applications.[^548] Given the
     instructional nature of the service and the reservation of ITFS
     spectrum for noncommercial educational use, the Commission thought
     it possible that Congress did not intend its expansion of our
     auction authority in the Budget Act to include that service.
     Accordingly, the Commission did not proceed immediately with an
     auction of ITFS applications[^549] but sought Congressional
     guidance with regard to assigning licenses for ITFS by competitive
     bidding and proposed that Congress exempt ITFS applications from
     competitive bidding.[^550] In 2000, the Commission opened a
     settlement window to resolve mutual exclusivity between
     applications by allowing payments to applicants in return for
     dismissing their applications and permitting agreements providing
     for the authorization to be awarded to a non-applicant third
     party.[^551]

184. In 2003, the Commission reiterated its prior conclusion that
     mutually exclusive applications for new ITFS stations would be
     subject to competitive bidding and noted the Commission's attempt
     to seek Congressional guidance on this issue.[^552] It also held
     that there would be no opportunity to file new ITFS applications,
     amendments, or modifications of any kind of station (except for
     applications that involved minor modifications, assignment of
     licenses, or transfer of control) while the Commission undertook a
     major restructuring of the 2.5 GHz band plan and technical
     rules.[^553] The Commission also sought comment on potential
     options for assigning licenses for unassigned ITFS spectrum by
     competitive bidding.[^554] While the Commission later lifted the
     freeze on modification applications, the freeze on applications for
     new EBS stations remained in place.[^555]

185. In the 2004 *BRS FNPRM*, the Commission proposed to assign new EBS
     spectrum licenses using competitive bidding.[^556] The Commission
     also sought comment on geographic areas for new licenses, frequency
     blocks for new licenses, rules for auctions, bidding credits for
     small businesses and designated entities, and auctioning spectrum
     as a means of transitioning areas where a proponent has not come
     forward within the deadline established by the Commission.[^557]

186. Although the Commission has attempted to develop an efficient
     licensing scheme in the *BRS/EBS* *NPRM* and *BRS/EBS* *FNPRM*, the
     record developed to date is insufficient for us to adequately weigh
     the various options for licensing EBS spectrum, including options
     that might avoid mutually exclusive applications. In the *BRS/EBS
     3rd MO&O & 2nd R&O*, the Commission decided not to adopt auction
     rules, and instead adopted rules to encourage the transition of the
     2.5 GHz band by modifying the transition area size (changing the
     transition area size from Major Economic Area (MEA) to Basic
     Trading Area (BTA)) and permitting licensees to self-transition if
     a proponent had not filed an Initiation Plan for a particular BTA
     on or before January 21, 2009.[^558] The adoption of BTAs as the
     transition area has apparently been successful as 375 Initiation
     Plans have been filed with the Commission and 222 Post-transition
     Notifications have been filed to date. In light of these decisions,
     we now seek to develop a record on a range of options to license
     EBS spectrum in the near future, including competitive bidding and
     other assignment mechanisms, as discussed in the two sections
     below.

187. Notwithstanding the Commission's prior determinations that
     applications for initial EBS spectrum licenses are not exempt from
     competitive bidding under the Communications Act,[^559] today, we
     seek comment on a mechanism for assigning EBS licenses by
     competitive bidding among applicants, as well as through other
     means that would avoid mutual exclusivity among applications,
     obviating any need for competitive bidding. In considering the
     range of options for licensing unassigned EBS spectrum, we note
     that many educators otherwise eligible for EBS licenses may not be
     able to participate in competitive bidding for licenses, which the
     Communications Act would require before the Commission could grant
     one of multiple pending mutually exclusive applications for an EBS
     license. For example, public and educational institutions may be
     constrained from participating in competitive bidding by statutory
     or institutional constraints, such as mandates regarding budget
     processes. Indeed, past debate regarding how to correctly assess
     the relative attributable revenues of potential EBS licensees
     reflects the fact that such resources may be difficult to
     quantify.[^560] Even if there is no absolute bar to an educational
     institution or non-profit educational organization participating in
     a spectrum license auction, educators may be reluctant or unable to
     devote time, personnel and money to such an auction. Given the
     benefits that EBS can provide to educators, we believe it is
     appropriate to evaluate potential alternatives to a licensing
     scheme based upon competitive bidding.

188. We find that our prior decisions to set aside this spectrum for
     educators and educational uses makes it appropriate to consider how
     to license this spectrum in a manner that provides all potential
     eligible licensees with a full opportunity to access the spectrum.
     As noted above, given various characteristics of eligible EBS
     licensees that are unique among potential Commission licensees, a
     licensing mechanism that depends on competitive bidding to assign
     licenses may not provide many otherwise eligible EBS licensees with
     a full opportunity to participate. Accordingly, we seek further
     comment on the appropriate licensing mechanism for new EBS
     licenses. We do so without prejudging the appropriate time for
     issuing new EBS licenses, whether pursuant to competitive bidding
     or an alternative assignment mechanism.

### Competitive Bidding

189. We seek comment on several threshold questions involving the
     possibility of adopting a licensing scheme that provides for
     mutually exclusive applications and competitive bidding. First, do
     EBS eligible entities, in general, have the authority to bid for
     spectrum licenses? Typically, institutions, whether public or
     private, are limited by charters, constitutions, by-laws,
     ordinances, or other laws, and we are concerned that large numbers
     of EBS eligible entities might not be able to effectively
     participate in a spectrum auction. Second, if EBS eligible entities
     have the authority to bid for spectrum, do they have the authority
     to bid for spectrum outside of their respective jurisdictions?
     Would they have the authority to bid for spectrum in the Gulf of
     Mexico? In particular, we note that several commenters recommend
     that we license available and unassigned EBS spectrum by BTA,[^561]
     in order to correspond to the licensing areas for BRS spectrum. We
     seek comment on whether educational institutions would be able to
     competitively bid for BTAs, given that school districts are usually
     smaller than counties, while BTAs can be very large and frequently
     bisect state boundaries. If EBS eligible entities cannot bid for
     spectrum outside of their respective jurisdictions, but are
     otherwise authorized to bid for spectrum, we seek comment on
     whether educational institutions could form a consortium or some
     other joint entity to bid for spectrum in areas larger than their
     respective jurisdictions and as large as a BTA. We note that small
     rural carriers formed consortia to successfully bid in the AWS-1
     auction. We further note that under this option, if viable, members
     of the consortium could not only pool their financial resources,
     but also could disaggregate and partition the spectrum to satisfy
     the spectrum needs of individual members. After the spectrum needs
     of its members are met, the consortium could also disaggregate and
     partition any unclaimed spectrum to other EBS eligible entities
     that are not participating in the consortium. Finally, if the
     Secondary Markets leasing rules are adopted here, *see discussion
     infra*, the consortium might be able to lease any unused portions
     of their license to EBS eligible entities or to commercial
     entities.

190. Moreover, we seek comment on how we should structure the auction to
     ensure that licenses are disseminated among a wide variety of
     applicants. EBS eligible entities are either public or private
     educational institutions or non-profit organizations that provide
     educational and instructional material to educational institutions.
     Frequently, these non-profit organizations operate throughout the
     nation. In this connection, we seek comment on whether we should
     prohibit non-profit educational organizations from participating in
     an auction and limiting eligible bidders to EBS eligible entities
     that are publicly supported or privately controlled educational
     institutions accredited by the appropriate State department of
     education or the recognized regional and national accrediting
     organization. Should we permit national non-profit organizations to
     bid for spectrum in the Gulf of Mexico?

191. In the event that we adopt a licensing framework that results in
     mutually exclusive applications for licenses, we note that in the
     *BRS/EBS NPRM,* the Commission proposed to use Part 1, Subpart Q
     rules to auction geographic area licenses to use spectrum in the
     2500-2690 MHz band.[^562] We further note that today we adopted the
     rules set forth in Part 1, Subpart Q to apply to the auction of the
     available and unassigned BRS spectrum.[^563] Therefore, we propose
     to conduct any auction of the EBS spectrum in conformity with the
     general competitive bidding rules set forth in Part 1, Subpart Q,
     of the Commission's Rules, consistent with many of the bidding
     procedures that have been employed in previous auctions.[^564]
     Specifically, we propose to employ the Part 1 rules governing,
     among other things, competitive bidding design, designated
     entities, application and payment procedures, collusion issues, and
     unjust enrichment.[^565] Under this proposal, such rules would be
     subject to any modifications that the Commission may adopt in our
     Part 1 proceeding.[^566] In addition, consistent with current
     practice, matters such as the appropriate competitive bidding
     design, as well as minimum opening bids and reserve prices, would
     be determined by the Wireless Telecommunications Bureau pursuant to
     its delegated authority.[^567] We seek comment on whether any of
     our Part 1 rules or other auction procedures would be inappropriate
     or should be modified for an auction of new licenses in this band.

192. Additionally, we seek comment on whether we should adopt bidding
     credits and small business size standards in the auction of EBS
     spectrum. Because entities eligible to hold EBS licenses must be
     schools, universities, and other non-profit organizations, we seek
     comment on whether the adoption of bidding credits and small
     business size standards is applicable. We note, however, that in
     the *BRS/EBS FNPRM* the Commission proposed to define an entity
     with average annual gross revenues not exceeding \$40 million for
     the preceding three years as a "small business;" an entity with
     average gross revenues not exceeding \$15 million for the same
     period as a "very small business;" and an entity with average gross
     revenues not exceeding \$3 million for the same period as an
     "entrepreneur."[^568] The Commission further proposed to provide
     qualifying "small businesses" with a bidding credit of 15%;
     qualifying "very small businesses" with a bidding credit of 25%;
     and qualifying "entrepreneurs" with a bidding credit of 35%,
     consistent with Section 1.2110(f)(2).[^569] We seek comment on
     these proposals. In addition, we seek comment on whether we should
     modify our rules on tribal lands bidding credits, as applied to EBS
     licenses.

193. We also seek comment on the size of the spectrum blocks to be
     auctioned. Channels A, B, C, D, and G are assigned to the EBS
     service in a geographic area licensing scheme. Channels A1-A3,
     B1-B3, C1-C3, and D1-D3 are assigned to the Lower Band Segment
     (LBS), and channels G1-G3 are assigned to the Upper Band Segment
     (UBS). The LBS and the UBS are low-power segments of the 2.5 GHz
     band. Channels A4, B4, C4, D4, and G4 are assigned to the Middle
     Band Segment (MBS), the high-power segment of the 2.5 GHz
     band.[^570] Some commenters suggest that the EBS spectrum should be
     licensed by channel group so that the winning bidder would receive
     both the three low-power channels and the one high-power channel
     assigned to the group.[^571] Other commenters recommend that we
     auction the high-power channels in the group separately from the
     low-power channels in the group.[^572] Another alternative would be
     to license all of the available spectrum in the LBS and UBS as one
     frequency block and all of the available MBS spectrum as a separate
     frequency block. We note that in auctioning the BRS spectrum, the
     Commission auctioned all of the available BRS spectrum in the BTA
     so that the winning bidder won all of the available BRS channel
     groups in the BTA. Should we adopt the same policy here and license
     all of the available channel groups in the geographic area to be
     licensed? We seek comment on these options.

194. With respect to a geographic area licensing scheme, we seek comment
     on the size of the area to be licensed. As noted above, several
     commenters recommend that we license available and unassigned EBS
     spectrum by BTA to correspond to the BRS licensing area. We could,
     however, assign licenses differently than we did for BRS. For
     instance, we could assign licenses by State. Because BTAs and
     States are large, they would overlay incumbent licenses. If we were
     to license unassigned and available EBS spectrum by BTA or State,
     the overlay licenses would not provide any rights with respect to
     areas covered by other licenses, but would simply clarify that any
     area within the BTA or State not covered by other licensees was
     subject to the BTA or State license. We also seek comment on
     whether we should license smaller areas such as cellular market
     areas. For example, the Commission could divide the United States
     and its possessions, into cellular market areas (\"CMAs\"),
     including 305 Metropolitan Statistical Areas (\"MSAs\"), 428 Rural
     Statistical Areas (\"RSAs\"), and the three licensing areas that we
     have adopted for the Gulf of Mexico in these bands. If we decide to
     license the low-power channels separately from the high-power
     channels, we seek comment on whether we should adopt a different
     geographic area for the MBS channels. For instance, we could
     auction the MBS channels by GSA or by county. We seek comment on
     this option.

195. We also seek comment on whether special eligibility or spectrum
     aggregation limits would be appropriate or necessary to provide
     significant opportunities for public and private educational
     institutions to bid for spectrum. For instance, we could limit the
     amount of spectrum for which a single licensee could bid in a given
     market in order to allow a variety of educational institutions to
     obtain spectrum. We could also limit eligible bidders to EBS
     eligible entities physically located in the geographic area to be
     licensed. We seek comment on these proposals and other possible
     eligibility or spectrum aggregation limits.

### Other Assignment Mechanisms

196. If, as a result of the record developed in response to this
     *BRS/EBS 2nd FNPRM*, we learn that many EBS eligible entities would
     be precluded from bidding for spectrum, we may find that the public
     interest in making this spectrum available will lead us to adopt a
     licensing scheme that does not require competitive bidding. In this
     connection, we seek comment on all available options for granting
     geographic area licenses without providing for mutually exclusive
     applications. Commenters proposing such options should provide a
     detailed description of how their proposed option would work,
     describe what they believe the proper geographic area and channel
     blocks should be for proposed licenses, and explain why they
     believe their proposed licensing scheme would allow vacant EBS
     spectrum to be rapidly placed into use by EBS-eligible licensees
     and meet the educational, spectrum policy, and broadband goals
     underlying EBS.

197. One option would be to issue one license per state to a State
     agency designated by the Governor to be the spectrum manager for
     the entire State.[^573] These State licenses would have
     similarities to the 700 MHz public safety State license.[^574] We
     seek comment from the individual States on whether they would be
     willing to be an EBS licensee. We note that if we were to apply our
     Secondary Markets rules and policies and Section 27.1214 of our
     rules to leases entered into by a State agency, the State could
     generate revenue by leasing up to 95 percent of its capacity to
     commercial entities. Thus, we seek comment on whether this option
     would be an unfunded mandate under the Unfunded Mandate Reform Act
     of 1995.[^575]

198. In connection with this state licensing option, we seek comment on
     whether any modifications to our Secondary Markets leasing rules
     would be appropriate for these state licenses. Our Secondary
     Markets leasing rules authorize two kinds of spectrum leasing
     arrangements, spectrum manager leasing arrangements[^576] and *de
     facto* transfer leasing arrangements.[^577] Under spectrum manager
     leasing arrangements, the licensee retains *de jure* control of its
     license and *de facto* control of the leased spectrum that it
     leases to a spectrum lessee.[^578] Under *de facto* transfer
     leasing arrangements, the licensee retains *de jure* control of its
     license while transferring *de facto* control of the leased
     spectrum to a spectrum lessee.[^579]

199. Under spectrum manager leasing arrangements and *de facto* transfer
     leasing arrangements, the licensee must meet the eligibility
     requirements in the Commission's Rules.[^580] Thus, the State
     agency designated by the Governor would have to meet the
     eligibility requirements of Section 27.1201 of our Rules. Under
     both spectrum manager leasing and *de facto* transfer leasing
     arrangements, the EBS spectrum lessee is not required to meet the
     eligibility requirements of Section 27.1201 of our Rules.[^581]
     Therefore, under both our existing spectrum manager leasing and *de
     facto* transfer leasing rules, the State agency could lease
     spectrum to EBS eligible entities or to commercial entities, so
     long as our minimum educational use requirements are met. In turn,
     under both *de facto* transfer leasing arrangements and spectrum
     manager leasing arrangements, the EBS spectrum lessee could
     sublease to a commercial entity, so long as it meets our
     educational usage requirements. Normally, a licensee has full
     discretion as to whether to lease its spectrum to a third party and
     to whom it should lease its spectrum. We seek comment on whether
     any restrictions on a state's leasing discretion would be necessary
     to ensure that the full range of educational entities have access
     to EBS spectrum.

200. We also seek comment on whether any modifications to our special
     leasing rules for EBS stations would be appropriate for state
     licenses. Under Section 27.1214 of our Rules, a licensee must
     comply with certain educational programming requirements and retain
     the opportunity to purchase or to lease dedicated or common EBS
     equipment used for educational purposes or comparable equipment if
     the lease terminates. In addition, the lease term cannot exceed
     thirty years and must permit the EBS licensee to review, at year 15
     and every 5 years thereafter, its educational use requirements in
     light of changes in educational needs, technology, and other
     relevant factors and to obtain access to such additional services,
     capacity, support, and/or equipment as the parties shall agree upon
     in the spectrum leasing arrangement to advance the EBS licensee's
     educational mission.

201. In seeking comment on a State license option, we ask commenters
     whether a State license could be designed to ensure that the full
     range of EBS-eligible entities, including educational institutions
     and non-profit educational organizations unaffiliated with a State,
     would have sufficient access to EBS spectrum. We also ask whether
     any special rules would need to be applied to State licensees. We
     ask whether the application procedures applicable to the 700 MHz
     public safety state license could be applied to an EBS State
     license.[^582] Finally, we seek comment on alternatives for
     licensing spectrum in any jurisdiction in which a State fails to
     apply for a State license or for which the State loses the license
     by failing to demonstrate substantial service.[^583]

202. Another option would adopt a licensing scheme similar to the one we
     use to license private land mobile radio spectrum. Under this
     approach, applicants could submit applications for new EBS stations
     at any time to certified frequency coordinators. The frequency
     coordinators would review the applications and, in case of
     conflict, certify the earlier filed application that complies with
     the Commission's Rules for submission to the Commission. Although
     frequency coordinators typically coordinate site-based
     applications, we believe we could adopt rules adapting the use of
     frequency coordinators to 35-mile GSAs.

203. Using frequency coordination to award licenses for new EBS stations
     raises a variety of issues. First, we seek comment on whether there
     are entities that could be qualified to serve as an EBS frequency
     coordinator and the process by which the Commission should select
     one or more frequency coordinators. Second, we seek comment on the
     processes that a frequency coordinator would use to handle requests
     for EBS frequencies and to determine whether an application
     complies with the Commission's Rules. One possibility would be for
     a potential applicant to request a specific channel group and
     service area. Alternatively, a potential applicant could request a
     given number of channels in a specific area of operation, and the
     frequency coordinator could pick channels based on the available
     inventory. We also seek comment on the appropriate geographic area
     for new licenses. Specifically, we seek comment on whether new
     licenses should be issued using 35-mile radius geographic service
     areas of current, incumbent licensees, or whether some other size
     would be appropriate. We also seek comment on the appropriate size
     of the frequency block for EBS licenses awarded through the
     frequency coordination process. Available alternatives include: (1)
     issuing a separate license for each channel group; (2) licensing
     MBS channels separately and licensing LBS and UBS channels
     together; (3) issuing one UBS license, one MBS license, and one LBS
     license in a given geographic area. Finally, we ask whether it is
     appropriate or necessary to place limitations on the number of
     applications that a licensee or its affiliates could file for new
     EBS stations in a given time period in order to ensure that a wide
     variety of EBS licensees can access spectrum. We seek comment on
     these and any other issues relating to the use of frequency
     coordination to assign new EBS licenses.

204. Our discussion of specific proposals and questions is not meant to
     preclude commenters from offering other proposals or raising other
     questions relating to the assignment of new EBS licenses. We seek
     comment on all questions and issues relating to the assignment of
     new EBS licenses.

# Procedural matters

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

205. This is a permit-but-disclose notice and comment rulemaking
     proceeding. Ex parte presentations are permitted, except during the
     Sunshine Agenda period, provided they are disclosed pursuant to the
     Commission's rules.[^584]

## Comment Period and Procedures

206. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47
     CFR §§ 1.415, 1.419, interested parties may file comments and reply
     comments on or before the dates indicated on the first page of this
     document. Comments may be filed using: (1) the Commission's
     Electronic Comment Filing System (ECFS), (2) the Federal
     Government's eRulemaking Portal, or (3) by filing paper copies. See
     Electronic Filing of Documents in Rulemaking Proceedings, 63 FR
     24121 (1998).

207. *Electronic Filers*: Comments may be filed electronically using the
     Internet by accessing the ECFS: <http://www.fcc.gov/cgb/ecfs/> or
     the Federal eRulemaking Portal:
     [http://www.regulations.gov](http://www.regulations.gov/). Filers
     should follow the instructions provided on the website for
     submitting comments. For ECFS filers, if multiple docket or
     rulemaking numbers appear in the caption of this proceeding, filers
     must transmit one electronic copy of the comments for each docket
     or rulemaking number referenced in the caption. In completing the
     transmittal screen, filers should include their full name, U.S.
     Postal Service mailing address, and the applicable docket or
     rulemaking number. Parties may also submit an electronic comment by
     Internet e-mail. To get filing instructions, filers should send an
     e-mail to <ecfs@fcc.gov>, and include the following words in the
     body of the message, "get form." A sample form and directions will
     be sent in response.

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

209. *People with Disabilities*: To request materials in accessible
     formats for people with disabilities (braille, large print,
     electronic files, audio format), send an e-mail to <fcc504@fcc.gov>
     or call the Consumer & Governmental Affairs Bureau at 202-418-0530
     (voice), 202-418-0432 (tty).

210. The public may view the documents filed in this proceeding during
     regular business hours in the FCC Reference Information Center,
     Federal Communications Commission, 445 12th Street, S.W., Room
     CY-A257, Washington, D. C. 20554, and on the Commission's Internet
     Home Page: \<[http://www.fcc.gov](http://www.fcc.gov/)\>. Copies of
     comments and reply comments are also available through the
     Commission's duplicating contractor: Best Copy and Printing, Inc.,
     445 12th Street, SW, Room CY-B402, Washington, DC, 20554,
     1-800-378-3160.

## Final Regulatory Flexibility Analysis of BRS/EBS 4th MO&O 

211. The Regulatory Flexibility Act (RFA)[^585] requires that an agency
     prepare a regulatory flexibility analysis for notice and comment
     rulemakings, unless the agency certifies that \"the rule will not,
     if promulgated, have a significant economic impact on a substantial
     number of small entities.\"[^586] Accordingly, we have prepared a
     Final Regulatory Flexibility Analysis concerning the possible
     impact of the rule changes contained in this *BRS/EBS 4th MO&O* on
     small entities. The Final Regulatory Flexibility Analysis is set
     forth in Appendix B.

## Initial Regulatory Flexibility Analysis

212. As required by the Regulatory Flexibility Act of 1980 (RFA),[^587]
     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 *BRS/EBS
     2nd FNPRM*. The analysis is found in Appendix C. We request written
     public comment on the analysis. Comments must be filed in
     accordance with the same deadlines as comments filed in response to
     the *BRS/EBS 2nd FNRPM*, and must have a separate and distinct
     heading designating them as responses to the IRFA. The Commission's
     Consumer and Governmental Affairs Bureau, Reference Information
     Center, will send a copy of this *BRS/EBS 2nd FNPRM*, including the
     IRFA, to the Chief Counsel for Advocacy of the Small Business
     Administration.

## Paperwork Reduction Analysis

213. This document contains new information collection requirements
     subject to the Paperwork Reduction Act of 1995 (PRA), Public Law
     104-13.  It will be submitted to the Office of Management and
     Budget (OMB) for review under Section 3507(d) of the PRA.  OMB, the
     general public, and other Federal agencies are invited to comment
     on the new information collection requirements contained in this
     proceeding.  In addition, we note that pursuant to the Small
     Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44
     U.S.C. 3506(c)(4), we previously sought specific comment on how the
     Commission might "further reduce the information collection burden
     for small business concerns with fewer than 25 employees."

214. In this present document, we have assessed the effects of requiring
     licensees to provide information concerning their base stations to
     any nearby licensee upon request, and find that this requirement
     will benefit companies with fewer than 25 employees because it will
     help them to enjoy interference-free operations. We anticipate that
     the information exchange will consist of a limited number of
     technical parameters of a licensee's operations that licensees will
     have already established and recorded for their own operational
     purposes. Because licensees will already have such information at
     their disposal, it will not be burdensome to convey such
     information when requested. Additionally, because licensees will
     only be required to submit such information upon request from a
     neighboring licensee, this significantly limits the amount of
     potential requests for information. Therefore, we conclude that
     this information exchange will not burden companies with fewer than
     25 employees.

215. In addition to filing comments with the Secretary, a copy of any
     comments on the information collections contained herein should be
     submitted to Judith Boley Herman, Federal Communications
     Commission, 445 12^th^ Street, S.W., Room 1-B441, Washington, D.C.
     20554, or via the Internet to \<Judith-B.Herman@fcc.gov\>, and to
     Nicholas Fraser, Office of Management and Budget (OMB), via email
     to Nicholas_A.\_Fraser@ omb.eop.gov or via fax at 202-395-5167.

## Further Information

216. For further information regarding the *Big LEO Third Order on
     Reconsideration and Sixth Memorandum Opinion and Order*, please
     contact Howard Griboff, Policy Division, International Bureau,
     Federal Communications Commission, 445 12^th^ Street, S.W.,
     Washington, DC 20554, at 202-418-0657 or via the Internet at
     Howard.Griboff@fcc.gov or Jamison Prime, Policy and Rules Division,
     Office of Engineering and Technology, Federal Communications
     Commission, 445 12^th^ Street, S.W., Washington, DC 20554, at
     202-418-7474 or via the Internet at Jamison.Prime@fcc.gov. For
     further information concerning the *BRS/EBS* *Fourth Memorandum
     Opinion and Order and Second Further Notice of Proposed
     Rulemaking*, contact John Schauble, Broadband Division, Wireless
     Telecommunications Bureau, Federal Communications Commission, 445
     12th Street, S.W., Washington, D.C. 20554, at (202) 418-0797 or via
     the Internet to <John.Schauble@fcc.gov>.

# ORDERING CLAUSES

217. Accordingly, IT IS ORDERED, pursuant to sections 1, 2, 4(i), 7, 10,
     201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333 and
     706 of the Communications Act of 1934, 47 U.S.C. §§ 151, 152,
     154(i), 157, 160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319,
     324, 332, 333, and 706, that this *Third Order on Reconsideration,
     Sixth Memorandum Opinion and Order, and Fourth Memorandum Opinion
     and Order* is hereby ADOPTED.

218. IT IS FURTHER ORDERED that the Petitions for Reconsideration filed
     in these proceedings ARE GRANTED to the extent indicated and are
     otherwise DENIED.

219. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the
     Communications Act of 1934, 47 U.S.C. § 154(i), and Section 1.2 of
     the Commission's Rules, 47 C.F.R. § 1.2, that the petitions for
     declaratory ruling filed by Instructional Telecommunications
     Foundation, Inc. on March 13, 2007, New Trier High School District
     #203 on July 26, 2007, Shekinah Network on November 27, 2007, and
     Boston Catholic Television Center, Inc. on December 14, 2007 ARE
     GRANTED to the extent indicated herein and are otherwise DENIED.

220. IT IS FURTHER ORDERED that the proceeding entitled Amendment of
     Parts 21 and 74 of the Commission\'s Rules with Regard to Licensing
     in the Multipoint Distribution Service and in the Instructional
     Television Fixed Service for the Gulf of Mexico, WT Docket No.
     02-68 IS REINSTATED.

221. IT IS FURTHER ORDERED that NOTICE IS HEREBY GIVEN of the proposed
     regulatory changes described in this *Second Further* *Notice of
     Proposed Rulemaking*, and that comment is sought on these
     proposals.

222. IT IS FURTHER ORDERED that the Final Regulatory Flexibility
     Analysis IS ADOPTED.

223. IT IS FURTHER ORDERED that the Commission's Consumer and
     Governmental Affairs Bureau, Reference Information Center, SHALL
     SEND a copy of this *Third Order on Reconsideration, Sixth
     Memorandum Opinion and Order, and Fourth Memorandum Opinion and
     Order and Second Further Notice of Proposed Rulemaking and
     Declaratory Ruling*, including the Final Regulatory Flexibility
     Analysis and Initial Regulatory Flexibility Analysis, to the Chief
     Counsel for Advocacy of the Small Business Administration.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX A**

**Final Rules**

Part 27 of Title 47 of the Code of Federal Regulations is amended as
follows:

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

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

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

2.  Amend § 27.5 by revising paragraphs (i)(2)(iii) to read as follows:

**§ 27.5 Frequencies.**

\*\*\*\*\*

\(i\) \*\*\*

(2) \*\*\*

> \(iii\) Upper Band Segment (UBS): The following channels shall
> constitute the Upper Band Segment:

BRS Channel KH1: 2614.00000--2614.33333 MHz

BRS Channel KH2: 2614.33333--2614.66666 MHz

BRS Channel KH3: 2614.66666--2615.00000 MHz

EBS Channel KG1: 2615.00000--2615.33333 MHz

EBS Channel KG2: 2615.33333--2615.66666 MHz

EBS Channel KG3: 2615.66666--2616.00000 MHz

BRS Channel KF1: 2616.00000--2616.33333 MHz

BRS Channel KF2: 2616.33333--2616.66666 MHz

BRS Channel KF3: 2616.66666--2617.00000 MHz

BRS Channel KE1: 2617.00000--2617.33333 MHz

BRS Channel KE2: 2617.33333--2617.66666 MHz

BRS Channel KE3: 2617.66666--2618.00000 MHz

BRS Channel 2: 2618--2624 MHz

BRS/EBS Channel E1: 2624--2629.5 MHz

BRS/EBS Channel E2: 2629.5--2635 MHz

BRS/EBS Channel E3: 2635--2640.5 MHz

BRS/EBS Channel F1: 2640.5--2646 MHz

BRS/EBS Channel F2: 2646--2651.5 MHz

BRS/EBS Channel F3: 2651.5--2657 MHz

BRS Channel H1: 2657--2662.5 MHz

BRS Channel H2: 2662.5--2668 MHz

BRS Channel H3: 2668--2673.5 MHz

EBS Channel G1: 2673.5--2679 MHz

EBS Channel G2: 2679--2684.5 MHz

EBS Channel G3: 2684.5--2690 MHz

Note to paragraph (i)(2): No 125 kHz channels are provided for channels
in operation in this service. The 125 kHz channels previously associated
with these channels have been reallocated to Channel G3 in the upper
band segment.

\*\*\*\*\*

3.  Amend § 27.13 by adding new paragraph (h) to read as follows:

**§ 27.13 License Period.**

\*\*\*\*\*

\(h\) *BRS and EBS.* BRS and EBS authorizations shall have a term not to
exceed ten years from the date of original issuance or renewal. Unless
otherwise specified by the Commission, incumbent BRS authorizations
shall expire on May 1 in the year of expiration.

4.  Amend § 27.14 by adding new paragraph (o) to read as follows:

**§ 27.14 Construction requirements; Criteria for renewal.**

\*\*\*\*\*

\(o\) BRS and EBS licensees must make a showing of "substantial service"
no later than May 1, 2011. Incumbent BRS licensees must file their
"substantial service" showing with their renewal application.
"Substantial service" is defined as service which is sound, favorable,
and substantially above a level of mediocre service which just might
minimally warrant renewal. Substantial service for BRS and EBS licensees
is satisfied if a licensee meets the requirements of paragraph (o)(1) or
(o)(2) of this section. If a licensee has not met the requirements of
paragraph (o)(1) or (o)(2) of this section, then demonstration of
"substantial service" shall proceed on a case-by-case basis. All
substantial service determinations will be made on a license-by-license
basis. Except for BTA licenses, BRS licensees must file their
"substantial service" showing with their renewal applications. Failure
by any licensee to meet this requirement will result in forfeiture of
the license and the licensee will be ineligible to regain it.

\(1\) A BRS or EBS licensee has provided "substantial service" by:

\(i\) Constructing six permanent links per one million people for
licensees providing fixed point-to-point services;

\(ii\) Providing coverage of at least 30 percent of the population of
the licensed area for licensees providing mobile services or fixed
point-to-multipoint services;

\(iii\) Providing service to "rural areas" (a county (or equivalent)
with a population density of 100 persons per square mile or less, based
upon the most recently available Census data) and areas with limited
access to telecommunications services:

\(A\) for mobile service, where coverage is provided to at least 75% of
the geographic area of at least 30% of the rural areas within its
service area; or

\(B\) for fixed service, where the BRS or EBS licensee has constructed
at least one end of a permanent link in at least 30% of the rural areas
within its licensed area.

\(iv\) Providing specialized or technologically sophisticated service
that does not require a high level of coverage to benefit consumers; or

\(v\) Providing service to niche markets or areas outside the areas
served by other licensees.

\(2\) An EBS licensee has provided "substantial service" when:

\(i\) the EBS licensee is using its spectrum (or spectrum to which the
EBS licensee's educational services are shifted) to provide educational
services within the EBS licensee's GSA;

\(ii\) the EBS licensee's license is actually being used to serve the
educational mission of one or more accredited public or private schools,
colleges or universities providing formal educational and cultural
development to enrolled students; or

\(iii\) the level of service provided by the EBS licensee meets or
exceeds the minimum usage requirements specified in § 27.1214.

\(3\) An EBS or BRS licensee may be deemed to provide substantial
service through a leasing arrangement if the lessee is providing
substantial service under paragraph (o)(1) of this section. The EBS
licensee must also be otherwise in compliance with this Chapter
(including the programming requirements in § 27.1203 of this subpart).

\(4\) If the GSA of a licensee is less than 1924 square miles in size,
and there is an overlapping co-channel station licensed or leased by the
licensee or its affiliate, substantial service may be demonstrated by
meeting the requirements of paragraph (o)(1) or (o)(2) of this section
with respect to the combined GSAs of both stations.

\(5\) If the GSA of a BTA authorization holder, is less than one-half of
the area within the BTA for every BRS channel, substantial service may
be demonstrated for the licenses in question by meeting the requirements
of paragraph (o)(1) or (o)(2) of this section with respect to the
combined GSAs of the BTA authorization holder, together with any
incumbent authorizations licensed or leased by the licensee or its
affiliates.

5.  Amend § 27.53(m) by revising the introductory text and
    paragraphs (2) and paragraph (4) and adding a new paragraph (5) to
    read as follows:

**§ 27.53 Emission limits.**

\*\*\*\*\*

\(m\) For BRS and EBS stations, the power of any emissions outside the
licensee\'s frequency bands of operation shall be attenuated below the
transmitter power (P) measured in watts in accordance with the standards
below. If a licensee has multiple contiguous channels, out-of-band
emissions shall be measured from the upper and lower edges of the
contiguous channels.

\*\*\*\*\*

\(2\) For digital base stations, the attenuation shall be not less than
43 + 10 log (P) dB, unless a documented interference complaint is
received from an adjacent channel licensee with an overlapping
Geographic Service Area. Mobile Satellite Service licensees operating on
frequencies below 2495 MHz may also submit a documented interference
compliant against BRS licensees operating on channel BRS No. 1 on the
same terms and conditions as adjacent channel BRS or EBS licensees.
Provided that a documented interference complaint cannot be mutually
resolved between the parties prior to the applicable deadline, then the
following additional attenuation requirements shall apply:

\(i\) If a pre-existing base station suffers harmful interference from
emissions caused by a new or modified base station located 1.5 km or
more away, within 24 hours of the receipt of a documented interference
complaint the licensee of the new or modified base station must
attenuate its emissions by at least 67 + 10 log (P) dB measured at 3
megahertz, above or below, from the channel edge of its frequency block
and shall immediately notify the complaining licensee upon
implementation of the additional attenuation. No later than 60 days
after the implementation of such additional attenuation, the licensee of
the complaining base station must attenuate its base station emissions
by at least 67 + 10 log (P) dB measured at 3 megahertz, above or below,
from the channel edge of its frequency block of the new or modified base
station.

\(ii\) If a pre-existing base station suffers harmful interference from
emissions caused by a new or modified base station located less than 1.5
km away, within 24 hours of receipt of a documented interference
complaint the licensee of the new or modified base station must
attenuate its emissions by at least 67 + 10 log (P) -- 20 log(Dkm/1.5)
dB measured at 3 megahertz, above or below, from the channel edge of its
frequency block of the complaining licensee, or if both base stations
are co-located, limit its undesired signal level at the pre-existing
base station receiver(s) to no more than -107 dBm measured in a 5.5
megahertz bandwidth and shall immediately notify the complaining
licensee upon such reduction in the undesired signal level. No later
than 60 days after such reduction in the undesired signal level, the
complaining licensee must attenuate its base station emissions by at
least 67 + 10 log (P) dB measured at 3 megahertz, above or below, from
the channel edge of its frequency block of the new or modified base
station.

\(iii\) If a new or modified base station suffers harmful interference
from emissions caused by a pre-existing base station located 1.5 km or
more away, within 60 days of receipt of a documented interference
complaint the licensee of each base station must attenuate its base
station emissions by at least 67 + 10 log (P) dB measured at 3
megahertz, above or below, from the channel edge of its frequency block
of the other licensee.

\(iv\) If a new or modified base station suffers harmful interference
from emissions caused by a pre-existing base station located less than
1.5 km away, within 60 days of receipt of a documented interference
complaint: (a) the licensee of the new or modified base station must
attenuate its OOBE by at least 67 + 10 log (P) -- 20 log(Dkm/1.5)
measured 3 megahertz above or below, from the channel edge of its
frequency block of the other licensee, or if the base stations are
co-located, limit its undesired signal level at the other base station
receiver(s) to no more than -107 dBm measured in a 5.5-megahertz
bandwidth; and (b) the licensee causing the interference must attenuate
its emissions by at least 67 + 10 log (P) dB measured at 3 megahertz,
above or below, from the channel edge of its frequency block of the new
or modified base station.

\(v\) For all fixed digital user stations, the attenuation factor shall
not be less than 43 + 10 log (P) dB at the channel edge.

\*\*\*\*\*

\(4\) For mobile digital stations, the attenuation factor shall be not
less than 43 + 10 log (P) dB at the channel edge and 55 + 10 log (P) dB
at 5.5 megahertz from the channel edges. Mobile Satellite Service
licensees operating on frequencies below 2495 MHz may also submit a
documented interference complaint against BRS licensees operating on BRS
Channel 1 on the same terms and conditions as adjacent channel BRS or
EBS licensees.

\(5\) For all fixed digital user stations, the attenuation factor shall
be not less than 43 + 10 log (P) dB at the channel edge.

\*\*\*\*\*

6.  Amend § 27.55(a)(4) by revising paragraphs (i), (ii), and (iii) to
    read as follows:

**§ 27.55 Power strength limits.**

(a) \*\*\*

    \(4\) \*\*\*

\(i\) Prior to transition, the signal strength at any point along the
licensee\'s GSA boundary does not exceed the greater of that permitted
under the licensee\'s Commission authorizations as of January 10, 2005
or 47 dBµV/m.

\(ii\) Following transition, for stations in the LBS and UBS, the signal
strength at any point along the licensee\'s GSA boundary must not exceed
47 dBµV/m. This field strength is to be measured at 1.5 meters above the
ground over the channel bandwidth (*i.e.*, each 5.5 MHz channel for
licensees that hold a full channel block, and for the 5.5 MHz channel
for licensees that hold individual channels).

\(iii\) Following transition, for stations in the MBS, the signal
strength at any point along the licensee's GSA boundary must not exceed
the greater of -73.0 + 10 log(X/6) dBW/m², where X is the bandwidth in
megahertz of the channel, or for facilities that are substantially
similar to the licensee's pre-transition facilities (including
modifications that do not alter the fundamental nature or use of the
transmissions), the signal strength at such point that resulted from the
station's operations immediately prior to the transition, provided that
such operations complied with paragraph (a)(4)(i) of this section.

\*\*\*\*\*

7.  Amend § 27.1201 by revising paragraphs(a)(3) and (d) to read as
    follows:

**§ 27.1201 EBS eligibility.**

\(a\) \*\*\*

\(3\) Those applicant organizations whose eligibility is established by
service to accredited institutional or governmental organizations must
submit documentation from proposed receive sites demonstrating that they
will receive and use the applicant\'s educational usage. In place of
this documentation, a State educational television (ETV) commission may
demonstrate that the public schools it proposes to serve are required to
use its proposed educational usage. Documentation from proposed receive
sites which are to establish the eligibility of an entity not serving
its own enrolled students for credit should be in letter form, written
and signed by an administrator or authority who is responsible for the
receive site\'s curriculum planning. No receive site more than 35 miles
from the proposed station's central reference point, or outside the
applicants' proposed GSA, shall be used to establish basic eligibility.
Where broadband or data services are proposed, the letter should
indicate that the data services will be used in furtherance of the
institution's educational mission and will be provided to enrolled
students, faculty and staff in a manner and in a setting conducive to
educational usage. Where traditional educational or instructional video
services are proposed, the letter should indicate that the applicant\'s
program offerings have been viewed and that such programming will be
incorporated in the site\'s curriculum. Where educational or
instructional video services are proposed, the letter should discuss the
types of programming and hours per week of formal and informal
programming expected to be used and the site\'s involvement in the
planning, scheduling and production of programming. If other levels of
authority must be obtained before a firm commitment to utilize the
service can be made, the nature and extent of such additional
authorization(s) must be provided.

\*\*\*\*\*

\(d\) This paragraph applies to EBS licensees and applications licensed
or filed pursuant to the provisions of §27.1201(c) contained in the
edition of 47 CFR parts 20 through 39, revised as of October 1, 2005, or
§§74.990 through 74.992 contained in the edition of 47 CFR parts 70 to
79, revised as of October 1, 2004, and that do not meet the eligibility
requirements of paragraph (a) of this section. Such licensees may
continue to operate pursuant to the terms of their existing licenses,
and their licenses may be renewed, assigned, or transferred, so long as
the licensee is otherwise in compliance with this chapter. Applications
filed pursuant to the provisions of § 27.1201(c) contained in the
edition of 47 CFR parts 20 through 39, revised as of October 1, 2005 or
§§ 74.990 through 74.992 contained in the edition of 47 CFR parts 70
through 79, revised as of October 1, 2004 may be processed and granted,
so long as such applications were filed prior to July 19, 2006. The
provisions of §§ 27.1203(b)-(d) and 27.1214 of this subpart do not apply
to licenses governed by this paragraph.

8.  Amend § 27.1207 by revising paragraph (a) and the introductory text
    of paragraph (b) to read as follows:

> **§ 27.1207  BTA license authorization.**
>
> \(a\) Winning bidders must file an application (FCC Form 601) for an
> initial authorization.

(b) Initial authorizations for BRS granted after January 1, 2008, shall
    be blanket licenses for all BRS frequencies identified in 27.5(i)(2)
    and based on the geographic areas identified in 27.1208.  Blanket
    licenses cover all mobile and response stations.

> **\*\*\*\*\***

9.  Amend § 27.1208 by revising the section heading and the undesignated
    text to read as follows:

**§ 27.1208 BTA Service areas.**

Except for incumbent BRS licenses, BRS service areas are Basic Trading
Areas (BTAs) or additional service areas similar to BTAs adopted by the
Commission. BTAs are based on the Rand McNally 1992 Commercial Atlas &
Marketing Guide, 123rd Edition, at pages 38--39. The following are
additional BRS service areas in places where Rand McNally has not
defined BTAs: American Samoa; Guam; Gulf of Mexico Zone A; Gulf of
Mexico Zone B; Gulf of Mexico Zone C; Northern Mariana Islands;
Mayaguez/Aguadilla-Ponce, Puerto Rico; San Juan, Puerto Rico; and the
United States Virgin Islands. The boundaries of Gulf of Mexico Zone A
are from an area twelve nautical miles from the shoreline at mean high
tide on the north and east, to the limit of the Outer Continental Shelf
to the south, and to longitude 91º00' to the west. The boundaries of
Gulf of Mexico Zone B are from an area twelve nautical miles from the
shoreline at mean high tide on the north, to the limit of the Outer
Continental Shelf to the south, to longitude 91º00' to the east, and to
longitude 94º00' to the west. The boundaries of Gulf of Mexico Zone C
are from an area twelve nautical miles from the shoreline at mean high
tide on the north and west, to longitude 94º00' to the east, and to a
line 281 kilometers from the reference point at Linares, N.L., Mexico on
the southwest. The Mayaguez/Aguadilla-Ponce, PR, service area consists
of the following municipios: Adjuntas, Aguada, Aguadilla, Anasco,
Arroyo, Cabo Rojo, Coamo, Guanica, Guayama, Guayanilla, Hormigueros,
Isabela, Jayuya, Juana Diaz, Lajas, Las Marias, Maricao, Maunabo,
Mayaguez, Moca, Patillas, Penuelas, Ponce, Quebradillas, Rincón, Sabana
Grande, Salinas, San German, Santa Isabel, Villalba and Yauco. The San
Juan service area consists of all other municipios in Puerto Rico.

10. Amend § 27.1214 by revising paragraph (c) to read as follows:

**§ 27.1214 EBS spectrum leasing arrangements and grandfathered
leases.**

\*\*\*\*\*

\(c\) All spectrum leasing arrangements involving EBS spectrum must
afford the EBS licensee an opportunity to purchase or to lease the
dedicated or common EBS equipment used for educational purposes, or
comparable equipment in the event that the spectrum leasing arrangement
is terminated.

\*\*\*\*\*

11. Add § 27.1217 to read as follows:

**§ 27.1217 Competitive Bidding Procedures for the Broadband Radio
Service.**

Mutually exclusive initial applications for BRS licenses in the
2500-2690 MHz band are subject to competitive bidding. The general
competitive bidding procedures set forth in part 1, subpart Q of this
chapter will apply unless otherwise provided in this subpart.

12. Add § 27.1218 to read as follows:

**§ 27.1218 Designated Entities.**

\(a\) [Eligibility for small business provisions.]{.underline} (1) A
small business is an entity that, together with all attributed parties,
has average gross revenues that are not more than \$40 million for the
preceding three years.

\(2\) A very small business is an entity that, together with all
attributed parties, has average gross revenues that are not more than
\$15 million for the preceding three years.

\(3\) An entrepreneur is an entity that, together with all attributed
parties, has average gross revenues that are not more than \$3 million
for the preceding three years.

\(b\) [Bidding credits.]{.underline} (1) A winning bidder that qualifies
as a small business, as defined in this section, or a consortium of
small businesses, may use a bidding credit of 15 percent, as specified
in §1.2110(f)(2)(iii) of this chapter, to lower the cost of its winning
bid on any of the licenses in this subpart.

\(2\) A winning bidder that qualifies as a very small business, as
defined in this section, or a consortium of very small businesses, may
use a bidding credit of 25 percent, as specified in §1.2110(f)(2)(ii) of
this chapter, to lower the cost of its winning bid on any of the
licenses in this subpart.

\(3\) A winning bidder that qualifies as an entrepreneur, as defined in
this section, or a consortium of entrepreneurs, may use a bidding credit
of 15 percent, as specified in §1.2110(f)(2)(i) of this chapter, to
lower the cost of its winning bid on any of the licenses in this
subpart.

13. Amend § 27.1221 by revising paragraphs (b) through (e) and adding a
    new paragraph (f) to read as follows:

**§ 27.1221 Interference protection.**

\*\*\*\*\*

\(b\) [Height Benchmarking]{.underline}. Height benchmarking is defined
for pairs of base stations, one in each of two proximate geographic
service areas (GSAs). The height benchmark, which is defined in meters
(hb~m~) for a particular base station relative to a base station in
another GSA, is equal to the distance, in kilometers, from the base
station along a radial to the nearest point on the GSA boundary of the
other base station squared (D~km~^2^) and then divided by 17. That is,
hb ~(m)~ = D~km~^2^/17. A base station antenna will be considered to be
within its applicable height benchmark relative to another base station
if the height in meters of its centerline of radiation above average
elevation (HAAE) calculated along the straight line between the two base
stations in accordance with §§ 24.53(b) and (c) of this chapter does not
exceed the height benchmark (hb~m~). A base station antenna will be
considered to exceed its applicable height benchmark relative to another
base station if the HAAE of its centerline of radiation calculated along
the straight line between the two base stations in accordance with §§
24.53(b) and (c) of this chapter exceeds the height benchmark (hb~m~).

\(c\) [Protection for Receiving Antennas Not Exceeding the Height
Benchmark.]{.underline} Absent agreement between the two licensees to
the contrary, if a transmitting antenna of one BRS/EBS licensee's base
station exceeds its applicable height benchmark and such licensee is
notified by another BRS/EBS licensee that it is generating an undesired
signal level in excess of -107 dBm/5.5 megahertz at the receiver of a
co-channel base station that is within its applicable height benchmark,
then the licensee of the base station that exceeds its applicable height
benchmark shall either limit the undesired signal at the receiver of the
protected base station to -107dBm/5.5 megahertz or less or reduce the
height of its transmission antenna to no more than the height benchmark.
If the interfering base station has been modified to increase the EIRP
transmitted in the direction of the protected base station, it shall be
deemed to have commenced operations on the date of such modification.
Such corrective action shall be completed no later than:

\(i\) 24 hours after receiving such notification, if the base station
that exceeds its height benchmark commenced operations after the station
that is within its applicable height benchmark; or

\(ii\) 90 days after receiving such notification, if the base station
that exceeds its height commenced operations prior to the station that
is within its applicable height benchmark. For purposes of this section,
if the interfering base station has been modified to increase the EIRP
transmitted in the direction of the victim base station, it shall be
deemed to have commenced operations on the date of such modification.

\(d\) [No Protection from a Transmitting Antenna not Exceeding the
Height Benchmark.]{.underline} The licensee of a base station
transmitting antenna less than or equal to its applicable height
benchmark shall not be required pursuant to paragraph (c) of this
section to limit that antennas undesired signal level to -107dBm/5.5
megahertz or less at the receiver of any co-channel base station.

\(e\) [No Protection for a Receiving-Antenna Exceeding the Height
Benchmark]{.underline}. The licensee of a base station receive antenna
that exceeds its applicable height benchmark shall not be entitled
pursuant to paragraph (c) of this section to insist that any co-channel
base station limit its undesired signal level to -107dBm/5.5 megahertz
or less at the receiver.

\(f\) [Information Exchange]{.underline}. A BRS/EBS licensee shall
provide the geographic coordinates, the height above ground level of the
center of radiation for each transmit and receive antenna, and the date
transmissions commenced for each of the base stations in its GSA within
30 days of receipt of a request from a co-channel BRS/EBS licensee with
an operational base station located in a proximate GSA. Information
shared pursuant to this section shall not be disclosed to other parties
except as required to ensure compliance with this section.

14. Amend § 27.1231 by revising paragraph (f) introductory text to read
    as follows:

**§ 27.1231 Initiating the transition.**

\*\*\*\*\*

(f) [Initiation Plan.]{.underline} To initiate a transition, a potential
    proponent(s) must submit an Initiation Plan to the Commission at the
    Office of the Secretary in Washington, DC on or before January 21,
    2009.

\*\*\*\*\*

15. Amend § 27.1236 by revising paragraphs (a), (b)(1), and (b)(6) to
    read as follows:

**§ 27.1236 Self-transitions.**

\(a\) If an Initiation Plan is not filed on or before January 21, 2009
for a BTA, BRS and EBS licensees in that BTA may self-transition by
relocating to their default channel locations specified in §27.5(i)(2)
and complying with §§27.50(h), 27.53, 27.55 and 27.1221.

\*\*\*\*\*

\(b\) \*\*\*

(1) Notify the Secretary of the Commission on or before April 21, 2009
    that it will self-transition (see paragraph (a) of this section);

> \*\*\*\*\*

(6) Complete the self-transition on or before October 20, 2010.

\*\*\*\*\*

**APPENDIX B**

**Final Regulatory Flexibility Analysis**

*(For Fourth Memorandum Opinion and Order)*

As required by the Regulatory Flexibility Act of 1980, as amended
(RFA),[^588] we incorporated an Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact on a substantial
number of small entities by the policies and rules proposed in the
*Further Notice of Proposed Rule Making (FNPRM)*. Because we amend the
rules in this *Fourth Memorandum Opinion and Order*, we have included
this Final Regulatory Flexibility Analysis (FRFA). This present FRFA
conforms to the RFA.[^589]

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

In the *Fourth Memorandum Opinion and Order*, we continue to modify our
rules to enable the transition of the 2.5 GHz band and the provision of
new and innovative wireless services. Today, we adopt Part I, Subpart Q
as the competitive bidding rules for available and unassigned Broadband
Radio Service (BRS) spectrum; designated entity rules to provide bidding
credits for small businesses, very small businesses, and entrepreneurs;
modify technical rules concerning emission limits, signal strength
limits, and height benchmarking; special safe harbors for licensees
whose Geographic Service Area (GSA) is heavily encumbered or highly
truncated; and create three Gulf of Mexico Service Area zones.

We believe the rules we adopt today will both encourage the enhancement
of existing services using this band and promote the development of new
innovative services to the public, such as providing wireless broadband
services, including high-speed Internet access and mobile services. We
also believe that our new rules will allow licensees to adapt quickly to
changing market conditions and the marketplace, rather than to
government regulation, in determining how this band can best be used.

**Summary of Significant Issues Raised by Public Comments in Response to
the FRFA:**

No comments were submitted specifically in response to the IRFA.

**Description and Estimate of the Number of Small Entities to Which the
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.[^590] The RFA generally defines the term
"small entity" as having the same meaning as the terms, "small
business," "small organization," and "small governmental
jurisdiction."[^591] In addition, the term "small business" has the same
meaning as the term

"small business concern" under the Small Business Act.[^592] A small
business concern is one which: (1) is independently owned and operated;
(2) is not dominant in its field of operation; and (3) satisfies any
additional criteria established by the SBA.[^593] A small organization
is generally "any not-for-profit enterprise which is independently owned
and operated and is not dominant in its field."[^594] Nationwide, as of
2002, there were approximately 1.6 million small organizations.[^595]
The term \"small governmental jurisdiction\" is defined as "governments
of cities, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand."[^596] The
term "small governmental jurisdiction" is defined generally as
"governments of cities, towns, townships, villages, school districts, or
special districts, with a population of less than fifty thousand."[^597]
Census Bureau data for 2002 indicate that there were 87,525 local
governmental jurisdictions in the United States.[^598] We estimate that,
of this total, 84,377 entities were "small governmental
jurisdictions."[^599] Thus, we estimate that most governmental
jurisdictions are small. Below, we discuss the total estimated numbers
of small businesses that might be affected by our actions.

Broadband Radio Service systems, previously referred to as Multipoint
Distribution Service (MDS) and Multichannel Multipoint Distribution
Service (MMDS) systems, and "wireless cable," transmit video programming
to subscribers and provide two-way high speed data operations using the
microwave frequencies of the Broadband Radio Service (BRS) and
Educational Broadband Service (EBS) (previously referred to as the
Instructional Television Fixed Service (ITFS)).[^600] In connection with
the 1996 BRS auction, the Commission established a small business size
standard as an entity that had annual average gross revenues of no more
than \$40 million in the previous three calendar years.[^601] The BRS
auctions resulted in 67 successful bidders obtaining licensing
opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction
winners, 61 met the definition of a small business. BRS also includes
licensees of stations authorized prior to the auction. At this time, we
estimate that of the 61 small business BRS auction winners, 48 remain
small business licensees. In addition to the 48 small businesses that
hold BTA authorizations, there are approximately 392 incumbent BRS
licensees that are considered small entities.[^602] After adding the
number of small business auction licensees to the number of incumbent
licensees not already counted, we find that there are currently
approximately 440 BRS licensees that are defined as small businesses
under either the SBA or the Commission's Rules. Some of those 440 small
business licensees may be affected by the decisions in this *Fourth
Memorandum Opinion and Order*.

In addition, the SBA has developed a small business size standard for
Cable and Other Program Distribution, which includes all such companies
generating \$13.5 million or less in annual receipts.[^603] According to
Census Bureau data for 2002, there were a total of 1,191 firms in this
category that operated for the entire year.[^604] Of this total, 1,087
firms had annual receipts of under \$10 million, and 43 firms had
receipts of \$10 million or more but less than \$25 million.[^605]
Consequently, we estimate that the majority of providers in this service
category are small businesses that may be affected by the rules and
policies adopted herein. This SBA small business size standard is
applicable to EBS. There are presently 2,032 EBS licensees. All but 100
of these licenses are held by educational institutions. Educational
institutions are included in this analysis as small entities.[^606]
Thus, we estimate that at least 1,932 licensees are small businesses.

There are presently 2,032 EBS licensees. All but 100 of these licenses
are held by educational institutions. Educational institutions may be
included in the definition of a small entity.[^607] EBS is a non-profit
non-broadcast service. We do not collect, nor are we aware of other
collections of, annual revenue data for EBS licensees. We find that up
to 1,932 of these educational institutions are small entities that may
take advantage of our amended rules to provide additional flexibility to
EBS.

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

This *Fourth Memorandum Opinion and Order* modifies the reporting,
recordkeeping, or other compliance requirements previously adopted in
this proceeding. We are adopting competitive bidding procedures for
available and unassigned BRS spectrum, including small business size
standards and bidding credits for a "small business" (an entity with
attributed average annual gross revenues not exceeding \$40 million for
the preceding three years), a "very small business"(an entity with
attributed average gross revenues not exceeding \$15 million for the
preceding three years), and an "entrepreneur"(an entity with attributed
average gross revenues not exceeding \$3 million the preceding three
years ).[^608] We are also adopting two new safe harbors to enable BRS
and EBS licensees whose GSA is heavily encumbered or highly truncated to
meet the performance requirements for the 2.5 GHz band.[^609] We are
also creating three new Gulf of Mexico GSAs, which will enable the
provision of 2.5 GHz band wireless services in the Gulf of Mexico in the
future.[^610] We are changing the technical rules concerning emission
limits, signal strength limits, and antenna height benchmarking,
including requiring licensees to exchange information.[^611]

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

The RFA requires an agency to describe any significant alternatives that
it has considered in reaching its proposed approach, which may include
the following four alternatives (among others): "(1) the establishment
of differing compliance or reporting requirements or timetables that
take into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for such small entities; (3) the
use of performance, rather than design standards; and (4) an exemption
from coverage of the rule, or any part thereof, for small
entities."[^612]

Regarding our decision to adopt competitive bidding rules, we anticipate
that our decision to adopt small business size standards and bidding
credits for entities that meet the definition of small business, very
small business, or entrepreneur will not have a significant economic
impact on small entities. Because the BRS spectrum in the 2.5 GHz band
was auctioned in 1996, only 70 BTA licenses (of the 493 licenses
originally available in 1996) are available for reassignment by
competitive bidding.

Regarding our decision to adopt two new safe harbors for the
demonstration of substantial service compliance, we do not anticipate
any significant economic impact on small entities. These two safe
harbors apply only to licensees that have heavily encumbered or highly
truncated GSAs. Although the applicability of these two safe harbors is
limited, they will enable licensees to meet both our performance
requirements and our interference protection rules.

Regarding our decision to adopt three new Gulf of Mexico Service Area
Zones, we do not anticipate any significant impact on small entities. We
anticipate that spectrum in these GSAs will be used on oil platforms in
the Gulf of Mexico.

Regarding our decision to modify various technical rules, we do not
anticipate any significant impact on small entities. These modifications
are minor.

The rules set forth in the *Fourth Memorandum Opinion Order* will affect
all entities that intend to provide BRS or EBS service in the 2.5 GHz
band.

**Report to Congress:**

The Commission will send a copy of this *Fourth Memorandum Opinion
Order*, including this FRFA, in a report to be sent to Congress and the
Government Accountability Office pursuant to the Congressional Review
Act.[^613] In addition, the Commission will send a copy of this *Fourth
Memorandum Opinion Order*, including this FRFA, to the Chief Counsel for
Advocacy of the Small Business Administration. A copy of this *Fourth
Memorandum Opinion Order* and FRFA (or summaries thereof) will also be
published in the *Federal Register*.[^614]

**APPENDIX C**

**Initial Regulatory Flexibility Analysis**

*(For Second Further Notice of Proposed Rulemaking)*

As required by the Regulatory Flexibility Act of 1980, as amended
(RFA),[^615] the Commission has prepared this present Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on a substantial number of small entities by the policies and rules
proposed in this *Second* *Further Notice of Proposed Rule Making (2nd
FNPRM)*. Written public comments are requested on this IRFA. Comments
must be identified as responses to the IRFA and must be filed by the
deadlines specified in the *2nd FNPRM* for comments. The Commission will
send a copy of this *2nd FNPRM*, including this IRFA, to the Chief
Counsel for Advocacy of the Small Business Administration (SBA).[^616]
In addition, the *2nd* *FNPRM* and IRFA (or summaries thereof) will be
published in the Federal Register.[^617]

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

The *2nd FNPRM* seeks comment on various alternatives to license
unassigned and available EBS spectrum throughout the United States and
the Gulf of Mexico. Specifically, the *2nd FNPRM* seeks comments on the
following options:

1\) Using competitive bidding to license unassigned and available
spectrum.[^618] If this option is adopted the Commission proposes to use
the competitive bidding rules in Part 1, Subpart Q of the Commission's
Rules. The Commission also seeks comment on whether to adopt bidding
credits and small business size standard, the size of the spectrum
blocks to be auctioned, and the size of geographic areas to be licensed.

2\) Issuing one license per State to a State agency designated by the
Governor to act as a spectrum manager for the State.[^619] The State
agency would be required to meet the eligibility restrictions in Section
27.1201 of the Commission's Rules. The State agency would be able use
spectrum manager leasing arrangements or *de facto* transfer leasing
arrangements.

3\) Using a leasing scheme similar to the one used to license private
land mobile radio spectrum.[^620] Under this approach, applicants could
submit applications for new EBS stations at any time to frequency
coordinators.

We believe our proposals will encourage utilization of this band and the
development of new innovative services to the public such as providing
wireless broadband services, including high-speed Internet access and
mobile services while encouraging educators to use the band for
educational services.

**Legal Basis:**

The proposed action is authorized under Sections 1, 2, 4(i), 7, 10, 201,
214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333 and 706 of
the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152,
154(i), 157, 160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324,
332, 333, and 706.

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.[^621] The RFA generally defines the term
"small entity" as having the same meaning as the terms, "small
business," "small organization," and "small governmental
jurisdiction."[^622] In addition, the term "small business" has the same
meaning as the term "small business concern" under the Small Business
Act.[^623] A small business concern is one which: (1) is independently
owned and operated; (2) is not dominant in its field of operation; and
(3) satisfies any additional criteria established by the SBA.[^624] A
small organization is generally "any not-for-profit enterprise which is
independently owned and operated and is not dominant in its
field."[^625] Nationwide, as of 2002, there were approximately 1.6
million small organizations.[^626] The term \"small governmental
jurisdiction\" is defined as "governments of cities, towns, townships,
villages, school districts, or special districts, with a population of
less than fifty thousand."[^627] The term "small governmental
jurisdiction" is defined generally as "governments of cities, towns,
townships, villages, school districts, or special districts, with a
population of less than fifty thousand."[^628] Census Bureau data for
2002 indicate that there were 87,525 local governmental jurisdictions in
the United States.[^629] We estimate that, of this total, 84,377
entities were "small governmental jurisdictions."[^630] Thus, we
estimate that most governmental jurisdictions are small. Below, we
discuss the total estimated numbers of small businesses that might be
affected by our actions.

The Educational Broadband Service (EBS) (previously referred to as the
Instructional Television Fixed Service (ITFS)) is used to provide
educational services to students.[^631] The SBA has developed a small
business size standard for Cable and Other Program Distribution, which
includes all such companies generating \$13.5 million or less in annual
receipts.[^632] According to Census Bureau data for 2002, there were a
total of 1,191 firms in this category that operated for the entire
year.[^633] Of this total, 1,087 firms had annual receipts of under \$10
million, and 43 firms had receipts of \$10 million or more but less than
\$25 million.[^634] Consequently, we estimate that the majority of
providers in this service category are small businesses that may be
affected by the rules and policies adopted herein. This SBA small
business size standard is applicable to EBS. There are presently 2,032
EBS licensees. All but 100 of these licenses are held by educational
institutions. Educational institutions are included in this analysis as
small entities.[^635] Thus, we estimate that at least 1,932 licensees
are small businesses.

There are presently 2,032 EBS licensees. All but 100 of these licenses
are held by educational institutions. Educational institutions may be
included in the definition of a small entity.[^636] EBS is a non-profit
non-broadcast service. We do not collect, nor are we aware of other
collections of, annual revenue data for EBS licensees. We find that up
to 1,932 of these educational institutions are small entities that may
take advantage of our amended rules to provide additional flexibility to
EBS.

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

There are no new reporting, recordkeeping or other compliance
requirements proposed in the *2nd* *FNPRM.*

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

The RFA requires an agency to describe any significant alternatives that
it has considered in reaching its proposed approach, which may include
the following four alternatives (among others): "(1) the establishment
of differing compliance or reporting requirements or timetables that
take into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for such small entities; (3) the
use of performance, rather than design standards; and (4) an exemption
from coverage of the rule, or any part thereof, for small
entities."[^637]

The Commission has not proposed an approach for licensing EBS spectrum.
Instead, the Commission seeks comment on three distinct approaches for
licensing EBS spectrum to determine which approach would best suit the
needs of schools and universities and other non-profit educational
institutions.

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

None.

**APPENDIX D**

**List of Petitioners to *BRS/EBS 3^rd^ MO&O***

**[Petitions for Reconsideration]{.underline}**

Ad Hoc MDS Alliance

American Petroleum Institute (API)

BellSouth Corporation, BellSouth Wireless Cable, Inc., and South Florida
Television, Inc. (joint) (Bell South)

Clarendon Foundation (Clarendon)

Hispanic Information and Telecommunications Network (HITN)

NextWave Broadband Inc. (NextWave)

NY3G Partnership (NY3G)

School Board of Broward County, Florida (Broward County)

Society of Broadcast Engineers (SBE)

Wireless Communications Association International, Inc. (WCA)

**[Oppositions to Petitions for Reconsideration]{.underline}**

Ad Hoc MDS Alliance

BRS Rural Advocacy Group

Catholic Television Network/National ITFS Association (joint) (CTN NIA)

Clearwire Corporation (Clearwire)

Globalstar, Inc. (Globalstar)

Hispanic Information and Telecommunications Network

ITFS/2.5 GHz Mobile Wireless Engineering & Development Alliance, Inc.
(IMWED)

Line of Site, Inc. (LOSI)

School Board of Miami-Dade County, Florida (Miami-Dade)

Sprint Nextel Corporation (Sprint Nextel)

WiMAX Forum (WiMAX)

Wireless Communications Association International, Inc.

**[Reply to Oppositions to Petitions for Reconsideration]{.underline}**

Ad Hoc MDS Alliance

American Petroleum Institute

BellSouth Corporation, BellSouth Wireless Cable, Inc., and South Florida
Television, Inc. (joint)

Catholic Television Network/National ITFS Association (joint)

Hispanic Information and Telecommunications Network

ITFS/2.5 GHz Mobile Wireless Engineering & Development Alliance, Inc.

NextWave Broadband Inc.

PetroCom License Corporation (PetroCom)

School Board of Broward County, Florida

Sprint Nextel Corporation

Wireless Communications Association International, Inc.

**[Ex Parte]{.underline}**

American Petroleum Institute

Cantor Fitzgerald/eSpeed Inc.

Clearwire

CTN/NIA

Globalstar, Inc.

Hispanic Information and Telecommunications Network

Sprint Nextel

T-Mobile USA

Wireless Communications Association International, Inc.

[^1]: Amendment of Parts 1, 21, 73, 74 and 101 of the Commission's Rules
    to Facilitate the Provision of Fixed and Mobile Broadband Access,
    Educational and Other Advanced Services in the 2150-2162 and
    2500-2690 MHz Bands, *Report and Order and Further Notice of
    Proposed Rulemaking,* WT Docket No. 03-66, 19 FCC Rcd 14165, 14270,
    14271-14272 ¶¶ 281, 286 (2004) (*BRS/EBS R&O and FNPRM,* as
    appropriate).

[^2]: Amendment of Parts 1, 21, 73, 74 and 101 of the Commission's Rules
    to Facilitate the Provision of Fixed and Mobile Broadband Access,
    Educational and Other Advanced Services in the 2150-2162 and
    2500-2690 MHz Bands, *Third Memorandum Opinion and Order and Second*
    *Report and Order,* WT Docket No. 03-66, 21 FCC Rcd 5606 (2006)
    (*BRS/EBS 3rd MO&O & 2nd R&O*).

[^3]: A full discussion of the background and history involving this
    band is contained in Amendment of Parts 1, 21, 73, 74 and 101 of the
    Commission's Rules to Facilitate the Provision of Fixed and Mobile
    Broadband Access, Educational and Other Advanced Services in the
    2150-2162 and 2500-2690 MHz Bands, *Notice of Proposed Rulemaking
    and Memorandum Opinion and Order,* WT Docket No. 03-66, 18 FCC Rcd
    6722, 6726-6739 ¶¶ 6-31 (2003) (*BRS/EBS NPRM*), *BRS/EBS R&O &
    FNPRM*, 19 FCC Rcd at 14171-14176 ¶¶ 9-20*,* and *BRS/EBS 3rd MO&O &
    2nd R&O*, 21 FCC Rcd at 5614-5618 ¶¶ 9-19.

[^4]: *BRS/EBS R&O* and *FNPRM.*

[^5]: *BRS/EBS R&O* and FNPRM, 19 FCC Rcd at 14182-14187 ¶¶ 36-47.

[^6]: *BRS/EBS R&O and FNPRM*, 19 FCC Rcd at 14182, 14227 ¶¶ 6, 164.

[^7]: *BRS/EBS R&O and FNPRM*, 19 FCC Rcd at 14221-14227, 14230-14232 ¶¶
    149-164, 170-176.

[^8]: *BRS/EBS R&O* and *FNPRM*, 19 FCC Rcd at 14169-14170 ¶ 6.

[^9]: *BRS/EBS R&O*, 19 FCC Rcd at 14198 ¶ 74.

[^10]: *BRS/EBS R&O*, 19 FCC Rcd at 14200, 14203 ¶¶ 78, 88.

[^11]: *BRS/EBS R&O*, 19 FCC Rcd at 14205 ¶ 93.

[^12]: *BRS/EBS R&O*, 19 FCC Rcd at 14198-14199 ¶ 75.

[^13]: *BRS/EBS R&O*, 19 FCC Rcd at 14208, 14211, 14218 ¶¶ 106, 116,
    139.

[^14]: *BRS/EBS FNPRM*, 19 FCC Rcd at 14265 ¶ 265-266.

[^15]: *BRS/EBS FNPRM*, 19 FCC Rcd at 14266 ¶ 269.

[^16]: *BRS/EBS FNPRM*, 19 FCC Rcd at 14273 ¶ 290.

[^17]: *BRS/EBS FNPRM*, 19 FCC Rcd at 14282-14301 ¶¶ 320-374.

[^18]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5641 ¶ 64.

[^19]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5642 ¶ 65.

[^20]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5658-5659 ¶ 106.

[^21]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5671, 5673-5674 ¶¶ 135, 142.

[^22]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5652, 5656, 5677-5686 ¶¶ 91,
    101, 152-176.

[^23]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5650, 5665, 5678-5679 ¶¶ 87,
    122, 157-158.

[^24]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5645-5646 ¶¶ 72-74.

[^25]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5687-5689, 5699 ¶¶ 181-190,
    219-220.

[^26]: *BRS/EBS 3rd MO&O,* 21 FCC Rcd at 5689-5691 ¶¶ 191-197.

[^27]: *BRS/EBS 3rd MO&O,* 21 FCC Rcd at 5691-5694 ¶¶ 198-204.

[^28]: *BRS/EBS 3rd MO&O,* 21 FCC Rcd at 5694-5695 ¶¶ 205-208.

[^29]: *BRS/EBS 3rd MO&O,* 21 FCC Rcd at 5695-5699 ¶¶ 209-218.

[^30]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5716 ¶ 268.

[^31]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5716 ¶ 268.

[^32]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5716 ¶ 270.

[^33]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5701-5703 ¶¶ 227, 231-232.

[^34]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5703-5704 ¶¶ 236-238. The
    Commission, however, reinstated one application based on evidence
    presented by the petitioner showing that its settlement agreement
    was approved before the April 2, 2003 deadline. *BRS/EBS 3rd MO&O*,
    21 FCC Rcd at 5704 ¶ 239.

[^35]: *BRS/EBS 2nd R&O*, 21 FCC Rcd at 5737, 5762 ¶¶ 313, 383.

[^36]: *BRS/EBS 2nd R&O*, 21 FCC Rcd at 5718-5736 ¶¶ 274-310.

[^37]: *BRS/EBS 2nd R&O*, 21 FCC Rcd at 5749-5750 ¶¶ 348-350.

[^38]: These types of licenses are commonly referred to as geographic
    "overlay" licenses. *See* Winning Bidders in the Auction of
    Authorizations to Provide Multipoint Distribution Service in 493
    Basic Trading Areas, *Public Notice* (MMB WTB Mar. 29, 1996).

[^39]: *BRS/EBS FNPRM*, 19 FCC Rcd at 14265-14272 ¶¶ 266-288.

[^40]: *BRS/EBS FNPRM*, 19 FCC Rcd at 14272-14282 ¶¶ 289-319.

[^41]: *BRS/EBS FNPRM*, 19 FCC Rcd at 14270-14272 ¶¶ 281-288.

[^42]: *BRS/EBS 2nd R&O*, 21 FCC Rcd at 5738-5739, 5741 ¶¶ 317-319, 325.

[^43]: *BRS/EBS 2nd R&O*, 21 FCC Rcd at 5738 n.786.

[^44]: *BRS/EBS 2nd R&O*, 21 FCC Rcd at 5738-5739 ¶ 318.

[^45]: *BRS/EBS 2nd R&O*, 21 FCC Rcd at 5740-5741 ¶ 325.

[^46]: *BRS/EBS 2d R&O*, 21 FCC Rcd at 5739 ¶ 320.

[^47]: *BRS/EBS 2d R&O*, 21 FCC Rcd at 5739-5740 ¶¶ 320-324.

[^48]: *BRS/EBS 2d R&O*, 21 FCC Rcd at 5740 ¶ 322.

[^49]: *BRS/EBS 2d R&O*, 21 FCC Rcd at 5740 ¶ 322.

[^50]: NextWave PFR at 3-12. In referring to pleadings filed in response
    to the *BRS/EBS 3^rd^ MO&O*, we will use the short name of the party
    as indicated in Appendix D to this document, followed by \"PFR\" if
    the document is a petition for reconsideration, \"Comments\" or
    \"Opposition\" if the document is comments on or oppositions to
    petitions for reconsideration, and \"Reply\" if the pleading is a
    reply to an opposition or comment.

[^51]: NextWave PFR at 5.

[^52]: WCA Opposition at 12-16. In addition to WCA, WiMAX (a non-profit
    corporation formed to help promote and certify the compatibility and
    interoperability of broadband wireless products using the IEEE
    802.16 and ETSI HiperMAN wireless MAN specifications), Clearwire,
    and HITN all support early auction of new licenses. WiMAX Comments
    at 5-6; Sprint Nextel Opposition at 13-15; Clearwire Opposition at
    3-5; HITN Opposition at 3-4.

[^53]: Clearwire Opposition at 4, NextWave Reply at 4.

[^54]: WCA Opposition at 15, NextWave Reply at 4.

[^55]: CTN NIA Opposition at 3-4.

[^56]: IMWED Opposition at 3.

[^57]: IMWED Opposition at 4.

[^58]: IMWED Opposition at 4.

[^59]: *See*, *e.g.*, Satellite Signals of New England, *Order*, 22 FCC
    Rcd 1937 (WTB 2007), *petition for reconsideration pending*, TV
    Communications Network, Inc., *Order*, 22 FCC Rcd 1397 (WTB 2007),
    *application for review pending*, Virginia Communications, Inc.,
    *Order*, 22 FCC Rcd 1386 (WTB 2007), *petition for reconsideration
    pending*.

[^60]: Three of these eleven BTAs previously were licensed to TV
    Communications Network, Inc. (TVCN). TVCN sought relief from the
    cancellation of these and other BTA licenses. The Wireless
    Telecommunications Bureau denied TVCN's initial request for relief
    and TVCN has filed a pending application for review of that denial.
    TV Communications Network, Inc., *Order*, 22 FCC Rcd 1397 (WTB
    2007), *application for review pending*.

[^61]: Sprint Nextel Opposition at 13-15; Clearwire Opposition at 3-5.
    Sprint Nextel, Clearwire, and Polar Communications have filed
    transition initiation plans for 375 BTAs**.**

[^62]: *See* 47 C.F.R. § 27.55(a)(4).

[^63]: *See* 47 C.F.R. § 27.53(m).

[^64]: *See* 47 C.F.R. § 27.1221.

[^65]: *See generally BRS R&O*, 19 FCC Rcd at 14222-14227 ¶¶ 152-164.

[^66]: *BRS/EBS FNPRM*, 19 FCC Rcd at 14270 ¶ 281.

[^67]: *BRS/EBS R&O FNPRM*, 19 FCC Rcd at 14268-14269 ¶ 274-278.

[^68]: WCA Comments (filed Jan. 10, 2005) at 24-25, Sprint Corporation
    Comments (filed Jan. 10, 2005) at 4, Comments of Nextel Corporation
    (filed Jan. 10, 2005) at 8-9.

[^69]: *See*, *e.g.*, WCA Comments at 24-25.

[^70]: Further Comments, The School Board of Miami Dade County Florida
    (filed Jan. 10, 2005) at 2-3, Comments of Gila River
    Telecommunications, Inc. (filed Jan. 10, 2005) at 2-3, Comments of
    the National Telecommunications Cooperative Association in Response
    to the Further Notice of Proposed Rulemaking and Initial Regulatory
    Flexibility Analysis (filed Jan. 10, 2005) at 3. NTCA also suggested
    BTAs could be an alternative for the MBS. *Id*.

[^71]: *BRS/EBS FNPRM*, 19 FCC Rcd at 14272 ¶ 286. See 47 C.F.R. §
    1.2110(f)(2). We will coordinate the small business size standards
    for BRS in this proceeding with the U.S. Small Business
    Administration.

[^72]: 47 C.F.R. § 1.2110(f)(2)(i)-(iii).

[^73]: *See*, *e.g.*, Comments of SpeedNet, L.L.C. (filed Jan. 10, 2005)
    at 2.

[^74]: WCA Reply Comments (filed Feb. 8, 2005) at 30-32.

[^75]: *BRS/EBS NPRM*, 18 FCC Rcd at 6816 ¶ 233.

[^76]: *See, e.g.,* Amendment of Part 1 of the Commission's
    Rules---Competitive Bidding Procedures, WT Docket No. 97-82, *Order,
    Memorandum Opinion and Order and Notice of Proposed Rule Making,* 12
    FCC Rcd 5686 (1997); *Third Report and Order and Second Further
    Notice of Proposed Rule Making*, 13 FCC Rcd 374 (1997) (*Part 1
    Third Report and Order)*; *Order on Reconsideration of the Third
    Report and Order, Fifth Report and Order, and Fourth Further Notice
    of Proposed Rule Making*, 15 FCC Rcd 15293 (2000) (*recon. pending*)
    (*Part 1 Recon Order/ Fifth Report and Order* and *Fourth Further
    Notice of Proposed Rule Making*); *Seventh Report and Order*, 16 FCC
    Rcd 17546 (2001); *Eighth Report and Order,* 17 FCC Rcd 2962 (2002).

[^77]: *See* 47 C.F.R. § 1.2101 *et seq.*

[^78]: *See, e.g.,* Amendment of Part 1 of the Commission's Rules ---
    Competitive Bidding Procedures, *Second Order on Reconsideration of
    the Fifth Report and Order*, 20 FCC Rcd 1942 (2005) ("*Part 1
    Competitive Bidding Second Order on Reconsideration of the Fifth
    Report and Order*") (adopting modifications to the competitive
    bidding rules); Implementation of the Commercial Spectrum
    Enhancement Act and Modernization of the Commission's Competitive
    Bidding Rules and Procedures, WT Docket No. 05-211, *Report and
    Order*, 21 FCC Rcd 891 (2006) (*CSEA/Part 1 Report and Order*),
    *p**etitions for reconsideration pending*; Implementation of the
    Commercial Spectrum Enhancement Act and Modernization of the
    Commission's Competitive Bidding Rules and Procedures, WT Docket No.
    05-211, *Second Report and Order and Second Further Notice of
    Proposed Rulemaking*, 21 FCC Rcd 4753 (2006) (*Designated Entity
    Second Report and Order and Designated Entity Second FNPRM*),
    *petitions for reconsideration pending*; Implementation of the
    Commercial Spectrum Enhancement Act and Modernization of the
    Commission's Competitive Bidding Rules and Procedures, WT Docket No.
    05-211, *Order on Reconsideration of the Designated Entity Second
    Report and Order*, 21 FCC Rcd 6703 (2006) (*Designated Entity Order
    on Reconsideration of the Second Report and Order*), *petitions for
    reconsideration pending*.

[^79]: *See* Amendment of Part 1 of the Commission's Rules - Competitive
    Bidding Procedures*, Third Report and Order and Second Further
    Notice of Proposed Rule Making*, 13 FCC Rcd 374, 448-49, 454-55 ¶¶
    125, 139 (directing the Bureau to seek comment on specific
    mechanisms relating to auction conduct pursuant to the Balanced
    Budget Act of 1997) (*Part 1 Third Report and Order*).

[^80]: In the event the license for an incumbent non-BTA station cancels
    or is forfeited, the right to operate in that area automatically
    reverts to the licensee that holds the license for the corresponding
    BTA. 47 C.F.R. § 27.1206(b).

[^81]: 47 C.F.R. §§ 27.1230-27.1239.

[^82]: 47 C.F.R. § 27.1233(b).

[^83]: 47 C.F.R. § 27.1233(a).

[^84]: 47 C.F.R. § 27.1237(a). 47 C.F.R. § 27.1238 identifies the costs
    that are eligible for reimbursement.

[^85]: 47 C.F.R. § 27.1237(b).

[^86]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5671 ¶ 135. January 21, 2009 is
    the first non-holiday 30 months after July 19, 2006, the effective
    date of the amended rules.

[^87]: *BRS/EBS 3^rd^ MO&O*, 21 FCC Rcd at 5685 ¶ 175.

[^88]: *BRS/EBS 3^rd^ MO&O*, 21 FCC Rcd at 5671 ¶ 135.

[^89]: Broward County PFR at 4. Broward County's PFR does not
    distinguish between BRS and EBS licensees in advocating for early
    self-transitions.

[^90]: Broward County PFR at 4.

[^91]: Broward County PFR at 5.

[^92]: Broward County PFR at 2.

[^93]: Broward County Reply at 4.

[^94]: WiMAX Comments at 12-13, WCA Opposition at 41-42, Sprint Nextel
    Opposition at 16-17.

[^95]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5671 ¶ 135, 47 C.F.R. §
    27.1236(a).

[^96]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5671 ¶ 135.

[^97]: WiMAX Comments at 12-13, WCA Opposition at 41-42, Sprint Nextel
    Opposition at 16-17.

[^98]: See Broward County Reply at 3.

[^99]: 47 C.F.R. § 27.1232(b)(2).

[^100]: 47 C.F.R. § 27.1232(c).

[^101]: HITN *Ex Parte* Request for Clarification (filed Nov. 2, 2006).

[^102]: HITN *Ex Parte* Request for Clarification at 2-3.

[^103]: HITN *Ex Parte* Request for Clarification at 3-4.

[^104]: HITN *Ex Parte* Request for Clarification at 4-5.

[^105]: HITN *Ex Parte* Request for Clarification at 5-7.

[^106]: *Ex Parte* Letter from Paul J. Sinderbrand, Counsel for WCA to
    Marlene H. Dortch, Federal Communications Commission (dated Nov. 21,
    2006).

[^107]: See *Ex Parte* Letter from Paul J. Sinderbrand, Counsel for WCA
    to Marlene H. Dortch, Federal Communications Commission (dated Nov.
    21, 2006) at 2.

[^108]: See *infra* ¶ 40.

[^109]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5673 ¶ 141.

[^110]: WCA PFR at 9.

[^111]: WCA PFR at 9.

[^112]: WCA PFR at 9.

[^113]: WCA PFR at 9-10. WiMAX, CTN, and NIA also support this change.
    WiMAX Comments at 11, CTN/NIA Opposition at 4.

[^114]: HITN *Ex Parte* Request for Clarification at 5-7.

[^115]: HITN *Ex Parte* Request for Clarification at 5-7.

[^116]: Because these rule changes are not substantive and are
    non-controversial, there is good cause to adopt them without notice
    and comment. *See* 5 U.S.C. § 553(b)(B).

[^117]: *See* Appendix A.

[^118]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5645-5646 ¶¶ 72-74.

[^119]: HITN PFR at 12-13. On December 1, 2005, HITN filed a Petition to
    Deny WHTV Broadcasting Corporation's (d/b/a/ Digital TV One) Waiver
    Request to opt out of the transition of the 2.5 GHz band in San
    Juan, Puerto Rico. On January 29, 2007, the Wireless
    Telecommunications Bureau granted Digital TV One's waiver request.
    WHTV Broadcasting Corp. d/b/a Digital TV One, *Memorandum Opinion
    and Order*, 22 FCC Rcd 1314 (WTB 2007). HITN filed a petition for
    reconsideration of the *Memorandum Opinion and Order*, which is
    pending. Petition for Reconsideration of the Hispanic Information
    and Telecommunications Network, Inc. (filed Feb. 28, 2007).

[^120]: HITN PFR at 13. CTN and NIA state that they support these
    proposals. CTN and NIA Opposition at 5-6.

[^121]: BRS Rural Advocacy Group Opposition at 5-10.

[^122]: 47 C.F.R. § 27.1231(g).

[^123]: Accordingly, an A Group station's GSA was defined by its
    overlaps with neighboring pre-transition co-channel stations, and,
    similarly, a B Group station's GSA was defined by its overlaps with
    neighboring pre-transition co-channel stations. HITN PFR at 14.

[^124]: HITN cites the following example: If in a market in which
    licensees are seeking an opt-out waiver, the B Group station had a
    neighboring co-channel station to its east with a PSA reference
    point some 20 miles away, while the A Group station in the same
    market had no such co-channel neighbor to its east, then the GSA of
    the B Group would be truncated to the east to allow for the GSA of
    its neighbor while the A Group's GSA would extend out to the east 35
    miles from its reference point. HITN states that in this common
    scenario, it is clear that the GSA boundaries between the opt-out
    market and the market to its east would differ depending upon the
    channel group. In the example above, HITN notes, an untransitioned
    high-power high-site A3 channel in the opt-out market would
    ultimately find itself co-channel with a post-transition B2 channel
    in the market to its east. HITN PFR at 14.

[^125]: HITN PFR at 14.

[^126]: 47 C.F.R. § 27.1209(b).

[^127]: HITN PFR at 14.

[^128]: BRS Rural Advocacy Group Opposition at 9.

[^129]: *BRS/EBS R&O*, 19 FCC Rcd at 14213 ¶123.

[^130]: *BRS/EBS R&O*, 19 FCC Rcd at 14213 ¶123.

[^131]: *BRS/EBS R&O*, 19 FCC Rcd at 14213 ¶123.

[^132]: WCA PFR at 2.

[^133]: WCA PFR at 2.

[^134]: WCA PFR at 2-3.

[^135]: WCA PFR at 2-3.

[^136]: *Ex Parte* Letter from Paul Sinderbrand, Counsel for WCA, to
    Marlene H. Dortch, Federal Communications Commission (dated May 29,
    2007) at 4 and Attachment A.

[^137]: WiMAX Comments at 3.

[^138]: WiMAX Comments at 3.

[^139]: *Ex Parte* Letter from Paul Sinderbrand, Counsel for WCA, to
    Marlene H. Dortch, Federal Communications Commission (dated May 29,
    2007) (*WCA May 29 Ex Parte*) at 3 and Attachment A.

[^140]: *WCA May 29 Ex Parte* at 3 and Attachment A.

[^141]: *WCA May 29 Ex Parte* at 4 and Attachment A.

[^142]: *BRS/EBS R&O*, 19 FCC Rcd at 14215 ¶127.

[^143]: 47 C.F.R. § 27.53(m)(4).

[^144]: *BRS/EBS 3^rd^ MO&O*, 21 FCC Rcd at 5692 ¶201.

[^145]: *BRS/EBS 3^rd^ MO&O*, 21 FCC Rcd at 5692 ¶201.

[^146]: *BRS/EBS 3^rd^ MO&O*, 21 FCC Rcd at 5692 ¶201.

[^147]: WCA PFR at 4-5.

[^148]: WCA PFR at 4.

[^149]: WCA PFR at 4 and Appendix A.

[^150]: *BRS/EBS R&O*, 19 FCC Rcd at 14184 ¶ 38.

[^151]: *BRS/EBS R&O*, 19 FCC Rcd at 14185 ¶ 41.

[^152]: WCA PFR at 6.

[^153]: 47 C.F.R. § 27.53(m).

[^154]: *See* Amendment of Parts 1, 21, 73, 74 and 101 of the
    Commission's Rules to Facilitate the Provision of Fixed and Mobile
    Broadband Access, Educational and Other Advanced Services in the
    2150-2162 and 2500-2690 MHz Bands, *Order,* WT Docket No. 03-66, 19
    FCC Rcd 22284, 22290 (2004) (*BRS/EBS Modification Order*).

[^155]: WCA PFR at 6.

[^156]: WCA PFR at 6-7.

[^157]: WCA PFR at 7.

[^158]: WCA PFR at 7.

[^159]: WiMAX Comments at 2-5.

[^160]: *BRS/EBS Modification Order*, 19 FCC Rcd at 22290-22291.

[^161]: 47 C.F.R. § 27.53(m)(2).

[^162]: 47 C.F.R. § 27.53(m)(2).

[^163]: *BRS/EBS 3^rd^ MO&O*, 21 FCC Rcd at 5691 ¶197.

[^164]: WCA PFR at 3.

[^165]: WCA PFR at 4.

[^166]: WCA PFR at 5.

[^167]: WCA PFR at 5.

[^168]: WCA PFR at 5.

[^169]: WCA PFR at 5.

[^170]: WCA PFR at 5.

[^171]: 47 C.F.R. § 27.53(m)(2).

[^172]: *BRS/EBS 3^rd^ MO&O*, 21 FCC Rcd at 5690 ¶194.

[^173]: *BRS/EBS 3^rd^ MO&O*, 21 FCC Rcd at 5690-5691 ¶195.

[^174]: WCA PFR at 7.

[^175]: *BRS/EBS 3^rd^ MO&O*, 21 FCC Rcd at 5690-5691 ¶195.

[^176]: WCA PFR at 8.

[^177]: WCA PFR at 8.

[^178]: *BRS/EBS R&O*, 19 FCC Rcd at 14189 ¶54.

[^179]: *BRS/EBS R&O*, 19 FCC Rcd at 14189 ¶53.

[^180]: *BRS/EBS R&O*, 19 FCC Rcd at 14189 ¶53.

[^181]: *BRS/EBS R&O*, 19 FCC Rcd at 14189 ¶54.

[^182]: *BRS/EBS R&O*, 19 FCC Rcd at 14189 ¶55.

[^183]: *BRS/EBS R&O*, 19 FCC Rcd at 14192 ¶59.

[^184]: *BRS/EBS R&O*, 19 FCC Rcd at 14192 ¶59.

[^185]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5694 ¶205.

[^186]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5694 ¶ 205.

[^187]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5694 ¶205.

[^188]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5694 ¶ 205.

[^189]: WCA PFR at 10-12.

[^190]: WCA PFR at 11.

[^191]: WCA PFR at 11-12, *citing* Comments of ComSpec Corp. (filed Sep.
    8, 2003) at 2-3; Reply Comments of CelPlan Technologies, Inc. (filed
    Oct. 22, 2003) at 6.

[^192]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5694 ¶ 206.

[^193]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5695 ¶ 208.

[^194]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5694 ¶ 206.

[^195]: HITN PFR at 7-9.

[^196]: HITN PFR at 7-8.

[^197]: HITN PFR at 8.

[^198]: HITN PFR at 8-9.

[^199]: WCA Opposition at 21-23, Sprint Nextel Opposition at 11-12,
    WiMAX Comments at 10-11.

[^200]: WCA Opposition at 23, Sprint Nextel Opposition at 12, WiMAX
    Comments at 11.

[^201]: WCA Opposition at 23.

[^202]: WCA Opposition at 23.

[^203]: WCA Opposition at 23, WiMAX Comments at 10-11.

[^204]: Sprint Nextel Opposition at 12.

[^205]: Sprint Nextel Opposition at 12.

[^206]: *BRS/EBS R&O*, 19 FCC Rcd at 14208-14210 ¶¶ 105-110.

[^207]: *BRS/EBS R&O*, 19 FCC Rcd at 14209 ¶ 108.

[^208]: WCA PFR at 19-20.

[^209]: WCA PFR at 20.

[^210]: WCA PFR at 20, *citing* *BRS/EBS R&O*, 19 FCC Rcd at 14206 ¶ 96.

[^211]: WiMAX Comments at 14-15.

[^212]: CTN NIA Opposition at 5.

[^213]: CTN NIA Opposition at 5.

[^214]: WCA Reply at 5.

[^215]: HITN Opposition at 5.

[^216]: HITN Opposition at 6.

[^217]: HITN Opposition at 6.

[^218]: WCA Reply at 6.

[^219]: HITN Opposition at 6.

[^220]: WCA Reply at 6-7.

[^221]: 47 C.F.R. § 27.5(i)(2)(iii).

[^222]: *See* 47 C.F.R. § 21.45 (2004); 47 C.F.R. § 21.929 (2004); 47
    C.F.R. § 74.15(e) (2004). In 2006, the Wireless Telecommunications
    Bureau declined WCA's request to initiate a proceeding to adopt a
    15-year license term for BRS and EBS. *See* Letter from Joel D.
    Taubenblatt, Chief, Broadband Division, Wireless Telecommunications
    Bureau to Paul J. Sinderbrand, Esq. and Robert D. Primosch, Esq.
    (Sep. 14, 2006).

[^223]: *BRS/EBS 3^rd^ MO&O*, 21 FCC Rcd at 5669-5670 ¶¶ 129-132.

[^224]: *BRS/EBS 3^rd^ MO&O*, 21 FCC Rcd at 5670 n.358. As WCA notes,
    the footnote does not list the frequencies for BRS Channel 2,
    although BRS Channel 2 is mentioned.

[^225]: WCA PFR at 21-22. As discussed *infra*, the permanent channel
    location for BRS Channel 2 is intended to incorporate both BRS
    Channels 2 and 2A. Thus, references to BRS Channel 2 should be read
    to include BRS Channel 2A, as appropriate.

[^226]: WiMAX Comments at 14.

[^227]: WCA PFR at 21.

[^228]: *See* SBE Petition for Reconsideration, IB Docket No. 02-364
    (filed May 22, 2006) at 2-3. *See also* Sprint Nextel Corporation
    and Society of Broadcast Engineers, Inc. *Ex Parte*, IB Docket No.
    02-364, ET Docket No. 00-258 (filed June 4, 2007) supporting SBE's
    petition.

[^229]: *See generally Big LEO Spectrum Sharing Order*, 19 FCC Rcd at
    13387-13388 ¶¶ 69-71. Big LEO satellite systems provide voice and
    data communication to users with handheld mobile terminals via
    non-geostationary satellites in Low Earth Orbit (LEO). For
    additional background about MSS in the Big LEO bands, *see*
    Amendment of the Commission's Rules to Establish Rules and Policies
    Pertaining to a Mobile Satellite Service in the
    1610-1626.5/2483.5-2500 MHz Frequency Bands, CC Docket No. 92-166,
    *Report and Order*, FCC 94-261, 9 FCC Rcd 5936 (1994), *on
    reconsideration*, *Memorandum Opinion and Order*, FCC 96-54, 11 FCC
    Rcd 12861 (1996).

[^230]: *See Big LEO Order on Reconsideration and AWS 5^th^ MO&O*, 21
    FCC Rcd at 5624 ¶ 31; 47 C.F.R. § 25.208(v).

[^231]: ITU-RR App. 5, Annex 1 includes coordination threshold values of
    pfd for non-geostationary satellite orbit (NGSO) space stations and
    degradation of performance values for terrestrial systems, and
    addresses both analog and digital fixed use in the 2496-2500 MHz
    band.

[^232]: *Big LEO Order on Reconsideration and AWS 5^th^ MO&O*, 21 FCC
    Rcd at 5624 ¶ 31.

[^233]: *Id.* (citing ITU-RR App. 5, Annex 1, NOTE 7).

[^234]: *Id.* (citing Application of L/Q Licensee, Inc. for Modification
    to Order and Authorization for Globalstar, File Nos. 88-SAT-WAIV-96
    and 90-SAT-ML-96 (March 7, 1996) and *Ex Parte* Letter in IB Docket
    No. 01-185 from William Wallace, Counsel for Globalstar L.P., to
    Marlene H. Dortch, Federal Communications Commission (dated July 1,
    2002), Attachment at 18, 22-23).

[^235]: *Id.*

[^236]: *Id. See* 47 C.F.R. § 25.213(b).

[^237]: *Big LEO Order on Reconsideration and AWS 5^th^ MO&O*, 21 FCC
    Rcd at 5624-25 ¶ 31.

[^238]: BellSouth, *et al.* Petition at 7-8, 10. The actual study was
    submitted to the ITU-R Joint Task Group 6-8-9 in preparation for
    developing text for the WRC-07 Conference Preparation Meeting
    (CPM07). See ITU-R Document 6-8-9/77.

[^239]: BellSouth, *et al.* Petition at 6-10.

[^240]: *Id.* at 8-9.

[^241]: WCA Opposition at 7-12; WCA Reply at 10-13. In that regard, WCA
    points to the Commission's decision to remove the unused FSS
    allocation from the 2500-2690 MHz band in setting it aside for BRS.
    WCA Opposition at 8-11; WCA Reply at 12-13.

[^242]: WCA Opposition at 12.

[^243]: Clearwire Opposition at 7.

[^244]: WiMAX Comments at 8.

[^245]: Globalstar Opposition at 10-14.

[^246]: *Id.*

[^247]: WCA Reply at 11.

[^248]: BellSouth, *et al.* Petition at 7.

[^249]: Globalstar Opposition at 12-14.

[^250]: *Id.* at 14.

[^251]: WCA Reply at 13.

[^252]: *See* ITU-R Document 6-8-9/77, dated 27 January 2006, Entitled
    \"Results of Interference Studies from Satellite Services on Fixed
    Services in the USA Using Methodology Developed by JTG 6-8-9.\"

[^253]: The MSS allocation 2483.5-2500 MHz only overlaps 4 megahertz of
    the 6 megahertz 2496-2502 MHz BRS Channel 1.

[^254]: *See* ITU-R CPM Report (Geneva 2007) Table 1.9-2.

[^255]: *See* ITU-R CPM Report (Geneva 2007) Chapter 3, Agenda Item 1.9
    Executive Summary: "For each of the \[the three possible\] methods
    above, it was not possible to agree within the ITU‑R on one suitable
    PFD mask (limits or coordination thresholds) that would to \[*sic*\]
    be applied to space services in the band 2500-2690 MHz to facilitate
    sharing with current and future terrestrial services without placing
    undue constraints on the services to which the band is allocated on
    a co-primary basis. However, a range of PFD values are provided in
    this section of the CPM text for further consideration by WRC‑07."

[^256]: *See* Amendment of the U.S. Table of Frequency Allocations to
    Designate the 2500-2520/2670-2690 MHz Frequency Bands for the
    Mobile-Satellite Service, RM-9911, *Order*, 16 FCC Rcd 596 (2001),
    *recon. denied*, *Memorandum Opinion and Order*, 16 FCC Rcd 17222
    (2001).

[^257]: See ITU-R Document 5, 9 February 2007, United States of America
    Proposals for the Work of the Conference, Agendum Item 1.9 starting
    on page 37. *See also Ex Parte* Letter from Paul J. Sinderbrand,
    Counsel WCA to Chairman Martin, Federal Communications Commission
    (filed Dec. 10, 2007).

[^258]: See ITU-R Provisional Final Acts, Article 5, Footnote 5.4A01.
    Specifically Footnote 5.A01 states, in part, that "the coordination
    thresholds in Table 5‑2 of Annex 1 to Appendix 5 of the Radio
    Regulations (edition of 2004), in conjunction with the applicable
    provisions of Articles 9 and 11 associated with No. 9.11A, shall
    apply to \[MSS\] systems for which complete notification information
    has been received by the Radiocommunication Bureau by
    14 November 2007 and that have been brought into use by that date."

[^259]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5695 ¶ 208, 47 C.F.R. §
    27.1206(a)(1).

[^260]: The Ad Hoc MDS Alliance describes itself as being comprised of
    minority and small business enterprises holding licenses for BRS
    Channels 1 and 2 in the following sixteen major markets: Atlanta,
    GA; Chicago, IL; Columbus, OH; Detroit, MI; Houston, TX;
    Indianapolis, IN; Los Angeles, CA; Milwaukee, WI; Minneapolis, MN;
    New York, NY; Oklahoma City, OK; Phoenix, AZ; Sacramento, CA; San
    Francisco, CA; St. Louis, MO; and Washington, DC. Ad Hoc MDS
    Alliance PFR at 2 and n.3.

[^261]: Ad Hoc MDS Alliance Comments at 3. In its Petition for
    Reconsideration, the Ad Hoc MDS Alliance requested that the
    Commission clarify or modify Section 27.1206 of the Rules to provide
    that provisions requiring adjacent licensees to split the football
    do not apply to either (a) overlapping areas between primary BRS
    Channel 2 licensees and secondary BRS Channel 2/2A licensees, or (b)
    in the 2622-2624 MHz band, where a primary BRS Channel 2 licensee
    overlaps with a primary BRS Channel 2A licensee. Ad Hoc MDS Alliance
    PFR at 3. Sprint Nextel, WiMAX, and WCA Opposed Ad Hoc MDS
    Alliance's request. *See* Sprint Nextel Opposition at 10-11, WiMAX
    Opposition at 11, WCA Opposition at 20-21. Ad Hoc MDS Alliance
    changed its request during the opposition stage of the proceeding.
    *See* Ad Hoc MDS Alliance Comments. Nevertheless, WCA filed a Reply
    in opposition to Ad Hoc MDS Alliance's modified request. *See* WCA
    Reply at 17-20.

[^262]: Ad Hoc MDS Alliance Reply at 3.

[^263]: Ad Hoc MDS Alliance Comments at 4. Ad Hoc MDS Alliance believes
    that this feature of the Commission's plan is of questionable
    legality because the Commission has never discussed why Channel 2A
    licensees should receive such an upgrade or made a determination
    that affording a windfall uniquely to Channel 2A licensees is in the
    public interest. Ad Hoc MDS Alliance PFR at 3.

[^264]: Ad Hoc MDS Alliance Comments at 3.

[^265]: Ad Hoc MDS Alliance Comments at 4.

[^266]: 47 C.F.R. § 27.1206(a)(1).

[^267]: Ad Hoc MDS Alliance Opposition at 4.

[^268]: Ad Hoc MDS Alliance Opposition at 4.

[^269]: WCA Reply at 17-20.

[^270]: WCA Reply at 18.

[^271]: WCA Reply at 18-19, citing Sprint Nextel Opposition at 11.

[^272]: Ad Hoc MDS Alliance Reply at 3.

[^273]: WCA Reply at 19.

[^274]: WCA Reply at 19, citing *BRS/EBS R&O*, 19 FCC Rcd at 14194 ¶ 65.

[^275]: WCA Reply at 19.

[^276]: *See* In the Matter of Amendment of Parts 2, 21, 74 and 94 of
    the Commission\'s Rules and Regulations in regard to frequency
    allocation to the Instructional Television Fixed Service, the
    Multipoint Distribution Service, and the Private Operational Fixed
    Microwave Service, GN Docket No. 80-112, CC Docket No. 80-116,
    *Report and Order*, 94 FCC 2d 1203 (1983) (*E and F Group
    Reallocation Order*). As stated previously, the Commission renamed
    the ITFS service as the "Educational Broadband Service" (EBS) and
    MDS service the "Broadband Radio Service" (BRS). *BRS/EBS R&O*, 19
    FCC Rcd at 14169 ¶ 6.

[^277]: *E and F Group Reallocation Order*, 94 FCC 2d at 1228-29 ¶¶
    61-63.

[^278]: *See* In the Matter of Amendment of Parts 2, 21, 74 and 94 of
    the Commission\'s Rules and Regulations in regard to frequency
    allocation to the Instructional Television Fixed Service, the
    Multipoint Distribution Service, and the Private Operational Fixed
    Microwave Service, GN Docket No. 80-112, CC Docket No. 80-116,
    *Memorandum Opinion and Order on Reconsideration*, 98 FCC 2d 129,
    132-33 ¶ 12 (1983) (*E and F Group Reallocation Reconsideration
    Order*). *See also* 47 C.F.R. § 74.902(c).

[^279]: *E and F Group Reallocation Reconsideration Order,* 98 FCC 2d
    129, 132-33 ¶ 12 n.8.

[^280]: *E and F Group Reallocation Reconsideration Order,* 98 FCC 2d
    129, 132-33 ¶ 12 n.8.

[^281]: 47 C.F.R. § 74.902(c) (2004).

[^282]: *BRS/EBS FNPRM*, 19 FCC Rcd at 14290 ¶ 337.

[^283]: *BRS/EBS 2^nd^ R&O*, 21 FCC Rcd at 5744-45 ¶¶ 336-338.

[^284]: *BRS/EBS 2^nd^ R&O*, 21 FCC Rcd at 5749 ¶ 348.

[^285]: 47 C.F.R. § 27.1206.

[^286]: *BRS/EBS 2^nd^ R&O*, 21 FCC Rcd at 5749 ¶ 349.

[^287]: *BRS/EBS 2^nd^ R&O*, 21 FCC Rcd at 5750 ¶ 350.

[^288]: NY3G PFR at 3, BellSouth Reply at 6-7, LOSI Opposition at 2-5.

[^289]: NY3G PFR at 3, BellSouth Reply at 7, LOSI Opposition at 4.

[^290]: BellSouth Reply at 7.

[^291]: CTN and NIA Reply at 3, citing *BRS/EBS 3rd MO&O*, 21 FCC Rcd at
    5750-51 ¶ 352, Miami-Dade Opposition at 2.

[^292]: CTN and NIA Reply at 3.

[^293]: NextWave PFR at 13.

[^294]: NextWave PFR at 13.

[^295]: NextWave PFR at 13.

[^296]: NextWave PFR at 13.

[^297]: NextWave PFR at 13.

[^298]: NextWave PFR at 13.

[^299]: NextWave PFR at 13-14.

[^300]: NextWave PFR at 14.

[^301]: NextWave PFR at 14.

[^302]: NextWave PFR at 14.

[^303]: NextWave PFR at 14.

[^304]: NextWave PFR at 14.

[^305]: NextWave PFR at 14.

[^306]: NextWave PFR at 14.

[^307]: NextWave PFR at 14.

[^308]: NextWave PFR at 14.

[^309]: NextWave PFR at 14-15.

[^310]: LOSI Opposition at 4, CTN NIA Opposition at 2-3.

[^311]: LOSI Opposition at 4.

[^312]: LOSI Opposition at 4-5.

[^313]: LOSI Opposition at 5.

[^314]: LOSI Opposition at 5.

[^315]: LOSI Opposition at 5.

[^316]: CTN and NIA Reply at 4, BellSouth Reply at 8.

[^317]: CTN and NIA Reply at 4.

[^318]: CTN and NIA Reply at 4.

[^319]: BellSouth Reply at 8.

[^320]: 47 C.F.R. § 27.1206.

[^321]: *See* *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5750-5751 ¶ 352.

[^322]: A single UBS post-transition channel in the E and F channel
    groups is 5.5 megahertz wide. *See* 47 C.F.R. § 27.5(i)(2)(iii).

[^323]: NY3G Supplement to Petition for Reconsideration (filed Dec. 11,
    2006).

[^324]: *Ex Parte* Letter from Trey Hanbury, Director, Government
    Affairs, Sprint Nextel Corporation to Marlene H. Dortch, Federal
    Communications Commission (filed Jan. 8, 2007).

[^325]: NY3G Supplement to Petition for Reconsideration (filed Dec. 11,
    2006).

[^326]: *See* *BRS/EBS R&O and FNPRM*, 19 FCC Rcd at 14244-14246 ¶¶
    207-210. *See* 47 C.F.R. § 1.948(f).

[^327]: NY3G Reply to Opposition to Supplement (filed Jan. 25, 2007).

[^328]: *See* 47 C.F.R. § 27.5(i)(2)(ii), (iii).

[^329]: *See*, *e.g.*, Alliance for Higher Education, *Memorandum
    Opinion and Order*, 19 FCC Rcd 23967 (WTB BD 2004), Letter from John
    J. Schauble, Deputy Chief, Broadband Division, Wireless
    Telecommunications Bureau to Wayne D. Johnsen, Esq. and Robin J.
    Cohen (WTB BD Jan. 29, 2007).

[^330]: Petition for Rulemaking of Gulf Coast MDS Service Company (Gulf
    Coast Petition) (May 21, 1996).

[^331]: Amendment of Parts 21 and 74 of the Commission\'s Rules With
    Regard to Licensing in the Multipoint Distribution Service and in
    the Instructional Television Fixed Service for the Gulf of Mexico,
    *Notice of Proposed Rulemaking*, WT Docket No. 02-68, 17 FCC Rcd
    8446 (2002) (*Gulf NPRM*).

[^332]: *See Gulf NPRM*, 17 FCC Rcd at 8447, 8453 ¶¶ 2, 18.

[^333]: *BRS/EBS NPRM*, 18 FCC Rcd at 6722, 6761 ¶¶ 5, 93.

[^334]: *BRS/EBS NPRM*, 18 FCC Rcd at 6761 ¶ 94.

[^335]: *BRS/EBS FNPRM*, 19 FCC Rcd at 14298-14299 ¶¶ 364-365.

[^336]: *BRS/EBS FNPRM*, 19 FCC Rcd at 14298-14299 ¶¶ 364-365.

[^337]: *BRS/EBS FNPRM*, 19 FCC Rcd at 14299 ¶ 365.

[^338]: *BRS/EBS FNPRM*, 19 FCC Rcd at 14300 ¶ 367.

[^339]: *BRS/EBS 2nd R&O*, 21 FCC Rcd at 5762 ¶ 383.

[^340]: *BRS/EBS 2nd R&O*, 21 FCC Rcd at 5762 ¶ 383.

[^341]: *BRS/EBS 2nd R&O*, 21 FCC Rcd at 5762 ¶ 383.

[^342]: API PFR at 2. The American Petroleum Institute (API) is a
    national trade association representing more than 400 companies
    involved in all phases of the petroleum and natural gas industries,
    including exploration, production, refining, marketing, and
    transportation of petroleum, petroleum products, and natural gas.
    API PFR at 5. API's members utilize a wide variety of
    telecommunications systems, including point-to-point,
    point-to-multipoint microwave, and two-way mobile radio systems in
    the Gulf of Mexico to serve a variety of telecommunications
    requirements, including communications between remote oil and gas
    exploration and production sites, for supervisory control and data
    acquisition (SCADA) systems used to operate production facilities
    remotely, and to communicate with onshore operations. API PFR at 6.
    *See also Ex Parte* Letter from Jack Richards, Counsel for API, to
    Marlene H. Dortch, Secretary, Federal Communications Commission
    (dated Aug. 3, 2006).

[^343]: API Reply at 5.

[^344]: API PFR at 2.

[^345]: API PFR at 9.

[^346]: API PFR at 9.

[^347]: API PFR at 14.

[^348]: API PFR at 15. These zones would be as follows: Zone A: The
    boundaries of Zone A should be from the shoreline at high mean tide
    on Florida's Gulf Coast on the east to longitude 91º00′ on the west;
    Zone B: The boundaries of Zone B should be from longitude 91º00′ on
    the east to longitude 94º00′ on the west; and Zone C: The boundaries
    of Zone C should be from longitude 94º00′ on the east, the shoreline
    at mean high tide on the north and west, a 280 km (175 mile) radius
    from the reference point at Linares, N.L., Mexico. API PFR at 15-16.

[^349]: API PFR at 17.

[^350]: WCA Opposition at 28, Sprint Nextel Opposition at 2-3.

[^351]: WCA Opposition at 31, Sprint Nextel Opposition at 2-3.

[^352]: Sprint Nextel Opposition at 6, citing 5 U.S.C. § 553(b); WCA
    Opposition at 29.

[^353]: WCA Opposition at 35-36, Sprint Nextel Opposition at 8. *See*
    *Gulf NPRM*, 17 FCC Rcd at 8464 ¶ 39. ("\[D\]ucting is a phenomenon
    whereby a radio signal is trapped within and between stratified
    layers of the atmosphere which have non-uniform refractivity
    indexes. This layering is caused by climatological processes such as
    subsidence, advection, surface heating and radiative cooling and the
    ducts created due to these factors can extend for distances of tens
    to hundreds of miles.") *See also* Letter from Paul J. Sindebrand,
    Esq., counsel for WCA, to Marlene H. Dortch, Secretary, Federal
    Communications Commission, WT Docket No. 06-136 (Apr. 9, 2007) (*WCA
    April 9 Ex Parte*).

[^354]: WCA Opposition at 38, citing *Gulf NPRM*, 17 FCC Rcd at 8452-53
    ¶¶ 17-18.

[^355]: Sprint Nextel Opposition at 8.

[^356]: WCA Opposition at 33, citing WCA *FNPRM* Comments at 39-43 and
    WCA *FNPRM* Reply Comments at 38-42.

[^357]: WCA Opposition at 37, *citing* 47 C.F.R. § 27.1206(a)(2),
    *formerly* 47 C.F.R. § 21.933(a)(2003).

[^358]: WCA Opposition at 37.

[^359]: WCA Opposition at 39-40.

[^360]: WCA Opposition at 40. WCA states that for purposes of the
    co-channel height benchmarking rule, the distance to the border used
    in the formula D^2^/17 should be the distance to the border of the
    BTA in issue.

[^361]: *BRS/EBS 2nd R&O*, 21 FCC Rcd at 5762 ¶ 383.

[^362]: *BRS/EBS 2nd R&O*, 21 FCC Rcd at 5762 ¶ 383.

[^363]: *See, e.g*., Senate Committee on Homeland Security and
    Governmental Affairs, Hurricane Katrina: A Nation Still Unprepared,
    109^th^ Cong., 2d Sess. (2006).

[^364]: *See, e.g*., Chevron Announces Record Setting Well Test at Jack
    (Sep. 5, 2006),
    <http://www.chevron.com/news/press/2006/2006-09-05.asp> .

[^365]: Gulf of Mexico Energy Security Act of 2006, Pub.L. No. 109-432,
    Division C, Title I.

[^366]: *BRS/EBS 2nd R&O*, 21 FCC Rcd at 5762 ¶ 383.

[^367]: 47 C.F.R. § 1.429(b)(3). *See* WCA Opposition at 32-33, Sprint
    Nextel Opposition at 2-3.

[^368]: API Reply at 5.

[^369]: API PFR at 8.

[^370]: API PFR at 7. API cites data from the Minerals Management
    Service of the United States Department of the Interior that
    indicates that there are approximately 4000 oil and natural gas
    platforms in the Gulf, 954 of which are manned. About 152 companies
    conduct business in the Gulf related to oil and natural gas
    production, and 23% of U.S. natural gas production and approximately
    30% of U.S. oil production occurs in the Federal portion of the Gulf
    of Mexico. API states that this activity is expanding, especially in
    the deepwater regions of the Gulf; as of April 2006, there were
    reportedly 94 wells being drilled in Gulf waters for exploration
    purposes, and several parties have sought to establish a
    regassification plant in the waters of the Gulf by which liquefied
    natural gas could be imported into the U.S. Some 45 of these wells
    were located in areas with water depths upwards of 1000 feet, while
    11 were in water depths of 5000 feet or greater, and exploration
    wells have been drilled in record water depths of over 11,000 feet.
    API states that the distances these facilities are located from
    shore eliminate the possibility of receiving service from land-based
    providers. *Id*.

[^371]: API PFR at 8.

[^372]: We note that the Commission has established service areas in the
    Gulf of Mexico in the AWS band (1710-1755 and 2110-2155 MHz) which
    was auctioned in 2006, and the 700 MHz band (698-746, 747-762 and
    777-792 MHz), auctioned in 2008. *See* In re Advanced Wireless
    Services in the 1.7 GHz and 2.1 GHz Bands, *Report and Order,* WT
    Docket No. 02-353, 18 FCC Rcd 25162, 25177 ¶ 40 (2003) (*AWS R&O*);
    In the Matter of Service Rules for the 698-746, 747-762 and 777-792
    MHz bands, *Report and Order and Further Notice of Proposed
    Rulemaking,* WT Docket No. 06-150, 22 FCC Rcd 8064, 8085 ¶ 49 (2007)
    (*700 MHz R&O & FNPRM*). Nonetheless, we believe that the potential
    availability of Gulf of Mexico service areas in these bands does not
    reduce the public interest benefit of establishing a Gulf of Mexico
    service area in this band.

[^373]: API PFR at 8.

[^374]: API PFR at 8.

[^375]: API PFR at 7-8.

[^376]: API Reply at 5.

[^377]: API Reply at 4-5.

[^378]: *See Gulf NPRM*, 17 FCC Rcd at 8453 ¶ 18.

[^379]: *See* 47 C.F.R. §§ 27.6(a)(2), 27.6(c)(2)(i)-(ii),
    27.6(h)(1)(i)-(ii).

[^380]: Ex Parte Letter from Jack Richards, Counsel for API, to John J.
    Schauble, Federal Communications Commission (dated Jan. 10, 2007).

[^381]: API PFR at 15.

[^382]: *See* 47 C.F.R. § 27.1206(a)(2).

[^383]: API PFR at 17.

[^384]: API PFR at 17.

[^385]: Clarendon PFR at 2-8. Clarendon provides the following example
    of such a provision from an EBS excess capacity lease agreement:

    Subject to the provisions for earlier termination contained in
    Section 10 hereof, this Amended Agreement will extend for: (a) an
    initial term of five (5) years from the Effective Date (the "Initial
    Term"); (b) two additional terms of five (5) years each (each a
    "Renewal Term" and collectively, the "Renewal Terms") unless
    \[lessee\] notifies \[lessor\] at lease ninety (90) days before the
    end of the Initial Term or the First Renewal Term, as the case may
    be, that \[lessee\] elects not to extend this Amended Agreement for
    the upcoming Renewal Term; and (c) **should the FCC during the
    Initial Term or any Renewal Term revise its rules and policies to
    allow the length of leases of ITFS excess capacity to extend beyond
    fifteen (15) years, such number of additional terms of one (1) year
    each *as are permitted by the FCC*...**(emphasis in original).
    Clarendon PFR at 3-4.

[^386]: Clarendon PFR at 4-5.

[^387]: Clarendon PFR at 4-5.

[^388]: Clarendon PFR at 4-5.

[^389]: Clarendon PFR at 4-5.

[^390]: Clarendon PFR at 2-4. *See also* *BRS/EBS 3rd MO&O*, 21 FCC Rcd
    at 5715-5716 ¶¶ 266, 269.

[^391]: *See Nextwave Broadband, Inc. v. Saint Rose Church Schools*,
    Order, Superior Court of New Jersey, Mercer County, Chancery
    Division, Docket No. C-53-06 (June 16, 2006); Clarendon PFR at 7
    n.5; HITN PFR at 7 n.12.

[^392]: HITN PFR at 6 and 7 n.12.

[^393]: HITN PFR at 7. HITN states that as perhaps the largest licensee
    of EBS spectrum, it is duty-bound to bring this situation to the
    attention of the Commission. Furthermore, HITN states that it is not
    asking the Commission to extricate it from spectrum leases that it
    executed. HITN states that it has no leases for any of its 70
    stations that contain these one-sided lease clauses. HITN Reply at
    8-9.

[^394]: HITN PFR at 7 n.12. HITN states that these leases have an
    unknown start date because the initiation of the term is triggered
    by commencement of wireless cable video services, construction of
    the wireless cable video system, or service provision of the first
    wireless cable video subscriber -- none of which, in the vast
    majority of cases, ever occurred, and which now cannot occur. HITN
    PFR at 7 n.12.

[^395]: HITN Reply at 9.

[^396]: HITN Reply at 9.

[^397]: HITN PFR at 7 n.12.

[^398]: Clearwire Opposition at 9, CTN/NIA Opposition at 5-6, IMWED
    Opposition at 6.

[^399]: Clearwire Opposition at 9.

[^400]: IMWED Opposition at 6.

[^401]: WiMAX Opposition at 6-7, WCA Opposition at 24-25, Sprint Nextel
    Opposition at 18, BellSouth Reply at 4-5.

[^402]: WCA Opposition at 27, BellSouth Reply at 5, Sprint Nextel Reply
    at 4.

[^403]: BellSouth Reply at 5-6, *citing* Sprint Nextel Opposition at 19.

[^404]: Amendment of Part 74 of the Commission's Rules with Regard to
    the Instructional Television Fixed Service, MM Docket No. 93-24,
    *Report and Order*, 10 FCC Rcd. 2907,2914 ¶ 38 (1995).

[^405]: Amendment of Part 74 of the Commission's Rules with Regard to
    the Instructional Television Fixed Service, MM Docket No. 93-24,
    *Report and Order*, 10 FCC Rcd. 2907,2914 ¶ 38 (1995).

[^406]: Amendment of Parts 21 and 74 to Enable Multipoint Distribution
    Service and Instructional Television Fixed Service Licensees to
    Engage in Two-Way Transmissions, MM Docket No. 97-217, *Report and
    Order*, 13 FCC Rcd 19112, 19183-18184 ¶¶ 133-134 (1998) (*Two-Way
    Order*).

[^407]: *Two-Way Order,* 13 FCC Rcd at 19181 ¶ 130. *See also* Amendment
    of Parts 1, 21 and 74 to Enable Multipoint Distribution Service and
    Instructional Television Fixed Service Licensees to Engage in Fixed
    Two-Way Transmissions, MM Docket 97-217, *Report and Order on
    Reconsideration,* 14 FCC Rcd. 12764, 12791 ¶ 59 (2000) (*Two-Way
    Order on Reconsideration*). The Commission originally declined to
    grandfather leases subject to automatic renewal after March 31, 1997
    because grandfathering these leases could have permitted them to
    continue in perpetuity under the rules adopted prior to the *Two-Way
    Order*. The Commission reversed this decision when the petitioners
    assured the Commission that the leases that would be grandfathered
    could have a total term of ten years. Amendment of Parts 1, 21 and
    74 to Enable Multipoint Distribution Service and Instructional
    Television Fixed Service Licensees to Engage in Fixed Two-Way
    Transmissions, MM Docket 97-217, *Report and Order on Further
    Reconsideration and Further Notice of Proposed Rulemaking*, 15 FCC
    Rcd. 14566, 14569-14570 ¶ 11 (2000) (*Two-Way Order Further Recon*).

[^408]: *Two-Way Order Further Recon*., 15 FCC Rcd at 14569-14570 ¶ 11.

[^409]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5715 ¶ 266.

[^410]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5716 ¶ 268.

[^411]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5716 ¶ 270.

[^412]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5716 ¶ 269.

[^413]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5715 ¶ 266.

[^414]: WiMAX Opposition at 7, WCA Opposition at 27, Sprint Nextel
    Opposition at 22-23.

[^415]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5717 ¶ 272.

[^416]: WCA PFR at 13-15.

[^417]: WCA PFR at 13-14.

[^418]: WCA PFR at 13-14.

[^419]: WCA PFR at 13-14.

[^420]: WiMAX Opposition at 14, CTN/NIA Opposition at 4.

[^421]: BellSouth PFR at 1-2.

[^422]: BellSouth PFR at 3, 5.

[^423]: BellSouth PFR at 5.

[^424]: BellSouth Reply at 3, *citing* Biztel, Inc., *Memorandum Opinion
    and Order*, 18 FCC Rcd 3308 (WTB/PSPWD 2003).

[^425]: BellSouth PFR at 4.

[^426]: BellSouth PFR at 3.

[^427]: Ad Hoc MDS Alliance Opposition at 6.

[^428]: Clearwire Opposition at 8.

[^429]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5720, 5733 ¶¶ 278, 304.

[^430]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5735 ¶ 307.

[^431]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5720 ¶ 278.

[^432]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5726-5729 ¶¶ 288, 292, 294.

[^433]: WCA PFR at ii.

[^434]: WCA PFR at 17.

[^435]: WCA PFR at 17.

[^436]: We note that subsequent to the adoption of the BRS/EBS
    substantial service rule, the rule was deleted in another proceeding
    unrelated to BRS/EBS. *See* Service Rules for the 698-806 MHz Band,
    Revision of the Commission\'s Rules Regarding Public Safety Spectrum
    Requirements, and a Declaratory Ruling on Reporting Requirement
    under the Commission\'s Anti-Collusion Rule, 72 Fed. Reg. 48814-01
    (Aug. 24, 2007). This deletion was an error. We conclude that the
    best means of correcting this error is to readopt the original rule,
    together with the changes we adopt today, as Section 27.14(o) of the
    Commission's Rules.

[^437]: WCA PFR at 18.

[^438]: WiMAX Opposition at 14, CTN/NIA Opposition at 4-5.

[^439]: WCA PFR at 15. In auctioning the BRS frequencies the Commission
    stated:

    \[W\]e realize that a number of BTA service areas may be so
    encumbered that the winning bidder for such a BTA may be unable to
    file a long-form application proposing another MDS station within
    the BTA while meeting the Commission's interference standards as to
    all previously authorized or proposed MDS and ITFS facilities. The
    winning bidder's objective in bidding on such a heavily encumbered
    BTA would likely be to purchase the previously authorized or
    proposed MDS stations within that BTA, and the bidder's goal in
    obtaining the authorization for the BTA in which it already had MDS
    stations would similarly be to preserve full flexibility to make
    modifications.

    Amendment of Parts 21 and 74 of the Commission's Rules With Regard
    to Filing Procedures in the Multipoint Distribution Service and in
    the Instructional Television Fixed Service and Implementation of
    Section 309(j) of the Communications Act - Competitive Bidding,
    *Report and Order*, MM Docket No. 94-131, 10 FCC Rcd 9589, 9656 ¶
    152 (1995). WCA PFR at 16.

[^440]: WCA PFR at 18.

[^441]: WCA PFR at 18.

[^442]: On September 1, 2005, in a separate proceeding, Possible
    Revision or Elimination of Rules Under the Regulatory Flexibility
    Act, 5 U.S.C. § 610 in response to Public Notice DA-05-1524, HITN
    submitted comments seeking the same revisions to the EBS eligibility
    requirements of Section 27.1201(a)(3). HITN notes that these
    comments are directly related to changes recently made by the
    Commission in this WT Docket No. 03-66 and requests that the
    Commission address those comments here. HITN PFR at 9-10. *See also*
    Letter from Joel D. Taubenblatt, Chief, Broadband Division, WTB, to
    Rudolph J. Geist, Esquire, RJGLaw LLC (dated Aug. 21, 2006).

[^443]: 47 C.F.R. § 27.1201(a).

[^444]: 47 C.F.R. § 27.1201(a).

[^445]: 47 C.F.R. § 27.1201(a)(3).

[^446]: 47 C.F.R. § 27.1201(a)(3).

[^447]: HITN PFR at 11.

[^448]: HITN PFR at 10.

[^449]: HITN PFR at 10.

[^450]: HITN PFR at 10-11.

[^451]: HITN PFR at 11.

[^452]: HITN PFR at 11.

[^453]: HITN PFR at 11.

[^454]: HITN PFR at 11.

[^455]: HITN PFR at 11.

[^456]: Clearwire Opposition at 9, CTN/NIA Opposition at 5-6.

[^457]: WCA PFR at ii and 22-23. *See also* WiMAX Opposition at 14 in
    support of WCA's PFR.

[^458]: WCA PFR at ii and 23.

[^459]: HITN PFR at ii and 3.

[^460]: HITN PFR at 3.

[^461]: HITN PFR at 5.

[^462]: HITN PFR at 3-4.

[^463]: HITN PFR at 4.

[^464]: Clearwire Opposition at 5. See also *Ex Parte* Letter from Terri
    B. Natoli, Clearwire to Marlene H. Dortch, Federal Communications
    Commission (filed Nov. 7, 2006) at 1.

[^465]: Clearwire Opposition at 6.

[^466]: Clearwire Opposition at 6.

[^467]: Clearwire Opposition at 6.

[^468]: Clearwire Opposition at 6.

[^469]: Clearwire Opposition at 7.

[^470]: WCA Opposition at 18.

[^471]: WCA Opposition at 18.

[^472]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5703-5704 ¶ 236.

[^473]: *BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5703-5704 ¶ 236.

[^474]: 47 C.F.R. § 1.429(i).

[^475]: HITN PFR at 3.

[^476]: Amendment of the Commission's Rules Concerning Maritime
    Communications, *Second Report and Order*, PR Docket No. 97-257, 12
    FCC Rcd 16949 (1997) (*Maritime Services Order*).

[^477]: *Ex Parte* Letter from Rudolph J. Geist, Counsel, HITN to
    Marlene H. Dortch, Federal Communications Commission (filed Oct. 23,
    2006) at 1.

[^478]: *Ex Parte* Letter from Rudolph J. Geist, Counsel, HITN to
    Marlene H. Dortch, Federal Communications Commission (filed Oct. 23,
    2006) at 1, *citing Kessler v. FCC*, 326 F.2d 673 (D.C. Cir. 1963).

[^479]: *Ex Parte* Letter from Rudolph J. Geist, Counsel, HITN to
    Marlene H. Dortch, Federal Communications Commission (filed Oct. 23,
    2006) at 2.

[^480]: *Ex Parte* Letter from Paul J. Sinderbrand, Counsel, WCA to
    Marlene H. Dortch, Federal Communications Commission (filed Oct. 30,
    2006) at 4-5.

[^481]: *Ashbacker Radio Corp. v. FCC*, 326 U.S. 327 (1945).

[^482]: *Kessler v. FCC*, 326 F.2d at 687-688.

[^483]: *BRS/EBS NPRM*, 18 FCC Rcd at 6813 ¶ 226.

[^484]: *BRS/EBS R&O*, 19 FCC Rcd at 14264-14265 ¶ 263.

[^485]: *See Maritime Services Order*. *See also* Amendment of Part 22
    and Part 90 of the Commission's Rules to Facilitate Future
    Development of Paging Systems, WT Docket No. 96-18, *Second Report
    and Order and Further Notice of Proposed Rulemaking*, 12 FCC Rcd
    2732 (1997), 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,
    *Memorandum Opinion and Order*, 14 FCC Rcd 12428 (1999).

[^486]: *See Bachow Communications, Inc. v. FCC*, 237 F.3d 683 (D.C.
    Cir. 2001).

[^487]: HITN PFR at 3-4, *citing BRS/EBS 3rd MO&O*, 21 FCC Rcd at 5740 ¶
    321.

[^488]: Letter from Edwin N. Lavergne, Catholic Television Network, Todd
    D. Gray, National ITFS Association, Paul J. Sinderbrand, Wireless
    Communications Association, Inc., Terri B. Natoli, Vice President,
    Regulatory Affairs & Public Policy, Clearwire Corporation, Trey
    Hanbury, Director Government Affairs, Sprint Nextel Corporation,
    Cheryl Crate, Vice President, Government and Public Relations,
    Xanadoo, LLC, and Jennifer M. McCarthy, Vice President, Regulatory
    Affairs, NextWave Wireless, Inc. to Marlene H. Dortch, Federal
    Communications Commission (dated Sep. 28, 2007) (Ex Parte Letter).

[^489]: Petition for Declaratory Ruling, filed by Instructional
    Telecommunications Foundation, Inc. (filed Mar. 13, 2007) (ITF
    Petition); Petition of New Trier Township, High School District 203
    for an Expedited Declaratory Ruling (dated Jul. 26, 2007) (New Trier
    Petition); Request for Declaratory Ruling filed by Shekinah Network
    (filed Nov. 27, 2007); Boston Catholic Television Center, Inc.
    Petition for Declaratory Ruling (filed Dec. 14, 2007) (BCTC
    Petition).

[^490]: Clearwire Opposition at 6.

[^491]: Clearwire Opposition at 6.

[^492]: Clearwire Opposition at 6.

[^493]: Clearwire Opposition at 6.

[^494]: Clearwire Opposition at 6.

[^495]: Clearwire Opposition at 6.

[^496]: WCA Reply at 16, Sprint Nextel Reply at 9-10.

[^497]: WCA Reply at 16.

[^498]: WCA Reply at 16.

[^499]: Sprint Nextel Reply at 9.

[^500]: Sprint Nextel Reply at 9.

[^501]: *See* 47 C.F.R. § 27.1206(a)(1); *BRS/EBS R&O,* 19 FCC Rcd 14192
    at ¶ 59.

[^502]: *3^rd^ MO&O & 2^nd^ R&O*, 21 FCC Rcd at 5694-5 ¶ 206.

[^503]: Forty-one Late-Filed Applications for Renewal of Educational
    Broadband Service, *Memorandum Opinion and Order*, 22 FCC Rcd 879
    (WTB 2007), *recon. pending* (*Order of 41*).

[^504]: ITF Petition.

[^505]: *Id*. at 3-4.

[^506]: *Id.* at 2.

[^507]: *Id.* at 2.

[^508]: New Trier Petition. At the time New Trier filed its request for
    declaratory ruling, the license for Station WHR850 was expired, and
    Waubonsee did not have a renewal application on file. Subsequently,
    Waubonsee filed a late-filed renewal application with a request for
    waiver. *See* File No. 0003186718 (filed Oct. 1, 2007). Also, New
    Trier withdrew its application for renewal of Station KGZ66 after it
    failed to respond to a return letter and its license expired. *See*
    File No. 0003065293 (filed Jun. 11, 2007). New Trier was forced to
    file a late-filed renewal application with a waiver request. *See*
    File No. 0003188417 (filed Oct. 3, 2007).

[^509]: *Id.* at 1-2.

[^510]: *Id*. at 3-4.

[^511]: *Id*. at 6-7.

[^512]: Shekinah Petition at 1-2. Shekinah hold the licenses for EBS
    Stations WLX919, WLX950, WLX975, WLX978, WLX994, WNC373, WNC407,
    WNC426, WNC533, WNC552, WNC661, WNC732, WNC767, WNC773, WNC787,
    WNC798, WNC810, WNC868, WNC892, WNC893, WNC904, WNC956, WND210,
    WND321, WND329, WND348, WND401, WND465, WND476, WND515, WND581,
    WND627, and WQFG870. Shekinah Petition at 2.

[^513]: Shekinah Petition at 3.

[^514]: BCTC Petition at 1.

[^515]: BCTC Petition at 3.

[^516]: Letter from Edwin N. Lavergne, Catholic Television Network, Todd
    D. Gray, National ITFS Association, Paul J. Sinderbrand, Wireless
    Communications Association, Inc., Terri B. Natoli, Vice President,
    Regulatory Affairs & Public Policy, Clearwire Corporation, Trey
    Hanbury, Director Government Affairs, Sprint Nextel Corporation,
    Cheryl Crate, Vice President, Government and Public Relations,
    Xanadoo, LLC, and Jennifer M. McCarthy, Vice President, Regulatory
    Affairs, NextWave Wireless, Inc. to Marlene H. Dortch, Federal
    Communications Commission (dated Sep. 28, 2007) (Ex Parte Letter).

[^517]: Ex Parte Letter at 3-4.

[^518]: *See* Motion for Extension of Time, File Nos. 0003014539 and
    0003138474 (filed Oct. 4, 2007).

[^519]: Response to Petition for Declaratory Ruling (filed Oct. 1,
    2007).

[^520]: Response of Hempstead Independent School District to Written *Ex
    Parte* Presentation (Oct. 5, 2007) (Hempstead Response).

[^521]: Letter from Paul Woodfin, Vice President, Financial and
    Administrative Services, Texas State Technical College West Texas,
    to Marlene H. Dortch, Secretary, Federal Communications Commission
    (Oct. 19, 2007) (TSTC Opposition).

[^522]: Opposition to *Ex Parte* Proposal (filed Oct. 5, 2007) (JRZ
    Opposition).

[^523]: Letter from Dr. Jane O'Meara Sanders, President, Burlington
    College, Dr. David F. Finney, President, Champlain College, Dr.
    Richard W. Schneider, President, Norwich University, Dr. John J.
    Neuhauser, President, Saint Michael's College, to Marlene H. Dortch,
    Secretary, Federal Communications Commission (Feb. 15, 2008)
    (Vermont Licensees' Opposition).

[^524]: 47 C.F.R. § 1.2.

[^525]: Ex Parte Letter at 2.

[^526]: *See* Hempstead Response at 2, TSTC Opposition at 1-2, JRZ
    Opposition at 5.

[^527]: We recognize that New Trier is not currently in this situation
    because its license has expired and Waubonsee has now filed a
    late-filed renewal application. We believe it is appropriate to
    issue this ruling to provide certainty and relief to other licensees
    in this situation.

[^528]: *See*, *e.g.*, *Order of 41*.

[^529]: *See* Biennial Regulatory Review -- Amendment of Parts 0, 1, 13,
    22, 24, 26, 27, 80, 87, 90, 95, and 101 of the Commission's Rules to
    Facilitate Development and Use of the Universal Licensing System in
    the Wireless Telecommunications Service, *Memorandum Opinion and
    Order on Reconsideration*, WT Docket No. 98-20, 14 FCC Rcd 11476,
    11486 ¶ 22 (1999) (*ULS MO&O*).

[^530]: The term *nunc pro tunc*, meaning "now for then," refers to acts
    allowed to be done after the time when they should be done, with a
    retroactive effect. *See* BLACK\'S LAW DICTIONARY 1069 (6th ed.
    1990).

[^531]: Ex Parte Letter at 3.

[^532]: Vermont Licensees' Opposition at 2.

[^533]: Ex Parte Letter at 3.

[^534]: *See* TSTC Opposition at 2, JRZ Opposition at 6.

[^535]: Hempstead Response at 3.

[^536]: JRZ Opposition at 8-9.

[^537]: *ULS MO&O*, 14 FCC Rcd at 11486 ¶ 22.

[^538]: *See supra* ¶ 14.

[^539]: *See supra* ¶¶ 26-28.

[^540]: *See* Notice of Instructional Television Fixed Service Filing
    Window From October 16, 1995, through October 20, 1995, *Public
    Notice*, Report No. 23565A (rel. Aug. 4, 1995).

[^541]: Amendment of Part 74 of the Commission's Rules with Regard to
    the Instructional Television Fixed Service, *Notice of Proposed
    Rulemaking,* MM Docket No. 93-24, 8 FCC Rcd 1275 (1993).

[^542]: *Id.* at 1277 n.13. *See also* Amendment of Part 74 of the
    Commission's Rules with Regard to the Instructional Television Fixed
    Service, *Order and Further Notice of Proposed Rulemaking,* MM
    Docket No. 93-24, 9 FCC Rcd 3348, 3354 (1994). The Commission
    reiterated this policy in the *Report and Order* in MM Docket No.
    93-24, 10 FCC Rcd 2907, 2911 (1995).

[^543]: *See* Notice of Instructional Television Fixed Service Filing
    Window From October 16, 1995, through October 20, 1995, *Public
    Notice*, Report No. 23565A (rel. Aug. 4, 1995).

[^544]: Mass Media Bureau Announces Commencement of Sixty (60) Day
    Period for Filing ITFS Modifications and Amendments Seeking to
    Co-Locate Facilities with Wireless Cable Operations, *Public
    Notice*, 11 FCC Rcd 22422 (1996).

[^545]: 47 U.S.C. § 309(j).

[^546]: Implementation of Section 309(j) of the Communications
    Act---Competitive Bidding for Commercial Broadcast and Instructional
    Television Fixed Services Licenses, Reexaminiation of the Policy
    Statement on Comparative Broadcast Hearings, Proposals to Reform the
    Commission's Comparative Hearing Process to Expedite the Resolution
    of Cases, *First Report and Order,* MM Docket No. 97-234, GC Docket
    No. 92-52, and GEN Docket No. 90-264, 13 FCC Rcd 15920, 15999-16001
    ¶¶ 197-204 (1998) (*Balanced Budget Act Order*), *recon. denied*, 14
    FCC Rcd 8724, *modified*, 14 FCC Rcd 12,541 (1999), *aff'd sub nom.
    Orion Communications, Ltd. v. FCC*, 213 F.3d 761 (D.C. Cir. 2000).

[^547]: *Balanced Budget Act Order*, 13 FCC Rcd 16000-16001 ¶¶ 200-202.
    *See* 47 U.S.C. §§ 309(j)(2)(C), 397(6).

[^548]: *Id.*, 13 FCC Rcd at 16002 ¶ 204.

[^549]: *Id.*

[^550]: Section 257 Report to Congress, *Report*, 15 FCC Rcd 15376,
    15445 ¶ 183 (2000).

[^551]: ITFS Mutually Exclusive Applications -- Settlement Period,
    *Public Notice*, 15 FCC Rcd 5916 (2000).

[^552]: *BRS/EBS NPRM*, 18 FCC Rcd at 6734 ¶ 22.

[^553]: *BRS/EBS NPRM*, 18 FCC Rcd at 6813 ¶ 226.

[^554]: *BRS/EBS NPRM*, 18 FCC Rcd at 6814-6816 ¶¶ 230-232.

[^555]: Amendment of Parts 1, 21, 73, 74 and 101 of the Commission's
    Rules to Facilitate the Provision of Fixed and Mobile Broadband
    Access, Educational and Other Advanced Services in the 2150-2162 and
    2500-2690 MHz Bands, WT Docket No. 03-66, *Second Memorandum Opinion
    and Order*, 18 FCC Rcd 16848, 16852-16853 ¶¶10-11 (2003).

[^556]: *BRS/EBS FNPRM*, 19 FCC Rcd at 14265 ¶ 266.

[^557]: In the *BRS/EBS FNPRM*, the Commission sought further comment on
    auctioning available and unassigned EBS spectrum. *See* *BRS/EBS
    FNPRM*, 19 FCC Rcd at 14265-14280 ¶¶ 264-312.

[^558]: *BRS/EBS 2nd R&O*, 21 FCC Rcd at 5737 ¶ 313.

[^559]: *Balanced Budget Act Order*, 13 FCC Rcd at 15999 ¶ 197.

[^560]: *BRS/EBS 2d R&O,* 21 FCC Rcd at 5740-41 ¶ 325 and n.797 (citing
    comments).

[^561]: CTN NIA Comments (filed Jan. 10, 2005) at 11, IMWED Comments
    (filed Jan. 10, 2005) at 9, WCA Comments (filed Jan. 10, 2005) at
    24.

[^562]: *BRS/EBS NPRM*, 18 FCC Rcd at 6816 ¶ 233.

[^563]: *See supra* ¶ 26.

[^564]: *See, e.g.,* Amendment of Part 1 of the Commission's
    Rules---Competitive Bidding Procedures, WT Docket No. 97-82, *Order,
    Memorandum Opinion and Order and Notice of Proposed Rule Making,* 12
    FCC Rcd 5686 (1997); *Third Report and Order and Second Further
    Notice of Proposed Rule Making*, 13 FCC Rcd 374 (1997) (*Part 1
    Third Report and Order)*; *Order on Reconsideration of the Third
    Report and Order, Fifth Report and Order, and Fourth Further Notice
    of Proposed Rule Making*, 15 FCC Rcd 15293 (2000) (*recon. pending*)
    (*Part 1 Recon Order/ Fifth Report and Order* and *Fourth Further
    Notice of Proposed Rule Making*); *Seventh Report and Order*, 16 FCC
    Rcd 17546 (2001); *Eighth Report and Order,* 17 FCC Rcd 2962 (2002).

[^565]: *See* 47 C.F.R. § 1.2101 *et seq.*

[^566]: *See, e.g.,* Amendment of Part 1 of the Commission's Rules ---
    Competitive Bidding Procedures, *Second Order on Reconsideration of
    the Fifth Report and Order*, 20 FCC Rcd 1942 (2005) (*Part 1
    Competitive Bidding Second Order on Reconsideration of the Fifth
    Report and Order*) (adopting modifications to the competitive
    bidding rules); Implementation of the Commercial Spectrum
    Enhancement Act and Modernization of the Commission's Competitive
    Bidding Rules and Procedures, WT Docket No. 05-211, *Report and
    Order*, 21 FCC Rcd 891 (2006) (*CSEA/Part 1 Report and Order*),
    *petitions for reconsideration pending*; Implementation of the
    Commercial Spectrum Enhancement Act and Modernization of the
    Commission's Competitive Bidding Rules and Procedures, WT Docket No.
    05-211, *Second Report and Order and Second Further Notice of
    Proposed Rulemaking*, 21 FCC Rcd 4753 (2006) (*Designated Entity
    Second Report and Order and Designated Entity Second FNPRM*),
    *petitions for reconsideration pending*; Implementation of the
    Commercial Spectrum Enhancement Act and Modernization of the
    Commission's Competitive Bidding Rules and Procedures, WT Docket No.
    05-211, *Order on Reconsideration of the Designated Entity Second
    Report and Order*, 21 FCC Rcd 6703 (2006) (*Designated Entity Order
    on Reconsideration of the Second Report and Order*), *petitions for
    reconsideration pending*.

[^567]: *See* Amendment of Part 1 of the Commission's Rules -
    Competitive Bidding Procedures*, Third Report and Order and Second
    Further Notice of Proposed Rule Making*, 13 FCC Rcd 374, 448-49,
    454-55 ¶¶ 125, 139 (directing the Bureau to seek comment on specific
    mechanisms relating to auction conduct pursuant to the Balanced
    Budget Act of 1997) (*Part 1 Third Report and Order*).

[^568]: *BRS/EBS FNPRM*, 19 FCC Rcd at 14271-14272 ¶ 286. *See* 47
    C.F.R. § 1.2110(f)(2).

[^569]: *BRS/EBS FNPRM*, 19 FCC Rcd at 14271-14272 ¶ 286. 47 C.F.R. §
    1.2110(f)(2)(i)-(iii).

[^570]: 47 C.F.R. § 27.5(i)(2).

[^571]: CTN NIA Comments (filed Jan. 10, 2005) at 13, HITN Comments
    (filed Jan. 10, 2005) at 6.

[^572]: WCA Comments (filed Jan. 10, 2005) at 24, Clearwire Comments
    (filed Jan. 10, 2005) at 11-12.

[^573]: *See* 47 C.F.R. §§ 1.9001-1.980.

[^574]: *See* 47 C.F.R. § 90.529.

[^575]: 1995, Pub. L. No. 104-4, 109 Stat. 66. That Act is designed "to
    end the imposition, in the absence of full consideration by
    Congress, of Federal mandates on State, local, and tribal
    governments without adequate funding." *Id.*

[^576]: 47 C.F.R. § 1.9020.

[^577]: 47 C.F.R. § 1.9030.

[^578]: 47 C.F.R. § 1.9003.

[^579]: 47 C.F.R. § 1.9003.

[^580]: 47 C.F.R. § 1.9020(b)(2), 47 C.F.R. § 1.9030(d)(2). *See* 47
    C.F.R. § 27.1201 for EBS eligibility requirements.

[^581]: 47 C.F.R. § 1.9020(d)(2), 1.9030(d)(2).

[^582]: *See* 47 C.F.R. 90.529(a)(1); Public Safety 700 MHz Band-State
    License Option to Apply Runs Through December 31, 2001, *Public
    Notice*, 16 FCC Rcd 3547 (2001).

[^583]: 47 C.F.R. § 27.14(e) (all EBS licensees must demonstrate
    substantial service by May 1, 2011).

[^584]: *See generally* 47 C.F.R. §§ 1.1202, 1.1203, 1.1206.

[^585]: *See* 5 U.S.C. § 601--612. The RFA has been amended by the Small
    Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Pub.
    L. No. 104-121, Title II, 110 Stat. 857 (1996).

[^586]: 5 U.S.C. § 605(b).

[^587]: *See* 5 U.S.C. § 603.

[^588]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601-612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996, (SBREFA) Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^589]: *See* 5 [U.S.C. §
    604.](http://www4.law.cornell.edu/uscode/5/603.html)

[^590]: 5 U.S.C. § 603(b)(3).

[^591]: 5 U.S.C. § 601(6).

[^592]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small business concern" in the Small Business Act 15 U.S.C. § 632.
    Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small
    business applies "unless an agency, after consultation with the
    Office of Advocacy of the Small Business Administration and after
    opportunity for public comment, establishes one or more definitions
    of such term which are appropriate to the activities of the agency
    and publishes such definition(s) in the Federal Register." 5 U.S.C.
    § 601(3).

[^593]: 15 U.S.C. § 632.

[^594]: 5 U.S.C. § 601(4).

[^595]: Independent Sector, The New Nonprofit Almanac & Desk Reference
    (2002).

[^596]: 5 U.S.C. § 601(5).

[^597]: 5 U.S.C. § 601(5).

[^598]: U.S. Census Bureau, Statistical Abstract of the United States:
    2006, Section 8, page 272, Table 415.

[^599]: We assume that the villages, school districts, and special
    districts are small, and total 48,558. *See* U.S. Census Bureau,
    Statistical Abstract of the United States: 2006, section 8, page
    273, Table 417. For 2002, Census Bureau data indicate that the total
    number of county, municipal, and township governments nationwide was
    38,967, of which 35,819 were small. *Id.*

[^600]: Amendment of Parts 21 and 74 of the Commission's Rules with
    Regard to Filing Procedures in the Multipoint Distribution Service
    and in the Instructional Television Fixed Service and Implementation
    of Section 309(j) of the Communications Act -- Competitive Bidding,
    MM Docket No. 94-131 and PP Docket No. 93-253, *Report and Order*,
    10 FCC Rcd 9589, 9593 ¶ 7 (1995) (*MDS Auction R&O)*.

[^601]: 47 C.F.R. § 21.961(b)(1).

[^602]: 47 U.S.C. § 309(j). Hundreds of stations were licensed to
    incumbent MDS licensees prior to implementation of Section 309(j) of
    the Communications Act of 1934, 47 U.S.C. § 309(j). For these
    pre-auction licenses, the applicable standard is SBA\'s small
    business size standard.

[^603]: 13 C.F.R. § 121.201, NAICS code 517510.

[^604]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, Table 4, Receipts Size of Firms for the United States:
    2002, NAICS code 517510 (issued November 2005).

[^605]: *Id*. An additional 61 firms had annual receipts of \$25 million
    or more.

[^606]: The term "small entity" within SBREFA applies to small
    organizations (nonprofits) and to small governmental jurisdictions
    (cities, counties, towns, townships, villages, school districts, and
    special districts with populations of less than 50,000). 5 U.S.C. §§
    601(4)-(6). We do not collect annual revenue data on EBS licensees.

[^607]: *See* 5 U.S.C. §§ 601 (3)-(5).

[^608]: *See supra* ¶¶ 26-28.

[^609]: *See supra* ¶¶ 144-145.

[^610]: *See supra* ¶¶ 122-129.

[^611]: *See supra ¶¶* 48-84*.*

[^612]: *See* 5 U.S.C. § 603(c).

[^613]: *See generally,* 5 U.S.C. § 801 (a)(1)(A).

[^614]: *See* 5 U.S.C. § 604(b).

[^615]: *See* [5 U.S.C. §
    603](http://www4.law.cornell.edu/uscode/5/603.html). The RFA, *see*
    [5 U.S.C. § 601](http://www4.law.cornell.edu/uscode/5/603.html)-612,
    has been amended by the Small Business Regulatory Enforcement
    Fairness Act of 1996, (SBREFA) Pub. L. No. 104-121, Title II, 110
    Stat. 857 (1996).

[^616]: *See* 5 [U.S.C. §
    603(a).](http://www4.law.cornell.edu/uscode/5/603.html)

[^617]: *See* 5 [U.S.C. §
    603(a).](http://www4.law.cornell.edu/uscode/5/603.html)

[^618]: *See supra* ¶¶ 191-196.

[^619]: *See supra* ¶¶ 197-201.

[^620]: *See supra* ¶ 203.

[^621]: 5 U.S.C. § 603(b)(3).

[^622]: 5 U.S.C. § 601(6).

[^623]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small business concern" in the Small Business Act 15 U.S.C. § 632.
    Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small
    business applies "unless an agency, after consultation with the
    Office of Advocacy of the Small Business Administration and after
    opportunity for public comment, establishes one or more definitions
    of such term which are appropriate to the activities of the agency
    and publishes such definition(s) in the Federal Register." 5 U.S.C.
    § 601(3).

[^624]: 15 U.S.C. § 632.

[^625]: 5 U.S.C. § 601(4).

[^626]: Independent Sector, The New Nonprofit Almanac & Desk Reference
    (2002).

[^627]: 5 U.S.C. § 601(5).

[^628]: 5 U.S.C. § 601(5).

[^629]: U.S. Census Bureau, Statistical Abstract of the United States:
    2006, Section 8, page 272, Table 415.

[^630]: We assume that the villages, school districts, and special
    districts are small, and total 48,558. *See* U.S. Census Bureau,
    Statistical Abstract of the United States: 2006, section 8, page
    273, Table 417. For 2002, Census Bureau data indicate that the total
    number of county, municipal, and township governments nationwide was
    38,967, of which 35,819 were small. *Id.*

[^631]: Amendment of Parts 21 and 74 of the Commission's Rules with
    Regard to Filing Procedures in the Multipoint Distribution Service
    and in the Instructional Television Fixed Service and Implementation
    of Section 309(j) of the Communications Act -- Competitive Bidding,
    MM Docket No. 94-131 and PP Docket No. 93-253, *Report and Order*,
    10 FCC Rcd 9589, 9593 ¶ 7 (1995) (*MDS Auction R&O)*.

[^632]: 13 C.F.R. § 121.201, NAICS code 517510.

[^633]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, Table 4, Receipts Size of Firms for the United States:
    2002, NAICS code 517510 (issued November 2005).

[^634]: *Id*. An additional 61 firms had annual receipts of \$25 million
    or more.

[^635]: The term "small entity" within SBREFA applies to small
    organizations (nonprofits) and to small governmental jurisdictions
    (cities, counties, towns, townships, villages, school districts, and
    special districts with populations of less than 50,000). 5 U.S.C. §§
    601(4)-(6). We do not collect annual revenue data on EBS licensees.

[^636]: *See* 5 U.S.C. §§ 601 (3)-(5).

[^637]: *See* 5 U.S.C. § 603(c).