**Before the**

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+---+------------------------------+
| In the Matter of                 | ) | WT Docket No. 06-150         |
|                                  |   |                              |
| Service Rules for the 698-746,   | ) | CC Docket No. 94-102         |
| 747-762                          |   |                              |
|                                  | ) | WT Docket No. 01-309         |
| and 777-792 MHz Bands            |   |                              |
|                                  | ) | WT Docket No. 03-264         |
| Revision of the Commission's     |   |                              |
| Rules to Ensure                  | ) | WT Docket No. 06-169         |
|                                  |   |                              |
| Compatibility with Enhanced 911  | ) | PS Docket No. 06-229         |
| Emergency                        |   |                              |
|                                  | ) | WT Docket No. 96-86          |
| Calling Systems                  |   |                              |
|                                  | ) | WT Docket No. 07-166         |
| Section 68.4(a) of the           |   |                              |
| Commission's Rules               | ) |                              |
|                                  |   |                              |
| Governing Hearing Aid-Compatible | ) |                              |
| Telephones                       |   |                              |
|                                  | ) |                              |
| Biennial Regulatory Review --    |   |                              |
| Amendment of Parts 1, 22, 24,    | ) |                              |
| 27, and 90 to Streamline and     |   |                              |
| Harmonize Various Rules          | ) |                              |
| Affecting Wireless Radio         |   |                              |
| Services                         | ) |                              |
|                                  |   |                              |
| Former Nextel Communications,    | ) |                              |
| Inc. Upper 700 MHz Guard Band    |   |                              |
| Licenses and Revisions to Part   | ) |                              |
| 27 of the Commission's Rules     |   |                              |
|                                  | ) |                              |
| Implementing a Nationwide,       |   |                              |
| Broadband, Interoperable Public  | ) |                              |
| Safety Network in the 700 MHz    |   |                              |
| Band                             | ) |                              |
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| Development of Operational,      | ) |                              |
| Technical and Spectrum           |   |                              |
| Requirements for Meeting         | ) |                              |
| Federal, State and Local Public  |   |                              |
| Safety Communications            | ) |                              |
| Requirements Through the Year    |   |                              |
| 2010                             | ) |                              |
|                                  |   |                              |
| Declaratory Ruling on Reporting  | ) |                              |
| Requirement under Commission's   |   |                              |
| Part 1 Anti-Collusion Rule       | ) |                              |
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+----------------------------------+---+------------------------------+

SECOND REPORT AND ORDER

**Adopted: July 31, 2007 Released: August 10, 2007**

By the Commission: Chairman Martin issuing a statement; Commissioners
Copps, Adelstein, and Tate approving in part, concurring in part, and
issuing separate statements; Commissioner McDowell approving in part,
dissenting in part, and issuing a statement.

Table of Contents

Heading Paragraph \#

I. introduction 1

II\. BACKGROUND 14

A. DTV Transition and Reclamation of the 700 MHz Band 15

B. 700 MHz Commercial Services Proceeding 18

C. 700 MHz Guard Bands Proceeding 24

D. 700 MHz Public Safety Proceeding 30

E. 700 MHz Report and Order and 700 MHz Further Notice 35

III\. DISCUSSION 42

A. Commercial 700 MHz Band, Including 700 MHz Guard Bands 44

1\. Band Plan 44

a\. Commercial Spectrum (Excluding Guard Bands Spectrum) 45

\(i\) Background 45

\(ii\) Discussion 62

b\. Guard Bands Spectrum 97

\(i\) Background 97

\(ii\) Discussion 111

2\. Service Rules 140

a\. Commercial Services (Excluding Guard Bands and Upper 700 MHz D
Block) 140

\(i\) Performance Requirements 140

\(ii\) Partitioning and Disaggregation 178

\(iii\) Open Platforms for Devices and Applications 189

\(iv\) Use of Dynamic Spectrum Management Techniques 231

\(v\) Protection of 700 MHz Public Safety Operations 249

\(vi\) Licensee Eligibility 252

b\. 700 MHz Guard Bands 260

\(i\) Treatment of Reconfigured A Block 260

\(ii\) Treatment of Reconfigured B Block 266

\(iii\) Treatment of PTPMS II Licenses 268

\(iv\) License Terms 271

3\. Auctions-Related Issues 274

a\. Anonymous Bidding 274

b\. Declaratory Ruling on Anti-Collusion Rule Reporting Requirement 285

c\. Package Bidding 287

d\. "New Entrant" Bidding Credit 293

e\. Reserve Prices 297

f\. Statutory Deposit Deadline 318

B. 700 MHz Public Safety Spectrum 322

1\. Band Plan 323

a\. Broadband Segment 324

b\. Narrowband Segment 327

\(i\) Consolidation of Narrowband Channels 327

\(ii\) Timing of Narrowband Consolidation 330

\(iii\) Funding Issues 345

c\. Regional Planning Committee Plans 345

d\. Internal Guard Band 347

e\. Border Issues 349

f\. Technical Parameters 353

\(i\) Broadband Power Limits 354

\(ii\) Broadband Emission Limit 360

\(iii\) Broadband Interoperability Standard 363

2\. Public Safety Broadband Licensee 365

a\. Single Nationwide Geographic Area License 367

b\. Eligibility Criteria 371

c\. Selection Process 378

d\. Responsibilities of the Public Safety Broadband Licensee 381

e\. Licensing Issues 384

C. 700 MHz Public/Private Partnership 386

1\. Adoption of the 700 MHz Public/Private Partnership 388

2\. Essential Components of Public/Private Partnership 403

a\. Shared Wireless Broadband Network 403

b\. Spectrum Use 407

c\. Performance Requirements 432

d\. Network Sharing Agreement (NSA) and Mandatory Provisions 444

e\. License Term and Renewal Expectancy for the Public/Private
Partnership 455

f\. Public Safety Satellite Support 460

g\. Local Public Safety Build-out and Operation 469

3\. Safeguards Relating to the Public/Private Partnership 497

a\. Rules for Establishment, Execution and Application of the NSA 497

b\. Ongoing Conditions for the Protection of Public Safety Service 513

4\. Other Issues 531

a\. Bidding Credits 531

b\. License Partitioning, Disaggregation, Assignment, and Transfer 538

c\. Commercial Service Issues 543

\(i\) Wholesale and Open Access Proposals 543

\(ii\) Roaming Proposal 547

\(iii\) Applicability of CALEA, E911, and Other Requirements 550

IV\. PROCEDURAL MATTERS 554

A. Regulatory Flexibility Act 554

B. Paperwork Reduction Act of 1995 555

V. Ordering Clauses 556

Appendix A: Comments and Reply Comments

Appendix B: Final Rules

Appendix C: Final Regulatory Flexibility Analysis

Appendix D: Upper 700 MHz A Block License Modifications

# introduction

1.  In this Second Report and Order, we establish rules governing
    wireless licenses in the 698-806 MHz Band (herein, the "700 MHz
    Band"). This spectrum currently is occupied by television
    broadcasters in TV Channels 52-69. It is being made available for
    wireless services, including public safety and commercial services,
    as a result of the digital television ("DTV") transition. In passing
    the Digital Television Transition and Public Safety Act of 2005
    ("DTV Act"), Congress accelerated the DTV transition by providing a
    date certain, February 17, 2009, for the end of the transition.[^1]
    In light of this significant change, the developments that have
    occurred over the past several years in the market for commercial
    wireless communications and the evolving needs of the public safety
    community for advanced broadband communications, the Commission
    began reexamining its rules governing the 700 MHz Band last year.

2.  The Commission has been considering rules related to the use of this
    spectrum in three ongoing proceedings: (1) the 700 MHz Commercial
    Services proceeding,[^2] (2) the 700 MHz Guard Bands proceeding,[^3]
    and (3) the 700 MHz Public Safety proceeding.[^4] Recognizing the
    interrelationship of these proceedings, we recently combined these
    proceedings and in April 2007 issued a single Report and Order and
    Further Notice of Proposed Rulemaking (the "*700 MHz* *Report and
    Order*" and "*700 MHz Further Notice*," respectively) addressing all
    three.[^5] In the *700 MHz Report and Order*, we revised certain
    service rules pertaining to commercial licenses in the 700 MHz Band,
    including those affecting the Guard Bands.[^6] In the *700 MHz
    Further Notice*, we sought comment on various band plan proposals
    for licensing the commercial spectrum in the 700 MHz Band that has
    not yet been auctioned and for reconfiguring the size and location
    of the spectrum blocks associated with these licenses, including the
    700 MHz Guard Bands. We also proposed to adopt stricter performance
    requirements for the commercial licenses that have not yet been
    auctioned. Regarding public safety, we tentatively concluded to
    redesignate the 700 MHz public safety wideband spectrum for
    broadband use consistent with a nationwide interoperability
    standard, to prohibit wideband operations on a going forward basis,
    and to consolidate the existing narrowband channels in the upper
    half of the public safety spectrum while designating the lower half
    for nationwide interoperable broadband communications. Finally, we
    sought comment on establishing a public/private partnership between
    a commercial licensee and a single public safety licensee with
    respect to developing a nationwide, shared interoperable broadband
    network for use by public safety users.[^7] We address these
    proposals and related issues in this Second Report and Order.

3.  Consistent with our goals of promoting commercial access to 700 MHz
    Band spectrum and the development of a nationwide interoperable
    broadband network for public safety users, in this Second Report and
    Order we revise the band plan for both the commercial and the public
    safety spectrum and adopt related service rules. We designate a
    spectrum block in the upper portions of the commercial spectrum for
    a commercial licensee that will be part of a public/private
    partnership (the "700 MHz Public/Private Partnership") entered with
    a national public safety broadband licensee for the public safety
    broadband spectrum, in a reconfigured 700 MHz Public Safety Band, to
    promote the development of nationwide interoperable broadband
    services for public safety users. We also change the location of the
    existing 700 MHz Guard Band licenses, provide for a 1-megahertz
    shift of the other commercial spectrum blocks in the Upper 700 MHz
    Band and the 700 MHz Public Safety Band, and reduce the size of the
    Guard Band B Block to make 2 additional megahertz of commercial
    spectrum available for auction. As we observed in the *700 MHz
    Report and Order* and *700 MHz Further Notice*, these revisions to
    the band plan for the 700 MHz Band and the associated rules are
    appropriate in light of the significant changes in the statutory
    framework governing this spectrum, the continuing technological
    advances in the market for wireless services, and the rapidly
    increasing need of public safety users for broadband
    communications.[^8]

4.  The revised band plan for the commercial services in the 700 MHz
    Band, including sizes and locations of the geographic service areas
    and spectrum blocks, is illustrated below.

    **[[Figure 1: Revised 700 MHz Band Plan for Commercial
    Services]{.underline}]{.smallcaps}**

757 775 787 793 805

  ----- ----- ----- ----- ----- ----- ----- ----- ----- ----- --- ----- -------- ----- ----- --- ----- ----- --- ----- --- -------- ----- ----- ---
  A     B     C     D     E     A     B     C     C           A   D     Public               B   C           A         D   Public               B
                                                                        Safety                                             Safety               

  CH.   CH.   CH.   CH.   CH.   CH.   CH.   CH.   CH.   CH.       CH.            CH.   CH.       CH.   CH.       CH.                CH.   CH.   
  52    53    54    55    56    57    58    59    60    61        62             63    64        65    66        67                 68    69    
  ----- ----- ----- ----- ----- ----- ----- ----- ----- ----- --- ----- -------- ----- ----- --- ----- ----- --- ----- --- -------- ----- ----- ---

698 704 710 716 722 728 734 740 746 752 758 764 770 776 782 788 794 800
806

[Lower 700 MHz Band Upper 700 MHz Band]{.smallcaps}

[(Channels 52-59) (Channels 60-69)]{.smallcaps}

[Block]{.underline} [Frequencies]{.underline} [Bandwidth]{.underline}
[Pairing]{.underline} [Area Type]{.underline} [Licenses]{.underline}

A 698-704, 728-734 12 MHz 2 x 6 MHz EA 176

B 704-710, 734-740 12 MHz 2 x 6 MHz CMA 734

C 710-716, 740-746 12 MHz 2 x 6 MHz CMA 734\*

D 716-722 6 MHz unpaired EAG 6\*

E 722-728 6 MHz unpaired EA 176

C 746-757, 776-787 22 MHz 2 x 11 MHz REAG 12

D 758-763, 788-793 10 MHz 2 x 5 MHz Nationwide 1\*\*

A 757-758, 787-788 2 MHz 2 x 1 MHz MEA 52\*\*\*

B 775-776, 805-806 2 MHz 2 x 1 MHz MEA 52\*\*\*

\*Blocks have been auctioned.

\*\*Block is associated with the 700 MHz Public/Private Partnership.

\*\*\*Guard Bands blocks have been auctioned, but are being relocated.

5.  This band plan provides a balanced mix of geographic service area
    licenses and spectrum block sizes for the 62 megahertz of commercial
    spectrum to be auctioned. We will auction two 12-megahertz spectrum
    blocks (comprised of paired 6-megahertz blocks), one licensed by
    Cellular Market Areas (CMAs) and one by Economic Areas (EAs); one
    22-megahertz spectrum block (paired 11-megahertz blocks) by Regional
    Economic Area Groupings (REAGs); and one 6-megahertz unpaired
    spectrum block by EAs. We also will designate one 10-megahertz
    spectrum block (paired 5-megahertz blocks), the Upper 700 MHz Band D
    Block, to be licensed on a nationwide basis and used as part of the
    700 MHz Public/Private Partnership entered between this commercial
    licensee and the licensee that will be assigned the public safety
    broadband spectrum (hereinafter, the Public Safety Broadband
    Licensee).

6.  In addition to revising the band plan, we adopt new, more stringent
    performance requirements for the commercial licenses in the 700 MHz
    Band that will be auctioned. These rules will require licensees to
    meet both interim and end-of-term construction benchmarks. CMA and
    EA licensees are required to provide service sufficient to cover 35
    percent of the geographic area of their licenses within four years,
    and 70 percent of this area within ten years (the license term), and
    REAG licensees must provide service sufficient to cover 40 percent
    of the population of their license areas within four years and 75
    percent of the population within ten years. For licensees that fail
    to meet the applicable interim benchmark, the license term is
    reduced by two years, and the end-of-term benchmark must be met
    within eight years. At the end of the license term, licensees that
    fail to meet the end-of-term benchmark will be subject to a "keep
    what you use" rule, which will make unused spectrum available to
    other potential users.

7.  In addition, we determine that for one commercial spectrum block in
    the 700 MHz Band, the Upper 700 MHz Band C Block, licensees will be
    required to allow customers, device manufacturers, third-party
    application developers, and others to use devices and applications
    of their choice, subject to certain conditions. We conclude,
    however, that at this time it would not serve the public interest to
    mandate broader requirements, such as a wholesale requirement for
    the unauctioned 700 MHz Band spectrum.

8.  We also make certain determinations regarding procedures for the
    upcoming auction of licenses in the 700 MHz Band. Based on the
    record, we conclude that anonymous bidding procedures, which
    withhold from public release until after the auction closes any
    information that may indicate specific applicants\' interests in the
    auction, including their license selections and bidding activity,
    will promote competition for 700 MHz licenses regardless of any
    pre-auction measurement of likely competition in the auction. We
    also clarify by declaratory ruling the continuing nature of the
    obligation to report communications that are prohibited by the Part
    1 competitive bidding anti-collusion rule. In addition, we conclude
    that using package bidding solely with respect to the licenses in
    the Upper 700 MHz Band C Block (and not with respect to licenses in
    the other 700 MHz Band spectrum blocks) will assist bidders that are
    seeking to create a nationwide footprint without, at the same time,
    imposing disadvantages on parties that wish to bid on individual
    licenses comprising the nationwide footprint. In light of the
    innovative provisions we adopt with respect to the 700 MHz Band
    licenses, we find that block-specific aggregate reserve prices
    should be established for the upcoming auction of licenses for 700
    MHz Band spectrum. If the block-specific aggregate reserve is met,
    all licenses in the block will be assigned based on the auction
    results. If it is not, we provide for a prompt auction of
    alternative, less restrictive licenses for the A, B, C, and E
    Blocks, subject to the same applicable reserves. Consistent with
    existing authority delegated to the Wireless Telecommunications
    Bureau (Wireless Bureau or WTB) to establish detailed final auction
    procedures, we delegate to the Wireless Bureau the discretion to
    propose and implement final auction procedures to implement these
    conclusions.

9.  We make several changes to the 700 MHz Guard Bands spectrum. With
    one exception, all existing Guard Bands licensees have agreed to
    voluntarily modify their authorizations to "repack" their licenses
    into a reconfigured Guard Band A Block. All license modifications
    are consensual, except the relocation of one Guard Band A Block
    license held by PTPMS II Communications, L.L.C., and the downward
    shifting by 1 megahertz of its two Guard Band B Block licenses. We
    will afford all Guard Band A Block licensees the same technical
    rules that apply to the adjacent commercial spectrum, including less
    restrictive out-of-band emissions limits and frequency coordination
    requirements, and the ability to deploy cellular architectures.
    Collectively, these license modifications will serve the public
    interest by enabling a downward shift of the Upper 700 MHz Band
    public safety spectrum, which will address concerns of interference
    to critical public safety communications in border areas, and
    facilitate the deployment of a nationwide broadband public safety
    network. With the exception of PTPMS II's B Block licenses, we also
    relocate and reduce the Guard Band B Block from 4 to 2 megahertz,
    which will provide an additional 2 megahertz of commercial spectrum
    for auction.

10. With respect to the public safety spectrum in the 700 MHz Band, we
    shift the 700 MHz Public Safety Band 1 megahertz (as discussed
    above) and reconfigure this band to provide for public safety
    broadband. Specifically, we redesignate the public safety wideband
    spectrum for broadband use and consolidate the existing narrowband
    channels to the upper half of the public safety spectrum while
    designating the lower half for nationwide interoperable broadband
    communications. The revised band plan is illustrated below.

**[[Figure 2: Revised 700 MHz Band Plan For Public Safety
Services]{.underline}]{.smallcaps}**

763 769 775 793 799 805

<table>
<colgroup>
<col style="width: 10%" />
<col style="width: 2%" />
<col style="width: 8%" />
<col style="width: 2%" />
<col style="width: 2%" />
<col style="width: 10%" />
<col style="width: 2%" />
<col style="width: 12%" />
<col style="width: 12%" />
<col style="width: 10%" />
<col style="width: 2%" />
<col style="width: 8%" />
<col style="width: 2%" />
<col style="width: 2%" />
<col style="width: 10%" />
<col style="width: 2%" />
</colgroup>
<tbody>
<tr class="odd">
<td rowspan="2"><em>Commercial Allocation</em></td>
<td colspan="5"><em>Public Safety Allocation</em></td>
<td colspan="4" rowspan="2"><em>Commercial Allocation</em></td>
<td colspan="5"><em>Public Safety Allocation</em></td>
<td rowspan="2"></td>
</tr>
<tr class="even">
<td colspan="2">Broadband</td>
<td><p>G</p>
<p>B</p></td>
<td colspan="2">Narrowband</td>
<td colspan="2">Broadband</td>
<td><p>G</p>
<p>B</p></td>
<td colspan="2">Narrowband</td>
</tr>
<tr class="odd">
<td colspan="2">CH. 62</td>
<td colspan="3">CH. 63</td>
<td colspan="2">CH. 64</td>
<td>CH. 65</td>
<td>CH. 66</td>
<td colspan="2">CH. 67</td>
<td colspan="3">CH. 68</td>
<td colspan="2">CH. 69</td>
</tr>
</tbody>
</table>

758 764 770 776 782 788 794 800 806

11. The revised band plan for the 700 MHz Public Safety Band consists of
    a 10-megahertz block (comprised of paired 5-megahertz blocks)
    allocated for broadband communications at the bottom of the band
    (763-768/793-798 MHz), a 2-megahertz internal guard band block
    (comprised of paired 1-megahertz blocks) (768-769/798-799 MHz), and
    a 12-megahertz block (comprised of paired 6-megahertz blocks)
    allocated for narrowband communications at the top of the band
    (769-775/799-805 MHz).

12. We also revise the licensing scheme for public safety users within
    the band. To effectuate the consolidation of the narrowband channels
    to the top of the public safety band, we establish a timeframe for
    transitioning existing narrowband operations. Transition of these
    operations must be completed no later than the DTV transition date.
    We also require the Upper 700 MHz Band D Block licensee to pay the
    costs of reconfiguring the public safety spectrum. Concerning the
    broadband segment, we address certain technical criteria related to
    power levels and the establishment of a broadband standard with a
    nationwide level of interoperability. As noted above, we also create
    a single nationwide license for the public safety broadband spectrum
    and specify the criteria, selection process, and responsibilities of
    the Public Safety Broadband Licensee.

13. As the means for enabling the construction of a nationwide,
    interoperable broadband public safety network, we provide for the
    establishment of the 700 MHz Public/Private Partnership between the
    commercial D Block licensee and the Public Safety Broadband Licensee
    in the Upper 700 MHz Band. The terms of the 700 MHz Public/Private
    Partnership will be governed both by Commission rules and by the
    Network Sharing Agreement (NSA), which is to be negotiated by the
    winning bidder for the D Block license and the Public Safety
    Broadband Licensee. In our rules, we identify certain network
    specifications to be incorporated into the NSA, mandate certain
    terms, and set forth build-out requirements. In addition, we
    elaborate on key essential components of the 700 MHz Public/Private
    Partnership, including the preemptible, secondary access that the
    Upper 700 MHz Band D Block licensee has to the public safety
    broadband spectrum, and the priority access that the Public Safety
    Broadband Licensee has, on an emergency basis, to the commercial D
    Block broadband spectrum. We also provide several safeguards
    relating to the 700 MHz Public/Private Partnership, including rules
    governing the establishment, execution, and application of the NSA,
    to ensure timely completion of the NSA negotiations and account for
    disputes that may arise during the negotiations and following
    execution, as well as a framework to govern ongoing operations and
    account for the contingency of breaches of obligations under the NSA
    by either party. This framework involves the imposition of certain
    structural and other requirements on the D Block licensee and the
    network intended to protect public safety broadband service.
    Further, we provide means for public safety entities to (1) obtain
    an earlier build-out of broadband networks than provided for in the
    NSA, (2) build their own broadband networks in areas not included in
    the NSA, and (3) conduct wideband operations via a limited and
    conditioned waiver process.

# BACKGROUND

14. As described above, we adopt this Second Report and Order in
    response to a number of factors, including statutory changes that
    will affect the 108 megahertz of spectrum in the 700 MHz Band
    (Television Channels 52-69 in the 698-806 MHz band). In this
    background section, we first discuss the DTV transition, which will
    reclaim the 700 MHz Band for new uses, including commercial and
    public safety services. We then provide a brief description of three
    proceedings related to the 700 MHz Band, including the Commercial
    Services, Guard Bands, and Public Safety proceedings. Relevant
    decisions made in the *700 MHz Report and Order* also are described
    in this section. Finally, we discuss the outstanding issues from
    these proceedings that were not decided in the *700 MHz Report and
    Order* or were raised in the *700 MHz Further Notice*, which are
    addressed in this Second Report and Order.

## DTV Transition and Reclamation of the 700 MHz Band

15. The DTV Act set a firm deadline of February 17, 2009 for the 700 MHz
    Band spectrum to be cleared of analog transmissions and made
    available for public safety and commercial services as part of the
    DTV transition. The DTV Act also established two specific statutory
    deadlines for the auction of recovered analog spectrum in the 700
    MHz Band: (1) the auction must begin no later than January 28, 2008;
    and (2) the auction proceeds must be deposited in the Digital
    Television Transition and Public Safety Fund by June 30, 2008.[^9]
    These statutory changes provide for the clearing of the Upper and
    Lower 700 MHz Bands and eliminate any uncertainty about availability
    of this spectrum for public safety, commercial, and other wireless
    services.

16. Prior to the DTV Act, the Commission reallocated the 700 MHz Band in
    separate proceedings, first for the 60 megahertz covering TV
    Channels 60-69 ("Upper 700 MHz Band")[^10] and then for the 48
    megahertz covering TV Channels 52-59 ("Lower 700 MHz Band").[^11] In
    the Balanced Budget Act of 1997 ("Balanced Budget Act"),[^12]
    Congress specifically directed that the allocation of the Upper 700
    MHz Band include 24 megahertz of spectrum for public safety and 36
    megahertz for commercial services. Accordingly, the Commission
    divided the Upper 700 MHz Band to include a 24-megahertz allocation
    for public safety use,[^13] and a 36-megahertz allocation for
    commercial use, of which 6 megahertz comprised the Guard Bands
    spectrum.[^14]

17. With regard to the Lower 700 MHz Band, Congress also directed that
    the Commission "reclaim and organize" spectrum beyond that in the
    Upper 700 MHz Band, "in a manner consistent with the objectives" of
    Section 309(j)(3) of the Act.[^15] While Congress did not direct the
    amount of spectrum to be reclaimed, the Commission determined that
    all broadcasters using digital transmission systems could be
    accommodated in the core TV Channels 2-51. As a result, the 48
    megahertz of spectrum in the Lower 700 MHz Band (698-746 MHz) would
    become available for new services through competitive bidding.[^16]
    The following Figure shows the location of Commercial Services,
    Guard Bands, and Public Safety spectrum within the Upper and Lower
    700 MHz Bands.

**[[Figure 3: The 700 MHz Band (Prior to
Revisions)]{.underline}]{.smallcaps}**

698 746 747 762 764 776 777 792 794 806

  -------------------------------- ---- ------- ---- -------- ---- -------- ---- --------
                                   GB           GB   Public   GB            GB   Public
                                                     Safety                      Safety

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

[Lower 700 MHz Band Upper 700 MHz Band]{.smallcaps}

[(Channels 52-59) (Channels 60-69)]{.smallcaps}

## 700 MHz Commercial Services Proceeding

18. The portion of the 700 MHz Band currently designated for commercial
    services is comprised of 78 megahertz of spectrum in the 698-746,
    747-762, and 777-792 MHz bands ("700 MHz Commercial Services
    Band"),[^17] and an additional 6 megahertz portion, in the
    746-747/776-777 MHz and 762-764/792-794 MHz bands, designated as
    Guard Bands ("700 MHz Guard Bands") to protect users in the adjacent
    700 MHz Public Safety spectrum. The remaining 24 megahertz of
    spectrum in the 700 MHz Band, in the paired 764-776 MHz and 794-806
    MHz band, is allocated for public safety uses.

19. With regard to the Upper 700 MHz Band, the Commission initially
    determined that the Guard Band licenses in the A and B Blocks were
    to be assigned over the 52 Major Economic Areas (MEAs)[^18] and the
    remaining licenses in the C and D Blocks were to be assigned over
    the six Economic Area Groupings (EAGs).[^19] The following Figure
    shows the current band plan for the Upper 700 MHz Band. The
    Commission has auctioned the Guard Band A and B Blocks, while the
    commercial spectrum in the Upper 700 MHz Band C and D Blocks has not
    yet been auctioned.

    **[[Figure 4: Upper 700 MHz Band (Prior to
    Revisions)]{.underline}]{.smallcaps}**

747 762 777 792

  ----- ---- ------- ----- --- -------- ------- ----- ----- ------- ----- --- -------- ------
  A     C    D             B   Public           A     C     D             B   Public   
                               Safety                                         Safety   

  CH.        CH. 61  CH.       CH. 63   CH. 64  CH.         CH. 66  CH.       CH. 68   CH. 69
  60                 62                         65                  67                 
  ----- ---- ------- ----- --- -------- ------- ----- ----- ------- ----- --- -------- ------

746 752 758 764 770 776 782 788 794 800 806

[Block]{.underline} [Frequencies]{.underline} [Bandwidth]{.underline}
[Pairing]{.underline} [Area Type]{.underline} [Licenses]{.underline}

A 746-747, 776-777 2 MHz 2 x 1 MHz MEA 52\*

B 762-764, 792-794 4 MHz 2 x 2 MHz MEA 52\*

C 747-752, 777-782 10 MHz 2 x 5 MHz 700 MHz EAG 6

D 752-762, 782-792 20 MHz 2 x 10 MHz 700 MHz EAG 6

\*Blocks have been auctioned.

20. The Commission's original decision to use large geographic license
    areas based on EAGs for the C and D Blocks in the Upper 700 MHz Band
    was based on a number of factors. [^20] These included the positions
    of commenters in the record, the likely uses of this spectrum, a
    previous statutory obligation to auction the spectrum and deposit
    the proceeds by a specific date,[^21] and the Commission's desire to
    help bidders avoid costs associated with initial license area sizes
    that are too small.[^22] In addition, the Commission observed that
    large license areas such as EAGs could allow licensees to take
    advantage of economies of scale to develop new technologies and
    services, and could be aggregated to form nationwide licenses.[^23]

21. With regard to the Lower 700 MHz Band, the Commission divided the 48
    megahertz of this spectrum into blocks of paired and unpaired
    spectrum to accommodate a range of new fixed, mobile, and broadcast
    services and technologies.[^24] The following Figure shows the
    current band plan for the Lower 700 MHz Band. The C Block was to be
    assigned across CMAs (*i.e*., Metropolitan Statistical Areas (MSAs)
    and Rural Service Areas (RSAs)), while the remaining blocks were to
    be assigned across EAGs. Although Congress specifically directed the
    Commission to delay the auction of licenses in the Lower 700 MHz
    Band, it made an exception for C Block and D Block licenses, which
    it directed the Commission to auction immediately.[^25] The
    remaining A, B, and E Blocks have not been auctioned.

Figure 5: Lower 700 MHz Band (Prior to Revisions)

  -------- -------- -------- -------- -------- -------- -------- --------
  A        B        C        D        E        A        B        C

  CH. 52   CH. 53   CH. 54   CH. 55   CH. 56   CH. 57   CH. 58   CH. 59
  -------- -------- -------- -------- -------- -------- -------- --------

698 704 710 716 722 728 734 740 746

[Block]{.underline} [Frequencies]{.underline} [Bandwidth]{.underline}
[Pairing]{.underline} [Area Type]{.underline} [Licenses]{.underline}

A 698-704, 728-734 12 MHz 2 x 6 MHz 700 MHz EAG 6

B 704-710, 734-740 12 MHz 2 x 6 MHz 700 MHz EAG 6

C 710-716, 740-746 12 MHz 2 x 6 MHz CMA 734\*

D 716-722 6 MHz unpaired 700 MHz EAG 6\*

E 722-728 6 MHz unpaired 700 MHz EAG 6

\*Blocks have been auctioned.

22. In contrast to its approach for the Upper 700 MHz Band, the
    Commission initially decided to make the Lower 700 MHz Band
    available using both large and small geographic service areas. The
    Commission observed that many commenters in the Lower 700 MHz Band
    proceeding, especially small and rural providers, favored small
    geographic areas such as CMAs,[^26] and it therefore decided to
    assign the 12-megahertz C Block over CMAs.[^27] The Commission
    further observed that a 12-megahertz block was a significant amount
    of spectrum to assign across small geographic areas and concluded
    that this approach would afford meaningful opportunities to small
    and rural wireless providers.[^28] While the Commission declined to
    adopt nationwide licenses,[^29] it assigned the two remaining
    12-megahertz paired blocks, as well as the two 6-megahertz unpaired
    blocks, over EAGs for many of the same reasons cited in its
    proceeding for the Upper 700 MHz Band.[^30]

23. In the *700 MHz Commercial Services Notice* adopted in August 2006,
    we sought comment on possible revisions to the band plan and service
    rules concerning commercial licenses in the 698-746, 747-762, and
    777-792 MHz bands.[^31] Among other issues, we sought comment on
    ways the Commission could promote access to spectrum and the
    provision of service by assigning the spectrum that had not yet been
    auctioned over smaller geographic areas, whether we should modify
    the band plan with regard to the size and location of the spectrum
    blocks, whether we should revise the performance standards for these
    licenses, and whether to modify any of the technical rules in these
    bands. In addition, we sought comment on several auctions-related
    issues and license renewal procedures. We also tentatively concluded
    that the Commission's 911/E911 rules and hearing aid compatibility
    rules should be extended to apply to commercial services in the 700
    MHz Band, as well as to CMRS services in other bands to the extent
    they meet certain criteria.

## 700 MHz Guard Bands Proceeding 

24. When the Commission originally allocated the Upper 700 MHz
    Band,[^32] its goal was to ensure that operations in the 36
    megahertz of commercial spectrum would not cause harmful
    interference to 700 MHz public safety operations.[^33] Accordingly,
    the Commission created two paired Guard Bands, the 2-megahertz
    A Block at 746-747/776-777 MHz (consisting of paired 1-megahertz
    blocks) and a 4-megahertz B Block at 762-764/792-794 MHz (paired
    2-megahertz blocks) to protect the public safety spectrum from
    interference resulting from commercial operations in the adjacent
    Upper 700 MHz Band C and D Blocks.[^34]

25. While recognizing the Guard Bands' primary role as protecting public
    safety operations, the Commission permitted operations within the
    Guard Bands to "allow for effective and valued use of the spectrum,
    consistent with sound spectrum management, rather than the creation
    of Guard Band spectrum of little use."[^35] To minimize the
    potential for harmful interference to public safety operations, the
    Commission precluded Guard Bands operations from employing cellular
    system architectures,[^36] and required entities operating in the
    Guard Bands to comply with stringent out-of-band emissions
    criteria[^37] and frequency coordination procedures.[^38] The
    Commission created the Guard Band Manager classification, a new
    class of commercial licensee engaged specifically in leasing
    spectrum to third parties on a for-profit basis,[^39] and required
    that Guard Band Managers control the use of the spectrum consistent
    with the strict interference and frequency coordination rules
    designed to protect public safety.[^40]

26. In the *700 MHz Guard Bands Notice* adopted in September 2006, we
    sought comment on possible changes to the Part 27 service rules
    applicable to existing and prospective Upper 700 MHz licensees in
    the A Block and the B Block.[^41] Two developments prompted the
    Commission to seek comment on possible rule changes that could
    promote more efficient and effective use of the Guard Bands. First,
    in 2004 as part of the 800 MHz public safety interference
    remediation proceeding in WT Docket No. 02-55, the Commission
    reclaimed all of Nextel Communications, Inc.'s (Nextel) Guard Bands
    licenses constituting 42 of the 52 B Block markets. Second, as noted
    above, Congress created greater certainty regarding the availability
    of unencumbered 700 MHz Band spectrum for wireless commercial and
    public safety licensees -- including the Guard Bands -- by
    establishing a hard date for completion of the DTV transition.[^42]

27. We sought comment on possible changes to the existing service rules
    for the 700 MHz Guard Bands that could result in more intensive use
    of the spectrum through greater operational, technical and
    regulatory flexibility for licensees. As discussed in the *700 MHz
    Guard Bands Notice*, currently there are few systems operating in
    the 700 MHz Guard Bands.[^43] The Commission requires all Guard Band
    Managers, in lieu of any strict performance requirement, to file
    annual reports by March 1 of each year in their license term through
    January 1, 2015.[^44] As of March 1, 2007, one of the seven Guard
    Band Managers reported a total of six spectrum user agreements
    (SUAs) for voice and data applications. According to the annual
    reports, spectrum use has been limited due to the continued presence
    of analog broadcasters in the band until the end of the DTV
    transition, uncertainty surrounding future plans for the Guard Bands
    spectrum reclaimed from Nextel, and limited availability of base
    station and end user equipment.[^45]

28. In the *700 MHz Guard Bands Notice*, we also sought comment on
    proposals seeking to maximize use of the Upper 700 MHz Band
    spectrum, including changes not only to the existing 700 MHz Guard
    Bands service rules, but also with respect to spectrum allocated for
    public safety use. We invited comment on proposals to designate the
    reclaimed Nextel spectrum as narrowband channels dedicated to
    interoperability between critical infrastructure industries (CII)
    and public safety entities, or to leave the existing band plan
    intact but to reallocate the reclaimed Nextel spectrum exclusively
    for public safety use.[^46] We also invited comment on proposals
    from existing Guard Band Managers to revise the Upper 700 MHz band
    plan, including the "Broadband Optimization Plan" ("BOP").[^47]

29. In light of the time constraints inherent in the DTV transition,
    including the deadline to commence auctioning all recovered analog
    TV spectrum in the 700 MHz Band by January 28, 2008, together with
    the need to avoid disruption and delay of the planning, funding and
    deployment of public safety systems within the 700 MHz Public Safety
    Band, we tentatively concluded in the *700 MHz Guard Bands Notice*
    that it would not be appropriate to adopt any proposal, including
    the BOP, that entails a consolidation of the narrowband channels to
    the upper half of the public safety band unless two issues are
    resolved expeditiously: (1) public safety's recovery of the costs of
    consolidating narrowband public safety channels; and (2)
    international border coordination of public safety narrowband
    operations.[^48] In the *700 MHz Guard Bands Notice*, we also
    tentatively concluded that any decision to shift the existing Upper
    700 MHz band plan in a way that affects "recovered analog spectrum"
    within the DTV transition would need to provide sufficient time for
    the Commission to meet its statutory obligation to commence
    auctioning by January 28, 2008.[^49]

## 700 MHz Public Safety Proceeding

30. The public safety allocation comprises 24 megahertz of spectrum in
    the Upper 700 MHz Band, including 12 megahertz of narrowband
    channels (voice and low speed data) and 12 megahertz of wideband
    (image/high speed data and slow scan video) communications channels.
    The following figure shows the current band plan for a portion of
    the Upper 700 MHz Band, including all of the 700 MHz Public Safety
    Band.

**[[Figure 6: 700 MHz Public Safety Band (Prior to
Revisions)]{.underline}]{.smallcaps}**

764 767 773 776 794 797 803 806

  ------------- ---------- ----- ------------- ------------ --------- -------- ------------- ---------- ----- -------------
  Public Safety                                                                Public Safety                  
  Allocation                                                                   Allocation                     

  Narrow-band   Wideband         Narrow-band   Commercial                      Narrow-band   Wideband         Narrow-band
                                               Allocation                                                     

  CH. 63                   CH.                 CH. 65       CH. 66    CH. 67   CH. 68                   CH.   
                           64                                                                           69    
  ------------- ---------- ----- ------------- ------------ --------- -------- ------------- ---------- ----- -------------

764 770 776 782 788 794 800 806

>     Narrowband Channels
>
>     Wideband Channels -- General Use, Reserve, Interoperability

31. As this figure demonstrates, the current allocation for the public
    safety portion of the 700 MHz Band does not allow for broadband
    applications. The Commission recognized the importance of broadband
    communications for public safety users in its December 2005 Report
    to Congress submitted pursuant to the Intelligence Reform Act.[^50]
    In that report, the Commission observed that broadband
    communications applications offer the public safety community a
    number of benefits, including video surveillance, real-time text
    messaging and e-mail, high resolution digital images and the ability
    to obtain location and status information of personnel and equipment
    in the field.[^51] The Report to Congress found that emergency
    response providers would benefit from development of an integrated,
    interoperable network capable of delivering broadband services
    nationwide.[^52]

32. In the *700 MHz Public Safety Eighth Notice* adopted in March 2006,
    the Commission sought comment on the use of the 700 MHz Public
    Safety Band to accommodate the broadband needs of public
    safety.[^53] The Commission sought comment on various potential
    revisions to the band plan for the 700 MHz Public Safety Band, as
    proposed by the National Public Safety Telecommunications Council
    (NPSTC), Motorola, and Lucent.[^54] All of the proposals recommended
    forming a broadband segment that would aggregate the wideband
    general use channels, wideband interoperability channels, and
    wideband reserve spectrum. The Commission solicited alternative
    proposals, tentatively concluded not to alter the location of the
    narrowband voice and data channels, and sought comment on ways in
    which public safety entities could use the 700 MHz Public Safety
    Band for broadband applications and on measures that should be taken
    to promote broadband interoperability.[^55]

33. In addition, in the *700 MHz Guard Bands Notice*, discussed above,
    we sought comment on possible modifications to the rules governing
    the 700 MHz Guard Band licensees, and on any costs such changes that
    benefit the Guard Bands would impose on public safety users.[^56] We
    tentatively concluded in the *700 MHz Guard Bands Notice* that any
    proposal involving relocation of the narrowband channels in the 700
    MHz Public Safety Band must address the source of funds to reprogram
    existing public safety 700 MHz radios and the coordination of the
    proposal with Canada and Mexico.

34. In the *700 MHz Public Safety Ninth Notice* that we subsequently
    adopted in December 2006, we proposed "a centralized and national
    approach to maximize public safety access to interoperable,
    broadband spectrum in the 700 MHz Band, and, at the same time,
    foster and promote the development and deployment of advanced
    broadband applications, related radio technologies, and a modern,
    IP-based system architecture."[^57]

## 700 MHz Report and Order and 700 MHz Further Notice 

35. *700 MHz Report and Order.* In the *700 MHz Report and Order*
    portion of the item that we adopted in April 2007, we made several
    decisions with regard to the commercial spectrum in the 700 MHz
    Band. In particular, for the commercial licenses that had not yet
    been auctioned we decided to adopt a mix of geographic license
    sizes, including Cellular Market Areas (CMAs), Economic Areas (EAs),
    and Regional Economic Area Groupings (REAGs). In addition, we found
    that existing competitive bidding rules and secondary markets rules
    allow licensees sufficient opportunity to aggregate licenses during
    and after an auction and that no additional rules were needed to
    facilitate such aggregation. We also took steps to help minimize
    uncertainty with regard to licenses in this band by eliminating
    rules that allowed for comparative hearings at renewal and by
    extending the termination date for initial license terms from
    January 15, 2015, to February 17, 2019. By this action, licensees
    were provided with an initial license term that was not to exceed
    ten years from the end of the DTV transition. To provide greater
    operational flexibility to licensees in the Commercial Services
    Band, we adopted a power spectral density (PSD) model, with certain
    limitations, and we allowed these licensees to operate at higher
    radiated power in rural areas. We also allowed licenses for already
    auctioned spectrum and licenses for unpaired spectrum in the Lower
    700 MHz Band to retain the 50 kW ERP level for base station
    operations, but we concluded that licenses for paired spectrum in
    the Lower 700 MHz Band should have limits similar to those
    established for the Upper 700 MHz Band. Further, we established that
    licensees in these bands could meet their radiated power limits on
    an average, rather than peak, basis. We also modified our 911/E911
    rules to apply to all Commercial Mobile Radio Services (CMRS) that
    meet the scope requirements in our current rules.[^58] Similarly, we
    required that all digital CMRS providers, as well as manufacturers
    of handsets capable of providing such service, comply with our
    hearing aid compatibility requirements, to the extent the services
    of such providers meet the scope requirements in our current
    rules.[^59]

36. In the *700 MHz Report and Order*, we also took steps to promote
    more efficient and effective use of the 700 MHz Guard Band spectrum.
    Specifically, we replaced the "band manager" leasing regime with the
    spectrum leasing policies and rules adopted in the Commission's
    Secondary Markets proceeding. In applying the Secondary Markets
    spectrum leasing rules to the 700 MHz Guard Bands, we also
    eliminated the special restrictions imposed under the Guard Bands
    licensing regime that prevented licensees from using their spectrum
    as a wireless service provider and restricted their ability to lease
    to affiliates. These changes created more operational flexibility
    for 700 MHz Guard Band licensees.[^60]

37. *700 MHz Further Notice.* In the *700 MHz Further Notice*, which
    consolidated the 700 MHz Commercial Services, 700 MHz Guard Bands,
    and 700 MHz Public Safety proceedings, we sought comment on a number
    of issues affecting both commercial and public safety services in
    the 700 MHz Band. With regard to the commercial spectrum, we
    proposed to maintain the current band plan for the Lower 700 MHz
    Band and license the A Block on an EA basis, the B Block on a CMA
    basis, and the E Block on an REAG basis.[^61] For the Upper 700 MHz
    Band, we sought comment on several band plan proposals, which differ
    both in terms of the size of spectrum blocks as well as the size of
    geographic service areas.[^62] We also sought additional comment on
    the performance requirements for commercial licensees that have not
    yet been auctioned in the 700 MHz Band and proposed the use of
    geographic benchmarks for these licensees.[^63]

38. In the *700 MHz Further Notice*, we sought comment on several issues
    affecting the Guard Bands spectrum, including a tentative conclusion
    not to adopt certain proposals to restructure the Upper 700 MHz
    Band, including the BOP.[^64] While we tentatively concluded that we
    do not have the legal authority[^65] and that it would not be in the
    public interest to adopt the BOP,[^66] we also sought comment on
    other measures that the Commission could take to promote the most
    efficient use of the Guard Bands spectrum.[^67]

39. With regard to the 700 MHz Public Safety Band, we sought comment in
    the *700 MHz Further Notice* on a tentative conclusion to
    redesignate the wideband spectrum to broadband use, consistent with
    a nationwide interoperability standard, and to prohibit wideband
    operations on a going forward basis.[^68] In addition, we
    tentatively concluded that, should we adopt this broadband approach,
    we would reconfigure the 700 MHz Public Safety spectrum to
    consolidate the narrowband spectrum at the top and locate the
    broadband spectrum at the bottom of this allocation.[^69]

40. In the *700 MHz Further Notice*, we also sought comment on a
    proposal, the "Public Safety Broadband Deployment Plan," filed by
    Frontline Wireless, LLC ("Frontline").[^70] In particular, we asked
    commenters to address Frontline's proposal that the Commission
    create a nationwide 10-megahertz commercial license that would
    require the licensee to construct and operate a nationwide,
    interoperable broadband network that would be shared with a public
    safety broadband licensee providing broadband service on the lower
    portion of the 700 MHz Public Safety spectrum.[^71] We also sought
    comment on whether the Guard Band B Block should be integrated with
    a new block of spectrum to be made available in the Upper 700 MHz
    Band for purposes of implementing the Frontline proposal,[^72] as
    well as the possible effects of this proposal on the remaining
    commercial spectrum in the Upper 700 MHz Band.[^73]

41. On May 21, 2007, Google Inc. ("Google") filed an *ex parte* letter
    in this proceeding, asking that the Commission seek immediate
    comment on certain proposals regarding the service rules for the 700
    MHz Band spectrum that is to be auctioned.[^74] On May 24, 2007, the
    Wireless Bureau issued a public notice requesting comment on those
    proposals.[^75]

# DISCUSSION

42. In this Second Report and Order, we take several interrelated
    actions with respect to the commercial services, including the Guard
    Bands, and the public safety services to promote broadband
    deployment throughout the 700 MHz Band to better serve American
    consumers and the needs of the public safety community. With regard
    to the commercial services in the 700 MHz Band, we increase the
    amount of spectrum to be auctioned, from 60 megahertz to 62
    megahertz, by eliminating 2 megahertz of the Guard Band B Block, and
    we provide for a revised mix of small, regional, and large
    geographic service area licenses -- CMAs, EAs, and REAGs
    respectively -- and include one large 22-megahertz spectrum block
    (comprised of paired 11-megahertz blocks). We also designate a
    10-megahertz block of commercial spectrum (comprised of paired
    5-megahertz blocks), the Upper 700 MHz Band D Block, that will be
    part of the 700 MHz Public/Private Partnership. With regard to the
    700 MHz Public Safety Band, we designate the public safety wideband
    spectrum for broadband use consistent with a nationwide
    interoperability standard, consolidate the existing narrowband
    allocations in the upper half of the 700 MHz Public Safety Band,
    locate broadband communications in the lower part, and create a
    Public Safety Broadband Licensee to manage the development of a
    broadband communications network with a nationwide level of
    interoperability. We also adjust the locations of the 700 MHz Guard
    Band blocks to permit a 1-megahertz shift of the 700 MHz Public
    Safety Band to address public safety narrowband operations in border
    areas of the country.

43. In addition, we adopt policies and rules relating to the
    establishment of the public/private partnership between the
    commercial Upper 700 MHz Band D Block licensee and the Public Safety
    Broadband Licensee, with both working together in developing a
    nationwide interoperable broadband network available to state and
    local public safety users. We also decide that block-specific
    aggregate reserve prices should be applied to the 700 MHz Band
    licenses in the upcoming auction. As detailed below, if the
    aggregate reserve price is not satisfied for licenses in the A, B,
    or E blocks, we will offer alternative licenses subject to different
    performance requirements from those adopted below. With respect to
    the C Block licenses, if the aggregate reserve is not met, we make
    other changes to the provisions adopted below with respect to
    alternative licenses to be offered. The revised band plan for the
    700 MHz Band for the commercial services, including the Guard Bands,
    and the public safety services, is set forth in detail below.

## Commercial 700 MHz Band, Including 700 MHz Guard Bands

### Band Plan

44. As discussed herein, we revise the band plan for the commercial 700
    MHz Band spectrum, including Guard Band spectrum, consistent with
    the record before us, to balance several competing goals, including
    facilitating access to spectrum by both small and large providers,
    providing for the efficient use of the spectrum, and better enabling
    the delivery of broadband services in the 700 MHz Band. In
    particular, we adopt a revised band plan that provides for
    auctioning a total of 62 megahertz of spectrum -- 30 megahertz in
    the Lower 700 MHz Band and 32 megahertz in the Upper 700 MHz Band --
    in the upcoming 700 MHz Band auction. As discussed more fully below,
    we are designating one 10-megahertz block (comprised of paired
    5-megahertz blocks) of this commercial spectrum, adjacent to the
    Public Safety spectrum, to be used as part of the 700 MHz
    Public/Private Partnership. With regard to the size of geographic
    service areas and size of the spectrum blocks of the licenses to be
    auctioned, we take an approach similar to the one we took for the
    AWS-1 service rules by adopting a mix of geographic area sizes,
    comprised of CMAs, EAs, and REAGs, and including one large
    22-megahertz block (comprised of paired 11-megahertz blocks).[^76]

#### Commercial Spectrum (Excluding Guard Bands Spectrum)

##### Background

45. *700 MHz Commercial Services Notice.* In the *700 MHz Commercial
    Services Notice*, we sought comment on the band plan for the then 60
    megahertz of non-Guard Band commercial spectrum that remained to be
    auctioned in the 700 MHz Band, including both the size and alignment
    of spectrum blocks and the size of geographic service areas for the
    spectrum.[^77] We noted that the Commission had already auctioned 18
    megahertz of non-Guard Band commercial spectrum -- 12 megahertz by
    CMAs and 6 megahertz by EAGs -- and that it initially had planned to
    auction the then remaining 60 megahertz of this spectrum on an EAG
    basis. We asked whether additional licenses should be auctioned over
    service area sizes other than EAGs, including over smaller areas
    such as CMAs.[^78] We also asked whether the one large 20-megahertz
    block of paired spectrum in the Upper 700 MHz Band, which had been
    established by the Commission to enable a greater range of broadband
    services in the 700 MHz Band, should be divided into blocks of
    smaller bandwidth.[^79] In addition, we sought comment on whether
    there should be any changes to the size and location of spectrum
    blocks in the Lower 700 MHz Band.[^80] The original band plan
    appears in Figure 7.

    **[[Figure 7: Original 700 MHz Band Plan]{.underline}]{.smallcaps}**

747 762 777 792

  ----- ----- ----- ----- ----- ----- ----- ----- ----- --- ----- ----- --- -------- ----- ----- --- ----- ----- --- -------- -----
  A     B     C     D     E     A     B     C     A     C   D           B   Public         A     C   D           B   Public   
                                                                            Safety                                   Safety   

  CH.   CH.   CH.   CH.   CH.   CH.   CH.   CH.   CH.       CH.   CH.       CH. 63   CH.   CH.       CH.   CH.       CH. 68   CH.
  52    53    54    55    56    57    58    59    60        61    62                 64    65        66    67                 69
  ----- ----- ----- ----- ----- ----- ----- ----- ----- --- ----- ----- --- -------- ----- ----- --- ----- ----- --- -------- -----

698 704 710 716 722 728 734 740 746 752 758 764 770 776 782 788 794 800
806

[Lower 700 MHz Band Upper 700 MHz Band]{.smallcaps}

[(Channels 52-59) (Channels 60-69)]{.smallcaps}

[Block]{.underline} [Frequencies]{.underline} [Bandwidth]{.underline}
[Pairing]{.underline} [Area Type]{.underline} [Licenses]{.underline}

A 698-704, 728-734 12 MHz 2 x 6 MHz EAG 6

B 704-710, 734-740 12 MHz 2 x 6 MHz EAG 6

C 710-716, 740-746 12 MHz 2 x 6 MHz CMA 734\*

D 716-722 6 MHz unpaired EAG 6\*

E 722-728 6 MHz unpaired EAG 6

A 746-747, 776-777 2 MHz 2 x 1 MHz MEA 52\*

B 762-764, 792-794 4 MHz 2 x 2 MHz MEA 52\*

C 747-752, 777-782 10 MHz 2 x 5 MHz EAG 6

D 752-762, 782-792 20 MHz 2 x 10 MHz EAG 6

\*Blocks have been auctioned.

46. In response to the *700 MHz Band Commercial Services Notice,* many
    commenters proposed that the Commission make a variety of changes
    with regard to the existing band plan for this commercial spectrum,
    as discussed below. Others, however, recommended that we make few if
    any changes to the existing band plan for this spectrum concerning
    the size of the service areas of the licenses to be auctioned, the
    size of the spectrum blocks, or the alignment of spectrum blocks.

47. With respect to the size of service areas in the 700 MHz Band, many
    commenters, including small and regional service providers, entities
    representing rural interests, and a coalition including cable
    television providers, supported revisiting the existing band plan
    and suggested that the Commission adopt a mix of the proposed
    license areas.[^81] Some of these same commenters favored making one
    or more license available based on small geographic areas,[^82] and
    supported the use of smaller service areas in general and CMAs in
    particular.[^83] Another coalition of 14 commenters, consisting of
    small, regional and rural carriers, as well as some state
    regulators, also submitted a proposal with a mix of service areas
    based on REAGs, EAs and CMAs.[^84] Other commenters, including small
    and larger carriers as well as rural interests and a tribal
    representative, also supported service areas smaller than EAGs.[^85]
    In addition, some commenters offered support for smaller service
    areas and also advocated unlicensed use of the spectrum.[^86] Access
    Spectrum/Pegasus supported the use of MEAs, which are the service
    areas for the Guard Band licenses, in connection with its specific
    proposal to reconfigure the Upper 700 MHz Band.[^87]

48. Other commenting parties, including Cingular, Verizon Wireless,
    Motorola, and AT&T, opposed revising the band plan to provide for
    additional small-area licenses in the 700 MHz Band.[^88] CTIA stated
    that, in evaluating possible revisions and determining the
    appropriate license area size(s), the Commission should consider all
    of the 700 MHz Band spectrum (*i.e*., both the previously auctioned
    and the unauctioned spectrum), the AWS-1 licensing frameworks, and
    the various secondary market opportunities available today.[^89]
    DIRECTV/EchoStar recommended that we include a nationwide license in
    the mix of license sizes.[^90]

49. With respect to the size of the spectrum blocks that remained to be
    auctioned, commenting parties disagreed as to whether we should
    include a large 20-megahertz block (comprised of paired 10-megahertz
    blocks) or instead create differently sized or smaller blocks. In
    particular, Motorola, Qualcomm, Verizon Wireless, CTIA, and
    DIRECTV/EchoStar opposed dividing the existing 20-megahertz D Block
    in the Upper 700 MHz Band into one or more additional blocks,
    asserting that a wider spectrum block may result in benefits in
    terms of providing broadband and other advanced services, and that
    this block is the only large spectrum block in the band.[^91] Access
    Spectrum/Pegasus, in connection with its "Broadband Optimization
    Plan" (BOP),[^92] proposed that 15 megahertz of the Upper 700 MHz
    Band, drawn from the C and D Blocks, be reconfigured into three
    blocks of 5.5-megahertz, 5.5-megahertz, and 4-megahertz paired
    spectrum, which would be situated immediately below a newly created
    1.5-megahertz Guard Band A Block.[^93] Navini supported the
    assignment of additional spectrum in the 700 MHz Band for Mobile
    WiMAX deployment that is conducive to time-division-duplex (TDD)
    systems, recommending that at least 15 megahertz, and preferably 30
    megahertz, be assigned per service provider, and supported making
    available additional bands of 16.5 megahertz as described by Access
    Spectrum/Pegasus.[^94] Corr proposed revising the Upper 700 MHz Band
    C and D Blocks to provide for two 15-megahertz blocks (each
    comprised of two paired 7.5-megaherz blocks).[^95] Many other
    commenters, including representatives of small and rural interests,
    supported dividing the 20-megahertz Upper 700 MHz Band D Block,[^96]
    and some commenters argued that by dividing the block more licenses
    with smaller geographic service areas could be made available.[^97]
    NextWave suggested reconfiguring the Upper 700 MHz Band C and D
    Blocks into two unpaired 10-megahertz blocks and one 10-megahertz
    block (paired 5-megahertz blocks), and reconfiguring the Lower 700
    MHz Band to include two 12-megahertz and one 6-megahertz unpaired
    blocks.[^98] Howard/Javed suggested the use of a 10-megahertz block
    (paired 5-megahertz blocks) and a 14-megahertz block (paired
    7-megahertz blocks) in the Lower 700 MHz Band's A and B Blocks, and
    alternatively proposed that the B Block be an asymmetric
    12-megahertz block (7-megahertz and 5-megahertz blocks), with the E
    Block revised to an 8-megahertz unpaired license.[^99]

50. Finally, Tropos recommended that the A and B Blocks of the Lower 700
    MHz Band should be auctioned and awarded to licensees that "would
    administer a contention based unlicensed spectrum
    environment,"[^100] which it contended would promote broadband
    deployment in rural communities.[^101] Several commenters oppose
    Tropos's recommendation.[^102]

51. *700 MHz Report and Order and 700 MHz Band Further Notice.* In the
    *700 MHz Report and Order,* we decided to replace the initial plan
    for auctioning the remaining licenses on an EAG basis with a new
    band plan that provided for a mix of geographic licensing areas
    consisting of CMAs, EAs, and REAGs. We found that a revised mix of
    geographic licensing areas in the 700 MHz Band would balance the
    demand for differently sized licenses demonstrated in the record and
    enhance access to this spectrum by a variety of potential
    licensees,[^103] noting that this mix of geographic license sizes
    would be consistent with the licensing opportunities and the balance
    of competing interests that we achieved in the recent auction of AWS
    licenses.[^104]

52. In the *700 MHz Further Notice*, we sought additional comment with
    regard to the specific location of these new CMAs, EAs, and REAGs in
    the commercial license blocks that had not yet been auctioned in the
    700 MHz Band. We also requested comment as to whether to alter the
    alignment of the spectrum blocks in either the Lower 700 MHz Band or
    Upper 700 MHz Band. Concerning the Lower 700 MHz Band, we proposed
    to maintain the spectrum blocks as currently sized and
    aligned,[^105] and to license the A Block on an EA basis, the B
    Block on a CMA basis, and the unpaired E Block on an REAG
    basis.[^106] With respect to the Upper 700 MHz Band, we sought
    comment on five proposals for reconfiguring the band plan for this
    spectrum, each presenting a variation on the size and location of
    the spectrum blocks associated with the Upper 700 MHz Commercial
    Services Band and the 700 MHz Guard Bands.[^107]

53. Regarding these five specific proposals concerning the Upper 700 MHz
    Band, two of these proposals (Proposals 1 and 3) would provide for
    two paired spectrum blocks, consisting of one large spectrum block
    (totaling 22 megahertz) and one smaller block (totaling 12 and 11
    megahertz, respectively). The other three proposals (Proposals 2, 4,
    and 5) would establish three similarly-sized, paired blocks (either
    11 or 12 megahertz in size). These five proposals differ as to the
    appropriate geographic service areas of these licenses.[^108]

-   *Proposal 1*. Two spectrum blocks in the Upper 700 MHz Band -- a
    large 22-megahertz C Block (comprised of two 11-megahertz paired
    blocks at 747-758/777-788 MHz) and a 12-megahertz D Block (comprised
    of two 6-megahertz paired blocks at 758-764/788-794 MHz). Both of
    these blocks would be licensed on a REAG basis.

```{=html}
<!-- -->
```
-   *Proposal 2*. Three spectrum blocks -- two 11-megahertz licenses, a
    C Block (comprised of two 5.5-megahertz paired blocks at
    747-752.5/777-782.5 MHz) and D Block (comprised of two 5.5-megahertz
    paired blocks at 752.5-758/782.5-788 MHz), and a 12-megahertz
    E Block (comprised of two 6-megahertz paired blocks at
    758-764/788-794 MHz). The C Block would be licensed over either CMAs
    or EAs, the D Block would be licensed over EAs, and the E Block
    would be licensed over REAGs.

```{=html}
<!-- -->
```
-   *Proposal 3*. Two spectrum blocks -- a 22-megahertz C Block
    (comprised of two 11-megahertz paired blocks at 746-757/776-787 MHz)
    and a 10-megahertz D Block (comprised of two 5-megahertz paired
    blocks at 757-762/787-792 MHz). (This proposal did not provide any
    specific proposal with regard to geographic service areas.)

```{=html}
<!-- -->
```
-   *Proposal 4*. Three spectrum blocks -- two 11-megahertz licenses, a
    C Block (comprised of two 5.5-megahertz paired blocks at
    746-751.5/776-781.5 MHz) and a D Block (comprised of two
    5.5-megahertz paired blocks at 751.5-757/781.5-787 MHz), and a
    10-megahertz E Block (comprised of two 5-megahertz paired blocks at
    757-762/787-792 MHz). The C and D Blocks would be licensed over
    REAGs, and the E Block would be licensed over EAs.

```{=html}
<!-- -->
```
-   *Proposal 5*. Three spectrum blocks -- two 11-megahertz licenses, a
    C Block (comprised of two 5.5-megahertz paired blocks at
    746-751.5/776-781.5 MHz), and the D Block (comprised of two
    5.5-megahertz paired blocks at 751.5-757/781.5-787 MHz), and a
    10-megahertz E Block (comprised of two 5-megahertz paired blocks at
    757-762/787-792 MHz). The C Block would be licensed over REAGs, and
    the D and E Blocks would be licensed over EAs.

54. In addition to seeking comment on these five possible variations for
    the Upper 700 MHz Band, we also sought comment on Frontline's
    proposal, which recommended that we designate the uppermost
    commercial spectrum block, licensed on a nationwide basis, for a
    public/private partnership with a public safety broadband licensee
    in the Upper 700 MHz Band.[^109] We also sought comment on a
    proposal by PISC to designate at least 30 MHz of commercial spectrum
    for use on an \"open access\" basis.[^110]

55. In response to the *700 MHz Further Notice*, the Commission received
    extensive comments on the appropriate band plan for the commercial
    spectrum in the 700 MHz Band. These comments generally concern both
    the mix of geographic service area license sizes throughout the
    band, and the size of the spectrum blocks remaining for auction.

56. With regard to the geographic service areas for the licenses to be
    auctioned, there is no consensus. Commenters' recommendations vary
    as to the appropriate mix of CMAs, EAs, or REAGs. Several commenters
    generally supported adoption of smaller geographic service areas,
    recommending licensing one additional CMA block in both the Lower
    and the Upper 700 MHz Bands.[^111] McBride proposes that all of the
    remaining blocks be auctioned over CMAs, Sprint Nextel and Blooston
    recommend CMAs for two spectrum blocks in the Upper 700 MHz Band,
    and Centennial requests that the Upper 700 MHz Band include at least
    one CMA license block.[^112] One commenter, Frontier, continues to
    support the use of license areas that are even smaller than
    CMAs.[^113] Some commenters express support for a mix of CMAs and
    EAs. For instance, U.S. Cellular recommends that at least four
    spectrum blocks should be based on CMAs and EAs.[^114] SpectrumCo
    recommends that, while only one additional CMA-based spectrum block
    is necessary, the Commission should maximize the number of EA
    licenses in the band.[^115] Cellular South supports the Commission's
    proposal for the Lower 700 MHz Band which includes a CMA license,
    and supports adoption of a band plan that includes an EA in the
    Upper 700 MHz Band.[^116] WCA proposes licensing at least one block
    of EAs in the Lower 700 MHz and one block in the Upper 700 MHz
    Band.[^117] Cyren Call comments that a CMA and EA license should be
    made available in the Upper 700 MHz Band if the Frontline proposal
    is adopted.[^118] Arguments that commenters supply for adoption of
    smaller geographic area licenses include that smaller license sizes
    improve the opportunity to access spectrum[^119] or to participate
    in the auction,[^120] encourage rural deployment,[^121] allow
    parties to acquire enough spectrum to fit their intended service
    areas,[^122] and permit new entrants to acquire spectrum.[^123] Some
    commenters argue that smaller geographic areas are required because
    there is a lack of service to rural areas by national
    carriers,[^124] and that large geographic areas favor large
    companies.[^125]

57. Many commenters generally support licensing by larger geographic
    service areas, *i.e*., over REAGs. 4G Coalition, which supports
    licensing a larger block in the Upper 700 MHz Band over REAGs,
    states that it is expensive and difficult to cobble together smaller
    license areas and that auction exposure risks are present with
    smaller areas.[^126] Google, which also supports REAG-based licenses
    over a larger block in the Upper 700 MHz Band, asserts that large
    service areas assist in providing access for new entrants.[^127]
    PISC (a coalition of public interest and consumer groups) contends
    that the number of REAGs should be maximized.[^128] In particular,
    PISC opposes the adoption of further small geographic area licenses
    in the Upper 700 MHz Band, arguing that the Commission has already
    determined to provide over 800 additional licenses over CMAs and EAs
    in the Lower 700 MHz Band. PISC also suggests that some larger
    carriers that have expressed support for smaller licenses may not be
    seeking to provide relief to rural areas, but instead, are
    attempting to use the regulatory process to block competitors from
    developing a national market.[^129] Verizon Wireless comments that
    the entire Upper 700 MHz Band should be licensed over REAGs, and
    that REAGs are necessary to achieve the goals of providing a mix of
    licenses and ensuring that advanced services will be deployed on a
    timely basis.[^130] AT&T's proposed band plan contains REAGs and an
    EA in the Upper 700 MHz Band.[^131]

58. Some of the commenters on the appropriate mix of geographic area
    license sizes also specify which license sizes should be adopted for
    particular blocks. Many commenters express support for the
    Commission's proposal relating to the Lower 700 MHz Band to license
    the A, B, and E Blocks over EAs, CMAs, and REAGs,
    respectively.[^132] For example, among the commenters supporting EAs
    in the Lower 700 MHz Band's A Block is RCA, which states that
    licensing that block over EAs will allow carriers of various sizes
    an opportunity to participate in the auction.[^133] Several
    commenters specify support for licensing the Lower 700 MHz Band's B
    Block over CMAs.[^134] Commenters noted the potential for
    aggregation opportunities by having a CMA license located adjacent
    to the C Block spectrum which already has been licensed over
    CMAs,[^135] with the 700 MHz Independents and RTG commenting that
    the aggregation potential with these adjacent CMA spectrum blocks is
    important because of certain technical issues arising with respect
    to operations in C Block.[^136] As for the Lower 700 MHz Band E
    Block, Cellular South and RCA agree with our proposal to license the
    block over REAGs.[^137] On the other hand, Aloha requests that this
    E Block be licensed over EAs, claiming that the proposed geographic
    service area is too large and too expensive for its projected
    limited use.[^138] Cyren Call suggests that, if Frontline's proposal
    is adopted for the Upper 700 MHz Band, two spectrum blocks in the
    Upper 700 MHz Band should be licensed over CMAs and EAs.[^139]

59. In response to our inquiry in the *700 MHz Further Notice* whether
    to maintain a larger spectrum block in the 700 MHz Band, the record
    reflects disparate views. Several commenters support the adoption of
    a larger spectrum block and argue against greater use of smaller
    spectrum blocks. For example, PISC states that "the push by
    SpectrumCo and large wireless carriers for smaller licenses appears
    designed to bolster their ability to block potential competitors
    from developing powerful national networks that would challenge
    their existing broadband and wireless offerings."[^140] 4G Coalition
    asserts that the Commission is already providing smaller blocks in
    the overall band plan for the Lower and Upper 700 MHz Bands, and
    recommends inclusion of at least one large block in the Upper 700
    MHz Band, which it claims would offer benefits for advanced
    broadband service.[^141] Google comments that a large spectrum block
    would provide greater flexibility to technologies with adjustable
    signal bands, such as WiMax, and additional capacity for
    technologies with fixed waveforms, like EvDO.[^142] Verizon Wireless
    contends that wireless broadband deployment and emerging 4G
    technologies require a large spectrum block to achieve the fastest
    data rates.[^143] Ericsson proposes that the Commission maintain a
    20-megahertz block.[^144]

60. Other commenters, however, support a band plan that would eliminate
    the large spectrum block from the existing band plan and provide for
    two smaller spectrum blocks.[^145] For example, Cellular South
    claims that smaller blocks will enable new entrants to obtain
    licenses and that a single large block restricts competition for the
    spectrum.[^146] RCA comments that while large entities may have an
    interest in a larger block, offering it on such a basis would be
    "conspicuously unfair"[^147] and MetroPCS claims that a 22-megahertz
    REAG block would be a "set-aside for larger auction
    participants."[^148] SpectrumCo claims that dividing a larger block
    would maximize flexibility and "would provide bidders with
    opportunities to customize their service areas, expand into new
    markets, and/or strategically supplement spectrum holdings in
    existing geographic areas."[^149]

61. Google recommends that the Commission designate the 6-megahertz
    unpaired spectrum block in the Lower 700 MHz Band E Block as
    suitable, primarily or exclusively for the deployment of broadband
    communications platforms. Specifically, Google recommends that this
    block should be utilized for interactive, two-way broadband
    services, connected to the public internet, and used to support
    innovative software-based applications, services, and devices.
    Google contends that adopting such a service requirement will help
    maximize the commercial utility of this spectrum band. In
    particular, Google alleges that the unpaired E Block in the Lower
    700 MHz Band "appears to lack any significant immediate commercial
    value, due to the relatively limited bandwidth available and its
    unpaired nature."[^150] Google comments that the Commission has
    supported ubiquitous broadband deployment as one of the nation's top
    priorities.[^151] On the other hand, a number of commenters opposed
    Google's proposal regarding E Block in the Lower 700 MHz Band. For
    example: AT&T alleges that Google's proposal is counter to the
    principles of technical and service neutrality and licensee
    flexibility; CTIA claims that Google's proposal would adversely
    affect competition in mobile services generally; Qualcomm comments
    that Google's proposed standard is too vague, is contrary to the
    flexible allocation adopted for the Lower 700 MHz Band, and that
    there is commercial value for this spectrum; RTG opposes limiting
    the use of any spectrum to the services proposed by Google; and
    Verizon Wireless comments that the proposal should be rejected in
    light of the Commission's longstanding policy for maximum licensee
    flexibility.[^152]

##### Discussion

62. In the *700 MHz Report and Order*, we determined that a balanced mix
    of geographic service area licenses -- CMAs, EAs, and REAGs -- would
    be appropriate for the commercial 700 MHz Band licenses that will be
    auctioned.[^153] We reaffirm that determination for all of this
    commercial spectrum except for that associated with the 10-megahertz
    commercial license (comprised of paired 5-megahertz blocks), which
    will be auctioned on a nationwide basis for use as part of the 700
    MHz Public/Private Partnership with the Public Safety Broadband
    Licensee. We further determine that a mix of spectrum block sizes,
    including one large 22-megahertz block (comprised of paired
    11-megahertz blocks), is appropriate for the 700 MHz Band licenses
    that remain to be auctioned.

63. In evaluating the appropriate balance of license areas and block
    sizes in this revised band plan, we consider the 700 MHz Band as a
    whole, including both the commercial spectrum that has not yet been
    auctioned and the previously auctioned spectrum. Recent statutory
    and regulatory changes have served to harmonize these spectrum bands
    and warrant our consideration of the 700 MHz Band spectrum as a
    whole. The DTV Act provides a uniform transition date for the entire
    spectrum in both the Lower and Upper 700 MHz Bands, which will make
    all of the spectrum nationwide available simultaneously. In
    addition, in the *700 MHz Report and Order*, we revised the power
    limit requirements for the spectrum in the Lower 700 MHz Band that
    has not yet been auctioned to make them substantially similar to
    those applicable to the Upper 700 MHz Band. Finally, the
    Commission's secondary markets rules will allow auction winners to
    aggregate previously auctioned spectrum with spectrum they win in
    the upcoming auction.

64. In determining the specific mix of geographic licensing areas and
    block sizes for the spectrum to be auctioned, we seek to achieve the
    kind of reasonable balance that we achieved when adopting a mix of
    licenses and block sizes in the band plan for the AWS-1 spectrum.
    The 700 MHz Band spectrum, like the AWS-1 spectrum, is particularly
    well-suited for wireless broadband services. Given that these bands
    are likely to be used for similar services, our goals here are
    similar to those for the AWS-1 Band. In particular, our goals for
    the 700 MHz Band are to promote dissemination of licenses among a
    wide variety of applicants, accommodate the competing need for both
    large and small licensing areas, meet the various needs expressed by
    potential entrants seeking access to spectrum and incumbents seeking
    additional spectrum, and provide for large spectrum blocks that can
    facilitate broadband deployment in the band.

65. To achieve these goals, we will license three commercial blocks of
    paired spectrum -- one 12-megahertz block (comprised of paired
    6-megahertz blocks) licensed on a CMA basis, one 12-megahertz block
    (comprised of paired 6-megahertz blocks) on an EA basis, and one
    22-megahertz block (comprised of paired 11-megahertz blocks) on an
    REAG basis -- as well as one 6-megahertz block of unpaired spectrum
    on an EA basis. The following figure shows this new band plan:

    **[[Figure 8: Revised 700 MHz Band Plan for Commercial
    Services]{.underline}]{.smallcaps}**

757 763 775 787 793 805

  ----- ----- ----- ----- ----- ----- ----- ----- ----- ----- --- ----- -------- ----- ----- --- ----- ----- --- ----- --- -------- ----- ----- ---
  A     B     C     D     E     A     B     C     C           A   D     Public               B   C           A         D   Public               B
                                                                        Safety                                             Safety               

  CH.   CH.   CH.   CH.   CH.   CH.   CH.   CH.   CH.   CH.       CH.            CH.   CH.       CH.   CH.       CH.                CH.   CH.   
  52    53    54    55    56    57    58    59    60    61        62             63    64        65    66        67                 68    69    
  ----- ----- ----- ----- ----- ----- ----- ----- ----- ----- --- ----- -------- ----- ----- --- ----- ----- --- ----- --- -------- ----- ----- ---

698 704 710 716 722 728 734 740 746 752 758 764 770 776 782 788 794 800
806

[Lower 700 MHz Band Upper 700 MHz Band]{.smallcaps}

[(Channels 52-59) (Channels 60-69)]{.smallcaps}

[Block]{.underline} [Frequencies]{.underline} [Bandwidth]{.underline}
[Pairing]{.underline} [Area Type]{.underline} [Licenses]{.underline}

A 698-704, 728-734 12 MHz 2 x 6 MHz EA 176

B 704-710, 734-740 12 MHz 2 x 6 MHz CMA 734

C 710-716, 740-746 12 MHz 2 x 6 MHz CMA 734\*

D 716-722 6 MHz unpaired EAG 6\*

E 722-728 6 MHz unpaired EA 176

C 746-757, 776-787 22 MHz 2 x 11 MHz REAG 12

D 758-763, 788-793 10 MHz 2 x 5 MHz Nationwide 1\*\*

A 757-758, 787-788 2 MHz 2 x 1 MHz MEA 52\*\*\*

B 775-776, 805-806 2 MHz 2 x 1 MHz MEA 52\*\*\*

\*Blocks have been auctioned.

\*\*Block is associated with the 700 MHz Public/Private Partnership.

\*\*\*Guard Bands blocks have been auctioned, but are being relocated.

66. With respect to the mix of geographic service area licenses under
    our revised band plan for the 70 megahertz of commercial spectrum in
    the 700 MHz Band that is neither Guard Band spectrum nor spectrum
    designated for the Public/Private Partnership, a total of 24
    megahertz will be provided on a CMA basis (including 12 megahertz
    already auctioned), 18 megahertz on an EA basis, and 28 megahertz on
    an REAG/EAG basis (including 6 megahertz already auctioned on an EAG
    basis, which are large licenses similar to REAGs).

67. This mix achieves a balance among different geographic area sizes
    that is similar to that provided in the AWS-1 band plan. The
    following figure compares the amount of spectrum for CMAs, EAs, and
    EAGs/REAGs in the AWS-1 Band to that for the revised 700 MHz Band,
    excluding the Guard Band spectrum and the spectrum designated for
    use as part of the 700 MHz Public/Private Partnership.

    **[[Figure 9: Comparison of AWS and 700 MHz
    Spectrum]{.underline}]{.smallcaps}**

  ------------ ------------------------ ----------------------- -- ------------------------ ----------------------- -- ------------------------ -----------------------
               **AWS**                                             **Unauctioned and                                   **Unauctioned 700 MHz    
                                                                   Auctioned 700 MHz Band**                            Band**                   

               [Spectrum]{.underline}   [Percent]{.underline}      [Spectrum]{.underline}   [Percent]{.underline}      [Spectrum]{.underline}   [Percent]{.underline}

               (megahertz)                                         (megahertz)                                         (megahertz)              

  **Analysis                                                                                                                                    
  of Paired                                                                                                                                     
  Spectrum                                                                                                                                      
  Only**                                                                                                                                        

  CMA          20                       22.2 %                     24                       41.4 %                     12                       26.1 %

  EA           30                       33.3 %                     12                       20.7 %                     12                       26.1 %

  REAG/EAG     40                       44.4 %                     22                       37.9 %                     22                       47.8 %

  **Total**    90                                                  58                                                  46                       

                                                                                                                                                

  **Analysis                                                                                                                                    
  of Paired                                                                                                                                     
  and Unpaired                                                                                                                                  
  Spectrum**                                                                                                                                    

  CMA          20                       22.2 %                     24                       34.3 %                     12                       23.1 %

  EA           30                       33.3 %                     18                       25.7 %                     18                       34.6 %

  REAG/EAG     40                       44.4 %                     28                       40.0 %                     22                       42.3 %

  **Total**    90                                                  70                                                  52                       

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

> Analysis does not include 10 megahertz for the Upper 700 MHz D Block
> License and 4 megahertz for Guard Bands.

68. As with AWS-1, the majority of the spectrum in the 700 MHz Band will
    be licensed by CMAs or EAs. Specifically, in the AWS-1 Band, 55.5
    percent of the entire spectrum was licensed by CMAs or EAs (22.2
    percent and 33.3 percent, respectively), while for the 700 MHz Band,
    60 percent will be licensed by CMAs or EAs (34.3 and 25.7 percent).
    In addition, a substantial portion of the 700 MHz Band will be
    licensed by large service areas (REAGs/EAGs). Whereas 44.4 percent
    of the AWS-1 Band was licensed by REAGs, 40 percent of the 700 MHz
    Band will be licensed by either REAGs or EAGs.

69. Regarding the size of available spectrum blocks, we provide for one
    large, 22-megahertz spectrum block (comprised of paired 11-megahertz
    blocks) in the 700 MHz Band to promote more innovative and efficient
    broadband deployment in this band. As the Commission found in the
    AWS-1 proceeding, 20-megahertz (or larger) spectrum blocks enable a
    broader range of broadband services (including Internet access at
    faster speeds), accommodate future higher data rates, and provide
    operators with additional capacity and, importantly,
    flexibility.[^154] Based on that finding, in the AWS-1 band plan,
    three of the five spectrum blocks (66% of the total available
    spectrum) were made available in large 20-megahertz blocks.[^155]
    Although we are departing from the AWS-1 band plan by licensing most
    spectrum blocks in the 700 MHz Band in smaller sizes,[^156] we
    conclude that licensing one of the 700 MHz Band spectrum blocks as a
    22-megahertz spectrum block enhances broadband deployment and
    stimulates new entry.

70. We discuss in more detail below the revised band plan, including our
    decisions regarding the specific placement of the CMA, EA, and REAG
    licenses and the size of the spectrum blocks. We revise the size and
    location of the spectrum blocks in the Upper 700 MHz Band,
    consistent with our decisions to change the spectral location of the
    Guard Bands and make an additional 2 megahertz of commercial
    spectrum available for auction based on our reducing the size of the
    Guard Band B Block, and designate a 10-megahertz spectrum block
    (comprised of two 5-megahertz paired blocks) adjacent to the Public
    Safety spectrum as part of the 700 MHz Public/Private Partnership.

71. *CMAs in a 12-Megahertz Spectrum Block (Comprised of Paired
    6-Megahertz Blocks) in the Lower 700 MHz Band B Block*. We will
    license one additional spectrum block in the 700 MHz Band on a CMA
    basis, to be located in the B Block of the Lower 700 MHz Band
    immediately adjacent to the existing CMA-based licenses. As
    reflected in the record, there is demand by small and rural
    providers for smaller areas such as CMAs.[^157] Providing for an
    additional 700 MHz Band spectrum block licensed on a CMA basis may
    allow small and rural providers to obtain license areas that meet
    their needs while avoiding the transaction costs associated with
    obtaining access to spectrum in the secondary market, costs that are
    incurred when these small providers must arrange the terms by which
    another licensee grants access to its spectrum by means of
    partitioning, disaggregation, or spectrum leasing.[^158]
    Accordingly, we find that additional small area licenses based on
    CMAs should be available in the 700 MHz Band to allow smaller and
    more rural bidders to match their particular needs to the licenses
    available at auction and avoid potential transaction costs.[^159]
    This approach is consistent with the Commission's objectives to
    promote economic opportunity and competition, as well as the
    dissemination of licenses to a wide variety of applicants, including
    small and rural providers.[^160]

72. We find that the 12-megahertz B Block (comprised of paired
    6-megahertz blocks) in the Lower 700 MHz Band is the appropriate
    spectrum band for the CMA licenses. As discussed above, several
    commenters specifically recommend that the B Block be assigned using
    CMAs.[^161] By providing for CMAs in the Lower 700 MHz Band B Block,
    licensees will be afforded the opportunity to combine B Block
    licenses with licenses in the adjacent C Block, which already have
    been licensed over CMAs.[^162] The Commission has favored placing
    spectrum blocks with the same type of geographic area licenses
    adjacent to one another because this approach enables licensees to
    more easily aggregate the adjacent channel licenses, whether at
    auction or in the secondary market.[^163] While we are not creating
    a larger spectrum block for CMAs (*e.g.*, a 20-megahertz block), as
    requested by some parties,[^164] we do not find that this step is
    necessary because converting the B Block to CMA licensing creates
    opportunities for small or rural service providers to create a
    24-megahertz CMA block in any given geographic area by aggregating
    spectrum in the revised B Block and the existing C Block. As a
    result, small and rural bidders may acquire rights to a large amount
    of contiguous spectrum over small geographic service area, which
    provides the potential for more flexibility in broadband services to
    be offered and technologies to be deployed. These opportunities are
    particularly important because the boundaries of CMA-based licenses
    do not match the boundaries of licenses based on EAs, EAGs, or
    REAGs, and therefore may be most usefully aggregated with other CMA
    licenses.

73. For these reasons, we do not adopt EAs for the B Block.[^165]
    Providing for an additional CMA spectrum block in the Lower Band B
    Block comports with the record and will help us achieve a balanced
    mix of geographic service area sizes in this band that is similar to
    the Commission's approach to the AWS-1 spectrum. As part of this
    balance, and as discussed below, we also establish two EA license
    blocks in the 700 MHz Band in order to address concerns raised by
    those parties requesting EA licenses.

74. *REAGs in a 22-Megahertz Spectrum Block (Comprised of Paired
    11-Megahertz Blocks) in the Upper 700 MHz Band C Block*. In addition
    to making licenses available by a variety of geographic areas sizes,
    including CMAs, we also find that we need to make available at least
    one large spectrum block. Having determined that we will provide for
    a 12-megahertz CMA block in the Lower 700 MHz B Block and a
    10-megahertz spectrum block adjacent to the Public Safety spectrum,
    we conclude that a 22-megahertz block of paired spectrum should be
    located in the C Block in the Upper 700 MHz Band and licensed on a
    REAG basis. This approach is consistent with our goal of promoting
    broadband services in this band, and will provide important benefits
    to potential users of this spectrum that may need large spectrum
    blocks as well as large geographic areas. Because we provide for
    package bidding for licenses in this spectrum block, as discussed
    below, this large REAG block will be particularly important for
    potential new entrants and other bidders that seek to provide a
    nationwide service.[^166]

75. With regard to the size of spectrum blocks, this C Block will be the
    only spectrum block larger than 12 megahertz in the 700 MHz
    Band.[^167] The inclusion of this large block results in a greater
    mix of licenses in the 700 MHz Band and gives prospective licensees
    an additional choice in acquiring the amount of spectrum consistent
    with the technologies and spectrum architecture they may plan to
    deploy. A large spectrum block makes available licenses of varying
    bandwidth and provides for the 700 MHz Band the sort of reasonable
    balance that we achieved for AWS-1 spectrum.[^168] As the Commission
    previously determined for AWS-1 spectrum, which is similarly useful
    for providing wireless broadband service,[^169] larger spectrum
    blocks offer important benefits, including providing sufficient
    spectrum to support the deployment of new and emerging
    competitors[^170] and the opportunity to achieve high data
    transmission rates for large numbers of customers.[^171] Large
    blocks also offer benefits with respect to economies of scale,
    providing an opportunity for licensees to develop new technologies
    and services, and additional flexibility.[^172]

76. Licensing a spectrum block of this size in the 700 MHz Band could
    also enable the development of technologies that will produce bit
    rates far beyond those available with today's technologies.[^173]
    Although existing 3G technologies, such as CDMA-2000 and Wideband
    CDMA, can readily be accommodated on blocks of 2.5-megahertz (paired
    1.25-megahertz blocks) and 10-megahertz (paired 5-megahertz
    blocks),[^174] respectively, we anticipate that Fourth Generation
    (4G) technologies will be able to take advantage of wider spectrum
    blocks, such as the 22-megahertz block we adopt in this Second
    Report and Order, to produce bit rates that are a significant
    increase beyond those currently achievable with today's
    technologies.[^175] By creating a larger spectrum block in the 700
    MHz Band, we will enable the provision of many services, including
    VoIP, broadband internet access, and streaming audio and video
    programming, to be offered at higher speeds, to a greater number of
    subscribers, and with more advanced capabilities than could be
    offered on smaller-sized spectrum blocks in the band.

77. These capabilities are especially important for new entrants that
    want to compete directly with wireline broadband alternatives, which
    are increasingly moving to fiber networks capable of very high data
    rates. While many planned 4G technologies may offer narrow channel
    bandwidths for migration purposes, a 20-megahertz block (comprised
    of paired 10-megahertz blocks) is the minimum size needed to
    accommodate anticipated higher data rates. Based on the Third
    Generation Partnership Project 2 (3GPP2) standards, 1x-EVDO Rev. C,
    or UMB is expected to support 40 Mbps data rate on the down
    link.[^176] Based on the Third Generation Partnership Project (3GPP)
    Long Term Evolution (LTE) technology, down link peak data rates up
    to 50 Mbps in a 10-megahertz paired channel are anticipated.[^177]
    In addition, the IEEE 802.16m project targets a minimum of 65 Mbps
    in a 10-megahertz paired channel.[^178] None of these standards
    groups expect 4G technologies data rates to reach these anticipated,
    or higher peak data rates with less than a 20-megahertz block
    (paired 10-megahertz blocks). Thus, a 22-megahertz spectrum block,
    or effectively 20 megahertz (2 x 10 MHz), will enable licensees to
    deploy Fourth Generation (4G) wireless technologies designed to
    compete with high-capacity wireline offerings.

78. Providing for a large spectrum block also eliminates the need for
    internal guard bands that would otherwise be necessary if two
    smaller spectrum blocks were acquired by different licensees. The
    use of two, rather than four, internal guard bands, associated with
    a larger spectrum segment, allows increases in network capacity and
    higher data throughput rates even with existing technologies. For
    example, as we observed in the *700 MHz Commercial Services Notice*,
    if a large spectrum block were divided into two smaller blocks, the
    overall data throughput rates of 1xEV-DO transmissions would
    decrease by 14 percent.[^179] This lower data throughput level would
    be caused by the need to place 0.625-megahertz guard bands at both
    ends of two separate blocks and the resulting loss of usable
    spectrum from having four, rather than two, internal guard
    bands.[^180]

79. A larger 22-megahertz spectrum block (comprised of paired
    11-megahertz blocks) also would provide flexibility for C Block
    licensees to address potential interference issues. Base stations in
    certain blocks in the Lower 700 MHz Band may operate at power levels
    up to 50 kW ERP if specific power flux density (PFD) limits are
    met.[^181] The 22-megahertz Upper 700 MHz Band C Block would contain
    sufficient spectrum for a licensee to designate some spectrum as an
    internal guard band without unduly compromising data rates. Given
    the elimination of the Guard Band A Block previously at the bottom
    of the Upper 700 MHz Band, *i.e.*, at 746-747 MHz, this would permit
    Upper 700 MHz Band C Block licensees to address any potential
    concerns regarding interference from high power operations in the
    Lower 700 MHz C Block.[^182] Accordingly, under our revised band
    plan, the 22-megahertz block not only provides flexibility for the
    deployment of 4G services and technologies, but offers Upper 700 MHz
    Band C Block licensees the flexibility to address any interference
    concerns they may have.

80. For all these reasons, we find that providing for one 22-megahertz
    spectrum block serves the public interest. We reject the band plan
    proposals of Northrop Grumman, AT&T, Cyren Call, and Frontline,
    because each of these proposals are premised on the adoption of a
    band plan with spectrum blocks that are significantly smaller than
    the new 22-megahertz C Block.[^183] We also reject arguments that by
    adopting a single large block we are favoring a particular business
    model or potential bidder,[^184] or limiting competition or
    participation in the auction.[^185] Adopting a large spectrum block
    is part of our effort to provide an appropriate mix of licenses and
    is consistent with the positions of many other commenters. Many
    commenters responding to the *700 MHz Commercial Services Notice*
    supported the retention of a larger, *e.g.*, 20-megahertz
    block,[^186] and the record has continued to demonstrate support for
    a larger spectrum block in the band.[^187]

81. With regard to the size of geographic service areas, the use of
    REAGs for the Upper 700 MHz Band C Block also will provide a number
    of benefits. First, as the Commission noted in adopting the AWS-1
    band plan, the use of REAGs may meet the needs of carriers
    interested in creating a large regional or nationwide service area,
    which may be especially important for new entrants.[^188] In
    particular, the use of large geographic service areas helps reduce
    transaction costs to both auction participants seeking to aggregate
    adjoining smaller geographic areas at auction and licensees seeking
    to consolidate such areas post auction. At the same time, REAGs are
    not so large as to preclude medium-sized providers from acquiring
    them at auction. For example, in the auction for AWS-1 licenses,
    MetroPCS acquired a REAG license for the highly populated
    Northeastern U.S., and Cricket acquired a REAG license for the
    Central U.S.

82. Whether used for providing service over a region or aggregated to
    provide nationwide service, because REAGs represent larger
    geographic areas, they help lower the costs of acquiring a larger
    customer base to achieve economies of scale.[^189] To the extent
    licensees are better able to create large service areas and achieve
    economies of scale, they are better able to offer new and innovative
    services, including advanced broadband services. When combined with
    a large spectrum block, the use of REAGs may be even more effective
    in promoting these benefits, especially the provision of wireless
    broadband services.

83. *EAs in a 12-Megahertz Spectrum Block (Comprised of Paired
    6-Megahertz Blocks) in the Lower 700 MHz Band A Block.* We adopt EAs
    as the geographic service area for licenses in Block A of the Lower
    700 MHz Band, making 176 licenses available in this block. Similar
    to the Commission's approach for the AWS-1 spectrum, we find that
    there may be benefits to locating the EA block next to a CMA block,
    given that smaller providers can benefit from both CMA and EA
    blocks.[^190] Because other portions of the 700 MHz Band are more
    appropriate for CMAs and REAGs, for reasons described above, we
    therefore will assign licenses based on EAs in the A Block of the
    Lower 700 MHz Band.

84. By adopting EAs in the 700 MHz Band, the Commission will provide
    potential applicants additional flexibility to implement their
    business plans by allowing these parties the option of bidding on a
    geographic license area based on a size that is between smaller CMAs
    and larger REAGs.[^191] This benefit may occur in several ways.
    Bidders that want license areas smaller than REAGs but larger than
    CMAs will have an opportunity to acquire spectrum more appropriate
    for their business plans either by obtaining a single EA license or
    aggregating multiple EA licenses.[^192] The transaction costs of
    such aggregation should be lower than they are for licenses based on
    CMAs, which are smaller and thus require more licenses to cover the
    same geographic area. In addition, because EAs are building blocks
    for REAGs, EA licenses and REAG licenses can be combined to form
    larger service territories or larger spectrum holdings within
    certain geographic markets. [^193] Existing service providers also
    can acquire EA license areas to supplement their existing spectrum
    capacity.[^194] For these reasons, service providers will be
    afforded flexibility by the availability of EA licenses and REAG
    licenses in the 700 MHz Band,[^195] and this flexibility will serve
    to advance opportunities for broadband deployment, including timely
    deployment to rural areas.

85. We find that the 12-megahertz A Block (comprised of paired
    6-megahertz blocks) in the Lower 700 MHz Band is appropriate
    spectrum for EA licenses. This determination will create
    opportunities for a variety of bidders, including small and regional
    providers, to acquire licenses for small geographic service areas in
    the Lower 700 MHz Band.[^196] Because the A Block is next to a
    second 12-megahertz block of spectrum, the B Block, that will be
    licensed using CMAs, small, regional, and rural providers will also
    have opportunities to combine these blocks.[^197] This is consistent
    with the AWS-1 band plan, which also included a spectrum block of
    this size on an EA basis that was located immediately adjacent to a
    CMA block.[^198] Also, licensees will have additional flexibility
    resulting from the opportunity to combine the spectrum in A Block
    with the adjacent unpaired E Block spectrum which, as we determine
    below, also will be licensed over EAs. We conclude that licensing
    the paired spectrum in Block A of the Lower 700 MHz band on an EA
    basis is in the public interest.

86. *EAs in a 6-Megahertz Unpaired Spectrum Block in the Lower 700 MHz
    Band E Block.* We also adopt EAs for the unpaired 6-megahertz E
    Block of the Lower 700 MHz Band. A second spectrum block comprised
    of EA licenses in the 700 MHz Band further enhances the mix of
    geographic sizes for licenses in the band. By providing for
    EA-licensing in this block, the licenses in the 700 MHz Band will
    consist of two licenses for each of the geographic areas we adopted
    in the *700 MHz Report and Order* -- CMAs, EAs, and REAGs/EAGs. We
    find that such a balance of service areas in this spectrum is
    consistent with goals we discussed in the *700 MHz Report and
    Order*, including providing greater access to the spectrum by a
    variety of potential licensees.[^199]

87. An EA service area for the E Block provides licensees with
    flexibility through the opportunity to combine spectrum. First, the
    E Block spectrum can be combined with the adjacent A Block spectrum
    which, as we discuss above, also will be licensed over EAs. Second,
    the E Block spectrum can be combined with the adjacent D Block
    spectrum, which has been assigned over EAGs, because EAs are
    building blocks for EAGs and thus provide the opportunity for
    licensees to combine spectrum and thus enhance flexibility.

88. Adopting EAs for the E Block also affords a wider range of potential
    licensees with the opportunity to take advantage of the power level
    that applies to the Lower 700 MHz Band. As we found in the *700 MHz
    Report and Order*, unpaired spectrum blocks provide an environment
    "conducive to the provision of broadcast-type operations," and we
    therefore decided to permit these unpaired blocks to operate at a
    power level of 50 kW ERP.[^200] Although some commenters argue that
    E Block should be licensed over REAGs,[^201] by adopting geographic
    areas smaller than REAGs for this block, we enable access to
    spectrum by a wider range of licensees who may want to take
    advantage of the power level for this spectrum but who do not
    require a license covering a large geographic area.[^202]

89. *Additional Issues Raised Regarding the Commercial Spectrum in the
    700 MHz Band*. As mentioned above, in response either to the *700
    MHz Commercial Services Notice* or the *700 MHz Further Notice*,
    some parties have raised additional issues regarding the band plan
    for this commercial spectrum. These remaining issues are addressed
    below.

90. We reject the proposal of Howard/Javed respecting the delivery of
    fixed broadband to underserved areas.[^203] These proposals are
    beyond the scope of both the *700 MHz Commercial Services Notice*
    and the *700 MHz Further Notice.*[^204] In addition, our other
    actions in this Second Report and Order, including the provision of
    a mix of different size service areas with small area licenses, take
    significant steps toward enhancing the 700 MHz Band spectrum for a
    wide variety of uses, including fixed wireless broadband.

91. We also reject Howard/Javed's proposal to adjust the band plan to
    reflect 10- and 14-megahertz blocks in the A and B Blocks,
    respectively, of the Lower 700 MHz Band. There is record support to
    maintain the size and location of the spectrum blocks in the Lower
    700 MHz Band.[^205] As we explain elsewhere in this Second Report
    and Order, we have decided to maintain the B Block at 12 megahertz
    (comprised of 6-megahertz pairs) to provide licensees the
    opportunity to combine that block with the C Block, which has
    already been licensed and also is a 12 megahertz block (comprised of
    6-megahertz pairs) based on CMAs.[^206] We also decline to adopt
    Howard/Javed's alternative suggestion that the B Block be made an
    asymmetrically paired 12-megahertz block with an unpaired E Block
    increased to 8 megahertz, to incorporate asymmetric download and
    upload capacity in broadband systems.[^207] While Howard/Javed state
    that these proposals may be supported by the upcoming WiMax
    standards for this spectrum, these proposals are not necessary for
    the provision of WiMax in the 700 MHz Band. There also is little
    support in the record for such a band plan.

92. In addition, we will not adopt the recommendation of Tropos that the
    A and B Blocks of the Lower 700 MHz Band should be auctioned and
    awarded to licensees that "would administer a contention based
    unlicensed spectrum environment."[^208] We agree with CTIA and AT&T
    that Tropos's proposal is not consistent with the flexible use
    intended for this spectrum.[^209] We also find that the technical
    rules are sufficient to permit the use of Tropos's technologies by a
    licensee in the 700 MHz Band. Finally, there is little support in
    the record for Tropos's proposal.

93. Corr requests that the C and D Blocks of the Upper 700 MHz Band be
    realigned to form two 15-megahertz blocks (each comprised of paired
    7.5-megahertz blocks), with one licensed over EAGs and the other
    over REAGs.[^210] Our decision to reconfigure the Upper 700 MHz Band
    in the manner adopted in this Second Report and Order meets the
    needs of a broad range of spectrum providers and the public. First,
    our decision to maintain a license with a wider bandwidth helps to
    provide a mix of license sizes throughout the entire 700 MHz Band so
    bidders will have options in acquiring licenses that best meet their
    requirements. Second, our decision to provide another license, with
    appropriate conditions, in conjunction with a public/private
    partnership to address broadband for public safety addresses
    important concerns relating to an interoperable public safety
    network.

94. We decline to adopt NextWave's proposed band plan, which is based on
    the use of unpaired spectrum blocks to allow for the development of
    TDD technologies.[^211] Similarly, we will not adopt Navini's
    suggestion to allocate additional spectrum in the 700 MHz Band for
    mobile WiMAX deployment that is specially conducive to the use of
    TDD technology, *i.e.,* 15- or 30-megahertz spectrum blocks.[^212]
    The 700 MHz Band already provides for two unpaired licenses, one of
    which remains to be assigned (*i.e.*, E Block of the Lower 700 MHz
    Band). In addition, the Commission provided for a flexible use
    approach with respect to the services and technologies, "including
    provision of the full range of FDD- and TDD-based wireless
    services."[^213] The band plan we are adopting today is carefully
    crafted to provide a mix of licenses of various sizes and bandwidths
    for the entire 700 MHz Band to meet the competing needs of a wide
    range of commenters and to meet a number of important policy goals,
    and we find that maintaining the current size of the unauctioned
    unpaired spectrum band is consistent with our decisions regarding
    the rest of the band plan.

95. We also decline to adopt Google's suggestion that the Commission
    should require two-way broadband platforms in the E Block of the
    Lower 700 MHz Band.[^214] The Commission has provided for
    flexibility in services to be offered and technologies to be
    deployed in the 700 MHz Band. In the *Lower 700 MHz Report and
    Order*, the Commission adopted a flexible allocation for the Lower
    700 MHz Band which "will allow service providers to select the
    technology they wish to use to provide new services that the market
    may demand."[^215] Google's proposal regarding the use of the Lower
    700 MHz Band's E Block could reduce this flexibility, and thus
    restrict the extent to which any potential bidder and licensee could
    operate in the band. Google does not present evidence of any
    significant support for the Commission deviating from its policy
    respecting flexible use, and we do not agree with Google's
    suggestion that the E Block lacks any immediate commercial value.
    The record reflects that the similar unpaired 6-megahertz D Block in
    the Lower 700 MHz Band, which is adjacent to E Block, is being used
    by Qualcomm for its MediaFLO service.[^216] As discussed elsewhere
    in this Second Report and Order, service providers that hold
    licenses for the Lower 700 MHz Band E Block will have significant
    incentives to provide advanced broadband and other services. In
    addition, by licensing the E Block over smaller geographic areas,
    EAs, we are providing the opportunity for a wider range of potential
    licensees to access this spectrum. We therefore see no need to
    condition the use of this block as requested by Google.

96. Finally, we do not address a reallocation of additional spectrum for
    public safety purposes as discussed by Association of Public-Safety
    Communications Officials-International, Inc. (APCO), International
    Association of Chiefs of Police, International Association of Fire
    Chiefs, Major Cities Chiefs Association, Major County Sheriffs
    Association, and National Sheriffs' Association in their comments on
    the *700 MHz Commercial Services Notice*.[^217] As these commenters
    acknowledge, such a reallocation is beyond the Commission's current
    statutory authority.[^218] In any event, we are adopting provisions
    elsewhere concerning the 700 MHz Public Safety Band and to establish
    nationwide interoperable wireless broadband for public safety.

#### Guard Bands Spectrum 

##### Background

97. In the *700 MHz Further Notice*, we proposed to change the sizes and
    locations of the Upper 700 MHz Guard Bands.[^219] We sought comment
    on these changes within the framework of our tentative conclusion to
    designate the lower portion of the 700 MHz Public Safety Band for
    broadband communications, and to consolidate the narrowband channels
    to the upper portion of the public safety spectrum.[^220] We
    tentatively concluded that the Commission should not adopt the BOP
    for the Guard Bands spectrum, or other proposals to the extent that
    they propose a reallocation of commercial spectrum for public safety
    use or the assignment of spectrum from our auction inventory without
    competitive bidding.[^221] We reasoned that, prior to the completion
    of the DTV transition, Section 337 of the Act appears to prohibit
    the Commission from reallocating commercial spectrum for public
    safety use as proposed by the BOP and Ericsson.[^222] Similarly, we
    stated that Section 337 appears to require competitive bidding to
    assign spectrum allocated for commercial use, making the BOP and the
    critical infrastructure industries (CII) proposals potentially
    unlawful.[^223] Finally, we tentatively concluded that even if the
    Commission possessed legal authority to adopt the BOP, Ericsson, or
    CII proposals, they would not serve the public interest because they
    seek to assign additional spectrum to current licensees without
    competitive bidding.[^224]

98. We also noted that a reconfiguration of the 700 MHz Public Safety
    Band could result in interference to the relocated public safety
    narrowband channels from existing Canadian and Mexican TV
    broadcasters in certain border areas.[^225] The Canadian government
    has agreed to clear broadcasters from TV channels 63 and 68 and to
    use the spectrum for public safety purposes, and will clear
    broadcasters from all TV channels above channel 52 by August 31,
    2011.[^226] As such, channels 64 and 69, where all of the
    reconfigured narrowband channels will reside, are unlikely to be
    cleared until at least that date. Consequently, if we consolidate
    the public safety narrowband channels onto only channels 64 and 69,
    all narrowband channels will be subject to interference from
    Canadian broadcast operations within border areas during Canada's
    DTV transition. Furthermore, Mexico has not yet announced a date for
    transitioning its TV channels, including channels 64 and 69.[^227]
    Accordingly, we proposed that public safety narrowband operations be
    permitted in Canadian border areas within the public safety
    allocation's internal guard band until the end of Canada's DTV
    transition. We also proposed to impose a license condition upon the
    non-Guard Bands commercial licensee adjacent to the public safety
    broadband allocation, creating temporary access in those border
    areas to 1 megahertz of that adjacent block to preserve the full
    5-megahertz bandwidth of the public safety broadband
    allocation.[^228]

99. After reaching tentative conclusions to not adopt the BOP, CII, or
    Ericsson proposals, we invited comment on an alternative proposal
    filed by the BOP proponents (the Access Spectrum/Pegasus Alternative
    Proposal), which sought to address legal concerns raised by the BOP.
    Under the alternative proposal, 32 megahertz of commercial broadband
    spectrum would be auctioned, but the size of the public safety
    allocation would remain unchanged.[^229] Specifically, the proposal
    assumes reconfiguration of the 700 MHz public safety spectrum and
    seeks to remedy potential public safety narrowband interference
    issues by shifting the entire 700 MHz Public Safety Band downward by
    1 megahertz from its current location. In addition, as part of this
    shift, the current Guard Band A Block (at 746-747 MHz and 776-777
    MHz) would be relocated immediately below the paired public safety
    broadband spectrum, and the Guard Band B Block would be relocated
    immediately above the public safety narrowband spectrum, and reduced
    from a 4-megahertz block (paired 2-megahertz blocks) to a
    2-megahertz block (paired 1-megahertz blocks). The relocated Guard
    Band B Block would then serve as a Commission-held guard band, still
    within the commercial allocation, to protect the public safety
    narrowband channels.

100. The Access Spectrum/Pegasus Alternative Proposal (a component of
     the Upper 700 MHz band plan Proposals 3, 4, and 5 in the *700 MHz
     Further Notice*) would require incumbent Guard Bands A and B Block
     licensees to "repack" their licenses into the reconfigured Guard
     Band A Block. The proposal also includes a commitment of the
     participating Guard Band licensees to fund the reconfiguration of
     the public safety spectrum, provided that the reconfigured Guard
     Band A Block would be subject to the same service rules as the
     adjacent non-Guard Band commercial licenses, including the
     flexibility to deploy cellular architectures. In the *700 MHz
     Further Notice*, we recognized that this proposal, particularly the
     spectrum "repacking," contemplates agreement of the incumbent
     licensees regarding the revised band plan, including geographic
     area assignments.[^230] We tentatively concluded that we should
     reject the proposal if the incumbent licensees could not reach an
     agreement.[^231]

101. As explained below, in response to the *700 MHz Further Notice*, we
     received comments on the Access Spectrum/Pegasus Alternative
     Proposal. We also received comments on our proposal to provide
     temporary access to 1 megahertz of non-Guard Band commercial
     spectrum to address potential interference to public safety
     communications at the Canadian border. Cyren Call and Ericsson
     submitted additional proposals concerning the 700 MHz Guard Bands.
     Finally, on July 6, 2007, all but one of the Guard Band licensees
     joined in a proposal ("July 6, 2007 Guard Bands Proposal") that
     addresses a number of objections to the Access Spectrum/Pegasus
     Alternative Proposal and which informs our determinations
     below.[^232]

102. *Border Interference*. There is widespread support for those
     aspects of the Access Spectrum/Pegasus Alternative Proposal that
     address potential interference to public safety narrowband
     operations in border areas. Northrop Grumman states that the
     proposal is the most appropriate plan to attain nationwide
     availability of public safety narrowband interoperability channels,
     absent a frequency shift or migration requirement.[^233] In most
     respects, WCA supports band proposals that would incorporate Access
     Spectrum/Pegasus' Alternative Proposal.[^234] WCA asserts that
     these proposals would ensure public safety interoperability via a
     uniform reconfiguration throughout the United States including
     along the borders.[^235] The 4G Coalition notes that the
     alternative proposal would resolve funding and Computer Assisted
     Pre-Coordination Resource and Database ("CAPRAD") reprogramming
     issues, while other band plan proposals do not.[^236]

103. Verizon Wireless states that the alternative proposal would address
     public safety interference issues in border areas, minimize the
     potential for interference between 700 MHz Band licensees,[^237]
     and permit the Commission to provide public safety entities with
     spectrum assignments aligned with Canadian allocations.[^238] NPSTC
     also favors band plans that incorporate the alternative proposal
     because it would address potential conflicts with Canadian TV
     broadcasters at the border arising from reconfiguration of the
     public safety spectrum.[^239] Arcadian also supports the
     alternative proposal because it would address border area
     interference concerns and provide funding for reconfiguration of
     the 700 MHz Public Safety Band.[^240]

104. Conversely, Alcatel-Lucent contends that the 1-megahertz downward
     shift under the alternative proposal would complicate international
     coordination and result in underutilization of the public safety
     broadband spectrum.[^241] AT&T also opposes the alternative
     proposal, arguing that a guard band is required between the Lower
     and Upper 700 MHz C Blocks due to interference (or "noise-rise")
     potential, particularly where the types of services and power
     limits may differ.[^242] MetroPCS claims that the alternative
     proposal would not resolve interference issues, and that the
     additional flexibility and capabilities afforded the 700 MHz Guard
     Band licensees would create a "windfall" for the incumbents.[^243]
     Finally, some commenters continue to support the BOP.[^244]

105. *Temporary Public Safety Access to Commercial Spectrum in the Upper
     700 MHz Band*. Alcatel-Lucent opposes temporary access into the
     commercial Upper 700 MHz Band spectrum, adjacent to the 700 MHz
     Public Safety Band, for public safety broadband in Canadian border
     areas, and instead advocates flexible operating parameters for the
     700 MHz Public Safety Band's internal guard band.[^245] To ensure
     rapid deployment of public safety services, Alcatel-Lucent urges us
     to permit limited narrowband use of the internal public safety
     guard band in border areas and to expeditiously conclude temporary
     international agreements.[^246] Access Spectrum/Pegasus oppose
     Alcatel-Lucent's proposal for flexible use of the public safety
     internal guard band to address border interference issues because
     it would only provide a temporary solution and preclude the
     permanent availability of interoperability channels.[^247] They
     also argue that Alcatel-Lucent's proposal to permit temporary use
     of the public safety internal guard band for narrowband
     communications would effectively reduce the size of the available
     bandwidth of the public safety broadband spectrum because a
     1-megahertz guard band between public safety's broadband and
     narrowband operations is necessary to prevent interference between
     the two uses.[^248]

106. Northrop Grumman contends that providing public safety entities
     temporary access to commercial spectrum in the Upper 700 MHz Band
     would not meet their needs because it would create incompatibility
     with non-border areas by temporarily relocating the narrowband
     channels in border areas, thereby thwarting nationwide
     interoperability.[^249] WCA also contends that such an interim
     allocation shift would frustrate interoperability and not serve the
     public interest.[^250] The 4G Coalition contends that any band plan
     that the Commission adopts should not isolate public safety
     agencies in border areas, which would impede nationwide
     interoperability.[^251] It argues that the temporary access plan is
     unlawful for some of the same reasons we have tentatively concluded
     not to adopt the BOP.[^252] NPSTC similarly argues that the
     temporary access proposal would fail to solve public safety
     interoperability at the border and that the costs associated with
     returning it to permanent status are not known at this time.[^253]

107. Ericsson argues that if temporary access into commercial Upper 700
     MHz Band spectrum is created to maintain the full bandwidth of the
     public safety broadband spectrum, it would be more difficult to
     modify the band plan and the spectrum would be significantly
     devalued, possibly impeding use of the spectrum.[^254] Ericsson
     also asserts that the temporary access proposal does not address
     broadcast interference at the Mexican border, and that licensees in
     the 700 MHz Band would have problems in certain border areas.[^255]
     Ericsson urges the Commission to include the entire 700 MHz Band in
     its interoperability objectives, and to pursue bilateral talks to
     relieve spectrum constraints by February 2009.[^256] Ericsson
     asserts that the temporary access proposal fails to address whether
     Mexico would agree to shut down broadcast operations in the band,
     and that it is better to harmonize the entire 700 MHz Band than to
     adopt temporary solutions that would be difficult to reverse.[^257]

108. *Cyren Call Proposal*. Cyren Call supports a new band plan (based
     on Proposal 4 in the *700 MHz Further Notice*), where the Guard
     Bands A and B Block licenses would be "repacked" into a
     reconfigured Guard Band A Block between two non-Guard Band
     commercial blocks (a revised D Block and a new "E Block") in the
     Upper 700 MHz Band, rather than between the non-Guard Band
     commercial block (the new "E Block") and the public safety
     spectrum. Cyren Call contends that this approach would make the
     public safety broadband spectrum, and adjacent non-Guard Bands
     commercial spectrum, more attractive to carriers seeking a
     nationwide footprint of up to 22 megahertz (or 24 megahertz if
     acquiring the revised Guard Band A Block).[^258]

109. *Ericsson Proposal*. Ericsson argues that the Guard Band B Block
     should move to 747-749 MHz and 777-779 MHz, immediately above the
     existing Guard Band A Block.[^259] Ericsson contends that this
     approach would improve interference protection for the public
     safety narrowband channels, providing an additional buffer between
     the Upper 700 MHz C Block and the public safety spectrum.[^260]
     Ericsson adds that, on the lower half of the paired spectrum, its
     band plan would provide an additional buffer between the Lower and
     Upper 700 MHz C Blocks, where operations in the Lower 700 MHz Band
     have significantly higher power limits and may pose a threat to the
     Upper 700 MHz C Block.[^261] Verizon Wireless opposes the Ericsson
     proposal, stating that it fails to address the Canadian border
     issue because public safety entities would lack the flexibility to
     deploy cross-border interoperable narrowband systems wherever
     blocked by Canadian broadcast facilities.[^262]

110. *July 6, 2007 Guard Bands Proposal.* Access Spectrum/Pegasus,
     joined by other Guard Bands licensees, filed a new proposal dated
     July 6, 2007, which is based on Cyren Call's plan (discussed
     above), whereby all Guard Band A Block licensees (except PTMPS II)
     voluntarily "repack" into a new Guard Band A Block that is located
     between two non-Guard Band commercial 700 MHz Band blocks (the C
     and D Blocks) rather than adjacent to the public safety
     spectrum.[^263] As explained in more detail below, these licensees
     provided signed waivers of their rights to object to these license
     modifications and have agreed to transfer their Guard Band B Block
     licenses to the Commission.

##### Discussion

111. We adopt a revised band plan for the 700 MHz Guard Bands spectrum
     and the Upper 700 MHz Band, which includes features of Cyren Call's
     additional band plan proposal and the July 6, 2007 Guard Bands
     Proposal. As an initial matter, we determine that with the
     reconfiguration of the 700 MHz Public Safety Band, the Guard Band B
     Block will no longer be necessary as a guard band between the
     non-Guard Bands commercial spectrum, and the public safety
     broadband spectrum.[^264] To enable a more efficient, shared
     interoperable broadband network, we locate the Guard Band A Block
     between the Upper 700 MHz Band C and D Blocks, shifting the public
     safety broadband allocation downward by 1 megahertz and placing it
     adjacent to the commercial D Block that will be used for the 700
     MHz Public/Private Partnership. This new band plan addresses
     potential public safety narrowband interoperability issues in
     border areas, and frees up 2 megahertz of B Block Guard Band
     spectrum nationwide (except for PTPMS II's two grandfathered MEAs)
     to be included in the auction of commercial spectrum.

112. Finally, consistent with our tentative conclusion in the *700 MHz
     Further Notice*, we determine that we lack legal authority to adopt
     the BOP, the CII, or the Ericsson proposals because they propose a
     reallocation of commercial spectrum to public safety, and
     assignment of commercial licenses from our auction inventory
     without competitive bidding. We also reject the most recent
     Ericsson band plan proposal as well as the Access Spectrum/Pegasus
     Alternative Proposal and the Cyren Call proposal to the extent they
     are inconsistent with our actions in this Second Report and Order.

###### Revisions to Upper 700 MHz Band Plan for Guard Bands

113. [Background]{.underline}. As explained above, the reconfiguration
     of the 700 MHz Public Safety Band may result in interference to the
     relocated narrowband channels from existing Canadian and Mexican TV
     broadcasters in certain border areas. Both the BOP, and the Access
     Spectrum/Pegasus alternative to the BOP, propose a 1-megahertz
     downward shift of the public safety spectrum into the former Guard
     Bands spectrum at 763-764 MHz and 793-794 MHz while maintaining the
     full 24-megahertz public safety allocation required by Section 337
     of the Act. This shift creates a 1-megahertz overlap between the
     consolidated narrowband channels and TV channels 63 and 68, which
     Canada has already agreed to clear of broadcasters. This shift also
     addresses the Canadian border issue for public safety operations on
     the reconfigured narrowband channels.

114. In addition to addressing the Canadian border issue, the Access
     Spectrum/Pegasus Alternative Proposal includes an agreement to
     consolidate the existing Guard Bands A and B Block licenses into a
     2-megahertz block (comprised of paired spectrum at 762-763 MHz and
     792-793 MHz). The repacking frees up an additional 2 megahertz of
     commercial spectrum to be added to the licenses set for auction,
     permitting the auction of 32 megahertz of commercial spectrum in
     the Upper 700 MHz Band. Finally, the alternative proposal would
     relocate the Guard Band B Block, which is reduced to a 2-megahertz
     block (comprised of paired spectrum at 775-776 MHz and 805-806
     MHz). The lower half of the reconfigured B Block (at 775-776 MHz)
     would serve as a necessary guard band to protect the public safety
     narrowband channels from commercial operations in the upper half of
     the paired C Block.[^265]

115. After the release of the *700 MHz Further Notice*, Access
     Spectrum/Pegasus modified their alternative proposal to request
     auction discount vouchers (also called bidding offset credits) to
     account for relinquishing spectrum to the Commission as part of the
     repacking plan, and for their agreement to fund the 700 MHz Public
     Safety Band reconfiguration.[^266] They also proposed an
     "option-variant" of their two-sided auction proposal.[^267] Access
     Spectrum explained that the variant was designed to address
     obligations to certain customers, including a right of first
     refusal from one customer with respect to all of its 700 MHz Guard
     Band licenses.[^268] Access Spectrum/Pegasus also advised that one
     incumbent Guard Band licensee, PTPMS II, has declined to repack its
     three licenses into the reconfigured A Block.[^269]

116. *July 6, 2007 Guard Bands Proposal.* Given the increasing
     complications of their alternative proposal, Access
     Spectrum/Pegasus, joined by other Guard Bands licensees, filed a
     new proposal dated July 6, 2007, which is partly based on Cyren
     Call's additional proposal (discussed above). Under the new
     proposal, all Guard Band A Block licensees (except PTPMS II)
     "repack" into a new Guard Band A Block located between two
     non-Guard Band commercial blocks (the C and D Blocks) rather than
     next to the public safety broadband allocation.[^270] In the July
     6, 2007 *ex parte* letter, Access Spectrum/Pegasus and the other
     Guard Bands licensees provided signed waivers of their rights to
     object to these license modifications and agreed to transfer their
     remaining B Block licenses to the Commission. They also provided
     that their new proposal is not conditioned upon auction discount
     vouchers or the two-sided auction "option variant,"[^271] and each
     licensee affirmatively waived its right under Section 316 to object
     to the license modifications that would not include such
     mechanisms.[^272] These proposals therefore are moot and it is
     unnecessary to reach a decision regarding the use of vouchers or a
     two-sided auction to achieve our goals in this proceeding. All of
     the incumbent Guard Bands licensees, except PTPMS II, executed the
     agreement. APCO and NPSTC support the July 6, 2007 Guard Bands
     Proposal.[^273] The 4G Coalition -- whose members include DIRECTV,
     EchoStar, Google, Intel, Skype, and Yahoo -- also supports the
     proposal, provided that we adopt a public/private partnership
     involving a commercial license adjacent to the public safety
     spectrum in the Upper 700 MHz Band.[^274]

117. On July 26, 2007, the Guard Band licensees reaffirmed their waiver
     of rights under Section 316, and explained that the waiver
     contemplates that "the new Upper 700 MHz A Block would be afforded
     the same OOBE limits, cellular architecture, and frequency
     coordination rules as the lower adjacent Upper 700 MHz commercial
     block without 'open access' obligations."[^275] Access
     Spectrum/Pegasus and Dominion advised that they will not object to
     modification of their Guard Band A Block licenses, effective upon
     publication of this Second Report and Order in the Federal
     Register.[^276] In addition, Access Spectrum/Pegasus and Radiofone
     advised that they would transfer their Guard Band B Block licensees
     to the Commission, within five days of publication of this Second
     Report and Order in the Federal Register.[^277] PTPMS II, the only
     other Guard Bands licensee, has not agreed to modification of its
     one A Block license, or to return its two B Block licenses to the
     Commission. On July 27, 2007, Arcadian Networks, Inc., which holds
     a limited right of first refusal regarding Access Spectrum's Guard
     Band licenses, advised the Commission that it supports the spectrum
     repacking proposal, and that its right of first refusal is not
     applicable to any Guard Band A Block licenses that would be
     conveyed as part of the spectrum repacking, or any B Block license
     surrendered to the Commission for cancellation.[^278]

118. [Discussion]{.underline}. We conclude that adoption of the July 6,
     2007 Guard Bands Proposal will serve the public interest. Foremost,
     we agree with commenters that it is better to permanently address
     the Canadian border problem and harmonize the entire 700 MHz Band
     than to adopt an interim solution such as the temporary access to 1
     megahertz of spectrum proposed in the *700 MHz Further Notice*. We
     adopt this proposal based on the agreement of all Guard Band
     licensees except PTPMS II, whose two Guard Band B Block licenses we
     grandfather, and whose one Guard Band A Block license we repack
     into the reconfigured Guard Band A Block.

119. We conclude that the existing Guard Band B Block is no longer
     needed as a guard band to protect the adjacent 700 MHz public
     safety users, and to the extent possible, should be consolidated
     with the rest of the commercial spectrum for more efficient and
     effective use. As noted above, Cyren Call filed a revised band
     plan, reflected in the July 6, 2007 Guard Bands Proposal, in which
     Guard Band licensees would repack into a reconfigured Guard Band A
     Block between two commercial blocks. We find that the public
     interest is best served by adoption of features of the Cyren Call
     and July 6, 2007 proposals because it removes the "repacked" Guard
     Band A Block from the critical juncture between the Upper 700 MHz D
     Block and the public safety broadband spectrum, which together will
     be used as the foundation for the 700 MHz Public/Private
     Partnership. We also find that the value of the spectrum rights to
     be relinquished by Access Spectrum/Pegasus and the other Guard
     Bands licensees would substantially offset any alleged "windfall"
     they might enjoy because of a more desirable spectral position in
     the band, and less restrictive technical rules.[^279] The figure
     below depicts the revised Upper 700 MHz Band Plan.

**[[Figure 10: Revised Upper 700 MHz Band Plan Including Guard
Bands]{.underline}]{.smallcaps}**

757 763 775 787 793 805

  ------- ----- --- ----- -- ----------- ----- ---- ------------ ----- --- ------- ----- --- ----- -- ----------- ----- ---- ------------ ----- ---
                             *Public                                                                  *Public                                   
                             Safety*                                                                  Safety*                                   

  C             A   D        Broadband         GB   Narrowband         B   C             A   D        Broadband         GB   Narrowband         B

  CH. 60  CH.       CH.                  CH.                     CH.       CH. 65  CH.       CH.                  CH.                     CH.   
          61        62                   63                      64                66        67                   68                      69    
  ------- ----- --- ----- -- ----------- ----- ---- ------------ ----- --- ------- ----- --- ----- -- ----------- ----- ---- ------------ ----- ---

746 752 758 764 770 776 782 788 794 800 806

120. *Funding for Public Safety Reconfiguration*. As the result of these
     changes to the band plan, the Upper 700 MHz D Block now is
     immediately adjacent to the 700 MHz public safety broadband
     spectrum. In the *700 MHz Further Notice*, we anticipated that this
     adjacency could facilitate the transition to wireless broadband for
     the 700 MHz public safety broadband spectrum.[^280] We find that
     the consolidation of public safety broadband spectrum to the lower
     portion of the 700 MHz Public Safety Band will provide significant
     benefits to the adjacent D Block licensee. Without such
     consolidation, the D Block licensee would be adjacent to an
     incompatible, narrowband system architecture, which could inhibit
     commercial broadband system deployment. This is particularly
     critical to the D Block Licensee, which must construct a shared
     network using both the D Block spectrum and the public safety
     broadband spectrum.

121. We note that the public safety community has long held that any
     reconfiguration of the 700 MHz public safety spectrum must not come
     at their expense given their inability to fund such a
     transition.[^281] By shifting funding responsibility to the
     adjacent D Block licensee, we address this concern while assigning
     the expense to recognize the significant benefits that will accrue
     to the D Block licensee. Accordingly, we conclude that the D Block
     licensee must pay the costs of consolidating the 700 MHz public
     safety narrowband channels to the upper half of the 700 MHz Public
     Safety Band. These costs and associated implementation issues are
     discussed in further detail below.

122. *License Modifications*. The Commission may modify licenses where
     it determines that the modification serves the public interest,
     convenience, and necessity.[^282] The U.S. Court of Appeals for the
     District of Columbia Circuit has held that license modifications do
     not have to be consensual[^283] and that license holders may be
     moved on a service-wide basis, without license-by-license
     consideration.[^284] It has upheld license modifications that
     involve relocating existing licensees to different spectrum,
     outside of the auction process. Specifically, the court has found
     that the Commission may approve spectrum swaps between existing
     licensees, without offering the swapped spectrum to alternative
     users.[^285]

123. Pursuant to Section 316 of the Act, we find that the public
     interest, convenience, and necessity will be served by relocating
     all existing Guard Band A Block licenses to the reconfigured Guard
     Band A Block located at 757-758 MHz and 787-788 MHz.[^286] With the
     exception of PTPMS II, which holds one A Block license and two B
     Block licenses, the license modifications that we effect today are
     consensual. Specifically, in July 6 and 26, 2007 *ex parte*
     letters, officers of Access Spectrum, Dominion 700, Pegasus, and
     Radiofone each agreed that the licensees will not contest the
     modification of their licenses as described above.[^287]

124. We find that modifying the 700 MHz Guard Bands licenses will serve
     the public interest, convenience, and necessity in four respects.
     First, it will enable the downward spectrum shift that protects
     public safety narrowband operations from interference in certain
     border areas. Second, "repacking" the existing Guard Band A Block
     licenses between the Upper 700 MHz Band C and D Blocks will avoid
     placing a potential obstacle between the two now-contiguous
     spectrum blocks comprising the 700 MHz Public/Private Partnership.
     Third, we will realize these benefits for public safety and the 700
     MHz Public/Private Partnership with the least disruption possible
     to the use of the Upper 700 MHz spectrum. Finally, the spectrum
     repacking will provide an additional 2 megahertz of commercial
     spectrum for auction by reducing the current Guard Band B Block
     from 4 to 2 megahertz.

125. These license modifications also are consistent with Sections 337
     and 309 of the Act, because the 4 megahertz of remaining Guard
     Bands spectrum remains commercial spectrum subject to
     auction.[^288] Specifically, the 2 megahertz at 746-747 MHz and
     776-777 MHz will be added to, and auctioned as part of, the Upper
     700 MHz Band C Block in the forthcoming 700 MHz Band auction. The
     lower portion of the reconfigured commercial Guard Band B Block at
     775-776 MHz will provide a necessary guard band between public
     safety narrowband communications and adjacent commercial services.
     The Commission will specify appropriate uses of this spectrum, and
     the related portion of the B Block at 805-806 MHz, at a future
     date.

126. *Spectrum Use Agreements*. Access Spectrum states that, pursuant to
     existing spectrum use agreements (SUAs), there are wireless systems
     currently operating in six of its licensed Guard Band A Block
     markets (MEAs 20, 26, 32, 37, 44, and 52).[^289] Access Spectrum
     intends to transition these systems to the relocated Guard Band A
     Block, and requests special temporary authority (STA) for the
     current A Block in these MEAs to effect such a transition.[^290] In
     MEA 20 (Minnesota), Access Spectrum notes that it could take 12
     months from release of this Second Report and Order to transition a
     CII entity's "complex system" to the relocated A Block.[^291]

127. We find that the public interest would be served by providing
     Access Spectrum a reasonable period to transition systems in the
     six markets to the relocated Guard Band A Block. Based on the
     record before us, it appears that 180 days (the maximum statutory
     period for an STA) would provide Access Spectrum sufficient time to
     relocate systems in five of the six MEAs.[^292] Accordingly,
     pursuant to Section 309(f) of the Act,[^293] we hereby grant Access
     Spectrum 180-day special temporary authorizations for MEAs 20, 26,
     32, 37, 44, and 52 for the current Guard Band A Block (746-747 MHz,
     776-777 MHz). We expect Access Spectrum to make a concerted effort
     to relocate all systems during the 180-day period, including the
     CII system in MEA 20. In the event that Access Spectrum cannot
     complete the transition of the CII system during the 180-day
     period, it may seek an appropriate extension of the STA upon a
     proper showing. Because we modify (repack and relocate) the Guard
     Band A Block MEA licenses held by Access Spectrum, Pegasus, and
     Dominion upon the effective date of this Second Report and Order,
     the six STA grants to Access Spectrum will be granted upon the
     effective date as well. We address the disposition of the one
     remaining Guard Band A Block license, which is held by PTPMS II,
     below.

128. *PTPMS II*. In the *700 MHz Further Notice,* we tentatively
     concluded not to adopt the Access Spectrum/Pegasus repacking
     proposal absent unanimity among all Guard Band licensees.[^294] All
     of the Guard Band licensees have agreed to repacking except PTPMS
     II, which prefers to maintain the current position of its
     licenses.[^295] Based on the record before us and for the reasons
     stated above, however, we are convinced that the public interest is
     better served if we adopt a band plan that accounts for the single
     licensee that has not voluntarily agreed to spectrum repacking.

129. In the *700 MHz Further Notice*, we sought comment on
     grandfathering the incumbent Guard Band B Block licensees,
     including whether to permit operations under the current technical
     rules.[^296] PTPMS II holds one Guard Band A Block license in
     Buffalo (MEA 003) and B Block licenses in Des Moines -- Quad Cities
     (MEA 021) and El Paso -- Albuquerque (MEA 039), but did not join
     the repacking agreement. To maintain a consistent band plan within
     the United States that protects reconfigured public safety
     narrowband operations from interference, we find that the public
     interest, convenience, and necessity will be served by modifying
     the PTPMS II licenses by shifting its Guard Band A Block license to
     the reconfigured A Block in the same geographic service area, and
     shifting its B Block licenses downward 1 megahertz.

130. On July 6, 2007, PTPMS II filed an *ex parte* in which it generally
     argued that modification of its licenses would be contrary to the
     public interest.[^297] Among other things, PTPMS II argued that
     "\[t\]he record is not clear that there are demonstrable public
     interest benefits that would flow from" modification of its
     licenses.[^298] We disagree. The protection of public safety is at
     the core of the Commission's public interest obligations.[^299] The
     band plan that we are implementing today will enable the downward
     1-megahertz band shift necessary to prevent interference to vital
     public safety communications in border areas. If we do not modify
     the PTPMS II licenses, the 1-megahertz spectrum shift that solves
     interference problems for reconfigured public safety narrowband
     operations in the border areas cannot be accomplished. Moreover, if
     PTPMS II's B Block licenses were to remain in their current
     spectral location, their resulting overlap of public safety
     spectrum would create interference between the services.[^300] In
     addition, if the Guard Band A Block license in Buffalo does not
     move from 746-747 MHz and 775-776 MHz, a uniform shift of the Upper
     700 MHz band plan cannot occur, frustrating what we have determined
     to be the optimal band plan for the Upper 700 MHz Band.

131. To ensure that critical interoperable public safety communications
     are uniform throughout the continental United States, we hereby
     modify PTPMS II's Guard Band A Block license in Buffalo (MEA 003),
     pursuant to Sections 316, 303, 301, and 4(i) of the Act,[^301] to
     operate in the same geographic area but in the reconfigured A Block
     at 757-758 MHz and 787-788 MHz. We also modify PTPMS II's B Block
     licenses in Des Moines -- Quad Cities (MEA 021) and El Paso --
     Albuquerque (MEA 039) by shifting them down by 1 megahertz, so that
     PTPMS II is authorized to operate at 761-763 MHz and 791-793 MHz.
     These modifications will not burden PTPMS II because it will
     continue to have access to the same amount and quality of spectrum,
     and the move within the band will not require any modification of
     deployed equipment, since PTPMS II does not have any operations
     associated with the three licenses.[^302]

132. As a result of the foregoing modifications, the new nationwide
     Upper 700 MHz Band D Block license, at 758-763 MHz and 788-793 MHz,
     will be authorized in Des Moines -- Quad Cities (MEA 021) and El
     Paso -- Albuquerque (MEA 039) on a secondary basis to PTPMS II. As
     such, the D Block licensee may not cause interference to primary
     operations of PTPMS II or claim protection from harmful
     interference from any operations of PTPMS II in those MEAs.[^303]
     The D Block licensee must cease operations on the spectrum assigned
     to PTPMS II in these two markets if it poses an interference
     problem to PTPMS II. In the event that PTPMS II, or a successor or
     an assign of PTPMS II, elects to cancel either of its grandfathered
     licenses, or if either license cancels automatically, or is
     terminated by the Commission, then the licensed geographic area
     will revert, without further action by the Commission, to the D
     Block licensee. This reversionary interest will include the right
     to operate under the technical rules consistent with those that
     apply to the remainder of the D Block license.

133. However, as explained elsewhere in this Second Report and Order, we
     do not believe it is in the public interest to permit these two
     grandfathered licenses to operate indefinitely under a technical
     regime that is potentially incompatible with the D Block or the
     adjacent Public Safety Broadband Licensee. Nor do we find that the
     public interest would be served by permitting PTPMS II to operate
     indefinitely within the D Block, and thus impede the provision of
     broadband public safety operations in the populous Des Moines --
     Quad Cities (MEA 021) and El Paso -- Albuquerque (MEA 039) markets
     to the detriment of the American public. We therefore grandfather
     PTPMS II's two B Block licenses without any renewal expectancy, and
     do not extend the term of its licenses as we have for the D Block
     (discussed below). We will afford PTPMS II's Guard Band A Block
     license the modified (less stringent) technical rules that we adopt
     below for all other Guard Band A Block licenses.

134. Accordingly, pursuant to Section 316 of the Act and Section 1.87 of
     the Commission's rules,[^304] PTPMS II has 30 days from the
     effective date of this Second Report and Order to protest the
     foregoing license modifications. Consistent with the July 6 and 26,
     2007 *Ex Partes*, no protest rights will be afforded to any other
     Guard Band licensee.[^305]

###### Broadband Optimization Plan (BOP), Critical Infrastructure Industries (CII) and Ericsson Proposals

135. [Background.]{.underline} In Section 337(a) of the Act, Congress
     mandated that the Commission allocate "spectrum between 746 MHz and
     806 MHz, inclusive" (*i.e.*, the Upper 700 MHz Band) by designating
     24 megahertz of the spectrum "for public safety services" and 36
     megahertz "for commercial use to be assigned by competitive bidding
     pursuant to Section 309(j)."[^306] As directed by Congress, the
     Commission allocated 24 megahertz of this spectrum for public
     safety use at 764-776 MHz and 794-806 MHz and 36 megahertz of this
     spectrum for commercial use at 746-764 MHz and 776-794 MHz.[^307]
     In deciding whether or not to allow commercial operations inside
     the Guard Bands, the Commission concluded that it was constrained
     by Congress' clear mandate to allocate, and thus auction, a full 36
     megahertz of commercial spectrum in the Upper 700 MHz Band.[^308]
     If the Commission had decided to prohibit operations inside the
     Guard Bands, it would have fallen 6 megahertz short of fulfilling
     the explicit allocation requirement in Section 337(a).[^309] In
     light of this statutory mandate, we tentatively concluded in the
     *Further Notice* that the Commission should not adopt the BOP, or
     other proposals to the extent that they propose a reallocation of
     commercial spectrum for public safety use, or the reassignment of
     this spectrum outside of the competitive bidding process.[^310] We
     also tentatively concluded that even if the Commission possessed
     legal authority to adopt the BOP, Ericsson, or CII proposals, they
     would not be in the public interest.[^311]

136. [Discussion]{.underline}. For the reasons discussed in the *700 MHz
     Further Notice*, we adopt our tentative conclusion that we cannot
     adopt the BOP, Ericsson, or CII proposals. First, we find that
     Congress's express instructions in Section 337 regarding our
     allocation of commercial and public safety spectrum in the 700 MHz
     Band statutorily prohibit the Commission from reallocating the
     spectrum at this time, and therefore we cannot reallocate
     commercial spectrum for public safety as contemplated by the BOP
     and Ericsson proposals. Even if Section 337(a) does not establish a
     permanent legislative bar on reallocating the Upper 700 MHz Band,
     we nevertheless conclude that it would be contrary to Congress'
     intent in enacting Section 337 to consider modifying the commercial
     and public safety allocations in the band at this time, before the
     licensees have had a meaningful opportunity to use unencumbered
     spectrum as initially envisioned (an opportunity that is unlikely
     to be fully available before the end of the DTV transition in
     2009).[^312]

137. Similarly, because Section 337 requires us to use a competitive
     bidding process to assign spectrum that has been allocated for
     commercial use, we must also deny the BOP's proposal to reassign 1
     megahertz from the Guard Band B Block to the current Guard Band
     A Block licensees, and the CII proposals to award Guard Band B
     Block licenses within our inventory to their constituents outside
     of competitive bidding. As noted above, Section 337(a)(2)
     prescribes competitive bidding as the method of assigning
     commercial spectrum in the Upper 700 MHz Band.[^313] For the same
     reasons that we cannot reallocate the band at this time, we also
     conclude that we cannot alter the method of assignment at this
     time, and thus on this basis also we must deny the BOP and CII
     proposals. We note that the proposal adopted by the Commission
     today does not possess the same legal infirmity because it does not
     involve the assignment of spectrum from the Commission's auction
     inventory outside of the competitive bidding process.

138. With respect to the BOP, even if we had legal authority to assign
     additional spectrum to the current Guard Band A Block licensees
     without competitive bidding, we conclude that the proposals for
     assigning commercial spectrum licenses in this manner would not
     serve the public interest. Under the BOP, the Guard Band A Block
     licensees would receive an additional 1 megahertz of spectrum
     outside of the auctions process. Given that we lack authority to
     assign additional Upper 700 MHz Band spectrum to public safety as
     contemplated by the BOP, there is no unique or compelling reason in
     the record to award the BOP proponents additional commercial
     spectrum in the 700 MHz Band outside of the competitive bidding
     process. Moreover, we believe that any residual benefits associated
     with the BOP plan are not unique to the BOP and can be achieved
     through the Commission's established spectrum management
     mechanisms. Similarly, we find that the CII proposals would not
     serve the public interest because they include an assignment of
     commercial spectrum to licensees outside of the competitive bidding
     process.[^314] Although we recognize the potential for CII entities
     to engage in life-critical communications, we do not find a
     sufficient public interest rationale for creating any exception in
     the 700 MHz Band from the current, established practice of
     subjecting CII to competitive bidding for spectrum that serves
     their commercial infrastructures.

139. Finally, we conclude that the additional Ericsson band plan
     proposal is not in the public interest. We believe that the band
     plan we are adopting today better addresses the need for the
     establishment of a large, continuous block of paired 11-megahertz
     spectrum, as compared to the Ericsson proposal. We believe that
     retaining the B Block and merely moving its location is not the
     most efficient use of spectrum, given our finding that the B Block
     at its current location is no longer necessary as a guard band and
     should be subsumed into the 700 MHz Band commercial spectrum to be
     auctioned.

### Service Rules

#### Commercial Services (Excluding Guard Bands and Upper 700 MHz D Block)

##### Performance Requirements

140. [Background.]{.underline} The Commission first adopted performance
     requirements for the commercial services in the Upper 700 MHz Band,
     and then subsequently followed with similar rules for the Lower 700
     MHz Band. In the *Upper 700 MHz First Report and Order*, the
     Commission required that licensees in the 746-764 and 776-794 MHz
     Bands provide "substantial service," as outlined in Section
     27.14(a) of its rules.[^315] These rules require licensees to
     provide "substantial service" within ten years of license
     issuance.[^316] The *Upper 700 MHz First Report and Order* also
     established safe harbors for licensees with regard to the
     substantial service requirement. Specifically, a licensee would be
     considered to be providing "substantial service" in the licensed
     service area if it constructs four permanent links per one million
     people (when fixed, point-to-point service is offered) or if it
     demonstrates coverage of 20 percent of the population (when the
     licensee offers either mobile services or fixed, point-to-point
     service).[^317] For the Lower 700 MHz Band, the Commission also
     adopted the substantial service standard with the same safe harbors
     in the *Lower 700 MHz Report and Order*.[^318] In addition, in the
     *Rural Report and Order*, the Commission established a safe harbor
     for substantial service related to the provision of mobile
     telephony service in rural areas. In that Order, the Commission
     stated that a licensee providing mobile service in certain bands,
     including the 700 MHz Band, "will be deemed to have met the
     substantial service requirement if it provides coverage to at least
     75 percent of the geographic areas of at least 20 percent of the
     'rural areas' within its licensed area."[^319] As with all Wireless
     Radio Service licenses, failure to meet the specified performance
     requirements under the particular license authorization within the
     required period results in automatic license termination.[^320]

141. *700 MHz Commercial Services Notice.* In 2006, in the *700 MHz
     Commercial Services Notice*, we sought comment on whether we should
     revise these existing performance requirements, or adopt
     alternative build-out rules, for licenses in the 700 MHz Band that
     have not been auctioned in order to promote access to spectrum and
     the provision of service to consumers.[^321] In particular, we
     asked for comment on the effectiveness of the existing substantial
     service standard and safe harbors and whether changes or revisions
     should be adopted to better promote service, especially in rural
     areas.[^322] The *700 MHz Commercial Services Notice* also asked
     commenters to address whether the Commission should adopt
     alternative performance requirements, such as benchmarks based on
     the population or geographic area within a license area, instead of
     the substantial service standard.[^323] In addition, we asked for
     comment on whether our performance requirements should include a
     "keep-what-you-use" rule similar to that applied to cellular
     service in the 1980s, or a slightly modified version called
     "triggered keep-what-you-use."[^324]

142. In response to the *700 MHz Commercial Services Notice*, commenters
     offered a variety of arguments on the issue of performance
     requirements. Most of the parties that commented on this issue
     opposed replacing the substantial service standard with a stricter
     performance requirement. These parties included a mix of large,
     medium, and small CMRS providers, as well as two providers of
     broadband technology.[^325] On the other hand, a number of other
     parties strongly supported a "keep-what-you-use" approach,
     including rural CMRS providers, a tribal government, and a
     coalition of state government agencies.[^326] In addition, some
     commenters argued in favor of construction benchmarks based on the
     population or geographic area served, and some of these parties
     also recommended a combination of both benchmarks and a
     "keep-what-you-use" approach.[^327] For example, RCA recommended a
     combination of both geographic benchmarks and a "keep-what-you-use"
     rule.[^328] A related proposal by the Vermont Department of Public
     Service *et al.* included a combination of population or geographic
     benchmarks and a "keep-what-you-use" rule.[^329] Other commenters
     argued that the Commission should allow third parties to access the
     unused portions of a licensee's spectrum on a non-interfering
     basis.[^330] These commenters referred to the *TV White Spaces
     Report and Order*,[^331] in which the Commission allowed for
     unlicensed use of spectrum in the core TV broadcast bands, and they
     argued that the Commission also should allow such use in the 700
     MHz Band.[^332] Other commenters specifically opposed permitting
     this type of unlicensed use in the 700 MHz Band.[^333]

143. *700 MHz Further Notice.* More recently, in the *700 MHz Further
     Notice*, we sought comment on the performance requirements for
     commercial licensees in the 700 MHz Band and asked commenters to
     address specific approaches.[^334] As a basis for consideration of
     this issue, we asked for comment on our proposal to adopt a
     modified version of a recommendation by RCA, which would apply both
     performance requirements based on geographic benchmarks and a
     "keep-what-you-use" rule.[^335] We proposed that licensees be
     required to provide service that covers 25 percent of the
     geographic area of the license area within three years, 50 percent
     of the area within five years, and 75 percent of the area within
     eight years.[^336] We further proposed that, in applying such a
     geographic benchmark, we would consider the relevant service area
     to exclude all government land.[^337]

144. We also asked commenters to address the potential consequences for
     licensees that fail to meet their interim and end-of-term build-out
     requirements.[^338] We observed that the consequences for failure
     to meet an interim benchmark could include a reduction in the
     length of the license term.[^339] In addition, we sought comment on
     RCA's recommendation that licensees that fail to meet an interim
     benchmark face a "proportionate" application of the
     "keep-what-you-use" rule, in which a license area would be reduced
     sufficiently to create a resulting license in which the licensee
     meets the relevant benchmark.[^340] With regard to end-of-term
     build-out requirements, we sought comment on whether we should
     apply a "keep-what-you-use" rule.[^341] We specifically asked that
     commenters address how the Commission might apply such a
     rule.[^342] We noted that the Commission could apply a
     "keep-what-you-use" rule regardless of the level of construction by
     the licensee, or it could apply such a rule only in the event a
     licensee failed to meet a specific coverage requirement.[^343]

145. We also proposed to apply performance requirements only on an EA or
     CMA basis and sought comment on this approach. We noted that this
     proposal would require REAG licensees to meet the service
     benchmarks on an EA basis, and that failure to do so in a
     particular EA would result in a loss of a portion of the geographic
     area in that EA.[^344] Finally, we asked for comment on any other
     proposal that would apply build-out requirements that would be more
     stringent than the current substantial service standard. In
     particular, we asked if population benchmarks should be used
     instead of geographic benchmarks.[^345]

146. In response to the *700 MHz Further Notice*, commenters take a
     variety of positions with regard to performance requirements. A
     broad mix of commenters urge the Commission to continue to utilize
     its substantial service criteria.[^346] This mix of commenters
     includes nationwide, regional, and small and rural service
     providers,[^347] industry trade groups,[^348] and potential new
     entrants.[^349] These commenters contend that a substantial service
     rule is consistent with prior Commission pronouncements, promotes
     flexibility, relies on market forces, and that there has been no
     showing of a problem related to lack of construction or spectrum
     warehousing that would necessitate more stringent performance
     criteria. Leap observes that the Commission previously has
     determined that a substantial service standard has important
     advantages, such as allowing the Commission to take into
     consideration the provision of service to rural areas, niche
     markets, or discrete populations.[^350] Similarly, Union notes that
     the Commission previously has stated that a substantial service
     standard provides flexibility for rural providers to tailor
     business plans for their unique and sparsely populated
     markets.[^351]

147. Other commenters assert that the Commission should impose either a
     population- or geographic-based build-out requirement, and that
     this requirement also should include some form of interim
     benchmarks.[^352] Parties favoring the use of population-based
     performance requirements for commercial licenses include a couple
     of nationwide service providers,[^353] a provider of wireless
     services in rural and suburban areas,[^354] and an equipment
     provider.[^355] For example, AT&T argues that, to the extent it
     decides to adopt a build-out rule that is more specific than
     substantial service, the Commission should adopt population-based
     benchmarks that would be like those applied to initial PCS
     licenses.[^356] Verizon Wireless argues that, to the extent it
     decides to adopt stricter build-out rules, the Commission should
     adopt population-based benchmarks that require coverage of 50
     percent of the population within five years and 75 percent of the
     population within ten years.[^357] Dobson recommends that the
     Commission apply a benchmark for REAG licenses that is based on
     population, not geography.[^358]

148. Parties favoring geographic-based performance requirements include
     regional service providers,[^359] industry trade groups
     representing rural service providers,[^360] an organization
     dedicated to improving 911 service,[^361] and a coalition of state
     agencies.[^362] These commenters maintain that the existing
     substantial service standard is inadequate and does not promote
     service in rural areas, and that it does not further other
     Commission goals. RCA and RTG argue that the superior propagation
     characteristics of the 700 MHz Band make this spectrum especially
     susceptible to spectrum warehousing, and it concludes that stricter
     build-out requirements are an appropriate remedy.[^363] Similarly,
     Vermont Department of Public Service *et al.* states that, if the
     Commission adopts its proposed geographic benchmarks, this will
     "benefit the public by setting an expectation that licensees will
     provide service widely throughout the license area, including in
     more rural areas."[^364]

149. Some commenters that support either population- or geographic-based
     construction benchmarks also support the adoption of a
     "keep-what-you-use" rule.[^365] These parties state that this
     approach is pro-competitive, because it allows new providers to
     acquire unused spectrum, and equitable, because licensees only lose
     the unused portions of their license area. Those who oppose a
     "keep-what-you-use" rule argue that such provisions will lead to
     uneconomic build-out, promote "greenmail," and chill secondary
     markets.[^366] A few commenters argue that, rather than reclaim
     spectrum, the Commission should designate unserved areas as "vacant
     channels" that would be usable by unlicensed devices.[^367]

150. In addition, some commenters support the use of the specific
     interim geographic benchmarks that were proposed in the *700 MHz
     Further Notice*. For example, RCA specifically favors the
     application of the proposed performance requirements to all 700 MHz
     Band licenses to be auctioned.[^368] Similarly, Vermont Department
     of Public Service *et al.* recommend the same mix of strict
     geographic-based benchmarks.[^369]

151. Other commenters expressed concern about the specific interim
     geographic benchmarks that were proposed in the *700 MHz Further
     Notice*. If the Commission adopts geographic benchmarks, these
     parties argue that either any interim benchmark should be longer
     than three years or a three-year interim benchmark should not apply
     to rural areas.[^370] Blooston states that the Commission should
     not apply geographic benchmarks or a "keep-what-you-use" rule to
     rural areas, and that if a "keep-what-you-use" rule is adopted,
     licenses based on CMAs should be exempt.[^371] Other commenters
     recommend that the Commission exempt RSA-based licenses from any
     interim build-out requirements.[^372] In contrast, Dobson argues
     that strict geographic-based build-out requirements should apply
     only to licenses based on CMAs and EAs, not those based on
     REAGs.[^373] Other commenters opposed to a three-year interim
     benchmark note that such an approach does not account for high
     start-up costs or the time needed to develop new technologies, and
     that it hurts new entrants. For example, the 4G Coalition maintains
     that obligations and timelines such as those proposed by RCA "would
     dissuade, if not outright foreclose, a nationwide new entrant
     business plan."[^374]

152. Finally, some smaller service providers, as well as a regional
     service provider, support the Commission's proposal to require REAG
     licensees to meet build-out requirements on an EA basis.[^375]
     Other commenters argue that build-out for REAG licenses should be
     evaluated under the existing substantial service standard or the
     existing substantial service standard should be applied on an EA
     basis.[^376]

153. [Discussion.]{.underline} In order to better promote access to
     spectrum and the provision of service, especially in rural areas,
     we replace the current "substantial service" requirements for the
     700 MHz Band licenses that have not been auctioned with
     significantly more stringent performance requirements. These
     include the use of interim and end-of-term benchmarks, with
     geographic area benchmarks for licenses based on CMAs and EAs, and
     population benchmarks for licenses based on REAGs. Licensees must
     meet the interim requirement within four years of the end of the
     DTV transition (*i.e.*, February 17, 2013).[^377] Failure to meet
     the interim requirement will result in a two-year reduction in
     license term, [^378] as well as possible enforcement action,
     including forfeitures. We also reserve the right for those that
     fail to meet their interim benchmarks to impose a proportional
     reduction in the size of the licensed area. Licensees that fail to
     meet the end-of-term benchmarks will be subject to a
     "keep-what-you-use" rule, under which the licensee will lose its
     authorization for unserved portions of its license area, which will
     be returned to the Commission for reassignment. They may also be
     subject to potential enforcement action, including possible
     forfeitures or cancellation of license. We also impose certain
     reporting requirements intended to help the Commission monitor
     buildout progress during the license term. We expect that licensees
     will take these construction requirements seriously and proceed
     toward providing service with utmost diligence. As such, we do not
     envision granting waivers or extensions of construction periods
     except where unavoidable circumstances beyond the licensee's
     control delay construction.

154. In adopting these stringent performance requirements for the 700
     MHz Commercial Services licenses that have not yet been auctioned,
     we accomplish several important policy objectives. We ensure that
     these 700 MHz Commercial Services licensees put this spectrum to
     use throughout the course of their license terms and serve the
     majority of users in their license areas. With the inclusion of an
     interim benchmark and the potential for enforcement action for
     failure to meet the construction requirements, we require licensees
     to provide service to consumers in a timely manner. By taking
     advantage of the excellent propagation characteristics of the
     spectrum in the 700 MHz Band, which enables broader coverage at
     lower costs,[^379] we promote the provision of innovative services
     to consumers throughout the license areas, including in rural
     areas. The unique propagation characteristics of this spectrum
     means that fewer towers will be needed to serve a given license
     area, as compared to providing service at higher frequencies, and
     thus large license areas may be served at lower infrastructure
     costs. Moreover, by establishing clear benchmarks, we provide
     licensees with regulatory certainty regarding the requirements that
     they must meet or, if they do not, permit other providers to gain
     access to the spectrum to provide services to consumers.

155. Overall, we conclude that these set of stringent benchmarks applied
     across smaller service areas with effective consequences for
     noncompliance, when combined with appropriately sized geographic
     licensing areas, are the most effective way to promote rapid
     service to the public, especially in rural areas. As noted above,
     the most common recommendation for promoting rural service made by
     small and rural providers was that additional licenses be made
     available based on smaller geographic service areas, which would be
     more readily available to providers that tend to serve rural
     consumers.[^380] Because, as described below, all licensees
     (including REAG licensees) must satisfy these new benchmarks on
     either a CMA or EA basis, these performance requirements will
     provide all licensees with incentives to serve more rural
     communities.

156. In addition, our "keep-what-you-use" rules provide additional
     methods for making smaller license areas available, thus promoting
     access to spectrum and the provision of service, especially in
     rural areas. This rule ensures that others are given an opportunity
     to acquire spectrum that is not adequately built out and provide
     services to those who reside in those areas.[^381] In this way, our
     rules are pro-competitive and help ensure service to communities
     that might otherwise not receive service. In sum, we conclude that
     our approach should effectively promote service, including in rural
     areas, while establishing a clear regulatory framework for
     licensees as they develop their business plans.

157. *Specific Performance Requirements for CMA and EA Licenses.* We
     conclude that, for licenses based on CMAs and EAs, licensees must
     provide signal coverage and offer service to: (1) at least 35
     percent of the geographic area of their license within four years
     of the end of the DTV transition, and (2) at least 70 percent of
     the geographic area of their license at the end of the license
     term. In determining the relevant geographic area, we conclude
     that, in applying geographic benchmarks, we should not generally
     consider the relevant area of service to include government lands.
     CMA or EA licensees that fail to meet the interim requirement
     within their license areas will have their license terms reduced by
     two years, from ten to eight years, thus requiring these licensees
     to meet the end-of-term benchmark at an accelerated schedule. For
     those CMAs or EAs in which the end-of-term performance requirements
     have not been met, the unused portion of the license will terminate
     automatically without Commission action and will become available
     for reassignment by the Commission subject to the
     "keep-what-you-use" rules described below.

158. With regard to the use of geographic-based benchmarks for licenses
     based on CMAs and EAs, we seek to promote service across as much of
     the geographic area of the country as is practicable. We note that,
     while parties that seek to acquire licenses based on CMAs and EAs
     may be small and rural providers that are less likely to provide
     regional or nationwide service, they nonetheless play an important
     role in bringing new services to consumers in many of these more
     rural areas. For example, RTG argues that the use of small license
     areas such as CMAs "will create opportunities for small and rural
     businesses and will foster the deployment of competitive wireless
     broadband services in rural areas."[^382] Because we adopt smaller
     geographic license areas such as CMAs to facilitate the provision
     of service, including broadband, in rural areas, we also adopt
     performance requirements that are designed to ensure that such
     service is offered to consumers in these areas. We agree with
     Cellular South's argument that the uniqueness of the 700 MHz
     spectrum justifies the use of geographic benchmarks and that the
     band's excellent propagation characteristics make it ideal for
     delivering advanced wireless services to rural areas.[^383]
     Accordingly, for licenses based on these CMAs and EAs that are
     well-suited for providing service in rural markets, we establish
     benchmarks that require build-out to a significant portion of the
     geographic area.

159. We note that these benchmarks for CMAs and EAs are similar to the
     benchmarks that we sought comment on in the *700 MHz Further
     Notice*, which proposed that licensees provide coverage to 25
     percent of their geographic license area within three years of the
     end of the DTV transition, 50 percent of their geographic license
     area within five years, and 75 percent of their geographic license
     area within eight years. Although numerous parties supported the
     specific benchmarks proposed in the *700 MHz Further Notice*,[^384]
     the benchmarks we adopt in this Second Report and Order differ in
     certain respects from the proposal in the *700 MHz Further Notice*.
     In recognition of the comments we have received on our build-out
     proposal, we have adopted a four-year initial benchmark, not a
     three-year benchmark as was proposed in the *700 MHz Further*
     Notice. We are persuaded that a three-year build-out requirement
     would have a disproportionate impact on new entrants who have no
     existing networks or customers, as well as small or regional
     carriers who are looking to enlarge their operating footprint, but
     who do not already have extensive pre-existing infrastructure in
     place. In addition, we are allowing additional time for the
     development of new technologies that might be employed in this
     spectrum and giving licensees sufficient time to develop new
     services.[^385] Because we move the proposed initial three-year
     coverage requirement to four years, we increase the initial
     geographic coverage requirement from the proposed 25 percent to 35
     percent. Accordingly, we are not adopting a five-year coverage
     requirement, but we will require 70 percent geographic coverage at
     the end of the license term.

160. Consistent with the arguments of many commenters, we do not require
     licensees to include government lands as a part of the relevant
     service area when applying geographic benchmarks for several
     reasons. In many locations, covering certain government land may be
     impractical, because these lands are subject to restrictions that
     prevent a licensee from providing service or make provision of
     service extremely difficult. We also note that government lands
     often include only very small portions of the population in a
     license area. Government lands include areas that are owned or
     administered by the Federal Government, including the Bureau of
     Land Management, the Bureau of Reclamation, the U.S. Department of
     Agriculture's Forest Service, the Department of Defense, the U.S.
     Fish and Wildlife Service, the National Park Service, the Tennessee
     Valley Authority, and other agencies and governmental entities, as
     well as areas that are owned or managed by individual states.[^386]
     A CMA or EA licensee with a geographic service area that includes
     land owned or administered by government may meet the build-out
     benchmarks established herein by providing signal coverage and
     offering service to the relevant percentages of land in the service
     area that is not owned or administered by government.

161. To the extent the licensee employs a signal level and provides
     service to land that is owned or leased by government, the licensee
     may count this land area and coverage as part of its service area
     for purposes of measuring compliance with the build-out benchmark,
     but it also must add the covered government land to the total
     geographic area used for measurement purposes. This approach
     ensures that licensees receive credit for land that they cover and
     gives them flexibility to meet our benchmarks through a combination
     of covering government and non-government land, given that in
     certain cases government lands may be a high traffic area or
     include a significant portion of the population in a license area.

162. *Specific Performance Requirements for REAG Licenses.* We conclude
     that, for licenses based on REAGs, licensees must provide signal
     coverage and offer service to: (1) at least 40 percent of the
     population of the license area within four years, and (2) at least
     75 percent of the population of the license area by the end of the
     license term. Licensees must use the most recently available U.S.
     Census Data at the time of measurement to meet these population
     based build-out requirements.

163. In addition, for licenses based on REAGs, we will apply our
     performance requirements on an EA basis.[^387] Accordingly, to meet
     their benchmarks, REAG licensees must provide signal coverage and
     offer service to at least 40 percent of the population in each EA
     in its license area within four years and 75 percent of the
     population of each of these EAs at the end of the license term.
     REAG licensees that fail to meet the interim requirement in any EA
     within their license areas will have their license term for the
     entire REAG reduced by two years, from ten to eight years, thus
     requiring these licensees to meet the end-of-term benchmark at an
     accelerated schedule. In applying the end-of-term coverage
     requirement to REAG licensees, the Commission will evaluate the
     licensee's coverage on an EA-by-EA basis. For those EAs in which
     the end-of-term performance requirements have not been met, the
     unused portion of the license will terminate automatically without
     Commission action and will become available for reassignment by the
     Commission subject to the "keep-what-you-use" regime described
     below.

164. With regard to the use of population-based benchmarks for REAG
     licensees, we agree with Dobson that this type of build-out
     requirement is appropriate for licensees with large geographic
     areas to allow for roll out of advanced services on a nationwide or
     regional basis.[^388] In particular, we are mindful of the
     significant capital investment and logistical challenges associated
     with building a regional or nationwide system without an existing
     infrastructure. The use of benchmarks based on population, rather
     than geographic area, may best allow a potential new entrant to
     achieve the economies of scale needed for a viable business model,
     while also ensuring that a majority of the population in a given
     region may have access to these services. Similarly, as compared to
     geographic benchmarks, the use of population benchmarks is more
     consistent with the recommendations and likely business plans of
     existing nationwide service providers such as AT&T and Verizon
     Wireless.[^389] As these large providers expand into more advanced
     services such as broadband, they, like new entrants, will need to
     spread the costs of developing such operations over as many
     customers as possible. The use of population-based benchmarks,
     rather than geographic benchmarks, allows these new and existing
     providers to promptly and efficiently develop these new services,
     thus reaching more consumers more quickly. Accordingly, to
     facilitate new entry as well as the expansion of service to as many
     people as practicable, we combine the use of REAGs with
     population-based performance requirements. These population-based
     benchmarks are similar to those proposed by Verizon Wireless in its
     comments.[^390] Verizon Wireless proposes covering 50 percent of
     the population of a license area within five years and 75 percent
     of the population of a license area by the end of the license term.
     We have adjusted the interim population percentage figure to 40
     percent because we are making the first benchmark applicable at
     four years rather than five years. Further, we are applying these
     requirements on an EA basis for REAG licenses in order to help
     ensure that REAG licensees serve more rural consumers. If we were
     to apply these requirements on a REAG basis, rather than an EA
     basis, REAG licensees would be able to meet their performance
     requirements largely by serving urban areas only. Our use of EAs to
     measure build-out for REAG licenses will avoid this result and best
     promote the development and deployment of broadband services over
     such large license areas.

165. *Reporting Requirements.* In connection with the performance
     requirements adopted in this Second Report and Order, we adopt an
     interim reporting requirement that will obligate licensees to
     provide the Commission with information concerning the status of
     their efforts to meet the performance requirements and the manner
     in which their spectrum is being utilized. In addition, this
     information will be useful to monitor whether further assessment of
     the rules or other actions are necessary in the event spectrum is
     being stockpiled or warehoused, or if it is otherwise not being
     made available despite existing demand. For licensees that meet
     their interim benchmarks, these reports will be filed at the end of
     the second and seventh years following the end of the DTV
     Transition, *i.e.*, February 17, 2011 and February 17, 2016. For
     licensees that do not meet their interim benchmarks and have their
     license terms reduced, the second report will be filed at the end
     of the sixth year following the end of the DTV Transition, *i.e.*,
     February 17, 2015. The information to be reported will include a
     description of the steps the licensee has taken toward meeting its
     construction obligations in a timely manner, including the
     technology or technologies and service(s) being provided and the
     areas in which those services are available.

166. *Procedures for Implementation*. Licensees must demonstrate
     compliance with our interim and end-of-term construction benchmarks
     by filing a construction notification with the Commission within 15
     days of the relevant benchmark certifying that they have met our
     performance requirements or, if they have not met our performance
     requirements, they must file a description and certification of the
     areas for which they are providing service.[^391] The information
     contained in the licensee's construction notification must include
     electronic coverage maps and other supporting documentation.[^392]
     The construction notification, including the coverage maps and
     supporting documents, must be truthful and accurate and must not
     omit material information that is necessary for the Commission to
     make a determination of compliance with its performance
     requirements.[^393] In addition, we recognize that demonstrations
     of coverage may vary across licensees. For example, unlike with
     cellular service, which was implemented pursuant to a uniform,
     Commission-mandated technical standard, licensees in the 700 MHz
     Band likely will use a variety of technologies to provide a range
     of services with this spectrum. Accordingly, we delegate to the
     Wireless Bureau the responsibility for establishing the
     specifications for filing maps and other documents (*e.g.*, file
     format and appropriate data) needed to determine a licensee's
     geographic coverage area. We recognize that coverage determinations
     may need to be made on a case-by-case basis so as to account for
     the potentially wide variety of services and technologies that may
     be offered in the band.

167. As explained above, licensees with REAG-based licenses are required
     to meet their applicable performance requirements on an EA basis
     and licensees with EA- or CMA-based licenses must demonstrate
     coverage for their respective geographic license areas. The
     electronic coverage maps must clearly and accurately depict the
     boundaries of each EA or CMA in the licensee's service territory,
     and the areas where the licensee is providing signal coverage and
     offering service. If the licensee's signal does not provide service
     to the entire EA or CMA, the map must clearly and accurately
     display the boundaries of the area or areas within each EA or CMA
     not being served. [^394]

168. In addition to filing electronic coverage maps, each licensee must
     file supporting documentation certifying the type of service it is
     providing for each EA or CMA within its license service territory
     and the type of technology it is utilizing to provide this service
     for each EA or CMA in its service territory. The supporting
     documentation also must provide the assumptions used by the
     licensee to create the coverage maps, including the propagation
     model and the signal strength necessary to provide service with the
     licensee's technology.[^395]

169. When the licensee files its construction notification, including
     its coverage maps and supporting documentation, the public will be
     given an opportunity to review and comment on the construction
     notification, including the maps provided by the licensee and the
     technical assumptions used to create the maps. After examining the
     notification and public comments, Commission staff will make a
     final determination as to what areas within EAs and CMAs are, and
     are not, deemed "served." If the Commission determines that a
     licensee meets the applicable interim benchmark, it will not have
     its license term reduced by two years. Likewise, if the Commission
     determines that a licensee meets its applicable end of term
     benchmark requirement, it will be deemed to have met our
     construction build-out requirement.

170. Under our "keep-what-you-use" rule, if a licensee fails to meet its
     end of term benchmark, its authorization to operate will terminate
     automatically without Commission action for those geographic areas
     of its license authorization in which the licensee is not providing
     service, and those unserved areas will become available for
     reassignment by the Commission. We will update our Universal
     Licensing System records to reflect those geographic areas for
     which the licensee retains authority to operate, as well as those
     geographic areas that will be made available for reassignment.

171. For purposes of reassigning these licenses, the Wireless Bureau is
     delegated authority to announce by public notice that these
     licenses will be made available and establish a 30-day window
     during which third parties may file license applications to serve
     these areas. During this 30-day period, licensees that lost their
     license authorizations for the areas that they did not serve may
     not file applications to provide service to these areas.
     Applications filed by third parties that propose areas overlapping
     with other applications will be deemed mutually exclusive, and will
     be resolved through an auction. The Wireless Bureau, by public
     notice, may specify a limited period before the filing of
     short-form applications (FCC Form 175) during which applicants may
     enter into a settlement to resolve their mutual exclusivity.

172. Following this 30-day period, the original licensee and third
     parties can file license applications for remaining unserved areas
     where licenses have not been issued or there are no pending
     applications. If the original licensee or a third party files an
     application, that application will be placed on public notice for
     30 days. If no mutually exclusive application is filed, the
     application will be granted, provided that a grant is found to be
     in the public interest. If a mutually exclusive application is
     filed, it will be resolved through an auction. The Wireless Bureau,
     by public notice, may specify a limited period before the filing of
     short-form applications (FCC Form 175) during which applicants may
     enter into a settlement to resolve their mutual exclusivity. We
     stress that any applications that are mutually exclusive under the
     performance requirements we adopt in this Second Report and Order,
     as well as certain other pleadings, will be subject to Section
     1.935 of the rules.[^396] Under that rule, parties that have filed
     applications that are mutually exclusive with one or more other
     applications must request Commission approval to dismiss or
     withdraw the applications. Parties are required to submit any
     written agreement related to the dismissal or withdrawal as well as
     affidavits certifying that no money or other consideration in
     excess of certain "legitimate and prudent expenses" has or will be
     exchanged in return for withdrawing or dismissing the
     applications.[^397]

173. A licensee obtaining spectrum that was lost through our
     "keep-what-you-use" rule will have one year from the date it is
     issued a license to complete its construction and provide signal
     coverage and offer service to the entire new license area. If the
     licensee fails to meet this construction requirement, its license
     will automatically cancel without Commission action and it will not
     be eligible to apply to provide service to this area on the same
     frequencies at any future date. We find that a one-year deadline is
     consistent with the period we provided to entrants building out in
     unserved cellular areas,[^398] and will promote expedited provision
     of service to remote and rural areas.

174. Under our "keep-what-you-use" rules, the Commission will determine
     whether an area is unserved by applying a *de minimis* standard
     similar to that applied to cellular service, which provides that
     the geographic service area to be made available to new entrants
     must include a contiguous area of at least 130 square kilometers
     (50 square miles).[^399] Areas smaller than this will not be deemed
     unserved by the Commission, because auctioning and licensing
     smaller areas to new licensees could result in harmful interference
     to incumbent licensees. Accordingly, unserved areas that are
     smaller than 130 kilometers will continue to be a part of the
     licensee's license area. In those geographic areas that the
     Commission deems as served, the licensee will retain its exclusive
     spectrum rights, including the ability to transfer and lease these
     areas. As explained below, the licensee also will have the
     opportunity to expand its service into the unused parts of its
     original license area.

175. While we will enforce our performance requirements to make unserved
     areas available to new entrants, we also will enforce all other
     Commission rules, including those related to protecting licensees
     against interference and limiting strategic behavior. Our rule
     governing field strength limits for licensees in this band, for
     example, serves the dual purposes of permitting actual service to
     occur even at the edge of geographic market boundaries, and
     establishing a baseline for licensees to negotiate technical
     parameters (*e.g.*, higher or lower field strengths, coordinated
     site placement) that will maximize coverage. This approach can be
     successful so long as neighboring licensees not only have the
     flexibility to place facilities near license boundaries, but also
     face the potential of harmful interference from neighboring
     licensees facilities. A licensee, however, could decide to place
     transmitters along a market boundary, not provide service to any
     system users, and cause interference to a neighboring licensee.
     Without system users, such a licensee would not fear interference
     in return, and could use such operations to gain an advantage in
     negotiations with the neighboring licensee. Examples of this type
     of operation could include the placement of mobile system base
     station transmitters, or fixed transmitters, near a market
     boundary, oriented in such a way as to meet the field strength
     limits in the rules, but cause interference to a neighboring
     licensee\'s system users near the boundary. Because of the
     potential for this scenario, we remind licensees that Section 333
     of the Communications Act, as amended,[^400] prohibits willful and
     malicious interference with or causing interference to a licensed
     or authorized station, and we note that we will vigorously
     investigate complaints of this nature and enforce this provision.

176. *Other Issues.* In rejecting the arguments of parties advocating
     continuation of the current substantial service standard,[^401] we
     note that there is no requirement that construction build-out
     provisions be the same for all commercial wireless services, nor
     even for those of a certain type.[^402] We determine that given the
     excellent propagation characteristics of this spectrum,[^403] the
     benefits of service being offered before the end of the license
     term, and the public interest that would be served by ensuring
     additional service in the more rural and remote areas of this
     country, more rigorous performance requirements are appropriate for
     these 700 MHz commercial licenses.

177. Given these stringent performance requirements, we decline to adopt
     the proposal that would allow third parties to access the unused
     portions of a licensee's spectrum on a non-interfering basis. While
     several commenters raise this issue,[^404] we note that, in the *TV
     White Spaces Report and Order*, the Commission specifically
     declined to apply to the 700 MHz Band the unlicensed use rules that
     it adopted for the core TV spectrum. The Commission observed that,
     as compared to the core TV bands, the 700 MHz Band will have
     different services, with different interference
     considerations.[^405] The Commission also noted the difficulty of
     allowing unlicensed use of white spaces in spectrum used by mobile
     devices.[^406] Moreover, we have taken other steps in this Report
     and Order to promote access to the 700 MHz Band, especially in
     rural areas, through the use of smaller geographic license areas
     and stringent build-out requirements.

##### Partitioning and Disaggregation

178. [Background.]{.underline} The Commission's Part 27 rules permit
     geographic partitioning and spectrum disaggregation by 700 MHz
     Commercial Services licensees.[^407] As the Commission stated when
     first establishing partitioning and disaggregation rules: "We
     believe that such flexibility will (1) facilitate the efficient use
     of spectrum by providing licensees with the flexibility to make
     offerings directly responsive to market demands for particular
     types of service; (2) increase competition by allowing market entry
     by new entrants; and (3) expedite the provision of service to areas
     that otherwise may not receive ... service in the near term."[^408]
     Licensees seeking to partition or disaggregate ("partitioners" or
     "disaggregators") and parties seeking to gain access to spectrum
     through partitioning or disaggregation ("partitionees" or
     "disaggregatees") may seek Commission authorization at any time
     following the grant of the initial licenses.[^409] At the time of
     their applications, the original licensees and the parties seeking
     to obtain new licenses of partitioned or disaggregated spectrum
     must establish how the applicable performance requirements
     associated with the various license authorizations will be
     met.[^410] The goal of these construction requirements in both the
     partitioning and disaggregation context is "to ensure that the
     spectrum is used to the same degree that would have been required
     had the partitioning or disaggregation transaction not taken
     place."[^411]

179. Section 27.15(d) implements the Commission's existing rules
     pertaining to construction obligations in the context of
     partitioning and disaggregation. Consistent with the substantial
     service requirements that had previously been adopted for these
     licenses, the existing rules address how the substantial service
     policies apply in this context. The partitioning rules, set forth
     in Section 27.15(d)(1), provide parties with two different options
     for satisfying these requirements. Under the first option, the
     partitioner and partitionee each must certify that it will
     independently satisfy the substantial service requirement for its
     respective partitioned area. If a licensee, either the partitioner
     or the partitionee, subsequently fails to meet the performance
     requirements associated with the license authorization for its
     partitioned area, its license is subject to automatic cancellation
     without further Commission action. Under the second option, the
     partitioner must certify that it has met or will be responsible for
     meeting the performance requirements for the entire,
     pre-partitioned geographic service area.[^412] We note that another
     Part 27 provision requires that the partitionee make a showing of
     substantial service at the end of the license term.[^413]

180. The disaggregation rules, set forth in Section 27.15(d)(2), also
     provide parties two options for satisfying the substantial service
     requirements. Under the first option, the disaggregator and
     disaggregatee each must certify that it will share responsibility
     for meeting the substantial service requirement for the geographic
     service area. If the parties choose this option and either party
     subsequently fails to meet this requirement, both parties' licenses
     are subject to forfeiture without further Commission action. Under
     the second option, both parties must certify either that the
     disaggregator or the disaggregatee will meet the substantial
     service requirement for the geographic service area.[^414] As
     provided by another provision of our Part 27 rules, the other
     licensee must also make a showing of substantial service at the end
     of the license term.[^415]

181. In the *700 MHz Commercial Services Notice*, we sought comment on
     whether to change any aspect of Section 27.15 on partitioning and
     disaggregation in order to help ensure the provision of service to
     consumers, including any rural areas that are part of a partitioned
     or disaggregated license.[^416] We received no comments regarding
     how the Commission should or might revise these rules.

182. [Discussion.]{.underline} Upon examination of the existing
     partitioning and disaggregation rules set forth in Section
     27.15(d), and in consideration of stricter performance obligations
     we are establishing (as discussed above), we amend our rules to
     clarify how those obligations will apply to the partitioning and
     disaggregation of 700 MHz Commercial Services licenses that remain
     to be auctioned. In particular, having adopted stricter performance
     requirements for these licensees, we establish how these rules will
     work with regard to the four-year and the end-of-term benchmarks
     and the "keep-what-you-use" policies discussed above. These
     amendments concern only the specific rules in Section 27.15(d) as
     they apply to the new 700 MHz Commercial Services licenses, and
     only those Section 27.15 rules that specifically concern
     construction requirements in the context of partitioning and
     disaggregation.[^417]

183. These modifications seek to continue to provide flexibility to
     licensees and third parties to enter into partitioning and
     disaggregation arrangements that will, *inter alia,* facilitate the
     provision of new services to consumers, including consumers in
     unserved and underserved areas. They also are consistent with our
     goal of ensuring that this 700 MHz spectrum is used at least to the
     same extent as it would have been had partitioning or
     disaggregation not occurred.

184. *Partitioning.* Under our modifications of the Section 27.15(d)
     rules relating to geographic partitioning of new 700 MHz Commercial
     Services licenses, we establish two options for partitioners and
     partitionees with regard to the newly adopted performance
     requirements discussed above.

185. Under the first option, the partitioner and partitionee must each
     certify to the Commission that they will share responsibility for
     meeting the performance requirements for the entire original
     geographic license area. Under this option, the partitioner,
     partitionee, or both the partitioner and partitionee working
     together, can meet the four-year and end-of-term construction
     benchmarks for the entire geographic license area.[^418] If the
     parties meet the end-of-term construction benchmarks, they will
     retain the ability to continue to build out the unserved portion of
     their license areas. Parties that fail to meet the end-of-term
     benchmarks will be subject to a "keep-what-you-use" rule, under
     which they will lose their authorization for unserved portions of
     their license areas, which will automatically cancel and return to
     the Commission for reassignment. This option enables parties to
     share the cost of meeting the stricter buildout benchmarks as
     required by the Commission under its new performance requirements,
     while ensuring that buildout will occur over the original license
     area to the same extent as it would have occurred had the license
     never been partitioned.

186. Under the second option, the partitioner and partitionee must each
     certify that it will independently meet the applicable performance
     requirements for its respective partitioned service area.[^419] If
     the partitioner or partitionee fails to meet the four-year
     build-out requirement for its respective partitioned service area,
     then its license term will be reduced by two years.[^420] If the
     parties meet the end-of-term construction benchmarks, they will
     retain the ability to continue to build out the unserved portion of
     their license areas. Parties that fail to meet the end-of-term
     benchmarks will be subject to a "keep-what-you-use" rule, under
     which they will lose their authorization for unserved portions of
     their license areas, which will automatically cancel and return to
     the Commission for reassignment. This option provides a way for
     partitioners and partitionees to ensure that their licenses will
     not be affected by the other party's conduct with regard to meeting
     the applicable performance requirements.

187. *Disaggregation.* With regard to the rules relating to
     disaggregation of new 700 MHz Commercial Services Band licenses, we
     modify Section 27.15(d) to provide that the disaggregator,
     disaggregatee, or both the disaggregator and disaggregatee working
     together, can meet the four-year and end-of-term construction
     benchmarks for the entire geographic license area.[^421] If either
     of the parties meets the four-year build-out requirement, then this
     requirement is considered to be satisfied for both parties. If
     neither of the parties meets the four-year build-out requirement,
     then each of their license terms will be reduced by two
     years.[^422] Similarly, if either of the parties meets the
     end-of-term build-out requirement, then this requirement is
     considered to be satisfied for both parties, and they will retain
     the ability to continue to build out the unserved portion of their
     license areas. However, parties that fail to meet the end-of-term
     benchmarks will be subject to an automatic "keep-what-you-use"
     rule, under which they will lose their authorization for unserved
     portions of their license areas, which will automatically cancel
     and return to the Commission for reassignment..

188. This approach to our build-out requirements in the disaggregation
     context will not create additional burdens for these arrangements
     because the parties need build out only to the same extent as would
     have occurred if the spectrum for this area had not been
     disaggregated. This approach also provides the opportunity for
     parties to enter into disaggregation agreements where they would
     share the cost of meeting the construction requirement. By ensuring
     that the performance obligation remains on both parties, we provide
     greater assurance that the disaggregation agreement will result in
     compliance with these requirements. In addition, we note that
     either party is able to satisfy our build-out requirements
     independently in the disaggregation context because each will hold
     spectrum over the entire geographic area.

##### Open Platforms for Devices and Applications

189. [Background.]{.underline} In the *700 MHz Further Notice*, we
     sought comment on a proposal filed by PISC that licenses for at
     least 30 megahertz of the unauctioned commercial 700 MHz Band
     spectrum bear a condition requiring a licensee to provide open
     platforms for devices and applications. [^423] PISC described its
     proposal as including the right of a consumer to use any equipment,
     content, application, or service on a non-discriminatory
     basis.[^424] PISC subsequently expanded its proposal to recommend
     that these requirements should apply to all 60 megahertz of the
     unauctioned spectrum.[^425]

190. PISC argues that "incumbent wireless carriers . . . routinely choke
     bandwidth to users, cripple features, and control the user
     experience" in order to protect their wireline broadband offerings
     (*e.g.,* DSL and cable modem).[^426] Supporters offer many examples
     of such restrictions, including restrictions on the use of Voice
     Over Internet Protocol (VoIP), webcams, and other media
     devices.[^427] Frontline cites the Apple iPhone device, which is
     designed to work exclusively on one provider's network.[^428] Other
     commenters refer to the record in a rule making proceeding
     requested by Skype Communications S.A.R.L (Skype), where, as here,
     commenters complain that incumbent wireless service providers
     impose restrictions on a range of devices and features, such as
     VoIP,[^429] and "routinely choke bandwidth to users, cripple
     features, and control the user experience."[^430] In addition,
     Wireless Founders Coalition for Innovation (WFCI) also complains
     that wireless providers impose an "arduous," "difficult and
     time-consuming" set of qualification and approval processes before
     applications can be run or devices attached to a network.[^431]

191. Proponents argue that without mandated open access, wireless
     broadband service is unlikely to develop into a vigorous competitor
     for existing wireline broadband services, because incumbent
     wireless service providers owned by wireline companies will instead
     limit the quality of their wireless broadband offerings to protect
     their wireline broadband offerings.[^432] These commenters credit
     the open access model with creating a competitive environment in
     which independent service and equipment providers flourished in
     this country under the *Carterfone* decision,[^433] the *Computer
     Proceedings*, and the 1996 Telecommunications Act.[^434] They argue
     that the 700 MHz open access policies they advocate will facilitate
     competitive entry for both wireless service providers and Internet
     service providers, which will foster innovation, enhance services,
     and lower prices.[^435] For example, Google maintains that the only
     way to guarantee new broadband platforms is through open platform
     requirements: open applications, open devices, open services, and
     open networks.[^436]

192. On the other hand, opponents dispute the need for open access
     requirements and argue that these requirements could have adverse
     consequences. They maintain that, unlike the monopoly wireline
     market in which the *Carterfone* decision was based, there is
     effective competition in the mobile wireless market and that
     auction of the remaining commercial 700 MHz Band spectrum will
     provide opportunities for additional competitors.[^437] Opponents
     assert that open access advocates exaggerate the restrictions
     wireless providers impose on consumers,[^438] and to the extent
     providers do engage in such practices, such practices are
     reasonable measures to protect the integrity and efficiency of
     wireless networks.[^439] In addition, some commenters argue that
     imposing open access requirements would directly contradict
     Commission findings that bundling mobile handsets with wireless
     service contracts increases wireless penetration, and that
     subjecting wireless broadband Internet access service providers to
     access, price, or unbundling mandates is a disservice to
     consumers.[^440] Verizon Wireless maintains that the "incumbent
     advantages" cited by Google are not anticompetitive, and result
     from high-risk capital investments in a competitive market.[^441]

193. Opponents also challenge open access requirements as a throwback to
     an obsolete "command-and-control" regulatory regime, which they see
     as unnecessarily restricting mobile wireless licensees' flexibility
     to adapt to market conditions and effectively compete.[^442]
     Verizon Wireless argues that imposing an open access business model
     undermines the auction process and competitive bidding, which is
     designed to identify those bidders who place the highest value on
     the licenses to ensure that this scarce resource is not wasted or
     underexploited.[^443] Verizon Wireless asserts that imposing open
     access regulations runs contrary to the Commission's "light
     regulatory touch" for wireless services generally, and is
     inconsistent with the Commission's prior determinations regarding
     the regulation of broadband services.[^444] According to Verizon
     Wireless, requiring winners of licenses in the 22 MHz block to
     provide open access would impose an asymmetrical regulatory regime
     on only one segment of the industry, thus drawing arbitrary
     distinctions by treating those licensees differently than other 700
     MHz licensees, other wireless providers and/or broadband Internet
     access providers.[^445] Also, according to Verizon Wireless, the
     Commission cannot impose access requirements without violating
     various sections of the Communications Act and affecting the First
     Amendment rights of existing providers. AT&T, on the other hand,
     maintains that open access requirements for the 700 MHz C Block
     would enable the introduction of an alternative wireless business
     model without requiring changes in the business models of AT&T (and
     others) in the highly competitive wireless industry.[^446]
     According to AT&T, the proposal provides an opportunity for new
     entrants to bid and test their business models in the
     marketplace.[^447]

194. Several commenters also note that PISC's proposal involves issues
     also raised in the *Broadband Practices* proceeding[^448] and in
     the Skype Petition.[^449] Opponents of open access argue that such
     proposals affect the wireless industry at large, not just parties
     interested in the 700 MHz Band spectrum, and are more appropriately
     considered in a forum with a broad perspective.[^450] In the
     *Broadband Practices* proceeding, we are exploring the nature of
     the market for broadband and related services, including whether
     consumer choice of broadband providers is sufficient to ensure that
     certain broadband policies ultimately benefit consumers and whether
     any regulatory intervention is necessary.[^451] The *Broadband
     Practices* proceeding is premised on an earlier Commission policy
     statement setting out the following principles to encourage
     broadband deployment, and to preserve and promote the open and
     interconnected nature of the public Internet to all consumers: (1)
     consumers are entitled to access the lawful Internet content of
     their choice; (2) consumers are entitled to run applications and
     use services of their choice, subject to the needs of law
     enforcement; (3) consumers are entitled to connect their choice of
     legal devices that do not harm the network; and (4) consumers are
     entitled to competition among network providers, application and
     service providers, and content providers.[^452] The Skype Petition
     asks the Commission to: (a) declare that wireless services are
     subject to *Carterfone* principles that consumers have the right to
     attach any non-harmful device of their choosing to the network and
     run Internet applications of their choosing;[^453] and (b) enforce
     those principles by initiating a rule making proceeding to
     determine whether wireless service providers are acting
     consistently with the *Carterfone* principles.[^454]

195. [Discussion]{.underline}. Although we generally prefer to rely on
     marketplace forces as the most efficient mechanism for fostering
     competition, we conclude that the 700 MHz spectrum provides an
     important opportunity to apply requirements for open platforms for
     devices and applications for the benefit of consumers, without
     unduly burdening existing services and markets. For the reasons
     described below, we determine that for one commercial spectrum
     block in the 700 MHz Band -- the Upper 700 MHz Band C Block -- we
     will require licensees to allow customers, device manufacturers,
     third-party application developers, and others to use or develop
     the devices and applications of their choice, subject to certain
     conditions, as described further below. We conclude, however, that
     it would not serve the public interest to mandate, at this time,
     requirements for open platforms for devices and applications for
     all unauctioned commercial 700 MHz spectrum, or to impose broader
     requirements, such as wholesale or interconnection requirements,
     for the C Block.

196. Rapid deployment and ubiquitous availability of broadband services
     across the country are among the Commission's most critical policy
     objectives. Broadband technology is a key driver of economic
     growth. The ability to share increasing amounts of information at
     greater speeds increases productivity, facilitates interstate
     commerce, and drives innovation. Perhaps most important, broadband
     is changing how we communicate with each other, how and where we
     work, how we educate our children, and how we entertain ourselves.

197. Wireless service is becoming an increasingly important platform for
     broadband access. Over the past few years, U.S. service providers
     have been moving beyond second-generation (2G) wireless network
     technologies to deploy next-generation, or third-generation (3G),
     network technologies. These technologies enable them to offer data
     services at higher data transfer speeds, and to offer mobile
     broadband services that provide for a variety of new capabilities
     and services, including broadband Internet access. As part of this
     evolution, "cell phones" are evolving into multi-media devices
     capable of surfing the web, sending e-mails, playing songs, taking
     pictures, playing games, and streaming video. As these devices
     become more sophisticated, consumers have more opportunities to
     access broadband services both at home and on the go.

198. Although wireless broadband services have great promise, we have
     become increasingly concerned that certain practices in the
     wireless industry may constrain consumer access to wireless
     broadband networks and limit the services and functionalities
     provided to consumers by these networks. In our *Wireless Broadband
     Classification Order*, we recognized that wireless IP-based
     multimedia content and services are typically sold through a
     service provider-branded, service provider-controlled portal.[^455]
     We also noted that "in some cases, providers use filters to limit
     the web sites that a customer can access, and, in other cases,
     subscribers can enter any URL using a handset but the site may not
     be viewable due to software, processing, or other constraints of
     the device."[^456] In contrast, wireless broadband Internet access
     services for laptop computers typically allow consumers to access
     the same applications that would be available had they chosen a
     cable or wireline broadband Internet access connection.

199. We are also concerned that wireless service providers appear to
     have required that equipment manufacturers disable certain
     capabilities in mobile devices, such as Wi-Fi capabilities.
     Technologically, mobile devices capable of accessing 3G wireless
     networks can also incorporate broadband Wi-Fi capabilities.[^457]
     The inclusion of Wi-Fi capabilities in 3G wireless devices could
     improve the consumer experience by providing faster broadband data
     rates in the vicinity of Wi-Fi "hotspots" and reducing network
     congestion. Despite these technological possibilities and potential
     consumer advantages, wireless handsets with Wi-Fi capabilities have
     been largely unavailable in the United States for reasons that
     appear unrelated to reasonable network management or technological
     necessity.

200. The Commission generally relies on the competitive marketplace to
     deliver the benefits of choice, innovation and affordability to
     American consumers, and regulates only when market driven forces
     alone may not achieve broader social goals. The Commission has
     found that the Commercial Mobile Radio Services (CMRS) market is
     effectively competitive, and that competitive pressures continue to
     result in the introduction of innovative pricing plans and service
     offerings.[^458] We have not found, however, that competition in
     the CMRS marketplace is ensuring that consumers drive handset and
     application choices, especially in the emerging wireless broadband
     market. For example, while it is easy for consumers to
     differentiate among providers by price, most consumers are unaware
     when carriers block or degrade applications and of the implications
     of such actions, thus making it difficult for providers to
     differentiate themselves on this score.[^459] As a result, while
     many commenters assert that market forces require that wireless
     providers support handsets and applications that consumers
     want,[^460] there is evidence that wireless service providers
     nevertheless block or degrade consumer-chosen hardware and
     applications without an appropriate justification.[^461]

201. We do not decide in this proceeding whether competition in the CMRS
     market generally is sufficient to ensure that consumers have the
     ability to use wireless devices and applications of their choice in
     the emerging wireless broadband market, especially since these
     questions are being considered more broadly in other
     proceedings.[^462] Given the nature of this spectrum and the lack
     of additional similar spectrum capacity that can be made available
     in the near future, however, what we decide here is important to
     the evolution of the next generation of wireless technology,
     industry structure and institutional arrangements. This auction
     provides a window of opportunity to have a significant effect on
     the next phase of mobile wireless technological innovation, and on
     the evolution of market and institutional arrangements---such as
     arrangements regarding open platforms for devices and applications
     to the benefit of consumers ---that will go along with that
     innovation. As a result, in light of the evidence suggesting that
     wireless service providers are blocking or degrading
     consumer-chosen hardware and applications without an appropriate
     justification, we believe that it is appropriate to take a measured
     step to encourage additional innovation and consumer choice at this
     critical stage in the evolution of wireless broadband services, by
     removing some of the barriers that developers and handset/device
     manufacturers face in bringing new products to market. By fostering
     greater balance between device manufacturers and wireless service
     providers in this respect, we intend to spur the development of
     innovative products and services.

202. To promote innovation in this spectrum band from the outset, we
     find it is reasonable to impose certain conditions on the C Block
     in the Upper 700 MHz Band to provide open platforms for devices and
     applications. While the Commission strives to apply a consistent
     regulatory framework to like services, that does not obligate us to
     treat all spectrum-based services identically.[^463] The Commission
     has applied different spectrum regulatory models as warranted by
     different market conditions, ranging from licenses that largely
     grant exclusive rights to use the spectrum to unlicensed approaches
     in which access to the spectrum is open and subject to minimal
     rules.[^464] Particularly in developing markets, regulatory
     policies have played an important role in encouraging new
     competitive services to emerge. Many technologies, such as Wi-Fi
     services, have developed as a result of regulatory policies
     established by the Commission in particular spectrum bands. Rather
     than adopt a single regulatory model to assign spectrum rights in
     all bands, the Commission has pursued a balanced spectrum policy
     that recognizes that, in certain instances, it may be necessary to
     vary the regulation of spectrum use to achieve certain critical
     public interest objectives. [^465]

203. We are taking a similarly balanced approach here by requiring the
     licenses for one of the remaining spectrum blocks to be auctioned
     to provide open platforms for devices and applications. We are
     mindful that some of the restrictive practices set forth in the
     record appear to be used by wireless service providers for purposes
     other than simply protecting the network from harm. We also
     recognize supporters' argument that the 700 MHz Band offers an
     opportunity to encourage innovation in network devices and
     applications in spectrum with valuable propagation characteristics,
     without adversely affecting 700 MHz Band licensees' network
     operations or viability.[^466] The 700 MHz Band provides a rare
     opportunity to implement pro-consumer concepts without disrupting
     an existing service, given that there will not be any incumbents in
     the band after the DTV transition and that bidders for the spectrum
     will have notice of these obligations at the outset. In these
     circumstances, we conclude that prohibiting a provider's ability to
     unreasonably limit applications and devices on its network in a
     portion of the 700 MHz Band is both appropriate and feasible.

204. We believe that the C Block is the most reasonable block for
     applying a new regulatory model that attempts to give consumers
     additional choices. The C Block is a large 22-megahertz block
     (comprised of paired 11-megahertz blocks). As discussed above, we
     believe that a block of this size and scope will provide an
     environment conducive to the development and deployment of 4G
     services designed to compete with wireline broadband alternatives.
     Imposing such a requirement on a band with these characteristics
     should provide an opportunity for innovators and entrepreneurs to
     develop equipment and applications that require substantial
     bandwidth to realize their full potential. It should also provide
     sufficient potential market penetration to attract investment and
     achieve economies of scale in the equipment marketplace. Without
     access to a block capable of supporting high data rates and the
     potential for substantial market penetration, the requirements we
     impose here would be less likely to result in rapid innovation at
     the edge of the network. Thus, more than any other spectrum block
     in the 700 MHz Band, it is the C Block that would benefit from our
     intervention to help ensure that access to anticipated 4G services
     is not unduly inhibited or foreclosed.

205. While we adopt a requirement for the C Block licensees to provide
     open platforms for devices and applications, we decline at this
     time to impose these same principles or other openness obligations
     broadly in the 700 MHz Band, as recommended in PISC's open access
     and Google's broader proposals.[^467] Given the state of the
     record, we believe that a more measured approach is appropriate.
     While the open platform requirement for devices and applications in
     the C Block holds the potential to foster innovation, we cannot
     rule out the possibility that such a requirement may have
     unanticipated drawbacks as well. Therefore, we think that it is
     appropriate to impose the open platform requirement only on a
     limited basis. While the record in this proceeding regarding the
     potential merits or drawbacks of the open platform requirement for
     devices and applications is not so clear as to warrant adopting
     such conditions for the entire 700 MHz Band, the approach that we
     take today will allow both the Commission and industry to observe
     the real-world effects of such a requirement. Moreover, we note
     that to the extent the results of our C Block requirements prove
     attractive to consumers, we would anticipate that providers in
     other 700 MHz Band blocks and other bands will have competitive
     incentives to offer similar choices. We disagree with PISC's
     suggestions that the wireless market is not competitive.[^468] We
     also reject Google's argument that mandatory wholesale and other
     broad regulatory models are necessary at this time to provide
     incentives for new entry and innovation. We have not established
     wireless regulatory policies based solely on "leveling the playing
     field" against incumbent operators, as suggested by Google, and we
     decline to do so here.[^469] In addition, the record is not
     sufficient to adopt broader obligations here or even to decide the
     specifics of such mandates.

206. Accordingly, consistent with the broadband principles set out
     above, we will require only C Block licensees to allow customers,
     device manufacturers, third-party application developers, and
     others to use or develop the devices and applications of their
     choosing in C Block networks, so long as they meet all applicable
     regulatory requirements and comply with reasonable conditions
     related to management of the wireless network (*i.e.*, do not cause
     harm to the network). Specifically, a C Block licensee may not
     block, degrade, or interfere with the ability of end users to
     download and utilize applications of their choosing on the
     licensee's C Block network, subject to reasonable network
     management. We anticipate that wireless service providers will
     address this requirement by developing reasonable standards,
     including through participation in standards setting organizations,
     as discussed below. Finally, for the reasons noted above, we will
     not impose additional requirements on the C Block, including
     wholesale and interconnection requirements.

207. *Commission's Authority to Impose Requirements for Open Platforms
     for Devices and Applications.* As a general matter, the Commission
     has the authority to establish license conditions and operational
     obligations, such as the requirements we adopt here, if the
     condition or obligation will further the goals of the
     Communications Act without contradicting any basic parameters of
     the agency's authority.[^470] As we have demonstrated above, the
     record is sufficient to conclude that current practices in the
     industry may be impeding the development and deployment of devices
     and applications that consumers want to use. Thus, a requirement to
     allow consumer use of any such devices and applications (limited by
     reasonable requirements to protect the network and to enable the
     wireless service provider to comply with its regulatory
     obligations) in a band like the C Block holds the potential to
     foster the development of innovative devices and applications, and
     as a result, promises to benefit consumers. This type of initiative
     -- in terms of purpose, scope, and method of implementation --
     falls squarely within a number of the Commission's statutory
     sources of authority.[^471]

208. Verizon Wireless raises a host of legal arguments with respect to
     the Commission's statutory authority to implement such open access
     requirements. It argues, among other things, that open access
     requirements for wireless services place unnecessary burdens on the
     wireless industry and impair the value of the affected spectrum,
     and that therefore such regulation is contrary to the public
     interest as well as inconsistent with various goals specified in
     the Communications Act, including Section 309(j).[^472] It
     challenges our authority to impose open access requirements on the
     ground that such requirements would be inconsistent with various
     Title III-based obligations, such as E911 requirements.[^473] It
     also argues that imposing open access requirements is inconsistent
     with the Commission's prior determinations regarding the regulation
     of broadband services,[^474] violates various sections of the
     Communications Act, and affects the First Amendment rights of
     existing providers. [^475] Finally, Verizon Wireless asserts that
     we are setting aside this spectrum as a "pioneer's preference
     block," or providing a special bidding credit to new entrants in
     the upcoming auction for this spectrum.[^476]

209. Verizon Wireless's arguments fail for two primary reasons: (1) many
     of its arguments are directed at a broader set of openness
     requirements than those that we adopt here; and (2) Verizon
     Wireless's other arguments are either based on erroneous
     interpretations of relevant statutory provisions or erroneous
     factual assumptions.

210. To begin with, many of Verizon Wireless's objections focus on
     broader openness requirements than what is contemplated here. Thus,
     Verizon Wireless argues that the Commission is attempting to impose
     the same regulatory access model on wireless service providers that
     Congress, in the Section 251 interconnection provisions of the
     Communications Act, applied to the ILECs. According to Verizon
     Wireless, this approach contradicts the Commission's "Congressional
     mandate to apply a light regulatory touch to the wireless industry"
     and would "unwind the careful regulatory balance struck by Congress
     by applying ILEC obligations piecemeal on non-ILECs."[^477] The
     Commission, however, is not promulgating new interconnection (or
     quasi-interconnection) requirements for wireless providers here.
     Rather, the requirements that we adopt today are limited to devices
     and applications. Section 251[^478] simply does not address
     restrictions by ILECs and CLECs on the use of non-provider supplied
     devices or applications. Verizon Wireless's concern that the
     Commission is extending Section 251 requirements to wireless
     service providers is, therefore, without merit.

211. Similarly, to the extent that Verizon Wireless's arguments rely on
     the alleged negative effects of (and/or lack of need for) the
     broader requirements proposed by PISC and Google, these arguments
     are moot in light of the limited focus of the requirements that we
     actually adopt. Accordingly, we need not address whether such broad
     requirements would, in fact, work against the goals of Section 706
     of the 1996 Telecommunications Act,[^479] or Sections 4(i), 303(r),
     or 309(j)(3) of the Communications Act.[^480]

212. Verizon Wireless further asserts that the very statutory provisions
     we have cited as the sources of our authority to promulgate these
     limited openness requirements in fact bar us from doing so.[^481]
     As we have explained in detail above, however, we disagree with
     Verizon Wireless's assessment of the need for and likely effects of
     limited openness requirements. We agree with Verizon Wireless that
     one of the main statutorily based principles of our regulatory
     approach is to limit our regulatory intervention as much as
     possible and to rely, in the first instance, on marketplace forces
     to direct the development of the communications industry.[^482]
     However, Verizon Wireless's citation of generalized statements to
     this effect and its references to our application of this principle
     to particular aspects of the wireless industry not at issue in this
     proceeding do not alter our conclusion here. Limited openness
     requirements are an appropriate response to certain practices in
     the emerging wireless broadband market and are consistent with the
     Commission's general approach toward regulation.

213. Verizon Wireless also suggests that adoption of limited openness
     requirements would exceed the Commission's statutory authority
     because such requirements would frustrate the objectives set forth
     in Section 309(j)(3)(C) and (D). More specifically, Verizon
     Wireless contends that these requirements will reduce the value of
     the spectrum, and will undermine the statutory goals of recovering
     for the public a portion of the value of the spectrum and of
     promoting efficient and intensive use of the spectrum.

214. However, we do not agree with Verizon Wireless that the
     requirements we adopt here will necessarily frustrate any of the
     objectives set forth in Section 309(j)(3). It is not clear that
     these requirements will significantly deter bidders and thus hinder
     in any meaningful way the Commission's ability to recover for the
     public "a portion of the public spectrum resource." Additionally,
     we do not consider the possible reduction in the monetary value of
     the spectrum contradictory to the letter or spirit of the objective
     of subsection (j)(3)(C), since that objective only seeks recovery
     of "a portion of the value of the public spectrum resource."
     Indeed, the focus of the statutory language on recovery of "a
     portion" rather than the full value of the spectrum supports the
     conclusion that the Commission serves the objective of Section
     309(j)(3)(C) if it recovers less than maximum market value if
     necessary to obtain the benefits of other statutory
     objectives.[^483] As for the Section 309(j)(3)(D) objective of
     promoting the efficient and intensive use of the electromagnetic
     spectrum, we believe that our use of these requirements here may
     result in a net gain of efficiency, given the potential that it
     holds for encouraging the development of new and innovative devices
     and applications in connection with such spectrum use.[^484]

215. But even if Verizon Wireless's claims about spectrum value and
     network efficiency were correct, Section 309(j)(3) requires the
     Commission to balance several statutory objectives.[^485]
     Therefore, Section 309(j)(3) does not preclude regulation that may
     serve one of these objectives more than another.[^486] Looking to
     the specific goals set forth in Section 309(j)(3), we believe the
     requirements for open platforms for devices and applications
     adopted here further the objectives of Section 309(j)(3)(A) --
     developing and rapidly deploying new technologies, products, and
     services for the benefit of the public. We believe the benefits
     stemming from these requirements outweigh whatever possible
     negative effect they might have with respect to the other
     objectives set forth in the statutory provision. Thus, even if the
     limited requirements we impose today have some potential for
     reducing the monetary value and decreasing efficient use of
     spectrum in some respects, we believe that they are in the public
     interest and consistent with Section 309(j)(3).[^487]

216. Verizon Wireless also challenges our authority to impose open
     access requirements on the ground that such requirements would be
     inconsistent with various Title III-based obligations that the
     Commission has imposed on wireless providers, such as handset radio
     frequency emission standards, CALEA obligations, and E911
     requirements, which, according to Verizon Wireless, would be
     difficult or impossible to meet under an open access regime for
     devices and applications.[^488] As reflected below, however, we
     have taken this concern into account. Wireless providers are not
     required to permit attachment of any device or application that
     would interfere with the provider's obligations to comply with
     applicable regulatory requirements, including those mentioned
     above. In addition, while Verizon Wireless also claims that our
     requirements are inconsistent with the Title III regulatory regime
     that "is premised on a licensee's ability (and corresponding
     responsibility) to ensure the proper operation of all transmitters
     operating on its spectrum,"[^489] this is not the case. We
     specifically allow providers to utilize reasonable network
     management practices and "restrict particular non-carrier devices
     and applications on their networks, specifically to ensure the
     safety and integrity of their networks."[^490]

217. We also reject arguments by Verizon Wireless that the requirements
     that we adopt today for devices and applications for the Upper 700
     MHz C Block violate the First Amendment.[^491] First, Verizon
     Wireless has not demonstrated that our requirement that licensees
     in the Upper 700 MHz Band C Block allow customers, device
     manufacturers, third-party application developers, and others to
     use or develop devices and applications of their choice (subject to
     certain limitations) implicates the First Amendment. Our rules
     regulate the functionality of the spectrum and the conduct of the
     licensee -- activities that we believe are "not sufficiently imbued
     with elements of communication to fall within the scope of the
     First ... Amendment."[^492] Indeed, Verizon Wireless has cited no
     authority supporting the proposition that activities such as
     "locking" handsets to prevent their transfer from one system to
     another or blocking Wi-Fi access, MP3 playback ringtone capability,
     or other applications that compete with wireless providers' own
     offerings are protected speech under the First Amendment. Moreover,
     our rules in no way limit the licensee in the Upper 700 MHz C Block
     from offering its preferred devices and applications to its
     customers; rather, the licensee simply will not be able to force
     customers to use such devices or applications if those customers
     would prefer to use others. [^493] To the extent that a choice of
     device or application implicates First Amendment values at all, we
     think that our requirements promote rather than restrict expressive
     freedom because they provide consumers with greater choice in the
     devices and applications they may use to communicate. Accordingly,
     we believe that Verizon Wireless has not met its burden of
     demonstrating that any First Amendment scrutiny is even applicable
     to our provisions for open platforms for devices and
     applications.[^494]

218. However, even if these rules do implicate the First Amendment, they
     withstand the applicable "intermediate scrutiny" test. The Supreme
     Court has held that "\[a\] content-neutral regulation will be
     sustained under the First Amendment if it advances important
     governmental interests unrelated to the suppression of free speech
     and does not burden substantially more speech than necessary to
     further those interests."[^495] First, our regulations advance an
     important governmental interest unrelated to the suppression of
     free speech. As we note above, there is evidence in the record that
     wireless service providers block or degrade consumer-chosen
     hardware and applications, including Wi-Fi capabilities, for
     reasons that appear unrelated to reasonable network management or
     technological necessity. We believe that imposing requirements
     related to open platforms for devices and applications to the large
     22-megahertz C Block will promote innovation in new technologies
     and products and help ensure that consumers drive handset and
     application choices. This balanced approach is intended to achieve
     the public interest objectives we outline above and thus advances
     important governmental interests.

219. With respect to the second prong of the intermediate scrutiny test,
     the requirements do not burden substantially more speech than
     necessary to further those interests. These rules will only apply
     to a 22-megahertz block of spectrum in the Upper 700 MHz band. We
     impose these requirements in this particular block so that
     innovators and entrepreneurs will be able to develop equipment and
     applications that require substantial bandwidth to realize their
     full potential. As we indicated above, without access to a block
     capable of supporting high data rates and the potential for
     substantial market penetration, the requirements we impose here
     would be less likely to result in rapid innovation at the edge of
     the network.[^496] Furthermore, we limit our requirements to
     licenses large enough to allow the licensees to achieve economies
     of scale that will minimize the ongoing operating costs of
     determining whether particular third-party equipment and
     applications would operate satisfactorily on their networks.
     Significantly, we will not disrupt an existing service because
     there will be no incumbents in the band after the DTV transition.
     In addition, bidders will have notice of these obligations at the
     outset. Finally, we reiterate that our rules do not limit the
     wireless provider's ability to offer its preferred devices and
     applications on its network in the C Block spectrum. Rather, our
     rules ensure that in the C Block spectrum, consumers can choose to
     use devices and applications offered by the C Block licensee or opt
     to use devices and applications offered by others. Such an approach
     is clearly less restrictive than directly limiting the devices and
     applications that the C Block licensee can provide.[^497]

220. In addition, for the same reasons that we discuss above, we reject
     Verizon Wireless's argument that the provisions we adopt today
     constitute an impermissible burden on commercial speech. As a
     threshold issue, we do not believe that the conduct we are
     regulating implicates protected commercial speech. Verizon Wireless
     cites no precedent to support its implicit assertion that it has a
     constitutional right to exclude devices and applications from its
     network that are not part of its branding campaign. We are unaware
     of any precedent, for instance, suggesting that the application of
     *Carterfone* principles to the wireline telephone network violates
     providers' free speech rights. But even if Verizon Wireless does
     have such a right, our regulations pass muster under the test
     governing First Amendment challenges to commercial speech,[^498]
     for the same reasons we find that they withstand intermediate
     scrutiny applicable to content-neutral regulation as described
     above.

221. Finally, we reject Verizon Wireless's arguments that we are setting
     aside this spectrum as a "pioneer's preference block," or providing
     a special bidding credit to new entrants in the upcoming auction
     for this spectrum.[^499] Our imposition of requirements for open
     platforms for devices and applications is intended not to benefit
     particular companies, but consumers, who will have the freedom of
     using any device or application they choose, subject to certain
     conditions. Unlike the Commission's former pioneer preference
     program where a license could be obtained outside of the auction
     process under certain circumstances, the C Block will be subject to
     auction and open to all qualified bidders.

222. *Scope of the requirement for open platforms for devices and
     applications*. Wireless service providers subject to this
     requirement will not be allowed to disable features or
     functionality in handsets where such action is not related to
     reasonable network management and protection, or compliance with
     applicable regulatory requirements.[^500] For example, providers
     may not "lock" handsets to prevent their transfer from one system
     to another. We also prohibit standards that block Wi-Fi access, MP3
     playback ringtone capability, or other services that compete with
     wireless service providers' own offerings. Standards for
     third-party applications or devices that are more stringent than
     those used by the provider itself would likewise be prohibited. In
     addition, C Block licensees cannot exclude applications or devices
     solely on the basis that such applications or devices would
     unreasonably increase bandwidth demands. We anticipate that demand
     can be adequately managed through feasible facility improvements or
     technology-neutral capacity pricing that does not discriminate
     against subscribers using third-party devices or applications. In
     that regard, we emphasize that C Block licensees may not impose any
     additional discriminatory charges (one-time or recurring) or
     conditions on customers who seek to use devices or applications
     outside of those provided by the licensee. Finally, C Block
     licensees may not deny access to a customer's device solely because
     that device makes use of other wireless spectrum bands, such as
     cellular or PCS spectrum.[^501] However, we also note that, in
     accepting a multi-band device for use on its network, a C Block
     licensee is not required to extend the requirement for open
     platforms for devices and applications to other spectrum bands on
     which the provider operates.

223. We emphasize that we are not requiring wireless service providers
     to allow the unrestricted use of *any* devices or applications on
     their networks. In particular, we are mindful of the risks network
     operators face in protecting against harmful devices and malicious
     software. Wireless service providers may continue to use their own
     certification standards and processes to approve use of devices and
     applications on their networks so long as those standards are
     confined to reasonable network management. For example, providers
     are free to choose their air interface technology, and to deny
     service to devices or applications that cannot operate on the same
     technology, since such a restriction permits significant network
     efficiencies without significantly reducing consumer access to
     services and features.[^502] We also recognize that wireless
     providers have legitimate technical reasons to restrict particular
     non-carrier devices and applications on their networks,
     specifically to ensure the safety and integrity of their networks.
     In particular, we believe that it is reasonable for wireless
     service providers to maintain network control features that permit
     dynamic management of network operations, including the management
     of devices operating on the network, and to restrict use of the
     network to devices compatible with these network control features.
     Standards to ensure that network performance will not be
     significantly degraded would also be appropriate.[^503]

224. We will not at this time specify a particular process for C Block
     licensees to develop reasonable network management and openness
     standards, but we will require certain minimum steps to ensure that
     device manufacturers and application developers have the ability to
     design products for this spectrum in a timely manner. Specifically,
     a C Block licensee must publish[^504] standards no later than the
     time at which it makes such standards available to any preferred
     vendors (*i.e.*, vendors with whom the provider has a relationship
     to design products for the provider's network). We also require the
     C Block licensee to provide to potential customers notice of the
     customers' rights to request the attachment of a device or
     application to the licensee's network, and notice of the licensee's
     process for customers to make such requests, including the relevant
     network criteria. We expect that any standards adopted by a C Block
     licensee will be non-proprietary, such that they would be open to
     any third party vendors and that the standards applied to third
     parties will be no more restrictive than those applied to the
     provider's preferred vendors. We believe that standards
     transparency should greatly reduce the potential for manipulative
     "white-listing," *i.e.*, providers creating complex and vague
     qualification and approval processes for third parties before
     approval to attach devices or run applications on the network. In
     addition to publishing any applicable standards, providers must
     establish a reasonable process for expeditiously reviewing requests
     from manufacturers, application developers and consumers to employ
     devices and applications on their networks. If a provider denies
     such a request, it must offer a specific explanation and an
     opportunity for amendment of the request to accommodate the
     provider\'s concerns. Finally, the Commission will ensure the
     sufficient openness of any network management practices and
     selected technical standards in the event the approach outlined
     above proves unsatisfactory.

225. While we are not aware of any current industry-wide standards
     specifically focusing on network management, we encourage the
     development of such standards by an appropriate standard-setting
     body at the earliest possible date. There is a rich history of
     standards-setting bodies whose work draws on industry experts and
     other interested parties to ensure that consumer devices operate
     efficiently in their networks, including, for instance, the Network
     Reliability and Interoperability Council (NRIC)[^505] and the Open
     Mobile Alliance (OMA).[^506] In particular, we encourage the
     industry, in its development of fourth generation (4G) air
     interface standards, to include within those standards reasonable
     network management criteria relating to devices and applications.
     As discussed below, where a provider bases its network restrictions
     on industry consensus standards, we would afford the restrictions a
     presumption of reasonableness in the event that a complaint is
     raised with the Commission.

226. *Application of other regulatory requirements.* We also recognize
     that wireless providers play an important role in supporting public
     safety and homeland security. The measures we are imposing shall
     not override wireless service providers' obligations to ensure that
     their networks and devices comply with applicable regulatory
     requirements (*e.g.*, power and emission limits, E911, CALEA,
     etc.). For instance, if a provider is implementing E911 using a
     handset-based solution, its obligation to connect handsets to its
     network would not extend to handsets that are not capable of
     providing automatic location information to the network.[^507]
     Similarly, if a provider relies on a network-based E911 solution,
     it can reject any devices or applications that would hamper or
     defeat the network-based E911 solution.[^508] If a network provider
     accepts a non-carrier device or application and if the device or
     application subsequently causes a violation of our rules, we will
     apply the same third-party liability provisions as in the wireline
     context.[^509]

227. We find that a wireless service provider's obligations under our
     hearing aid compatibility rule, Section 20.19, are not affected by
     the obligations we impose here. Because equipment manufacturers
     have an independent obligation to satisfy our hearing aid
     compatibility rules,[^510] a wireless service provider may not
     refuse to connect a handset on the grounds that it is not hearing
     aid-compatible.[^511] Under the Commission's rules, the extent of a
     wireless service provider's compliance with such obligations is not
     affected by handsets that connect to its network but that the
     provider does not itself "offer" to its subscribers. Section
     20.19(c)(2)(ii) currently requires that, by February 18, 2008,
     non-nationwide providers subject to the rule must ensure that 50
     percent of their models meet a specified hearing aid compatibility
     standard, calculated based on the number of handsets a provider
     "offers nationwide."[^512] Thus, handsets connected to the network
     but not actually offered by the provider do not alter the extent to
     which the provider has complied with this requirement (although the
     manufacturer of such handsets will be required to meet the 50
     percent requirement).[^513] Other aspects of the rule applicable to
     wireless service providers are similarly tied exclusively to
     handsets offered, such as the obligation to make hearing aid
     compatible handsets available in a provider's retail store and the
     applicability of the *de minimis* exception.[^514] Accordingly,
     because the connection to the network of a handset that a provider
     does not offer has no effect on the provider's compliance with the
     Commission's hearing aid compatibility obligations, the need to
     comply with Section 20.19 of our rules would not justify a
     provider's refusal to connect a device.

228. We decline at this time to alter our hearing aid compatibility
     obligations to specifically impose an obligation on C Block
     licensees to ensure the hearing aid compatibility of handsets that
     are connected to the network but not offered by the provider. Given
     that we have not sought comment on whether such an extension is
     appropriate and, if so, how it should be implemented, and that
     hearing aid compatibility obligations will not in any case be
     imposed in the 700 MHz Band until after the period for developing a
     technical standard has passed, taking such a step now would be
     premature. In any event, as noted above, once hearing aid
     compatibility obligations are extended to the 700 MHz Band, handset
     manufacturers will have independent requirements to offer a certain
     number of hearing aid compatible handsets. We also believe the
     requirements themselves will help ensure that customers may use
     available hearing aid compatible handsets regardless of whether
     they are offered by a wireless service provider or directly by an
     equipment manufacturer, subject only to the reasonable restrictions
     described above. We nevertheless direct the staff to consider in
     its upcoming report assessing the impact of our hearing aid
     compatibility rules whether any additional hearing aid
     compatibility requirements should be imposed on C Block licensees
     as a result of the obligations we adopt here.[^515] Interested
     parties may also file *ex parte* comments in the hearing aid
     compatibility report docket on this issue.[^516]

229. *Enforcement processes*. We intend to vigorously enforce the
     requirement adopted in this section. A person or entity who
     believes that the C Block licensee's refusal to attach a proposed
     device or application is a violation of the rules we adopt here may
     file a complaint pursuant to the Commission's existing enforcement
     rules, including the Commission's formal and informal complaint
     processes, where applicable.[^517] Through review of complaints and
     other relevant information, we will monitor the ability of
     consumers, device manufacturers, and application developers to use
     or develop devices and applications for C Block networks. We will
     take appropriate enforcement action where necessary pursuant to the
     remedies available under our statutory authority as appropriate,
     including forfeitures,[^518] license revocations,[^519] and
     cease-and-desist orders.[^520]

230. We do not see any basis for modifying our existing enforcement
     rules, as proposed by some commenters,[^521] to establish special
     requirements for addressing complaints related to open platforms
     for devices and applications. However, we commit to rule on these
     complaints within 180 days of receipt of such complaints. In
     addition, we believe it would be useful to set forth certain
     presumptions for these complaints. Specifically, once a complainant
     sets forth a *prima facie* case that the C Block licensee has
     refused to attach a device or application in violation of the
     requirements adopted in this section, the licensee shall have the
     burden of proof to demonstrate that it has adopted reasonable
     network standards and reasonably applied those standards in the
     complainant's case. As noted above, where the licensee bases its
     network restrictions on industry-wide consensus standards, we would
     afford the restrictions a presumption of reasonableness. Lastly, we
     note that, as suggested by Google,[^522] interested parties may
     file a petition for declaratory ruling where a particular practice
     has broad market impact. [^523]

##### Use of Dynamic Spectrum Management Techniques

231. [Background]{.underline}. On May 21, 2007, Google filed an *ex
     parte* letter in this proceeding in which it requests that the
     Commission declare that existing rules governing commercial
     spectrum in the 700 MHz Band already permit licensees to institute
     dynamic spectrum management techniques, such as what it terms
     "dynamic auction mechanisms."[^524] Google asserts that licensees
     could use these techniques to institute a practice whereby access
     to spectrum is provided on an as-needed basis, and payments would
     be made as the spectrum is being used.[^525] Google explains that a
     licensee using such mechanisms could recover its costs in obtaining
     the license at the Commission's auction by charging third parties
     for their real-time and place use of the licensed spectrum.[^526]
     In addition, Google requests that the Commission consider whether
     it would be in the public interest to mandate the use of such
     techniques for some, or even all, of the commercial spectrum to be
     auctioned in the 700 MHz Band.[^527]

232. As a further elaboration of its term "dynamic auction mechanism,"
     Google states that "\[w\]hile dynamic auctions can take many forms,
     the central concept is to utilize intelligent devices to resolve
     spectrum access contention."[^528] Google provides examples of a
     "real-time airwaves auction model" and "per-device registration
     fees." Under a real-time airwaves auction model, the licensee could
     bestow the right to transmit an amount of power for a unit of time,
     with the total amount of power in any location being limited to a
     specified cap. This cap would be enforced by measurements made by
     the communications devices. Under this model, bands should be
     allocated in chunks as large as possible for channel capacity
     efficiency reasons, and the airwaves auction would be managed via
     the Internet by a central clearinghouse.[^529] According to Google,
     with a per-device registration process, the communications device
     itself could become a key to the payment process, and that a
     consumer's price to purchase a device could include an airwaves
     registration fee which would grant the ability to gain unlimited
     use at a specified power level. Google also states that the device
     could include collision-detection and back-off features to limit
     congestion.[^530]

233. Google contends that the use of dynamic spectrum management
     practices such as real-time auctions would maximize the use of
     underutilized spectrum resources, reduce barriers to entry, and
     thereby provide access to innovators to offer the consumer new
     applications, devices, and services at reasonable prices. According
     to Google, such practices also would spur broadband
     deployment.[^531]

234. Several commenters oppose, on procedural grounds, our consideration
     of any of Google's proposals at this time. These commenters argue
     that consideration of the proposals in Google's *ex parte* letter
     comes too late in this proceeding and would further delay to the
     700 MHz auction.[^532]

235. CCIA supports Google's request for clarification that the use of
     dynamic spectrum management techniques is consistent with
     Commission rules.[^533] Several parties comment more generally on
     the potential usefulness of dynamic spectrum management techniques,
     including but not limited to what Google references as dynamic
     spectrum auctions.[^534] Commenters that support the use of dynamic
     spectrum management techniques such as real-time auctions claim
     that these techniques would promote innovation by creating a
     transparent, present-value market for spectrum, lowering up-front
     costs, and offering greater opportunities for entrepreneurial
     companies to access the spectrum resource.[^535] These commenters
     also agree with Google that managing spectrum access to the
     licensed spectrum through the use of dynamic auction mechanisms
     could facilitate in the allocation of spectrum for maximum
     efficiency at lower costs to consumers.[^536]

236. Other commenters, however, express concern that Google's specific
     proposal on spectrum management techniques is unclear in many
     respects and does not provide sufficient detail for Commission
     evaluation.[^537] Some of these commenters also contend that,
     depending on what Google is proposing, the Commission may either
     already permit Google and others to use these mechanisms or the
     Commission has prohibited these practices. Verizon Wireless, for
     instance, asserts that, to the extent Google seeks confirmation
     that a licensee is permitted dynamic use of its spectrum, the
     Commission previously has confirmed this right in the flexible use
     rules applicable to commercial 700 MHz Band licensees, wherein
     licensees have the flexibility to reduce noise levels, lower power
     of their own transmissions, collaborate with equipment vendors to
     develop new devices, and engage in secondary market transactions to
     facilitate the shared use of spectrum.[^538] Verizon Wireless,
     AT&T, and CTIA point out that Google's proposal may already be
     permitted under the Commission's spectrum leasing rules, where
     licensees and spectrum lessees are permitted to enter into a
     variety of dynamic forms of spectrum leasing that take advantage of
     advanced technologies that enable shared use of licensed spectrum,
     subject to compliance with specified regulatory requirements.[^539]
     Verizon Wireless notes, too, that the Commission permits licensees
     to establish "private commons" arrangements with spectrum users
     under specified procedures.[^540] In its comments, MetroPCS
     interprets Google's proposal as a scheme to provide "end user
     access on an as-needed basis," and contends that, if so, it raises
     a host of potential legal and regulatory issues in the
     implementation of that business model that Google fails to address
     in its proposal.[^541] To the extent that Google may be proposing
     involuntary or unlicensed use of licensed spectrum, Verizon
     Wireless and CTIA oppose the proposal, stating that this concept
     recently was rejected by the Commission in its "Interference
     Temperature" proceeding.[^542] To the extent dynamic spectrum
     management techniques that Google discusses would be applied to
     commercial spectrum shared with public safety users, such as under
     the Frontline proposal, NPSTC and NENA express concerns that
     critical public safety standards and operations not be
     undermined.[^543]

237. Vanu comments that, as a general matter, it supports any
     rulemakings that can contribute to the goal of making spectrum a
     more accessible commodity, including, but not limited to, the
     concept of dynamic spectrum auctions.[^544] Vanu asserts that the
     key to making dynamic spectrum access work is having a single local
     mechanism for coordinating the real-time spectrum access, and
     emphasizes that, at this time, the licensee must exercise some form
     of centralized control, from a frequency planning and interference
     protection perspective, to ensure compliance with the Commission's
     existing rules.[^545] Vanu asks that the Commission grant licensees
     "the right to offer their spectrum to short term lessees in dynamic
     auction proceedings" under the following conditions: the spectrum
     licensee retains ultimate responsibility for compliance with
     Commission rules; the spectrum licensee is responsible for
     administering a system that can be shown to cause mobile devices
     attached to the licensee's network to comply with FCC regulations
     within the licensee's coverage area; and the spectrum licensee must
     demonstrate mechanisms by which devices capable of operating in the
     dynamic spectrum access environment can be temporarily or
     permanently removed from dynamic spectrum access mode via
     centralized control.[^546]

238. In Google's reply to these comments, Google states that it is not
     asking for the Commission "to attempt to peer into the future and
     assess what specific business models and technologies should be
     encouraged, or even allowed," and instead is indicating that "the
     concept of dynamic spectrum management potentially covers many
     different technologies and commercial models, many of which have
     not been invented."[^547] Google states that, as an example, its
     proposal contemplates that the end-users could gain temporary
     access to the licensed spectrum through these management techniques
     much as cellphone subscribers do today.[^548] With regard to
     NPSTC's and NENA's concerns about protecting public safety
     spectrum, Google states that it does not intend its proposals to
     suggest placing mandatory conditions on 700 MHz Band spectrum
     assigned for public safety use.[^549]

239. As for whether the Commission should mandate the use of "dynamic
     spectrum management techniques" in some or all of the 700 MHz Band,
     the majority of commenters object to any such requirement.[^550]
     These commenters argue that, irrespective of whether Google's
     proposed uses are permissible under the Commission's rules,
     mandating licensees to employ particular spectrum management
     techniques, such as one that Google uses for its own business model
     with regard to such uses or reserving any portion of the commercial
     700 MHz spectrum for the exclusive use of parties seeking to
     implement any type of dynamic spectrum management business plan
     would run counter to the Commission pro-competitive, technology
     neutral, and flexible use policies. AT&T and Qualcomm contend that
     the Commission's market-driven policies have worked over the last
     15 years to encourage the highly competitive wireless environment
     of today and that mandating or restricting uses would run counter
     to that effective policy.[^551] Several commenters express doubts
     about whether it is currently technically feasible to conduct
     dynamic spectrum auctions as proposed by Google.[^552]

240. Commenters supporting such a requirement generally focus on
     mandating such mechanisms specifically on the commercial spectrum
     block designated for the public-private partnership, in the event
     the Commission was to establish such a partnership. For example,
     Frontline proposes that such a partnership licensee be required to
     "implement promptly" such an open auction mechanism. In particular,
     Frontline argues, the licensee should be required to dedicate at
     least 25% of the public-private partnership commercial license to
     real-time auctions for three years, with annual written reports to
     be submitted to the Commission along the lines required of
     experimental licensees.[^553] CCIA supports Google's proposal as
     necessary to generate sufficient revenue to build a nationwide
     broadband network.[^554]

241. [Discussion]{.underline}. In response to Google's first request, we
     affirm that nothing in the Commission's rules generally prohibits
     700 MHz licensees from using dynamic spectrum management practices.
     Dynamic spectrum management techniques, such as those contemplated
     in Google proposals, appear to be in accord with the Commission's
     flexible use policies and secondary market mechanisms, which
     provide licensees with significant flexibility in managing access
     and use of the licensed spectrum in a dynamic and efficient manner
     consistent with the rights given to, and obligations imposed on,
     licensees under the Communications Act and our rules. Based on the
     current record, of course, we cannot address any particular manner
     in which a licensee might implement any such practice, and whether
     any of our specific rules, such as our technical and equipment
     rules, would need to be modified. In response to Google's second
     suggestion, we decline to mandate the use of dynamic spectrum
     management practices for 700 MHz Band licensees.

242. In adopting flexible spectrum use policies for the commercial
     spectrum in the 700 MHz Band, and in establishing policies and
     rules that facilitate the development of secondary markets in
     spectrum usage rights, the Commission has sought to remove
     regulatory impediments in order to enable more efficient use of
     licensed spectrum.[^555] Under existing rules, 700 MHz Band
     licensees have wide latitude to adopt and implement spectrum
     management techniques to manage access to and use of their
     spectrum, so long as they are consistent with the Commission's
     rules relating to the spectrum and the prevention of harmful
     interference. As a matter of practice, licensees continually devise
     and update the types of advanced devices they deploy, and improve
     the management of the dynamic spectrum use between and among their
     subscribers, consistent with the applicable service rules and their
     respective business models. Further, as Google notes, the concept
     of dynamic spectrum management potentially covers many different
     technologies and commercial models, many of which have not been
     invented.[^556]

243. In the Commission's Secondary Markets proceeding, the Commission
     has taken several actions to enable more dynamic access and use of
     spectrum by licensees and other spectrum users, facilitating
     spectrum use across various dimensions (frequency, space, and time)
     and spectrum access employing advanced technologies.[^557] In the
     *Secondary Markets Second Report and Order*, the Commission took
     specific steps, which apply to the 700 MHz Band, to facilitate the
     development of spectrum usage arrangements that employ advanced
     technologies that can more efficiently share use of licensed
     spectrum.[^558] In particular, the Commission clarified that
     licensees and spectrum lessees may enter into a wide variety of
     dynamic spectrum leasing arrangements that enable users to share
     use of the licensed spectrum based on the particular parameter and
     arrangements that the licensee and spectrum lessee(s) have agreed
     upon.[^559]

244. As the Commission explained, a licensee and spectrum lessee may,
     under existing rules, enter into dynamic spectrum leasing
     arrangement in which use of the same spectrum is shared between
     both the licensee's and spectrum lessee's users by employing
     opportunistic devices. In another variation, a licensee could enter
     into a spectrum leasing arrangement that gives one spectrum lessee
     access to the spectrum on a priority basis, while also leasing use
     of the same spectrum to another spectrum lessee on a lower-priority
     basis, with the requirement that the lower-priority spectrum lessee
     employ certain opportunistic technology to avoid interfering with
     the priority spectrum lessee. The flexibility provided under our
     dynamic spectrum leasing rules permits arrangements that could
     facilitate opportunistic use by parties operating at the same power
     level and under similar technical parameters as the licensee, or
     they could promote such use at lower power levels.[^560] In another
     secondary markets arrangement permitted under our rules, licensees
     and spectrum lessees may, under certain specified conditions, make
     spectrum available to individual users or groups of users through
     "private commons" arrangements that do not fit squarely within the
     traditional end-user arrangements associated with the licensee's
     (or spectrum lessee's) subscriber-based services and network
     infrastructures or under the secondary markets spectrum leasing
     policies and rules.[^561]

245. These secondary market policies and rules are intended to
     facilitate the use of advanced technologies, including "smart" or
     "opportunistic" devices, that have the potential to increase access
     and use of unused licensed spectrum.[^562] Although the Commission
     has not endeavored to provide an exhaustive list of all the
     possible arrangements that could involve the use of opportunistic
     devices and the management of spectrum sharing among users, the
     Commission's existing rules provide significant flexibility to
     licensees and spectrum lessees to take advantage of advanced
     technologies in the access to and sharing of spectrum use, pursuant
     to the terms and conditions that licensees and spectrum lessees
     establish, so long as they fall within the licensee's spectrum
     usage rights under the license authorization and are not
     inconsistent with applicable technical and other regulations
     imposed by the Commission to prevent harmful interference to other
     licensees.[^563]

246. Based on the current record, of course, we cannot address any
     particular manner in which a licensee might seek to implement any
     of the types of dynamic spectrum management techniques suggested by
     Google, and whether any of our specific rules, such as our
     technical and equipment rules, would need to be modified in that
     instance.[^564] Indeed, Google is not asking the Commission to
     assess what specific business models and technologies should be
     allowed.[^565] We also are not addressing any possible regulatory
     classification issues that might arise from a licensee's provision
     of spectrum access using dynamic spectrum management
     techniques.[^566]

247. We will not mandate that licensees employ the particular types of
     spectrum management mechanisms that Google proposes. Consistent
     with many commenters on this point, we conclude that licensees
     should retain significant flexibility with regard to the precise
     mechanisms they utilize when it comes to managing spectrum access
     to the network and among users. Mandating any particular dynamic
     spectrum management mechanism on a licensee may impose
     unanticipated or unnecessarily burdensome requirements on a
     particular licensee, including requirements for the network, and
     the devices deployed on it, that may not be consistent or
     appropriate for that licensee's business model. Of course, to the
     extent any licensee believes that the specific spectrum management
     mechanisms that Google proposes is appropriate or preferable, it is
     free to choose to utilize these mechanisms, consistent with our
     guidance above.

248. Finally, we decline to adopt Vanu's request that the Commission
     establish specific conditions for the particular type of dynamic
     auction proceedings it proposes. While we agree that licensees (or
     spectrum lessees) bear the responsibility for ensuring that users
     and devices using licensed spectrum comply with the rules that
     apply to the particular spectrum in which they operate,[^567] we
     are in no position, based on the record before us, to make any
     specific determination by rule in this proceeding along the lines
     that Vanu proposes.

##### Protection of 700 MHz Public Safety Operations 

249. [Background]{.underline}. The initial rules for the Upper 700 MHz
     Band were adopted in part to ensure that appropriate interference
     protection was provided to 700 MHz public safety operations.
     Specifically, the Commission adopted strict out-of-band emission
     (OOBE) limits for C and D Block licensees -- *i.e.,* requiring C
     and D Block base stations and mobiles/portables to attenuate their
     emissions by 76 + 10log P and 65 + 10logP, respectively, into a
     6.25 kHz bandwidth within the public safety bands. In addition, the
     Commission placed guard bands between the public safety bands and
     the C and D Blocks to prevent C and D Block transmissions from
     causing receiver overload interference to public safety operations
     and required guard band licensees to coordinate with public safety
     entities to minimize the likelihood of such interference.[^568] In
     adopting our new band plan for the 700 MHz Band, we must take all
     necessary steps to ensure continued protection of the public safety
     bands from C and D Block transmissions.

250. [Discussion]{.underline}*.* We shall continue to require Upper 700
     MHz Band C Block licensees to meet the 76 + 10 log P and 65 + 10
     log P OOBE limits with respect to the public safety bands. Both
     Alcatel-Lucent and Ericsson suggest that we adopt the less
     stringent 43 + 10 log P OOBE limit to protect the public safety
     broadband block from commercial broadband transmissions.[^569]
     However, we agree with Motorola that the possible use of similar
     architectures by public safety and commercial broadband systems
     will not ensure interference protection to public safety broadband
     operations. [^570] Furthermore, given the steps the Commission has
     taken to provide increased protection to 700 MHz public safety
     operations, we do not believe that the 43 + 10 logP OOBE limit,
     used to prevent 700 MHz commercial broadband systems from
     interfering with one another, should be employed as the out-of-band
     emission limit to protect 700 MHz public safety broadband systems
     from interference. We shall therefore retain the existing 76 + 10
     log P and 65 + 10 log P OOBE limit for C Block licensees.

251. We will not require the Upper 700 MHz Band D Block licensee,
     however, to meet OOBE limits with respect to the public safety
     broadband spectrum. We reach this conclusion because the D Block
     licensee, through the 700 MHz Public/Private Partnership, will
     operate on adjacent spectrum and use the same infrastructure as the
     public safety broadband licensee, and meeting OOBE was a measure
     designed to protect public safety operations from interference from
     unaffiliated commercial systems. The D Block licensee will still,
     however, be required to satisfy the 76 and 65 + 10 log P OOBE
     limits with respect to the narrowband portion of the public safety
     spectrum. Finally, we shall not require the D Block licensee and
     Public Safety Broadband Licensee to coordinate with one another to
     address potential overload interference, even though such licensees
     will be authorized on adjacent spectrum, because under the
     public/private partnership, as discussed above, the D Block
     licensee and Public Safety Broadband Licensee will be sharing the
     same infrastructure.

##### Licensee Eligibility

252. [Background.]{.underline} In the *700 MHz Further Notice*, we
     requested comment on the proposal presented by Media Access Project
     and PISC to encourage the entry of new competitors by excluding
     incumbent local exchange carriers (ILECs), incumbent cable
     operators, and large wireless carriers from eligibility for
     licenses in the 700 MHz Band.[^571] We also sought comment on
     whether eligibility to hold one or more blocks of the Upper 700 MHz
     C Block spectrum should be limited to parties not affiliated with
     existing wireline broadband service providers, including both DSL
     and cable providers, or, alternatively, limited to parties not
     affiliated with in-region wireline broadband service
     providers.[^572]

253. In all but one of the proceedings in which the Commission
     considered eligibility restrictions for licenses in recent years,
     it has imposed such restrictions only when open eligibility would
     pose a significant likelihood of substantial competitive harm in
     specific markets and when eligibility restrictions were an
     effective way to address the harm.[^573] This standard considers
     factors beyond market power, such as economic incentives, entry
     barriers, and potential competition.[^574]

254. PISC is virtually alone in advocating excluding otherwise qualified
     applicants from eligibility for 700 MHz Band licenses based on
     their status as incumbent service providers.[^575] PISC argues that
     the current market for wireless service and broadband is
     concentrated and that incumbents have little incentive to build a
     wireless broadband network that would compete directly with their
     existing wireless or broadband services. In connection with
     advocating a bidding credit for new entrants as a potential
     response to these market conditions, PISC notes the difficulty in
     properly prohibiting relationships between new entrants and parties
     that should be excluded from receiving a bidding credit.[^576] PISC
     does not propose a definition of all the parties that it believes
     should be excluded from eligibility. However, in arguing that the
     Commission should prohibit relationships between new entrants and
     entities that it asserts have incentives to exclude new
     competitors, PISC appears to suggest that ILECs, cable operators
     and large wireless carriers should be ineligible to acquire 700 MHz
     Band licenses.[^577] Frontline also argues that the markets for
     wireless service and broadband service are concentrated and submits
     an economic study supporting its contentions.[^578] Frontline,
     however, does not advocate restricting the applicants that may be
     eligible for licenses. Rather, Frontline proposes, and PISC
     supports, mandating open access rules to address market
     concentration.[^579] We address potential open access requirements
     elsewhere. CCIA proposes that, rather than restrict incumbents from
     eligibility for licenses absolutely, the Commission should mandate
     that in-region wireline incumbents be permitted to hold licenses
     only through structurally separate affiliates.[^580]

255. A variety of commenters strongly oppose eligibility restrictions
     for a host of reasons.[^581] Opponents contend that the record does
     not provide data sufficient to meet our standard for imposing an
     eligibility restriction.[^582] Parties argue to the contrary that
     there is ample and growing competition in wireless broadband.[^583]
     Several parties argue that restricting incumbents would run
     directly contrary to the Commission's goal of assigning licenses to
     the parties that value the licenses the most.[^584] In many cases,
     certain commenters assert, that party may well be an incumbent
     service provider, including either a rural provider or a national
     carrier.[^585]

256. [Discussion.]{.underline} On the present record, we do not find a
     significant likelihood of substantial competitive harm in a
     specific market, and therefore we decline to impose eligibility
     restrictions for the licenses in the 700 MHz Band. At present, it
     appears most likely that the commercial non-Guard Band spectrum in
     the 700 MHz Band will be used for the provision of broadband
     services. Accordingly, we analyze whether open eligibility would
     pose a significant likelihood of substantial competitive harm in
     the broadband services market. The record does not demonstrate that
     open eligibility is likely to result in substantial competitive
     harm in the provision of broadband services. First, there are
     numerous actual and potential broadband service providers.
     Currently, consumers can obtain broadband service from wireline
     providers, cable companies, satellite, and wireless providers,
     including Wireless Internet Service Providers (WISPs) that use
     unlicensed spectrum.[^586] While ILECs and incumbent cable
     operators may lead in the provision of broadband internet access at
     the present, new entrants wishing to offer wireless broadband
     internet access have numerous potential platforms to use for a
     wireless "third pipe," both among different 700 MHz Band blocks and
     among other wireless bands. There is potential for additional entry
     into the broadband market by carriers operating on spectrum in the
     Wireless Communications Services (WCS), Advanced Wireless Service
     (AWS), Broadband Radio Service (BRS), and 3650-3700 MHz
     bands.[^587] Further, the Commission has facilitated deployment of
     broadband service to be offered over electric lines.[^588]
     Satellite, wireless, and broadband over power lines (BPL) have been
     used to provide broadband services on a widespread basis for a
     relatively short period of time, and the number of high speed lines
     deployed by these technologies has increased substantially.[^589]
     Between June 2005 and June 2006 the number of high speed lines
     offered by satellite, wireless, and BPL technologies increased by
     over 1,000 percent, and as of June 2006 reflect approximately 18
     percent of all high speed lines.[^590] Given the number of actual
     wireless providers and potential broadband competitors, it is
     unlikely that ILECs, cable providers, or large wireless carriers
     would be able to behave in an anticompetitive manner as a result of
     any potential acquisition of 700 MHz spectrum. Moreover, existing
     competition, such as that between ILECs and cable providers with
     respect to broadband internet access services, limits any one
     party's incentives to attempt unilaterally to block new entrants
     from acquiring 700 MHz spectrum. Absent a monopoly on broadband
     service, an incumbent attempting to block new entrants would bear
     all the costs of doing so, while other incumbents would capture
     much of the gain.

257. Also, we find that the revised band plan for the 700 MHz Band and
     the associated buildout rules will help discourage foreclosure in
     the market. First, this spectrum is being auctioned in five
     spectrum blocks ranging in size from a 6-megahertz unpaired block
     to a 22-megahertz block (comprised of paired 11-megahertz blocks)
     and over various geographic market sizes ranging in size from CMAs
     to REAGs. Given the number and diversity of available licenses, it
     is unlikely that any ILEC, cable company, or large wireless carrier
     would be able to acquire enough spectrum to foreclose the broadband
     market to potential competitors, even if it should attempt to do
     so. Second, the build out requirements adopted in this Second
     Report and Order will help prevent warehousing, requiring auction
     winners to bear the cost of providing service, in addition to the
     cost of acquiring licenses, in order to prevent entry by potential
     competitors.

258. There are potential competitive benefits to not imposing the
     proposed eligibility requirement. Allowing ILECs and cable
     companies to hold 700 MHz Band licenses would provide opportunities
     for these carriers to extend their services to rural and
     hard-to-serve areas where transmission by cable or wire may be
     prohibitively expensive. Also, as reflected by many comments, the
     proposed eligibility restriction would create impediments to small
     and rural carrier acquisition of spectrum and deployment of
     broadband services.[^591] These carriers may have limited access to
     capital, and the proposed eligibility restriction would prevent the
     formation of alliances, partnerships, and joint ventures that could
     provide these firms with needed capital.

259. We also note that restricting eligibility for licenses without
     adequate justification could harm the public interest. The use of
     competitive bidding to assign licenses, such as the commercial 700
     MHz licenses, serves the public interest by assigning licenses to
     the parties that value the licenses the most. Such parties are
     presumed to be most likely to put the public spectrum resource to
     its most effective use.[^592] If, however, we exclude categories of
     potential licensees, we risk reducing the likelihood that the party
     valuing the license the most will win the license and put it to use
     for the benefit of the public. This unavoidable uncertainty in
     assessing prospective competitive harms is heightened here by the
     substantial spectrum capacity being made available and the
     uncertainty regarding how that spectrum capacity ultimately will be
     used.

#### 700 MHz Guard Bands

##### Treatment of Reconfigured A Block

260. [Background]{.underline}. In setting forth the rules governing the
     Upper 700 MHz Band, the Commission indicated that a primary goal
     was to ensure that 700 MHz public safety operations are protected
     from harmful interference from commercial systems in adjacent
     bands.[^593] Because the occurrence and severity of interference
     increases as an interfering source comes spectrally closer to a
     receiver's assigned frequencies, the Commission was particularly
     concerned about the effect of commercial operations on adjacent
     public safety narrowband systems.[^594] To address one form of
     interference to public safety systems -- receiver overload[^595] --
     the Commission established the 700 MHz Guard Bands between
     commercial and public safety spectrum. The Commission also adopted
     a package of stringent interference protections modeled on the
     interference standards used for the 700 MHz public safety
     spectrum.[^596] Specifically, the Commission required that
     operations in the Guard Bands must adhere to the rigorous
     out-of-band emission criteria---adjacent channel power (ACP)
     limits---used by 700 MHz public safety operations.[^597] The
     Commission also required that spectrum users in the Guard Bands
     employ frequency coordination procedures in cooperation with 700
     MHz public safety coordinators,[^598] and prohibited the use of
     cellular architectures in the Guard Bands.[^599]

261. In their comments, Access Spectrum/Pegasus and Arcadian argue that
     in the event that the Commission chooses to reconfigure the Guard
     Band A Block, the Commission should apply to the reconfigured A
     Blocks the same technical rules that apply to other commercial
     licensees.[^600] Access Spectrum/Pegasus argue that in the case
     where Guard Band A Block transmitters are no longer next to public
     safety narrowband channels,[^601] transmitter power should be
     attenuated out-of-band by at least 43 +10log P dB, and that, in
     order to protect public safety wideband and narrowband, A Block
     transmissions should be attenuated to at least 76 + 10log P dB, in
     a 6.25 kilohertz bandwidth for base stations, and 65 + 10log P dB
     for mobile units.[^602] According to this proposal, which assumes
     that the A Block is adjacent to the Public Safety Broadband
     allocation, A Block licensees would need to meet the 76
     +10logP/65+10logP attenuation requirement either 1 or 1.5 megahertz
     into the public safety broadband block depending on whether the
     Commission permits wideband operations in the public safety
     broadband spectrum.[^603] Access Spectrum/Pegasus argue that by
     applying these emissions limits, the Commission would promote
     public-private partnerships, as well as adequately protect public
     safety spectrum from interference.[^604]

262. [Discussion]{.underline}. Because the reconfigured Guard Band A
     Block will now be located at 757-758/787-788 MHz between the Upper
     700 MHz Band C and D Blocks, and will no longer be adjacent to
     public safety narrowband spectrum, we conclude that it is no longer
     necessary to apply the ACP emissions criteria to the A Block.
     Instead, we will apply OOBE limits, which are consistent with
     emission limits applicable to the C Block. Thus, A Block licensees
     are required to attenuate out-of-band by at least 43 +10log P dB.
     Further, as explained above, we continue to believe that we should
     continue to apply heightened out-of-band emissions criteria in
     order to provide adequate protection to public safety. Therefore A
     Block transmitter power must be attenuated to at least 76 + 10log P
     dB, in a 6.25 kilohertz bandwidth for base stations at 763 MHz, and
     65 + 10log P dB for mobile units at 793 MHz. We agree with Access
     Spectrum/Pegasus that reconfiguring the public safety block and
     applying OOBE rules that are consistent with those applicable to
     the C Block will help to promote more efficient use of the 700 MHz
     Band and could lead to the combined use of multiple spectrum blocks
     for the provision of broadband services.[^605] We find that the
     OOBE limits we are applying here are readily achievable by the A
     Block licensees, yet will provide appropriate out-of-band
     protection to other Upper 700 MHz operations. Accordingly, we will
     no longer require the reconfigured A Block licensees to comply with
     the ACP limits set forth in Section 27.53(d) of our rules.

263. *Frequency Coordination and the Cellular Architecture Prohibition*.
     In addition to imposing the more stringent OOBE limits, the *Upper
     700 MHz Second Report and Order* required that guard band users
     employ frequency coordination procedures in cooperation with 700
     MHz public safety coordinators, and prohibited the use of cellular
     architectures in the Guard Bands.[^606] Given the elevated risk of
     receiver overload interference to public safety posed by the Guard
     Bands' adjacency to narrowband operations, the Commission felt that
     it was advisable to provide a process through which a Guard Bands
     licensee and a public safety licensee could select operating
     frequencies that are as far from one another as possible, thereby
     minimizing the risk of harmful interference to the public safety
     operation.[^607] The Commission concluded that frequency
     coordination was an essential requirement for Guard Bands users
     given the spectral proximity of public safety operations.[^608]
     Further, because the Commission required such frequency
     coordination, the Commission restricted operation in the Guard
     Bands to entities that do not use cellular system
     architectures.[^609] Interference between public safety operations
     and systems using similar architectures---*e.g*., high-power base
     stations providing coverage to a large geographic area---can
     generally be resolved through the required frequency coordination
     without much difficulty. Systems employing cellular architectures,
     however, create a high density of potential interference sources to
     public safety operations.[^610] The Commission concluded that
     attempting to remedy such interference would be a complex,
     difficult task of coordinating frequencies between each commercial
     base station, and the various public safety systems operating in
     the area.[^611] The Commission therefore prohibited the use of
     cellular architectures in the Guard Bands spectrum.

264. Access Spectrum/Pegasus argue that we should no longer apply the
     stringent coordination requirements,[^612] and Access
     Spectrum/Pegasus and Arcadian argue that the prohibition on
     cellular architecture should be removed.[^613] Access
     Spectrum/Pegasus assert that deployment across the 700 MHz Band
     will likely be low-site, low-power systems, and that maintaining
     the cellular architecture prohibition will prevent the deployment
     of next-generation broadband operations, including any network that
     may be shared with public safety operations.[^614] Because the
     reconfigured Guard Band A Block will no longer be located adjacent
     to public safety spectrum, we find that it is no longer necessary
     to apply our frequency coordination requirement, and, consequently,
     our prohibition against cellular architecture with respect to A
     Block licenses. We believe that continuing to apply such rules
     would interfere with the ability of licensees and other users of A
     Block spectrum to deploy broadband service, enter into arrangements
     with other 700 MHz commercial entities, as well as prevent any
     efficiencies or economies of scale that may result from network
     sharing. Accordingly, we will no longer apply Sections 27.601(d)
     and 27.2(b) to reconfigured A Block licenses.[^615]

265. *Removal of the 746-747 MHz* *A Block Guard Band.* The power limit
     for base stations operating in the Lower and Upper 700 MHz Band
     commercial spectrum is 1 kW ERP.[^616] Base stations in the Lower
     700 MHz Band, however, may operate at power levels up to 50 kW ERP
     provided they meet a power flux density (PFD) limit of 3 mW/m^2^ on
     the ground within 1 kilometer of the station.[^617] Through the use
     of this PFD limit, a transmission from a 50 kW ERP base station
     would appear, to an adjacent band receiver operating in the
     vicinity of the base station, like a transmission from a 1 kW ERP
     base station operating without a PFD constraint. It is therefore
     unnecessary to retain the A Block Guard Band at 746-747 MHz to
     shield Upper 700 MHz Band C Block operations from interference from
     high power operations allowed in the Lower 700 MHz Band
     C Block.[^618] Moreover, if the winner of the 22 MHz Upper 700 MHz
     Band C Block were concerned about potential interference from
     higher power operations in the adjacent Lower 700 MHz Band C Block
     despite the PFD limit, it would have more than ample spectrum to
     employ an internal guard band.[^619] We also note that the 746-747
     MHz Guard Band was not adopted, as Ericsson implies, "to create a
     buffer between incompatible \[commercial\] spectrum blocks."[^620]
     Rather, the Commission allocated the Guard Bands "to ensure that
     the public safety bands are protected from interference,"[^621] and
     it placed a 1-megahertz block at 746-747 MHz "to allow for a paired
     block" architecture.[^622]

##### Treatment of Reconfigured B Block

266. [Background]{.underline}. While the reconfiguration of the Upper
     700 MHz Band and placement of the Guard Band A Block between
     commercial spectrum blocks permit us to liberalize the technical
     rules applicable to A Block licensees, similar relaxation of
     technical requirements for the reconfigured Guard Band B Block is
     not feasible as it remains adjacent to public safety narrowband
     spectrum. We received no comment supporting additional flexibility
     for future operations in the reconfigured B Block in this context.

267. [Discussion]{.underline}. We find that it would not be prudent to
     make any changes that would introduce the possibility of increased
     interference to adjacent public safety operations. Because all
     existing Guard Band A and B Block licensees, with the exception of
     grandfathered PTPMS II licenses discussed below, are voluntarily
     repacking their spectrum into a new A Block, the reconfigured B
     Block allocation will be vacant for the time being. Any future
     operations in the Guard Band B Block will continue to be bound by
     our existing Guard Bands technical rules requiring frequency
     coordination and prohibiting the use of cellular system
     architectures. These continued technical restrictions on the B
     Block can be fully taken into account as the Commission considers
     future uses for the block. We will, however, create additional
     flexibility by providing operations in the reconfigured B Block the
     option of employing either the existing ACP limits set forth in
     Section 27.53(d) of the Commission's rules, or the same OOBE limits
     used by other commercial licensees to protect public safety, *i.e.*
     76 + 10log P dB per 6.25 kHz for base stations, and 65 + 10log P dB
     per 6.25 kHz for mobile units.[^623]

##### Treatment of PTPMS II Licenses

268. [Background]{.underline}. As discussed above, PTPMS II is not
     participating in the "repacking" of incumbent Guard Bands licenses,
     and instead has chosen to retain its licenses under the terms of
     their current authorizations.[^624]

269. [Discussion]{.underline}. To ensure interoperability in border
     areas with Canada we are modifying the PTPMS II licenses by
     relocating its Guard Band A Block license to 757-758 MHz and
     787-788 MHz along with the "repacked" Guard Band A Block licenses,
     and by shifting its Guard Band B Block licenses down 1 megahertz to
     761-763 MHz and 791-793 MHz.[^625] Although PTPMS II has elected to
     remain under the existing terms of its licenses, we conclude that,
     for purposes of regulatory parity, we should apply to the PTPMS II
     A Block the same technical rules that will apply to the
     reconfigured A Block licenses. As noted, the new spectral position
     of the A Block between the commercial Upper 700 MHz Band C and D
     Blocks makes it no longer necessary to apply stringent Guard Bands
     technical rules to such licenses. Because the PTPMS II A Block will
     be situated similarly to the reconfigured A Block operations, we
     find that it is in the public interest to apply the same technical
     rules.

270. The PTPMS II B Block licenses, however, will remain adjacent to the
     public safety allocation in two markets. We continue to find it
     necessary to ensure that public safety operations remain free from
     harmful interference from commercial systems. Accordingly, we
     conclude that the existing B Block technical rules continue to
     apply to PTPMS II's B Block licenses given their adjacency with
     public safety spectrum. We note that although the PTPMS II B Block
     licenses will occupy the same spectrum as the D Block in two
     markets, we do not have the same concerns regarding interference by
     the D Block because the D Block will operate in concert, and share
     facilities, with the Public Safety Broadband Licensee pursuant to
     the 700 MHz Public/Private Partnership discussed in this order.

##### License Terms

271. [Background]{.underline}. In the *700 MHz Report and Order*, we
     revised the license terms for non-Guard Band commercial spectrum in
     the 700 MHz Band from January 1, 2015 to February 17, 2019.[^626]
     We did not, however, apply to the Guard Bands the same revised
     license term.[^627]

272. [Discussion]{.underline}. In light of the changes we are making to
     the Upper 700 MHz band plan, we find that revision to the license
     term with respect to the reconfigured Guard Band A Block is
     appropriate in order to provide regulatory parity with other
     commercial licensees and to provide A Block licensees with a
     reasonable opportunity to deploy systems under their revised
     technical rules. Accordingly, the license terms for the A Block
     licenses, including the PTPMS II A Block, shall extend to 10 years
     after the end of the DTV transition, through February 17, 2019, and
     subsequent renewal terms will be 10 years.

273. With respect to the incumbent PTPMS II B Block operations, however,
     we do not believe it is in the public interest to permit these
     grandfathered B Block licensees to operate indefinitely at the
     critical juncture between the public safety broadband spectrum and
     the D Block spectrum, preventing the latter from deploying a
     ubiquitous nationwide footprint. Therefore, we will retain the
     existing license terms for the grandfathered PTPMS II B Block
     licenses, rather than extending them to match the other commercial
     licensees. Furthermore, we do not provide a renewal expectancy to
     the PTPMS II B Block licenses, the terms of which will expire in
     2015.

### Auctions-Related Issues

#### Anonymous Bidding

274. [Background.]{.underline} In the *700 MHz Further Notice*, we
     sought comment on whether to use anonymous bidding (or "limited
     information") procedures in the auction of new 700 MHz licenses, in
     order to deter anticompetitive behavior that may be facilitated by
     the release of information on bidder interests and
     identities.[^628] Current competitive bidding rules permit
     withholding information on bidder interests and identities prior to
     the close of the auction.[^629] Accordingly, the Commission could
     wait to make a final decision regarding the information procedures
     for the auction as part of the pre-auction process, in which
     specific procedures are adopted after seeking public comment on
     proposed auction designs. In prior auctions, the Commission has
     adopted procedures, made contingent on pre-auction assessments of
     likely competition in the auction, for withholding public release
     until the close of the auction of: (1) bidders' license selections
     on their short form applications; and (2) the identities of bidders
     placing bids.[^630]

275. We noted in the *700 MHz Further Notice* that revealing all
     information during the auction process potentially may result in
     harms as well as benefits.[^631] Those harms and benefits depend in
     part on how licenses offered in the auction will be used.
     Accordingly, we expressly sought comment on whether the potential
     to use new 700 MHz Band licenses to create alternatives to existing
     broadband networks increases the benefits from anonymous bidding by
     making it harder for existing providers to identify and impede the
     efforts of potential new entrants to win.[^632] We also sought
     comment on whether the lack of readily available technologies for
     use in the band, relative to existing broadband networks in other
     bands, reduces the potential benefit to bidders and the public of
     bidders using information about the identities of other bidders to
     guess what technologies will be deployed.[^633]

276. In prior auctions, the Commission has adopted anonymous bidding
     procedures and made final implementation of those procedures
     contingent on a pre-auction measure of the likely competitiveness
     of the auction. More specifically, the Commission has assessed
     likely competition in the auction based on the level of upfront
     payments, which establish the eligibility of auction participants
     to bid on licenses.[^634] The level of upfront payments roughly
     reflects the likely level of competition for licenses offered in
     the auction. Assuming other factors are consistent, a higher level
     of competition in the auction may reduce the potential for bidders
     to use bidding information in an anti-competitive manner.
     Consequently, we asked commenters to address whether we should make
     the use of anonymous bidding in the 700 MHz auction contingent on a
     pre-auction assessment of likely competition in the auction, in
     light of the balance of potential harms and benefits from releasing
     information on bidder identities and interests during the auction
     of new 700 MHz Band licenses.[^635] We further sought comment on
     the appropriate method of assessing likely competition in the 700
     MHz Band auction.[^636] Finally, we sought comment on whether the
     use of anonymous bidding should be a factor in determining the
     final band plan, given the potential importance of the band and the
     band plan with respect to competition in broadband services.[^637]

277. We received comments both in support of and in opposition to the
     use of anonymous bidding in the 700 MHz Band auction. Commenters
     supporting anonymous bidding in response to the *700 MHz Further
     Notice* elaborate on arguments made in this proceeding prior to the
     *700 MHz Further Notice.* Some parties have previously asserted
     that anonymous bidding for new 700 MHz licenses is critical to
     promoting competitive entry in wireless broadband.[^638] In
     response to the *700 MHz Further Notice*, supporters contend that
     anonymous bidding would protect bidders against the possibility of
     retaliatory or "blocking" bids.[^639] Frontline asserts that the
     Commission should use anonymous bidding in the auction of 700 MHz
     Band licenses because the benefits of disclosing bidding
     information will be limited but the harms will be
     substantial.[^640] Google notes that anonymous bidding such as the
     Commission proposes is "not uncommon" in commercial auctions.[^641]
     Another commenter argues from his experience that anonymous bidding
     is necessary to "level the playing field" between large and small
     bidders.[^642] Verizon Wireless notes that "\[i\]mposing
     limitations on the release of bidder information prior to and
     during the course of an auction ensures that bidders will be
     appropriately focused on the licenses and their value, not on other
     bidders and their bidding strategies."[^643] In an attempt to
     buttress the logical and anecdotal arguments supporting anonymous
     bidding, PISC submitted studies by Gregory Rose that purport to
     demonstrate that incumbents engaged in retaliatory bidding and used
     strategies to block new entrants in Auction No. 66, the recent
     Commission auction of AWS-1 licenses.[^644] With respect to how to
     implement anonymous bidding, several supporters contend that the
     use of anonymous bidding should not be contingent on a pre-auction
     assessment of likely competition. PISC contends that participants
     in Auction No. 66 manipulated the Commission's pre-auction
     assessment in Auction No. 66,[^645] while Verizon Wireless contends
     that the assessment is insufficient and potentially subject to
     manipulation.[^646]

278. A number of commenters contend that anonymous bidding would
     disadvantage smaller bidders.[^647] These commenters argue that
     smaller bidders rely on information regarding the identity of other
     parties placing bids to assess the likely post-auction market, with
     respect to technologies likely to be deployed and potential
     partnerships with other licensees, and to provide sufficient
     assurances to their financiers regarding market valuations.[^648]
     RTG notes that bidders are subject to other sanctions for the
     anti-competitive behavior that anonymous bidding seeks to
     prevent.[^649] MetroPCS states that it relies on information
     regarding parties interested in particular markets to assess its
     ability to differentiate itself from potential competitors in a
     market.[^650] Several opponents of anonymous bidding deny any
     inference that their bidding in past auctions was motivated by
     "blocking" strategies.[^651]

279. A few opponents of anonymous bidding suggest revisions to the
     Commission's procedures, in the event that the Commission employs
     anonymous bidding. Alltel proposes that the Commission should
     disclose round-by-round changes in the bidding eligibility of
     auction participants.[^652] USCC proposes that the Commission make
     the use of anonymous bidding contingent on a pre-auction assessment
     of likely competition based on the eligibility ratio, as it did in
     Auction No. 66.[^653] Further, USCC contends that the eligibility
     ratio of 3.0 used in Auction No. 66 was unnecessarily high and
     should be lowered to 2.5.[^654]

280. [Discussion]{.underline}. Based on the current record, we conclude
     that the public interest will be served if the upcoming auction of
     700 MHz Band licenses for which we establish service rules today is
     conducted using anonymous bidding procedures. We further conclude,
     based on the current record, that implementation of anonymous
     bidding procedures during the upcoming auction of new 700 MHz Band
     licenses should not be contingent on a pre-auction measurement of
     likely competition based on an eligibility ratio. We find that the
     record in this proceeding indicates that implementing anonymous
     bidding procedures will reduce the potential for anti-competitive
     bidding behavior, including bidding activity that aims to prevent
     the entry of new competitors.[^655] The Commission has delegated to
     the Wireless Bureau authority to establish auction procedures based
     on comment solicited shortly prior to the auction.[^656] Consistent
     with that authority, we delegate to the Wireless Bureau the
     discretion to adopt specific procedures implementing these
     conclusions, taking into account the further record developed
     during our standard pre-auction process for establishing auction
     procedures and the possibility that alternative licenses may be
     offered at auction as described below.

281. As the Commission noted prior to the AWS-1 auction (Auction No.
     66), in the years since the Commission's simultaneous multiple
     round auction design was developed, economists have observed, as a
     potential drawback to disclosing information, that bidders could
     use the information revealed over the multiple rounds to signal
     each other and implement a division of the licenses at lower than
     market prices, and in some cases, to retaliate against competing
     bidders.[^657] Since some types of signaling and coordinated
     bidding are very hard to detect in auction data, making it
     difficult to pursue enforcement actions after such alleged activity
     has occurred, it is important to reduce the potential for such
     collusive bidding behavior to occur in the first place, in
     circumstances in which we believe collusion is most likely to
     occur. In addition, it is important to reduce the potential for
     anti-competitive unilateral behavior, such as retaliatory bidding,
     which may be used by incumbents to foreclose new entry into a
     market, even when there is a significant level of competition in an
     auction. The potential for these types of anti-competitive bidding
     behavior is greater when an auction offers multiple, substitutable
     blocks of licenses for sale, when license prices are expected to be
     relatively high, and when the auction outcome may have a
     significant effect on post-auction market structure. Given that the
     auction of new 700 MHz Band licenses is likely to meet these
     criteria, the potential harm from both coordinated and unilateral
     behavior that is facilitated by full information on bidders'
     interests and bidding behavior appears likely to outweigh the
     benefits. We note that the Commission has successfully conducted
     bidding using procedures to limit disclosure of certain information
     on bidder interests and identities prior to the close of the
     auction.[^658]

282. Although some potential bidders may find information regarding
     bidding by other parties useful, on balance this benefit likely is
     substantially outweighed by the enhanced competitiveness and
     economic efficiency of the auction that will result from
     withholding public release of certain information about bids and
     bidder identities prior to and during the upcoming 700 MHz Band
     auction. We disagree with those commenters that contend that use of
     the information outweighs potential anti-competitive uses of
     bidding information to deter or exclude new entrants. Given the
     inherent uncertainties regarding future technologies that may be
     used in the 700 MHz Band, we conclude that the benefit to some
     bidders of having detailed information regarding bidding by others
     cannot outweigh the potential anti-competitive use of such
     information. The potential benefit of knowing the identity of other
     parties placing bids for particular licenses appears likely to be
     less in this auction than in past Commission auctions, in light of
     the early stage of development with respect to new services in
     these frequencies.[^659] We are not persuaded by USCC's contention
     that such uncertainties only heighten the importance of bidding
     information.[^660] Uncertainties regarding what market leaders and
     equipment manufacturers might do in this band after it is licensed
     will not be substantially mitigated during the auction by
     information regarding the identities of parties placing bids.
     Moreover, bidding information during the auction is not the only
     source of information regarding technologies likely to be deployed
     in this band. Anonymous bidding does not "blackout" all information
     about the plans of market leaders and equipment suppliers in 700
     MHz, any more than bidding information provides certainty regarding
     what those plans ultimately will be. Furthermore, even under
     anonymous bidding procedures, the Commission has disclosed the
     identity of parties participating in the auction.[^661] Finally, we
     find Alltel's proposal to disclose round-by-round changes in the
     bidding eligibility of auction participants to be inconsistent with
     our conclusions here.

283. As indicated above, for several reasons we also conclude that we
     should employ anonymous bidding procedures even if the pre-auction
     eligibility ratio indicates that competition in the auction will be
     significant. First, anonymous bidding is unlikely to result in the
     loss of significant benefits from disclosing detailed bidding
     information during the auction, given that existing uncertainties
     make the likelihood of any such benefits relatively low in this
     band. Second, even in an auction with many competitors, individual
     bidders still could use retaliatory bidding unilaterally to block
     market entry. Finally, we also note that the eligibility ratio is
     inherently a very rough measure of competition in an auction, as it
     is not unusual for a bidder to submit an upfront payment and never
     place a bid or for a bidder to fail to utilize the full eligibility
     its upfront payment provides. Accordingly, we conclude that the
     Commission's final implementation of anonymous bidding procedures
     should not be made contingent on any pre-auction eligibility ratio
     assessment of likely competition in the auction.

284. For all the above reasons, we conclude that the record regarding
     the available 700 MHz Band licenses and our recent experience with
     anonymous bidding in other auctions indicate that the Commission\'s
     statutory mandates under Section 309(j)(3) of the Communications
     Act would better be served by adopting anonymous bidding procedures
     for the upcoming auction of 700 MHz Band licenses.  Such procedures
     should withhold from public release until after the auction closes
     any information that may indicate specific applicants' interests in
     the auction, including information such as their license selections
     and the identities of bidders placing bids or taking other
     bidding-related actions, such as withdrawals.  We further conclude
     that the implementation of anonymous bidding procedures in the
     upcoming auction of new 700 MHz Band licenses should not be
     contingent on the likely level of auction competition indicated by
     pre-auction bidder eligibility. Accordingly, we direct the Wireless
     Bureau to propose and seek comment on detailed anonymous bidding
     procedures for the upcoming auction of the 700 MHz Band licenses
     consistent with these conclusions, including how anonymous bidding
     would impact a potential re-auction of one or more spectrum blocks
     if the reserve prices for the individual blocks are not met, and
     any additional continuation or alteration to the anonymous bidding
     rules necessary to preserve the integrity of the subsequent
     auction.

#### Declaratory Ruling on Anti-Collusion Rule Reporting Requirement

285. To further our policy of preventing collusive behavior in
     Commission auctions, we take this opportunity to clarify by
     declaratory ruling and conforming textual edit the obligation that
     applicants in Commission auctions have to report any communications
     of bids or bidding strategies that are prohibited by Section
     1.2105(c)(1) of the Commission's rules.[^662] Pursuant to Section
     1.2105(c)(6), any applicant that makes or receives such a
     communication shall report such communication in writing to the
     Commission immediately, and in no case later than five business
     days after the communication occurs.[^663] As noted in the
     Commission's Order adopting Section 1.2105(c)(6), the Commission
     cannot "take on the impossible task of screening all applicant
     communications" and, therefore, "the responsibility for identifying
     potentially unauthorized communications \[must fall\] on auction
     applicants."[^664] The reports provided by applicants are essential
     to the Commission's ability to enforce its rule. Absent such
     reports, parties might find it easy to evade enforcement for
     extended periods of time, and possibly altogether.

286. Accordingly, the reporting requirement "obligate\[s\] parties to
     notify the Commission of communications that appear to violate the
     anti-collusion rule and to allow the Commission to determine
     whether a violation has occurred."[^665] Consistent with this
     purpose, applicants have a continuous obligation to make such
     reports extending beyond the five business days after the
     communication occurs. This declaratory ruling, and the conforming
     modification of Section 1.2105(c)(6), expressly state the
     continuing nature of this obligation. We thus clarify that the
     Commission can and will enforce the obligation so long as it
     remains unfulfilled. We emphasize the continuing nature of the duty
     to report to preclude any attempt to evade the obligation by
     waiting out the expiration of the statute of limitations applicable
     for the enforcement of forfeitures[^666] and to reinforce our
     ability to detect collusion, which is critical to our ability to
     enforce and thereby discourage collusive behavior in our auctions.

#### Package Bidding

287. [Background.]{.underline} In the *700 MHz Further Notice*, we
     sought comment on whether to permit package bidding for one or two
     Upper 700 MHz blocks in some proposed band plans in order to
     facilitate license aggregation providing a nationwide footprint of
     11- or 22-megahertz spectrum blocks.[^667] With package bidding, a
     bidder may place an all-or-nothing bid on multiple licenses, and
     thereby avoid the risk of winning less than all the licenses needed
     to justify its bid. For example, a bidder whose business plan is
     premised on realizing economies of scale may need to win a large
     number of licenses in order to justify the bid that it would make
     if it could win all of them. The risk of winning less than all the
     licenses needed to support the amount of the aggregate bid is
     sometimes known as the "exposure problem." As noted in the *700 MHz
     Report and Order*, our current competitive bidding rules authorize
     the use of package bidding.[^668] Consequently, no modifications to
     the competitive bidding rules are needed in order to conduct
     package bidding as contemplated herein.

288. Commenters are divided on the issue of package bidding for the
     upcoming auction of new 700 MHz Band licenses. Commenters that
     support package bidding contend that it is essential for a new
     entrant seeking to aggregate licenses and offer service
     nationwide.[^669] AT&T asserts that "a bidder whose business model
     requires nationwide coverage to achieve adequate scale for new
     technologies and new devices may not be able to participate in the
     bidding unless package bidding is an option."[^670] The 4G
     Coalition notes that by increasing the range of potential bidders
     and competition for the licenses package bidding may enhance the
     Commission's licensing process, regardless of whether any of the
     ultimate licensees use package bidding.[^671] In addition, an
     exhibit to Frontline's comments observes that, absent package
     bidding, the exposure problem creates an opportunity for
     competitors to block a would-be package bidder without actually
     competing for all of the licenses in the package.[^672] In the
     event the Commission adopts package bidding, a few additional
     commenters support package bidding in bands with small
     licenses.[^673]

289. Most commenters that oppose package bidding contend that any form
     of package bidding will disadvantage bidders not bidding on
     packages.[^674] Alltel contends that package bidding to facilitate
     a nationwide package amounts to "giving away the spectrum on a
     nationwide basis."[^675] Others contend that the Commission's
     auction provides sufficient opportunities to assemble a nationwide
     footprint without package bidding.[^676] Finally, some commenters
     contend that the Commission does not have sufficient time to
     address outstanding design issues regarding an appropriate form of
     package bidding for the 700 MHz auction, particularly if the
     Commission elects to permit package bids on some, but not all,
     blocks of licenses.[^677] USCC and Verizon Wireless, in particular,
     make various assumptions about the potential details of the auction
     design and raise concerns based on their assumptions.[^678]

290. [Discussion.]{.underline} Based on the current record, we conclude
     that package bidding with respect to licenses in the Upper 700 MHz
     Band C Block would serve the public interest by reducing the
     exposure problem that might otherwise inhibit bidders seeking to
     create a nationwide footprint. Minimizing the exposure problem with
     package bidding should facilitate the entry of applicants whose
     business plans require the economies of scale that only can be
     obtained with nationwide operation. We anticipate that package
     bidding can be implemented so as to shield such bidders from a
     potential significant exposure problem. Importantly, we also
     anticipate that it can be implemented without imposing
     disadvantages on parties that wish to bid on individual licenses
     comprising the nationwide footprint. Thus, the use of package
     bidding for licenses in the Upper 700 MHz Band C Block facilitates
     direct competition between competing business plans, without
     predetermining the outcome or favoring one business plan over the
     other.

291. We further conclude that the public interest in minimizing the
     exposure problem for applicants whose business plans require
     nationwide economies of scale is satisfied by providing package
     bidding solely with respect to licenses for the Upper 700 MHz Band
     C Block spectrum. The C Block provides applicants with 22 megahertz
     of bandwidth (comprised of paired 11-megahertz blocks), enough to
     enable a new entrant to offer a wide range of service without any
     additional licenses. Limiting package bidding to licenses for C
     Block spectrum will prevent package bidding from deterring
     participation by bidders, if any, that for any reason are
     completely unwilling to compete against package bids. The variety
     of blocks and licenses not subject to package bidding provides
     bidders unwilling to compete with package bids with a wide array of
     opportunities.[^679] Finally, while it is in the public interest to
     enable bidders to minimize their exposure risk to an extent
     consistent with other public interest goals, we do not conclude
     that we need auction all 700 MHz Band licenses in a manner that
     minimizes the exposure risk. Although they would be subject to some
     exposure risk, bidders seeking to aggregate multiple licenses in
     other blocks of 700 MHz Band spectrum will not be precluded from
     attempting to aggregate licenses in the absence of package bidding.

292. Accordingly, we direct the Wireless Bureau, pursuant to its
     delegated authority and pre-auction process, to propose and
     implement detailed package bidding procedures for the auction of
     the Upper 700 MHz Band C Block licenses, taking into account the
     goals we have articulated for package bidding and the concerns
     raised in this record.[^680] More specifically, the Wireless Bureau
     should propose an auction design that includes package bidding for
     the C Block licenses to facilitate the entry of a new nationwide
     competitor in that block, while not introducing undue difficulties
     for bidders on licenses in that block that do not desire a
     nationwide license. The Wireless Bureau should also explore the use
     of package bidding for any blocks subject to re-auction in the
     event that a reserve price is not met. The Wireless Bureau,
     consistent with its delegated authority and pre-auction process,
     may revise its proposal prior to implementation in the auction. In
     order to facilitate compliance with the statutory deadlines
     applicable to the auction of 700 MHz Band licenses, the Wireless
     Bureau has delegated authority to conduct an auction without
     package bidding for the Upper 700 MHz Band C Block licenses in the
     event that currently unforeseen difficulties make it impracticable
     to implement package bidding for the C Block consistent with the
     goals we have articulated here. Finally, consistent with our
     conclusions today, we direct the Wireless Bureau to adopt
     procedures for the auction of licenses in other blocks of 700 MHz
     Band spectrum without the use of package bidding.

#### "New Entrant" Bidding Credit

293. [Background.]{.underline} As discussed elsewhere, we have concluded
     that we should not restrict eligibility to hold any licenses in the
     700 MHz Band based upon concerns about competition in the market
     for broadband services. As an alternative to limiting the parties
     eligible for new licenses in the 700 MHz Band, we also sought
     comment on whether parties unaffiliated with incumbent wireline
     broadband service providers should receive a bidding credit on
     licenses in one or more blocks of the Upper 700 MHz Band
     spectrum.[^681] Further comment was requested regarding how any
     such new entrant bidding credits should be coordinated with
     existing bidding credits for small businesses, *i.e.*, should new
     entrant credits be cumulative or exclusive of small business
     bidding credits.[^682]

294. The possibility of granting "new entrant" bidding credits attracted
     far less comment than other issues relating to the auction of the
     700 MHz licenses. Those parties that responded are divided on the
     need for a "new entrant" bidding credit.[^683] PISC supports such a
     credit, while acknowledging difficulties in implementing one.[^684]
     Google also supports such a credit, arguing that existing
     infrastructure gives incumbents a material advantage against other
     competitors, regardless of their relative financial
     resources.[^685] Although Frontline itself does not advocate such a
     credit, a study it submitted with its comments does.[^686] Finally,
     McBride also supports the idea of such a credit, to "level the
     playing field."[^687]

295. In its comments, Wirefree Partners argues that the Commission
     should limit bidding credits to designated entities.[^688] In its
     reply comments, AT&T opposed a new entrant bidding credit as poorly
     defined, unsupported by the record, and not necessary to serve the
     public interest.[^689]

296. [Discussion.]{.underline} Particularly given the scant record on a
     "new entrant" bidding credit, and the open issue of how to define a
     "new entrant" in this context, we are not persuaded that we should
     grant a "new entrant" bidding credit for 700 MHz Band licenses.
     Various aspects of the licensing process to be used for new 700 MHz
     Band licenses will facilitate the entry of new service providers.
     First and foremost, the Commission will make available multiple
     licenses in each and every market. Moreover, the varied geographic
     sizes of the licenses offered in this band, coupled with the large
     number of licenses, should offer new ventures a variety of
     opportunities to provide service. In addition, we have directed the
     Wireless Bureau to develop a package bidding proposal to facilitate
     new entrants hoping to operate on a nationwide scale. Furthermore,
     we offer substantial bidding credits to small businesses, many of
     which may be new entrants in the spectrum services market. In light
     of all these provisions, we are not persuaded that an additional
     "new entrant" bidding credit is necessary to serve the public
     interest. Google's observation that parties with existing
     infrastructure may have an advantage over other bidders does not,
     by itself, justify granting a bidding credit to parties without
     such infrastructure. Accordingly, we conclude that we do not need
     to compound the discounts already offered to small new entrants by
     existing designated entity bidding credits, or to offer large,
     nationwide new entrants significant discounts on their bids.

#### Reserve Prices

297. [Background]{.underline}. In the Balanced Budget Act of 1997,
     Congress directed the Commission to prescribe methods by which to
     establish reasonable reserve prices or minimum opening bids for
     licenses subject to auction, unless the Commission determines that
     such reserve prices or minimum opening bids are not in the public
     interest.[^690] This statutory mandate creates a presumption that
     reserve prices or minimum bids are required.[^691] In the past, the
     Commission, as a general matter, has considered establishing
     publicly disclosed or undisclosed reserve prices, and has set
     publicly disclosed reserve prices in some cases, during the process
     of establishing auction-specific procedures.[^692] In the
     Commercial Spectrum Enhancement Act,[^693] Congress mandated the
     use of a reserve price for the Commission's auction of Advanced
     Wireless Services (AWS) spectrum in the 1710-1755 MHz band to
     ensure recovery of relocation costs for government incumbent
     operators in that band.[^694]

298. [Discussion]{.underline}. We conclude that we should provide for
     separate aggregate reserve prices for each block of licenses to
     promote our statutory objective of recovering for the public a
     portion of the value of the public spectrum resource.[^695] If the
     auction results for the licenses in any block satisfy the aggregate
     reserve for that block, all licenses in the block will be assigned
     based on the auction results, subject to completion of the
     licensing process, including review of applicants' qualifications.
     The separate aggregate reserve prices should, taken together,
     reflect current assessments of the potential market value of this
     spectrum based on various factors including, but not limited to,
     the characteristics of this band and the value of other recently
     auctioned licenses, such as licenses for Advanced Wireless
     Services.

299. We recognize that assigning 700 MHz licenses as promptly as
     possible will further the significant public interest in the
     development and rapid deployment of new services and the timely
     recovery of a portion of the public value with respect to the 700
     MHz Band. Accordingly, in the event that licenses are not assigned
     because the applicable block-specific aggregate reserve is not met,
     we provide for a prompt auction of alternative, less restrictive
     licenses for the A, B, C, and E Blocks, subject to the same
     applicable reserves. Our rules also provide for the possibility of
     re-offering the D Block license in a subsequent auction. This will
     maximize the likelihood that we can recover an appropriate portion
     of the value of the public spectrum resource and license this
     valuable spectrum for new uses by February 18, 2009, when the
     spectrum is to be clear of existing uses.

300. *Block-Specific Aggregate Reserve Prices.* In this proceeding, we
     have adopted a variety of provisions regarding the use of the 700
     MHz Band spectrum to serve the public interest. As in any
     proceeding establishing service rules for licenses authorizing use
     of the public spectrum resource, we are obliged to consider and
     balance a variety of public interests and objectives. In addition,
     we are required, in establishing the competitive bidding process
     for assigning the licenses to seek to promote the purposes
     specified in Section 1 of the Communications Act and a number of
     objectives. Among those objectives is the efficient and intensive
     use of the electromagnetic spectrum as well as the recovery for the
     public of a portion of the value of the public spectrum
     resource.[^696]

301. Consistent with this objective, Congress has required that when
     adopting regulations for conducting competitive bidding, the
     Commission shall prescribe methods by which a reasonable reserve
     price will be required unless we determine that such a reserve
     price is not in the public interest.[^697] In these circumstances,
     to safeguard against the possibility that various factors,
     including but not limited to the service rules we adopt today,
     might interfere with the recovery of a portion of the value of the
     public spectrum resource, we conclude that the public interest
     requires a separate aggregate reserve price for each block of the
     700 MHz Band licenses subject to competitive bidding in the
     upcoming auction.[^698] The reserve prices will be in addition to,
     and separate and apart from, any minimum opening bid amounts that
     may be established for purposes of the upcoming auction. If the
     aggregate reserve is met for any block, all licenses in that block
     that receive winning bids will be eligible for licensing subject to
     the completion of our review of long-form license applications.

302. Given the array of different conditions imposed on the licenses for
     different blocks, we recognize that bidders may place sufficient
     value on licenses in a particular block to satisfy the reserve
     applicable to that block even though interest in licenses in
     another block may be too low to satisfy the latter block's
     aggregate reserve. Block-specific aggregate reserve prices will
     facilitate licensing specific blocks based on block-specific
     auction results. We therefore direct the Wireless Bureau, pursuant
     to its existing delegated authority, to adopt auction procedures
     that will enable licensing of specific blocks provided that the
     auction results satisfy the block-specific reserve prices. In this
     regard, we note that under procedures typical of Commission
     auctions, a bidder would be able to raise its own provisionally
     winning bid(s) to attempt to satisfy the reserve price for licenses
     in any spectrum block.

303. Enabling licensing to proceed on a block-specific basis furthers
     our statutory objective of promoting the development and rapid
     deployment of new technologies, products, and services for the
     benefit of the public.[^699] If there is sufficient interest in and
     value placed on licenses in a particular block, it follows that we
     should make every effort to assign those licenses, consistent with
     our other statutory objectives, including recovery for the public
     of a portion of the value of the public spectrum resource. We
     conclude that it is appropriate to assess interest in licenses in
     this context on a block-by-block basis. While licenses across some
     blocks have greater similarities than licenses across others, for
     example licenses for the A and B Blocks arguably are more similar
     than licenses for the A and C Blocks, each block is sufficiently
     distinct with respect to geographic license area, spectral
     location, spectrum bandwidth, and service rules, that it is
     appropriate to consider assigning licenses in each block based on
     auction results for licenses in that block alone.

304. We direct the Wireless Bureau to adopt and publicly disclose
     block-specific aggregate reserve prices, pursuant to its existing
     delegated authority and its regular pre-auction process, consistent
     with our conclusions. Given our intent that the reserve prices
     should maximize the possibility of recovering an appropriate
     portion of the value of the public spectrum resource while enabling
     licensing as promptly as possible, the Wireless Bureau should
     establish the particular amounts of the block-specific aggregate
     reserves by taking into account a conservative estimate of market
     value based on auction results for AWS-1 spectrum licenses. For
     example, if we were to use the AWS-1 auction results as a guide,
     the total of the aggregate reserves for this auction would amount
     to about \$10.4 billion.[^700] For several reasons, using AWS-1
     auction results might be an appropriate approach for setting
     block-specific reserve prices reflecting a conservative estimate of
     final market value. For instance, spectrum in the 700 MHz Band
     possesses superior propagation characteristics to AWS-1 spectrum.
     In addition, as of February 18, 2009, the 700 MHz Band spectrum
     will be completely unencumbered, while full access to AWS-1
     spectrum requires the relocation of both Government and commercial
     incumbent users. Thus, other factors aside, 700 MHz Band licenses
     with comparable geographic service areas and bandwidth should have
     a higher market value on a per-megahertz basis than AWS-1 licenses.
     In setting block-specific reserve prices, the Bureau should also
     give due consideration to Congress's view as to the value of the
     spectrum, as reflected in Congressional mandates regarding the uses
     for revenues from this auction.[^701]

305. More specifically, the Wireless Bureau should consider the
     following factors when setting the block-specific aggregate
     reserves. The detailed rules regarding the D Block license, the D
     Block licensee's required construction of a network to be shared by
     public safety service users, and the resulting limitations on the
     flexibility of the D Block licensee, should be given substantial
     weight in assessing the D Block's value. Based solely on geographic
     area and spectrum block size, AWS-1 auction results might suggest a
     D Block reserve of \$1.7 billion. However, in light of the D Block
     license conditions essential to the public safety purpose of the
     public/private partnership, it might be appropriate to expect the D
     Block licensee to contribute only about 75 percent to 80 percent of
     such an amount, or about \$1.33 billion. In addition, when
     determining relative valuation of other blocks, the Wireless Bureau
     should consider the relative valuation of differing blocks in the
     recent auction of AWS-1 licenses.

306. *Subsequent Auction of Alternative Licenses*. We recognize that it
     is possible that the auction results may not satisfy one or more of
     the block-specific reserves. In that event, we establish a process
     to enable the assignment of alternative licenses for the A, B, C,
     and E Blocks of the 700 MHz Band as soon as possible in order to
     promote the speedy deployment of services utilizing 700 MHz Band
     spectrum. Under our rules, the license for the D Block may also be
     re-offered in a subsequent auction. Given the highly useful nature
     of the underlying spectrum, there is a strong public interest in
     promptly assigning all 700 MHz Band licenses for recovered analog
     spectrum. Congress has expressly provided that all incumbent analog
     television broadcasters must be cleared from this spectrum before
     February 18, 2009.[^702] It would not be possible to fully
     reconsider the conditions and the band plan as well as potential
     alternatives without significantly delaying the licensing of the
     spectrum. Such delays in licensing this spectrum could thwart the
     public interest in new licensees being able to offer services as
     soon as possible after the 700 MHz Band is cleared of incumbent
     broadcasters. Furthermore, delays in licensing would delay the
     recovery of a portion of the value of the public spectrum resource,
     already anticipated by Congress. We have an extensive record in
     response to the *700 MHz Further Notice* and have no reason to
     believe that further proceedings would result in substantially
     different conclusions regarding the band plan and the various
     license conditions we adopt today.

307. Our statutory authority to provide for reserve prices enables us to
     withhold assignment of licenses so that they may be offered again
     in the future under circumstances that will more effectively
     benefit the public.[^703] Accordingly, we establish a process to
     enable the assignment of alternative licenses as soon as possible
     in the event that the relevant block-specific aggregate reserve
     price is not met when those licenses are first offered.
     Specifically, we will offer the more flexible, less conditioned
     licenses described below in the A, B, C, and E Blocks as soon as
     possible after the first auction.[^704] This will address the
     possibilities that license conditions adopted today significantly
     reduce values bidders ascribe to those licenses and/or have
     unanticipated negative consequences. Given the unique character of
     the D Block license conditions, we leave open the possibilities of
     reevaluating those conditions or of promptly offering that license
     again in a subsequent auction, in the event the D Block-specific
     reserve is not met.

308. We provide further below that the auction of alternative licenses
     shall be subject to the same applicable reserve prices as the
     initial auction of licenses. The Wireless Bureau has delegated
     authority, however, to determine the appropriate means of
     reapportioning the reserve associated with the C Block in light of
     our determination below to split the block into two should a
     re-auction occur. This assures both that any initial and subsequent
     auctions will be as similar as possible (other than with respect to
     particular license terms detailed below) and also that the final
     assignment of the licenses will be based only on which licenses are
     able to serve the statutory goal of recovering a portion of the
     value of the public spectrum resource fixed in advance of the
     auction. In other words, we are balancing essential goals of
     assigning licenses on terms that serve the public interest, both
     with respect to service provided by licensees and recovery of
     value, rather than attempting to maximize revenue. In this vein, we
     note that, in light of all the relevant factors discussed above, we
     anticipate that the reserve price for the C Block would be
     approximately \$4.6 billion.

309. *Performance Requirements for Alternative Licenses.* As discussed
     in detail elsewhere, in order to better promote access to spectrum
     and the provision of service, especially in rural areas, we have
     replaced the current "substantial service" requirements for the 700
     MHz Band licenses that have not been auctioned with significantly
     more stringent performance requirements. We are adopting these
     rigorous requirements in an effort to ensure that licensees put
     this spectrum to use throughout the course of their license terms
     and their license areas.

310. It is possible, however, that the geographic area benchmarks we
     adopt for the A, B, and E Block licenses might result in a
     reduction in the monetary value of the licenses, thus reflecting
     potential flaws in our determinations regarding the public interest
     value of the imposed conditions. We conclude that a failure of the
     auction results for the A, B, and E Block licenses to satisfy the
     applicable block-specific aggregate reserve should result in a
     prompt offering of alternative licenses for the relevant block(s)
     that are subject to performance requirements with the population
     benchmark regime we have adopted for the C Block licenses.

311. *Changes to Alternative C Block Licenses.* As discussed elsewhere,
     we have concluded based on the extensive record in this proceeding
     that certain open platform conditions on the C Block licenses serve
     the public interest and that the conditions will permit licensee(s)
     to make effective and efficient use of the spectrum. Based on the
     record in this proceeding, we conclude that in the event that
     auction results for conditioned Upper 700 MHz C Block licenses do
     not satisfy the aggregate reserve price for the C Block, we will
     offer as soon as possible licenses for the C Block without the open
     platform conditions.

312. Similarly, we will modify the C Block band plan. In this regard, we
     note that Frontline Wireless contends that the licensing plan
     supported by Verizon is intended to discourage new entrants and
     competitors that would not be interested in, or financially capable
     of, bidding on REAG licenses without package bidding.[^705] It
     maintains that the use of REAG licenses would result in limited
     competition, with few likely bidders other than Verizon and AT&T
     for such licenses.[^706] To provide different opportunities for the
     different mix of bidders, consistent with established auction
     procedures, that may be interested in the unconditioned C Block
     licenses, we will reconfigure the bandwidth of the licenses, as set
     out in the Figure below, to create two paired blocks of 6 and 5
     megahertz each, which we will label the C1 and C2 Blocks. Further,
     we will license the C1 Block based on EAs and the C2 Block based on
     REAGs. We believe that in the event that the conditioned 700 MHz
     Band licenses are not assigned due to a failure to meet the reserve
     price and that the open platform conditions are lifted,
     reconfiguring the band plan in this way will serve the public
     interest by providing licenses under circumstances that may have
     more appeal to certain bidders.

     **[[Figure 11: Split C Block Plan]{.underline}]{.smallcaps}**

757 763 775 787 793 805

<table>
<colgroup>
<col style="width: 9%" />
<col style="width: 8%" />
<col style="width: 1%" />
<col style="width: 5%" />
<col style="width: 3%" />
<col style="width: 1%" />
<col style="width: 6%" />
<col style="width: 1%" />
<col style="width: 1%" />
<col style="width: 8%" />
<col style="width: 1%" />
<col style="width: 9%" />
<col style="width: 8%" />
<col style="width: 1%" />
<col style="width: 5%" />
<col style="width: 3%" />
<col style="width: 1%" />
<col style="width: 6%" />
<col style="width: 1%" />
<col style="width: 1%" />
<col style="width: 8%" />
<col style="width: 1%" />
</colgroup>
<tbody>
<tr class="odd">
<td>C<sub>1</sub></td>
<td>C<sub>2</sub></td>
<td>A</td>
<td>D</td>
<td></td>
<td colspan="2"><p>PS</p>
<p>BB</p></td>
<td></td>
<td colspan="2"><p>PS</p>
<p>NB</p></td>
<td>B</td>
<td>C<sub>1</sub></td>
<td>C<sub>2</sub></td>
<td>A</td>
<td>D</td>
<td></td>
<td colspan="2"><p>PS</p>
<p>BB</p></td>
<td></td>
<td colspan="2"><p>PS</p>
<p>NB</p></td>
<td>B</td>
</tr>
<tr class="even">
<td>CH. 60</td>
<td colspan="2">CH. 61</td>
<td colspan="3">CH. 62</td>
<td colspan="3">CH. 63</td>
<td colspan="2">CH. 64</td>
<td>CH. 65</td>
<td colspan="2">CH. 66</td>
<td colspan="3">CH. 67</td>
<td colspan="3">CH. 68</td>
<td colspan="2">CH. 69</td>
</tr>
</tbody>
</table>

746 752 758 764 770 776 782 788 794 800 806

[Block]{.underline} [Frequencies]{.underline} [Bandwidth]{.underline}
[Pairing]{.underline} [Area Type]{.underline} [Licenses]{.underline}

C~1~ 746-752, 776-782 12 MHz 2 x 6 MHz EA 176

C~2~ 752-757, 782-787 10 MHz 2 x 5 MHz REAG 12

D 758-763, 788-793 10 MHz 2 x 5 MHz Nationwide 1\*

A 757-758, 787-788 2 MHz 2 x 1 MHz MEA 52\*\*

B 775-776, 805-806 2 MHz 2 x 1 MHz MEA 52\*\*

\*Block is associated with the 700 MHz Public/Private Partnership.

\*\*Guard Bands block has been auctioned, but is being relocated.

313. It has been suggested that a decision to reauction reconfigured C
     Block licenses without open platform restrictions in the event that
     the bids for the C Block licenses fail to meet the reserve price,
     is "an allocation decision being driven by revenue considerations,"
     in violation of Section 309(j)(7)(A), and not by the public
     interest value of the requirements.[^707] The treatment of these
     licenses under such a reauction scenario, however, reflects our
     determination that the cost of the open platform requirements to
     wireless service providers -- evidenced by the magnitude of the
     devalued bids -- would reveal a significant problem with the
     requirements, such as a greater negative impact on network
     operations than we are predicting. As such, our assessment of the
     net public interest benefit of imposing these requirements (*i.e.*,
     the benefit of fostering the development of innovative devices and
     applications vs. the potential negative effects on network
     operations) changes. We believe that these circumstances, (*i.e.*,
     the failure of the auction results for conditioned C Block licenses
     to satisfy the C Block-specific reserve price) are unlikely to
     occur. But if they do, they provide sufficient evidence to conclude
     that we have weighed the public interest balance incorrectly, and
     that the cost of the open platform restrictions was too high -- not
     because the auction would have failed to generate enough Federal
     revenue, but because the low level of bidding would indicate
     inherent problems with operating a wireless system under this type
     of open platform regime.[^708] In addition, as indicated above, our
     decision to change the geographic scope and spectrum block sizes
     under the reauction scenario is based on our determination that it
     would serve the public interest by providing different
     opportunities for the different mix of bidders that may be
     interested in the unconditioned C Block licenses.[^709]

314. *D Block License.* With respect to the D Block, we have concluded
     that the public interest supports adopting unique service rules
     that will establish a nationwide 10-megahertz commercial license in
     the Upper 700 MHz Band D Block that will be awarded to the winning
     bidder once it has entered into a Commission-approved Network
     Sharing Agreement (NSA) with the Public Safety Broadband Licensee.
     As detailed elsewhere, this D Block license will require the
     commercial licensee to construct and operate a nationwide,
     interoperable broadband network to be used to provide both a
     commercial service and a broadband network service to public safety
     entities, across both the D Block and the 700 MHz public safety
     broadband spectrum.[^710] In light of the importance of such a
     network to the public interest, as well as the difficulty of
     assessing an appropriate reserve price prior to an initial auction,
     we conclude that we should not alter the conditions we have adopted
     today for the D Block license based solely on auction results. As
     discussed above, we believe that a D Block-specific aggregate
     reserve of approximately \$1.33 billion is appropriate given our
     goal of enabling the recovery of a portion of the value of the
     spectrum while also permitting licensing to proceed as quickly as
     possible. If, however, the D Block-specific aggregate reserve is
     not met, we conclude that we should leave open the possibility of
     re-offering the license on the same terms in a subsequent auction,
     as well as the possibility of re-evaluating all or some of the
     applicable license conditions.

315. *Auction Procedures.* In providing for a subsequent auction of
     licenses in the event that the relevant block-specific aggregate
     reserves are not satisfied, we find it in the public interest to
     utilize the same auction design, including the block-specific
     aggregate reserve price, anonymous bidding, and package bidding,
     insofar as possible. Accordingly, we direct the Wireless Bureau to
     adopt for the auction of 700 MHz Band licenses, consistent with its
     delegated authority and pursuant to its routine pre-auction
     process, procedures that will enable a prompt subsequent auction of
     alternative licenses for any block, as described above, in the
     event that the relevant block-specific aggregate reserve price is
     not met. This order's provisions with respect to the procedures for
     the initial auction, including with respect to anonymous and
     package bidding, will continue to apply in any subsequent auction.
     Furthermore, the same applicable reserve prices for each block of
     licenses shall apply in both the initial and subsequent auctions,
     recognizing that the Wireless Bureau will be required to determine
     how to allocate the block-specific reserve price for the C Block
     upon reauction under the split block plan described above. We
     detail below a few additional auction procedures to further the
     goal of promptly and effectively assigning these licenses. We
     direct the Wireless Bureau, consistent with its delegated authority
     to adopt procedures that will comply with this order and preserve
     the integrity of any necessary reauction.[^711]

316. Given the related nature of the initial auction and any subsequent
     auction of alternative licenses and to avoid unnecessary delay, we
     direct the Wireless Bureau to establish procedures that limit
     qualified bidders in a subsequent auction of alternative licenses
     to those bidders that qualify to bid in the upcoming auction
     offering 700 MHz Band licenses in all of these blocks. Likewise,
     given the related nature of the initial auction of 700 MHz Band
     licenses and any subsequent auction of alternative licenses, we
     find that the applicable "down payment deadline" for purposes of
     our anti-collusion rule shall be the "down payment deadline"
     established for the subsequent auction.[^712] In addition, because
     licenses for the same spectrum will be offered in both auctions,
     and the auctions will take place relatively close in time, we
     conclude that the purpose of our anti-collusion rule requires that
     the provisions of that rule continue to apply until the down
     payment deadline for the subsequent auction. To assure that bidders
     will have sufficient bidding eligibility to pursue various bidding
     strategies, we direct the Wireless Bureau to propose and adopt
     procedures that give applicants an opportunity to obtain bidding
     eligibility specifically for the alternative licenses, in addition
     to the initial licenses.

317. The Wireless Bureau also should consider any additional procedures
     within its delegated authority that may enhance the effectiveness
     of our auction of 700 MHz Band licenses in either the initial or
     subsequent auction. In this regard, we direct the Wireless Bureau
     to consider what procedures may be appropriate to deter bidders
     from actions that might thwart the assignment of licenses in either
     auction. For example, the Wireless Bureau should consider whether
     otherwise eligible bidders should be denied bidding eligibility in
     a subsequent auction of unconditioned licenses based on their
     bidding behavior, *e.g.*, withdrawals, defaults, and/or other
     actions, in connection with the initial auction.

#### Statutory Deposit Deadline

318. *Background.* Our conduct of this auction is, of course, subject to
     a statutory deadline for depositing proceeds from the auction of
     700 MHz Band licenses in the Digital Television Transition and
     Public Safety Fund. The DTV Act amended the Communications Act to
     provide that the Commission "shall deposit the proceeds of such
     auction in accordance with paragraph (8)(E)(ii) not later than June
     30, 2008."[^713] In the cross-referenced paragraph, the DTV Act
     requires that "the proceeds (including deposits and upfront
     payments from successful bidders) from the use of a competitive
     bidding system under this subsection with respect to recovered
     analog spectrum shall be deposited in the Digital Television
     Transition and Public Safety Fund."[^714]

319. *Discussion.* To provide greater certainty for potential bidders,
     we here set forth our plan for fulfilling our responsibility to
     comply with this deadline in a manner fully consistent with the
     rules governing the 700 MHz Band licenses and the Commission's
     competitive bidding process. In particular, to comply with the
     statutory deadline, we will deposit payments made by successful
     bidders towards their respective winning bids for their licenses -
     including upfront payments, deposits, and final payments held on
     deposit pending the completion of licensing - as of the deposit
     deadline, June 30, 2008, even in instances where the licensing
     process for those licenses has not yet been completed.

320. We conclude that this will comply with the statute's deadline for
     depositing "the proceeds" of the auction. In the context of the DTV
     Act and competitive bidding for licenses for the "recovered analog
     spectrum," the term "the proceeds" consists of payments by
     successful bidders toward their winning bids for licenses made
     prior to the deposit deadline. For several reasons, we find that
     the statute's intended meaning of proceeds is not limited to the
     final net revenues that the Commission will realize at the
     completion of the auction and licensing of all relevant licenses.
     As an initial matter, there can be no guarantee that applicants
     will place winning bids on any and all the licenses the Commission
     offers.[^715] In addition, with respect to licenses that are the
     subject of winning bids, we note the period of time between the
     required commencement of bidding and the deposit deadline in the
     statute is well short of the time it can take to complete licensing
     under long-established Commission procedures. The Communications
     Act and/or the Commission's rules provide parties with prescribed
     periods of time following an auction to file license applications,
     petitions to deny, and responses.[^716] Similarly, under Commission
     rules, parties seeking post-auction tribal land bidding credits are
     afforded a defined period of time -- namely, up to 180 days after
     the filing of a winning bidder's long form application after the
     close of the auction - in which to negotiate with tribes on the
     land to be served.[^717] Furthermore, the statute's express
     requirement that the amounts deposited by the deadline include
     deposits and upfront payments[^718] from successful bidders clearly
     indicates that the statute contemplates deposits being made before
     the completion of licensing, at which time the successful bidders'
     deposits and upfront payments are merged into final payments and
     net auction revenues.[^719]

321. We therefore find that the statute requires the deposit of payments
     made by successful bidders towards their respective winning bids
     for licenses for recovered analog spectrum as of the June 30, 2008,
     deposit deadline, even if that date occurs before conclusion of the
     licensing process. Because our rules provide for the collection of
     all the required payments from winning bidders before completing
     the licensing process, [^720] the June 30, 2008, statutory deadline
     for depositing auction proceeds does not conflict with or otherwise
     affect any of our regulatory provisions that might extend final
     licensing beyond June 30, 2008.

## 700 MHz Public Safety Spectrum

322. In this section, we adopt a regulatory framework for the 700 MHz
     Public Safety Band to facilitate the establishment of a nationwide,
     interoperable broadband communications network for the benefit of
     state and local public safety users. In accordance with our
     decision relating to the Guard Band spectrum, and the corresponding
     shift by 1 megahertz downward of the 700 MHz Public Safety Band, we
     designate the lower half of the 700 MHz Public Safety Band
     (763-768/793-798 MHz) for broadband communications. We also
     consolidate existing narrowband allocations to the upper half of
     the 700 MHz Public Safety block (769-775/799-805 MHz). To
     effectuate the consolidation of the narrowband channels, we require
     the Upper 700 MHz D Block licensee to pay the costs of relocating
     narrowband radios, require every 700 MHz public safety licensee to
     certify to the Commission specific information regarding their
     operating narrowband handsets and base stations or forfeit
     reimbursement for associated relocation costs, and establish a
     deadline for completion of the narrowband transition of no later
     than the DTV transition date. In order to minimize interference
     between broadband and narrowband operations, we adopt a 1-megahertz
     guard band (768-769/798-799 MHz) between the public safety
     broadband and narrowband segments. Concerning the broadband
     segment, we address certain technical criteria related to power
     levels and the establishment of a broadband standard with a
     nationwide level of interoperability. Finally, we establish a
     single nationwide license (hereafter, the "Public Safety Broadband
     License") for the 700 MHz public safety broadband spectrum. We will
     assign this to a single licensee, the Public Safety Broadband
     Licensee, and we specify the criteria, selection process, and
     responsibilities for this licensee. In establishing this broadband
     license, and in assigning the license to the Public Safety
     Broadband Licensee, we also are providing the necessary ingredients
     for enabling the 700 MHz Public/Private Partnership with the
     commercial Upper 700 MHz Band D Block licensee, as discussed in
     more detail elsewhere in this Second Report and Order.

### Band Plan

323. In the *700 MHz Further Notice*, we tentatively concluded to (1)
     redesignate a portion of the public safety spectrum in the 700 MHz
     Band from wideband use to broadband use consistent with a
     nationwide interoperability standard; (2) prohibit wideband
     operations on a going forward basis within the newly designated
     broadband spectrum; (3) consolidate the existing narrowband
     allocations to the upper half of the 700 MHz Public Safety Band
     (770-776/800-806 MHz), and locate broadband communications in the
     lower half of this band (764-769/794-799 MHz); and (4) establish a
     1-megahertz internal guard band between the narrowband and
     broadband allocations (669-770/799-800 MHz) to prevent
     interference.[^721] Further, we sought comment on whether to allow
     the use of this newly created internal guard band along the
     Canadian border, based on our tentative conclusion not to adopt the
     BOP which, like the band plan that we adopt today, included a
     downward shift of 1 megahertz of the 700 MHz Public Safety
     Band.[^722] These tentative conclusions and proposals were intended
     to facilitate the establishment of a nationwide, interoperable
     broadband communications network for the benefit of public safety.
     We discuss our decisions on these issues below.

#### Broadband Segment

324. [Background]{.underline}. The majority of commenters support our
     tentative conclusion in the *700 MHz Further Notice* to modify the
     current band plan for the 700 MHz Public Safety Band to provide for
     broadband operations in the lower portion of the band and
     consolidated narrowband operations at the top of the band.[^723]
     Some commenters supporting band modification in this manner qualify
     their support. For example, APCO states that it supports the
     proposed band reconfiguration provided the plan addresses (i) a
     mechanism to reimburse those public safety licensees that must
     modify their 700 MHz Band radios that have already been deployed on
     700 MHz channels and (ii) the Canadian Border Issue.[^724] A few
     commenters oppose modifying the band. Region 16 (Kansas) does not
     support the Commission's proposal because its imposition of a
     nationwide network favors "federal mandates" over local and
     regional decisions.[^725] Similarly, Region 33 (Ohio) argues that
     the Commission's proposal would eliminate the option to deploy cost
     effective wideband systems or dedicated local agency broadband
     systems.[^726]

325. [Discussion.]{.underline} We conclude that revision of the band
     plan for the 700 MHz Public Safety Band to accommodate broadband
     communications is in the public interest. The communications needs
     of public safety have evolved in recent years, and the record in
     this proceeding affirms our expectation that wireless broadband
     services will play an essential role in the ability of public
     safety entities, especially first responders, to fulfill their
     mission to protect the health, welfare and property of the
     public.[^727] The current band plan for the 700 MHz Public Safety
     Band does not provide for a broadband communications capability.
     Accordingly, we adopt the following band plan for the 700 MHz
     Public Safety Band:

**[[Figure 12: Revised 700 MHz Band Plan For Public Safety
Services]{.underline}]{.smallcaps}**

763 769 775 793 799 805

<table>
<colgroup>
<col style="width: 10%" />
<col style="width: 2%" />
<col style="width: 8%" />
<col style="width: 2%" />
<col style="width: 2%" />
<col style="width: 10%" />
<col style="width: 2%" />
<col style="width: 12%" />
<col style="width: 12%" />
<col style="width: 10%" />
<col style="width: 2%" />
<col style="width: 8%" />
<col style="width: 2%" />
<col style="width: 2%" />
<col style="width: 10%" />
<col style="width: 2%" />
</colgroup>
<tbody>
<tr class="odd">
<td rowspan="2"><em>Commercial Allocation</em></td>
<td colspan="5"><em>Public Safety Allocation</em></td>
<td colspan="4" rowspan="2"><em>Commercial Allocation</em></td>
<td colspan="5"><em>Public Safety Allocation</em></td>
<td rowspan="2"></td>
</tr>
<tr class="even">
<td colspan="2">Broadband</td>
<td><p>G</p>
<p>B</p></td>
<td colspan="2">Narrowband</td>
<td colspan="2">Broadband</td>
<td><p>G</p>
<p>B</p></td>
<td colspan="2">Narrowband</td>
</tr>
<tr class="odd">
<td colspan="2">CH. 62</td>
<td colspan="3">CH. 63</td>
<td colspan="2">CH. 64</td>
<td>CH. 65</td>
<td>CH. 66</td>
<td colspan="2">CH. 67</td>
<td colspan="3">CH. 68</td>
<td colspan="2">CH. 69</td>
</tr>
</tbody>
</table>

758 764 770 776 782 788 794 800 806

326. We are designating the lower 5-megahertz paired (10 megahertz
     total) segment of the 700 MHz Public Safety Band for broadband
     communications. This 5-megahertz paired designation will allow
     public safety to implement advanced wireless communications
     systems. It also will place public safety broadband operations
     adjacent to spectrum available for commercial broadband operations.
     We find this facilitates the deployment of a shared broadband
     network architecture by commercial and public safety entities and
     is consistent with the public/private partnership framework adopted
     herein. As discussed elsewhere in detail, such partnership would
     allow public safety to leverage advanced technologies and
     infrastructure that can lead to reduced build-out, equipment and
     operating costs, as well as speedier deployment of advanced public
     safety communications systems. While some commenters express
     concerns about the prospect of losing some level of local control
     should we adopt a nationwide broadband allocation, we believe such
     concerns are misplaced. As shown elsewhere in this Second Report
     and Order, local agencies, working through the Public Safety
     Broadband Licensee, will have substantial opportunity to provide
     input not only on the design of this network, but also on the
     particular broadband services they require. In addition, in Section
     III.C of this Second Report and Order, we provide a means for local
     agencies to request a waiver to conduct wideband operations,
     subject to additional conditions and restrictions.

#### Narrowband Segment 

##### Consolidation of Narrowband Channels 

327. [Background]{.underline}. In the *700 MHz Further Notice*, we
     tentatively concluded to consolidate the existing narrowband
     allocations to the upper half of the 700 MHz Public Safety Band.
     This tentative conclusion to consolidate these narrowband channels
     received broad support in the record. For example, Alcatel-Lucent
     states that narrowband consolidation is an essential component to
     the deployment of broadband in the commercial and public safety
     portions of the 700 MHz Band.[^728]

328. In an *ex parte* letter dated June 25, 2007, NPSTC reiterates its
     support for consolidating the narrowband channels, and also
     proposes a plan by which the narrowband consolidation would take
     place.[^729] This plan is premised on the assumption that Access
     Spectrum/Pegasus would be responsible for paying the costs of
     relocation, and proposes that retuning be completed by the DTV
     transition date. The plan also would have completed, by July 31,
     2008, the following: reprogramming of the Computer Assisted
     Pre-Coordination Resource and Database (CAPRAD), updating statewide
     and regional frequency plans and public safety licenses, and
     revising code-plug programming software necessary to retune the
     radios and systems.  NPSTC also envisions that each public safety
     agency would submit a "Statement of Work" to Access
     Spectrum/Pegasus by December 31, 2007, listing the number of radios
     and transmit sites that will be operational by July 31, 2008, and
     which would be eligible for relocation funding. In an *ex parte*
     letter dated June 29, 2007, Motorola expressed its support for
     NPSTC's proposal.[^730]

329. [Discussion]{.underline}. We adopt our tentative conclusion to
     consolidate the narrowband segments in order to optimize the band
     plan for this spectrum. We find that consolidating the narrowband
     segments will promote the benefits of the 700 MHz Public/Private
     Partnership by creating a contiguous public safety broadband
     allocation adjacent to commercial broadband spectrum, and
     distancing the narrowband segment from the broadband segment to
     minimize interference potential. Further, consolidating the
     narrowband segments in this manner will maximize spectrum
     efficiency, thereby reducing the need for internal guard bands
     between narrowband and broadband operations from two separate guard
     bands to only one internal guard band.[^731] Accordingly, we
     consolidate the public safety narrowband operations in the upper
     paired 6-megahertz blocks (twelve megahertz total) of the 700 MHz
     Public Safety Band.[^732]

##### Timing of Narrowband Consolidation

330. [Background]{.underline}. In the *700 MHz Further Notice*, we posed
     a number of questions in order to address how best to migrate
     existing narrowband operations on channels 63 and 68 to channels 64
     and 69, with minimum disruption to incumbent operators.[^733] As an
     initial matter, we sought comment on the appropriate timing of
     relocating narrowband operations, in view of the February 17, 2009
     DTV transition deadline.[^734]

331. Motorola states that the narrowband blocks were split originally so
     that some narrowband channels would overlap both TV channels 63/68
     and 64/69, providing greater likelihood that at least a portion of
     the channels would be usable in additional areas of the country
     prior to TV clearing in early 2009. Motorola argues that
     maintaining the bifurcated narrowband blocks beyond that date has
     no benefit for public safety.[^735] Alcatel-Lucent believes that
     there is sufficient time between the end of the auction and when
     the spectrum becomes available in February 2009 to enable regional
     and local public safety agencies to deploy broadband technologies
     right away.[^736]

332. [Discussion]{.underline}. We conclude that in order to maximize the
     benefits of the 700 MHz Public/Private Partnership to deploy a
     nationwide, interoperable broadband communications network,
     narrowband operations presently in channels 63 and 68 (and the
     upper 1 megahertz of channels 64 and 69) must be cleared no later
     than the DTV transition date.[^737] It is important that the
     commercial Upper 700 MHz Band D Block licensee and the Public
     Safety Broadband Licensee not be constrained by the presence of
     narrowband operations in the public safety broadband allocation
     with regard to implementing a build-out plan for the nationwide
     broadband network. Furthermore, we find that focusing the resources
     necessary to implement the relocation of narrowband operations
     during the time leading up to when the TV channels are fully
     cleared will enable the public safety community, as of the February
     17, 2009 deadline, to devote its full attention to the important
     matter of deploying broadband communications capabilities with a
     nationwide level of interoperability.

##### Funding Issues

333. [Background]{.underline}. As we recognized in the *700 MHz Further
     Notice*, fundamental to the accomplishment of relocating narrowband
     operations to the consolidated narrowband channels is a
     determination of the costs of the relocation and how (or by whom)
     the costs will be paid.[^738] While we believed that the number of
     incumbents that would be impacted would be relatively small, we
     asked for estimates of the true costs associated with relocation
     that were as accurate as possible, as well as up-to-date
     information regarding how many narrowband radios are currently
     deployed and how many are actively being used.[^739] Unfortunately,
     we received no information on the number of narrowband radios
     deployed and in use.[^740] Further, only one commenter, Motorola,
     offered an estimate of the costs associated with reprogramming the
     impacted narrowband systems. Specifically, Motorola estimates that
     the costs associated with reprogramming installed Motorola 700 MHz
     equipment, including mobiles, portables and base stations that are
     in operation presently or targeted to be in operation by the time
     band reconfiguration would commence, approximately one year after
     the Commission finalizes a new band plan for the 700 MHz Public
     Safety Band, to be approximately \$10 million.[^741] Motorola
     subsequently provided additional information, in an *ex parte*
     letter, regarding the estimated costs for completing the
     reconfiguration. Specifically, Motorola states that it used as a
     basis for its estimate an average cost of \$100 to reprogram each
     mobile and portable radio, and \$3,000 to make necessary changes at
     each base transmitter site.[^742]

334. We also sought comment on how best to pay for the costs of
     consolidating the narrowband channels. We asked whether, should we
     reject our tentative conclusion to impose these costs on the
     commercial licensee that would be part of a public/private
     partnership, public safety should pay for its own relocation costs,
     whether it might be possible to use a portion of the \$1 billion
     Public Safety Interoperable Communications Grant Program or funding
     from existing grant programs, or whether we should require the
     licensee of the adjacent commercial broadband segment[^743] or
     Guard Band B Block licensees to pay such costs. Alternatively, we
     asked whether the nationwide public safety broadband licensee
     should be assigned responsibility for funding the
     reconfiguration.[^744]

335. A number of public safety groups oppose having public safety pay
     its own relocation costs or attempting to use the \$1 billion
     Public Safety Interoperable Communications Grant Program.[^745] On
     the other hand, there was extensive support in the record for
     imposing the payment obligation upon either the licensee of the
     adjacent commercial broadband segment or the Guard Band B Block
     licensees.[^746]

336. [Discussion]{.underline}. As we state elsewhere, we require the
     Upper 700 MHz Band D Block licensee to pay the costs associated
     with relocating public safety narrowband operations to the
     consolidated channels, in recognition of the significant benefits
     that will accrue to the D Block licensee.[^747] We also assign
     responsibility to the Public Safety Broadband Licensee to
     administer the relocation process consistent with the requirements
     and deadlines set forth herein. To facilitate such relocation, we
     seek to identify the actual numbers of radios and base stations
     that the D Block licensee would be responsible for paying the costs
     of relocating. To that end, we require every 700 MHz Band public
     safety licensee, whether holding individual narrowband
     authorizations or operating pursuant to a State License, to provide
     the following information: (1) the total number of narrowband
     mobile and portable handsets in operation in channels 63 and 68,
     and the upper 1 megahertz of channels 64 and 69, (2) the total
     number of narrowband base stations serving these handsets in
     operation, (3) contact information for each identified set of
     handsets and base stations, as appropriate, (4) the areas of
     operation of the mobile and portable units (such as defined by the
     jurisdictional boundaries of the relevant public safety
     departments), and (5) the location, in latitude and longitude, of
     the base stations, all as of 30 days after the adoption date of
     this Second Report and Order. We require that all of this
     information be accurate as of 30 days after the adoption date to
     account for pre-programmed narrowband radios that public safety
     agencies may have already taken delivery as of the adoption date of
     this order and intend to immediately place into operation.

337. This information must be filed with the Commission on the effective
     date of this Second Report and Order and must include a
     certification, signed by an authorized party, stating that the
     information provided therein is true, complete, correct, and made
     in good faith. The Public Safety and Homeland Security Bureau will
     issue a public notice in advance of the effective date announcing
     the deadline for this certification requirement. Because obtaining
     this data is so integral to the success of the relocation process,
     we strongly caution that public safety entities failing to timely
     and properly file these certifications will forfeit all rights to
     be reimbursed for associated relocation costs. We will require the
     funding of the costs of relocation of narrowband operation only for
     handsets and base stations that are actually in operation as part
     of licensed narrowband operations in channels 63 and 68, and the
     upper 1 megahertz of channels 64 and 69, as of 30 days following
     the adoption date of this Second Report and Order.

338. In order to be clear regarding the costs that would be entitled to
     reimbursement, the obligation of the D Block licensee to fund the
     costs of relocation will be limited to the minimum costs directly
     associated with modifications necessary to implement the relocation
     of base stations, mobiles and portables, and not for any unrelated
     improvements. We do not impose a funding obligation to cover costs
     associated with any modifications that may be necessary to the
     CAPRAD system and other programs used by Regional Planning
     Committees (RPCs) to assign channels, or to any costs associated
     with amendments to regional plans or narrowband licenses.

339. As an additional measure to clearly define and contain the costs
     that would be entitled to reimbursement, we prohibit authorization,
     whether pursuant to individual license or State License, of any new
     narrowband operations in channels 63 and 68, or in the upper 1
     megahertz of channels 64 and 69, as of 30 days following the
     adoption date of this Second Report and Order. We caution that any
     equipment deployed in these frequencies subsequent to 30 days
     following the date of adoption of this Second Report and Order will
     be ineligible for relocation funding. We take these steps in
     prohibiting new narrowband operations outside of the consolidated
     narrowband blocks to ensure that the relocation proceeds in an
     orderly manner and without complications stemming from additional
     operations being deployed in spectrum being reallocated. To be
     clear, however, public safety entities may continue to place into
     operation narrowband equipment in the consolidated narrowband
     blocks 769-775 and 799-805 MHz.

340. As stated herein, the winning bidder of the D Block license is
     required to commence negotiation of the NSA on the date it files
     its long form application or the date on which the Commission
     grants the public safety broadband license to the Public Safety
     Broadband Licensee, whichever is later (the "NSA Negotiation
     Commencement Date"). Further, elsewhere we require, as a
     pre-condition of grant of the D Block license, that the winning
     bidder for this license and the Public Safety Broadband Licensee
     complete negotiations within six months, and file a copy of the NSA
     that has been approved by the Commission and executed by the
     parties. To implement the narrowband relocation process, we require
     the winning bidder for the D Block license and the Public Safety
     Broadband Licensee jointly to submit for Commission approval a
     relocation plan within 30 days following the NSA Negotiation
     Commencement Date. We delegate authority to the Chief, Public
     Safety and Homeland Security Bureau, to review and approve this
     plan. This plan must address the process and schedule for
     accomplishing the narrowband relocation, including identification
     of equipment vendors or other consultants that would perform the
     necessary technical changes to handsets and base stations, and a
     detailed schedule for completion of the relocation process for
     every radio and base station identified in the certifications we
     require above. Furthermore, this plan must specify the total costs
     to be incurred for the complete relocation process.

341. As an additional means to ensure the integrity of the relocation
     process, we also cap the total amount that the D Block licensee
     must pay to cover relocation costs. Motorola's estimate is the only
     one in the record, and is not disputed. Motorola's \$10 million
     estimate is based upon the anticipated numbers of portables,
     mobiles, and transmit sites in operation by July 2008. As we state
     above, however, we will limit the total relocation amount to those
     radios in operation as of 30 days after the adoption date of this
     Second Report and Order. Using the numbers of portables, mobiles,
     and transmit sites reported by Motorola as in operation as of the
     date of its June 2007 *ex parte* filing, the total cost would equal
     \$5.77 million. While the relocation costs when limited to radios
     in operation as of 30 days after the adoption date of this order
     could be closer to \$6 million, we conclude it is reasonable to set
     a cap of \$10 million. We reach this conclusion because even though
     Motorola's estimate is the only one before us, it is a generous
     estimate in that, as the major provider of public safety 700 MHz
     equipment, Motorola asserts that this amount would be sufficient to
     cover the relocation cost of all narrowband operations through
     July 2008. Since we only authorize relocation reimbursement for
     operations as of 30 days after the adoption date of this Second
     Report and Order, we find that it is reasonable to expect
     Motorola's estimate to be more than sufficient to cover these
     costs. Further, to the extent that a \$10 million cap exceeds the
     estimate of \$6 million, we find that the additional amount is not
     unreasonable in light of the uncertainty reflected by Motorola's
     admission that its estimate is "necessarily an estimate based on
     the best information available" and that "information available
     about the extent of deployed equipment and the costs of retuning is
     imperfect and subject to change."[^748] Moreover, we find that in
     determining a cap, we must consider the costs associated with
     retuning radios manufactured by other vendors, and provide a layer
     of protection to the public safety community to ensure that
     eligible relocation costs are fully funded.

342. We emphasize that by establishing this \$10 million cap, we do not
     expect the actual costs to reach this amount, especially because we
     limit reimbursement to equipment operating as of 30 days after the
     adoption date of this Second Report and Order. Further, we do not
     preclude the strong possibility that the actual costs will be
     lower, perhaps substantially, when based on the specific amounts
     for identified costs, on a per handset and per base station basis,
     as may be identified by the winning bidder of the D Block license
     in consultation with the Public Safety Broadband Licensee and
     equipment vendors. If the winning bidder of the D Block license and
     the Public Safety Broadband Licensee reach agreement on an amount
     less than \$10 million, they shall report this amount in the
     relocation plan they submit, with a certification attested to by
     the winning bidder of the D Block license, the Public Safety
     Broadband Licensee, and the relevant equipment vendors, verifying
     that all parties will be bound by the costs so identified. We
     recognize that the Public Safety Broadband Licensee may incur
     administrative costs in carrying out its responsibilities to
     administer the relocation process. We find it would be premature,
     however, in advance of having appointed a Public Safety Broadband
     Licensee, to consider requiring the D Block licensee to fund such
     administrative costs. Further, we have no basis in the record to
     consider including administrative costs in the funding obligation
     of the D Block licensee. While we do not foreclose the possibility
     that the Public Safety Broadband Licensee, once appointed, may be
     in a position to justify a specific funding request, we emphasize
     that the \$10 million cap we establish will remain in place and is
     not subject to upward adjustment for any purpose.

343. Once the total costs are identified, whether at \$10 million or
     some lesser amount, such amount will be capped upon approval of the
     relocation plan by the Chief of the Public Safety and Homeland
     Security Bureau. By "capped" we mean that all affected parties will
     be bound by that amount to accomplish the complete relocation of
     all narrowband operations. To be clear, we will not entertain any
     requests to exceed the capped costs. Furthermore, as an additional
     precondition to grant of the D Block license, we will require, no
     later than the date on which the executed NSA is submitted to the
     Commission, that the D Block auction winner deposit the capped
     amount as approved by the Chief of the Public Safety and Homeland
     Security Bureau into a trust account established by the Public
     Safety Broadband Licensee, to finance the narrowband relocation
     costs. Thus, the winning bidder of the D Block license and the
     Public Safety Broadband Licensee must take great care in deciding
     upon the costs necessary for accomplishing the narrowband
     relocation. The trust account established by the Public Safety
     Broadband Licensee must be for the benefit of public safety
     licensees being relocated, and have the Public Safety Broadband
     Licensee acting as trustee of such account. The Public Safety
     Broadband Licensee may not draw on this account until the D Block
     license is granted to the D Block auction winner, and then may use
     the funds solely for relocating eligible narrowband operations
     consistent with the requirements and limitations set forth herein.
     The Public Safety Broadband Licensee will then be responsible for
     implementing the relocation plan, including administering payment
     of relocation funds to equipment vendors, and ensuring that all
     affected licensees are relocated in accordance with the relocation
     schedule contained in the relocation plan as approved by the Chief
     of the Public Safety and Homeland Security Bureau.

344. The process we establish has the Public Safety Broadband Licensee
     disbursing the relocation funds, as opposed to the D Block licensee
     dealing directly with and paying each relocating narrowband
     licensee. We find it appropriate to have the Public Safety
     Broadband Licensee administer payment of relocation funds for a
     number of reasons. First, the D Block licensee and the Public
     Safety Broadband Licensee already would have reached agreement on a
     relocation plan, and disbursement of the funds will proceed
     according to this plan. In effect, as the winning bidder, the D
     Block licensee will have had substantial involvement in designing
     the relocation plan, including the disbursement of funds. Second,
     we find that the Public Safety Broadband Licensee is in the best
     position, based on the criteria we specify herein for its
     selection, to act in the best interests of the public safety
     community impacted by the narrowband consolidation. Specifically,
     as we require elsewhere, no commercial interest may be held in the
     Public Safety Broadband Licensee, this licensee must be a
     non-profit organization, and the licensee must be broadly
     representative of the public safety user community. Accordingly, in
     carrying out its responsibilities, the Public Safety Broadband
     Licensee would not be unduly influenced by financial or commercial
     pressures, yet would have extensive experience with public safety
     radio operations. Third, we require as part of the negotiation of
     the relocation plan that the winning bidder of the D Block license
     and the Public Safety Broadband Licensee reach agreement on the
     total costs of the entire relocation. As all parties will be bound
     by this amount, which we will cap, the Public Safety Broadband
     Licensee must carefully disburse the funds according to the
     relocation plan to ensure that the entire process is fully funded.
     Finally, creating a trust relationship further ensures that the
     Public Safety Broadband Licensee will act in accordance with the
     relocation plan and the best interests of the relocating
     incumbents, due to the fiduciary responsibility it would hold as
     trustee.

#### Regional Planning Committee Plans 

345. [Background.]{.underline} In the *700 MHz Further Notice*, we
     observed that RPCs had raised concerns that consolidating the
     narrowband channels would disrupt planning, but we noted that the
     costs and inconveniences of consolidating the narrowband channels
     are minor compared to the relative potential for accommodating
     future technologies.[^749] Several commenters described projects
     that have been approved or are underway. Region 43 (Washington)
     states that it has engaged in a years long process and that within
     its Central Puget Sound region, there are approved projects in the
     process of implementation.[^750] Similarly, Region 16 (Kansas)
     states that it has invested considerable time in developing its
     state plan and the Commission's proposed changes would require
     revision and resubmission of the plan to the Commission, with
     resultant delay in build-out of systems.[^751] Region 33 (Ohio)
     states that Ohio has created and funded a band plan and is awaiting
     review by adjacent regions.[^752]

346. [Discussion]{.underline}. We recognize that our decisions to
     prohibit wideband operations (outside of the waiver process
     described elsewhere in this Second Report and Order) and to
     consolidate the narrowband channels will impact existing and
     pending RPC plans. Nevertheless, as a result, RPC plans already
     approved or on file with the Commission will require amendment. We
     find that the substantial benefits resulting from accommodating
     broadband communications and consolidating the narrowband channels
     outweigh the near-term concerns of RPCs. Indeed, the fact that the
     narrowband consolidation will optimize the 700 MHz public safety
     band plan as a whole, and promote the deployment of new
     technologies and broadband services, will be to the advantage of
     the very RPCs whose current plans will be impacted. Accordingly, we
     require all RPCs with approved plans or plans on file to submit
     amended plans consistent with the decisions herein within 30 days
     of the effective date of this Second Report and Order.

#### Internal Guard Band

347. [Background.]{.underline} In the *700 MHz Further Notice*, we
     tentatively concluded to separate the broadband segment and the
     narrowband segment with a 1-megahertz internal guard band (2
     megahertz paired).[^753] The purpose of the guard band is to
     provide a buffer to minimize interference between broadband and
     narrowband operations. Many commenters support establishing a
     one-megahertz guard band.[^754] Some recommend that we allow the
     guard band to be used on a coordinated basis.[^755] Others, like
     WCA, suggest that the size of the guard band be left to the
     discretion of the public safety broadband licensee since technology
     evolves over time and the guard band may be able to be
     reduced.[^756]

348. [Discussion.]{.underline} We adopt our tentative conclusion and
     agree with commenters that an internal guard band is needed between
     narrowband and broadband operations to minimize interference
     potential. Accordingly, we adopt a one-megahertz paired guard band
     (768-769/798-799 MHz) between the broadband and narrowband
     segments. At this time, we decline to adopt proposals that would
     permit coordinated use or leave the size of the internal guard band
     to the discretion of the Public Safety Broadband Licensee. We
     believe that certainty in the band plan is important particularly
     at the initial stages of the design and implementation of the
     public safety broadband network.[^757] We include this guard band
     as part of the public safety broadband license, and require the
     Public Safety Broadband Licensee to use this guard band as a buffer
     between the surrounding public safety broadband and narrowband
     operations.

#### Border Issues

349. [Background]{.underline}. In the *700 MHz Further Notice*, we noted
     that one virtue of the BOP and the Access Spectrum/Pegasus
     alternative proposal is its proposed shift in the spectral location
     of the block dedicated to public safety, which would result in an
     overlap of 1 megahertz of the 6-megahertz paired narrowband
     channels with TV channels 63 and 68, which Canada had already
     agreed to clear.[^758] Because we tentatively concluded that we
     could not adopt the BOP, we sought comment on whether to
     temporarily allow, in border areas, narrowband voice communications
     within the public safety internal guard band, to account for the
     fact that, at the time, Canada had not yet set a DTV transition
     date for channels 64 and 69.[^759] As discussed elsewhere, the band
     plan we adopt incorporates a shift of the 700 MHz Public Safety
     Band down by 1 megahertz.

350. Since we released the *700 MHz Further Notice*, Canada announced
     that, as of August 31, 2011, it will have completed its DTV
     transition, including on channels 64 and 69.[^760] Thus, while
     Canada has now established a firm DTV transition date, it will
     continue to trail the U.S. DTV transition by two and a half years.
     Further, there remains support in the record to obtain the benefits
     of the downward shift for purposes of narrowband operations that
     would be impacted by Canadian TV operations.[^761] Alcatel-Lucent
     states, however, that a one-megahertz shift will present
     interference issues as public safety broadband operations would be
     shifted into existing TV channels 62 and 67, which have Canadian
     television station operations.[^762]

351. [Discussion.]{.underline} We find that our revised band plan
     sufficiently addresses these issues arising at the Canadian border.
     By adopting a band plan that implements a shift of the 700 MHz
     Public Safety Band 1 megahertz lower in the 700 MHz Band, we find
     that narrowband operations can occur in the uppermost one megahertz
     of channels 63 and 68 and thus outside of channels 64 and 69 where
     there will be continued Canadian analog TV operations.[^763] In
     this manner, narrowband operations can be undertaken at 769-770 and
     799-800 MHz at the Canadian border without interference concerns.
     Also, the downward shift makes it unnecessary for us to authorize
     use of the public safety internal guard band to accommodate
     narrowband operations at the border. With respect to
     Alcatel-Lucent's concerns regarding the effect of Canadian
     broadcasters operating on TV channels 62 and 67, we believe the
     effect on public safety broadband operations will be very limited.
     As Alcatel-Lucent points out, the border area is not densely
     populated, and it is unlikely that maximum use of the broadband
     segment would be expected prior to the discontinuation of Canadian
     broadcasts in that spectrum.[^764] On balance, we find that the
     benefits of the one-megahertz downward shift outweigh the limited
     impact on broadband operations in the border area.

352. We do not, at this time, adopt any measures specific to the
     potential for continued TV operations in Mexico. The comments filed
     on this issue do not suggest there is a pressing need to take any
     particular actions at the present time concerning narrowband
     operations in the area of the Mexican border.[^765] In the
     meantime, the United States and Mexico continue ongoing discussions
     concerning Mexican broadcast operations at the border. Accordingly,
     we will take future action, if and when appropriate, to address
     matters concerning public safety narrowband operations near the
     Mexican border.

#### Technical Parameters

353. In the *700 MHz Further Notice*, we sought comment on whether it is
     appropriate to provide the same flexibility to 700 MHz Public
     Safety broadband operations as that afforded 700 MHz Commercial
     Services Band licensees by implementing a PSD model for defining
     power limits, permitting increased power in rural areas, and
     permitting measurement of power levels on an average, versus peak,
     basis. We also sought comment on whether the technical restrictions
     adopted for the 700 MHz Commercial Services Band with respect to
     interference protection, if applied to public safety broadband
     spectrum, will protect adjacent band operations.[^766] In response,
     several parties filed comments addressing technical issues. Below
     we examine each technical issue separately.

##### Broadband Power Limits

354. [Background]{.underline}. Motorola states that the Commission
     should adopt the same PSD limits for public safety broadband as we
     adopted in the *700 MHz Report and Order* for the commercial,
     non-Guard Band licenses in the 700 MHz Band.[^767] It contends,
     however, that the Commission should adopt stricter power flux
     density (PFD) limits. It argues that the PFD limits adopted for
     commercial services are insufficient to protect adjacent public
     safety narrowband operations. Motorola recommends that the
     Commission adopt a PFD limit of 300 *u*w/m^2^ for operations in the
     public safety segment.[^768] Alcatel-Lucent opposes adopting this
     PFD limit at this time. It argues that the Commission should wait
     until a more complete record is available.[^769]

355. [Discussion.]{.underline} We agree with Motorola that the public
     interest is served by specifying power limits in terms of PSD
     limits for 700 MHz public safety broadband operations. This
     approach to defining power limits will enable higher power signals
     from wider band technologies. Further, it will better accommodate
     all technologies (*i.e*., it is more technologically neutral)[^770]
     and help standardize 700 MHz broadband mobile (end user) equipment
     across both the commercial and public safety broadband segments in
     the 700 MHz Band.

356. As suggested by Motorola, we also adopt the same PSD limits
     specified for the commercial 700 MHz Band for operation in the 700
     MHz public safety broadband segment. Accordingly, we will allow 700
     MHz public safety broadband base stations employing bandwidths
     greater than 1 megahertz a maximum of 1kW/MHz ERP (*i.e.*, no more
     than 1 kW ERP in any one-megahertz segment).[^771] Stations
     operating with bandwidths of less than 1 megahertz will be
     permitted to operate at a power level up to 1 kW ERP over their
     bandwidth.[^772]

357. For rural area[^773] operations, we received no objections to
     permitting increased power for public safety broadband, as we had
     done in the *700 MHz Report and Order* with respect to commercial
     operations.[^774] Accordingly, we will permit power levels of up to
     2 kW/MHz in rural areas. Also, consistent with our decision in
     non-rural areas, we will allow base stations located in rural areas
     operating with bandwidths less than 1 megahertz to operate at power
     levels up to 2 kW ERP over the licensee's given bandwidth.

358. There was very little in the record concerning the issue of whether
     we should adopt a PFD limit for public safety broadband. We
     conclude that the best course of action given the limited record
     here is to decline to adopt a PFD limit in the public safety
     broadband segment. We note, however, that should additional facts
     be presented, we may revisit this issue in the future.

359. As we did for operations in the commercial 700 MHz Band, we specify
     that power must be measured in "average" rather than "peak"
     terms.[^775] An "average" measurement technique results in a more
     accurate measure of the interference potential for these
     technologies. For the purposes of measuring "average power" we make
     the following determinations. First, the technique shall be made
     during a period of continuous transmission and be based on a
     measurement using one-megahertz resolution bandwidth. Second, we
     shall restrict the peak-to-average (PAR) ratio of the radiated
     signal to 13 dB. Limiting the PAR to 13 dB strikes a balance
     between enabling licensees to use modulation schemes with high PARs
     and protecting other licensees from high PAR transmissions. Parties
     seeking to employ the "average power" measurement technique should
     consult with the FCC Laboratory for guidance on the appropriate
     averaging method for the particular technology they plan to
     use.[^776]

##### Broadband Emission Limit

360. [Background]{.underline}. Alcatel-Lucent proposes that the
     Commission adopt an out-of-band emission (OOBE) limit of 76+10logP
     for public safety broadband operations into the 700 MHz public
     safety narrowband segment.[^777] Ericsson argues that the more
     stringent OOBE limits continue to be necessary to protect public
     safety narrowband operations.[^778]

361. [Discussion.]{.underline} The public safety broadband segments (at
     763-768 and 793-798 MHz) are bounded on the top by the
     one-megahertz internal guard bands, followed by the public safety
     narrowband segments (at 769-775 and 799-805 MHz), and on the bottom
     by the Upper 700 MHz Band D Block. We adopt the following
     out-of-band emission (OOBE) limits for public safety broadband
     transmissions: for base stations, which will transmit in the
     763-768 MHz band, an OOBE limit of 76+10logP (dB) in a 6.25 kHz
     band segment in the 769-775 and 799-805 MHz bands; and for
     mobile/portable stations, which will transmit in the 793-798 MHz
     band, an OOBE limit of 65 + 10logP in a 6.25 kHz band segment in
     the 769-775 and 799-805 MHz bands; We believe these limits will
     adequately protect public safety narrowband operations while
     enabling viable broadband operations. Further, these limits provide
     the same amount of protection previously provided to public safety
     narrowband operations from commercial 700 MHz transmissions,[^779]
     and received support in the record.[^780] We also note that these
     are the same limits we adopt elsewhere for the Upper 700 MHz Band D
     Block and C Block licensees with respect to the 700 MHz public
     safety narrowband segments.

362. Consistent with our decision elsewhere, we will not adopt an OOBE
     limit for public safety broadband emissions falling outside the
     bottom part of the band (below 763/793 MHz) with respect to the
     adjacent D Block spectrum. We reach this conclusion because, under
     the Public/Private Partnership, the Public Safety Broadband
     Licensee and the D Block licensee will be authorized on adjacent
     spectrum and will use the same infrastructure.

##### Broadband Interoperability Standard

363. [Background.]{.underline} Alcatel-Lucent argues that the Commission
     should establish a single nationwide interoperability standard in
     order to facilitate interoperability.[^781] Others, such as
     Northrop Grumman, recommend that the Commission should not
     establish a broadband standard now. They note that advanced 4G
     technologies are still in the early phase of market entry.
     According to Northrop Grumman, establishing a public safety
     broadband standard would be premature and stifle public safety's
     present and future access to the marketplace and commercial
     innovation.[^782] It contends that interoperability will develop
     through the evolution of commercial broadband wireless and network
     standards, IP-based design of networks with new standardized layers
     now being used commercially such as IP Multimedia Subsystems (IMS),
     and the robust adaptability of the latest broadband wireless user
     equipment, with multi-band function and/or software-defined
     characteristics, providing imbedded interoperability.[^783]

364. [Discussion]{.underline}. We find that the development of a
     nationwide broadband interoperability standard is imperative.
     Having a common standard will lead to the development of common
     network and subscriber equipment, and thus enable the economies of
     scale we envision for the Public Safety Broadband Licensee.
     Furthermore, once a common standard is adopted, all public safety
     entities will be required to follow this standard in order to
     participate in the nationwide broadband network. This, in turn,
     will permit disparate public safety entities to interoperate with
     each other, anywhere in the country. Rather than having the
     Commission select this standard, however, we find that it would be
     more efficient and appropriate to require the Upper 700 MHz D Block
     licensee and the Public Safety Broadband Licensee to agree to a
     broadband standard as part of their negotiation of the NSA. The
     Commission will have an opportunity to pass on the standard so
     selected as part of its overall review, and approval, of the NSA.

### Public Safety Broadband Licensee

365. In light of our nation's current and anticipated public safety and
     homeland security needs, we proposed a comprehensive plan to
     promote the rapid deployment of a nationwide, interoperable,
     broadband public safety network, and thereby improve emergency
     responsiveness. This plan is based on taking "a centralized and
     national approach to maximize public safety access to
     interoperable, broadband spectrum in the 700 MHz Band."[^784]
     Accordingly, we proposed that a single, public safety broadband
     licensee (Public Safety Broadband Licensee) be assigned the public
     safety broadband spectrum on a primary basis.[^785]

366. We conclude that the public interest is best served by establishing
     a single nationwide Public Safety Broadband License for the 700 MHz
     public safety broadband spectrum. We will assign this license to a
     single Public Safety Broadband Licensee that will be responsible
     for implementing the 700 MHz public safety nationwide interoperable
     broadband network. This network will serve to provide public safety
     entities access to new broadband technologies across the country.
     Further, as discussed elsewhere, we provide that the Upper 700 MHz
     D Block Licensee will gain access to the 700 MHz public safety
     broadband spectrum on a secondary preemptible basis through a
     spectrum leasing arrangement with the Public Safety Broadband
     Licensee. In the paragraphs below, we discuss the rules and
     policies governing the Public Safety Broadband Licensee.

#### Single Nationwide Geographic Area License 

367. [Background]{.underline}. In the *700 MHz Public Safety Ninth
     Notice*, we sought comment on whether to license the 700 MHz public
     safety broadband spectrum on a nationwide basis. We recognized that
     licensing the entire public safety broadband spectrum to a single
     licensee would be a departure from the Commission's traditional
     practice of licensing individual state and local jurisdictions on a
     site-by-site basis.

368. Most commenters agree that licensing a single, national public
     safety entity for the provision of public safety broadband service
     would best achieve our goal of establishing a nationwide
     interoperable broadband network. For example, NPSTC states that it
     "has become increasingly apparent to NPSTC that deployment of a
     nationwide public safety broadband network is enormously important
     for emergency responders at all levels of government: local, state
     and federal."[^786] APCO notes that "the public safety community
     has increasingly recognized the need for consolidation of
     communications systems and functions." APCO also notes that there
     are "particular advantages to having a single licensee for the
     national broadband network."[^787] Others also support the
     nationwide license concept.[^788] On the other hand, some oppose a
     national licensing approach. For example, the State of California
     indicates that it does not believe that the nationwide,
     interoperable, broadband network proposed by the Commission is a
     viable alternative.[^789] Region 43 (Washington) argues that the
     700 MHz spectrum should remain under control of the regional
     planning committees.[^790] Sharp Communications contends that
     public safety agencies should have the ability to license, own and
     operate their own high-speed data systems.[^791] The Metropolitan
     Washington Airports Authority also opposes a single national public
     safety broadband licensee.[^792]

369. [Discussion]{.underline}. Traditional site-by-site licensing is
     designed primarily to license dispatch radio systems on a
     transmitter-by-transmitter basis in local areas, yet is very
     cumbersome for radio systems comprising hundreds or thousands of
     sites. On the other hand, creating a single nationwide geographic
     area license offers greater flexibility and eases the
     administrative burden on both the public safety community and the
     Commission.[^793] We find that centralizing the responsibilities
     for implementing a broadband network across the entire county under
     a nationwide geographic area license, assigned to a single entity,
     best serves the objectives discussed in the *700 MHz Public Safety*
     *Ninth Notice*, including the goals of achieving a nationwide level
     of interoperability and a public safety network that is robust,
     cost effective, spectrally efficient, and based on a flexible,
     IP-based, modern architecture.[^794] These goals would be very
     difficult, if not impossible, to achieve under regional, state, or
     local level spectrum planning approaches. We thus find that the
     aforementioned benefits of a nationwide license outweigh the
     concerns expressed by some commenters.

370. In addition, a single Public Safety Broadband Licensee can achieve
     significant bargaining and purchasing power in acquiring equipment
     and services needed for the nationwide broadband system, and thus
     be able to obtain economies of scale with respect to network and
     radio equipment not unlike nationwide CMRS systems. This licensee
     also could increase spectrum efficiency as compared to multiple,
     specialized public safety network "silos" overlapping in the same
     area and using incompatible frequencies and technologies.
     Accordingly, we adopt our proposal to license the 700 MHz public
     safety broadband spectrum as a 10-megahertz block (comprised of
     paired, 5-megahertz blocks) under a nationwide geographic area
     license, and we will assign this license to the Public Safety
     Broadband Licensee.

#### Eligibility Criteria

371. [Background]{.underline}. In the *700 MHz Public Safety* *Ninth
     Notice*, we proposed that selection of the Public Safety Broadband
     Licensee should be based on a number of criteria, including, but
     not limited to, experience with public safety frequency
     coordination, not-for-profit status, and ability to represent
     directly all public safety interests. We sought comment on these
     and other criteria, "to ensure that the national licensee is able
     and qualified to adequately address the needs of all public safety
     users."[^795] We also proposed "that no commercial interest may be
     held in the national license or licensee, and that no commercial
     interest may participate in the management of the national
     licensee."[^796]

372. Several commenters state that the national public safety licensee
     should not be, or be controlled in any way, by a commercial
     entity.[^797] Other commenters, however, express support for
     permitting a commercial interest to be held in the public safety
     broadband licensee.[^798] We also received support in the record
     that the nationwide public safety licensee be a non-profit
     organization.[^799]

373. [Discussion]{.underline}. Based on the comments filed on this
     issue, we establish certain baseline criteria for selecting the
     Public Safety Broadband Licensee. First, we adopt our proposal that
     no commercial interest may be held in this licensee, and that no
     commercial interest may participate in the management of the
     licensee. The 700 MHz broadband spectrum to be licensed to the
     Public Safety Broadband Licensee is public safety spectrum and must
     be controlled by and managed by public safety.[^800] We thus reject
     those comments that express support for permitting a commercial
     interest to be held in the licensee. Second, for similar reasons,
     we also adopt our proposal that the licensee must be a non-profit
     organization. Third, the Public Safety Broadband Licensee must be
     as broadly representative of the public safety radio user community
     as possible, including the various levels (*e.g.*, state, local,
     county) and types (*e.g.*, police, fire, rescue) of public safety
     entities.[^801] Fourth, to ensure that the Public Safety Broadband
     Licensee is qualified to provide public safety services, an
     organization applying for the Public Safety Broadband License is
     required to submit written certifications from a total of at least
     ten geographically diverse state and local governmental entities,
     with at least one certification from a state government entity and
     one from a local government entity. The written certifications from
     these state and local governmental entities must verify that: (1)
     they have authorized the applicant to use spectrum at 763-768 MHz
     and 793-798 MHz to provide the authorizing entity with public
     safety services; and (2) the authorizing entities' primary mission
     is the provision of public safety services.[^802] Our goal in
     establishing these criteria is to ensure that the Public Safety
     Broadband Licensee focuses exclusively on the needs of public
     safety entities that stand to benefit from the interoperable
     broadband network.

374. To ensure broad representation and to provide a balance of the
     various public safety interests, as stated above, representation on
     the Board of Directors of the Public Safety Broadband Licensee must
     include organizations representative not only of first responders,
     but of local, county, and state governments whose public safety
     entities must have a voice, as well as emergency management
     officials who represent first responders at a state and local
     level. To that end, we require that the Public Safety Broadband
     Licensee be governed by a voting board consisting of eleven
     members, one each from the nine organizations representative of
     public safety listed below, and two at-large members selected by
     the Public Safety and Homeland Security Bureau and the Wireless
     Bureau, jointly on delegated authority.[^803] The nine
     organizations that shall be represented on the board, with each
     organization represented by one voting board member, are: the
     Association of Public Safety Communications Officials (APCO);[^804]
     the National Emergency Number Association (NENA);[^805] the
     International Association of Chiefs of Police (IACP);[^806] the
     International Association of Fire Chiefs (IAFC);[^807] the National
     Sheriffs' Association;[^808] the International City/County
     Management Association (ICMA);[^809] the National Governor's
     Association (NGA);[^810] the National Public Safety
     Telecommunications Council (NPSTC);[^811] and the National
     Association of State Emergency Medical Services Officials
     (NASEMSO).[^812] Each of the two members at large also shall have
     one vote. No member organization shall be controlled by a
     commercial entity. If any one of these organizations cannot
     participate on the voting board for any reason, such organization
     shall be replaced on the board by another at-large member, selected
     by the Public Safety and Homeland Security Bureau and the Wireless
     Bureau, jointly on delegated authority. This composition of the
     voting board ensures that local public safety agencies and
     governments will continue to have a voice in the use of the 700 MHz
     public safety broadband spectrum, as the overwhelming number of
     first responders are local government employees or volunteers.

375. As stated above, each member of the Board of Directors shall have
     only one vote, and decisions of the Public Safety Broadband
     Licensee, unless otherwise stated herein, shall be by a simple
     majority vote of the Board of Directors. In addition, we specify
     below certain minimum elements of the Articles of Incorporation or
     Bylaws, as appropriate, of the Public Safety Broadband Licensee or
     for which there can be no conflicting provisions:

> *Articles of Incorporation:*

-   [Purposes]{.underline}: Include, among the purposes of the Public
    Safety Broadband Licensee, the following: In its role as the
    licensee and manager of the Public Safety Broadband License, the
    purpose of the Public Safety Broadband Licensee is to represent the
    interests of all public safety entities to ensure that their
    broadband spectrum needs are met in a balanced, fair, and efficient
    manner, in the interests of best promoting the protection of life
    and property of the American public.

-   [Powers]{.underline}: Include, among the powers of the Public Safety
    Broadband Licensee, the following: The licensee shall, consistent
    with its purposes, enter into agreements to ensure the construction,
    maintenance, and operation of a nationwide, interoperable, public
    safety broadband network.

-   [Corporate Status]{.underline}: Specify non-profit status.

-   [Directors]{.underline}: Only those entities identified in this
    Second Report and Order for representation on the Board of Directors
    shall be eligible for membership. Each member entity shall have one
    representative on the Board of Directors.

-   [Amendment]{.underline}. The Articles of Incorporation may be
    amended, repealed, or altered in whole or in part by a two-thirds
    (2/3) majority vote at any properly called meeting of the Board of
    Directors, so long as no such action conflicts with any of the
    requirements, prohibitions, or provisions of this Second Report and
    Order.

> *Bylaws:*

-   [Members]{.underline}. Each member entity shall have one vote on the
    Board of Directors. Proxy voting shall not be allowed.

-   [Discontinuance of Membership]{.underline}. Any member of the Board
    of Directors may at anytime resign from membership by forwarding to
    the FCC, to the attention of the Defense Commissioner, a resignation
    in writing, provided that any outstanding obligations of such member
    to the Public Safety Broadband Licensee have been fully discharged.
    No Board Member may be removed or otherwise have their participation
    on the Board of Directors limited at any time except by Order of the
    FCC, on delegated authority to the Chiefs of the PSHSB and WTB.

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-   [Officers]{.underline}. A Chairman of the Board, Vice Chairman of
    the Board, and Secretary/Treasurer each shall be selected every two
    years from among the members of the Board of Directors, by a
    two-thirds (2/3) majority vote of the Board of Directors. The
    Chairman shall have, as a representative of a member entity, one
    vote, regardless of his/her position as Chairman.

-   [Duties of Chairman]{.underline}. The Chairman shall be responsible
    for the orderly and efficient conduct of the business of the Board
    of Directors; however, nothing shall entitle the Chairman to conduct
    the business of the Public Safety Broadband Licensee except as
    explicitly authorized and approved by the Board of Directors by
    two-thirds (2/3) majority vote.

-   [Duties of Vice Chairman.]{.underline} The Vice Chairman shall
    perform duties as assigned to him/her by the Chairman and/or the
    Board of Directors, and shall act as Chairman in the absence of the
    Chairman.

-   [Duties of Secretary/Treasurer.]{.underline} The Secretary/Treasurer
    shall be responsible for the financial affairs of the Public Safety
    Broadband Licensee, and shall ensure that the Public Safety
    Broadband Licensee files, on a quarterly basis, as required herein,
    a complete financial accounting to the Commission, as well as make
    available, upon request by the Commission or Commission staff,
    financial statements and/or other financial information as
    requested.

-   [Quorum]{.underline}. A majority of the members of the Board of
    Directors shall constitute a quorum for the transaction of business
    by the Board; however, the requirement of a majority or two-thirds
    (2/3) majority vote shall mean a majority of all members of the
    Board of Directors, not simply of members in attendance at a meeting
    and counted as part of the Quorum.

-   [Absence.]{.underline} Should any member of the Board of Directors
    be absent from three consecutive meetings of the Board, such member
    entity shall be presented to the Chiefs of PSHSB and WTB to decide,
    on delegated authority, whether such absence constitutes resignation
    of such member entity.

-   [Amendment]{.underline}. The Bylaws may be amended, repealed, or
    altered in whole or in part by a two-thirds (2/3) majority vote any
    properly called meeting of the Board of Directors, so long as no
    such action conflicts with any of the requirements, prohibitions, or
    provisions of this Second Report and Order.

-   [Non-profit Status]{.underline}. As a non-profit corporation, the
    Public Safety Broadband Licensee shall have no authority to issue
    capital stock or equity. Under no circumstances may a Member of the
    Board of Directors be controlled by or represent a commercial
    entity.

-   [Compensation]{.underline}. Any compensation to or on behalf of a
    Board Member shall be limited to services performed in furtherance
    of the purposes of the Public Safety Broadband Licensee, and shall
    be approved by two-thirds (2/3) vote of the entire Board of
    Directors.

376. To the extent some of these provisions may require extensive FCC
     oversight, we find such oversight in the affairs of the Public
     Safety Broadband Licensee to be appropriate. Such oversight is
     necessary in light of the nature of the public safety broadband
     spectrum licensed to the Public Safety Broadband Licensee as a
     national asset, and in furtherance of the Commission's role in
     ensuring the protection and efficient use of such asset for the
     benefit of the safety of the public.

377. In order to ensure the level of transparency required for the
     Commission and its staff to provide meaningful oversight of the
     affairs of the Public Safety Broadband Licensee, the Public Safety
     Broadband Licensee shall be required to submit, on a quarterly
     basis, a full financial accounting to the Commission, in a format
     to be set forth in the NSA (in order to ensure agreement from the
     commercial partner to such disclosure, as such disclosure will be
     related to the financial affairs of the commercial partner), and as
     approved by the Commission. Such quarterly financial reports shall
     be filed with the Commission, with a copy to the Chiefs of the
     Wireless and the Public Safety and Homeland Security Bureaus.

#### Selection Process

378. [Background]{.underline}. We have adopted herein a single
     nationwide licensee approach and specified minimum eligibility
     criteria. As noted, this is a significant departure from our
     traditional approach to licensing public safety operations.

379. [Discussion]{.underline}. We conclude that the Public Safety
     Broadband Licensee will have a number of novel and significant
     responsibilities that will be essential to the success of the
     national broadband public safety network. Thus, we take very
     seriously the importance of selecting a well-qualified entity to
     serve as this licensee. Further, we recognize that the unique
     requirements of this licensee that we establish herein likely means
     that no existing entity could serve this role; rather, the Public
     Safety Broadband Licensee may need to be newly formed.

380. We delegate authority to the Chief of the PSHSB to issue a public
     notice within thirty days of the release of this Second Report and
     Order soliciting applications for the Public Safety Broadband
     Licensee. The public notice shall specify the baseline criteria we
     establish herein, and describe the procedures and other
     requirements for submitting applications. The Commission will
     select the Public Safety Broadband Licensee and grant to it the
     Public Safety Broadband License consistent with the requirements
     and considerations set forth herein.

#### Responsibilities of the Public Safety Broadband Licensee

381. [Background]{.underline}. In the *700 MHz Public Safety* *Ninth
     Notice*, we sought comment on how a public safety broadband
     licensee could best implement a broadband network that maximizes
     the inherent advantages of broadband communications.[^813] We also
     envisioned the prospect of this licensee engaging in a
     public/private partnership with a commercial entity for shared use
     of a common network architecture.[^814]

382. APCO recommends the public safety broadband licensee retain the
     discretion to make its own determination regarding system
     architecture, the particular technology to be used and network
     resiliency capability.[^815] Motorola states that the licensee must
     have the ability to evaluate and determine the most suitable
     broadband technology to meet the needs of public safety.[^816]
     Similarly, Cyren Call argues that the licensee should have ultimate
     control over the development of the public safety specific
     technical standards and requirements to be incorporated into the
     network.[^817] The Virginia Fire Chiefs Association comments that
     the licensee should have discretion over the degree of commercial
     use of the public safety network.[^818] NPSTC describes among the
     responsibilities of the licensee to negotiate an agreement with the
     commercial partner, and structure the broadband network across the
     country, by aligning user capacity needs, advising on application
     and device standards, invoking priority access to the commercial
     broadband spectrum, and examining commercial secondary use of the
     public safety broadband spectrum.[^819]

383. [Discussion]{.underline}. We find, consistent with the comments we
     received, that the objectives specified in the *700 MHz Public
     Safety* *Ninth Notice* can best be met by affording the Public
     Safety Broadband Licensee significant flexibility and control in
     connection with the construction and use of the nationwide
     broadband public safety network. Providing the Public Safety
     Broadband Licensee sufficient flexibility will allow it to specify
     the requirements of the public safety portion of the broadband
     network to best meet public safety needs. At the same time, we seek
     to balance the discretion afforded the Public Safety Broadband
     Licensee with the concurrent and separate responsibilities of the
     Upper 700 MHz Band D Block licensee and, of course, the public
     interest. Accordingly, we assign to the Public Safety Broadband
     Licensee the following general responsibilities:[^820]

-   Negotiation of the Network Sharing Agreement (NSA) with the winning
    bidder at auction for the Upper 700 MHz Band D Block license,
    pursuant to the terms and timelines described below.

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-   General administration of access to the national public safety
    broadband network by individual public safety entities, including
    assessment of usage fees to recoup its expenses and related
    frequency coordination duties.

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-   Regular interaction with and promotion of the needs of the public
    safety entities that would utilize the national public safety
    broadband network, within the technical and operational confines of
    the NSA.

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-   Use of its national level of representation of the public safety
    community to interface with equipment vendors on its own or in
    partnership with the D Block licensee, as appropriate, to achieve
    and pass on the benefits of economies of scale concerning network
    and subscriber equipment and applications. Any partnership with the
    D Block licensee in conjunction with this responsibility shall not
    limit or alter the Public Safety Broadband Licensee's right to
    determine and approve the specifications of public safety equipment
    that is used on its network.[^821]

-   Sole authority, which cannot be waived in the NSA, to approve, in
    consultation with the D Block licensee, equipment and applications
    for use by public safety entities on the public safety broadband
    network. Accordingly, state and local public safety entities must
    obtain approval from the Public Safety Broadband Licensee prior to
    employing any equipment or applications on the public safety
    broadband network. State or local entities may seek review of a
    decision by the Public Safety Broadband Licensee not to permit a
    desired piece of equipment or application, or particular
    specifications for equipment or applications, from the Chief, Public
    Safety and Homeland Security Bureau, on an expedited basis, and then
    to the full Commission.

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-   Coordination of stations operating on public safety broadband
    spectrum with public safety narrowband stations, including
    management of the internal public safety guard band.

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-   Oversight and implementation of the relocation of narrowband public
    safety operations in channels 63 and 68, and the upper 1 megahertz
    of channels 64 and 69.

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-   Exercise of sole discretion, pursuant to Section 2.103 of the
    Commission's rules, whether to permit Federal public safety agency
    use of the public safety broadband spectrum, with any such use
    subject to the terms and conditions of the NSA.[^822]

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-   Responsibility for reviewing requests for wideband waivers and
    including necessary conditions or limitations consistent with the
    deployment and construction of the national public safety broadband
    network, and consistent with the procedures and restrictions in
    connection with such waivers that we have established elsewhere in
    this Second Report and Order.

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-   Responsibility to facilitate negotiations between the winning bidder
    of the D Block license and local and state entities to build out
    local and state-owned lands.

#### Licensing Issues

384. [Background]{.underline}. As noted above, in the *700 MHz Public
     Safety* *Ninth Notice*, we proposed licensing the 700 MHz public
     safety spectrum on a nationwide basis.[^823] We suggested certain
     baseline performance requirements for the national licensee, but
     otherwise made no specific proposals with regard to license
     terms.[^824]

385. [Discussion]{.underline}. We will grant the nationwide 700 MHz
     public safety broadband license for a term not to exceed 10 years
     from February 17, 2009, which coincides with the term of the NSA
     and the term of the D Block license established elsewhere in this
     Second Report and Order. With certain limited exceptions, this
     geographic area license will provide the Public Safety Broadband
     Licensee with blanket authority to permit construction and
     operations of broadband base stations across the national license
     area.[^825] The licensee will have a renewal expectancy, pursuant
     to which its license will be renewed barring violations of law,
     rules or policy warranting denial of renewal, or changes in
     regulatory direction under the rulemaking process, necessitating
     denial. Finally, we will permit public safety end users
     (mobile/portable operation) to operate without individual licenses
     under the auspices of the Public Safety Broadband License. In order
     to ensure the integrity of the nationwide broadband network and the
     700 MHz Public/Private Partnership that we are enabling, we will
     prohibit disaggregation or partitioning of the Public Safety
     Broadband License. In addition, we prohibit the voluntary
     assignment or transfer of control of this license.[^826] Also, as
     discussed elsewhere in this Second Report and Order, we will allow
     the Upper 700 MHz D Block Licensee to gain access to the 700 MHz
     public safety broadband spectrum on a secondary preemptible basis,
     through a spectrum leasing arrangement with the Public Safety
     Broadband Licensee, for use in the 700 MHz Public/Private
     Partnership.

## 700 MHz Public/Private Partnership 

386. In this section, we adopt a regulatory framework for establishing a
     public/private partnership between a 700 MHz Band commercial
     licensee and the Public Safety Broadband Licensee to further the
     Commission's goal of making a nationwide, interoperable broadband
     network available to state and local public safety users.
     Consistent with the proposal raised in the *700 MHz Further
     Notice*, we conclude that it would serve the public interest to
     adopt service rules establishing a nationwide 10-megahertz
     commercial license in the Upper 700 MHz Band D Block that will be
     awarded to the winning bidder once it has entered into a
     Commission-approved Network Sharing Agreement (NSA) with the Public
     Safety Broadband Licensee. This D Block license will be conditioned
     upon its commercial licensee constructing and operating a
     nationwide, interoperable broadband network across both the D Block
     and the 700 MHz public safety broadband spectrum. This network must
     be used to provide both a commercial service and a broadband
     network service to public safety entities.[^827]

387. Accordingly, we designate the D Block in the Upper 700 MHz Band for
     use with the 700 MHz Public/Private Partnership that we are
     enabling, and we provide substantive and procedural safeguards
     applicable to this public/private partnership to address public
     safety concerns.[^828] We establish requirements regarding the
     nature of the shared wireless broadband network and the respective
     rights and obligations of the D Block licensee and the Public
     Safety Broadband Licensee regarding their partnership and the
     network. We also adopt rules governing the establishment and
     execution, prior to the award of the D Block license, of the NSA
     between the Public Safety Broadband Licensee and the winning bidder
     of the D Block to facilitate shared use of the network and the
     spectrum over which it operates.[^829] In addition, we place
     certain other conditions on the D Block license to protect services
     to the public safety community and facilitate the success of the
     700 MHz Public/Private Partnership, including requirements relating
     to the organization and structure of the partnership, reporting
     requirements, and a prohibition on the discontinuance of public
     safety operations. Finally, we address other issues, including
     bidding credits, license term and renewal, partitioning and
     disaggregation, license assignment and transfer, wholesale, open
     access, and roaming proposals, and the applicability of certain
     regulatory requirements to the D Block licensee.

### Adoption of the 700 MHz Public/Private Partnership

388. [Background.]{.underline} In the *700 MHz Further Notice*, we
     sought comment on Frontline's proposal that the Commission
     designate a nationwide 10-megahertz commercial license in which the
     licensee would be responsible for constructing and operating a
     common, interoperable broadband network infrastructure, operating
     on spectrum associated both with its license and the 700 MHz public
     safety broadband license, which would be used to provide both a
     commercial service and a broadband network service to public safety
     entities.[^830] The commercial network would have access to the
     public safety broadband spectrum on a secondary basis,[^831] and
     broadband public safety users would have priority access to the
     network in times of emergency.[^832] Frontline proposed specific
     performance requirements requiring the commercial licensee to meet
     certain specified build-out benchmarks during the fourth, seventh,
     and tenth years. Frontline also proposed a number of other
     restrictions on the commercial services provided, including that
     those commercial services be provided on a "wholesale,"
     "open-access" basis only, with nationwide roaming services.[^833]

389. In Frontline's filings on which we sought comment, Frontline
     contended that its proposal would serve the key communications
     needs of the public safety community. In particular, it argued that
     the proposal would provide the public safety community with more
     broadband spectrum; facilitate the build-out of a nationwide,
     interoperable public safety broadband network; promote maximum
     equipment choice; and provide public safety with unit-level control
     over local agency networks.[^834] Frontline also contended that its
     proposal would benefit other stakeholders, such as rural and
     smaller carriers who would benefit from nationwide roaming
     services.[^835]

390. We sought comment on the likely effects of Frontline's proposal on
     both commercial and public safety users in the 700 MHz Band and
     whether adoption of such a proposal would serve the public
     interest. We also sought comment generally on whether, and to what
     extent, the Commission should: (a) adopt certain, but not all,
     elements of the Frontline proposal; (b) modify any elements of the
     proposal, adopt any additional requirements, or adopt any
     alternative requirements to achieve the same or similar public
     interest goals; and (c) consider alternative approaches to
     encourage public-private partnerships for sharing spectrum between
     public safety users and commercial licensees in the 700 MHz
     Band.[^836]

391. In response to the *700 MHz Further Notice*, commenters supporting
     Frontline's proposal argue that, although some jurisdictions may be
     able to raise funds sufficient to build out advanced networks, many
     others cannot. These commenters contend that build-out of a public
     safety broadband network through private capital represents the
     best chance for establishing a nationwide, interoperable public
     safety broadband network.[^837] For example, Embarq argues that "a
     single network built, paid for, and operated by a wholesale-only
     provider, such as suggested by the Frontline proposal, provides the
     best chance for various different federal, state, and local Public
     Safety agencies to have a unified, effective network architecture
     supporting public safety."[^838] Several commenters express their
     support for establishing public/private partnerships more
     generally. Sprint Nextel notes that "public-private partnerships
     can enable public safety agencies to take advantage of commercial,
     off-the-shelf technology and otherwise benefit from commercial
     carriers' investments in research and development of advanced
     wireless technologies."[^839] Google notes that, "given the immense
     expense and expertise necessary to build and operate a first-class
     wireless network, commercial and non-commercial entities should be
     given all the regulatory tools necessary to work together to help
     solve each other's problems."[^840] Some parties also express their
     support for the conditions that Frontline would have us place on
     the commercial licensee associated with the proposed public/private
     partnership.[^841]

392. Other commenters oppose Frontline's proposal. Several contend that
     Section 337 of the Act prohibits the Commission from adopting the
     Frontline proposal.[^842] Others argue that the conditions
     Frontline proposes for the commercial licensee in the partnership,
     including wholesale restrictions, open access, and roaming
     requirements, would likely reduce the number of potential bidders
     and drive down the price of the spectrum[^843] or that such
     conditions would require the public/private partnership to operate
     under a business model that is risky and unproven.[^844] Opponents
     also argue that, instead of imposing restrictive conditions, the
     Commission should let market forces work to provide infrastructure
     and/or service to the public safety community.[^845]

393. Opponents also express other concerns about the risks and
     uncertainties associated with certain aspects of the Frontline
     proposal.[^846] Some are skeptical that a commercial operator of a
     national public safety broadband network will serve public safety's
     needs.[^847] Noting Frontline's proposal that the commercial
     licensee must "consult" with the public safety broadband licensee
     on design, construction, and operation of the shared network, NATOA
     argues that "the mere duty to 'consult' does nothing to protect the
     interests and goals of the public safety community."[^848]

394. Finally, several commenters express partial or conditional support
     for the Frontline proposal. For example, Cyren Call generally
     expresses support for the public/private partnership approach
     outlined in Frontline's proposal, but raises concerns about several
     aspects of the proposal and recommends that the Commission address
     certain "structural defects" in the proposal.[^849] APCO cites the
     potential benefits of the public safety/private partnership
     approach outlined in Frontline's proposal, but argues that
     additional measures are necessary to ensure that such a partnership
     serves the needs of the public safety community.[^850]

395. [Discussion.]{.underline} We conclude that establishing a
     regulatory framework to effectuate a public/private partnership
     between the Commission-selected Public Safety Broadband Licensee
     and the winning bidder of the Upper 700 MHz Band D Block license
     would serve the public interest by enabling the construction of a
     nationwide, interoperable broadband public safety network to
     protect the safety of the life, health and property of all
     Americans. We also find, however, that several modifications to
     Frontline's proposal, as well as additional measures, are necessary
     to ensure that such a partnership is successful and serves the
     needs of the public safety community. Accordingly, we designate the
     D Block in the Upper 700 MHz Band to be licensed to a commercial
     entity on a nationwide basis for the purpose of entering into the
     700 MHz Public/Private Partnership with the Public Safety Broadband
     Licensee, and we adopt a number of conditions, requirements, and
     procedures to safeguard services to public safety entities and
     address concerns about the success of the partnership, as discussed
     more fully below.

396. In the *700 MHz Public Safety Ninth Notice*, we proposed a plan to
     promote the rapid deployment of a nationwide, interoperable,
     broadband public safety network.[^851] Our objective was to
     maximize public safety access to interoperable, broadband spectrum
     in the 700 MHz Band, and to foster and promote the development and
     deployment of advanced broadband applications using modern,
     IP-based system architecture.[^852] We find that promoting
     commercial investment in the build-out of a shared network
     infrastructure addresses the most significant obstacle to
     constructing a public safety network -- the limited availability of
     public funding. Providing for a shared infrastructure that uses the
     D Block and the public safety broadband spectrum will help achieve
     significant cost efficiencies.[^853] It will allow public safety
     agencies "to take advantage of commercial, off-the-shelf technology
     and otherwise benefit from commercial carriers' investments in
     research and development of advanced wireless technologies."[^854]
     It will also benefit the public safety community by providing it
     with access to an additional 10 megahertz of broadband spectrum
     during emergencies, when it is needed most. Most importantly, it
     will provide all of these benefits on a nationwide basis. The
     public/private partnership approach thus provides the most
     practical means of speeding deployment of a nationwide,
     interoperable, broadband network for public safety service that is
     designed to meet their needs in times of crisis.[^855] At the same
     time, it will provide the D Block licensee with rights to operate
     commercial services in the 10 megahertz of public safety broadband
     spectrum on a secondary, preemptible basis, which will both help to
     defray the costs of build-out and ensure that the spectrum is used
     efficiently.

397. We are not persuaded that alternatives to a public/private
     partnership suggested by some commenters would achieve the same
     benefits. For example, if we merely provided incentives for
     carriers voluntarily to enter into equivalent partnerships, we
     could not be confident that any carrier would actually agree to
     such an arrangement on a nationwide basis. Such *ad hoc*
     partnerships could occur at a local or regional level, leaving
     large areas of the nation without an interoperable public safety
     network. Separate, independently-created public/private networks
     could also operate on different spectrum, making interoperability
     across the different networks difficult to achieve.

398. In the sections that follow, we consider the record in this
     proceeding regarding establishing a public/private partnership for
     development of a nationwide, shared interoperable wireless
     broadband network -- including those issues Frontline raises in its
     proposal and those commenters identify -- and we address the
     specific features that we establish with regard to the 700 MHz
     Public/Private Partnership.

399. First, we set forth essential components of the 700 MHz
     Public/Private Partnership. We specify certain parameters for the
     shared wireless broadband network, including features relating to
     the technology platform, signal coverage, robustness and
     reliability, capacity, security, operational capabilities and
     control, and certain equipment specifications. With regard to the
     spectrum shared by the common network, we require the Public Safety
     Broadband Licensee to lease the public safety broadband spectrum
     for commercial use by the D Block licensee on a secondary,
     preemptible basis, and we provide that public safety entities will
     have priority access to the Upper 700 MHz D Block spectrum during
     emergencies. We also establish certain minimal performance
     requirements relating to construction and build-out of the shared
     700 MHz Public/Private Partnership network. Next, we specify
     certain mandatory provisions of the Network Sharing Agreement that
     the parties will enter into as part of the Public/Private
     Partnership. In addition, we establish a license term for the D
     Block license. Finally, we provide that this licensee will have the
     exclusive right and obligation to build out the shared network
     using the 700 MHz public safety broadband spectrum, except in very
     limited situations.

400. Second, we provide several safeguards relating to the 700 MHz
     Public/Private Partnership. These safeguards include certain
     procedural rules regarding how the NSA will be negotiated and
     executed. Thus, we require that the NSA be approved by the
     Commission and executed by the parties as a pre-condition of the
     grant of the D Block license to the winning bidder. We also impose
     certain obligations regarding timeframes for the negotiation
     process. We further establish that, if a negotiation dispute must
     be brought to the Commission, the Commission may choose from a
     number of alternative measures, at its option, to address the
     dispute, including issuing a decision resolving outstanding issues
     or possibly reauctioning the D Block license.

401. In addition, to support continued construction and operation of the
     shared wireless broadband network and to address contingencies that
     might result in the event that the D Block licensee or any related
     entities suffer financial problems, or defaults on its obligations,
     we impose a number of measures to ensure implementation of the
     network and the prevention of any interruption in ongoing network
     services on which public safety users are depending. Given the
     critical public interest goal of providing 700 MHz broadband
     network service to the nation's local and state public safety
     entities, these measures include establishing requirements relating
     to the organization and structure of the 700 MHz Public/Private
     Partnership that should reduce the risk that the D Block license or
     network assets will be drawn into bankruptcy. To guard against
     discontinuance of operations, we prohibit this licensee or any
     related entities from discontinuing or degrading service to public
     safety users absent Commission approval. We also require that the
     Public Safety Broadband Licensee be granted an assignable right to
     purchase the assets of the network in the event the D Block license
     is cancelled or terminated, by reason of default or for any other
     reason, and a right of first refusal to purchase the network assets
     if and whenever such assets are otherwise to be sold. In the event
     the D Block license is cancelled and the spectrum is awarded to a
     new licensee, we provide that the Public Safety Broadband
     Licensee's right to purchase will be assigned to the new D Block
     licensee.

402. Third, we address the remaining issues relating to the D Block
     license. Specifically, we conclude that although partitioning or
     disaggregation of the license will not be permitted, we will permit
     assignment or transfer of the license provided that the Commission
     is satisfied that this would be in the public interest. We also
     address other issues relating to the commercial services offered by
     the D Block licensee under the license authorization. In
     particular, we decline to adopt the wholesale/open access proposals
     for this license, or impose special roaming requirements for
     application to this particular license. Finally, we clarify that we
     will require the D Block licensee to meet regulatory obligations
     such as E911 and CALEA to the same extent as providers in other
     commercial spectrum.

### Essential Components of Public/Private Partnership

#### Shared Wireless Broadband Network

403. [Background]{.underline}. In its original filings on which we
     sought comment in the *700 MHz Further Notice*, Frontline proposed
     that the shared broadband network should satisfy certain general
     requirements, including meeting public safety standards for
     robustness, security, redundancy, and interoperability.[^856]
     Frontline contended, however, that the specifications for the
     shared broadband network should be left to negotiation between the
     commercial licensee and the public safety broadband licensee, and
     its proposed rule would merely require that the commercial licensee
     "consult" with the public safety broadband licensee before
     determining network specifications. Frontline also proposed that
     the commercial licensee's commercial operation be subject to the
     same survivability, throughput, security, and interoperability
     requirements specified by the public safety broadband rules.[^857]

404. Public safety commenters argue that Frontline's proposal that the
     commercial licensee only be obligated to "consult" with public
     safety is insufficient to ensure that the technical specifications
     established for the network would meet public safety needs.[^858]
     APCO argues that "the network sharing agreement must contain
     provisions to address the required levels of service reliability,
     necessary security levels, system maintenance, redundancy and other
     critical matters."[^859] NPSTC states that "the network's
     infrastructure and operations, and its quality of service, must
     reflect public safety's long identified standards of coverage,
     priority access and system restoration, reliability and
     security."[^860] NPSTC also states that capacity is a key
     consideration, arguing that "the Commission should require a
     detailed capacity plan as one of the central elements in the
     negotiated agreement . . . ."[^861] RCC expresses concern about the
     commercial licensee's ability to meet public safety needs, noting
     that "commercial interest cannot, consistent with profit
     maximization, provide the coverage, network robustness, maintenance
     and operations protocols, and other system characteristics required
     by public safety."[^862] Other commenters express concern about the
     potential for public safety network requirements to make the
     spectrum less desirable to potential bidders. For example, AT&T
     asserts that uncertainty regarding the scope of the "network design
     requirements" would make it difficult for potential bidders to make
     an informed business judgment about the spectrum's value.[^863]

405. [Discussion]{.underline}. In order to have a successful
     public/private partnership with a shared nationwide interoperable
     broadband network infrastructure that meets the needs of public
     safety, we adopt certain network requirements. The public/private
     partnership network will serve as the nation's public safety
     wireless broadband network infrastructure, so it must meet the
     requirements of a public safety communications network.
     Accordingly, we require that the network incorporate, at a minimum,
     the following:

-   Specifications for a broadband technology platform that provides
    mobile voice, video, and data capability that is seamlessly
    interoperable across agencies, jurisdictions, and geographic areas.
    The platform should also include current and evolving
    state-of-the-art technologies reasonably made available in the
    commercial marketplace with features beneficial to the public safety
    community (*e.g.*, increased bandwidth).

-   Sufficient signal coverage to ensure reliable operation throughout
    the service area consistent with typical public safety
    communications systems (*i.e.*, 99.7 percent or better reliability).

-   Sufficient robustness to meet the reliability and performance
    requirements of public safety. To meet this standard, network
    specifications must include features such as hardening of
    transmission facilities and antenna towers to withstand harsh
    weather and disaster conditions, and backup power sufficient to
    maintain operations for an extended period of time.

-   Sufficient capacity to meet the needs of public safety, particularly
    during emergency and disaster situations, so that public safety
    applications are not degraded (*i.e.*, increased blockage rates
    and/or transmission times or reduced data speeds) during periods of
    heavy usage. In considering this requirement, we expect the network
    to employ spectrum efficient techniques, such as frequency reuse and
    sectorized or adaptive antennas.

-   Security and encryption consistent with state-of-the-art
    technologies.

-   A mechanism to automatically prioritize public safety communications
    over commercial uses on a real-time basis and to assign the highest
    priority to communications involving safety of life and property and
    homeland security consistent with the requirements adopted in this
    Second Report and Order.

-   Operational capabilities consistent with features and requirements
    specified by the Public Safety Broadband Licensee that are typical
    of current and evolving state-of-the-art public safety systems (such
    as connection to the PSTN, push-to-talk, one-to-one and one-to-many
    communications, etc.).

-   Operational control of the network by the Public Safety Broadband
    Licensee to the extent necessary to ensure public safety
    requirements are met.

-   The Public Safety Broadband Licensee shall have the right to
    determine and approve the specifications of public safety equipment
    that is used on the network, and the right to purchase its own
    subscriber equipment from any vendor it chooses, to the extent such
    specifications and equipment are consistent with reasonable network
    control requirements established in the NSA.

-   A requirement, as explained more fully herein, that the Upper 700
    MHz D Block licensee make available to the Public Safety Broadband
    Licensee at least one handset that would be suitable for public
    safety use and include an integrated satellite solution capable of
    operating both on the 700 MHz public safety spectrum and on
    satellite frequencies.

406. These requirements are to be implemented by the parties through the
     NSA, which will also include the detailed specifications of the
     network that the D Block licensee will construct. By allowing the
     parties to determine specific details, including the technologies
     that will be used, subject to approval by the Commission, we
     provide them with flexibility to evaluate the cost and performance
     of all available solutions while ensuring that the shared wireless
     broadband network has all the capabilities and attributes needed
     for a public safety broadband network.

#### Spectrum Use

407. [Background]{.underline}. Under Frontline's proposal, the shared
     network would operate on both the commercial licensee's spectrum
     and the public safety 700 MHz broadband license spectrum. In its
     filings on which we sought comment, Frontline proposed that the
     spectrum from the two licenses would be shared in two ways. First,
     it proposed that the public/private network would provide
     commercial services on 10-megahertz of spectrum licensed for
     commercial use and on the public safety broadband spectrum on a
     secondary, preemptible basis.[^864] Second, Frontline proposed that
     the network would provide public safety users with broadband
     service on the public safety broadband spectrum but also provide
     public safety agencies with priority access to its commercial
     spectrum in emergencies.[^865] With regard to emergency priority
     access, Frontline further proposed that the procedures and
     protocols for such use should be defined in an agreement between
     the commercial licensee and the national public safety
     licensee.[^866]

408. Prior to Frontline's submission of its proposal, we had sought
     comment on the issue of commercial use of public safety spectrum on
     a secondary basis. Specifically, in the *700 MHz Public Safety
     Ninth Notice*, we sought comment on whether to permit the leasing
     of the public safety broadband spectrum to commercial providers on
     a secondary, unconditionally preemptible basis.[^867] We noted that
     Section 337(a)(1) of the Act requires that the 24 megahertz of 700
     MHz spectrum be allocated for "public safety services."[^868] We
     also sought comment in the *700 MHz Public Safety Ninth Notice* on
     whether it would be necessary, in order to allow the commercial use
     of the public safety spectrum on a secondary basis, to make a
     specific allocation for such secondary use in the 700 MHz Public
     Safety Band.[^869] In the *700 MHz Further Notice*, we noted that
     Frontline's proposal was premised on, among other things, our
     permitting commercial operations in the public safety spectrum on a
     secondary basis as proposed in the *700 MHz Public Safety Ninth
     Notice.*[^870]

409. Commenters have addressed both aspects of the proposed spectrum
     sharing by the public/private partnership. With regard to the
     proposal to allow the commercial licensee in the public/private
     partnership to use public safety spectrum for commercial operations
     on a secondary basis, some commenters argue that Section 337 of the
     Act prohibits the commercial use of public safety spectrum even on
     a secondary basis.[^871] Specifically, several argue that the
     provision of commercial services in the public safety spectrum on a
     secondary basis would violate the requirement of Section 337(a)(1)
     that such spectrum be allocated for "public safety services."[^872]

410. In addition, some commenters argue that permitting public safety
     users to access the 700 MHz commercial spectrum on a priority basis
     during emergencies would also violate the requirement under Section
     337(a)(2) that such spectrum be allocated "for commercial
     use."[^873] These commenters also express concerns involving the
     implementation of emergency priority access. MetroPCS argues that
     any system that relies on the implementation of a complex priority
     scheme during an emergency would not be beneficial to public
     safety.[^874] It also argues that preemption of commercial access
     during times of emergency could result in fatal consequences, and
     that there is near unanimous agreement that such callers must be
     able to use their mobile phones to call for help in such
     situations, such as by dialing 911.[^875] Verizon Wireless argues
     that, instead of adopting the Frontline proposal, the Commission
     should consider establishing rules for the commercial 700 MHz Band
     spectrum similar to the Commission's existing Part 64 Priority
     Access Rules, which permit carriers voluntarily to offer public
     safety entities priority access to open channels.[^876]

411. Other commenters, however, support providing public safety users
     with priority access to commercial spectrum during
     emergencies.[^877] APCO asserts that the current public safety
     broadband allocation in the 700 MHz Band is insufficient to address
     all of public safety's requirements, especially during emergency
     operations.[^878] California supports the proposal, but emphasizes
     that priority access must be instantaneously available to field
     users when they choose and that preemption of commercial traffic
     should not require any hierarchical approval chain.[^879] Several
     commenters raise concerns that the term "emergency" is not
     sufficiently defined and urge the Commission to provide a more
     detailed explanation of the term in its rules.[^880] APCO asserts
     that the definition should take into account that "much of what a
     first responder does on a day to day basis involves an emergency
     situation."[^881] GEOCommand asserts that unconditional access
     solely as defined by a public safety entity may be too problematic,
     but that excessively limited access is equally problematic.[^882]
     NPSTC asserts that priority access will be of little or no value if
     limited to large incidents, that virtually every public safety
     response is an emergency "to someone" and that the need for access
     should not be defined by the character of the incident but rather
     by the need to assist citizens.[^883] Finally, California asserts
     that an exception to traffic preemption should be made for 911
     calls and asserts that the NSA should also allow for other
     exceptions as they arise.[^884]

412. [Discussion.]{.underline} We permit the Public Safety Broadband
     Licensee to provide access on a secondary and preemptible basis to
     this spectrum, pursuant to the spectrum lease specified herein, for
     the purpose of enabling commercial operations within the band
     devoted to primary public safety broadband use. The Upper 700 MHz D
     Block licensee will gain access to this public safety broadband
     spectrum by means of a spectrum leasing arrangement with the Public
     Safety Broadband Licensee. We also place additional conditions
     regarding the use of the D Block spectrum, including a requirement
     that the D Block licensee provide the Public Safety Broadband
     Licensee with priority access to the D Block license spectrum
     during emergencies.

413. We disagree with commenters who assert that the Act prohibits us
     from adopting a plan facilitating a public/private partnership
     through a shared use of spectrum between the Public Safety
     Broadband Licensee and a commercial spectrum lessee.[^885] We
     conclude that Section 337(a)(1) does not prohibit the Public Safety
     Licensee from entering into the lease for commercial operations, on
     a limited and preemptible basis as specified herein, of spectrum
     that is allocated for public safety services. In addition, we find
     that Section 337(a)(2), which directs us to allocate 36 megahertz
     "for commercial use," does not prohibit us from requiring the D
     Block licensee to provide public safety users with priority access
     to D Block license spectrum in an emergency. Priority service,
     although provided to public safety, will still be commercial, and
     will not appreciably impair the D Block licensee's ability to
     provide commercial services to other parties.

414. *Commercial Operations in Public Safety Spectrum on a Secondary
     Basis.* We permit the leasing of the Upper 700 MHz Band spectrum
     currently allocated for public safety services to commercial
     providers on a secondary, unconditionally preemptible basis. As we
     explain below, the spectrum leasing arrangement permitted here and
     the conditions placed on the use of the spectrum are designed to
     ensure that any commercial use does not undermine the "principal
     purpose" of the services provided in this band "to protect the
     safety of life, health, or property," as required by Section
     337.[^886]

415. We find that authorizing the Public Safety Broadband Licensee to
     enter into the spectrum leasing arrangement in this band described
     in detail below is an integral element of the package of rights and
     responsibilities we establish in this Second Report and Order with
     respect to the 700 MHz Public/Private Partnership involving the
     Upper 700 MHz D Block license and the Public Safety Broadband
     License. The Public Safety Broadband Licensee will be required to
     lease the public safety spectrum for use by the D Block licensee on
     a secondary basis pursuant to the requirements set forth in the NSA
     and established in this Second Report and Order.[^887] Thus, under
     the 700 MHz Public/Private Partnership framework that we are
     adopting, the D Block licensee will be obligated to construct a
     broadband network capable of operating on the public safety
     broadband spectrum for the benefit of the Public Safety Broadband
     Licensee, and the Public Safety Broadband Licensee will be
     obligated to permit secondary commercial operations on the public
     safety broadband spectrum pursuant to the spectrum leasing
     arrangement.

416. We have determined that commercial operations on a secondary,
     preemptible basis will maximize the efficient use of the spectrum
     by permitting full use of the public safety broadband spectrum.
     Further, providing the D Block licensee with the opportunity to
     offer commercial services on this spectrum, on a secondary basis,
     is an integral part of a viable framework for enabling the 700 MHz
     Public/Private Partnership to finance the construction of a
     nationwide, interoperable public safety broadband network.[^888]
     Given that this spectrum leasing arrangement will support the
     build-out of a public safety network operating pursuant to the
     Public Safety Broadband Licensee's license, and, given the
     particular role of the Public Safety Broadband Licensee in ensuring
     that the public/private network established pursuant to the 700 MHz
     Public/Private Partnership serves the interests of public safety,
     we conclude that permitting the Public Safety Broadband Licensee to
     lease its spectrum for use by the D Block licensee as part of the
     shared broadband network best serves the public interest. The
     Public Safety Broadband Licensee is uniquely positioned to maximize
     the efficiency for public safety purposes of this spectrum and
     maintain the unfettered use of this spectrum for public safety
     service.

417. We will require that this spectrum leasing arrangement take the
     form of a long-term spectrum manager leasing arrangement for the
     full term of the license.[^889] This type of leasing arrangement
     enables a licensee to accord its spectrum lessee a significant
     degree of operational autonomy without relinquishing *de facto*
     control over the licensed spectrum. At the same time, the spectrum
     lessee remains ultimately responsible for ensuring that the
     spectrum is used in a manner that complies with the applicable
     regulatory and statutory requirements. By limiting the D Block
     licensee's secondary use of the Public Safety Broadband Licensee's
     spectrum to leased access under a spectrum manager leasing
     arrangement, subject to the conditions we are placing on the nature
     of that access, we thus ensure that the Public Safety Broadband
     Licensee has the regulatory means (and obligation) to preserve the
     fundamental public safety function of the band. Moreover, the
     Public Safety Broadband Licensee's ultimate control over the D
     Block licensee's use of this band, coupled with the operational
     flexibility accorded the D Block licensee under a spectrum manager
     leasing arrangement, should provide an appropriate balance between
     commercial and public safety operations in the public safety
     broadband spectrum. Specifically, the spectrum manager leasing
     arrangement permits the D Block licensee to construct a network to
     serve its business needs, yet preserves the network infrastructure
     required for primary public safety use in the Public Safety
     Broadband Licensee's band.

418. As further conditions on the spectrum leasing arrangement
     authorized here, the D Block licensee's commercial operations in
     the public safety spectrum must not cause interference to primary
     users (*i.e.,* public safety users) and must accept interference
     from primary users at all times.[^890] To help ensure that
     commercial secondary use complies with these limitations, in the
     public safety broadband spectrum we will require that the network
     be designed so as to automatically assign priority to public safety
     users, to the exclusion and/or immediate preemption of any
     commercial use on a dynamic, real-time priority basis, and that
     network specifications are sufficient to guarantee that public
     safety users suffer no harmful interference or interruption or
     degradation of service due to commercial operations in the public
     safety broadband spectrum. Commercial service should therefore
     operate in an effectively "invisible" manner with regard to public
     safety users.

419. We disagree with commenters who assert that the Act prohibits us
     from permitting commercial operations on a secondary basis in the
     700 MHz public safety spectrum to facilitate the build-out of a
     public safety network.[^891] These commenters construe Section
     337(a)(1), which directs the Commission to allocate 24 megahertz of
     the 700 MHz spectrum "for public safety services,"[^892] as
     requiring such spectrum to be used *exclusively* for public safety
     services.[^893] CTIA, for example, maintains that the Section 337
     "expressly forbids" any use of the relevant 24 megahertz for
     commercial services.[^894] The statutory provision, however,
     includes no such limiting language. It requires neither that the 24
     megahertz at issue be allocated exclusively for public safety
     services nor that it be used only for such services.[^895]
     Moreover, Section 337(a)(1) confers upon the Commission the
     authority to allocate 24 megahertz for public safety services
     "according to the terms and conditions established by the
     Commission." We construe this phrase as affording us broad
     discretion to impose conditions on the use of this spectrum to
     effectuate its optimal use by public safety, and the condition at
     issue here serves just such a purpose.[^896] Namely, the secondary
     preemptible commercial use condition will harness private sector
     resources to facilitate the construction of a nationwide
     interoperable public safety broadband network for use in this
     spectrum, and the record in this proceeding demonstrates the
     pressing need for such a network.[^897] Furthermore, for purposes
     of this analysis, it is critical that this spectrum will be used
     primarily by public safety, and public safety will have the
     absolute right to preempt *any* commercial traffic on this
     spectrum. Thus, we conclude that permitting commercial operations
     in these frequencies through this spectrum leasing arrangement on a
     secondary preemptible basis pursuant to the plan we adopt here does
     not violate Section 337(a) and is in fact fully consistent with
     both the "plain text" and purpose of the statute.

420. In any event, even were we to construe Section 337(a)(1) to require
     this 24 megahertz of spectrum to be devoted exclusively to the
     provision of "public safety services," we would reach the same
     conclusion because the definition of "public safety services" does
     not foreclose the secondary preemptible commercial use at issue
     here. The statute flexibly defines "public safety services" as
     services "the sole or *principal* purpose of which is to protect
     the safety of life, health, or property,"[^898] which suggests that
     even the public safety licensee might engage in other uses of the
     spectrum. Authorizing secondary preemptible commercial operations
     does not impair or materially detract from that statutorily
     mandated "principal purpose." Indeed, it furthers that purpose, as
     noted above, by making funds available for the construction of a
     nationwide broadband network that will greatly benefit public
     safety users.

421. Nor does Section 337(f)(1)(C), which states that "public safety
     services" are services that are "not made commercially available to
     the public by the provider," bar the spectrum leasing arrangement
     under the requirements and conditions contemplated here. We
     construe this language to refer to retail wireless operations,
     rather than to wholesale activities. In particular, we understand
     the prohibition on "the provider" -- in this case, the Public
     Safety Broadband Licensee -- offering services "to the public" to
     restrict the broad offerings, accessible to the general public,
     that are the hallmarks of retail wireless offerings. This
     construction is consistent with Section 337(f)(1)(A) -- that the
     "sole or principal purpose" of "public safety services" is to
     "protect the safety of life, health, or property"[^899] -- in that
     it underscores Congress's determination that public safety should
     be the primary mission of the public safety licensee (not operating
     a retail wireless business). The requirement we adopt here that the
     public safety licensee enter into a wholesale spectrum leasing
     arrangement for use by the D Block licensee -- and *only* the D
     Block licensee -- is a far cry from allowing it to engage in retail
     operations with respect to services that are made "commercially
     available to the public" at large.[^900]

422. We do not regard this construction of Section 337 as inconsistent
     in any way with the Commission's conclusion in construing similar
     language in a different statutory provision. In particular, in the
     *Non-Accounting Safeguards* proceeding, the Commission interpreted
     the statutory definition of "telecommunications service" -- "the
     offering of telecommunications for a fee directly to the public, or
     to such classes of users as to be effectively available directly to
     the public"[^901] -- to encompass both retail and wholesale
     services.[^902] The Commission based that conclusion partly on its
     reading of yet another statutory provision, Section 251(c)(4),
     which refers to both "wholesale" and "retail" offerings of
     telecommunications services,[^903] and on the legislative history
     of the definition of "telecommunications service," which indicated
     that Congress intended the definition to distinguish common carrier
     offerings, provided to the public, from private carriage
     arrangements.[^904] We have no basis to conclude, however, that
     Congress intended to make a similar distinction in requiring that
     "public safety services" not be "made available to the public by
     the provider." Congress adopted the definition of
     "telecommunications service" as part of the Telecommunications Act
     of 1996,[^905] the primary purpose of which was to "open\[\] all
     telecommunications markets to competition."[^906] Congress enacted
     Section 337 in 1997 for the very different purpose of directing
     allocation of the Upper 700 MHz Band, including the allocation of
     24 megahertz to public safety. For this reason, we do not think it
     necessary, or even appropriate, to construe Section 337 on the
     basis of Congressional intent in enacting the local competition
     provisions of the 1996 Act.

423. Nonetheless, even if we were to read "not made commercially
     available to the public" to prohibit common carriage offerings by
     the public safety licensee, this provision does not bar the lease
     arrangement at issue here. The spectrum leasing arrangement, and
     the conditions we place on use of that spectrum, is most akin to
     private carriage, in that the public safety licensee does not makes
     services "available to the public" or to such classes of eligible
     users as to be effectively "available to the public."[^907] Under
     the rules we adopt today, the required lease is a *sui generis*
     arrangement available only to the D Block licensee according to the
     prescribed terms of the lease agreement between the parties.[^908]
     This limitation ensures that the Public Safety Broadband Licensee
     focuses its efforts on public safety, rather than on commercial
     operations, while nonetheless providing a source of financing that
     enables it to fulfill the statutory goal of enhancing public
     safety. We conclude, therefore, that allowing the public safety
     licensee to enter into a private carriage arrangement in which it
     leases public safety spectrum for commercial use by the D Block
     licensee on a secondary basis presents no conflict with Section
     337(f)(1)(C).

424. We find that, in addition to being consistent with the text of
     Sections 337(a)(1) and 337(f), this arrangement is consistent with
     the intentions of Congress to provide 24 megahertz of spectrum for
     public safety use. The secondary use will facilitate the
     construction of the network that will provide public safety
     services while in no way impairing or limiting public safety
     services in the spectrum. Denying public safety the benefits of
     secondary use would thus work against the intent of Congress by
     denying public safety a means of efficiently and effectively making
     use of their spectrum.[^909] We also note that we have taken
     additional measures to ensure that the authorization for commercial
     use on a secondary basis in these frequencies does not in practice
     either hinder or degrade the public safety services in the
     spectrum. For example, we require safeguards adequate to ensure
     that the primary public safety services are protected from
     interference on an automatic basis, and we prohibit the D Block
     licensee from discontinuing or degrading service to public safety
     users. Accordingly, both the text and the statutory purpose argue
     for allowing this secondary use.

425. Our decision to permit the Public Safety Broadband Licensee to
     provide the D Block licensee secondary and preemptible access to
     the 700 MHz public safety broadband spectrum is an integral element
     of the unique package of rights and responsibilities of the
     public/private partnership established in this Second Report and
     Order.  Specifically, the access that we provide to the D Block
     licensee is based on a number of factors specific to this
     partnership, including: (1) the complementary requirement that the
     D Block licensee provide the Public Safety Broadband Licensee with
     priority access to the D Block license spectrum during
     emergencies, (2) the incorporation of the requirements set forth in
     this Second Report and Order as well as the terms and conditions of
     the NSA into the leasing arrangement, (3) the provision of a means
     to enable private sector resources via the 700 MHz Public/Private
     Partnership to finance the construction of a nationwide,
     interoperable public safety broadband network, in light of how the
     record in this proceeding demonstrates the pressing need for such a
     network, and (4) the mandates that the network be designed so as to
     assign priority to public safety users automatically, to the
     exclusion and/or immediate preemption of any commercial use on a
     dynamic, real-time priority basis, and that network specifications
     be sufficient to guarantee that public safety users suffer no
     harmful interference or interruption or degradation of service.  We
     thus do not intend to permit any other leasing arrangements
     involving the 700 MHz public safety spectrum outside of the unique
     circumstances of the public/private partnership and the specific
     conditions we place upon the leasing arrangement between the Public
     Safety Broadband Licensee and D Block licensee.

426. *Priority Public Safety Access to Commercial Spectrum During
     Emergencies*. As part of its responsibilities in managing the
     shared wireless broadband network, we require the D Block licensee
     to provide the Public Safety Broadband Licensee with priority
     access, during emergencies, to the spectrum associated with the D
     Block license (in addition to the 700 MHz public safety broadband
     spectrum). In determining what constitutes an emergency, we agree
     with Frontline that the definition of an "emergency" for this
     purpose should be left to negotiation between the parties.[^910]
     The potential disruption of commercial service in the D Block
     license, while wholly appropriate in an emergency situation, must
     nonetheless be limited to the most serious occasions.[^911]
     Otherwise the commercial viability of the 700 MHz Public/Private
     Partnership could be jeopardized. To balance these competing
     concerns, we require the parties to define "emergency" for purposes
     of priority access to D Block license spectrum as part of the NSA.

427. We expect that the terms of the NSA will ensure cooperation by the
     D Block licensee and the Public Safety Broadband Licensee when they
     are called upon to coordinate priority access to D Block license
     spectrum for first responders facing an emergency. Nevertheless, we
     recognize that there may be occasions when the parties are unable
     to agree that an emergency situation requires priority access to
     the D Block license spectrum, especially in circumstances that do
     not clearly fall within the definition of "emergency" negotiated by
     the parties in the NSA. On these occasions, the Public Safety
     Broadband Licensee may request that the Commission declare, on an
     expedited basis, that particular circumstances warrant emergency
     priority access. In order to facilitate this process and ensure a
     prompt response, we delegate authority to the Defense Commissioner
     to decide these requests and amend Section 0.181 of our Rules to
     reflect this new duty.

428. We emphasize that this priority access to D Block license spectrum
     is intended to ensure that public safety entities have sufficient
     bandwidth for their emergency communication needs. Under emergency
     conditions, all public safety entities in the affected area will
     have real-time access, as needed, to all D Block license spectrum
     on a priority basis over commercial traffic and will preempt
     ongoing commercial traffic to the extent necessary. In this regard,
     we require the D Block licensee to provide appropriate warnings to
     its commercial customers about the potential interruption of their
     service during emergencies due to preemption by public safety
     users.  The NSA should address how the D Block licensee will
     satisfy this obligation, including, for example, encouraging the
     use of devices that can access spectrum other than the D Block. 
     The NSA must also recognize that emergency 911 calls from
     commercial users also play a critical role in safeguarding public
     safety and should be accorded some level of priority, which may be
     lower priority than public safety communications but will not be
     subject to interruption of ongoing calls by public safety users and
     will have priority over all other commercial uses.

429. We find that Section 337(a)(2), which directs us to allocate 36
     megahertz "for commercial use," does not prohibit us from requiring
     the D Block licensee to provide public safety users with priority
     access to D Block license spectrum in an emergency. The D Block
     license spectrum is still allocated for commercial use, will be
     used primarily to provide commercial services to the public at
     large, and will be assigned by competitive bidding pursuant to
     Section 309(j) of the Act. Although in an emergency, the priority
     access to network services is provided to public safety users, this
     service itself is a commercial service that will be provided to
     public safety for a fee, albeit one that is not made available to
     the general public and is provided according to terms specified in
     regulation. Further, because emergency access to commercial
     spectrum would be triggered only in rare circumstances, it should
     not hinder the licensee from operating a successful commercial
     service. We therefore conclude that it is not inconsistent with
     Congressional intent that this spectrum be used by public safety in
     times of emergency.

430. We also find that the D Block license is consistent with our
     statutory mandate to assign commercial 700 MHz Band spectrum by
     competitive bidding pursuant to Section 309(j) of the Act. The
     conditions associated with the D Block license do not alter that
     requirement or prevent us from offering the D Block at auction. The
     Commission has stated that "the relevant statutory prerequisite
     \[for competitive bidding\], as set forth in Section 309(j) of the
     Budget Act, is that mutually exclusive applications are accepted
     for filing. This standard does not require that the relevant
     spectrum be completely unoccupied by other services."[^912] We will
     accept mutually exclusive applications for filing with regard to
     the D Block spectrum, which will be subject to auction and will be
     used primarily to provide commercial services to the public at
     large.

431. *Secondary Markets Rules.* In permitting the Public Safety
     Broadband Licensee to enter into this spectrum leasing arrangement
     subject to the conditions we set out in this order, we waive the
     Commission's spectrum leasing policies and rules insofar as they
     prohibit public safety licensees from entering into spectrum
     leasing arrangements for commercial operations.[^913] We determine,
     consistent with our proposal in the *700 MHz Public Safety Ninth
     Notice*,[^914] that permitting commercial use of public safety
     spectrum on a secondary basis on an unconditionally interruptible
     basis, as part of the 700 MHz Public/Private Partnership for
     developing an interoperable network for public safety use, would
     serve the public interest.

#### Performance Requirements

432. [Background]{.underline}. In the *700 MHz Further Notice*, we
     sought comment on Frontline's proposal that the commercial licensee
     responsible for constructing the shared network be required to meet
     the following build-out benchmarks: provide coverage to 75 percent
     of the United States population within four years of the 700 MHz
     "auction clearing date;" provide coverage to 95 percent of the
     United States population within seven years; and provide coverage
     to 98 percent of the United States population within 10
     years.[^915] With regard to Alaska, the *700 MHz Further Notice*
     sought comment on Frontline's proposal that the licensee be
     required to provide coverage to all Alaskan cities of 10,000 or
     more within four years of the 700 MHz auction clearing date.[^916]

433. In comments to the *700 MHz Further Notice*, Frontline proposes
     that for the continental United States and Hawaii the D Block
     licensee be required to cover: 75 percent of the U.S. population
     (or equivalent geographic coverage) within four years; 95 percent
     of the U.S. population (or equivalent geographic coverage) within
     seven years; and 99 percent of the U.S. population (or equivalent
     geographic coverage) within ten years.[^917] With respect to
     Alaska, Frontline proposes that the D Block licensee be legally
     obligated to providing coverage to all Alaskan cities of 5,000 or
     more by the end of the fourth year after construction begins, and
     thereafter the D Block licensee should be required to work with the
     Alaska Land Mobile Project to formulate a plan appropriate to
     Alaska's unique coverage challenges.[^918] Frontline states that
     these performance requirements should take effect on the later of
     either the date the D Block license is granted or the statutorily
     imposed DTV transition date of February 17, 2009.[^919]

434. In its comments, NPSTC states that it strongly encourages the
     Commission to mandate minimum coverage requirements of 99.3 percent
     of the population at year 10.[^920] NPSTC states that its 10-year
     population-based benchmark proposal would provide coverage to every
     county with a population density of five or more persons per square
     mile. NPSTC also thinks that it is important for the Commission to
     impose interim coverage benchmarks for the fourth and seventh
     years. NPSTC proposes interim benchmarks of 25 percent of
     population within four years and 95 percent of population within
     seven years.[^921] In its July 6, 2007 *Ex* *Parte* filing, NPSTC
     revises its first interim benchmark to 75 percent of population
     within four years and maintains it second and third benchmark
     proposals of 95 percent of population within seven years and 99.3
     percent of population in 10 years.[^922] NPSTC also states in its
     *Ex* *Parte* that it would support additional requirements to
     ensure coverage for isolated population centers, and anticipates
     the use of satellite technologies to provide coverage to remote
     areas.

435. APCO, the International Association of Chiefs of Police (IACP), the
     International Association of Fire Chiefs (IAFC), and California
     state that they support the population-based benchmark proposal
     outlined in NPSTC's comments.[^923] APCO, IACP and IAFC also call
     for coverage for major highways and interstates, as well as "such
     additional areas that are necessary to provide coverage for all
     incorporated communities with a population in excess of 3,000,
     unless the national public safety license and commercial licensee
     jointly determine, in consultation with a relevant community, that
     such additional coverage will not provide significant public
     benefit."[^924] Cyren Call proposes 50 percent population coverage
     at four years, 80 percent population coverage at seven years, and
     99 percent population coverage at 10 years.[^925] RCC argues that
     the Commission should impose a geographic coverage requirement
     because public safety has coverage needs in low or zero population
     areas.[^926] NENA argues that the Commission should impose a mix of
     population- and geographic-based performance requirements.[^927]
     AT&T argues that in addition to a population- or geographic-based
     build-out requirement, the Commission should impose a public safety
     loading or participation requirement.[^928]

436. Embarq argues that the Commission should adopt stringent build-out
     requirements in both urban and rural markets.[^929] Northrop
     Grumman urges the Commission to permit flexibility to allow interim
     deployment of local or regional broadband networks by public safety
     entities in areas where the national broadband network build out
     will not occur in the near term.[^930] Region 9 (Florida), Region
     14 (Indiana), and Region 16 (Kansas) express concern that the
     proposed build-out schedule would result in long delays before
     public safety will be able to access the system, especially in
     rural areas.[^931] With respect to the date when the performance
     requirements should begin to take effect, Embarq notes that any
     build-out requirements that the Commission imposes must recognize
     that band clearing will not occur until the DTV transition is
     completed on February 17, 2009.[^932]

437. [Discussion]{.underline}*.* We adopt specific performance
     requirements that include three population-based build-out
     benchmarks that cover the nationwide D Block license area.[^933]
     Specifically, we will require the D Block licensee to provide
     signal coverage and offer service to at least 75 percent of the
     population of the nationwide D Block license area by the end of the
     fourth year, 95 percent of the population of the nationwide license
     area by the end of the seventh year, and 99.3 percent of the
     population of the nationwide license area by the end of the tenth
     year. To meet these requirements, the D Block licensee must use the
     most recently available U.S. Census Data. We conclude that the
     build-out requirements we impose will ensure that public safety
     needs are met.

438. While commercial providers typically focus exclusively on building
     out high population areas, we recognize that the needs of first
     responders are also important in smaller towns and rural areas. In
     order to ensure that less populous areas are not neglected in the D
     Block licensee's build-out efforts, we adopt certain additional
     measures to encourage coverage in those areas.[^934] Accordingly,
     as discussed elsewhere, we require that the D Block licensee meet
     our initial population benchmarks based on a build-out schedule
     specified in the NSA consistent with the public safety needs.[^935]
     We also require the D Block licensee to offer at least one handset
     suitable for public safety use that includes an integrated
     satellite solution pursuant to the terms, conditions, and
     timeframes set forth in the NSA. These additional requirements will
     facilitate coverage to rural and zero population areas if the
     public safety users need such coverage.[^936] Imposing specific
     build-out requirements through the NSA provisions will ensure that
     the D Block licensee's performance requirements are responsive to
     the public safety needs.

439. Our three population-based construction benchmarks will take effect
     beginning on February 17, 2009.[^937] This is the statutorily
     imposed DTV transition date and is the same date that build-out
     obligations for the other unauctioned commercial 700 MHz Band
     licensees begin to take effect.[^938] Thus, our four, seven, and
     ten year construction benchmarks for the D Block licensee will be
     calculated as starting from February 17, 2009. Use of this date
     provides regulatory parity and it recognizes that the DTV
     transition will not be completed until this date.[^939] As a
     result, using the February 17, 2009 date will provide regulatory
     certainty, promote build-out of the shared network associated with
     the Public Safety Broadband License, and foster development of the
     public safety broadband network. We note that the D Block licensee
     may begin constructing its system prior to February 17, 2009, and
     may begin operating its system prior to that date so long as it
     provides appropriate interference protection to incumbent
     co-channel and adjacent channel broadcasters.[^940]

440. The Commission will apply the three population-based construction
     benchmarks over the nationwide D Block license area. Accordingly,
     the D Block licensee must employ a signal level sufficient to
     provide adequate service to the relevant percentage of the
     population over the nationwide D Block license area.[^941]
     Moreover, we require that the network and signal levels employed to
     meet these benchmarks be adequate for public safety use, as defined
     in the Shared Wireless Broadband Network sub-section herein and
     further defined by the NSA, and that the services made available be
     appropriate for public safety entities in those areas. In
     particular, as discussed below, we require as a mandatory provision
     of the NSA that the D Block licensee and Public Safety Broadband
     Licensee negotiate inclusion into the build-out schedule coverage
     of major highways and interstates, as well as incorporated
     communities with a population in excess of 3,000, as suggested by
     APCO, IACP and IAFC.[^942] In addition, to the extent that the D
     Block licensee chooses to provide commercial services to population
     levels in excess of the relevant benchmarks, the D Block licensee
     will be required to make the same level of service available to
     public safety entities.

441. The three population-based construction benchmarks that we adopt
     for the D Block licensee are clear, provide specific deadlines and
     quantifiable levels of service and, as a result, will provide the D
     Block licensee with regulatory certainty regarding the applicable
     construction requirements. We agree with those commenters who
     stress that the build-out requirements for the D Block licensee
     must be stringent and unambiguous.[^943] The requirements that we
     are adopting are more stringent than those that we are imposing on
     other 700 MHz commercial licensees and are consistent with our goal
     of developing a nationwide broadband public safety network. In
     addition, use of population-based benchmarks is consistent with
     public safety comments, and ultimately the national interoperable
     broadband public safety network will be built to serve the public
     safety needs of over 99 percent of the population.[^944]

442. Moreover, by adopting interim benchmarks, we ensure that the D
     Block licensee is in a position to begin providing service to the
     Public Safety Broadband Licensee well in advance of the end of its
     license term. We also provide sufficient time for new advanced
     technologies to develop and be placed in service by the D Block
     licensee by setting the first benchmark at four years. These
     benchmarks for the D Block licensee balance the need to quickly
     develop the public safety communication system with the need to
     allow sufficient time for new and innovative wireless broadband
     technologies to develop. Our benchmarks, therefore, are consistent
     with our goal of establishing a national interoperable public
     safety network that will provide state-of-the-art service to the
     Public Safety Broadband Licensee.

443. In certain limited circumstances, we will permit the D Block
     licensee to modify these population-based construction benchmarks
     where the D Block licensee and the Public Safety Broadband Licensee
     reach agreement and the full Commission gives its prior approval
     for a modification. This approach will allow a certain limited
     degree of flexibility to meet commercial and public safety needs
     where those needs may deviate from our adopted construction
     benchmarks. As with other commercial 700 MHz Band licensees, the D
     Block licensee will be required to demonstrate compliance with our
     adopted benchmarks by filing with the Commission within 15 days of
     passage of the relevant benchmarks a construction notification
     comprised of maps and other supporting documents certifying that
     they have met our performance requirements.[^945] The construction
     notification, including the coverage maps and supporting documents,
     must be truthful and accurate and not omit material information
     that is necessary for the Commission to make a determination of
     compliance with our performance requirements.[^946] However, unlike
     the other commercial licenses and because of the nature of the
     partnership established herein, the D Block licensee will not be
     subject to a \"keep-what-you-use\" rule. Rather, the Commission
     will strictly enforce these build-out requirements and, if the D
     Block licensee fails to meet a construction benchmark, the
     Commission may cancel its license, depending on the
     circumstances.[^947]

#### Network Sharing Agreement (NSA) and Mandatory Provisions

444. [Background.]{.underline} Commenters responding to our request for
     comment on the Frontline proposal agree that the details of any
     public/private partnership should be set forth in a network sharing
     agreement, but they disagree on the extent to which these details
     should also be specified in our rules as opposed to being left to
     negotiation.

445. In its comments, Frontline argues that the Commission should
     establish a "regulatory framework" that leaves most details,
     including the rates that the commercial licensee could charge, to
     be worked out in negotiation, and it argues that its proposed rules
     provide a framework with an appropriate level of specificity.[^948]
     Other commenters argue that the Frontline proposal is not
     sufficiently specific, either because it leaves public safety
     vulnerable to an agreement with unreasonable terms or rates or
     because it fails to give sufficient notice to bidders of their
     prospective obligations as the commercial licensee.[^949]
     Commenters also present varied suggestions for the elements that
     the parties should be required to address in a network sharing
     agreement.[^950] At the same time, some commenters also agree with
     Frontline that the rules should not be too specific.[^951]

446. [Discussion.]{.underline} We establish that the relationship
     between the Public Safety Broadband Licensee and the D Block
     licensee will be governed by the Network Sharing Agreement (NSA) to
     be negotiated by the parties and such other separate agreements as
     the Commission may require or allow, and we provide that compliance
     with the terms of the NSA shall be a regulatory condition of the D
     Block license. Breach of this licensing condition may, at the
     determination of the Commission, result in remedies including, but
     not limited to, cancellation and subsequent award of the
     license.[^952] Elsewhere in this Second Report and Order, we also
     establish certain specific rules to govern the process for
     cancellation and re-awarding of the D Block license to ensure that
     there is no discontinuation of service to public safety entities.
     We also identify elsewhere the potential remedies should the Public
     Safety Broadband Licensee fail in a substantial way to meet its
     obligations under the NSA or any of the Commission's rules or
     requirements under this Second Report and Order.

447. We require all the parties to negotiate in good faith,[^953] and we
     find that many of the details of their agreement are appropriately
     left to them to negotiate and reach agreement on (subject to
     ultimate Commission approval of the NSA). In the discussion that
     follows, however, we identify certain elements that we require the
     parties to address in the NSA. Primarily, we require the parties to
     incorporate the rights and responsibilities governing the
     Public/Private Partnership that we have enumerated and discussed in
     this Second Report and Order. We also require the NSA to include or
     address certain additional terms and subjects, however. These terms
     and subjects, together with the rules that we have detailed
     elsewhere, will ensure that the Public/Private Partnership serves
     the public interest. In addition, it will help potential bidders on
     the D Block license in understanding their obligations prior to
     auction, and will assist the parties in reaching agreement on the
     NSA.

448. *Rights and Obligations Under the Public/Private Partnership*. The
     NSA must incorporate all of the substantive rights and obligations
     of the parties that we have established in this Second Report and
     Order that are relevant to the Public/Private Partnership. Thus,
     for example, the NSA must incorporate the mandatory network
     specifications we have established elsewhere in this Second Report
     and Order, including the technical specifications, terms, and
     conditions that will ensure that public safety users are provided
     priority access to public safety broadband spectrum on a dynamic,
     real-time basis. Once the NSA is approved by the Commission and
     executed by the parties,[^954] assuming all other licensing
     requirements are met, the Commission will grant the D Block license
     to the winning bidder and compliance with the terms and conditions
     of the NSA will be license conditions for both the D Block license
     and the Public Safety Broadband License.[^955] As discussed
     elsewhere, we require the parties to submit an executed NSA within
     10 business days of the Commission's approval of the agreement, and
     we provide that the D Block license will not be granted until such
     submission.

449. *Term of Agreement*. The NSA must have a term not to exceed 10
     years from February 17, 2009, which coincides with the term of the
     D Block license established elsewhere in this Second Report and
     Order. At the conclusion of the initial, and subsequent, term of
     the agreement, the NSA may be renewed along with the D Block
     license, subject to Commission approval. We find it appropriate to
     ensure that consideration of whether to renew the D Block license
     and whether to renew or modify the NSA whose performance is a
     condition of that license should occur at the same time.

450. *Service Fees*. We find that all service fees for public safety
     service should be specified in the NSA, including any applicable
     fees for normal network service and fees for priority access to the
     D Block in an emergency.[^956] We find that the parties should be
     left to negotiate reasonable rates in good faith, taking into
     account all appropriate factors, including but not limited to the
     public/private nature of the partnership. We expect, however, that
     the parties will negotiate a fee structure for priority access to
     the D Block in an emergency that will protect public safety users
     from incurring unforeseen (and unbudgeted) payment obligations in
     the event that a serious emergency necessitates preemption for a
     sustained period. We also encourage the parties to negotiate a fee
     agreement that incorporates financial incentives for the commercial
     licensee based on the number of public safety entities and
     localities that subscribe to the service.

451. We note that, for the negotiation of reasonable rates, typical
     commercial rates for analogous services may be useful as a
     guide.[^957] We believe, however, that the negotiated rates will in
     fact be lower than typical commercial rates for analogous services.
     One of the anticipated benefits that has persuaded us to establish
     a D Block license is that only a small portion, if any, of the
     initial construction costs will be recovered through public safety
     charges.[^958] Further, we expect that fees will be such that
     public safety entities are able to afford the services that they
     require for their public safety functions.

452. We emphasize that the entity winning the D Block license is
     accepting a critical public responsibility, providing 700 MHz
     broadband network service to the nation's local and state public
     safety entities.[^959] Therefore, when negotiating fees, we expect
     that the D Block licensee will provide public safety with the terms
     that will best serve the public interest goals established in this
     Second Report and Order regarding the public/private partnership.
     Further, we have established various remedies available to resolve
     disputes over NSA terms, and that, if necessary, we can exercise
     one of these options to ensure that fees charged are reasonable.

453. *Detailed Build-Out Schedule.* The NSA must include a detailed
     build-out schedule that is consistent with the mandatory national
     build-out and performance benchmarks that we have established for
     the D Block licensee elsewhere in this Second Report and Order. We
     expect the NSA to identify the specific areas of the country that
     will be built out by each of the construction deadlines that we
     have established. While commercial providers typically focus on
     population centers first, the needs of first responders are also
     important in less populous areas. Because we must ensure that
     smaller towns and rural areas are not neglected in the D Block
     licensee's build-out efforts, we require the D Block licensee to
     meet our initial population benchmarks by not exclusively
     concentrating on building out high population areas. In this
     regard, we agree with public safety commenters to the extent that
     we require the parties to include in the NSA coverage for major
     highways and interstates, as well as such additional areas that are
     necessary to provide coverage for all incorporated communities with
     a population in excess of 3,000, unless the Public Safety Broadband
     Licensee and the D Block licensee jointly determine, in
     consultation with a relevant community, that such additional
     coverage will not provide significant public benefit. We also
     require an estimated cost for each specified area of the build-out,
     which will assist us in efforts to ensure that the build-out
     schedule is achieved.

454. *Modifications to the NSA.* We obligate the parties to act in good
     faith in all dealings with each other and to abide by the terms of
     the agreement. The NSA must specify that any major modifications to
     the terms of the NSA, related agreements or documents, or such
     other agreements as the Commission may require or allow, require
     not only the agreement of the parties, but also prior Commission
     approval. All other modifications require prior approval by the
     Chiefs of the Wireless Bureau and the Public Safety and Homeland
     Security Bureau on delegated authority.

#### License Term and Renewal Expectancy for the Public/Private Partnership

455. [Background]{.underline}. In the *700 MHz Report and Order*, we
     adopted a 10 year license term for initial authorization in the 700
     MHz Commercial Service Band, subject to a subsequent renewal
     expectancy of 10 years.[^960] In the *700 MHz Further Notice*, we
     noted that Frontline proposed that the term of the D Block license
     would be for 15 years, and would be subject to a renewal expectancy
     upon the completion of "substantial service."[^961] Frontline
     contends that given the aggressive build-out requirements for the
     license and the size of the investments required, a substantial
     license term is appropriate, particularly since a shorter license
     term could substantially deter auction participation.[^962]

456. In response to the *700 MHz* *Further Notice*, NENA comments that
     it would support a 10-year license term, coinciding with the
     substantial completion of the proposed build-out
     requirements.[^963] NENA also argues that the licensee's success in
     meeting its build-out requirements should be a substantial factor
     in any decision to renew the national D Block license.[^964]
     Regarding the renewal criteria, Cyren Call suggests that, as part
     of the Commission's new renewal procedures for the D Block license,
     the Commission solicit the viewpoints of the Public Safety
     Broadband Licensee and Public Safety network users.[^965] Cyren
     Call argues that doing so would provide an additional source of
     motivation for the commercial operator to take steps beyond those
     required for mere minimum satisfaction of its contractual
     obligation.[^966]

457. [Discussion]{.underline}*.* Consistent with the decision made for
     other commercial licensees in the *700 MHz Report and Order*, we
     decide that a term not to exceed 10 years from February 17, 2009,
     should be used for initial authorization in the D Block license.
     The D Block license would be auctioned as a single, nationwide
     license to provide for commercial service in the "D Block," and to
     build and operate a joint broadband public safety and commercial
     network for public safety use. Considering the specific build-out
     requirements adopted for this license, we find that a 10-year
     license term is appropriate to secure the long-term financial
     commitment and the reliable public safety services. It will provide
     regulatory parity by establishing the same license term for the all
     700 MHz licensees, and we find that Frontline has provided no
     persuasive reason to grant the D Block licensee a term 5 years
     longer than other commercial licensees. In particular, we do not
     believe that the 10 year term will have a significantly different
     impact on bidding than a 15 year term.

458. At the end of the 10 year term, the D Block licensee will be
     allowed to apply for license renewal, although its renewal will be
     subject to its success in meeting the material requirements set
     forth in the NSA as well as all other license conditions, including
     meeting the performance benchmark requirements. Because the initial
     NSA term will expire at the same time, the D Block licensee must
     also file a renewed or modified NSA for Commission approval at the
     time of its license renewal application. Given these detailed
     license renewal requirements, we decline to impose a separate
     substantial service showing. Considering the public safety
     community's concern over the success of the D Block license, we
     believe that the Commission's new renewal procedure for this band
     should motivate the commercial operator to provide service to
     public safety users at a level and quality beyond the minimum
     necessary to satisfy its obligations under the NSA.[^967]

459. The material requirements set forth in the NSA, as discussed
     elsewhere, are conditions of the D Block license, including the
     network build-out schedule and satisfaction of the agreed-upon
     public safety specifications regarding the network construction and
     operations, in order to obtain a renewal of the license. Regarding
     the D Block license renewal application, we find the material
     requirements in the NSA to be those requirements that are the
     "essence" of the agreement between the parties, including but not
     limited to the build-out schedule for the public safety network and
     other provisions that serve the fundamental purpose of the NSA, as
     well as any time limits on the performance of those provisions.

#### Public Safety Satellite Support

460. [Background.]{.underline} In the *700 MHz Public Safety Ninth
     Notice*, we stated that "\[s\]urvivability is an important
     objective of the envisioned nationwide public safety broadband
     system."[^968] We further observed that a network could be made
     "inherently robust by incorporating flexible routing and other
     features (possibly including a satellite component operating in
     other spectrum) that will maintain essential operations when parts
     of the infrastructure have been destroyed or disabled."[^969] We
     tentatively found that these considerations argued in favor of
     establishing a single national public safety broadband licensee.
     "\[A\] single national licensee may be in a better position to
     ensure robustness and survivability," the Commission stated, in
     part because it could be "well-situated to contract for national
     satellite service and benefit from economies of scale in
     integrating satellite capability into its radios to the extent that
     such integration is beneficial."[^970]

461. In its filings on which we sought comment, Frontline also briefly
     discussed the potential of satellite communications to enhance the
     coverage or robustness of a network. Frontline asserted that the
     commercial licensee and the public safety broadband licensee "could
     also work with Mobile Satellite Service licensees to provide
     satellite coverage to cover gaps in rural areas in the terrestrial
     700 MHz public safety broadband network."[^971] Frontline proposed
     no obligations for the commercial licensee with regard to satellite
     support, however, except that, after the fourth year of build-out
     (by which time, Frontline proposed, coverage would be provided to
     all Alaskan cities of 10,000 or more), the commercial licensee
     would "work with the Alaska Land Mobile Project to determine where
     additional coverage \[in Alaska\] is needed and feasible, taking
     various factors into account including the availability of
     satellite services."[^972]

462. In the *700 MHz Further Notice*, we sought comment on whether, if
     the Frontline proposal were adopted, some or all public safety
     equipment operating on the commercial licensee's network, including
     handsets and other mobile or fixed receivers, should be required to
     be capable of accessing satellite communications, and whether the
     Commission should require the commercial licensee to incorporate
     satellite-based technology into its network infrastructure.[^973]
     Comments filed in response to this inquiry generally favor making
     satellite technology available for public safety users. SIA urges
     the Commission to "(i) make a reasonable effort to ensure that as
     many 700 MHz public safety devices as possible have the capability
     to access a satellite system; and (ii) facilitate the incorporation
     of satellite-based infrastructure into any 700 MHz public safety
     network as a backup to terrestrial network infrastructure."[^974] A
     number of commenters supporting the creation of a national public
     safety broadband network argue that a satellite overlay is
     necessary to cover rural and remote areas effectively.[^975] MSV
     proposes that all equipment should be required to have an embedded
     chipset, making it possible to access satellite systems.[^976]
     MSV's proposal receives conditional support from APCO, which
     suggests that the Public Safety Broadband Licensee could explore
     the viability of imposing such a requirement.[^977] Iridium urges
     the Commission to "require satellite back-up for public safety
     applications" without mandating a specific technology.[^978]
     Iridium further advocates that the Commission "should allow public
     safety to select from the broadest range of technology to suit
     their needs" by encouraging the "use of seamlessly integrated
     technology in both the terrestrial 700 MHz public safety spectrum
     as well as one or more bands in which satellite systems
     operate."[^979] Some public safety organizations, however,
     emphasize the need for public safety to have access to commercial
     off-the-shelf equipment, rather than imposing specific equipment
     mandates, and advocate flexibility in infrastructure requirements
     to facilitate cost-effective build-out of a national, interoperable
     network for public safety users in a Public/Private
     Partnership.[^980]

463. [Discussion.]{.underline} We agree with commenters that satellite
     service can be a valuable component of a public safety
     communications network. Satellite technology can provide the only
     means of communicating where terrestrial communications networks
     have been damaged or destroyed by wide-scale natural or man-made
     disasters. As the Katrina Report found, "\[s\]atellite networks
     appeared to be the communications services least disrupted by
     Hurricane Katrina. \[B\]oth fixed and mobile satellite systems
     provided a functional, alternative communications path for those in
     the storm-ravaged region."[^981] In this regard, satellite service
     providers Iridium and MSV both reported substantial increases in
     the use of their services in and around New Orleans in the wake of
     Hurricane Katrina.[^982] Satellite services also can enable public
     safety users to communicate in rural and remote areas that
     terrestrial services do not reach.[^983] For example, even under
     the aggressive performance requirements we impose herein on the D
     Block licensee, there will remain a number of geographic areas
     without coverage for a number of years. As a result, the
     availability of satellite-based communications capabilities would
     serve to bolster the availability, robustness, and survivability of
     public safety communications networks, particularly in
     circumstances of the direst nature where the safety and security of
     Americans are greatly at stake. For these reasons, we believe that
     it is appropriate for us to strongly encourage and facilitate the
     incorporation of satellite-based communications capability into
     public safety networks. At the same time, we must ensure that any
     action we take in this regard does not unduly burden either public
     safety users or the D Block licensee.

464. Accordingly, we require that the D Block licensee make available to
     public safety users at least one handset that includes a seamlessly
     integrated satellite solution. We do not require that this handset
     use any specific technology, only that it be capable of operating
     both on the 700 MHz public safety spectrum and on the satellite
     frequency bands and/or systems of the satellite service providers
     with which the Public Safety Broadband Licensee has contracted for
     satellite service. We do not, however, require that the D Block
     licensee incorporate support for satellite communications into the
     infrastructure of the shared terrestrial network.

465. The record indicates that handsets with seamlessly integrated
     satellite solutions are already under development by some equipment
     vendors, and that the incremental cost of incorporating satellite
     capability into terrestrial handsets may be relatively small.[^984]
     We find that this obligation will provide incentives for
     competitive development of handsets with various types of
     seamlessly integrated satellite capabilities, and potentially lead
     to affordable equipment and service costs for the public safety
     community. In addition, we expect that the D Block licensee may
     find that some consumer segments would find value in handsets with
     satellite capability. Public safety users, meanwhile, will be able
     to realize the advantages of satellite-capable handsets if they
     choose, but would be under no obligation to purchase them.

466. We expect that the D Block licensee, satellite companies, and
     handset manufacturers will take steps to facilitate the development
     of handsets with seamlessly integrated satellite solutions.
     Nevertheless, we understand that handsets offering an integrated
     satellite solution are not yet available, and that the development
     will take time. It would also be counterproductive for the D Block
     licensee to offer a handset with an integrated satellite solution
     that is incompatible with the satellite solutions ultimately
     adopted by the Public Safety Broadband Licensee. For these reasons,
     we do not establish an immediate obligation upon the D Block
     licensee to make satellite-capable handsets available. Rather, we
     will require the D Block licensee to begin offering at least one
     handset suitable for public safety use that includes a seamlessly
     integrated satellite solution pursuant to the terms, conditions,
     and timeframes set forth in the NSA. We believe that requiring the
     parties to address, as part of the NSA, how and by what date the D
     Block licensee will offer a handset with a seamlessly integrated
     satellite solution is reasonable and may encourage speedier
     development of such handsets for public safety use.

467. In addition to requiring the D Block licensee to offer at least one
     handset with a seamlessly integrated satellite technology, we
     strongly encourage the Public Safety Broadband Licensee to work
     with its constituent public safety entities throughout the country
     to facilitate the availability of a variety of satellite-based
     options. Such options could include the Public Safety Broadband
     Licensee using its relatively stronger market power to negotiate
     large-scale satellite service agreements with existing providers,
     working with the D Block licensee to negotiate for satellite
     service to expand or expedite build-out to rural areas, and
     exploring use of a multitude of existing and future technologies,
     including satellite-capable handsets, separate satellite-only
     handsets, mobile satellite base stations that can be deployed into
     areas where terrestrial facilities are damaged or destroyed, etc.

468. We decline to mandate the incorporation of support for satellite
     communications by the D Block licensee into the infrastructure of
     the shared network. Although such incorporation might provide some
     additional communications capacity, if the Public Safety Broadband
     Licensee contracts for terrestrial use of satellite frequencies, it
     would also impose additional costs that might hinder build-out of
     the terrestrial network. A mandate for specialized support may
     interfere with the D Block licensee's ability to take advantage of
     commercial off-the-shelf network facilities or rely on existing
     CMRS architecture, both of which might assist greatly in making a
     national build-out cost effective.[^985] We believe that the D
     Block licensee and the Public Safety Broadband Licensee will be in
     the best position to determine whether and when satellite support
     within the terrestrial infrastructure is appropriate, and by what
     method it should be implemented, such as by negotiating a
     side-agreement with existing satellite service providers to use
     their excess capacity for public safety communications.

#### Local Public Safety Build-out and Operation

469. [Background]{.underline}*.* Several commenters on the Frontline
     proposal recommend that participation by public safety entities be
     voluntary, in the sense that public safety entities could use their
     own network operating in spectrum other than the 700 MHz public
     safety broadband spectrum if they so chose.[^986] Commenters also
     recommend, however, that public safety entities be permitted to
     build out their own networks in the 700 MHz public safety broadband
     spectrum to some extent. Some argue for allowing public safety
     entities generally to choose other arrangements in the 700 MHz
     broadband spectrum either because it would promote competition
     among potential commercial partners to provide public safety
     entities with service at a better quality and price,[^987] or
     because it would provide public safety entities with greater
     control over their own network services, enabling them to take
     advantage of their expertise and knowledge to tailor their network
     services to local needs.[^988] For example, APCO argues that the
     Commission needs to preserve local options to facilitate deployment
     of data systems in areas where the national network may not be
     deployed for many years.[^989]

470. [Discussion]{.underline}*.* We conclude that no public safety
     entity will be required to use the 700 MHz public safety broadband
     network, and that any participation in the 700 MHz nationwide
     public safety network by individual public safety entities will be
     entirely voluntary. We also conclude, however, that the Upper 700
     MHz Band D Block licensee should have the exclusive right to build
     and operate the shared wireless broadband network using the 700 MHz
     public safety broadband spectrum, except that we permit public
     safety entities to construct local broadband networks in the 700
     MHz public safety spectrum in two limited circumstances subject to
     conditions specified below. We further conclude that public safety
     entities should have a limited right to build out wideband
     networks, again with conditions and restrictions.[^990]

471. *Rights to Early Build-out in Areas with a Build-out Commitment.*
     First, in an area where the D Block licensee has, in the NSA,
     committed to build out by a certain date, but where a public safety
     entity wishes a more immediate build-out, the public safety entity
     may, with the pre-approval of the Public Safety Broadband Licensee,
     have the network constructed in that area at the public safety
     entity's own expense. The network must be capable of operating on
     the shared, interoperable broadband network that operates on both
     the D Block licensee's commercial block and the public safety 700
     MHz broadband spectrum, and must meet all of the same requirements
     and specifications as the shared network required under the NSA.

472. We authorize two options for implementing the early build-out of an
     area of the broadband network at the discretion of the public
     safety entity. Under the first option, the public safety entity (or
     the Public Safety Broadband Licensee acting on its behalf) may
     construct the network in that area. Upon construction, it must
     transfer the network to the D Block licensee, which shall integrate
     that network into the shared national broadband network constructed
     pursuant to the NSA. Under the second option, the public safety
     entity may require the D Block licensee to construct the network in
     that area earlier than scheduled, but the public safety entity must
     provide all funds necessary for the early construction of the
     network, including any and all additional resource and personnel
     costs. As with the first option, upon construction, the D Block
     licensee will operate and manage the network as an integrated part
     of the larger shared national broadband network.

473. In either case, the Public Safety Broadband Licensee, the D Block
     licensee, and the public safety entity must, prior to any
     construction, negotiate an amendment to the NSA regarding this part
     of the network, specifying ownership rights, fees, and other terms,
     which may be distinct from the analogous terms governing the shared
     national broadband network. Absent agreement to the contrary, the
     amendment must provide that by a date no later than the build-out
     date specified for that area in the NSA, the D Block licensee will
     receive full ownership rights and will in turn compensate the
     public safety entity (or the Public Safety Broadband Licensee,
     where appropriate) for the construction of the network. The right
     to compensation for the build-out shall be limited, again absent
     agreement to the contrary, to the cost that would have been
     incurred had the D Block licensee constructed the network itself in
     accordance with the original terms and specifications of the NSA.
     Thus, while the public safety entity may construct a more expensive
     network, the D Block licensee will only be responsible for the
     costs of a network comparable to what it would have constructed in
     accordance with the original terms of the NSA, and any costs
     attributable solely to advancing the date of construction will not
     be compensable.

474. We point out that early build-out in this scenario is a right to
     construct only. Operations may not commence on the network until
     the network is transferred to the D Block licensee. Operations on
     early build-out networks would then be conducted under the
     authority of the Public Safety Broadband Licensee's license, in the
     same manner as any network operations that occur following
     construction by the D Block licensee under the build-out schedule
     contained in the NSA.

475. Starting on the date of compensation for build-out, or on the
     build-out due date of the NSA if there is no specified date of
     compensation, the D Block licensee may include the early build-out
     for purposes of determining whether it has met its national
     build-out benchmarks and the build-out requirements of the
     NSA.[^991]

476. We note that the National Capital Region (NCR) has commenced
     construction and operation of a broadband network in the 700 MHz
     Band pursuant to an experimental license and has been granted a
     waiver in anticipation of its application for a license to operate
     such system.[^992] The NCR consists of eighteen jurisdictions: The
     District of Columbia, Montgomery and Prince Georges Counties of
     Maryland, and the cities of Gaithersburg, Rockville, Takoma Park,
     Bowie, College Park, and Greenbelt; Arlington, Fairfax, Loudon and
     Prince William Counties of Virginia, and the cities of Alexandria,
     Falls Church, Town of Leesburg, Manassas, and Manassas Park.[^993]
     Although NCR cannot now obtain a license, as such license will be
     held by the Public Safety Broadband Licensee, nothing herein should
     be construed as preventing or limiting NCR\'s ability to continue
     to operate the broadband network they have built within the 700 MHz
     broadband allocation (subject to NCR properly obtaining a grant of
     a request for Special Temporary Authority for such continued
     operation) until such time as the NCR network is integrated into
     the nationwide, interoperable broadband network in accordance with
     the build-out plan set forth in the NSA.

477. NCR, in requesting the waiver to operate its broadband network,
     specifically represented that it "fully underst\[ood\] and
     accept\[ed\] that as a result of any rulemaking changes the
     Commission may make, the NCR will have to comply with the results
     of such rule \[sic\] making and may have to do one of the following
     to continue the use of the 700 MHz spectrum for public safety
     broadband wireless communications: 1. Modify its proposed network.
     For example, we may have to change the center frequency of the
     carriers and the filters to protect narrowband operations; or 2.
     Change the proposed network. For example, we may have to change the
     underlying technology, and therefore, have to change the equipment
     to use a standard that is different from that chosen by the NCR
     (1xEVDO Rev A); or 3. Transition to a 700 MHz public safety
     national broadband wireless network that is managed by a single
     national licensee."[^994] In fact, the waiver grant to NCR was
     explicitly conditioned on those representations, which are
     incorporated into the NCR Waiver Order as part of the conditions of
     the waiver.

478. We advise the Public Safety Broadband Licensee to consult NCR in
     negotiating the build-out date for the nationwide, interoperable
     network, as the build-out plan in the NSA should allow NCR a
     reasonable time to make any modifications necessary to incorporate
     its network into the nationwide, interoperable broadband network by
     the date set forth in the NSA for build out of the portion of the
     nationwide, interoperable broadband network in the NCR. NCR will,
     of course, be expected to comply with the requirements set forth
     herein for public safety entities exercising the right to early
     build out, and NCR shall be entitled to the same rights and
     compensation as set forth herein for public safety entities
     electing to exercise their right to early build out.

479. The Spectrum Coalition would have us give local public safety
     entities, including NCR, the ability to "opt-out" of the national,
     interoperable broadband network, yet operate individual systems in
     the 700 MHz Band. We flatly reject such argument; local public
     safety entities do not have to participate in the nationwide
     network, but they may not "opt-out" in favor of using the 700 MHz
     broadband spectrum for individual networks. As a general matter, as
     we have discussed above, there are numerous benefits to having a
     single Public Safety Broadband Licensee.[^995]

480. *Rights to Build Out and Operate In Areas without a Build-out
     Commitment.* We acknowledge that, even under the stringent
     population-based build-out requirements that we are adopting, there
     will be areas of the nation in which the NSA does not require the D
     Block licensee to build out the shared broadband network. In such
     areas, under the policies and procedures discussed below, we
     provide that a public safety entity may build out and operate a
     separate, exclusive network in the 700 MHz public safety broadband
     spectrum at any time, provided the public safety entity has
     received the approval of the Public Safety Broadband Licensee and
     operates its independent network pursuant to a spectrum leasing
     arrangement into which the public safety entity has entered with
     the Public Safety Broadband Licensee.

481. Under this option, the public safety entity need not obtain any
     agreement with the D Block licensee. The Public Safety Broadband
     Licensee must, however, provide the D Block licensee with notice of
     the public safety entity's intent to construct in that area within
     30 days of receipt of a request from a public safety entity wishing
     to exercise this option, and shall inform the D Block licensee of
     the public safety entity's anticipated build-out date(s). This
     affords the D Block licensee the opportunity, in conjunction with
     the Public Safety Broadband Licensee, to reconsider whether the NSA
     should be revised to include a commitment to build out the area
     that the public safety entity has identified. Further, if within 30
     days of receiving such notice the D Block licensee certifies in
     writing to the Public Safety Broadband Licensee that it will build
     out the shared network in the area, within a reasonable time of the
     anticipated build-out date(s), as determined by the Public Safety
     Broadband Licensee, then the public safety entity shall not have
     the option of building out and operating its own separate exclusive
     network in the area. Under this circumstance, the D Block licensee,
     working with the Public Safety Broadband Licensee, must then adopt
     an appropriate amendment to the NSA, and such commitment would
     become enforceable against the D Block licensee as part of its
     build-out requirements. We note also that, as an alternative in
     such cases, the public safety entity would be able to complete
     early build-out under the procedures we discuss above.

482. If the public safety entity pursues this option to build out a
     separate network, the Public Safety Broadband Licensee and public
     safety entity, as its spectrum lessee, must file a spectrum leasing
     arrangement with the Commission prior to the public safety entity
     commencing any operations. We will require that the spectrum
     leasing arrangement take the form of a spectrum manager leasing
     arrangement under the Commission's spectrum leasing rules.[^996] We
     will not permit such arrangements to take the form of long-term *de
     facto* transfer spectrum leasing arrangements. We believe that it
     is necessary that the Public Safety Broadband Licensee retain not
     only *de jure* control of all of the spectrum associated with the
     Public Safety Broadband License, even in areas not scheduled for
     build-out, but also *de facto* control of the spectrum leased for
     use by public safety entities. As described elsewhere, the Public
     Safety Broadband Licensee has a number of important
     responsibilities related to the entire public safety community's
     use of the 700 MHz broadband spectrum. In order to carry out these
     responsibilities with respect to this early build-out option, the
     Public Safety Broadband Licensee must exercise actual oversight of
     its spectrum lessee's activities, including maintaining actual
     working knowledge about the spectrum lessee's activities and
     facilities that could affect compliance with applicable Commission
     rules.[^997] Early build-out even in areas without a build-out
     commitment can impact adjacent or nearby build-out of the shared
     network by the D Block licensee. Accordingly, we find it essential
     that, as provided under the spectrum manager leasing rules and as
     distinguished from the long-term *de facto* transfer leasing
     arrangement, the Public Safety Broadband Licensee maintain actual
     oversight and working knowledge of its spectrum lessees' activities
     in order to ensure compliance with all requirements of the
     Communications Act, the Commission's rules, and the obligations set
     forth in this Second Report and Order.[^998]

483. In addition to compliance with the Commission's spectrum leasing
     requirements, the public safety spectrum lessee must ensure that
     the following conditions are met: (1) the network must provide
     broadband operations; (2) the network must be fully interoperable
     with the shared national broadband network required by the NSA; (3)
     the network must be available for use by any public safety agency
     in the area; and (4) the network must satisfy any other terms or
     conditions required by the Public Safety Broadband Licensee. These
     conditions specifically must be included in the spectrum manager
     lease agreement entered between the Public Safety Broadband
     Licensee and the public safety entity. Consistent with Section
     90.551 of the Commission's rules, which contains the general 700
     MHz public safety spectrum construction requirements, the lease
     agreement between the parties must specify that the public safety
     entity must construct and place into operation its network within
     one year of the effective date of the spectrum manager leasing
     arrangement,[^999] and if not, then the Public Safety Broadband
     Licensee will terminate the spectrum leasing arrangement pursuant
     to the Commission's rules.[^1000] The separate network need not,
     however, meet the other specifications of the D Block licensee's
     shared national network. In particular, absent agreement of the
     public safety entity, the Public Safety Broadband Licensee, and the
     D Block licensee, the separate network may not operate using any
     spectrum associated with the D Block license. Finally, as required
     by the Commission's spectrum leasing rules, the Public Safety
     Broadband Licensee must notify the Commission of the spectrum
     manager leasing arrangement as part of the Commission's spectrum
     manager lease notification procedures.[^1001] The notice must
     identify the public safety entity leasing the spectrum and the
     particular areas of spectrum leased as part of this build-out
     option.

484. We emphasize that under no conditions may a public safety entity
     construct a network using 700 MHz public safety broadband spectrum
     in an area absent the approval of the Public Safety Broadband
     Licensee. We find that permitting individual public safety entities
     to construct their own networks using this spectrum without such
     approval would lead to the same balkanization problems of existing
     public safety spectrum use that we seek to avoid here, and would be
     contrary to the Commission's determination that the public safety
     broadband spectrum shall be a single nationwide license subject to
     the authority of the Public Safety Broadband Licensee. Use of the
     public safety broadband spectrum without a spectrum lease from the
     Public Safety Broadband Licensee approved by the Commission would
     also be inconsistent with Section 310 of the Act, which requires
     Commission authorization for the use of licensed spectrum.[^1002]
     Nothing in this determination should be construed, however, to
     prohibit the Public Safety Broadband Licensee from being responsive
     to requests from localities to opt out and provide separate network
     services pursuant to a spectrum lease approved by the Public Safety
     Broadband Licensee and the Commission.

485. *Conditions for Waiver to Allow Limited and Temporary Wideband
     Operations.* In the *700 MHz Further Notice,* we asked for comment
     on our tentative conclusion to prohibit wideband operations on a
     going forward basis, and deferred consideration of adopting a
     wideband interoperability standard.[^1003] The record contains
     comments in support of and in opposition to allowing wideband
     operations.

486. In general, those supporting a wideband option argue that broadband
     operations are not needed everywhere,[^1004] result in significant
     additional costs,[^1005] and would take too long to build
     out.[^1006] Some commenters disagree with the Commission's
     tentative conclusion that allowing wideband could hinder
     interoperability.[^1007] Some commenters believe that we should
     take a "flexible" approach to permitting wideband operations, such
     as leaving the decision on whether to deploy a wideband system up
     to local/regional planners rather than establishing a regulatory
     mandate requiring use of broadband systems.[^1008] Hampton Roads
     states that it is important for public safety disciplines "to have
     the flexibility to choose and deploy the best communication
     solutions based on the jurisdictions' specific needs as they relate
     to technologies, geographic challenges and increasing financial
     constraints."[^1009] Region 33 (Ohio) contends that everything it
     has planned for in the future can be accomplished with wideband
     communications (150 kHz channels), and that a broadband requirement
     would be a disservice to Ohio and its citizens.[^1010] NATOA states
     that flexibility is critical and that public safety entities must
     have the option to choose the technology (wideband or broadband)
     that best serves their unique requirements and budgets.[^1011]

487. Several commenters argue that the Commission should allow "mixed
     use" of wideband or broadband, but only in the upper 1.25 megahertz
     of the broadband segment and/or the guard band (a total of 2.25
     megahertz),[^1012] with the decision whether to implement wideband
     in this 2.25 megahertz segment left up to regional planning
     committees or state/local government.[^1013] NPSTC proposes that
     wideband use in this segment be given primary status until 2019 and
     that such systems could maintain primary status beyond 2019 if the
     spectrum was not needed for broadband operations in the
     area.[^1014] Under the NPSTC approach, wideband or local broadband
     systems also could operate on a secondary basis under certain
     conditions.[^1015]

488. Other commenters support prohibiting wideband operations.[^1016] In
     general, they argue that permitting a mixed deployment (wideband
     and broadband) undermines public safety capabilities. According to
     commenters opposing wideband operation, broadband provides for
     significantly more throughput, greater capacity, and better
     coverage, whereas wideband is an outdated, costly technology, the
     deployment of which would have a negative impact on
     interoperability. For example, Qualcomm states that it supports the
     Commission's tentative conclusion to prohibit wideband operations
     in the broadband segment, contending that to do otherwise may make
     it difficult to achieve full interoperability.[^1017]
     Alcatel-Lucent argues that permitting operation of wideband
     technologies "will only perpetuate the shortcomings of today's
     public safety systems: limited, lower bandwidth applications; high
     cost of user devices; and limited interoperability."[^1018]
     Frontline argues that, if the Commission allows wideband
     operations, it should only be in the narrowband portion of the
     spectrum.[^1019] Cyren Call urges the Commission to permit both
     wideband and narrowband operations in the narrowband segment and
     suggests that the decision on whether to deploy wideband operations
     on narrowband general use channels would be left up to the regional
     planning committees.[^1020]

489. On balance, we find that the benefits of selecting a band plan that
     lays the foundation for the deployment of a nationwide,
     interoperable broadband network outweigh the near term and
     relatively limited potential advantages of allowing wideband
     systems to disrupt the national broadband scheme. Based on the
     record before us, we affirm our tentative conclusion in the *700
     MHz Further Notice* that providing wideband flexibility could
     hinder efforts to deploy a nationwide, interoperable broadband
     network by perpetuating a balkanization of public safety spectrum
     licenses, networks, and technology deployment.[^1021] Only through
     use of broadband networks can public safety leverage advanced
     commercial technologies and infrastructure to reduce costs, speed
     deployment, and enable the potential for priority access to
     commercial networks during emergencies.[^1022] Unfettered
     deployment of wideband systems in the broadband allocation will
     impede nationwide broadband interoperability and continue the
     balkanization of the public safety network landscape we seek to
     prevent. We are convinced that allowing wideband operations,
     particularly in the broadband segment intended to be part of a
     public/private relationship, could present relocation problems down
     the road. We, therefore, prohibit wideband operations in the public
     safety allocation of the 700 MHz Band, subject to the limited
     exceptions set forth herein.

490. Even in light of the advantages and opportunities that can be made
     available by broadband technologies, we recognize that some public
     safety entities may wish to deploy wideband systems based on
     specific needs pending deployment of the broadband network. We
     conclude, however, that such deployments should be rare and subject
     to certain criteria. Accordingly, we will require public safety
     entities seeking to deploy wideband systems to satisfy the
     following conditions and restrictions.[^1023]

491. First, wideband operations in the 700 MHz public safety spectrum
     will be permitted only upon grant of a properly supported request
     for waiver of the requirement to conform to the band plan we adopt
     herein, *i.e.*, one that permits only broadband or narrowband
     operations.[^1024] In the interests of ensuring the integrity of
     the public/private partnership for construction of a nationwide
     broadband, interoperable network, we find it necessary to consider
     requests to deploy wideband only in a waiver context. In this
     manner, the Commission will be able to best consider the particular
     facts and circumstances of each case, and balance the needs of the
     requesting public safety agency with the overarching goals of
     promoting a nationwide, interoperable broadband network. Requests
     for waiver to conduct wideband operations must be accompanied by an
     application for authorization.

492. Second, any petition for waiver must be accompanied by a letter
     from the Public Safety Broadband Licensee, confirming that the
     proposed wideband deployment is not inconsistent with the broadband
     deployment plan for the affected or adjacent service areas. We
     encourage public safety entities seeking such waivers to cooperate
     with the Public Safety Broadband Licensee to reach agreement on the
     conditions, if any, to be placed on any wideband deployment,
     including the appropriate plan for transition to the nationwide
     broadband, interoperable network.[^1025] All requests for waiver
     must include any agreed-upon conditions and transition plan.

493. Third, except as discussed below, we will restrict grants of waiver
     to the deployment of a wideband system in the consolidated
     narrowband spectrum or the internal public safety guard band. We
     must limit any wideband operations in this manner in order to
     ensure the full preservation of the broadband segment, and thereby
     enable the goals of the public/private partnership for a common
     broadband network and architecture. Based on the record before us,
     we are not convinced that any wideband operations could not be
     designed to operate in the narrowband and internal guard band
     spectrum. We also believe that the regional planning committees
     will continue to serve an important role in overseeing and crafting
     appropriate spectrum use; to that end, petitions for waiver in the
     narrowband spectrum must also include a letter from the appropriate
     regional planning committee or state licensee confirming that the
     proposed wideband deployment will not disrupt any regional or state
     planning efforts that are underway. We encourage the Public Safety
     Broadband Licensee to coordinate with the applicable regional
     planning committee or state licensee when these entities are asked
     to consider any wideband deployment in the narrowband portion of
     the public safety spectrum, to ensure proper coordination with
     existing and pending narrowband applications.

494. If there are instances where spectrum in the narrowband segment or
     internal guard band is unavailable for wideband operations, we will
     permit submission of request for waiver to operate in the upper
     1.25 megahertz of the broadband allocation. We emphasize, however,
     that applicants seeking waiver relief to deploy wideband networks
     in the public safety broadband spectrum face a very high hurdle. As
     a threshold requirement, we will consider requests for waiver to
     conduct wideband operations in the broadband allocation only upon
     submission of a substantially supported, detailed technical showing
     demonstrating why there is insufficient spectrum in the narrowband
     allocation or internal guard band to support the desired wideband
     operations. As with requests to conduct wideband operations in the
     narrowband segment or internal guard band, any request for waiver
     to conduct wideband operations in the upper 1.25 megahertz of the
     broadband allocation must be accompanied by a letter from the
     Public Safety Broadband Licensee confirming that the proposed
     wideband deployment is not inconsistent with the broadband
     deployment plan for the affected or adjacent service areas, and all
     requests for waiver must reflect any conditions and transition plan
     agreed upon by the petitioner and the Public Safety Broadband
     Licensee. The public safety entity seeking to establish wideband
     operations in the broadband segment must have first issued a
     request for proposal (RFP) that permitted interested parties to
     submit broadband proposals that are technically consistent with the
     Public Safety Broadband Licensee network. Finally, the wideband
     applicant must include with its waiver request proof that responses
     to the RFP proposing a broadband network were more costly, provided
     less coverage as measured by throughput at the network edge, or
     were otherwise inferior to the accepted wideband proposal.

495. Notwithstanding anything herein to the contrary, we will not
     entertain any request for waiver seeking to permit wideband
     operations in the broadband segment in areas scheduled for
     broadband deployment within the first three years of the build-out
     plan for the national public safety broadband network. We believe
     that it would be unduly and unnecessarily disruptive to the
     national public safety broadband network to permit wideband
     deployment where the broadband network would be constructed at the
     same time or shortly thereafter. Particularly in light of the
     extensive benefits afforded by broadband technology, it would be
     wasteful of limited resources and contrary to principles of sound
     spectrum management to permit deployment of wideband technology in
     areas scheduled to receive broadband service. In addition,
     consistent with the waiver discussion herein, the Commission will
     not grant any waiver request for any wideband deployment in the
     broadband segment that does not include a detailed plan,
     accompanied by attestation, specifying how and by what date the
     wideband applicant will integrate its proposed wideband system into
     the national broadband network. The Commission shall condition any
     waiver relief for wideband operations in the broadband segment upon
     acceptance of the applicant's integration plan. As a further
     condition of any wideband operations proposed in the broadband
     segment, we will require all devices operating on the wideband
     system to be designed such that they also must be interoperable
     with the nationwide, broadband network.[^1026] In order to ensure
     that our goals for the deployment of the nationwide broadband
     network are met, the authority granted for any wideband operations
     in the broadband segment will expire automatically upon the D Block
     licensee's initiation of service in areas where wideband has been
     deployed. Further, any Grandfathered Wideband STA operations or
     wideband authority granted by waiver in the public safety segment
     of the 700 MHz Band shall be secondary to primary narrowband or
     broadband applications, as applicable. Finally, as a condition of
     the grant of waiver allowing deployment of a wideband system in the
     broadband segment, a public safety entity must certify in its
     application and waiver request its acknowledgement that it may not
     seek reimbursement for any costs involved in converting the
     wideband system to the national broadband network upon completion
     of the broadband network in the subject area.

496. License terms for wideband operations granted under waiver --
     whether they are in the narrowband, internal guard band, or
     broadband segments of the 700 MHz public safety spectrum -- will be
     limited to no more than five years, and may be granted for less
     time depending on the particular circumstances presented. The
     Commission must receive requests for renewal of the license granted
     pursuant to waiver request not less than 180 days prior to
     expiration of the license. Renewal requests must include a showing
     that continued operation of the wideband system is in the public
     interest. Renewal requests for wideband operations in the broadband
     segment also must be accompanied by a letter from the Public Safety
     Broadband Licensee confirming that continuing wideband operations
     are not inconsistent with the broadband deployment plan for the
     affected or adjacent service areas. The license term for any
     renewal of waiver will not exceed three years and a wideband waiver
     licensee may only receive a single extension. Any renewal of a
     wideband authorization shall continue to be on a secondary basis
     only to primary narrowband or broadband applications, as
     applicable. Finally, in light of the waiver process we describe
     above, we find it unnecessary to adopt any particular wideband
     interoperability standard.

### Safeguards Relating to the Public/Private Partnership

#### Rules for Establishment, Execution and Application of the NSA 

497. [Background.]{.underline} In the *700 MHz Further Notice*, we
     tentatively concluded that, in the event the Frontline proposal was
     adopted, we would need to impose conditions to deal with the
     circumstance where the winning bidder of the commercial license and
     the "national public safety licensee" are unable to reach agreement
     on a network sharing agreement.[^1027] We specifically proposed
     requiring the winning bidder and the national public safety
     licensee to enter into binding arbitration in the event that they
     cannot resolve outstanding issues.[^1028] We further tentatively
     concluded that, to provide incentives to reach an agreement, we
     would not grant a license to the winning bidder of the commercial
     license at auction until after it filed a network sharing agreement
     with the Commission, and received approval.[^1029]

498. We also sought comment on several other issues and possible
     conditions, including whether (1) we should adopt a requirement
     that the parties report to the Commission on the status of the
     negotiations, (2) other conditions should be adopted that "ensure
     that an agreement is reached quickly and in a manner that is
     satisfactory to public safety," (3) we should adopt other options
     to provide additional oversight, (4) we should require an agreement
     by a certain date, and (5) in the absence of an arbitration option,
     whether the Commission should be authorized to appoint board
     members to the governance of the D Block licensee.[^1030]

499. Commenters on this subject generally support requiring good faith
     negotiations,[^1031] ongoing Commission oversight,[^1032] waiting
     to grant the commercial license until the network sharing agreement
     is filed,[^1033] and placing a deadline on the negotiation of that
     agreement.[^1034] Commenters also argue that, regardless of the
     remedies adopted, the Commission should assume an active role in
     oversight through reporting requirements and dispute resolution
     processes to ensure that the interests of public safety are
     adequately protected.[^1035]

500. Commenters are divided on the issue of whether the Commission
     should resolve negotiation disputes through mandatory binding
     arbitration. While some commenters support an arbitration if it
     were done by the Commission,[^1036] a number of public safety
     commenters strongly oppose any mandatory arbitration, whether
     private or by the Commission.[^1037] They argue that mandatory
     dispute resolution would take control of public safety spectrum out
     of the hands of the national public safety licensee and would force
     the public safety community nationwide into a long-term partnership
     with an entity over whose selection they would have no control and
     who would be chosen solely by competitive bidding.[^1038] They
     insist that the only appropriate remedy in the event the parties
     are unable to negotiate an agreement would be to auction a new
     license for the commercial spectrum.[^1039]

501. [Discussion]{.underline}*.* Based on the record, we specifically
     condition the D Block license on the following requirements to
     ensure the establishment and execution of the NSA in a timely
     manner while safeguarding the public interest.

502. *Approval of NSA as Pre-Condition for Granting the D Block
     license.* Because the terms of the NSA are critical to the success
     of the partnership, the D Block license will not be issued until
     the Commission has approved the NSA and following such approval,
     the parties execute the NSA and file an executed copy with the
     Commission. As several public safety commenters recognize, this
     condition for granting the license will ensure that the winning
     bidder for the D Block license has appropriate incentives to reach
     an agreement on the NSA in good faith and cannot stall the
     negotiations to avoid its obligations to public safety.[^1040]

503. We recognize that the D Block licensee will be subject to an
     aggressive build-out schedule, and an applicant for the license may
     wish to commence certain initial construction activities prior to
     the grant of an authorization. We do not prohibit the winning
     bidder of the D Block license from engaging in network build-out
     during the NSA negotiation period and prior to grant of the
     license, but to ensure that such build-out does not frustrate the
     interests of public safety or preempt the negotiations regarding
     the appropriate build-out schedule, we require that any such
     build-out occur only with the approval of the Public Safety
     Broadband Licensee. Similar to service rules for other spectrum
     licenses,[^1041] such construction is conducted at the sole risk of
     the applicant, is subject to the Commission's authority to provide
     notification to stop such build-out, and cannot result in
     commercial operation unless and until the Commission has granted
     the D Block license.

504. *Timeframe for Negotiation.* We also establish a deadline for the
     parties to reach agreement on the terms of the NSA to ensure that
     the Public/Private Partnership implementation is not indefinitely
     delayed. Specifically, we require the parties to commence
     negotiations on the terms of the NSA on the date that the winning
     bidder of the D Block license files its long form
     application[^1042] or the date on which the Commission designates
     the Public Safety Broadband Licensee, whichever is later, and we
     further require the parties to conclude negotiations not later than
     six months after the commencement date. As soon as the parties have
     reached an agreement on all the terms of the NSA, but not later
     than five days after the six month period for negotiation has
     expired, they must submit for Commission approval the NSA together
     with all agreements and other documents referred to in the NSA,
     including the agreement reached on the broadband technology
     standard. The Commission will act on the NSA within 60 days of
     receipt. If the parties have not reached agreement on all terms of
     the NSA by the end of the six-month period, they must notify the
     Commission not later than five days after the expiration of the
     six-month period of the terms agreed upon, the nature of the
     remaining issues and each party's position on each issue (whether
     in the form of final best offers, or a characterization of the
     parties jointly on the positions of the parties and reason for
     impasse), whether additional negotiation is likely to produce an
     agreement, and, if so, a proposed deadline for completing the
     agreement.

505. *Requirement of Good Faith.* We require the parties to negotiate in
     good faith the specific terms of the NSA pursuant to the
     conditions, requirements, and guidance established in this Second
     Report and Order. We also require the parties to act in good faith
     in the performance of the NSA. To provide additional assurance that
     negotiations are proceeding in good faith, and except as explicitly
     set forth herein, the Commission will oversee the negotiation of
     the NSA, and will play an active role in the resolution of any
     disputes among the relevant parties (including the winning bidder
     for the D Block; the D Block licensee; the Operating Company; the
     Network Assets Holder; and the Public Safety Broadband Licensee),
     both resulting from the negotiations and once the parties are
     operating under the terms of the NSA.

506. *Progress Reports During Negotiations.* The winning bidder for the
     D Block license shall file an initial report within 10 days of the
     commencement of the negotiations period certifying that active and
     good faith negotiations have begun, providing the date on which
     they commenced, and providing a schedule of the initial dates on
     which the parties intend to meet for active negotiations, covering
     at a minimum the first 30-day period. We require that two members
     of the Commission's staff, one from the Wireless Bureau, and one
     from the Public Safety and Homeland Security Bureau, be present at
     all stages of the negotiation of the NSA as neutral observers. We
     do not intend, however that the staff act as arbitrators. Disputes
     must still come to the Commission for resolution. Beginning three
     months from the triggering of the six-month negotiation period, the
     winning bidder for the D Block license and the Public Safety
     Broadband Licensee must jointly provide detailed reports, on a
     monthly basis and subject to a request for confidential treatment,
     on the progress of the negotiations throughout the remainder of the
     negotiations. These reports should include descriptions of all
     material issues that the parties have yet to resolve. The monthly
     reports will enable us to identify any areas of significant
     disagreement between the winning bidder for the D Block license and
     the Public Safety Broadband Licensee. The Commission also reserves
     the right to require the parties to meet with Commission staff to
     discuss their negotiations or reports at any time during the
     negotiation process.

507. These reporting requirements, together with the authority we
     reserve to observe negotiations, will ensure that the Commission's
     participation is not limited to dispute resolution. We intend to
     actively monitor and, if required, participate in the negotiation
     process. Such involvement may help to avoid intractable disputes
     and to produce an agreement consistent with the rules we are
     establishing and the goals of the proceeding in a timely manner.
     This process may also help to determine whether parties are likely
     to reach an agreement prior to, but not later than the end of the
     negotiation period. If the Commission determines that parties are
     unlikely to reach an agreement or they violate certain obligations
     (*e.g*., good faith negotiation obligations), the Commission (or
     the Bureaus) may take, on its own motion, actions pertaining to
     dispute resolution before the NSA approval, described elsewhere in
     this Second Report and Order, without waiting for the six-month
     negotiation period to fully elapse.

508. *Resolution of Negotiation Disputes.* Either upon notice of a
     dispute at the end of the six-month negotiation period, or on their
     own motion at any time, if the Chiefs of PSHSB and WTB determine
     that negotiations have reached a likely impasse, we delegate
     authority to the Chiefs of PSHSB and WTB to take certain actions
     jointly in the public interest to adjudicate the dispute.[^1043] As
     appropriate, these actions may include but are not limited to one
     or more of the following: (1) granting additional time for
     negotiation; (2) issuing a decision on the disputed issues and
     requiring the submission of a draft agreement consistent with their
     decision; (3) directing the parties to further brief the remaining
     issues in full for immediate Commission decision; and/or (4)
     immediate denial of the long-form application filed by the winning
     bidder for the D Block license. Remedies shall not, however,
     include ordering private third-party arbitration. In the event that
     the long-form application filed by the winning bidder for the D
     Block license is denied, the winning bidder for the D Block license
     will be deemed to have defaulted under Section 1.2109(c) of the
     Commission's rules, it will be liable for the default payment set
     forth in § 1.2104(g),[^1044] and the full Commission, at its
     discretion, shall decide whether to offer a new license for the
     spectrum to existing or new applicants, offer a new license to the
     other highest bidders (in descending order) at their final bids, or
     choose any other process within the Commission's statutory
     authority to reassign the license, in light of the public interest
     goals served by the Public/Private Partnership.[^1045]

509. Our approach to adjudicating disputes during the NSA negotiations
     responds to the concerns of public safety commenters, including
     APCO, NPSTC, and Cyren Call, who have argued the only remedy the
     Commission should apply in the event of negotiation failure is to
     conduct a new auction for a new license for the spectrum.[^1046] We
     note that, while public safety commenters have generally opposed a
     requirement of mandatory private third-party arbitration, they also
     concede that having the Commission adjudicate their disputes rather
     than a private party would address some of their concerns on this
     issue,[^1047] and other commenters fully support adjudication of
     disputes by the Commission.[^1048] We agree that it would be
     inappropriate to have issues regarding the use of public safety
     spectrum resolved by a private party and preclude that option as a
     remedy. We find, however, that we should not at this time preclude
     the option of disputes being adjudicated by the Commission. Rather,
     providing the Commission with discretion to choose from a range of
     remedies will enable the Commission to choose the most appropriate
     option in the context of the specific concerns raised by the
     parties. When the specific disputes are presented, the Commission
     will be in a better position to determine whether the goals of the
     700 MHz Public/Private Partnership and the interests of public
     safety and the public will be best served by conducting a new
     auction for a new license for the D Block spectrum, or whether
     adjudication of disputes or another remedy is the best course.

510. *Licensing Rules and Procedures Applicable to the D Block license.*
     Except as provided herein, the Commission's competitive bidding
     rules applicable to other commercial licenses in the 700 MHz Bands
     will apply to the winning bidder for the Public/ Private
     Partnership License, including the practices and procedures listed
     in Part 1 of our rules.[^1049] For example, the down payment
     requirement, the obligation of the winning bidder for the D Block
     license to file a "long form" license application, and the
     consequences of a default prior to grant of the license will be in
     accordance with Sections 1.2104, 1.2105, 1.2106, 1.2107, and 1.2109
     of the Commission's rules.

511. If the long form application is denied, the procedures under
     Section 1.2109 of the Commission's rules will generally apply. We
     note that we may complete review of the long form application and
     deny the application without regard to the NSA, if the application
     is deficient or the grant of the license would otherwise be
     inconsistent with the Commission's rules. We further clarify that
     if the winning bidder for the D Block license fails to comply with
     the procedures we establish for negotiation or dispute resolution,
     fails to receive final Commission approval of an NSA, or fails to
     execute an approved NSA, (a) it shall be disqualified from holding
     the D Block license, (b) the license application will be denied,
     and (c) it will be deemed to have defaulted and will be subject to
     all payments and obligations under Section 1.2109 of our
     rules.[^1050]

512. *Process for Final Approval.* The Commission will review and
     approve the NSA. To facilitate our review, we may seek input from
     the parties, or invite public comment on the proposed NSA, subject
     to redactions to protect a legitimate need for confidentiality.
     After conducting our review, we may approve the NSA in its
     entirety, approve it with modifications, or require the parties to
     address additional terms or re-draft existing terms within a
     specified timeframe. Following approval with or without
     modifications, the parties shall execute the NSA and submit a copy
     of the executed NSA to the Commission within 10 days of approval.

#### Ongoing Conditions for the Protection of Public Safety Service

513. [Background]{.underline}. In its proposal, Frontline asserted that,
     if its proposed commercial block licensee encounters financial or
     other problems that prevent compliance with its obligations, the
     Commission may reclaim and re-auction the spectrum.[^1051]
     Accordingly, it argued, there is no need for service rules to
     address this issue in some special fashion.[^1052]

514. In the *700 MHz Further Notice*, we sought comment on whether other
     measures should be adopted to address what actions the Commission
     might or must take in the event that the commercial licensee fails
     to comply with its obligations.[^1053] In particular, we asked
     whether (1) there should be a special process for public safety
     entities or others to challenge the commercial licensee's
     compliance with its obligations; (2) the license should cancel
     automatically based on failure to comply with specified
     obligations; (3) the Commission should establish an unjust
     enrichment requirement to be paid in the event the Commission is
     unable to reclaim the license after a failure by the commercial
     licensee to meet its obligations; (4) in the event the Commission
     does reclaim the license, it should hold any network infrastructure
     built by the licensee in trust for public safety to avoid
     interruption of service to first responders; and (5) the Commission
     should provide a rebate of a portion of the net bid amount paid by
     the commercial licensee at auction upon satisfaction of the
     conditions of the license.[^1054]

515. Commenters agree that the rules need to protect against any
     disruption to public network operations or default on build-out
     obligations or license cancellation.[^1055] Commenters also offer a
     number of proposals to address these problems. To prevent the
     interruption of service to public safety users, several commenters
     propose that the Commission should simply establish an applicable
     rule similar to Section 214 of the Act and prohibit the commercial
     licensee from discontinuing operations to public safety without
     Commission approval.[^1056] Verizon Wireless argues that, although
     a Section 214-like rule can provide for an orderly discontinuation
     of service, such a rule cannot, as a practical matter, require a
     failing business to continue to operate by regulatory fiat.[^1057]

516. Several commenters recommend some form of financial security from
     the Public/Private Partnership Licensee, such as a performance bond
     or letter of credit, to be drawn on in the case of financial or
     regulatory difficulties.[^1058] Commenters also emphasize the
     importance of continued monitoring by the Commission of the
     development and operations of the network. For example, Cyren Call
     proposes that we require annual reports that provide status updates
     on all key NSA elements to keep the Commission apprised on the
     state of the network.[^1059] Others recommend that, in the event
     that the commercial licensee is non-compliant with the NSA, the
     infrastructure of the network should be held in trust for public
     safety to avoid interruption of services.[^1060] Commenters also
     propose that the Commission establish an expedited process for
     addressing and resolving claims that the commercial licensee has
     not complied with its obligations.[^1061]

517. [Discussion]{.underline}*.* We conclude that several measures are
     necessary to address the possibility that problems will arise in
     the implementation of the NSA or the operation of the common
     network. We are concerned that such problems, whether financial or
     otherwise, may threaten the build-out of the public safety network
     or the continued provision of network services to public safety
     users. We are also concerned that the D Block licensee or a related
     entity might, in financial difficulty, draw the D Block license or
     the network assets, respectively, into a bankruptcy proceeding and
     attempt to place both the operations of the network and its
     underlying assets outside of the control of either public safety or
     the Commission. To address these concerns, while maintaining
     necessary incentives for investment and preserving commercial
     viability, we establish a number of inter-related
     requirements.[^1062]

518. *Requirements Relating to Organization and Structure of the
     Public/Private Partnership.* To support continued construction and
     operation of the shared wireless broadband network by reducing the
     risk that the D Block license or the network assets will be drawn
     into a bankruptcy proceeding, we require the winning bidder for the
     D Block license to form separate special purpose entities,[^1063]
     which will be bankruptcy remote,[^1064] to hold the D Block license
     and the network assets, respectively. We also require the winning
     bidder of the D Block licensee to form another vehicle that will
     also be a bankruptcy remote, special purpose entity (Operating
     Company). The D Block licensee will lease the spectrum rights
     associated with the D Block license to the Operating Company
     pursuant to the Commission's spectrum leasing rules. The spectrum
     leasing arrangement will be for the entire term of the D Block
     license and will be renewable, provided that the Commission renews
     the underlying D Block license. These license transactions will
     occur following the granting of the D Block license and should
     follow existing Commission procedures applicable to such
     transactions. The Operating Company will also be leased secondary
     use rights associated with the primary license held by the Public
     Safety Broadband Licensee.[^1065] To ensure that these requirements
     have been met, the D Block auction winner shall submit the proposed
     organizational structure to the Commission and demonstrate to the
     Commission's satisfaction that each of the constituent entities is
     appropriately bankruptcy remote. Finally, it shall be a condition
     of the D Block license and the Public Safety Broadband License that
     all special purpose entities and any leasing or other commercial
     agreements created to implement the public/private partnership will
     be subject to the Communications Act of 1934, as amended, and the
     Commission's rules and regulations, and the parties to the NSA
     shall acknowledge such regulatory authority in a form acceptable to
     the Commission.

519. The D Block licensee and other entities authorized and required in
     this Second Report and Order or the NSA will have the obligation to
     build out the nationwide, shared interoperable broadband network
     operating on the spectrum associated with the D Block license and
     the Public Safety Broadband License.

520. In connection with establishing the bankruptcy remote special
     purpose entities required hereunder, the Commission requires the
     issuance of one or more legal opinion letters, at the cost of the
     winning bidder of the D Block license, from bankruptcy counsel
     chosen by the winning bidder of the D Block license and acceptable
     to the Commission, and such other parties as the Commission may
     designate, that clearly states, subject only to customary
     assumptions, limitations and qualifications that none of the
     winning bidder, the Operating Company, or any party to the NSA or
     other related agreements will be substantively consolidated with
     any entity. The scope of this opinion letter shall also cover such
     other opinions as the Commission may request.[^1066]

521. *Prohibition on Discontinuance of Public Safety Operations.* We
     prohibit the D Block licensee from discontinuing or degrading the
     broadband network service provided to the Public Safety Broadband
     Licensee or to public safety entities unless either at the request
     of the entity or entities in question or it has first obtained the
     approval of the Commission.[^1067] Further, the D Block licensee
     must notify the affected public safety entity or entities and the
     Public Safety Broadband Licensee at least 30 days prior to any
     unrequested discontinuance or degradation of network service.

522. We recognize that such a prohibition cannot by itself prevent
     discontinuance of a financially ailing business operation
     indefinitely. We anticipate, however, that in the event of
     significant problems, it will ensure the continuance of public
     safety operations in the short term until longer terms measures
     have been adopted to address the underlying problems.

523. *Failure to Comply with the NSA or the Commission's Rules.* We
     establish rules to address how the Commission will remedy failures
     by either the D Block licensee or the Public Safety Broadband
     Licensee to comply with the NSA or our rules. First, with regard to
     the D Block licensee, as we have stated elsewhere, we have
     conditioned the D Block license on compliance with the NSA. Failure
     to comply with the Commission's rules or the terms of the NSA may
     warrant cancelling the D Block license, depending on the
     circumstances, and awarding it to a new licensee. In particular,
     the full Commission will decide whether to cancel and reassign the
     D Block license in the event that the D Block licensee either
     cannot or will not fulfill the critical responsibilities that are
     being given to it. Accordingly, we provide for a process by which
     cancellation will occur without threatening network services to
     public safety entities.

524. In the event that the Commission determines that the D Block
     license must be cancelled consistent with the Act and the
     requirements herein, an order shall be issued cancelling the
     license and announcing the process for awarding rights to the
     spectrum to a new licensee. However, pending the award to a new
     licensee, the Operating Company will be issued a special temporary
     authority (STA) to continue to provide both commercial and public
     safety service in the Public/Private Partnership spectrum. We find
     that issuance of an STA in this circumstance will serve the public
     interest, convenience, and necessity by enabling uninterrupted,
     seamless service to public safety entities as well as commercial
     users, pending the grant of a new license.[^1068]

525. To further ensure that services to public safety are not threatened
     by cancellation or otherwise, the NSA shall require, in a separate
     agreement, the granting of (a) an irrevocable and assignable right
     of first refusal if the network and network assets are otherwise to
     be sold; and (b) an irrevocable and assignable option in favor of
     the Public Safety Broadband Licensee to acquire the network and all
     network assets if and whenever the D Block license is cancelled or
     terminated, by reason of default or for any other reason, for a
     consideration equivalent to the fair market value (FMV) of the
     tangible and intangible assets sold. This option shall be senior
     to, and have priority over, any other right, claim, or interest in
     or to the network or the network assets. An event of default
     includes any default of the D Block licensee of a material
     obligation under the NSA, as determined by the Commission.
     Valuation will be performed pursuant to a FMV methodology to be
     agreed upon by the parties and set forth in the NSA. Valuation
     shall be performed immediately following the occurrence of a
     triggering event and completed within a reasonable time thereafter.
     The NSA must further provide that, in the event that the D Block
     license is awarded to a new entity, the Public Safety Broadband
     Licensee's right to purchase the network assets shall be reassigned
     to the new D Block licensee. Thereafter, the Public Safety
     Broadband Licensee's right to purchase shall be extinguished unless
     and until a new triggering event described above occurs, as the
     primary purpose of the right, to enable a smooth transition in the
     event of a default, would be achieved, and because maintaining the
     right might adversely impact the incentive of the new D Block
     licensee to invest in its network.

526. We provide that, in the event that the D Block license is
     cancelled, the Commission may choose any process within the
     Commission's statutory authority to reassign the license, in light
     of the public interest goals served by the Public/Private
     Partnership. Upon grant of a new license, the Commission, or the
     Bureaus acting on delegated authority, shall, in coordination with
     the former licensee and the new licensee, as well as the Public
     Safety Broadband Licensee, establish the terms and timing under
     which the temporary authorization shall be cancelled and the new D
     Block licensee assume the construction and operation of the
     network.[^1069] This decision shall take into account, among other
     factors, any exercise by the new licensee of its right to purchase
     the network assets.

527. With regard to the Public Safety Broadband Licensee, in the event
     that the Public Safety Broadband Licensee fails to adhere to the
     terms of the NSA, or comply with the Commission's rules or any
     requirements contained in this Second Report and Order, to an
     extent giving rise to license cancellation, we delegate authority
     to the Chiefs, PSHSB and WTB jointly to determine an appropriate
     remedy. The potential remedies include, but are not limited to,
     cancelling the license, assigning the license to another entity,
     directing the Public Safety Broadband Licensee to transfer the
     assignable option to purchase the assets at fair market value,
     ordering specific performance, or ordering removal and replacement
     of individual officers, directors or member organizations of the
     Public Safety Broadband Licensee. The potential remedies would be
     consistent with the unique role and responsibilities of the Public
     Safety Broadband Licensee and the importance of minimizing any
     disruptions to public safety broadband operations in the 700 MHz
     Band.

528. *Resolution of Disputes after Grant of the D Block license.* The
     record supports Commission involvement in the adjudication of
     disputes arising from the 700 MHz Public/Private Partnership
     established in this Second Report and Order.[^1070] We find that
     the Commission should assume primary responsibility and
     jurisdiction for adjudicating intractable disputes that arise once
     the parties are operating pursuant to the terms of the NSA. While
     we strongly encourage the parties to first attempt to resolve any
     disagreements themselves through voluntary means, the parties to
     the NSA may at any time bring a complaint based on a claim that the
     other party has deviated from the terms of the NSA, or a petition
     for a declaratory ruling to resolve the proper interpretation of an
     NSA term or provision. We emphasize that these shall be the
     exclusive remedies for claims seeking the interpretation of the NSA
     in the first instance. The Commission may, however, as an
     alternative to adjudicating the issues, require the parties to
     first seek a settlement to the dispute or authorize them to resolve
     the dispute through litigation or other means, particularly if the
     dispute is found to involve no significant public concerns, and the
     Commission will consider any request by the parties to authorize
     such means.

529. In the event the Commission decides to adjudicate the issues, we
     provide that the Commission will have full authority to interpret
     not only its rules but all of the provisions of the NSA.[^1071] We
     further provide that, if the Commission finds a material breach of
     the NSA, it may apply any remedy or enforcement mechanism within
     its authority. In particular, insofar as the D Block license is
     conditioned for its entire license term upon the D Block licensee's
     compliance with the terms of the NSA, breach of this licensing
     condition may result in the cancellation of the license or other
     enforcement action.[^1072] Similarly, as discussed elsewhere, the
     Public Safety Broadband Licensee's breach of its license terms, the
     NSA, or our rules may also result in the cancellation of its
     license or other enforcement action. As with adjudication of
     disputes during the NSA negotiation process, the Chiefs of PSHSB
     and WTB are delegated joint responsibility for adjudicating any
     disputes that arise during performance of the NSA. Bureau level
     adjudications of NSA disputes must be completed within 45 days. The
     parties may seek review by the Commission of any bureau-level
     adjudication.[^1073] Finally, we establish that, if a breach of the
     NSA occurs but is not brought to the Commission for resolution, the
     Commission retains authority to apply all appropriate remedies on
     its own initiative at any time after the breach occurs.

530. *Reporting Obligations.* Once the NSA is approved by the Commission
     and executed by the parties, the parties must jointly file
     quarterly reports with the Commission. These reports must include
     detailed information on the areas where broadband service has been
     deployed, how the specific requirements of public safety are being
     met, audited financial statements,[^1074] which public safety
     entities (*e.g.*, police, fire departments) are using the broadband
     network in each area of operation;[^1075] what types of
     applications (*e.g.*, voice, data, video) are in use in each area
     of operation to the extent known; and the number of declared
     emergencies in each area of operation. We anticipate that this
     information will be readily available from the billing systems used
     for the shared network, and reserve the right to specify additional
     information that the quarterly reports must include at a later
     date. The D Block licensee and Public Safety Broadband Licensee
     also have joint responsibility to register the base station
     locations with the Commission, providing basic technical
     information, including geographic location. Such registrations may
     be filed with a request for confidential treatment by the
     Commission. In this regard, we delegate to the Wireless Bureau
     authority to adopt rules and procedures to implement this
     requirement, as well as authority to modify ULS to accept such
     filings and to issue a Public Notice describing any such
     modifications and relevant filing procedures.[^1076] We delegate to
     the Wireless Bureau the authority to adopt filing rules and
     procedures not inconsistent with this Second Report and Order to
     facilitate these reporting obligations.

### Other Issues

#### Bidding Credits 

531. [Background.]{.underline} In the *700 MHz Further Notice*,[^1077]
     we sought comment on whether the Commission's prior determination
     to provide applicants that are eligible to be licensed as
     designated entities, *i.e.*, small businesses, with bidding credits
     in an auction of 700 MHz licenses should apply to the license
     proposed by Frontline.[^1078] Given that the Commission previously
     has declined to offer designated entities bidding credits for
     services with high implementation costs, we expressed concern that
     the capital requirements of constructing a nationwide network for
     public safety services might make it inappropriate to offer bidding
     credits in connection with such a proposal.[^1079]

532. We further explained in the *700 MHz Further Notice* that
     Frontline's proposal that its proposed commercial licensee be
     required to provide only wholesale service created a conflict with
     the eligibility requirements for entities seeking a designated
     entity bidding credit.[^1080] Section 1.2110(b)(iv) of the
     Commission's rules restricts an applicant's eligibility for
     designated entity benefits if it has an "impermissible material
     relationship," which is defined as an arrangement with one or more
     entities for the lease or resale (including under a wholesale
     agreement) of, on a cumulative basis, more than 50 percent of the
     spectrum capacity of any one of the applicant's or licensee's
     licenses.[^1081] Thus, in considering whether to offer bidding
     preferences, including small business bidding credits, we noted in
     the *700 MHz Further Notice* that a wholesale-service-only
     requirement appeared to "plainly" create a violation of Section
     1.2110(b)(iv)(A) of the Commission's designated entity eligibility
     rules.[^1082] We therefore sought comment on this issue.[^1083]

533. In response to the *700 MHz Further Notice*, Frontline argues in
     favor of providing bidding preferences, such as bidding credits,
     for applicants applying for the proposed commercial license, now
     the D Block license, based on their status as a small business or
     designated entity.[^1084] Frontline contends in part that it, and
     other entities, that meet the Commission's definition of small
     businesses for purposes of receiving bidding credits are capable of
     raising the capital necessary to fulfill the obligations of the
     proposed commercial licensee.[^1085] Frontline notes that the
     Commission's definition of small businesses is based on revenues
     rather than cash reserves or assets, and asserts that small
     businesses will be able to attract additional capital as needed to
     provide service with a Commission license.[^1086] Frontline also
     argues more broadly that providing bidding credits attracts
     applicants for licenses and thereby enhances the competition for
     and the efficient assignment of licenses.[^1087] In brief,
     Frontline maintains that bidding credits may help potential
     applicants overcome efforts by incumbents to prevent others from
     winning newly available licenses. Commenters such as McBride,
     Blooston, and Council Tree generally support the availability of
     designated entity bidding credits either in connection with or
     without regard to Frontline's specific proposals.[^1088]

534. MetroPCS states that, given Frontline's proposal for the
     obligations of the commercial licensee, it "shares the Commission's
     'serious concerns'" about offering bidding preferences to such
     applicants based on their small business status.[^1089] It
     maintains that the Frontline proposal would cause "a per se
     violation" of the current designated entity rules concerning
     impermissible material relationships.[^1090] MetroPCS argues that
     Frontline has effectively requested that the Commission waive or
     change its designated entity rules for the proposed commercial
     licensee. It claims that Frontline has offered no grounds to
     justify such an action and that the Commission's current rules
     prohibit a wholesale arrangement such as that suggested by
     Frontline.[^1091] The United States Cellular Corporation also
     opposes the Frontline proposal for both adopting the public/private
     partnership licensing regulations and offering bidding credits,
     arguing that such requirements would undermine "existing rules and
     expectations."[^1092]

535. [Discussion]{.underline}*.* We conclude that we should provide
     applicants that are eligible to be licensed as designated entities
     with bidding credits in the auction of the D Block license,
     consistent with the Commission's prior decision regarding bidding
     credits for 700 MHz licenses[^1093] and our current designated
     entity rules.[^1094] As explained elsewhere, we do not adopt
     Frontline's proposal that the D Block licensee be required to
     provide only wholesale service. Thus, the issues raised by
     commenters opposing designated entity benefits in light of such a
     requirement need not be addressed.

536. The Commission employs a service-by-service approach when it comes
     to defining designated entities eligible for small business bidding
     credits.[^1095] As discussed in detail elsewhere, the D Block
     license presents a unique and innovative opportunity for a
     commercial service provider to serve the public interest by forming
     a public/private partnership with the Public Safety Licensee for
     the benefit of public safety entities and the public at large.
     Although the Commission generally has refrained from offering
     bidding preferences for nationwide licenses with services that may
     have high capital costs, as stated above, we have reserved our
     discretion to employ a service-by-service approach when it comes to
     defining small businesses. Pursuant to that discretion, the
     Commission has previously offered bidding credits in connection
     with nationwide licenses where the service specific rules have made
     it appropriate to do so.[^1096]

537. We conclude that the conditions on the D Block license detailed
     herein, which include compliance with all the terms of the NSA to
     be negotiated with the Public Safety Broadband Licensee, will deter
     bidding by parties that likely will be unable to fulfill the
     crucial financial commitments required to comply with the
     conditions and retain the license. Given these conditions, parties
     that are uncertain of their ability to hold the license for the
     full term are less likely to bid on the D Block license. In order
     to encourage the widest range of potentially qualified applicants
     to participate in bidding for the D Block license, we will provide
     eligible bidders for the D Block license with the existing 15 and
     25 percent bidding credits, as the credits may be necessary to
     create incentives for investors to provide innovative small
     businesses with the capital necessary to compete for the D Block
     license at auction.[^1097] Pursuant to our existing small business
     size standards, eligible bidders with average attributable gross
     revenues for the last three years not exceeding \$15 million or
     \$40 million, respectively, may be eligible for bidding credits of
     25 percent or 15 percent, respectively.[^1098]

#### License Partitioning, Disaggregation, Assignment, and Transfer

538. [Background]{.underline}*.* Section 27.15 of the Commission's rules
     permits Part 27 licensees to seek Commission authorization to
     partition their geographic license areas and disaggregate their
     spectrum at any time following the grant of their licenses.[^1099]
     Frontline in its "Public Safety Broadband Deployment Plan" proposed
     that to the extent the commercial licensee satisfies the
     construction requirements of §27.14 through partitioning or
     disaggregation, it shall do so through the first options listed in
     Sections 27.15(d)(1) and (2) of the Commission's rules.[^1100] In
     the *700MHz Further Notice*, we sought comment on the proposed
     "Public Safety Broadband Deployment Plan," its likely effects on
     both the commercial and the public safety users in the 700 MHz
     Band, and whether it would be in the public interest for the
     Commission to adopt such a proposal, or alternatives to achieve the
     same or similar public interest goals.[^1101] While most of
     commenters are silent on the issue, NPSTC recommends that the
     nationwide public safety licensee be provided the authority to veto
     any subsequent proposed license transfer or
     disaggregation/partitioning of the proposed commercial license that
     it believes would be detrimental to the deployment or continued
     operation of nationwide broadband system.[^1102]

539. [Discussion]{.underline}*.* Based on the record, we decide to
     prohibit geographic partitioning and spectrum disaggregation for
     the D Block licensee. As discussed elsewhere, the Public Safety
     Broadband Licensee is also prohibited from partitioning and
     disaggregation. We reasoned that such restriction is necessary to
     ensure the integrity of the nationwide broadband network and the
     public/private partnership we establish.

540. We agree with NPSTC's concern that unrestricted license transfer or
     disaggregation and partitioning of the D Block license would be
     detrimental to the successful deployment and continued operation of
     nationwide broadband system.[^1103] We find that the success of the
     Public/Private Partnership largely depends on the partnership
     structure and the negotiated terms of the NSA. Adding new parties
     into the partnership structure and splitting various obligations
     among the new partners after the NSA is executed could further
     complicate the rights and responsibilities of each party. Dealing
     with multiple licensees in case of disputes may also be unduly
     burdensome for the Public Safety Broadband Licensee and delay
     successful resolution of issues. The D Block license has specific
     license conditions that are designed to facilitate successful
     deployment and operation of nationwide broadband system. Allowing
     multiple licensees in the band may impair the nationwide aspect of
     the broadband network.

541. The record fails to address how the conditions in the NSA will
     apply to new D Block licensee in cases of partitioning and
     disaggregation. The goal of specific construction requirements in
     both the partitioning and disaggregation context is "to ensure that
     the spectrum is used to the same degree that would have been
     required had the partitioning or disaggregation transaction not
     taken place."[^1104] As we noted in the *700 MHz Further Notice*,
     successful negotiation of the NSA is a critical first step to
     achieving the benefits to public safety.[^1105] If the D Block
     licensee is allowed partitioning and disaggregation, the
     administrative burden on both D Block licensee and the public
     safety licensee would outweigh the benefit of flexibility to the
     licensee.

542. It would best service the public interest to assure reliable
     partnership between the D Block licensee and the potential Public
     Safety Broadband Licensee by prohibiting partitioning and
     disaggregation. We recognize that the Commission's existing
     Secondary Markets rules governing transfers and assignments would
     be applicable to the D Block licensee, providing further
     flexibility to the licensee.[^1106] Thus, the D Block licensee
     would be permitted to assign or transfer its licensee subject to
     the Commission review and prior approval.[^1107]

#### Commercial Service Issues

##### Wholesale and Open Access Proposals

543. [Background.]{.underline} In the *700 MHz Further Notice*, we
     sought comment on a proposal that the commercial licensee be
     required to operate as a "wholesale" provider with respect to
     commercial use of the Public/Private Partnership spectrum.[^1108]
     In its comments, Frontline proposed that the commercial license to
     be used in the Public/Private Partnership should be allocated
     exclusively for a wholesale network provider whose sole focus is to
     operate the continuously reliable and robust network services that
     public safety needs.[^1109] Under this "wholesale only" or "open
     access" proposal, the licensee would be required not to
     discriminate against any retail service provider, and users would
     be allowed to attach any devices to the network and to access
     services and content provided by unaffiliated parties.[^1110] In
     its comments, Frontline suggests that the commercial licensee be
     prohibited from selling more than 24.9 percent of its total service
     capacity to any one entity, and prohibited from selling capacity to
     affiliated third parties.[^1111]

544. Most of the comments regarding this proposal parallel the comments
     regarding "open access" for other 700 MHz Commercial Services
     spectrum, which we summarize elsewhere. Proponents cite benefits
     they expect will flow from adoption of the proposal,[^1112] while
     opponents dispute such claims and predict adverse
     consequences.[^1113] The Wireless Founders Coalition for Innovation
     urges us to apply "Open Services, Open Devices, and Open Auction"
     requirements to the Public/Private Partnership spectrum "as a
     sandbox for entrepreneurs."[^1114] RCC Consultants, however, notes
     that, "\[t\]he vast bulk of the Frontline \[Comments\] are
     addressed to matters of competition as to which public safety
     agencies have indicated no special interest . . . ."[^1115]
     Arcadian observes that "no existing providers offer a wholesale
     service with automatic roaming and *Carterfone* benefits," and
     argues that "\[t\]he Commission should not conduct an experiment
     with the valuable Public/Private Partnership License spectrum,
     particularly if our nation's first responders are going to be
     relying on it."[^1116] NPSTC concludes that "\[o\]pen access may be
     a viable option for the future, however, at this time not enough is
     known about the effects on the public safety part of the network to
     mandate it in the rules."[^1117] CTIA, Alltel, and other carriers
     opposed mandatory "wholesale" requirement, arguing that the
     Commission should not mandate the "wholesale only" restriction for
     the commercial licensee and allow the innovation and market
     competition to determine the best course of the business model for
     the spectrum.[^1118] Cyren Call argues that the proposal would have
     "very negative consequences . . . for Public Safety" because it
     would effectively preclude existing carriers from either
     participating in the auction or from entering into network hosting
     or other arrangements with the winning bidder.[^1119] On the other
     hand, Google supports the mandatory wholesale/open access component
     of Frontline's proposal, arguing that it would "ensure that at
     least some of the spectrum available in the auction would lead to
     an open broadband platform."[^1120]

545. [Discussion.]{.underline} Based on the record, we decline to
     restrict the D Block licensee to operating exclusively on a
     "wholesale" or "open access" basis. Instead, we provide the D Block
     licensee with flexibility to provide wholesale or retail services
     or other types of access to its network that comply with our rules
     and the NSA. This decision is consistent with our determination,
     elsewhere in this Second Report and Order, to reject imposing open
     access requirements broadly in the 700 MHz Band. We also note that
     concerns about imposing such obligations on the D Block licensee
     have been raised by a number of public safety commenters.[^1121]
     NPSTC, for example, states that "open access" should not be a
     requirement for the commercial license associated with the
     public/private partnership.[^1122] NPSTC states that the effects of
     an open access environment on public safety is unknown and that,
     before open access is mandated, a number of core issues such as
     "confidentiality, authentication, integrity and non repudiation
     must be all understood, particularly in the public safety
     environment."[^1123] We conclude that, given the public/private
     partnership obligations adopted in this Second Report and Order, it
     would not serve the goals of the Public/Private Partnership to
     impose special wholesale or open-access requirements (*e.g.*,
     device, application, or network access conditions) on the D Block
     licensee specifically. Rather, giving the D Block licensee the
     flexibility to choose the commercial service it will provide based
     on its determination of market needs should improve the viability
     of the 700 MHz Public/Private Partnership and serve the interests
     of public safety.

546. With respect to the network services offered to public safety, we
     note that the negotiated terms adopted in the NSA will establish
     consistent technical requirements for attachment of commercial and
     public safety devices to the network, as necessary for appropriate
     network control. The Public Safety Broadband Licensee will also
     have the right to determine and approve specifications for public
     safety equipment used on the network, to the extent that such
     specifications are not inconsistent with network control
     requirements established in the NSA.

##### Roaming Proposal

547. [Background]{.underline}*.* In the *700 MHz Further Notice* we
     sought comment on Frontline's proposal that its proposed commercial
     licensee be required, as a condition of its license, to offer
     roaming to any provider with customers utilizing devices compatible
     with the open protocol interface of the Public/Private Partnership
     network, and that such obligation be extended to all spectrum
     holdings of the commercial licensee.[^1124] Frontline argued that
     this requirement would serve as a benefit to competition generally
     and small and rural commercial providers particularly.[^1125]

548. Supporters of the proposal contend that this requirement will
     promote public safety in rural areas and that access to a robust,
     reliable, high-quality wireless network will enable small clinics
     and mobile health care workers in otherwise uncovered areas to
     access state-of-the-art IP applications such as remote video feeds
     and the downloading of visual information.[^1126] On the other
     hand, CTIA, MetroPCS and others oppose Frontline's proposal,
     arguing that the roaming requirement as well as the wholesale
     requirement conflict with current CMRS carriers business models and
     that the Commission should refrain from dictating specific business
     decisions for the commercial licensee.[^1127] Cyren Call further
     argues against the proposal, as it did with the open access and
     wholesale proposals, on the grounds that it "would cause more harm
     than good to take any action that will have as its effect the
     preclusion of existing wireless carriers from choosing to
     participate in the \[D Block license\] auction, or from choosing to
     enter into network hosting or other arrangements . . . with the
     winning \[D Block license\] bidder."[^1128]

549. [Discussion]{.underline}*.* We note that the Commission is already
     considering in another proceeding a broad range of issues related
     to the automatic roaming obligations for CMRS carriers.[^1129] We
     conclude that we should defer to the broader context of the pending
     roaming proceeding the determination of whether there are public
     interest benefits in also requiring automatic roaming to be
     provided by other commercial licensees. In addition, with regard to
     the D Block license specifically, we find that the proposed roaming
     requirement, which Frontline advocates as a benefit to competition
     generally and small and rural commercial providers
     particularly,[^1130] is not related to the public safety purposes
     of the Public/Private Partnership, and may, as Cyren Call argues,
     deter qualified carriers from seeking to bid on the D Block
     license. We will therefore not at this time impose any special
     roaming requirements on the D Block licensee.

##### Applicability of CALEA, E911, and Other Requirements

550. [Background]{.underline}. As part of its proposal on which we
     sought comment, Frontline asked the Commission to clarify that the
     regulatory requirements under the Communications Assistance for Law
     Enforcement Act (CALEA) and E911 rules, as well as "other
     requirements applicable to retail service providers," do not apply
     to its proposed commercial licensee.[^1131] Frontline argued that
     the commercial licensee will be providing only wholesale service,
     that any retailer of its service will be subject to any "CALEA,
     E911, or other requirements applicable to retail service
     providers," and that, therefore, "no gap in the enforcement of
     these requirements will result from Frontline's proposals."[^1132]

551. USCC opposes Frontline's requested clarification, stating that
     "CALEA and E911 are crucial mandates, upon which Frontline's future
     competitors have spent and will spend millions of dollars."[^1133]
     A number of comments respecting regulatory requirements such as
     CALEA, E911, and hearing aid compatibility[^1134] focus on the
     Commission's proposed clarification in the *700 MHz Commercial
     Services Notice*.[^1135] CTIA supports the Commission's tentative
     conclusion in the *700 MHz Commercial Services Notice* that certain
     services using Part 27 spectrum should be required to fulfill E911
     and hearing aid compatibility obligations consistent with the
     Commission's existing functional criteria for those
     requirements.[^1136] NENA further argues that the burden should be
     on parties seeking exemption from E911 obligations to file for a
     waiver.[^1137] By setting the expectation that the Commission's
     E911 rules will be applicable to services operating in the 700 MHz
     Band, NENA believes that the repeated rulemakings and costly
     retrofitting that occurred in the past may be avoided.[^1138] In
     its more recent filings, Frontline modifies its original proposal
     and now proposes that the commercial licensee will be subject to
     CALEA requirements and that it must "ensure that the shared network
     will not inhibit service-specific requirements, such as E911,
     provided by retailers of commercial services using the shared
     network ."[^1139]

552. [Discussion]{.underline}*.* We decline to categorically exempt
     services offered by the D Block licensee from E911, CALEA, and
     other regulatory requirements. Instead, we clarify that E911,
     CALEA, and other regulatory requirements will apply to services
     provided using Public/Private Partnership spectrum to the extent
     and only to the extent that these requirements apply to similar
     services provided elsewhere in the 700 MHz Band. We have only
     recently concluded that the E911 requirements established in
     Section 20.18 of our rules will apply to all commercial mobile
     radio services, including such services throughout the 700 MHz
     Band, that meet the functional criteria in Section 20.18(a),[^1140]
     and we see no reason to revisit that decision.[^1141] We defer any
     further examination of regulatory applicability to a more concrete
     and particular context, *e.g.*, if service providers seek
     clarification regarding the applicability of a specific regulatory
     requirement to their specific service.[^1142]

553. We also note that, even though the D Block license for spectrum in
     the "D Block" band will be issued pursuant to Part 27 of the
     Commission's rules, the licensee will be required to comply with
     other rule parts, which are applicable to the other commercial 700
     MHz bands, unless otherwise stated in this Second Report and
     Order.[^1143] Some of these rule parts will be applicable by virtue
     of the fact that they apply to all licensees and others will apply
     depending on the type of services the D Block licensee provide. For
     example, the D Block licensee will be required to comply with the
     practices and procedures listed in Part 1 of our rules for license
     applications, adjudicatory proceedings, etc. In addition, to the
     extent the licensee provides a Commercial Mobile Radio Service,
     such service would be subject to the provisions of Part 20 of the
     Commission's rules, along with the provisions in Part 27.[^1144]
     Part 20 applies to all CMRS providers, even though the stations may
     be licensed under other parts of our rules.

# PROCEDURAL MATTERS

## Regulatory Flexibility Act

554. Pursuant to the Regulatory Flexibility Act of 1980, as amended
     (RFA),[^1145] the Final Regulatory Flexibility Analysis (FRFA) for
     the Second Report and Order is set forth in Appendix C. Although
     Section 213 of the Consolidated Appropriations Act 2000 provides
     that the RFA shall not apply to the rules and competitive bidding
     procedures for frequencies in the 746-806 MHz Band,[^1146] we
     nevertheless believe that it would serve the public interest to
     analyze the possible significant economic impact of the policy and
     rule changes in this band on small entities. Accordingly, the FRFA
     in Appendix C of this Second Report and Order includes an analysis
     of this impact in connection with all spectrum that falls within
     the scope of the Second Report and Order, including spectrum in the
     746-806 MHz Band.

## Paperwork Reduction Act of 1995

555. The Second Report and Order contains both new and modified
     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.
     Comments should address the following: (a) whether the proposed
     collection of information is necessary for the proper performance
     of the functions of the Commission, including whether the
     information shall have practical utility; (b) the accuracy of the
     Commission's burden estimates; (c) ways to enhance the quality,
     utility, and clarity of the information collected; and (d) ways to
     minimize the burden of the collection of information on
     respondents, including the use of automated collection techniques
     or other forms of information technology. In addition, the
     Commission notes 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." In this present
     document, we have assessed the potential effects of the various
     policy changes with regard to information collection burdens on
     small business concerns, and find that there are no results
     specific to businesses with fewer than 25 employees. In addition,
     we have described impacts that might affect small businesses, which
     includes most businesses with fewer than 25 employees, in the FRFA
     in Appendix C, *infra*. We note, however, that Section 213 of the
     Consolidated Appropriations Act 2000 provides that rules governing
     frequencies in the 36 megahertz of the spectrum in the 746-806 MHz
     Band allocated for commercial use become effective immediately upon
     publication in the Federal Register without regard to certain
     sections of the Paperwork Reduction Act.[^1147] We are therefore
     not inviting comment on any information collections that concern
     those frequencies.

# Ordering Clauses

556. Accordingly, IT IS ORDERED that pursuant to Sections 1, 4(i), 5, 7,
     10, 201, 202, 208, 214, 215, 222(d)(4)(A)-(C), 222(f), 222(g),
     222(h)(1)(A), 222(h)(4)-(5), 229, 251(e)(3), 301, 303, 307, 308,
     309, 310, 311, 312, 316, 324, 331, 332, 333, 336, 337, 403, 503,
     and 710, of the Communications Act of 1934, as amended, 47 U.S.C.
     §§ 151, 154(i), 155, 157, 160, 201, 202, 208, 214, 215,
     222(d)(4)(A)-(C), 222(f), 222(g), 222(h)(1)(A), 222(h)(4)-(5),
     251(e)(3), 229, 301, 303, 307, 308, 309, 310, 311, 312, 316, 324,
     331, 332, 333, 336, 337, 403, 503, and 610, and Section 102 of the
     Communications Assistance for Law Enforcement Act, 18 U.S.C. §
     1001, this SECOND REPORT AND ORDER in WT Docket No. 06-150, CC
     Docket No. 94-102, WT Docket No. 01-309, WT Docket No. 03-264, WT
     Docket No. 06-169, PS Docket No. 06-229, and WT Docket No. 96-86 is
     ADOPTED, and that Part 2, 27, and 90 of the Commission's rules, 47
     C.F.R. Parts 2, 27, and 90, are AMENDED as set forth in Appendix B.
     This SECOND REPORT AND ORDER shall become effective 60 days after
     publication in the Federal Register subject to OMB approval for new
     information collection requirements.

557. IT IS FURTHER ORDERED THAT, pursuant to Section 5(c) of the
     Communications Act of 1934, as amended, 47 U.S.C. § 5(c), the
     Wireless Telecommunications Bureau and Public Safety and Homeland
     Security Bureau ARE GRANTED DELEGATED AUTHORITY to implement the
     policies set forth in this SECOND REPORT AND ORDER and the rules,
     as revised, set forth in Appendix B hereto.

558. IT IS ORDERED that, pursuant to Sections 4(i), 309, and 316(a) of
     the Communications Act, as amended, 47 U.S.C. §§ 154(i), 309,
     316(a), the 700 MHz Guard Band A Block licenses of Access 700, LLC,
     Pegasus Guard Band, LLC, and Dominion 700, Inc. ARE MODIFIED, as
     specified in Appendix D, upon the effective date of this SECOND
     REPORT AND ORDER.[^1148]

559. IT IS ORDERED that, pursuant to Sections 4(i), 309, and 316(a) of
     the Communications Act, as amended, 47 U.S.C. §§ 154(i), 309,
     316(a), Access 700 Holdings, LLC, Pegasus Guard Band, LLC, and
     Radiofone Nationwide PCS, LLC shall surrender their 700 MHz Guard
     Band B Block licenses to the Commission no later than 5 days from
     the effective date of this SECOND REPORT AND ORDER.[^1149]

560. IT IS ORDERED that, pursuant to Sections 4(i), and 309(f) of the
     Communications Act, as amended, 47 U.S.C. §§ 154(i), 309(f), Access
     700, LLC is granted special temporary authority for a period of 180
     days, upon the effective date of this SECOND REPORT AND ORDER, for
     frequencies 746.000-747.000 and 776.000-777.000 MHz in Major
     Economic Areas 20, 26, 32, 37, 44, and 52. The Wireless
     Telecommunications Bureau is delegated authority to issue such
     authorizations and to resolve any request for an extension of such
     authorizations as specified in this SECOND REPORT AND ORDER.

561. IT IS ORDERED that, pursuant to Sections 4(i), 309, and 316(a) of
     the Communications Act, as amended, 47 U.S.C. §§ 154(i), 309,
     316(a) and Section 1.87 of the Commission\'s rules, 47 C.F.R. §
     1.87, the 700 MHz Guard Band A Block license for Station WPRV447,
     licensed to PTPMS II Communications, L.L.C., WILL BE MODIFIED by
     changing the authorized frequencies from 746.000-747.000 and
     776.000-777.000 MHz, to 757.000-758.000 and 787.000-788.000 MHz.

562. IT IS ORDERED that, pursuant to Sections 4(i), 309, and 316(a) of
     the Communications Act, as amended, 47 U.S.C. §§ 154(i), 309,
     316(a) and Section 1.87 of the Commission\'s rules, 47 C.F.R. §
     1.87, the 700 MHz Guard Band B Block licenses for Stations WPRV448
     and WPRV449, licensed to PTPMS II Communications, L.L.C., WILL BE
     MODIFIED by changing the authorized frequencies from
     762.000-764.000 and 792.000-794.000 MHz, to 761.000-763.000 and
     791.000-793.000 MHz.

563. IT IS ORDERED that, pursuant to Sections 309 and 316 of the
     Communications Act of 1934, as amended, 47 U.S.C. §§ 309, 316, the
     modifications of Stations WPRV447, WPRV448, and WPRV449, licensed
     to PTPMS II Communications, L.L.C., specified in paragraphs 561 and
     562, *supra*, shall become final and effective 30 days from the
     effective date of this SECOND REPORT AND ORDER if no protests are
     filed within that period. The Wireless Telecommunications Bureau is
     delegated authority to resolve any such protests that may arise and
     to modify such licenses as specified in this SECOND REPORT AND
     ORDER.

564. IT IS ORDERED, pursuant to Sections 1 and 4(i) of the
     Communications Act, as amended, 47 U.S.C. §§ 151, 154(i), that on
     the effective date of this SECOND REPORT AND ORDER, all 700 MHz
     Band public safety licensees, whether holding individual narrowband
     authorizations or operating pursuant to a State License, SHALL
     PROVIDE the total number of narrowband mobile and portable handsets
     and narrowband base stations in operation in channels 63 and 68,
     and the upper 1 megahertz of channels 64 and 69, as of 30 days
     after the date of adoption of this SECOND REPORT AND ORDER, along
     with the related information specified herein.

565. IT IS FURTHER ORDERED that the Wireless Telecommunications Bureau
     SHALL SEND a copy of this SECOND REPORT AND ORDER, by certified
     mail, return receipt requested, to Alfred Angelo, President, PTPMS
     II Communications, L.L.C., 340 North Avenue East, Cranford, New
     Jersey 07016, and James H. Barker, Esq., 1001 Pennsylvania Avenue,
     N.W. Suite 1300, Washington, DC 20004-2505.

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

567. IT IS FURTHER ORDERED that the Commission SHALL SEND a copy of this
     SECOND REPORT AND ORDER in a report to be sent to Congress and the
     Government Accountability Office pursuant to the Congressional
     Review Act, *see* 5 U.S.C. § 801(a)(1)(A).

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary
>
> **APPENDIX A**
>
> **Comments and Reply Comments**
>
> **List of Comments and Reply Comments**
>
> **In the 700 MHz Further Notice**
>
> **(WT Docket Nos. 06-150, 06-169, 03-264, 96-86, and PS Docket
> 06-229)**

This is a list of parties who filed comments and reply comments within
the designated comment periods in the proceeding. This list does not
include approximately 250,000 individual citizens who filed brief
comments both during and after the formal comment periods. Of these
250,000 comments, approximately 225,000 were compiled and filed as reply
comments by MoveOn.org Civic Action. Approximately 25,000 others were
filed as "Email Comments" to the Commission. The complete record in this
proceeding is available in the Electronic Comment Filing System located
at <http://www.fcc.gov/cgb/ecfs/>.

**[Comments]{.underline}**

700 MHz Independents (Central Wisconsin Communications, LLC D/B/A
Solarus, Chariton Valley Communication Corporation, Inc., Ct Cube, L.P.
D/B/A West Central Wireless, Grand River Communications, Inc., Home
Telephone Company, Horry Telephone Cooperative, Inc., Interstate
Enterprises, Ltd., Kanokla Telephone Association, Inc., Palmetto Rural
Telephone Cooperative, Inc., Siskiyou Telephone Company, And Southern
Iowa 700, L.L.C) ("700 MHz Independents")

Access Spectrum LLC, Dominion 700 Inc., Harbor Guardband LLC, and
Pegasus Communications Corp. ("Access Spectrum/Pegasus")

Ad Hoc Public Interest Spectrum Coalition (Consumer Federation of
America, Consumers Union, Educause, Free Press, Media Access Project,
New America Foundation, Public Knowledge, U.S. Public Interest Research
Group) ("PISC")

Alcatel-Lucent ("Alcatel-Lucent")

Allcomm Technologies, Inc. ("Allcomm")

Alltel Corporation ("Alltel")

Aloha Partners, LP ("Aloha")

American Petroleum Institute ("API")

Arcadian Networks, Inc. ("Arcadian")

Association of Public-Safety Communications Officials-International,
Inc. ("APCO")

AT&T Inc. ("AT&T")

Blooston Rural Carriers ("Blooston")

Cellular South Licenses, Inc. ("Cellular South")

Centennial Communications Corp. ("Centennial")

Center for Democracy & Technology ("CDT")

City of Albuquerque ("Albuquerque")

City of Fort Lauderdale, Florida ("Fort Lauderdale")

City of Independence, Missouri ("City of Independence")

City of Joplin ("Joplin")

City of New York ("New York, NY")

City of Philadelphia ("Philadelphia")

City of Tacoma, WA ("Tacoma, WA")

Communications Service Inc. ("Communications Service Inc.")

Computer & Communications Industry Association ("CCIA")

Council Tree Communications, Inc. ("Council Tree")

Counties of Foxcomm; Wisconsin Counties of Brown, Outgamie, Calumet and
Winnebago ("Wisconsin Counties")

County of Lake - Ohio ("Lake, Ohio")

CTIA - The Wireless Association ("CTIA")

Cyren Call Communications Corporation ("Cyren Call")

Dataradio Inc. ("Dataradio")

Dekalb County Board of Education ("Dekalb Dept of Ed")

Department of Emergency Management, City/County of San Francisco ("San
Francisco Department of Emergency Management")

Dobson Communications Corporation ("Dobson")

Embarq, CenturyTel, and Citizens/Frontier (Mid-Size ILECs) ("Embarq")

Enterprise Wireless Alliance ("Enterprise")

Ericsson Inc ("Ericsson")

ETMC EMS ("ETMC EMS")

Fargo (North Dakota) Metropolitan Statistical Area Police, Fire and EMT
Agencies ("Fargo MSA Police")

Frontier Communications ("Frontier")

Frontline Wireless LLC ("Frontline")

GEOCommand, Inc. ("GEOCommand")

Google Inc. ("Google")

Grundy County Emergency Telephone System Board ("Grundy Co ETS")

Hampton Roads Interoperable Communications Advisory Committee ("Hampton
Roads Interop")

Hawaii Fire Chiefs ("Fire Fighters Hawaii")

Horizon Telcom, Inc. ("Horizon")

Idaho Fire Chiefs Association ("Fire Fighters Idaho")

Jefferson County, Alabama ("Jefferson County, AL")

Johnson County KS ("Johnson County, KS")

L-3 Communications Corporation ("L-3")

Lake County Sheriff's Department ("Lake County Sheriff")

Leap Wireless International, Inc. ("Leap")

Louisiana Statewide Interoperability Executive Committee ("Louisiana
Interoperability")

M/A-COM, Inc. ("M/A-COM")

Madison County Communication District ("MCCD")

Massachusetts Chiefs of Police Association ("Police Chiefs Mass")

McBride Spectrum Partners, LLC ("McBride")

MetroPCS Communications, Inc. ("MetroPCS")

Michael Gallagher & Larry Irving ("Gallagher & Irving")

Mid-America Regional Council ("Mid-America Regional Council")

Mike Jeffres, Chair Region 26 Nebraska 700 MHz RPC ("Region 26
(Nebraska)")

Minnesota Region 22 700 MHz Public Safety Regional Planning Committee
("Region 22")

Missouri State Highway Patrol Communications Division ("Missouri Hwy
Patrol")

Mobile Satellite Ventures Subsidiary LLC ("MSV")

Montana State Fire Chiefs Association ("Fire Fighters Montana")

Motorola, Inc. ("Motorola")

Mower County, Minnesota Office of the Sheriff ("Mower County Sheriff")

Nassau County (NY) Fire/Rescue Services ("Nassau County")

National Association of EMS Physicians ("EMS Physicians")

National Cable & Telecommunications Association ("NCTA")

National Emergency Number Association ("NENA")

National Public Safety Telecommunications Council ("NPSTC")

National Rural Electric Cooperative Association ("NRECA")

National Telecommunications Cooperative Association ("NTCA")

National Volunteer Fire Council ("NVFC")

NATOA, NACO, USCM and NLC ("NATOA")

Nevada (Region 27) 700 MHz Regional Planning Committee ("Region 27
(Nevada)")

Northrop Grumman Information Technology, Inc. ("Northrop Grumman")

Office of Advocacy, U.S. Small Business Administration ("SBA")

Office of the Hennepin County Sheriff ("Hennepin County Sheriff")

Ohio Region 33 700 MHz. Planning Committee ("Region 33 (Ohio)")

Ohio Statewide Interoperability Executive Committee ("Ohio
Interoperability Council")

Orange County Sheriff's Department ("Orange County Sheriff")

Oregon Fire Chiefs Association ("Fire Fighters Oregon")

Police Executive Research Forum ("Police Executive Research Forum")

Professional Fire Fighters of Massachusetts ("Fire Fighters Mass")

PTPMS II Communications, L.L.C. ("PTPMS")

Public Utility District #1 of Snohomish County ("Snohomish PUD")

QUALCOMM Incorporated ("Qualcomm")

Radiofone Nationwide PCS, L.L.C. ("RadioFone")

RCC Consultants, Inc. ("RCC")

Region 9 Florida, Regional Planning Committee ("Region 9 (Florida)")

Region 10 (Georgia) 700 MHz Public Safety Regional Planning Committee
("Region 10 (Georgia)")

Region 13 (Illinois) 700 MHz Public Safety Regional Planning Committee
("Region 13 (Illinois)")

Region 14 700 MHz Regional Planning Committee ("Region 14 (Indiana)")

Region 16 (Kansas) Regional Planning Committee ("Region 16 (Kansas)")

Region 40 Regional Planning Committee ("Region 40 (Texas North)")

Region 43 Regional Planning Committee ("Region 43 (Washington)")

Rehabilitation Engineering Research Center for Wireless Technology
("Rehabilitation Engineering")

Rick Neathery ("Neathery")

Rural Cellular Association ("RCA")

Rural Telecommunications Group, Inc. ("RTG")

San Diego County - Imperial County, CA Regional Communications System
("San Diego Regional System")

Satellite Industry Association ("SIA")

Scott D. Reiter ("Reiter")

Sharp Communication, Inc. ("Sharp")

Sherburne County Emergency Services ("Sherburne County")

SpectrumCo LLC ("SpectrumCo")

Sprint Nextel Corporation ("Sprint Nextel")

State of California ("California")

State of Hawaii, Department of Accounting and General Services
("Hawaii")

State of Ohio MARCS Program ("Ohio MARCS")

Telecommunications Industry Association ("TIA")

Texas Statewide Interoperability Executive Committee ("Texas
Interoperability")

The Coalition for 4G in America (Access Spectrum LLC, The DIRECTV Group,
Inc., EchoStar Satellite, L.L.C., Google, Inc., Intel Corporation, Skype
Communications S.A.R.L., YAHOO! Inc. ("4G Coalition")

The Wireless Internet Service Provider Association ("WISPA")

Union Telephone Company ("Union")

United States Cellular Corporation ("U.S. Cellular")

Vanu, Inc. ("Vanu")

Verizon Wireless ("Verizon")

Virginia Fire Chiefs Association ("Fire Fighters Virginia")

Western Fire Chiefs Association - President Jeff Johnson ("Fire Fighters
Western")

Wirefree Partners III, LLC ("Wirefree Partners")

Wireless Communications Association International, Inc. ("WCA")

Wisconsin State Patrol ("Wisconsin State Patrol")

York County, SC ("York County, SC")

**[Reply Comments]{.underline}**

Access Spectrum, Dominion 700, Harbor Guardband, and Pegasus
Communications ("Access Spectrum/Pegasus")

Alcatel-Lucent ("Alcatel")

Aloha Partners, L.P. ("Aloha")

Arcadian Networks ("Arcadian")

Association of Public-Safety Communications Officials-International,
Inc. ("APCO")

AT&T Inc. ("AT&T")

Barat Wireless, L.P. and Carroll Wireless, L.P. ("Barat")

Cellular South Licenses, Inc. ("Cellular South")

City of El Paso/Yvonne Bonnie V. Guinn ("El Paso")

Council Tree Communications, Inc. ("Council Tree")

CTIA - The Wireless Association ("CTIA")

Cyren Call Communications Corporation ("Cyren Call")

Dobson Communications Corporation ("Dobson")

Fire Fighters Association District of Columbia ("Fire Fighters DC")

Frontline Wireless LLC ("Frontline")

Hawaii Fire Fighters Association ("Fire Fighters Hawaii")

L-3 Communications Corporation ("L-3")

Leap Wireless International, Inc. ("Leap")

Lisa K. Thompson - Arlington County, VA ("Arlington County, VA")

M/A-COM, Inc. ("M/A-COM")

Maryland Fire Chiefs Association ("Fire Fighters Maryland")

MetroPCS Communications, Inc. ("MetroPCS")

Metropolitan Emergency Services Board ("Metropolitan Emergency Services
Board")

Michigan Professional Firefighters Union ("Fire Fighters Michigan")

Missouri State Highway Patrol ("Missouri Hwy ")

Mobile Satellite Ventures Subsidiary LLC ("MSV")

Montana State Fire Chiefs\' Association ("Fire Fighters Montana")

Motorola, Inc. ("Motorola")

MoveOn.org Civic Action ("MoveOn")

MoveOn.Org/40 Technology & Civic Leaders ("MoveOn with 40 tech")

National Emergency Number Association ("NENA")

National Public Safety Telecommunications Council ("NPSTC")

National Telecommunications Cooperative Association ("NTCA")

NATOA, NACO, NLC, USCM ("NATOA")

Northrop Grumman Information Technology, Inc ("Northrup Grumman")

NYS Professional Fire Fighters Assoc. ("Fire Fighters NY")

Office of the Chief Technology Officer \-- District of Columbia ("DC
Govt")

Oregon State Fire Fighters Council ("Fire Fighters Oregon")

Professional Fire Fighters of Georgia ("Fire Fighters Georgia")

Professional Fire Fighters of Idaho ("Fire Fighters Idaho")

Professional Firefighters Union of Indiana, Inc. ("Fire Fighters
Indiana")

Puerto Rico Telephone Company, Inc. ("Puerto Rico Tel")

QUALCOMM Incorporated ("Qualcomm")

RCC Consultants, Inc., et al ("RCC")

Rural Cellular Association ("RCA")

Rural Telecommunications Group, Inc. ("RTG")

State of California ("California")

Stelera Wireless, LLC ("Stelera")

TCA, Inc. ("TCA")

Tennessee Professional Firefighters Association ("Fire Fighters Tenn")

Texas State Association of Firefighters ("Fire Fighters Texas")

The Blooston Rural Carriers ("Blooston")

The Greater Boston Police Council ("Police Boston")

The Spectrum Coalition for Public Safety ("SCPS")

The Wireless Internet Service Providers Association ("WISPA")

T-Mobile USA, Inc. ("T-Mobile")

Union Telephone Company ("Union")

United States Cellular Corporation ("USCC")

USA Broadband, LLC ("USA Broadband")

Verizon Wireless ("Verizon Wireless")

Vermont Department of Public Service, Vermont Public Service Board,
Vermont Office of the Chief Information Officer, North Dakota Public
Service Commission, Nebraska Public Service Commission, ConnectME
Authority, Maine Office of the Chief Information Officer ("Vermont
Department of Public Safety, *et al.*")

Washington State Council of Fire Fighters ("Fire Fighters Washington")

> **Comments and Reply Comments to Google Public Notice**
>
> **List of Comments and Reply Comments**
>
> **In the 700 MHz Commercial Services and Guard Band Proceedings**
>
> **(WT Docket No. 06-150 and WT Docket No. 06-169)**

**[Comments]{.underline}**

AT&T Inc. ("AT&T")

Computer & Communications Industry Association ("CCIA")

CTIA - The Wireless Association ("CTIA")

Frontline Wireless LLC ("Frontline")

MetroPCS Communications, Inc. ("MetroPCS")

National Public Safety Telecommunications Council ("NPSTC")

QUALCOMM Incorporated ("Qualcomm")

Rural Telecommunications Group, Inc. ("RTG")

Vanu, Inc. ("Vanu")

Verizon Wireless ("Verizon Wireless")

**[Reply Comments]{.underline}**

MetroPCS Communications, Inc. ("MetroPCS")

National Emergency Number Association ("NENA")

QUALCOMM Incorporated ("Qualcomm")

**APPENDIX B**

**Final Rules**

> **Parts 0, 1, 2, 27 and 90 of Title 47 of the Code of Federal
> Regulations are amended as follows:**

1.  The authority citation for Part 0 continues to read as follows:

> AUTHORITY: Secs. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155.

2.  Section 0.181 is amended by adding a new paragraph (k) to read as
    follows:

> **§ 0.181 The Defense Commissioner.**
>
> \* \* \* \* \*
>
> \(k\) To decide, in response to a request by the Public Safety
> Broadband Licensee whether circumstances warrant emergency priority
> access by first responder public safety entities to the Upper 700 MHz
> D Block license spectrum.

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

> AUTHORITY: 15 U.S.C. 79 *et seq.*; 47 U.S.C. 151, 154(i), 154(j), 155,
> 157, 225, 303(r), and 309.

4.  Section 1.9005 is amended by revising paragraph (k) to read as
    follows:

> **§ 1.9005 Included services.**
>
> \* \* \* \* \*
>
> \(k\) The Wireless Communications Service in the 746 -- 763 MHz, 775
> -- 793 MHz, and 805 -- 806 MHz bands (part 27 of this chapter);
>
> \* \* \* \* \*

5.  Section 1.946 is amended by revising paragraph (c) to read as
    follows:

> **§ 1.946 Construction and coverage requirements.**
>
> \* \* \* \* \*
>
> \(c\) *Termination of authorizations*. If a licensee fails to commence
> service or operations by the expiration of its construction period or
> to meet its coverage or substantial service obligations by the
> expiration of its coverage period, its authorization terminates
> automatically (in whole or in part as set forth in the service rules),
> without specific Commission action, on the date the construction or
> coverage period expires.
>
> \* \* \* \* \*

6.  Section 1.955 is amended by revising paragraph (a)(2) to read as
    follows:

> **§ 1.955 Terminations of authorizations.**
>
> \(a\) \* \* \*

\(1\) \* \* \*

> \(2\) *Failure to meet construction or coverage requirements*.
> Authorizations automatically terminate (in whole or in part as set
> forth in the service rules), without specific Commission action, if
> the licensee fails to meet applicable construction or coverage
> requirements. *See* § 1.946(c) of this part.
>
> \* \* \* \* \*

7.  Section 1.2105 is amended by revising paragraph (c)(6) to read as
    follows:

> **§ 1.2105 Bidding application and certification procedures;
> prohibition of collusion.**
>
> \* \* \* \* \*

\(c\) \* \* \*

> \(6\) Any applicant that makes or receives a communication of bids or
> bidding strategies prohibited under paragraph (c)(1) of this section
> shall report such communication in writing to the Commission
> immediately, and in no case later than five business days after the
> communication occurs. An applicant's obligation to make such a report
> continues until the report has been made. Such reports shall be filed
> with the Office of the Secretary, and a copy shall be sent to the
> Chief of the Auctions and Spectrum Access Division, Wireless
> Telecommunications Bureau.
>
> \* \* \* \* \*

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

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

9.  Section 2.103 is amended by revising paragraphs (a) and (b) and
    adding a new paragraph (c) to read as follows:

> **§ 2.103 Federal use of non-Federal frequencies.**
>
> \(a\) Federal stations may be authorized to use non-Federal
> frequencies in the bands above 25 MHz (except the 763-775 MHz and
> 793-805 MHz public safety bands) if the Commission finds that such use
> is necessary for coordination of Federal and non-Federal activities:
> Provided, however, that:
>
> \* \* \* \* \*
>
> \(b\) Federal stations may be authorized to use channels in the
> 769-775 MHz, 799-805 MHz and 4940-4990 MHz public safety bands with
> non-Federal entities if the Commission finds such use necessary;
> where:
>
> \* \* \* \* \*
>
> \(c\) Federal stations may be authorized to use channels in the
> 763-768 MHz and 793-798 MHz public safety bands with non-Federal
> entities where:
>
> \(1\) The Federal entity obtains the prior approval of the Public
> Safety Broadband Licensee (and such approval granted by the Public
> Safety Broadband Licensee is consistent with the terms and conditions
> of the Network Sharing Agreement under Section 90.1406); and
>
> \(2\) Federal operation is in accordance with the Commission's Rules
> governing operation of this band and conforms to any conditions agreed
> upon by the Commission and NTIA.

10. 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.

11. Section 27.1 is amended by revising paragraph (b)(2) to read as
    follows:

> **§ 27.1 Basis and purpose.**
>
> \* \* \* \* \*
>
> \(b\) \* \* \*
>
> \(2\) 746--763 MHz, 775--793 MHz, and 805-806 MHz.
>
> \* \* \* \* \*

12. Section 27.2 is amended by revising paragraph (b) to read as
    follows:

> **§ 27.2 Permissible communications.**
>
> \* \* \* \* \*

\(b\) *775--776 MHz and 805-806 MHz bands.* Operators in the 775--776
MHz and 805--806 MHz bands may not employ a cellular system
architecture. A cellular system architecture is defined, for purposes of
this part, as one that consists of many small areas or cells (segmented
from a larger geographic service area), each of which uses its own base
station, to enable frequencies to be reused at relatively short
distances.

> \* \* \* \* \*

13. Section 27.4 is amended by adding the following definitions in
    alphabetical order to read as follows:

> **§ 27.4 Terms and definitions**
>
> \* \* \* \* \*
>
> *700 MHz Public/Private Partnership.* The public/private partnership
> established for the development and operation of a nationwide, shared
> interoperable wireless broadband network operating on the 758-763 MHz
> and 788-793 MHz bands and the 763-768 MHz and 793-798 MHz bands in
> accordance with the Commission's rules.
>
> \* \* \* \* \*
>
> *Network Assets Holder.* The Network Assets Holder is a Special
> Purpose Bankruptcy Remote Entity that is formed to hold the assets of
> the shared wireless broadband network associated with the 700 MHz
> Public/Private Partnership, in accordance with the terms of the
> Network Sharing Agreement, such other agreements as the Commission may
> require or allow, and the Commission's rules.
>
> \* \* \* \* \*
>
> *Network Sharing Agreement (NSA)*. An agreement entered into between
> the winning bidder, the Upper 700 MHz D Block licensee, the Network
> Assets Holder, the Operating Company, the Public Safety Broadband
> Licensee, and any other related entities that the Commission may
> require or allow regarding the shared wireless broadband network
> associated with the 700 MHz Public/Private Partnership that will
> operate on the 758-763 MHz and 788-793 MHz bands and the 763-768 MHz
> and 793-798 MHz bands.
>
> \* \* \* \* \*
>
> *Operating Company*. The Operating Company is a Special Purpose
> Bankruptcy Remote Entity that is formed to build and operate the
> shared wireless broadband network associated with the 700 MHz
> Public/Private Partnership, in accordance with the terms of the
> Network Sharing Agreement, such other agreements as the Commission may
> require or allow, and the Commission's rules.
>
> \* \* \* \* \*
>
> *Public Safety Broadband License*. The Public Safety Broadband License
> authorizes public safety broadband services in the 763-768 MHz and
> 793-798 MHz bands.
>
> \* \* \* \* \*
>
> *Public Safety Broadband Licensee*. The licensee of the Public Safety
> Broadband License in the 763-768 MHz and 793-798 MHz bands.
>
> \* \* \* \* \*
>
> *Shared Wireless Broadband Network*. Wireless broadband network
> associated with the 700 MHz Band Public/Private Partnership that
> operates on the 758-763 MHz and 788-793 MHz bands and the 763-768 MHz
> and 793-798 MHz bands pursuant to the terms of the Network Sharing
> Agreement, such other agreements as the Commission may require or
> allow, and the Commission's rules.
>
> \* \* \* \* \*
>
> *Special Purpose Bankruptcy Remote Entity.* A "special purpose entity"
> is a legal entity created for a special limited purpose, in this
> context primarily to hold the Upper 700 MHz D Block license or the
> network assets, or to conduct the construction or operation of the
> shared wireless broadband network associated with the 700 MHz
> Public/Private Partnership. A special purpose entity is "bankruptcy
> remote" if that entity is unlikely to become insolvent as a result of
> its own activities, is adequately insulated from the consequences of a
> related party's insolvency, and contains certain characteristics which
> enhance the likelihood that it will not become the subject of an
> insolvency proceeding.
>
> \* \* \* \* \*
>
> *Upper 700 MHz D Block license*. The Upper 700 MHz D Block license is
> the nationwide license associated with the 758-763 MHz and 788-793 MHz
> bands.
>
> \* \* \* \* \*
>
> *Upper 700 MHz D Block licensee*. The Special Purpose Bankruptcy
> Remote Entity to which the Upper 700 MHz D Block license must be
> transferred upon execution of the Network Sharing Agreement.
> References herein to the rights and obligations of the Upper 700 MHz D
> Block licensee include the exercise or discharge of such rights or
> obligations, respectively, by related entities as are provided for in
> the NSA or otherwise as authorized by the Commission.
>
> \* \* \* \* \*

14. Section 27.5 is amended by revising paragraph (b) to read as
    follows:

> **§ 27.5 Frequencies.**
>
> \* \* \* \* \*
>
> \(b\) *746--763 MHz, 775--793 MHz, and 805-806 MHz bands*. The
> following frequencies are available for licensing pursuant to this
> part in the 746-763 MHz, 775-793 MHz, and 805-806 MHz bands:
>
> \(1\) Two paired channels of 1 megahertz each are available for
> assignment in Block A in the 757-758 MHz and 787-788 MHz bands.
>
> \(2\) Two paired channels of 1 megahertz each are available for
> assignment in Block B in the 775-776 MHz and 805-806 MHz bands.
>
> \(3\) Two paired channels of 11 megahertz each are available for
> assignment in Block C in the 746-757 MHz and 776-787 MHz bands. In the
> event that no licenses for two channels in this Block C are assigned
> based on the results of the first auction in which such licenses were
> offered because the auction results do not satisfy the applicable
> reserve price, the spectrum in the 746-757 MHz and 776-787 MHz bands
> will instead be made available for assignment at a subsequent auction
> as follows:
>
> \(i\) Two paired channels of 6 megahertz each available for assignment
> in Block C1 in the 746-752 MHz and 776-782 MHz bands.
>
> \(ii\) Two paired channels of 5 megahertz each available for
> assignment in Block C2 in the 752-757 MHz and 782-787 MHz bands.
>
> \(4\) Two paired channels of 5 megahertz each are available for
> assignment in Block D in the 758-763 MHz and 788-793 MHz bands.
>
> \* \* \* \* \*

15. Section 27.6 is amended by revising paragraphs (a), (b), (c),
    and (e) to read as follows:

> **§ 27.6 Service Areas.**
>
> \(a\) WCS service areas include Economic Areas (EAs), Major Economic
> Areas (MEAs), Regional Economic Area Groupings (REAGs), cellular
> markets comprising Metropolitan Statistical Areas (MSAs) and Rural
> Service Areas (RSAs), and a nationwide area. MEAs and REAGs are
> defined in the Table immediately following paragraph (a)(1) of this
> section. Both MEAs and REAGs are based on the U.S. Department of
> Commerce's EAs. See 60 FR 13114 (March 10, 1995). In addition, the
> Commission shall separately license Guam and the Northern Mariana
> Islands, Puerto Rico and the United States Virgin Islands, American
> Samoa, and the Gulf of Mexico, which have been assigned
> Commission-created EA numbers 173--176, respectively. The nationwide
> area is composed of the contiguous 48 states, Alaska, Hawaii, the Gulf
> of Mexico, and the U.S. territories. Maps of the EAs, MEAs, MSAs,
> RSAs, and REAGs and the Federal Register Notice that established the
> 172 EAs are available for public inspection and copying at the
> Reference Information Center, Consumer and Governmental Affairs
> Bureau, Federal Communications Commission, 445 12th Street, SW,
> Washington, DC 20554. \* \* \*
>
> \* \* \* \* \*
>
> \(b\) *746--763 MHz, 775--793 MHz, and 805-806 MHz bands*. WCS service
> areas for the 746-763 MHz, 775-793 MHz, and 805-806 MHz bands are as
> follows.
>
> \(1\) Service areas for Block A in the 757-758 MHz and 787-788 MHz
> bands and Block B in the 775-776 MHz and 805-806 MHz bands are based
> on Major Economic Areas (MEAs), as defined in paragraphs (a)(1) and
> (a)(2) of this section.
>
> \(2\) Service areas for Block C in the 746-757 MHz and 776-787 MHz
> bands are based on Regional Economic Area Groupings (REAGs) as defined
> by paragraph (a) of this section. In the event that no licenses with
> respect to service areas for Block C in the 746-757 MHz and 776-787
> MHz bands are assigned based on the results of the first auction in
> which such licenses are offered because the auction results do not
> satisfy the applicable reserve price, then service areas for the
> spectrum at 746-757 MHz and 776-787 MHz will instead be available for
> assignment as follows:
>
> \(i\) Service areas for Block C1 in the 746-752 MHz and 776-782 MHz
> bands are based on Economic Areas (EAs) as defined in paragraph (a) of
> this section.
>
> \(ii\) Service areas for Block C2 in the 752-757 MHz and 782-787 MHz
> bands are based on Regional Economic Area Groupings (REAGs) as defined
> by paragraph (a) of this section.
>
> \(3\) Service area for Block D in the 758-763 MHz and 788-793 MHz
> bands is a nationwide area as defined in paragraph (a)(1) of this
> section.

\(c\) *698--746 MHz band*. WCS service areas for the 698-746 MHz band
are as follows.

> \(1\) Service areas for Block A in the 698-704 MHz and 728-734 MHz
> bands and Block E in the 722-728 MHz band are based on Economic Areas
> (EAs) as defined in paragraph (a) of this section.
>
> \(2\) Service areas for Block B in the 704-710 MHz and 734-740 MHz
> bands and Block C in the 710-716 MHz and 740-746 MHz bands are based
> on cellular markets comprising Metropolitan Statistical Areas (MSAs)
> and Rural Service Areas (RSAs) as defined by Public Notice Report No.
> CL--92--40 "Common Carrier Public Mobile Services Information,
> Cellular MSA/RSA Markets and Counties," dated January 24, 1992, DA
> 92--109, 7 FCC Rcd 742 (1992), with the following modifications:
>
> \(i\) The service areas of cellular markets that border the U.S.
> coastline of the Gulf of Mexico extend 12 nautical miles from the U.S.
> Gulf coastline.
>
> \(ii\) The service area of cellular market 306 that comprises the
> water area of the Gulf of Mexico extends from 12 nautical miles off
> the U.S. Gulf coast outward into the Gulf.
>
> \(3\) Service areas for Block D in the 716-722 MHz band are based on
> Economic Area Groupings (EAGs) as defined by the Federal
> Communications Commission. See 62 FR 15978 (April 3, 1997) extended
> with the Gulf of Mexico. See also paragraphs (a)(1) and (a)(2) of this
> section and 62 FR 9636 (March 3, 1997), in which the Commission
> created an additional four economic area-like areas for a total of
> 176. Maps of the EAGs and the Federal Register Notice that established
> the 172 Economic Areas (EAs) are available for public inspection and
> copying at the Reference Center, Room CY A-257, 445 12th St., S.W.,
> Washington, DC 20554. These maps and data are also available on the
> FCC website at
> [www.fcc.gov/oet/info/maps/areas/](http://www.fcc.gov/oet/info/maps/areas/).
>
> \(i\) There are 6 EAGs, which are composed of multiple EAs as defined
> in the table below:

+------------+-----------------+---------------------------------------+
| > Economic | > Name          | > Economic Areas                      |
| > Area     |                 |                                       |
| >          |                 |                                       |
|  Groupings |                 |                                       |
+------------+-----------------+---------------------------------------+
| > EAG001   | > Northeast     | > 1-11, 54                            |
+------------+-----------------+---------------------------------------+
| > EAG002   | > Mid-Atlantic  | > 12-26, 41, 42, 44-53, 70            |
+------------+-----------------+---------------------------------------+
| > EAG003   | > Southeast     | > 27-40, 43, 69, 71-86, 88-90, 95,    |
|            |                 | > 96, 174, 176(part)                  |
+------------+-----------------+---------------------------------------+
| > EAG004   | > Great Lakes   | > 55-68, 97, 100-109                  |
+------------+-----------------+---------------------------------------+
| > EAG005   | > C             | > 87, 91-94, 98, 99, 110-146, 148,    |
|            | entral/Mountain | > 149, 152, 154-159, 176(part)        |
+------------+-----------------+---------------------------------------+
| > EAG006   | > Pacific       | > 147, 150, 151, 153, 160-173, 175    |
+------------+-----------------+---------------------------------------+

> Note 1 to paragraph (c)(3)(i): Economic Area Groupings are defined by
> the Federal Communications Commission; see 62 FR 15978 (April 3, 1997)
> extended with the Gulf of Mexico.
>
> Note 2 to paragraph (c)(3)(i): Economic Areas are defined by the
> Regional Economic Analysis Division, Bureau of Economic Analysis, U.S.
> Department of Commerce February 1995 and extended by the Federal
> Communications Commission, see 62 FR 9636 (March 3, 1997).
>
> \(ii\) For purposes of paragraph (c)(3)(i) of this section, EA 176
> (the Gulf of Mexico) will be divided between EAG003 (the Southeast
> EAG) and EAG005 (the Central/Mountain EAG) in accordance with the
> configuration of the Eastern/ Central and Western Planning Area
> established by the Mineral Management Services Bureau of the
> Department of the Interior (MMS). That portion of EA 176 contained in
> the Eastern and Central Planning Areas as defined by MMS will be
> included in EAG003; that portion of EA 176 contained in the Western
> Planning Area as defined by MMS will be included in EAG005. Maps of
> these areas may be found on the MMS website.
> [www.gomr.mms.gov/homepg/offshore/offshore.html](http://www.gomr.mms.gov/homepg/offshore/offshore.html).
>
> \* \* \* \* \*
>
> \(e\) *The paired 1392--1395 and 1432--1435 MHz bands*. Service areas
> for the paired 1392--1395 and 1432--1435 MHz bands are as follows.
> Service areas for Block A in the 1392--1393.5 MHz and 1432--1433.5 MHz
> bands and Block B in the 1393.5--1395 MHz and 1433.5--1435 MHz bands
> are based on Economic Area Groupings (EAGs) as defined in paragraph
> (c)(3) of this section.
>
> \* \* \* \* \*

16. Section 27.11 is amended by revising paragraphs (c) and (d) to read
    as follows:

> **§ 27.11 Initial authorization.**
>
> \* \* \* \* \*
>
> \(c\) *746--763 MHz, 775--793 MHz, and 805-806 MHz bands*. Initial
> authorizations for the 746--763 MHz, 775--793 MHz, and 805-806 MHz
> bands shall be for paired channels of 1, 5, 6, or 11 megahertz of
> spectrum in accordance with §27.5(b).
>
> \(1\) Authorizations for Block A, consisting of two paired channels of
> 1 megahertz each, will be based on those geographic areas specified in
> §27.6(b)(1).
>
> \(2\) Authorizations for Block B, consisting of two paired channels of
> 1 megahertz each, will be based on those geographic areas specified in
> §27.6(b)(1).
>
> \(3\) Authorizations for Block C, consisting of two paired channels of
> 11 megahertz each, will be based on those geographic areas specified
> in §27.6(b)(2). In the event that no licenses granting authorizations
> for Block C, consisting of two paired channels of 11 megahertz each,
> are assigned based on the results of the first auction in which such
> licenses are offered because the auction results do not satisfy the
> applicable reserve price, then the authorizations for the spectrum in
> the 746-757 MHz and 776-787 MHz bands will instead be as follows:
>
> \(i\) Authorizations for Block C1, consisting of two paired channels
> of 6 megahertz each in the 746-752 MHz and 776-782 MHz bands, will be
> based on those geographic areas specified in §27.6(b)(2)(i).
>
> \(ii\) Authorizations for Block C2, consisting of two paired channels
> of 5 megahertz each in the 752-757 MHz and 782-787 MHz bands, will be
> based on those geographic areas specified in §27.6(b)(2)(ii).
>
> \(4\) The authorization for Block D, consisting of two paired channels
> of 5 megahertz each, will be based on the geographic area specified in
> §27.6(b)(3).
>
> \(d\) *698--746 MHz band*. Initial authorizations for the 698--746 MHz
> band shall be for 6 or 12 megahertz of spectrum in accordance with
> §27.5(c).
>
> \(1\) Authorizations for Block A, consisting of two paired channels of
> 6 megahertz each, will be based on those geographic areas specified in
> §27.6(c)(1).
>
> \(2\) Authorizations for Block B, consisting of two paired channels of
> 6 megahertz each, will be based on those geographic areas specified in
> §27.6(c)(2).
>
> \(3\) Authorizations for Block C, consisting of two paired channels of
> 6 megahertz each, will be based on those geographic areas specified in
> §27.6(c)(2).
>
> \(4\) Authorizations for Block D, consisting of an unpaired channel
> block of 6 megahertz, will be based on those geographic areas
> specified in §27.6(c)(3).
>
> \(5\) Authorizations for Block E, consisting of an unpaired channel
> block of 6 megahertz, will be based on those geographic areas
> specified in §27.6(c)(1).
>
> \* \* \* \* \*

17. Section 27.13 is amended by revising paragraph (b) to read as
    follows:

> **§ 27.13 License Period.**
>
> \* \* \* \* \*
>
> \(b\) 698-763 MHz and 776-793 MHz bands. Initial authorizations for
> the 698-763 MHz and 776-793 MHz bands will extend for a term not to
> exceed ten years from February 17, 2009, except that initial
> authorizations for a Part 27 licensee that provides broadcast
> services, whether exclusively or in combination with other services,
> will not exceed eight years.  Initial authorizations for the 775-776
> MHz and 805-806 MHz bands shall not exceed January 1, 2015.  \* \* \*

18. Section 27.14 is amended by revising the title and paragraph (a),
    redesignating paragraph (e) as paragraph (f), and by adding new
    paragraphs (e), (g), (h), (i), (j), (k), (l), (m), (n) to read as
    follows:

> **§ 27.14 Construction requirements; Criteria for Renewal.**
>
> \(a\) AWS and WCS licensees, with the exception of WCS licensees
> holding authorizations for Block A in the 698-704 MHz and 728-734 MHz
> bands, Block B in the 704-710 MHz and 734-740 MHz bands, Block E in
> the 722-728 MHz band, Block C in the 746-757 MHz and 776-787 MHz, and
> Block D in the 758-763 MHz and 788-793 MHz bands must, as a
> performance requirement, make a showing of \"substantial service\" in
> their license area within the prescribed license term set forth in [§
> 27.13](http://www.westlaw.com/TOC/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=47CFRS27.13&FindType=VP).
> "Substantial service is defined as service which is sound, favorable
> and substantially above a level of mediocre service which just might
> minimally warrant renewal. Failure by any licensee to meet this
> requirement will result in forfeiture of the license and the licensee
> will be ineligible to regain it.
>
> \* \* \* \* \*
>
> \(e\) Comparative renewal proceedings do not apply to WCS licensees
> holding authorizations for the 698-757 MHz, 758-763 MHz, 776-787 MHz,
> and 788-793 MHz bands. These licensees must file a renewal application
> in accordance with the provisions set forth in § 1.949, and must make
> a showing of substantial service, independent of its performance
> requirements, as a condition for renewal at the end of each license
> term.
>
> \* \* \* \* \*
>
> \(g\) WCS licensees holding EA authorizations for Block A in the
> 698-704 MHz and 728-734 MHz bands, cellular market authorizations for
> Block B in the 704-710 MHz and 734-740 MHz bands, and EA
> authorizations for Block E in the 722-728 MHz band, if the results of
> the first auction in which licenses for such authorizations are
> offered satisfy the reserve price for the applicable block, shall
> provide signal coverage and offer service over at least 35 percent of
> the geographic area of each of their license authorizations no later
> than February 17, 2013 (or within four years of initial license grant
> if the initial authorization in a market is granted after February 17,
> 2009), and shall provide such service over at least 70 percent of the
> geographic area of each of these authorizations by the end of the
> license term. In applying these geographic benchmarks, licensees are
> not required to include land owned or administered by government as a
> part of the relevant service area. Licensees may count covered
> government land for purposes of meeting their geographic construction
> benchmark, but are required to add the covered government land to the
> total geographic area used for measurement purposes. Licensees are
> required to include those populated lands held by tribal governments
> and those held by the Federal Government in trust or for the benefit
> of a recognized tribe.
>
> \(1\) If an EA or CMA licensee holding an authorization in these
> particular blocks fails to provide signal coverage and offer service
> over at least 35 percent of the geographic area of its license
> authorization by no later than February 17, 2013 (or within four years
> of initial license grant, if the initial authorization in a market is
> granted after February 17, 2009), the term of that license
> authorization will be reduced by two years and such licensee may be
> subject to enforcement action, including forfeitures. In addition,
> such an EA or CMA licensee may lose authority to operate in part of
> the remaining unserved areas of the license.
>
> \(2\) If any such EA or CMA licensee fails to provide signal coverage
> and offer service to at least 70 percent of the geographic area of its
> license authorization by the end of the license term, that licensee's
> authorization will terminate automatically without Commission action
> for those geographic portions of its license in which the licensee is
> not providing service, and those unserved areas will become available
> for reassignment by the Commission. Such licensee may also be subject
> to enforcement action, including forfeitures. In addition, an EA or
> CMA licensee that provides signal coverage and offers service at a
> level that is below the end-of-term benchmark may be subject to
> license termination. In the event that a licensee's authority to
> operate in a license area terminates automatically without Commission
> action, such areas will become available for reassignment pursuant to
> the procedures in paragraph (j) of this subsection.
>
> \(3\) For licenses under paragraphs (g), (h), and (i), the geographic
> service area to be made available to new entrants must include a
> contiguous area of at least 130 square kilometers (50 square miles),
> and areas smaller than a contiguous area of at least 130 square
> kilometers (50 square miles) will not be deemed unserved.
>
> \(h\) WCS licensees holding authorizations for Block C in the 746-757
> MHz and 776-787 MHz bands shall provide signal coverage and offer
> service over at least 40 percent of the population in each EA
> comprising the REAG license area no later than February 17, 2013 (or
> within four years of initial license grant, if the initial
> authorization in a market is granted after February 17, 2009), and
> shall provide such service over at least 75 percent of the population
> of each of these EAs by the end of the license term. For purposes of
> compliance with this requirement, licensees should determine
> population based on the most recently available U.S. Census Data.
>
> \(1\) If a licensee holding a Block C authorization fails to provide
> signal coverage and offer service over at least 40 percent of the
> population in each EA comprising the REAG license area by no later
> than February 17, 2013 (or within four years of initial license grant
> if the initial authorization in a market is granted after February 17,
> 2009), the term of the license authorization will be reduced by two
> years and such licensee may be subject to enforcement action,
> including forfeitures. In addition, a licensee that provides signal
> coverage and offers service at a level that is below the interim
> benchmark may lose authority to operate in part of the remaining
> unserved areas of the license.
>
> \(2\) If a licensee holding a Block C authorization fails to provide
> signal coverage and offer service over at least 75 percent of the
> population in any EA comprising the REAG license area by the end of
> the license term, for each such EA that licensee's authorization will
> terminate automatically without Commission action for those geographic
> portions of its license in which the licensee is not providing
> service. Such licensee may also be subject to enforcement action,
> including forfeitures. In the event that a licensee's authority to
> operate in a license area terminates automatically without Commission
> action, such areas will become available for reassignment pursuant to
> the procedures in paragraph (j) of this subsection. In addition, a
> REAG licensee that provides signal coverage and offers service at a
> level that is below the end-of-term benchmark within any EA may be
> subject to license termination within that EA.
>
> \(i\) WCS licensees holding EA authorizations for Block A in the
> 698-704 MHz and 728-734 MHz bands, cellular market authorizations for
> Block B in the 704-710 MHz and 734-740 MHz bands, and EA
> authorizations for Block E in the 722-728 MHz band, if the results of
> the first auction in which licenses for such authorizations in Blocks
> A, B, and E are offered do not satisfy the reserve price for the
> applicable block, as well as EA authorizations for Block C1 in the
> 746-752 MHz and 776-782 MHz bands and REAG authorizations for Block C2
> in the 752-757 MHz and 782-787 MHz bands, are subject to the
> following:
>
> \(1\) If a licensee holding a cellular market area or EA authorization
> subject to this paragraph (i) fails to provide signal coverage and
> offer service over at least 40 percent of the population in its
> license area by no later than February 17, 2013 (or within four years
> of initial license grant, if the initial authorization in a market is
> granted after February 17, 2009), the term of that license
> authorization will be reduced by two years and such licensee may be
> subject to enforcement action, including forfeitures. In addition,
> such licensee that provides signal coverage and offers service at a
> level that is below the interim benchmark may lose authority to
> operate in part of the remaining unserved areas of the license. For
> purposes of compliance with this requirement, licensees should
> determine population based on the most recently available U.S. Census
> Data.
>
> \(2\) If a licensee holding a cellular market area or EA authorization
> subject to this paragraph (i) fails to provide signal coverage and
> offer service over at least 75 percent of the population in its
> license area by the end of the license term, that licensee's
> authorization will terminate automatically without Commission action
> for those geographic portions of its license in which the licensee is
> not providing service, and those unserved areas will become available
> for reassignment by the Commission. Such licensee may also be subject
> to enforcement action, including forfeitures. In the event that a
> licensee's authority to operate in a license area terminates
> automatically without Commission action, such areas will become
> available for reassignment pursuant to the procedures in paragraph (j)
> of this subsection. In addition, such a licensee that provides signal
> coverage and offers service at a level that is below the end-of-term
> benchmark may be subject to license termination. For purposes of
> compliance with this requirement, licensees should determine
> population based on the most recently available U.S. Census Data.
>
> \(3\) Licensee's holding an authorization in Block C2 will be subject
> to the requirements in paragraph (h) of this subsection.
>
> \(j\) In the event that a licensee's authority to operate in a license
> area terminates automatically under subsections (g), (h), or (i) of
> this section, such areas will become available for reassignment
> pursuant to the following procedures:
>
> \(1\) The Wireless Telecommunications Bureau is delegated authority to
> announce by public notice that these license areas will be made
> available and establish a 30-day window during which third parties may
> file license applications to serve these areas. During this 30-day
> period, licensees that had their authority to operate terminate
> automatically for unserved areas may not file applications to provide
> service to these areas. Applications filed by third parties that
> propose areas overlapping with other applications will be deemed
> mutually exclusive, and will be resolved through an auction. The
> Wireless Telecommunications Bureau, by public notice, may specify a
> limited period before the filing of short-form applications (FCC Form
> 175) during which applicants may enter into a settlement to resolve
> their mutual exclusivity, subject to the provisions of § 1.935.
>
> \(2\) Following this 30-day period, the original licensee and third
> parties can file license applications for remaining unserved areas
> where licenses have not been issued or for which there are no pending
> applications. If the original licensee or a third party files an
> application, that application will be placed on public notice for 30
> days. If no mutually exclusive application is filed, the application
> will be granted, provided that a grant is found to be in the public
> interest. If a mutually exclusive application is filed, it will be
> resolved through an auction. The Wireless Telecommunications Bureau,
> by public notice, may specify a limited period before the filing of
> short-form applications (FCC Form 175) during which applicants may
> enter into a settlement to resolve their mutual exclusivity, subject
> to the provisions of § 1.935.
>
> \(3\) The licensee will have one year from the date the new license is
> issued to complete its construction and provide signal coverage and
> offer service over 100 percent of the geographic area of the new
> license area. If the licensee fails to meet this construction
> requirement, its license will automatically terminate without
> Commission action and it will not be eligible to apply to provide
> service to this area at any future date.
>
> \(k\) WCS licensees with authorizations in the spectrum blocks
> enumerated in paragraphs (g), (h), or (i), including any licensee that
> obtained its license pursuant to the procedures set forth in
> subsection (j) shall demonstrate compliance with performance
> requirements by filing a construction notification with the
> Commission, within 15 days of the expiration of the relevant
> benchmark, in accordance with the provisions set forth in § 1.946(d).
> The licensee must certify whether it has met the relevant performance
> requirement. All licensees must file a description and certification
> of the areas for which they are providing service. The construction
> notifications must include electronic coverage maps, supporting
> technical documentation and any other information as the Wireless
> Telecommunications Bureau may prescribe by Public Notice.
>
> \(l\) WCS licensees with authorizations in the spectrum blocks
> enumerated in paragraphs (g), (h), or (i), excluding any licensee that
> obtained its license pursuant to the procedures set forth in
> subsection (j), shall file interim reports with the Commission that
> provide the Commission, at a minimum, with information concerning the
> status of their efforts to meet the performance requirements
> applicable to their authorizations in such spectrum blocks and the
> manner in which that spectrum is being utilized. The information to be
> reported will include the date the license term commenced, a
> description of the steps the licensee has taken toward meeting its
> construction obligations in a timely manner, including the technology
> or technologies and service(s) being provided, and the areas within
> their license areas in which those services are available. These
> licensees shall file their first interim report with the Commission no
> later than February 17, 2011 and no sooner than 30 days prior to this
> date. Licensees that meet their interim benchmarks shall file a second
> interim report with the Commission no later than February 17, 2016 and
> no sooner than 30 days prior to this date. Licensees that do not meet
> their interim benchmarks shall file their second interim report no
> later than on February 17, 2015 and no sooner than 30 days prior to
> this date.
>
> \(m\) The WCS licensee holding the authorization for the D Block at
> 758-763 MHz and 788-793 MHz (the Upper 700 MHz D Block licensee) shall
> comply with the following construction requirements.
>
> \(1\) The Upper 700 MHz D Block licensee shall provide a signal
> coverage and offer service over at least 75 percent of the population
> of the nationwide Upper 700 MHz D Block license area within four years
> from February 17, 2009, 95 percent of the population of the nationwide
> license area within seven years, and 99.3 percent of the population of
> the nationwide license area within ten years.
>
> \(2\) The Upper 700 MHz D Block licensee may modify, to a limited
> degree, its population-based construction benchmarks with the
> agreement of the Public Safety Broadband Licensee and the prior
> approval of the Commission, where such a modification would better
> serve to meet commercial and public safety needs.
>
> \(3\) The Upper 700 MHz D Block licensee shall meet the population
> benchmarks based on a performance schedule specified in the Network
> Sharing Agreement, taking into account performance pursuant to
> §27.1327 as appropriate under that rule, and using the most recently
> available U.S. Census Data. The network and signal levels employed to
> meet these benchmarks must be adequate for public safety use, as
> defined in the Network Sharing Agreement, and the services made
> available must include those appropriate for public safety entities
> that operate in those areas. The schedule shall include coverage for
> major highways and interstates, as well as such additional areas that
> are necessary to provide coverage for all incorporated communities
> with a population in excess of 3,000, unless the Public Safety
> Broadband Licensee and the D Block licensee jointly determine, in
> consultation with a relevant community, that such additional coverage
> will not provide significant public benefit.
>
> \(4\) The Upper 700 MHz D Block licensee shall demonstrate compliance
> with performance requirements by filing a construction notification
> with the Commission within 15 days of the expiration of the relevant
> benchmark, in accordance with the provisions set forth in § 1.946(d).
> The licensee must certify whether it has met the relevant performance
> requirement and must file a description and certification of the areas
> for which it is providing service. The construction notifications must
> include the following:
>
> \(i\) Certifications of the areas that were scheduled for construction
> and service by that date under the Network Sharing Agreement for which
> it is providing service, the type of service it is providing for each
> area, and the type of technology it is utilizing to provide this
> service.
>
> \(ii\) Electronic coverage maps and supporting technical documentation
> providing the assumptions used by the licensee to create the coverage
> maps, including the propagation model and the signal strength
> necessary to provide service.
>
> \(n\) At the end of its license term, the Upper 700 MHz D Block
> licensee must, in order to renew its license, make a showing of its
> success in meeting the material requirements set forth in the Network
> Sharing Agreement as well as all other license conditions, including
> the performance benchmark requirements set forth in § 27.14.
>
> \* \* \* \* \*

19. Section 27.15 is amended by revising and redesignating paragraphs
    (d)(1) and (d)(2) as (d)(1)(i) and (d)(2)(i), respectively; and
    adding new paragraphs (d)(1)(ii) and (d)(2)(ii), respectively, to
    read as follows:

> **§ 27.15 Geographic partitioning and spectrum disaggregation.**
>
> \* \* \* \* \*

\(d\) *Compliance with construction requirements.*

> \(1\) *Partitioning.*
>
> \(i\) Except for WCS licensees holding authorizations for Block A in
> the 698-704 MHz and 728-734 MHz bands, Block B in the 704-710 MHz and
> 734-740 MHz bands, Block E in the 722-728 MHz band, Blocks C, C1, and
> C2 in the 746-757 MHz and 776-787 MHz bands, and Block D in the
> 758-763 MHz and 788-793 MHz bands, the following rules apply to WCS
> and AWS licensees holding authorizations for purposes of implementing
> the construction requirements set forth in §27.14. \* \* \*
>
> \(ii\) For WCS licensees holding authorizations for Block A in the
> 698-704 MHz and 728-734 MHz bands, Block B in the 704-710 MHz and
> 734-740 MHz bands, Block E in the 722-728 MHz band, and Blocks C, C1,
> and C2 in the 746-757 MHz and 776-787 MHz bands, the following rules
> apply for purposes of implementing the construction requirements set
> forth in § 27.14. Parties to partitioning agreements have two options
> for satisfying the construction requirements set forth in § 27.14.
> Under the first option, the partitioner and partitionee each certifies
> that they will collectively share responsibility for meeting the
> construction requirement for the entire pre-partition geographic
> license area. If the partitioner and partitionee collectively fail to
> meet the construction requirement, then both the partitioner and
> partitionee will be subject to the consequences enumerated in §
> 27.14(g)-(h) for this failure. Under the second option, the
> partitioner and partitionee each certifies that it will independently
> meet the construction requirement for its respective partitioned
> license area. If the partitioner or partitionee fails to meet the
> construction requirement for its respective partitioned license area,
> then the consequences for this failure shall be those enumerated in §
> 27.14(g)-(h).

\(2\) *Disaggregation.*

> \(i\) Except for WCS licensees holding authorizations for Block A in
> the 698-704 MHz and 728-734 MHz bands, Block B in the 704-710 MHz and
> 734-740 MHz bands, Block E in the 722-728 MHz band, and Blocks C, C1,
> and C2 in the 746-757 MHz and 776-787 MHz bands, and Block D in the
> 758-763 MHz and 788-793 MHz bands, the following rules apply to WCS
> and AWS licensees holding authorizations for purposes for purposes of
> implementing the construction requirements set forth in §27.14. \* \*
> \*
>
> \(ii\) For WCS licensees holding authorizations for Block A in the
> 698-704 MHz and 728-734 MHz bands, Block B in the 704-710 MHz and
> 734-740 MHz bands, Block E in the 722-728 MHz band, and Blocks C, C1,
> and C2 in the 746-757 MHz and 776-787 MHz bands, the following rules
> apply for purposes of implementing the construction requirements set
> forth in § 27.14. If either the disaggregator or the disaggregatee
> meets the construction requirements set forth in § 27.14, then these
> requirements will be considered to be satisfied for both parties. If
> neither the disaggregator nor the disaggregatee meets the construction
> requirements, then both parties will be subject to the consequences
> enumerated in § 27.14(g)-(h) for this failure.

20. Part 27 is amended by adding new Section 27.16 to read as follows:

> **§ 27.16 Network access requirements for Block C in the 746-757 and
> 776-787 MHz bands.**
>
> \(a\) *Applicability*. This section shall apply only to the
> authorizations for Block C in the 746-757 and 776-787 MHz bands
> assigned and only if the results of the first auction in which
> licenses for such authorizations are offered satisfied the applicable
> reserve price.
>
> \(b\) *Use of* *devices and applications*. Licensees offering service
> on spectrum subject to this section shall not deny, limit, or restrict
> the ability of their customers to use the devices and applications of
> their choice on the licensee's C Block network, except:
>
> \(1\) Insofar as such use would not be compliant with published
> technical standards reasonably necessary for the management or
> protection of the licensee's network, or
>
> \(2\) As required to comply with statute or applicable government
> regulation.
>
> \(c\) *Technical standards*. For purposes of subsection (b)(1):
>
> \(1\) Standards shall include technical requirements reasonably
> necessary for third parties to access a licensee's network via devices
> or applications without causing objectionable interference to other
> spectrum users or jeopardizing network security. The potential for
> excessive bandwidth demand alone shall not constitute grounds for
> denying, limiting or restricting access to the network.
>
> \(2\) To the extent a licensee relies on standards established by an
> independent standards-setting body which is open to participation by
> representatives of service providers, equipment manufacturers,
> application developers, consumer organizations, and other interested
> parties, the standards will carry a presumption of reasonableness.
>
> \(3\) A licensee shall publish its technical standards, which shall be
> non-proprietary, no later than the time at which it makes such
> standards available to any preferred vendors, so that the standards
> are readily available to customers, equipment manufacturers,
> application developers, and other parties interested in using or
> developing products for use on a licensee's networks.
>
> \(d\) *Access* *requests*.
>
> \(1\) Licensees shall establish and publish clear and reasonable
> procedures for parties to seek approval to use devices or applications
> on the licensees' networks. A licensee must also provide to potential
> customers notice of the customers' rights to request the attachment of
> a device or application to the licensee's network, and notice of the
> licensee's process for customers to make such requests, including the
> relevant network criteria.
>
> \(2\) If a licensee determines that a request for access would violate
> its technical standards or regulatory requirements, the licensee shall
> expeditiously provide a written response to the requester specifying
> the basis for denying access and providing an opportunity for the
> requester to modify its request to satisfy the licensee's concerns.
>
> \(e\) *Handset locking prohibited.* No licensee may disable features
> on handsets it provides to customers, to the extent such features are
> compliant with the licensee's standards pursuant to §27.16(b), nor
> configure handsets it provides to prohibit use of such handsets on
> other providers' networks.
>
> \(f\) *Burden of proof.* Once a complainant sets forth a *prima facie*
> case that the C Block licensee has refused to attach a device or
> application in violation of the requirements adopted in this section,
> the licensee shall have the burden of proof to demonstrate that it has
> adopted reasonable network standards and reasonably applied those
> standards in the complainant's case. Where the licensee bases its
> network restrictions on industry-wide consensus standards, such
> restrictions would be presumed reasonable.

16\. Section 27.50 is amended by revising paragraphs (b) and (c) and the
tables at the end of the section to read as follows:

> **§ 27.50 Power and antenna height limits.**
>
> \* \* \* \* \*

\(b\) \* \* \*

> \(1\) Fixed and base stations transmitting a signal in the 757-758 and
> 775-776 MHz bands must not exceed an effective radiated power (ERP) of
> 1000 watts and an antenna height of 305 m height above average terrain
> (HAAT), except that antenna heights greater than 305 m HAAT are
> permitted if power levels are reduced below 1000 watts ERP in
> accordance with Table 1 of this section.
>
> \(2\) Fixed and base stations transmitting a signal in the 746-757
> MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands with an emission
> bandwidth of 1 MHz or less must not exceed an ERP of 1000 watts and an
> antenna height of 305 m HAAT, except that antenna heights greater than
> 305 m HAAT are permitted if power levels are reduced below 1000 watts
> ERP in accordance with Table 1 of this section.
>
> \(3\) Fixed and base stations located in a county with population
> density of 100 or fewer persons per square mile, based upon the most
> recently available population statistics from the Bureau of the
> Census, and transmitting a signal in the 746-757 MHz, 758-763 MHz,
> 776-787 MHz, and 788-793 MHz bands with an emission bandwidth of 1 MHz
> or less must not exceed an ERP of 2000 watts and an antenna height of
> 305 m HAAT, except that antenna heights greater than 305 m HAAT are
> permitted if power levels are reduced below 2000 watts ERP in
> accordance with Table 2 of this section.
>
> \(4\) Fixed and base stations transmitting a signal in the 746-757
> MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands with an emission
> bandwidth greater than 1 MHz must not exceed an ERP of 1000 watts/MHz
> and an antenna height of 305 m HAAT, except that antenna heights
> greater than 305 m HAAT are permitted if power levels are reduced
> below 1000 watts/MHz ERP accordance with Table 3 of this section.
>
> \(5\) Fixed and base stations located in a county with population
> density of 100 or fewer persons per square mile, based upon the most
> recently available population statistics from the Bureau of the
> Census, and transmitting a signal in the 746-757 MHz, 758-763 MHz,
> 776-787 MHz, and 788-793 MHz bands with an emission bandwidth greater
> than 1 MHz must not exceed an ERP of 2000 watts/MHz and an antenna
> height of 305 m HAAT, except that antenna heights greater than 305 m
> HAAT are permitted if power levels are reduced below 2000 watts/MHz
> ERP in accordance with Table 4 of this section.
>
> \(6\) Licensees of fixed or base stations transmitting a signal in the
> 746-757 MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands at an ERP
> greater than 1000 watts must comply with the provisions set forth in
> paragraph (b)(8) and §27.55(c).
>
> \(7\) Licensees seeking to operate a fixed or base station located in
> a county with population density of 100 or fewer persons per square
> mile, based upon the most recently available population statistics
> from the Bureau of the Census, and transmitting a signal in the
> 746-757 MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands at an ERP
> greater than 1000 watts must:
>
> \(i\) coordinate in advance with all licensees authorized to operate
> in the 698-763 MHz, 775-793, and 805-806 MHz bands within 120
> kilometers (75 miles) of the base or fixed station;
>
> \(ii\) coordinate in advance with all regional planning committees, as
> identified in §90.527 of this chapter, with jurisdiction within 120
> kilometers (75 miles) of the base or fixed station.
>
> \(8\) Licensees authorized to transmit in the 746-757 MHz, 758-763
> MHz, 776-787 MHz, and 788-793 MHz bands and intending to operate a
> base or fixed station at a power level permitted under the provisions
> of paragraph (b)(6) of this section must provide advanced notice of
> such operation to the Commission and to licensees authorized in their
> area of operation. Licensees who must be notified are all licensees
> authorized to operate in the 763-775 MHz and 793-805 MHz bands under
> Part 90 of this chapter within 75 km of the base or fixed station and
> all regional planning committees, as identified in §90.527 of this
> chapter, with jurisdiction within 75 km of the base or fixed station.
> Notifications must provide the location and operating parameters of
> the base or fixed station, including the station\'s ERP, antenna
> coordinates, antenna height above ground, and vertical antenna
> pattern, and such notifications must be provided at least 90 days
> prior to the commencement of station operation.
>
> \(9\) Control stations and mobile stations transmitting in the
> 746--757 MHz, 758-763 MHz, 776--793 MHz, and 805-806 MHz bands and
> fixed stations transmitting in the 787--788 MHz and 805-806 MHz bands
> are limited to 30 watts ERP.
>
> \(10\) Portable stations (hand-held devices) transmitting in the
> 746--757 MHz, 758-763 MHz, 776--793 MHz, and 805-806 MHz bands are
> limited to 3 watts ERP.
>
> \(11\) For transmissions in the 757-758, 775-776, 787-788, and 805-806
> MHz bands, maximum composite transmit power shall be measured over any
> interval of continuous transmission using instrumentation calibrated
> in terms of RMS-equivalent voltage. The measurement results shall be
> properly adjusted for any instrument limitations, such as detector
> response times, limited resolution bandwidth capability when compared
> to the emission bandwidth, etc., so as to obtain a true maximum
> composite measurement for the emission in question over the full
> bandwidth of the channel.
>
> \(12\) For transmissions in the 746-757, 758-763, 776-787, and 788-793
> MHz bands, licensees may employ equipment operating in compliance
> with either the measurement techniques described in paragraph (b)(11)
> or a Commission-approved average power technique. In both instances,
> equipment employed must be authorized in accordance with the
> provisions of 27.51.
>
> \(c\) \* \* \*
>
> \(1\) \* \* \*
>
> \(2\) \* \* \*
>
> \(3\) \* \* \*
>
> \(4\) \* \* \*
>
> \(5\) Licensees seeking to operate a fixed or base station located in
> a county with population density of 100 or fewer persons per square
> mile, based upon the most recently available population statistics
> from the Bureau of the Census, and transmitting a signal at an ERP
> greater than 1000 watts must:
>
> \(i\) coordinate in advance with all licensees authorized to operate
> in the 698-763 MHz, 775-793, and 805-806 MHz bands within 120
> kilometers (75 miles) of the base or fixed station;
>
> \(ii\) coordinate in advance with all regional planning committees, as
> identified in §90.527 of this chapter, with jurisdiction within 120
> kilometers (75 miles) of the base or fixed station.
>
> \(6\) \* \* \*
>
> \(7\) A licensee authorized to operate in the 710-716, 716-722, or
> 740-746 MHz bands, or in any unpaired spectrum blocks within the
> 698-746 MHz band, may operate a fixed or base station at an ERP up to
> a total of 50 kW within its authorized, 6 MHz spectrum block if the
> licensee complies with the provisions of §27.55(b). The antenna height
> for such stations is limited only to the extent required to satisfy
> the requirements of §27.55(b).
>
> \(8\) Licensees intending to operate a base or fixed station at a
> power level permitted under the provisions of paragraph (c)(6) must
> provide advanced notice of such operation to the Commission and to
> licensees authorized in their area of operation. Licensees who must be
> notified are all licensees authorized under this part to operate on an
> adjacent spectrum block within 75 km of the base or fixed station.
> Notifications must provide the location and operating parameters of
> the base or fixed station, including the station\'s ERP, antenna
> coordinates, antenna height above ground, and vertical antenna
> pattern, and such notifications must be provided at least 90 days
> prior to the commencement of station operation.
>
> \* \* \* \* \*
>
> \(11\) Licensees may employ equipment operating in compliance
> with either the measurement techniques described in paragraph (b)(11)
> or a Commission-approved average power technique. In both instances,
> equipment employed must be authorized in accordance with the
> provisions of 27.51.
>
> \* \* \* \* \*

+------------------------------------+---------------------------------+
| **Table 1 - Permissible Power and  |                                 |
| Antenna Heights for Base and Fixed |                                 |
| Stations in the 757-758 and        |                                 |
| 775-776 MHz Bands and for Base and |                                 |
| Fixed Stations in the 698-757 MHz, |                                 |
| 758-763 MHz, 776-787 MHz and       |                                 |
| 788-793 MHz** **Bands Transmitting |                                 |
| a Signal with an Emission          |                                 |
| Bandwidth of 1 MHz or Less**       |                                 |
+------------------------------------+---------------------------------+
| **Antenna height (AAT) in meters   | **Effective radiated power      |
| (feet)**                           | (ERP)**                         |
|                                    |                                 |
|                                    | **(watts)**                     |
+------------------------------------+---------------------------------+
| Above 1372 (4500)                  | 65                              |
+------------------------------------+---------------------------------+
| Above 1220 (4000) To 1372 (4500)   | 70                              |
+------------------------------------+---------------------------------+
| Above 1067 (3500) To 1220 (4000)   | 75                              |
+------------------------------------+---------------------------------+
| Above 915 (3000) To 1067 (3500)    | 100                             |
+------------------------------------+---------------------------------+
| Above 763 (2500) To 915 (3000)     | 140                             |
+------------------------------------+---------------------------------+
| Above 610 (2000) To 763 (2500)     | 200                             |
+------------------------------------+---------------------------------+
| Above 458 (1500) To 610 (2000)     | 350                             |
+------------------------------------+---------------------------------+
| Above 305 (1000) To 458 (1500)     | 600                             |
+------------------------------------+---------------------------------+
| Up to 305 (1000)                   | 1000                            |
+------------------------------------+---------------------------------+

+------------------------------------+---------------------------------+
| **Table 2 -- Permissible Power and |                                 |
| Antenna Heights for Base and       |                                 |
| Fixed**                            |                                 |
|                                    |                                 |
| **Stations in the 698-757 MHz,     |                                 |
| 758-763 MHz, 776-787 MHz and       |                                 |
| 788-793 MHz Bands Transmitting a   |                                 |
| Signal with an Emission Bandwidth  |                                 |
| of 1 MHz or Less**                 |                                 |
+------------------------------------+---------------------------------+
| **Antenna height (AAT) in meters   | **Effective radiated power      |
| (feet)**                           | (ERP)**                         |
|                                    |                                 |
|                                    | **(watts)**                     |
+------------------------------------+---------------------------------+
| Above 1372 (4500)                  | 130                             |
+------------------------------------+---------------------------------+
| Above 1220 (4000) To 1372 (4500)   | 140                             |
+------------------------------------+---------------------------------+
| Above 1067 (3500) To 1220 (4000)   | 150                             |
+------------------------------------+---------------------------------+
| Above 915 (3000) To 1067 (3500)    | 200                             |
+------------------------------------+---------------------------------+
| Above 763 (2500) To 915 (3000)     | 280                             |
+------------------------------------+---------------------------------+
| Above 610 (2000) To 763 (2500)     | 400                             |
+------------------------------------+---------------------------------+
| Above 458 (1500) To 610 (2000)     | 700                             |
+------------------------------------+---------------------------------+
| Above 305 (1000) To 458 (1500)     | 1200                            |
+------------------------------------+---------------------------------+
| Up to 305 (1000)                   | 2000                            |
+------------------------------------+---------------------------------+

  ------------------------------------- ---------------------------------
  **Table 3 -- Permissible Power and    
  Antenna Heights for Base and Fixed    
  Stations in the 698-757 MHz, 758-763  
  MHz, 776-787 MHz and 788-793 MHz**    
  **Bands Transmitting a Signal with an 
  Emission Bandwidth Greater than 1     
  MHz**                                 

  **Antenna height (AAT) in meters      **Effective radiated power (ERP)
  (feet)**                              per MHz (watts/MHz)**

  Above 1372 (4500)                     65

  Above 1220 (4000) To 1372 (4500)      70

  Above 1067 (3500) To 1220 (4000)      75

  Above 915 (3000) To 1067 (3500)       100

  Above 763 (2500) To 915 (3000)        140

  Above 610 (2000) To 763 (2500)        200

  Above 458 (1500) To 610 (2000)        350

  Above 305 (1000) To 458 (1500)        600

  Up to 305 (1000)                      1000
  ------------------------------------- ---------------------------------

  ------------------------------------- ---------------------------------
  **Table 4 -- Permissible Power and    
  Antenna Heights for Base and Fixed    
  Stations in the 698-757 MHz, 758-763  
  MHz, 776-787 MHz and 788-793 MHz**    
  **Bands Transmitting a Signal with an 
  Emission Bandwidth Greater than 1     
  MHz**                                 

  **Antenna height (AAT) in meters      **Effective radiated power (ERP)
  (feet)**                              per MHz (watts/MHz )**

  Above 1372 (4500)                     130

  Above 1220 (4000) To 1372 (4500)      140

  Above 1067 (3500) To 1220 (4000)      150

  Above 915 (3000) To 1067 (3500)       200

  Above 763 (2500) To 915 (3000)        280

  Above 610 (2000) To 763 (2500)        400

  Above 458 (1500) To 610 (2000)        700

  Above 305 (1000) To 458 (1500)        1200

  Up to 305 (1000)                      2000
  ------------------------------------- ---------------------------------

21. Section 27.53 is amended by adding a new paragraph (d),
    re-designating paragraphs (d)--(m) as paragraphs (e)-(n), revising
    paragraph (c), new paragraph (f), and new paragraph (e), and
    re-designating paragraphs (e)(1) to (e)(4) as paragraphs (e)(6) to
    (e)(9) to read as follows:

> **§ 27.53 Emission limits.**
>
> \* \* \* \* \*
>
> \(c\) For operations in the 746 to 758 MHz band and the 776 to 788 MHz
> band, the power of any emission outside the licensee\'s frequency
> band(s) of operation shall be attenuated below the transmitter power
> (P) within the licensed band(s) of operation, measured in watts, in
> accordance with the following:
>
> \(1\) On any frequency outside the 746 to 758 MHz band, the power of
> any emission shall be attenuated outside the band below the
> transmitter power (P) by at least 43 + 10 log (P) dB;
>
> \(2\) On any frequency outside the 776 to 788 MHz band, the power of
> any emission shall be attenuated outside the band below the
> transmitter power (P) by at least 43 + 10 log (P) dB;
>
> \(3\) On all frequencies between 763 to 775 MHz and 793 to 805 MHz, by
> a factor not less than 76 + 10 log (P) dB in a 6.25 kHz band segment,
> for base and fixed stations;
>
> \(4\) On all frequencies between 763 to 775 MHz and 793 to 805 MHz, by
> a factor not less than 65 + 10 log (P) dB in a 6.25 kHz band segment,
> for mobile and portable stations;
>
> \* \* \* \* \*
>
> \(d\) For operations in the 758-763 MHz and 788-793 MHz bands, the
> power of any emission outside the licensee\'s frequency bands of
> operation shall be attenuated below the transmitter power (P) within
> the licensed band(s) of operation, measured in watts, in accordance
> with the following:
>
> \(1\) On all frequencies between 769 to 775 MHz and 799 to 805 MHz, by
> a factor not less than 76 + 10 log (P) dB in a 6.25 kHz band segment,
> for base and fixed stations;
>
> \(2\) On all frequencies between 769 to 775 MHz and 799 to 805 MHz, by
> a factor not less than 65 + 10 log (P) dB in a 6.25 kHz band segment,
> for mobile and portable stations;
>
> \(3\) On any frequency between 775 to 788 MHz, above 805 MHz, and
> below 758 MHz, by at least 43 + 10 log (P) dB;
>
> \(4\) Compliance with the provisions of paragraph (d)(1) and d(2) of
> this section is based on the use of measurement instrumentation such
> that the reading taken with any resolution bandwidth setting should be
> adjusted to indicate spectral energy in a 6.25 kHz segment;
>
> \(5\) Compliance with the provisions of paragraph (d)(3) of this
> section is based on the use of measurement instrumentation employing a
> resolution bandwidth of 100 kHz or greater. However, in the 100 kHz
> bands immediately outside and adjacent to the frequency block, a
> resolution bandwidth of at least 30 kHz may be employed.
>
> \(e\) For operations in the 775--776 MHz and 805--806 MHz bands,
> transmitters must comply with either paragraphs (e)(1) to (e)(5) of
> this section or the ACP emission limitations set forth in paragraphs
> (e)(6) to (e)(9) of this section.

\(1\) On all frequencies between 763 to 775 MHz and 793 to 805 MHz, the
power of any emission outside the licensee\'s frequency bands of
operation shall be attenuated below the transmitter power (P) within the
licensed band(s) of operation, measured in watts, by a factor not less
than 76 + 10 log (P) dB in a 6.25 kHz band segment, for base and fixed
stations;

> \(2\) On all frequencies between 763 to 775 MHz and 793 to 805 MHz,
> the power of any emission outside the licensee\'s frequency bands of
> operation shall be attenuated below the transmitter power (P) within
> the licensed band(s) of operation, measured in watts, by a factor not
> less than 65 + 10 log (P) dB in a 6.25 kHz band segment, for mobile
> and portable stations;
>
> \(3\) On any frequency outside the 775 to 776 MHz and 805 to 806 MHz
> bands, the power of any emission shall be attenuated outside the band
> below the transmitter power (P) within the licensed band(s) of
> operation, measured in watts, by at least 43 + 10 log (P) dB;
>
> \(4\) Compliance with the provisions of paragraph (e)(1) and (e)(2) of
> this section is based on the use of measurement instrumentation such
> that the reading taken with any resolution bandwidth setting should be
> adjusted to indicate spectral energy in a 6.25 kHz segment;
>
> \(5\) Compliance with the provisions of paragraph (e)(3) of this
> section is based on the use of measurement instrumentation employing a
> resolution bandwidth of 100 kHz or greater. However, in the 100 kHz
> bands immediately outside and adjacent to the frequency block, a
> resolution bandwidth of at least 30 kHz may be employed.
>
> \* \* \* \* \*
>
> \(f\) For operations in the 746--763 MHz, 775--793 MHz, and 805-806
> MHz bands, emissions in the band 1559--1610 MHz shall be limited to
> −70 dBW/MHz equivalent isotropically radiated power (EIRP) for
> wideband signals, and −80 dBW EIRP for discrete emissions of less than
> 700 Hz bandwidth. For the purpose of equipment authorization, a
> transmitter shall be tested with an antenna that is representative of
> the type that will be used with the equipment in normal operation.
>
> \* \* \* \* \*

22. Section 27.55 is amended by revising paragraphs (a)(2) and (c) to
    read as follows:

> **§ 27.55 Power strength limits.**
>
> \(a\) \* \* \*
>
> \(1\) \* \* \*
>
> \(2\) 698--758 and 775--787 MHz bands: 40 dBµV/m.
>
> \* \* \* \* \*
>
> \(c\) *Power flux density limit for stations operating in the 746-757
> MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands.* For base and
> fixed stations operating in the 746-757 MHz, 758-763 MHz, 776-787 MHz,
> and 788-793 MHz bands in accordance with the provisions of
> §27.50(b)(6) of this chapter, the power flux density that would be
> produced by such stations through a combination of antenna height and
> vertical gain pattern must not exceed 3000 microwatts per square meter
> on the ground over the area extending to 1 km from the base of the
> antenna mounting structure.

23. Section 27.57 is amended by revising paragraph (b) to read as
    follows:

> **§ 27.57 International coordination.**
>
> \* \* \* \* \*
>
> \(b\) Operation in the 698--763 MHz, 775--793 MHz, and 805-806 MHz
> bands is subject to international agreements between Mexico and
> Canada. Unless otherwise modified by international treaty, licenses
> must not cause interference to, and must accept harmful interference
> from, television broadcast operations in Mexico and Canada.
>
> \* \* \* \* \*

24. Section 27.60 is amended to read as follows:

> **§ 27.60 TV/DTV interference protection criteria.**
>
> Base, fixed, control, and mobile transmitters in the 698--763 MHz,
> 775--793 MHz, and 805-806 MHz frequency bands must be operated only in
> accordance with the rules in this section to reduce the potential for
> interference to public reception of the signals of existing TV and DTV
> broadcast stations transmitting on TV Channels 51 through 68.
>
> \(a\) *D/U ratios*. Licensees must choose site locations that are a
> sufficient distance from co-channel and adjacent channel TV and DTV
> stations, and/or must use reduced transmitting power or transmitting
> antenna height such that the following minimum desired
> signal-to-undesired signal ratios (D/U ratios) are met.
>
> \(1\) The minimum D/U ratio for co-channel stations is:
>
> \(i\) 40 dB at the hypothetical Grade B contour (64 dBµV/m) (88.5
> kilometers (55 miles)) of the TV station;

\(ii\) For transmitters operating in the 698--746 MHz frequency band, 23
dB at the equivalent Grade B contour (41 dBµV/m) (88.5 kilometers (55
miles)) of the DTV station; or

> \(iii\) For transmitters operating in the 746--763 MHz, 775--793 MHz,
> and 805-806 MHz frequency bands, 17 dB at the equivalent Grade B
> contour (41 dBµV/m) (88.5 kilometers (55 miles)) of the DTV station.
>
> \(2\) The minimum D/U ratio for adjacent channel stations is 0 dB at
> the hypothetical Grade B contour (64 dBµV/m) (88.5 kilometers (55
> miles)) of the TV station or −23 dB at the equivalent Grade B contour
> (41 dBµV/m) (88.5 kilometers (55 miles)) of the DTV station.
>
> \(b\) *TV stations and calculation of contours.* The methods used to
> calculate TV contours and antenna heights above average terrain are
> given in §§73.683 and 73.684 of this chapter. Tables to determine the
> necessary minimum distance from the 698--763 MHz, 775--793 MHz, and
> 805-806 MHz station to the TV/DTV station, assuming that the TV/DTV
> station has a hypothetical or equivalent Grade B contour of 88.5
> kilometers (55 miles), are located in §90.309 of this chapter and
> labeled as Tables B, D, and E. Values between those given in the
> tables may be determined by linear interpolation. Distances for
> station parameters greater than those indicated in the tables should
> be calculated in accordance with the required D/U ratios, as provided
> in paragraph (a) of this section. The locations of existing and
> proposed TV/DTV stations during the period of transition from analog
> to digital TV service are given in part 73 of this chapter and in the
> final proceedings of MM Docket No. 87--268.
>
> \(1\) Licensees of stations operating within the ERP and HAAT limits
> of §27.50 must select one of four methods to meet the TV/DTV
> protection requirements, subject to Commission approval:
>
> \(i\) Utilize the geographic separation specified in Tables B, D, and
> E of §90.309 of this chapter, as appropriate;
>
> \(ii\) When station parameters are greater than those indicated in the
> tables, calculate geographic separation in accordance with the
> required D/U ratios, as provided in paragraph (a) of this section;
>
> \(iii\) Submit an engineering study justifying the proposed
> separations based on the parameters of the land mobile station and the
> parameters, including authorized and/or applied for facilities, of the
> TV/DTV station(s) it is trying to protect; or,
>
> \(iv\) Obtain written concurrence from the applicable TV/DTV
> station(s). If this method is chosen, a copy of the agreement must be
> submitted with the application.
>
> \(2\) The following is the method for geographic separations.
>
> \(i\) Base and fixed stations that operate in the 746--763 MHz,
> 775--787 MHz, and 788-793 MHz bands having an antenna height (HAAT)
> less than 152 m. (500 ft.) shall afford protection to co-channel and
> adjacent channel TV/DTV stations in accordance with the values
> specified in Table B (co-channel frequencies based on 40 dB
> protection) and Table E (adjacent channel frequencies based on 0 dB
> protection) in §90.309 of this chapter. Base and fixed stations that
> operate in the 698--746 MHz band having an antenna height (HAAT) less
> than 152 m. (500 ft.) shall afford protection to adjacent channel DTV
> stations in accordance with the values specified in Table E in §90.309
> of this chapter, shall afford protection to co-channel DTV stations by
> providing 23 dB protection to such stations\' equivalent Grade B
> contour (41 dBµV/m), and shall afford protection to co-channel and
> adjacent channel TV stations in accordance with the values specified
> in Table B (co-channel frequencies based on 40 dB protection) and
> Table E (adjacent channel frequencies based on 0 dB protection) in
> §90.309 of this chapter. For base and fixed stations having an antenna
> height (HAAT) between 152--914 meters (500--3,000 ft.) the effective
> radiated power must be reduced below 1 kilowatt in accordance with the
> values shown in the power reduction graph in Figure B in §90.309 of
> this chapter. For heights of more than 152 m. (500 ft.) above average
> terrain, the distance to the radio path horizon will be calculated
> assuming smooth earth. If the distance so determined equals or exceeds
> the distance to the hypothetical or equivalent Grade B contour of a
> co-channel TV/DTV station (i.e. , it exceeds the distance from the
> appropriate Table in §90.309 of this chapter to the relevant TV/DTV
> station), an authorization will not be granted unless it can be shown
> in an engineering study (see paragraph (b)(1)(iii) of this section)
> that actual terrain considerations are such as to provide the desired
> protection at the actual Grade B contour (64 dBµV/m for TV and 41
> dBµV/m for DTV stations) or unless the effective radiated power will
> be further reduced so that, assuming free space attenuation, the
> desired protection at the actual Grade B contour (64 dBµV/m for TV and
> 41 dBµV/m coverage contour for DTV stations) will be achieved.
> Directions for calculating powers, heights, and reduction curves are
> listed in §90.309 of this chapter for land mobile stations. Directions
> for calculating coverage contours are listed in §§73.683 through
> 73.685 of this chapter for TV stations and in §73.625 of this chapter
> for DTV stations.
>
> \(ii\) Control, fixed, and mobile stations (including portables) that
> operate in the 787-788 MHz and 805-806 MHz bands and control and
> mobile stations (including portables) that operate in the 698--757
> MHz, 758-763 MHz, 776--787 MHz, and 788-793 MHz bands are limited in
> height and power and therefore shall afford protection to co-channel
> and adjacent channel TV/DTV stations in the following manner:
>
> \(A\) For control, fixed, and mobile stations (including portables)
> that operate in the 787-788 MHz and 805--806 MHz bands and control and
> mobile stations (including portables) that operate in the 746-757 MHz,
> 758-763 MHz, 776-787 MHz, and 788-793 MHz bands, co-channel protection
> shall be afforded in accordance with the values specified in Table D
> (co-channel frequencies based on 40 dB protection for TV stations and
> 17 dB for DTV stations) in §90.309 of this chapter.
>
> \(B\) For control and mobile stations (including portables) that
> operate in the 698--746 MHz band, co-channel protection shall be
> afforded to TV stations in accordance with the values specified in
> Table D (co-channel frequencies based on 40 dB protection) and to DTV
> stations by providing 23 dB protection to such stations\' equivalent
> Grade B contour (41 dBµV/m).
>
> \(C\) For control, fixed, and mobile stations (including portables)
> that operate in the 787-788 MHz and 805--806 MHz bands and control and
> mobile stations (including portables) that operate in the 698-757 MHz,
> 758-763 MHz, 776-787 MHz, and 788-793 MHz bands, adjacent channel
> protection shall be afforded by providing a minimum distance of 8
> kilometers (5 miles) from all adjacent channel TV/DTV station
> hypothetical or equivalent Grade B contours (adjacent channel
> frequencies based on 0 dB protection for TV stations and −23 dB for
> DTV stations).
>
> \(D\) Since control, fixed, and mobile stations may affect different
> TV/DTV stations than the associated base or fixed station, particular
> care must be taken by applicants/licensees to ensure that all
> appropriate TV/DTV stations are considered (e.g., a base station may
> be operating within TV Channel 62 and the mobiles within TV Channel
> 67, in which case TV Channels 61, 62, 63, 66, 67 and 68 must be
> protected). Control, fixed, and mobile stations shall keep a minimum
> distance of 96.5 kilometers (60 miles) from all adjacent channel
> TV/DTV stations. Since mobiles and portables are able to move and
> communicate with each other, licensees must determine the areas where
> the mobiles can and cannot roam in order to protect the TV/DTV
> stations.
>
> \* \* \* \* \*

25. Section 27.70 is amended by revising paragraphs (a) and (b) to read
    as follows:

> **§ 27.70 Information exchange.**
>
> \(a\) *Prior notification*. Public safety licensees authorized to
> operate in the 763-775 MHz and 793-805 MHz bands may notify any
> licensee authorized to operate in the 746-757, 758-763, 776-787, or
> 788-793 MHz bands that they wish to *receive* prior notification of
> the activation or modification of the licensee's base or fixed
> stations in their area. Thereafter, the 746-757, 758-763, 776-787, or
> 788-793 MHz band licensee must provide the following information to
> the public safety licensee at least 10 business days before a new base
> or fixed station is activated or an existing base or fixed station is
> modified:
>
> \* \* \* \* \*
>
> \(b\) \* \* \*
>
> \(1\) Allow a public safety licensee to advise the 746-757, 758-763,
> 776-787, or 788-793 MHz band licensee whether it believes a proposed
> base or fixed station will generate unacceptable interference;
>
> \(2\) Permit 746-757, 758-763, 776-787, and 788-793 MHz band licensees
> to make voluntary changes in base or fixed station parameters when a
> public safety licensee alerts them to possible interference; and,
>
> \* \* \* \* \*

26. Section 27.303 (a) is amended to read as follows:

> **§ 27.303 Upper 700 MHz commercial and public safety coordination
> zone.**
>
> \(a\) General. CMRS operators are required, prior to commencing
> operations on fixed or base station transmitters on the 776--787 MHz
> and 788 -- 793 MHz bands that are located within 500 meters of
> existing or planned public safety base station receivers, to submit a
> description of their proposed facility to a Commission-approved public
> safety coordinator.
>
> \* \* \* \* \*

27. Section 27.501 is amended by revising the title and amending the
    section to read as follows:

> **§ 27.501 746 -- 763 MHz, 775 -- 793 MHz, and 805 -- 806 MHz bands
> subject to competitive bidding.**
>
> Mutually exclusive initial applications for licenses in the 746 -- 763
> MHz, 775 -- 793 MHz, and 805 -- 806 MHz bands 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.

28. Section 27.601 is amended by revising paragraph (c) as follows:

> **§ 27.601 Authority and coordination requirements.**
>
> \* \* \* \* \*
>
> \(c\) *Frequency Coordination*.
>
> \(1\) A Guard Band licensee, or a spectrum lessee operating at 775-776
> MHz and 805-806 MHz pursuant to a spectrum lease arrangement under §§
> 1.9030 and 1.9035 of this chapter, must notify Commission-recognized
> public safety frequency coordinators for the 700 MHz Public Safety
> band and adjacent-area Guard Band licensees within one business day
> after the licensee or the spectrum lessee has:
>
> \* \* \* \* \*

29. Add the following new subpart N to Part 27 to read as follows:

> **SUBPART N --- 700 MHz PUBLIC/PRIVATE PARTNERSHIP**
>
> **§ 27.1301 Purpose and scope**
>
> The purpose of this subpart, in conjunction with subpart AA of Part
> 90, is to establish rules and procedures relating to the 700 MHz
> Public/Private Partnership entered between the winning bidder for the
> Upper 700 MHz D Block license, the Upper 700 MHz D Block licensee, the
> Network Assets Holder, the Operating Company, the Public Safety
> Broadband Licensee, and other related entities as the Commission may
> require or allow. Pursuant to this partnership, the Upper 700 MHz D
> Block licensee and the Operating Company will be responsible for
> constructing and operating a nationwide, shared interoperable wireless
> broadband network used to provide a commercial service and a broadband
> network service for public safety entities. The shared network assets
> will be held by the Network Assets Holder and the Shared Wireless
> Broadband Network will operate on both the commercial spectrum
> licensed to the Upper 700 MHz D Block licensee and the public safety
> broadband spectrum licensed to the Public Safety Broadband Licensee.
> This subpart of the Part 27 rules sets forth specific provisions
> relating to the Upper 700 MHz D Block license, the Upper 700 MHz D
> Block licensee, and other related entities as the Commission may
> require or allow with respect to the 700 MHz Public/Private
> Partnership. Subpart AA of the Part 90 rules sets forth related
> provisions applicable to the Public Safety Broadband License and the
> Public Safety Broadband Licensee with respect to the 700 MHz
> Public/Private Partnership.
>
> **§ 27.1303 Upper 700 MHz D Block license conditions**
>
> \(a\) The winning bidder at auction of the license for Block D in the
> 758-763 MHz and 788-793 MHz bands will be granted the Upper 700 MHz D
> Block license only after this winning bidder has entered, with the
> Public Safety Broadband Licensee and other related entities as the
> Commission may require or allow, into the Network Sharing Agreement
> (NSA) that has been approved by the Commission, has executed such
> other agreements as the Commission may require or allow, and has met
> all other necessary conditions pertaining to the award of this
> license.
>
> \(b\) The Upper 700 MHz D Block licensee shall comply with all of the
> applicable requirements set forth in this part and subpart, including
> the construction requirements set forth in § 27.14, and shall comply
> with the terms of the NSA and such other agreements as the Commission
> may require or allow.
>
> \(c\) The Upper 700 MHz D Block licensee shall have the exclusive
> right to build and operate the shared wireless broadband network,
> except as set forth in §§ 20.1330 and 90.1430.
>
> \(d\) The Upper 700 MHz D Block licensee must not discontinue, reduce,
> or impair service to public safety users unless and until, pursuant to
> Commission procedures, it has obtained prior authorization from the
> Commission.
>
> \(e\) The Upper 700 MHz D Block licensee must provide the Public
> Safety Broadband Licensee with priority access during emergencies, as
> specified in the NSA.
>
> \(f\) These conditions and requirements will apply to any related
> entities that the Commission may require or allow, as provided for in
> the NSA or otherwise as authorized by the Commission.
>
> **§ 27.1305 Shared Wireless Broadband Network.**
>
> The Shared Wireless Broadband Network developed by the 700 MHz
> Public/Private Partnership must be designed to meet requirements
> associated with a nationwide, public safety broadband network. At a
> minimum, the network must incorporate the following features:
>
> \(a\) Design for operation over a broadband technology platform that
> provides mobile voice, video, and data capability that is seamlessly
> interoperable across public safety local and state agencies,
> jurisdictions, and geographic areas, and that includes current and
> evolving state-of-the-art technologies reasonably made available in
> the commercial marketplace with features beneficial to the public
> safety community.
>
> \(b\) Sufficient signal coverage to ensure reliable operation
> throughout the service area consistent with typical public safety
> communications systems.
>
> \(c\) Sufficient robustness to meet the reliability and performance
> requirements of public safety.
>
> \(d\) Sufficient capacity to meet the needs of public safety.
>
> \(e\) Security and encryption consistent with state-of-the-art
> technologies.
>
> \(f\) A mechanism to automatically prioritize public safety
> communications over commercial uses on a real-time basis consistent
> with the requirements of § 27.1307.
>
> \(g\) Operational capabilities consistent with features and
> requirements that are typical of current and evolving state-of-the-art
> public safety systems.
>
> \(h\) Operational control of the network by the Public Safety
> Broadband Licensee to the extent necessary to ensure that public
> safety requirements are met.
>
> **§ 27.1307 Spectrum use in the network.**
>
> \(a\) *Spectrum use.* The shared wireless broadband network developed
> by the 700 MHz Public/ Private Partnership will operate using spectrum
> associated with the Upper 700 MHz D Block license in the 758-763 MHz
> and 788-793 MHz bands and the Public Safety Broadband License in the
> adjacent 763-768 MHz and 793-798 MHz bands.
>
> \(b\) *Access to spectrum in the 758-763 MHz and 788-793 MHz bands*.
> The Upper 700 MHz D Block licensee shall lease the spectrum rights
> associated with the Upper 700 MHz D Block license to the Operating
> Company, pursuant to the Commission's spectrum leasing rules. The
> spectrum leasing arrangement shall be a long-term *de facto* transfer
> leasing arrangement for the entire remaining term of the Upper 700 MHz
> D Block license. If the Upper 700 MHz D Block license is renewed, the
> parties will be required to renew this spectrum leasing arrangement as
> well.
>
> \(c\) *Access to spectrum in the 763-768 MHz and 793-798 MHz bands.*
> The Public Safety Broadband Licensee, which holds the Public Safety
> Broadband License pursuant to Part 90 rules, must lease the spectrum
> usage rights associated with this license, pursuant to a spectrum
> manager leasing arrangement set forth in Part 1 subpart X, to the
> Upper 700 MHz D Block licensee and the Operating Company for the
> entire remaining term of the Public Safety Broadband License to
> effectuate the 700 MHz Public/Private Partnership. The Upper 700 MHz D
> Block licensee and the Operating Company are the only entities that
> are eligible to lease the spectrum usage rights associated with the
> Public Safety Broadband License to operate on the 763-768 and 793-798
> MHz bands. If the Upper 700 MHz D Block license is cancelled, this
> spectrum leasing arrangement will automatically terminate.
>
> \(d\) *Commercial operations in the* *763-768 MHz and 793-798 MHz
> bands.* Commercial operations in the 763-768 MHz and 793-798 MHz bands
> through the spectrum manager leasing arrangement shall not cause
> harmful interference to primary users (*i.e.,* public safety users)
> and cannot claim protection from harmful interference from the primary
> public safety operations in the 763-768 MHz and 793-798 MHz bands. The
> network providing commercial operations in the 763-768 MHz and 793-798
> MHz bands through the spectrum manager leasing arrangement must be
> designed to automatically assign priority to public safety users, to
> the exclusion and/or immediate preemption of any commercial use on a
> dynamic, real-time priority basis, and to guarantee that public safety
> users suffer no harmful interference or interruption or degradation of
> service due to commercial operations in the 763-768 MHz and 793-798
> MHz bands.
>
> **§ 27.1308 Organization and structure of the 700 MHz
> Public**/**Private Partnership.**
>
> \(a\) The Upper 700 MHz D Block licensee, the Network Assets Holder
> and such other related entities as the Commission may require or allow
> shall be formed by the winning bidder of the Upper 700 MHz D Block
> license. The Upper 700 MHz D Block licensee, the Network Assets
> Holder, and related entities as the Commission may require or allow
> must be Special Purpose Bankruptcy Remote Entities formed to hold the
> license, to hold the shared network assets, or for such other purpose
> as the Commission may require or allow. The winning bidder of the
> Upper 700 MHz D Block license shall also form the Operating Company,
> which must also be a Special Purpose Bankruptcy Remote Entity. Upon
> issuance of the Upper 700 MHz D Block license, the winning bidder will
> assign all of its rights and obligations under the NSA to the Upper
> 700 MHz D Block licensee, Network Assets Holder, the Operating
> Company, and any other related entities that the Commission may
> require or allow.
>
> \(b\) The Upper 700 MHz D Block licensee and other related entities as
> the Commission may require or allow shall have the obligation to build
> out the Shared Wireless Broadband Network, as provided for in the NSA
> or otherwise as authorized by the Commission.
>
> **§ 27.1310 Network Sharing Agreement.**
>
> The relationship between the Upper 700 MHz D Block licensee, the
> Public Safety Broadband Licensee, and related entities as the
> Commission may require or allow will be governed by the Network
> Sharing Agreement (NSA) and such other separate agreements as the
> Commission may require or allow that are negotiated and entered into
> between the parties. The NSA must, at a minimum, include the following
> terms:
>
> \(a\) All of the substantive rights and obligations of the parties
> relating to the NSA, as established by the Commission concerning the
> 700 MHz Public/Private Partnership.
>
> \(b\) Network specifications that comply with § 27.1305.
>
> \(c\) The definition of "emergency" for purposes of emergency priority
> access.
>
> \(d\) All service fees to be imposed for services to public safety,
> including fees for normal network service and fees for priority access
> to the D Block spectrum in an emergency.
>
> \(e\) A detailed build-out schedule consistent with § 27.1327,
> including coverage of major highways and interstates, as well as
> incorporated communities with a population in excess of 3,000.
>
> \(f\) The right of the Public Safety Broadband Licensee to determine
> and approve the specifications of public safety equipment used on the
> network and the right to purchase its own subscriber equipment from
> any vendor it chooses, to the extent such specifications and equipment
> are consistent with reasonable network control requirements
> established in the NSA.
>
> \(g\) The Upper 700 MHz D Block licensee must offer at least one
> handset suitable for public safety use that includes a seamlessly
> integrated satellite solution pursuant to the terms, conditions, and
> timeframes set forth in the NSA.
>
> \(h\) Any major modification of the terms of the NSA, related
> agreements or documents, or such other agreements as the Commission
> may require or allow must be submitted to the Commission for prior
> approval. All other modifications must be submitted to the Chiefs of
> the Wireless Telecommunications Bureau and the Public Safety and
> Homeland Security Bureau for prior approval.
>
> \(i\) The NSA shall require, in a separate agreement, the granting of
> an irrevocable and assignable right of first refusal to purchase the
> network assets if and whenever such assets are otherwise to be sold
> and an irrevocable and assignable option in favor of the Public Safety
> Broadband Licensee to purchase the network and all network assets if
> and whenever the Upper 700 MHz D Block license is cancelled or
> terminated, by reason of default or for any other reason, for a
> consideration equivalent to the fair market value of the tangible and
> intangible assets sold. This right and option shall be senior to, and
> have priority over, any other right, claim, or interest in or to the
> network or the network assets. The NSA shall also include a fair
> market valuation methodology to determine the fair market value of the
> shared wireless broadband network assets.
>
> \(j\) The NSA must have a term, not to exceed 10 years from February
> 17, 2009, that coincides with the terms of the Upper 700 MHz D Block
> license and the Public Safety Broadband License.
>
> **§ 27.1315 Establishment, execution, and application of the Network
> Sharing Agreement.**
>
> The following requirements and processes relate to the establishment,
> execution, and application of the NSA:
>
> \(a\) *Approval of NSA as pre-condition for granting the D Block
> License.* The Commission shall not grant the Upper 700 MHz D Block
> license until the winning bidder for the Upper 700 MHz D Block license
> has negotiated the NSA and such other agreements as the Commission may
> require or allow with the Public Safety Broadband Licensee, and the
> NSA and related agreements or documents have been approved by the
> Commission and executed by the required parties. Parties to the NSA
> must also include the Upper 700 MHz D Block licensee, the Network
> Assets Holder, and the Operating Company, as these entities are
> defined in § 27.4.
>
> \(b\) *Requirement of negotiation.* Negotiation of an NSA between the
> winning bidder for the Upper 700 MHz D Block license and the Public
> Safety Broadband Licensee must commence by the date the winning bidder
> files its long form application or the date on which the Commission
> designates the Public Safety Broadband Licensee, whichever is later,
> and must conclude within six months of that date. Parties to this
> negotiation are required to negotiate in good faith. Two members of
> the Commission staff, one from the Wireless Telecommunications Bureau
> and one from the Public Safety and Homeland Security Bureau, shall be
> present at all stages of the negotiation as neutral observers.
>
> \(c\) *Reporting requirements.* The winning bidder for the Upper 700
> MHz D Block license must file a report with the Commission within 10
> business days of the commencement of the negotiation period certifying
> that active and good faith negotiations have begun, providing the date
> on which they commenced, and providing a schedule of the initial dates
> on which the parties intend to meet for active negotiations, covering
> at a minimum the first 30 day period. Beginning three months from the
> triggering of the six-month negotiation period, the winning bidder for
> the Upper 700 MHz D Block license and the Public Safety Broadband
> Licensee must jointly provide detailed reports, on a monthly basis and
> subject to a request for confidential treatment, on the progress of
> the negotiations throughout the remainder of the negotiations. These
> reports must include descriptions of all material issues that the
> parties have yet to resolve.
>
> \(d\) *Submission of final agreement.* As soon as the parties have
> reached an agreement on all the terms of the NSA, related agreements
> or documents, and such other agreements as the Commission may require
> or allow, but not later than five business days after the six-month
> period for negotiation has expired, they must submit the NSA together
> with all agreements and related documents referenced in the NSA, for
> review and approval by the full Commission. The Commission will act on
> the NSA within 60 days of receipt. The Commission may approve the NSA
> in its entirety, approve with modifications, or require the parties to
> address additional terms or re-draft existing terms within a specified
> timeframe. After the NSA is approved, the parties must execute the NSA
> and such other agreements as the Commission may require or allow, and
> submit executed copies to the Commission within 10 business days of
> approval.
>
> \(e\) *Submission of disputed issues.* If the parties have not reached
> agreement on all terms of the NSA and related agreements by the end of
> the six-month period, they must notify the Commission not later than
> five business days after the expiration of the six-month period of the
> terms on which they have agreed, the nature of the remaining issues,
> each party's position on each issue, whether additional negotiation is
> likely to produce an agreement, and, if so, a proposed deadline for
> reaching agreement on the NSA. Authority is delegated jointly to the
> Chiefs of the Wireless Telecommunications Bureau and the Public Safety
> and Homeland Security Bureau to resolve any remaining disputes.
>
> \(f\) *Resolution of disputes.* Actions to resolve disputes may
> include, but are not limited to: (1) granting additional time for
> negotiation; (2) issuing a decision on the disputed issues and
> requiring the submission of a draft agreement consistent with the
> decision; (3) directing the parties to further brief the remaining
> issues in full for immediate Commission decision; and/or (4) immediate
> denial of the long-form application filed by the winning bidder for
> the Upper 700 MHz D Block license.
>
> \(g\) *Default by winning bidder for Upper 700 MHz D Block license.*
> If the winning bidder for the Upper 700 MHz D Block fails to comply
> with negotiation or dispute resolution requirements or fails to
> execute a Commission-approved NSA, its long form application will be
> denied. If the long form application of the winning bidder of the
> Upper 700 MHz D Block license is denied for any reason, including as a
> consequence of an action taken pursuant to subsections (e) and (f), it
> will be deemed to have defaulted under §1.2109(c) and will be liable
> for the default payment specified in § 1.2104(g).
>
> **§ 27.1320 Failure to comply with the NSA or the Commission's
> Rules.**
>
> \(a\) Failure to comply with the Commission's rules or the terms of
> the NSA may warrant cancelling the Upper 700 MHz D Block license and
> awarding it to a new licensee. In the event the Upper 700 MHz D Block
> license is cancelled, the Commission shall issue an order cancelling
> the license and announcing the process for awarding rights to the
> spectrum to a new licensee. Pending the award to a new licensee, the
> Commission shall issue the Operating Company a special temporary
> authority to prevent interruption of services provided over the Shared
> Wireless Broadband Network. The Operating Company must continue to
> provide both commercial service and services to public safety during
> the transition. Upon grant of a new license, the Commission shall
> establish the terms and timing under which the special temporary
> authorization shall be cancelled and the new Upper 700 MHz D Block
> licensee assumes the construction and operation of the network.
>
> \(b\) If the Commission cancels or terminates the Upper 700 MHz D
> Block license, a fair market valuation of the shared wireless
> broadband network assets shall be performed immediately, pursuant to
> the fair market valuation methodology set forth in the NSA. In the
> event that the Upper 700 MHz D Block license is awarded to a new
> entity, the Public Safety Broadband Licensee's option to purchase the
> network and all network assets if and whenever the Upper 700 MHz D
> Block license is cancelled or terminated and its right of first
> refusal to purchase the network assets if and whenever such assets are
> otherwise to be sold shall be assigned to the new Upper 700 MHz D
> Block licensee and the new Network Assets Holder.
>
> **§ 27.1325 Resolution of disputes after grant of the Upper 700 MHz D
> Block License.**
>
> \(a\) The Upper 700 MHz D Block licensee, the Operating Company, the
> Network Assets Holder and the Public Safety Broadband Licensee may at
> any time bring a complaint to the Commission based on a claim that
> another party to the NSA has deviated from the terms of the NSA, or a
> petition for a declaratory ruling to resolve the proper interpretation
> of an NSA term or provision. The Commission also may at any time, on
> its own motion, determine to address any material breach or interpret
> any NSA term or provision.
>
> \(b\) The Commission shall have primary responsibility and
> jurisdiction for adjudicating disputes that arise following execution
> of the NSA. The Commission may, however, require the parties to first
> seek a settlement to the dispute or authorize the parties to resolve
> the dispute through litigation or other means. Breach of license
> terms, the NSA, or the Commission's rules may result in cancellation
> of the Upper 700 MHz D Block license, the Public Safety Broadband
> License, or both.
>
> \(c\) The Chiefs of the Public Safety and Homeland Security Bureau and
> the Wireless Telecommunications Bureau are delegated joint
> responsibility for adjudicating disputes.
>
> **§ 27.1327 Construction requirements; criteria for renewal.**
>
> \(a\) The Upper 700 MHz D Block licensee shall comply with the
> applicable construction requirements of §27.14.
>
> \(b\) The Upper 700 MHz D Block licensee shall comply with the
> applicable procedures and criteria for license renewal of §27.14.
>
> **§ 27.1330 Local public safety build-out and operation.**
>
> \(a\) The Upper 700 MHz D Block licensee and the Operating Company
> through its lease arrangements shall, except in the two limited
> circumstances set forth herein, have the exclusive right to build and
> operate the Shared Wireless Broadband Network.
>
> \(b\) *Rights to early build-out in areas with a build-out
> commitment*. In an area where the Upper 700 MHz D Block licensee has
> committed, in the NSA, to build out by a certain date, a public safety
> entity may, with the pre-approval of the Public Safety Broadband
> Licensee and subject to the requirements set forth herein, construct a
> broadband network in that area at its own expense so long as the
> network is capable of operating on the Shared Wireless Broadband
> Network and meets all the requirements and specifications of the
> network required under the NSA.
>
> \(1\) *Options for early build-out in areas with a build-out
> commitment*. In order to obtain authorization to construct a broadband
> network as set forth above, the requesting public safety entity must
> agree to one of the following:
>
> \(i\) to, on its own, or through the Public Safety Broadband Licensee
> acting on its behalf, construct the network at its own expense, and
> upon completion of construction transfer the network to the Upper 700
> MHz D Block licensee, which shall then integrate that network into the
> Shared Wireless Broadband Network constructed pursuant to the NSA; or
>
> \(ii\) to, in agreement with the Upper 700 MHz D Block licensee,
> provide all funds necessary for the Upper 700 MHz D Block licensee to
> complete the early construction of the network, including any and all
> additional resource and personnel costs, allowing the Upper 700 MHz D
> Block licensee at all times to own, operate, and manage the network as
> an integrated part of the Shared Wireless Broadband Network.
>
> \(2\) *Negotiation of amendment to NSA*. Under either early build out
> option set forth above, the Public Safety Broadband Licensee, the
> Upper 700 MHz D Block licensee, and the public safety entity must,
> prior to any construction, negotiate an amendment to the NSA regarding
> this part of the network, specifying ownership rights, fees, and other
> terms, which may be distinct from the analogous terms governing the
> Shared Wireless Broadband Network, and such amendment must be approved
> by the Commission.
>
> \(i\) Such amendment must provide the terms under which the Upper 700
> MHz D Block licensee shall receive full ownership rights and shall
> compensate the public safety entity (or the Public Safety Broadband
> Licensee, where appropriate) for the construction of the network; and
> shall, absent agreement to the contrary, provide for such transfer and
> compensation to occur prior to the scheduled build out date for such
> network in the NSA.
>
> \(ii\) Any right to compensation from the Upper 700 MHz D Block
> licensee related to such early build-out shall be limited to the cost
> that would have been incurred had the Upper 700 MHz D Block licensee
> constructed the network itself in accordance with the original terms
> and specifications of the NSA, as reasonably determined by the parties
> and negotiated as part of the required NSA amendment required above.
> Such costs shall not include costs attributable solely to advancing
> the date of construction or otherwise expediting the construction
> process.
>
> \(3\) *Operations*. The public safety entity may not commence
> operations on the network until ownership of the network has been
> transferred to the Upper 700 MHz D Block licensee. Further, no
> operations shall be allowed except those authorized and conducted
> pursuant to the authority of the Public Safety Broadband License.
>
> \(4\) *Attribution of early build-out to national benchmarks*. Upon
> completion of construction, transfer of ownership to the Upper 700 MHz
> D Block licensee, and compensation as required herein, if applicable,
> the Upper 700 MHz D Block licensee may include the network constructed
> pursuant to the early build-out provisions herein for purposes of
> determining whether it has met its national build-out benchmarks and
> the build-out requirements of the NSA.
>
> \(5\) *Rights to build out and operate in areas without a build-out
> commitment*. In areas for which the NSA does not require the Upper 700
> MHz D Block licensee to build out the Shared Wireless Broadband
> Network, a public safety entity may build out and operate a separate,
> exclusive network in the 700 MHz public safety broadband spectrum at
> any time, provided the public safety entity has received the written
> approval of the Public Safety Broadband Licensee and operates its
> independent network pursuant to a spectrum leasing arrangement into
> which the public safety entity has entered with the Public Safety
> Broadband Licensee.
>
> \(i\) Such leasing arrangement shall not require the approval or
> consent of the Upper 700 MHz D Block licensee; however, the Public
> Safety Broadband Licensee must provide the Upper 700 MHz D Block
> licensee with notice of the public safety entity's intent to construct
> in that area within 30 days of receipt of a request from a public
> safety entity seeking to exercise this option, and shall inform the
> Upper 700 MHz D Block licensee of the public safety entity's
> anticipated build-out date(s).
>
> \(ii\) Should the Upper 700 MHz D Block licensee, within 30 calendar
> days from receipt of notice of the public safety entity's intent to
> construct in that area, certify in writing to the Public Safety
> Broadband Licensee that it will build out the shared network in the
> area within a reasonable time of the anticipated build-out date(s), as
> determined by the Public Safety Broadband Licensee, the Public Safety
> Broadband Licensee shall not allow the public safety entity to build
> and operate its own separate exclusive network in that area, provided
> that the Upper 700 MHz D Block licensee and the Public Safety
> Broadband Licensee execute an amendment to the NSA indicating the
> Upper 700 MHz D Block licensee's commitment to build the network in
> that area. Such commitment shall become enforceable against the Upper
> 700 MHz D Block licensee as part of its overall build-out
> requirements.
>
> \(iii\) If the Upper 700 MHz D Block licensee does not exercise its
> option to commit to build out the network in the requested area within
> 30 calendar days of receipt of notice of the public safety entity's
> intent to construct in such area, the Public Safety Broadband Licensee
> and the public safety entity may proceed with a spectrum leasing
> arrangement, which must be filed with the Commission prior to the
> public safety entity commencing any operations. The spectrum leasing
> arrangement must take the form of a spectrum manager leasing
> arrangement under the rules specified in § 1.9020 of this chapter, and
> incorporate the following conditions:
>
> \(a\) The network must provide broadband operations;
>
> \(b\) The network must be fully interoperable with the Shared Wireless
> Broadband Network;
>
> \(c\) The network must be available for use by any public safety
> entity in the area;
>
> \(d\) The network must satisfy any other terms or conditions required
> by the Public Safety Broadband Licensee; and
>
> \(e\) The public safety entity must construct and place into operation
> its network within one year of the effective date of the spectrum
> manager leasing arrangement. If the public safety entity fails to
> place the network into operation within one year, the Public Safety
> Broadband Licensee shall terminate the spectrum leasing arrangement
> pursuant to § 1.9020(h)(3). The public safety entity may also seek
> extended implementation authority from the Commission pursuant to the
> requirements of § 90.629 of this Part.
>
> \(6\) Except as set forth herein, the separate network is not required
> to meet the other specifications of the Shared Wireless Broadband
> Network. Absent agreement of the public safety entity, the Public
> Safety Broadband Licensee, and the Upper 700 MHz D Block licensee, the
> separate network may not operate using any spectrum associated with
> the Upper 700 MHz D Block license.
>
> \(7\) The Public Safety Broadband Licensee must file with the
> Commission any spectrum manager leasing arrangement as specified in §
> 1.9020(e) of this chapter; such filing shall identify the public
> safety entity leasing the spectrum, the particular areas of spectrum
> leased as part of this build-out option, and the specific network
> infrastructure and equipment deployed on such leased spectrum.
>
> **§ 27.1333 Geographic partitioning, spectrum disaggregation, license
> assignment and transfer.**
>
> \(a\) The 700 MHz Upper D Block license may not be partitioned or
> disaggregated.
>
> \(b\) The 700 MHz Upper D Block licensee will be permitted to assign
> or transfer its licensee subject to Commission review and prior
> approval. The Upper 700 MHz D Block license assignment or transfer
> applications are precluded from overnight processing.
>
> **§ 27.1335 Prohibition on discontinuance of public safety
> operations.**
>
> The Upper 700 MHz D Block licensee, the Operating Company and the
> Network Assets Holder are prohibited from discontinuing or degrading
> the broadband network service provided to the Public Safety Broadband
> Licensee or to public safety entities unless either at the request of
> the public safety entity or entities in question or with the
> pre-approval of the Commission. The Upper 700 MHz D Block licensee
> shall notify the affected public safety entity or entities and the
> Public Safety Broadband Licensee at least 30 days prior to any
> unrequested discontinuance or degradation of network service.
>
> **§ 27.1340 Reporting obligations.**
>
> \(a\) The Upper 700 MHz D Block licensee and the Public Safety
> Broadband Licensee shall jointly file quarterly reports with the
> Commission. These reports shall include audited financial statements,
> how the specific requirements of public safety are being met, detailed
> information on the areas where broadband service has been deployed,
> which public safety entities are using the broadband network in each
> area of operation, what types of applications are in use in each area
> of operation, and the number of declared emergencies in each area of
> operation.
>
> \(b\) The Upper 700 MHz D Block licensee and Public Safety Broadband
> Licensee have joint responsibility to register the base station
> locations with the Commission, providing basic technical information,
> including geographic location.

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

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

> **§ 90.5 Other applicable rule parts.**
>
> \* \* \* \* \*
>
> \(k\) Part 27 contains rules relating to miscellaneous wireless
> communications services.
>
> \(l\) Part 51 contains rules relating to interconnection.
>
> \(m\) Part 68 contains technical standards for connection of private
> land mobile radio equipment to the public switched telephone network.
>
> \(n\) Part 101 governs the operation of fixed microwave services.

31. Section 90.7 is amended by adding the following definitions in
    alphabetical order to read as follows:

> **§ 90.7 Definitions.**
>
> \* \* \* \* \*
>
> *700 MHz Public/Private Partnership.* The public/private partnership
> established for the development and operation of a nationwide, shared
> interoperable wireless broadband network operating on the 758-763 MHz
> and 788-793 MHz bands and the 763-768 MHz and 793-798 MHz bands in
> accordance with the Commission's rules.
>
> \* \* \* \* \*
>
> *Network Assets Holder.* The Network Assets Holder is a Special
> Purpose Bankruptcy Remote Entity that is formed to hold the assets of
> the shared wireless broadband network associated with the 700 MHz
> Public/Private Partnership, in accordance with the terms of the
> Network Sharing Agreement, such other agreements as the Commission may
> require or allow, and the Commission's rules.
>
> \* \* \* \* \*
>
> *Network Sharing Agreement (NSA)*. An agreement entered into between
> the winning bidder, the Upper 700 MHz D Block licensee, the Network
> Assets Holder, the Operating Company, the Public Safety Broadband
> Licensee, and any other related entities that the Commission may
> require or allow regarding the shared wireless broadband network
> associated with the 700 MHz Public/Private Partnership that will
> operate on the 758-763 MHz and 788-793 MHz bands and the 763-768 MHz
> and 793-798 MHz bands.
>
> \* \* \* \* \*
>
> *Operating Company*. The Operating Company is a Special Purpose
> Bankruptcy Remote Entity that is formed to build and operate the
> shared wireless broadband network associated with the 700 MHz
> Public/Private Partnership, in accordance with the terms of the
> Network Sharing Agreement, such other agreements as the Commission may
> require or allow, and the Commission's rules.
>
> \* \* \* \* \*
>
> *Public Safety Broadband License*. The Public Safety Broadband License
> authorizes public safety broadband services in the 763-768 MHz and
> 793-798 MHz bands on a primary basis.
>
> \* \* \* \* \*
>
> *Public Safety Broadband Licensee*. The licensee of the Public Safety
> Broadband License in the 763-768 MHz and 793-798 MHz bands.
>
> \* \* \* \* \*
>
> *Shared Wireless Broadband Network*. Wireless broadband network
> associated with the 700 MHz Band Public/Private Partnership that
> operates on the 758-763 MHz and 788-793 MHz bands and the 763-768 MHz
> and 793-798 MHz bands pursuant to the terms of the Network Sharing
> Agreement, such other agreements as the Commission may require or
> allow, and the Commission's rules.
>
> \* \* \* \* \*
>
> *Special Purpose Bankruptcy Remote Entity.* A "special purpose entity"
> is a legal entity created for a special limited purpose, in this
> context primarily to hold the Upper 700 MHz D Block license or the
> network assets, or to conduct the construction or operation of the
> Shared Wireless Broadband Network associated with the 700 MHz
> Public/Private Partnership. A special purpose entity is "bankruptcy
> remote" if that entity is unlikely to become insolvent as a result of
> its own activities, is adequately insulated from the consequences of a
> related party's insolvency, and contains certain characteristics which
> enhance the likelihood that it will not become the subject of an
> insolvency proceeding.
>
> \* \* \* \* \*
>
> *Upper 700 MHz D Block license*. The Upper 700 MHz D Block license is
> the nationwide license associated with the 758-763 MHz and 788-793 MHz
> bands.
>
> \* \* \* \* \*
>
> *Upper 700 MHz D Block licensee*. The Special Purpose Bankruptcy
> Remote Entity to which the Upper 700 MHz D Block license must be
> transferred upon execution of the Network Sharing Agreement.
> References herein to the rights and obligations of the Upper 700 MHz D
> Block licensee include the exercise or discharge of such rights or
> obligations, respectively, by related entities as are provided for in
> the NSA or otherwise as authorized by the Commission.
>
> \* \* \* \* \*

32. Section 90.18 is added to read as follows:

> **§ 90.18 Public Safety 700 MHz Nationwide Broadband Network.**
>
> The 763-768/793-798 MHz band is dedicated to a broadband public safety
> communications system with a nationwide level of interoperability. A
> nationwide license for this spectrum is held by a single entity, the
> Public Safety Broadband Licensee, which must enter into the 700 MHz
> Public/Private Partnership with the licensee of the adjacent Upper 700
> MHz D Block license, pursuant to a Network Sharing Agreement and such
> other agreements as the Commission may require. The specific
> provisions relating to the 700 MHz Public/Private Partnership are set
> forth in subpart AA of this part and subpart N of Part 27. The Public
> Safety 700 MHz Nationwide Broadband Network is established in the
> Second Report and Order in PS Docket No. 06-229.

33. Section 90.20 is amended by revising the table in paragraph (c)(3)
    and paragraph (d)(77) to read as follows:

> **§ 90.20 Public Safety Pool.**
>
> \* \* \* \* \*
>
> \(c\) \* \* \*
>
> \(3\) Frequencies.
>
> Public Safety Pool Frequency Table

  ------------------ ----------------- ----------------- -----------------
  Frequency or band  Class of          Limitations       Coordinator
                     station(s)                          

  \*                 \*                \*                \*

  470-512            Base or mobile    68                

  763-775            Base, mobile      77                PX

  793-805            Mobile            77                PX

  806-817            do                69                

  \*                 \*                \*                \*
  ------------------ ----------------- ----------------- -----------------

> \(d\) \* \* \*
>
> \(77\) Subpart R of this part contains rules for assignment of
> channels in the 763-775 MHz and 793-805 MHz bands.

34. Section 90.155 is amended by revising paragraph (a) to read as
    follows:

> **§ 90.155 Time in which station must be placed in operation.**
>
> \(a\) All stations authorized under this part, except as provided in
> sections 90.528, 90.529, 90.629, 90.631(f), 90.665, 90.685, and
> 90.1209, must be placed in operation within twelve (12) months from
> the date of grant or the authorization cancels automatically and must
> be returned to the Commission.
>
> \* \* \* \* \*

35. Section 90.175 is amended by revising the title of paragraph (e),
    revising paragraphs (j) (10), (11) and (12) and adding a new
    paragraph (j)(18) to read as follows:

> **§ 90.175 Frequency coordination requirements.**
>
> \* \* \* \* \*
>
> \(e\) For frequencies between 470-512 MHz, 769-775/799-805 MHz,
> 806-824/851-869 MHz and 896-901/935-940 MHz:
>
> \* \* \* \* \*
>
> \(j\) \* \* \*
>
> \(10\) Applications for mobile stations operating in the 470-512 MHz
> band, 799-805 MHz band, or above 800 MHz if the frequency pair is
> assigned to a single system on an exclusive basis in the proposed area
> of operation.
>
> \(11\) Applications for add-on base stations in multiple licensed
> systems operating in the 470-512 MHz, 769-775 MHz band, or above 800
> MHz if the frequency pair is assigned to a single system on an
> exclusive basis.
>
> \(12\) Applications for control stations operating below 470 MHz,
> 769-775/799-805 MHz, or above 800 MHz and meeting the requirements of
> § 90.119(b).
>
> \* \* \* \* \*
>
> \(18\) Applications for base, mobile, or control stations in the
> 763-768 MHz and 793-798 MHz bands.

36. Section 90.176 is amended by revising the section title and revising
    the title in paragraph (c) to read as follows:

> **§ 90.176 Coordinator notification requirements on frequencies below
> 512 MHz or at 769-775/799-805 MHz**.
>
> \* \* \* \* \*
>
> \(c\) Frequencies in the 769-775/799-805 MHz band. \* \* \*
>
> \* \* \* \* \*

37. Section 90.179 is amended by revising paragraph (g) to read as
    follows:

> **§ 90.179 Shared use of radio stations.**
>
> \* \* \* \* \*
>
> \(g\) Notwithstanding paragraph (a) of this section, licensees
> authorized to operate radio systems on Public Safety Pool frequencies
> designated in § 90.20 may share their facilities with Federal
> Government entities on a non-profit, cost-shared basis. Such a sharing
> arrangement is subject to the provisions of paragraphs (b), (d), and
> (e) of this section, and § 2.103(c) concerning approval of the Public
> Safety Broadband Licensee for Federal operations in the 763-768 MHz
> and 793-798 MHz bands. State governments authorized to operate radio
> systems under § 90.529 may share the use of their systems (for public
> safety services not made commercially available to the public) with
> any entity that would be eligible for licensing under § 90.523 and
> Federal government entities.

38. Section 90.205 is amended by inserting a new paragraph (j),
    redesignating paragraphs (j) through (r) as paragraphs (k)
    through (s) and revising new paragraph (k) to read as follows:

> **§ 90.205 Power and antenna height limits**.
>
> \* \* \* \* \*
>
> \(j\) 763-775 MHz and 793-805 MHz. Power and height limitations are
> specified in §§ 90.541 and 90.542.
>
> \(k\) 806-824 MHz, 851-869 MHz, 896-901 MHz and 935-940 MHz. Power and
> height limitations are specified in § 90.635
>
> \* \* \* \* \*

39. Subpart R is amended by revising the subpart title to read as
    follows:

> **Subpart R -- Regulations Governing the Licensing and Use of
> Frequencies in the 763-775 and 793-805 MHz Bands**

40. The first sentence of Section 90.521 is amended to read as follows:

> **§ 90.521 Scope.**
>
> This subpart sets forth the regulations governing the licensing and
> operations of all systems operating in the 763-775 MHz and 793-805 MHz
> frequency bands. \* \* \*

41. Section 90.523 is amended by revising the introductory paragraph and
    adding a new paragraph (e) to read as follows:

> **§ 90.523 Eligibility.**
>
> This section implements the definition of public safety services
> contained in 47 U.S.C. § 337(f)(1). The following are eligible to hold
> Commission authorizations for systems operating in the 763-775 MHz and
> 793-805 MHz frequency bands:
>
> \* \* \* \* \*
>
> \(e\) The minimum eligibility requirements for the Public Safety
> Broadband Licensee in the 763-768 MHz and 793-798 MHz bands are as
> follows:
>
> \(1\) No commercial interest may be held in the Public Safety
> Broadband Licensee, and no commercial interest may participate in the
> management of the Public Safety Broadband Licensee;
>
> \(2\) The Public Safety Broadband Licensee must be a non-profit
> organization;
>
> \(3\) The Public Safety Broadband Licensee must be as broadly
> representative of the public safety radio user community as possible;
> and
>
> \(4\) The Public Safety Broadband Licensee must be in receipt of
> written certifications from no less than ten geographically diverse
> state and local governmental entities (the authorizing entities), with
> at least one certification from a state government entity and one from
> a local government entity, verifying that
>
> \(i\) they have authorized the Public Safety Broadband Licensee to use
> spectrum at 763-768 MHz and 793-798 MHz to provide the authorizing
> entities with public safety services; and
>
> \(ii\) the authorizing entities' primary mission is the provision of
> public safety services.

42. Section 90.525 is amended by revising paragraphs (a) and (b) to read
    as follows:

> **§ 90.525 Administration of interoperability channels**.
>
> \(a\) States are responsible for administration of the
> Interoperability channels in the 769-775 MHz and 799-805 MHz frequency
> bands. Base and control stations must be licensed individually. A
> public safety entity meeting the requirements of § 90.523 may operate
> mobile or portable units on the Interoperability channels in the
> 769-775 MHz and 799-805 MHz frequency bands without a specific
> authorization from the Commission provided it holds a Part 90 license.
> All persons operating mobile or portable units under this authority
> are responsible for compliance with Part 90 of these rules and other
> applicable federal laws.
>
> \(b\) License applications for Interoperability channels in the
> 769-775 MHz and 799-805 MHz frequency bands must be approved by a
> state-level agency or organization responsible for administering state
> emergency communications. States may hold the licenses for
> Interoperability channels or approve other qualified entities to hold
> such licenses. States may delegate the approval process for
> interoperability channels to another entity, such as regional planning
> committees.

43. Section 90.528 is added to read as follows:

> **§ 90.528 Public Safety Broadband License.**
>
> \(a\) The 763-768/793-798 MHz bands are allocated on a nationwide
> basis for public safety broadband operations and licensed to a single
> Public Safety Broadband Licensee. The 768-769/798-799 MHz bands also
> are licensed to the Public Safety Broadband Licensees as guard bands.
> The license area of the Public Safety Broadband License consists of
> the contiguous 48 states, Alaska, Hawaii, Gulf of Mexico, and the U.S.
> territories.
>
> \(b\) The Public Safety Broadband License authorizes construction and
> operation of base stations anywhere within the area authorized by the
> license, except as follows:
>
> \(1\) A station is required to be individually licensed if:
>
> \(i\) International agreements require coordination;
>
> \(ii\) Submission of an environmental assessment is required under §
> 1.1307 of this chapter; or
>
> \(iii\) The station would affect areas identified in § 1.924 of this
> chapter.
>
> \(2\) Any antenna structure that requires notification to the Federal
> Aviation Administration (FAA) must be registered with the Commission
> prior to construction under § 17.4 of this chapter.
>
> \(c\) Mobile and portable devices may operate without individual
> license under the authority of the Public Safety Broadband License.
>
> \(d\) The term of the Public Safety Broadband License shall not exceed
> ten years from February 17, 2009. The Public Safety Broadband Licensee
> is entitled to a renewal expectancy barring violations of law, rules
> or policy warranting denial of renewal.
>
> \(e\) The Public Safety Broadband License may not be partitioned or
> disaggregated.
>
> \(f\) The Public Safety Broadband Licensee may not voluntarily assign
> or transfer control of the Public Safety Broadband License.
>
> \(g\) *Quarterly reporting of financial and operational information*.
> The Public Safety Broadband Licensee shall submit, on a quarterly
> basis, a full financial accounting to the Commission, in a format to
> be set forth in the Network Sharing Agreement, and as approved by the
> Commission. Such quarterly financial reports shall be filed with the
> Commission, with a copy to the Chiefs of the Wireless
> Telecommunications and the Public Safety and Homeland Security
> Bureaus.

44. Section 90.531 is amended by revising the introductory paragraphs
    and paragraphs (a), (b) and (e), removing and reserving
    paragraphs (c) and (d)(2) and adding new paragraphs (f) and (g) to
    read as follows:

> **§ 90.531 Band plan.**
>
> This section sets forth the band plan for the 763-775 MHz and 793-805
> MHz public safety bands.
>
> \(a\) *Base and mobile use*. The 763-775 MHz band may be used for
> base, mobile or fixed (repeater) transmissions. The 793-805 MHz band
> may be used only for mobile or fixed (control) transmissions.
>
> \(b\) *Narrowband segments*. There are two band segments that are
> designated for use with narrowband emissions. Each of these narrowband
> segments is divided into 960 channels having a channel size of 6.25
> kHz as follows:
>
> \-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Frequency range Channel Nos.

> \-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--
>
> 769-775 MHz\...\...\...\...\...\...\...\...\...\..... 1-960
>
> 799-805 MHz\...\...\...\...\...\...\...\...\...\..... 961-1920
>
> \-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--
>
> \* \* \* \* \*
>
> \(c\) \[Reserved\]
>
> \(d\) \* \* \*
>
> (d)(1) \* \* \*
>
> (d)(2) \[Reserved\]
>
> \* \* \* \* \*
>
> \(f\) *Internal guard band*. The internal guard band (768-769/798-799
> MHz) is reserved.
>
> \(g\) *Broadband*. The 763-768 MHz and 793-798 MHz bands are allocated
> for broadband communications pursuant to the Public Safety Broadband
> License.

45. Section 90.533 is amended by revising the section to read as
    follows:

> **§ 90.533 Transmitting sites near the U.S./Canada or U.S./Mexico
> border**.
>
> This section applies to each license to operate one or more public
> safety transmitters in the 763-775 MHz and 793-805 MHz bands, at a
> location or locations North of Line A (see § 90.7) or within 120
> kilometers (75 miles) of the U.S.-Mexico border, until such time as
> agreements between the government of the United States and the
> government of Canada or the government of the United States and the
> government of Mexico, as applicable, become effective governing border
> area non-broadcast use of these bands. Public safety licenses are
> granted subject to the following conditions:
>
> \(a\) Public safety transmitters operating in the 763-775 MHz and
> 793-805 MHz bands must conform to the limitations on interference to
> Canadian television stations contained in agreement(s) between the
> United States and Canada for use of television channels in the border
> area.
>
> \(b\) Public safety facilities must accept any interference that may
> be caused by operations of UHF television broadcast transmitters in
> Canada and Mexico.
>
> \(c\) Conditions may be added during the term of the license, if
> required by the terms of international agreements between the
> government of the United States and the government of Canada or the
> government of the United States and the government of Mexico, as
> applicable, regarding non-broadcast use of the 763-775 MHz and 793-805
> MHz bands.

46. Section 90.535 is amended by revising the introductory paragraph and
    paragraph (a) to read as follows:

> **§ 90.535 Modulation and spectrum usage efficiency requirements.**
>
> Transmitters designed to operate in 769-775 MHz and 799-805 MHz
> frequency bands must meet the following modulation standards:
>
> \(a\) All transmitters in the 769-775 MHz and 799-805 MHz frequency
> bands must use digital modulation. Mobile and portable transmitters
> may have analog modulation capability only as a secondary mode in
> addition to its primary digital mode. Mobile and portable transmitters
> that only operate on the low power channels designated in §§
> 90.531(b)(3), 90.531(b)(4), are exempt from this digital modulation
> requirement.
>
> \* \* \* \* \*

47. Section 90.537 is amended by revising paragraph (a) to read as
    follows:

> **§ 90.537 Trunking requirement.**
>
> \(a\) General use channels. All systems using six or more narrowband
> channels in the 769-775 MHz and 799-805 MHz frequency bands must be
> trunked systems, except for those described in paragraph (b) of this
> section.
>
> \* \* \* \* \*

48. Section 90.539 is amended by revising the introductory paragraph to
    read as follows:

> **§ 90.539 Frequency stability.**
>
> Transmitters designed to operate in 769-775 MHz and 799-805 MHz
> frequency bands must meet the frequency stability requirements in this
> section.
>
> \* \* \* \* \*

49. Section 90.541 is amended by revising the introductory paragraph to
    read as follows:

> **§ 90.541 Transmitting power limits.**
>
> The transmitting power of base, mobile, portable and control stations
> operating in the 769-775 MHz and 799-805 MHz frequency bands must not
> exceed the maximum limits in this section, and must also comply with
> any applicable effective radiated power limits in § 90.545.
>
> \* \* \* \* \*

50. Section 90.542 is added to read as follows:

> **§ 90.542 Broadband transmitting power limits**.
>
> \(a\) The following power limits apply to the 763-768/793-798 MHz
> band:
>
> \(1\) Fixed and base stations transmitting a signal in the 763-768 MHz
> band with an emission bandwidth of 1 MHz or less must not exceed an
> ERP of 1000 watts and an antenna height of 305 m HAAT, except that
> antenna heights greater than 305 m HAAT are permitted if power levels
> are reduced below 1000 watts ERP in accordance with Table 1 of this
> section.
>
> \(2\) Fixed and base stations located in a county with population
> density of 100 or fewer persons per square mile, based upon the most
> recently available population statistics from the Bureau of the
> Census, and transmitting a signal in the 763-768 MHz band with an
> emission bandwidth of 1 MHz or less must not exceed an ERP of 2000
> watts and an antenna height of 305 m HAAT, except that antenna heights
> greater than 305 m HAAT are permitted if power levels are reduced
> below 2000 watts ERP in accordance with Table 2 of this section.
>
> \(3\) Fixed and base stations transmitting a signal in the 763-768 MHz
> band with an emission bandwidth greater than 1 MHz must not exceed an
> ERP of 1000 watts/MHz and an antenna height of 305 m HAAT, except that
> antenna heights greater than 305 m HAAT are permitted if power levels
> are reduced below 1000 watts/MHz ERP accordance with Table 3 of this
> section.
>
> \(4\) Fixed and base stations located in a county with population
> density of 100 or fewer persons per square mile, based upon the most
> recently available population statistics from the Bureau of the
> Census, and transmitting a signal in the 763-768 MHz band with an
> emission bandwidth greater than 1 MHz must not exceed an ERP of 2000
> watts/MHz and an antenna height of 305 m HAAT, except that antenna
> heights greater than 305 m HAAT are permitted if power levels are
> reduced below 2000 watts/MHz ERP in accordance with Table 4 of this
> section.
>
> \(5\) Licensees of fixed or base stations transmitting a signal in the
> 763-768 MHz band at an ERP greater than 1000 watts must comply with
> the provisions set forth in paragraph (b).
>
> \(6\) Control stations and mobile stations transmitting in the 763-768
> MHz band and the 793-798 MHz band are limited to 30 watts ERP.
>
> \(7\) Portable stations (hand-held devices) transmitting in the
> 763-768 MHz band and the 793-798 MHz band are limited to 3 watts ERP.
>
> \(8\) For transmissions in the 763-768 MHz and 793-798 MHz bands,
> licensees may employ equipment operating in compliance with either of
> the following measurement techniques:
>
> \(i\) The maximum composite transmit power shall be measured over any
> interval of continuous transmission using instrumentation calibrated
> in terms of RMS-equivalent voltage. The measurement results shall be
> properly adjusted for any instrument limitations, such as detector
> response times, limited resolution bandwidth capability when compared
> to the emission bandwidth, etc., so as to obtain a true maximum
> composite measurement for the emission in question over the full
> bandwidth of the channel.
>
> \(ii\) A Commission-approved average power technique.

+------------------------------------+---------------------------------+
| **Table 1 - Permissible Power and  |                                 |
| Antenna Heights for Base and Fixed |                                 |
| in the 763-768 MHz Band            |                                 |
| Transmitting a Signal with an      |                                 |
| Emission Bandwidth of 1 MHz or     |                                 |
| Less**                             |                                 |
+------------------------------------+---------------------------------+
| **Antenna height (AAT) in meters   | **Effective radiated power      |
| (feet)**                           | (ERP)**                         |
|                                    |                                 |
|                                    | **(watts)**                     |
+------------------------------------+---------------------------------+
| Above 1372 (4500)                  | 65                              |
+------------------------------------+---------------------------------+
| Above 1220 (4000) To 1372 (4500)   | 70                              |
+------------------------------------+---------------------------------+
| Above 1067 (3500) To 1220 (4000)   | 75                              |
+------------------------------------+---------------------------------+
| Above 915 (3000) To 1067 (3500)    | 100                             |
+------------------------------------+---------------------------------+
| Above 763 (2500) To 915 (3000)     | 140                             |
+------------------------------------+---------------------------------+
| Above 610 (2000) To 763 (2500)     | 200                             |
+------------------------------------+---------------------------------+
| Above 458 (1500) To 610 (2000)     | 350                             |
+------------------------------------+---------------------------------+
| Above 305 (1000) To 458 (1500)     | 600                             |
+------------------------------------+---------------------------------+
| Up to 305 (1000)                   | 1000                            |
+------------------------------------+---------------------------------+

+------------------------------------+---------------------------------+
| **Table 2 -- Permissible Power and |                                 |
| Antenna Heights for Base and       |                                 |
| Fixed**                            |                                 |
|                                    |                                 |
| **Stations in the 763-768 MHz Band |                                 |
| Transmitting a Signal with an      |                                 |
| Emission Bandwidth of 1 MHz or     |                                 |
| Less**                             |                                 |
+------------------------------------+---------------------------------+
| **Antenna height (AAT) in meters   | **Effective radiated power      |
| (feet)**                           | (ERP)**                         |
|                                    |                                 |
|                                    | **(watts)**                     |
+------------------------------------+---------------------------------+
| Above 1372 (4500)                  | 130                             |
+------------------------------------+---------------------------------+
| Above 1220 (4000) To 1372 (4500)   | 140                             |
+------------------------------------+---------------------------------+
| Above 1067 (3500) To 1220 (4000)   | 150                             |
+------------------------------------+---------------------------------+
| Above 915 (3000) To 1067 (3500)    | 200                             |
+------------------------------------+---------------------------------+
| Above 763 (2500) To 915 (3000)     | 280                             |
+------------------------------------+---------------------------------+
| Above 610 (2000) To 763 (2500)     | 400                             |
+------------------------------------+---------------------------------+
| Above 458 (1500) To 610 (2000)     | 700                             |
+------------------------------------+---------------------------------+
| Above 305 (1000) To 458 (1500)     | 1200                            |
+------------------------------------+---------------------------------+
| Up to 305 (1000)                   | 2000                            |
+------------------------------------+---------------------------------+

  ------------------------------------- ---------------------------------
  **Table 3 -- Permissible Power and    
  Antenna Heights for Base and Fixed    
  Stations in the 763-768 MHz Band      
  Transmitting a Signal with an         
  Emission Bandwidth Greater than 1     
  MHz**                                 

  **Antenna height (AAT) in meters      **Effective radiated power (ERP)
  (feet)**                              per MHz (watts/MHz)**

  Above 1372 (4500)                     65

  Above 1220 (4000) To 1372 (4500)      70

  Above 1067 (3500) To 1220 (4000)      75

  Above 915 (3000) To 1067 (3500)       100

  Above 763 (2500) To 915 (3000)        140

  Above 610 (2000) To 763 (2500)        200

  Above 458 (1500) To 610 (2000)        350

  Above 305 (1000) To 458 (1500)        600

  Up to 305 (1000)                      1000
  ------------------------------------- ---------------------------------

  ------------------------------------- ---------------------------------
  **Table 4 -- Permissible Power and    
  Antenna Heights for Base and Fixed    
  Stations in the 763-768 MHz Band      
  Transmitting a Signal with an         
  Emission Bandwidth Greater than 1     
  MHz**                                 

  **Antenna height (AAT) in meters      **Effective radiated power (ERP)
  (feet)**                              per MHz (watts/MHz )**

  Above 1372 (4500)                     130

  Above 1220 (4000) To 1372 (4500)      140

  Above 1067 (3500) To 1220 (4000)      150

  Above 915 (3000) To 1067 (3500)       200

  Above 763 (2500) To 915 (3000)        280

  Above 610 (2000) To 763 (2500)        400

  Above 458 (1500) To 610 (2000)        700

  Above 305 (1000) To 458 (1500)        1200

  Up to 305 (1000)                      2000
  ------------------------------------- ---------------------------------

> \(b\) For base and fixed stations operating in the 763-768 MHz band in
> accordance with the provisions of paragraph (a)(5) of this section,
> the power flux density that would be produced by such stations through
> a combination of antenna height and vertical gain pattern must not
> exceed 3000 microwatts per square meter on the ground over the area
> extending to 1 km from the base of the antenna mounting structure.

51. Section 90.543 is amended by revising the introductory paragraph,
    deleting the two tables in paragraph (a) concerning "150 kHz"
    requirements, revising paragraph (b)(1), inserting a new
    paragraph (e) and revising and redesignating paragraphs (e) and (f)
    as paragraphs (f) and (g).

> **§ 90.543 Emission limitations.**
>
> Transmitters designed to operate in 769-775 MHz and 799-805 MHz
> frequency bands must meet the emission limitations in paragraphs (a)
> through (d) of this section. Transmitters operating in 763-768 MHz and
> 793-798 MHz bands must meet the emission limitations in (e) of this
> section.
>
> \* \* \* \* \*
>
> (b)(1) *Setting reference level*. Set transmitter to maximum output
> power. Using a spectrum analyzer capable of ACP measurements, set the
> measurement bandwidth to the channel size. For example, for a 6.25 kHz
> transmitter set the measurement bandwidth to 6.25 kHz. Set the
> frequency offset of the measurement bandwidth to zero and adjust the
> center frequency of the instrument to the assigned center frequency to
> measure the average power level of the transmitter. Record this power
> level in dBm as the "reference power level."
>
> \* \* \* \* \*
>
> \(e\) For operations in the 763-768 MHz and the 793-798 MHz bands, the
> power of any emission outside the licensee's frequency band(s) of
> operation shall be attenuated below the transmitter power (P) within
> the licensed band(s) of operation, measured in watts, in accordance
> with the following:
>
> \(1\) On all frequencies between 769-775 MHz and 799-805 MHz, by a
> factor not less than 76 + 10 log (P) dB in a 6.25 kHz band segment,
> for base and fixed stations.
>
> \(2\) On all frequencies between 769-775 MHz and 799-805 MHz, by a
> factor not less than 65 + 10 log (P) dB in a 6.25 kHz band segment,
> for mobile and portable stations.
>
> \(3\) Compliance with the provisions of paragraphs (e)(1) and (2) of
> this section is based on the use of measurement instrumentation such
> that the reading taken with any resolution bandwidth setting should be
> adjusted to indicate spectral energy in a 6.25 kHz segment.
>
> \(f\) For operations in the 763-775 MHz and 793-805 MHz bands, all
> emissions including harmonics in the band 1559-1610 MHz shall be
> limited to -70 dBW/MHz equivalent isotropically radiated power (EIRP)
> for wideband signals, and -80 dBW EIRP for discrete emissions of less
> than 700 Hz bandwidth. For the purpose of equipment authorization, a
> transmitter shall be tested with an antenna that is representative of
> the type that will be used with the equipment in normal operation.
>
> \(g\) When an emission outside of the authorized bandwidth causes
> harmful interference, the Commission may, at its discretion, require
> greater attenuation than specified in this section.

52. Section 90.547 is amended by revising paragraph (a) to read as
    follows:

> **§ 90.547 Narrowband interoperability channel capability
> requirement.**
>
> \(a\) Except as noted in this section, mobile and portable
> transmitters operating on narrowband channels in the 769-775 MHz and
> 799-805 MHz frequency bands must be capable of operating on all of the
> designated nationwide narrowband Interoperability channels pursuant to
> the standards specified in this part.
>
> \* \* \* \* \*

53. Section 90.548 is amended by revising paragraph (a) to read as
    follows:

> **§ 90.548 Interoperability technical standards.**
>
> \(a\) Transmitters operating on those narrowband channels in the
> 769-775 and 799-805 MHz band designated for interoperability (See §
> 90.531) shall conform to the following technical standards:
>
> \* \* \* \* \*

54. Section 90.551 is amended to read as follows:

> **§ 90.551 Construction requirements.**
>
> Each station authorized under this subpart to operate in the 769-775
> MHz and 799-805 MHz frequency bands must be constructed and placed
> into operation within 12 months from the date of grant of the
> authorization, except for State channels. However, licensees may
> request a longer construction period, up to but not exceeding 5 years,
> pursuant to § 90.155(b). State channels are subject to the build-out
> requirements in § 90.529.

55. Add the following new subpart AA to Part 90 to read as follows:

> **SUBPART AA --- 700 MHz PUBLIC/PRIVATE PARTNERSHIP**
>
> **§ 90.1401 Purpose and scope.**
>
> The purpose of this subpart, in conjunction with subpart N of Part 27,
> is to establish rules and procedures relating to the 700 MHz
> Public/Private Partnership entered between the winning bidder for the
> Upper 700 MHz D Block license, the Upper 700 MHz D Block licensee, the
> Network Assets Holder, the Operating Company, the Public Safety
> Broadband Licensee, and other related entities as the Commission may
> require or allow. Pursuant to this partnership, the Upper 700 MHz D
> Block licensee and the Operating Company will be responsible for
> constructing and operating a nationwide, shared interoperable wireless
> broadband network used to provide a commercial service and a broadband
> network service for public safety entities. The shared network assets
> will be held by the Network Assets Holder, and the Shared Wireless
> Broadband Network will operate on both the commercial spectrum
> licensed to the Upper 700 D Block MHz licensee and the public safety
> broadband spectrum licensed to the Public Safety Broadband Licensee.
> This subpart of the Part 90 rules sets forth specific provisions
> relating to the Public Safety Broadband License and the Public Safety
> Broadband Licensee with respect to the 700 MHz Public/Private
> Partnership. Subpart N of the Part 27 rules sets forth related
> provisions applicable to the Upper 700 MHz D Block license, the Upper
> 700 MHz D Block licensee and other related entities as the Commission
> may require or allow, with respect to the 700 MHz Public/Private
> Partnership.
>
> **§ 90.1403 Public Safety Broadband License conditions.**
>
> \(a\) The Public Safety Broadband Licensee shall comply with all of
> the applicable requirements set forth in this subpart and shall comply
> with the terms of the Network Sharing Agreement and such other
> agreements as the Commission may require or allow.
>
> \(b\) The responsibilities of the Public Safety Broadband Licensee
> shall include the following:
>
> \(1\) Negotiation of the NSA and such other agreements as the
> Commission may require or allow with the winning bidder at auction for
> the Upper 700 MHz Band D Block license, pursuant to the requirements
> set forth in § 90.1410.
>
> \(2\) General administration of access to the 763-768 MHz and 793-798
> MHz bands by individual public safety entities, including assessment
> of usage fees and related frequency coordination duties.
>
> \(3\) Regular interaction with and promotion of the needs of the
> public safety entities with respect to access and use of the 763-768
> MHz and 793-798 MHz bands, within the technical and operational
> confines of the NSA.
>
> \(4\) Dealings with equipment vendors on its own or in partnership
> with the Upper 700 MHz D Block licensee, as appropriate, to achieve
> and pass on the benefits of economies of scale concerning network and
> subscriber equipment and applications.
>
> \(5\) Sole authority, which cannot be waived in the NSA, to approve,
> in consultation with the Upper 700 MHz D Block licensee, equipment and
> applications for use by public safety entities on the public safety
> broadband network. State or local entities may seek review of a
> decision by the Public Safety Broadband Licensee not to permit certain
> equipment or applications, or particular specifications for equipment
> or applications, from the Chief, Public Safety and Homeland Security
> Bureau.
>
> \(6\) Coordination of stations operating on 700 MHz public safety
> broadband spectrum with 700 MHz public safety narrowband stations,
> including management of the internal public safety guard band.
>
> \(7\) Oversight and implementation of the relocation of narrowband
> public safety operations in television channels 63 and 68, and the
> upper one megahertz of channels 64 and 69.
>
> \(8\) Exercise of sole discretion, pursuant to § 2.103 of this
> chapter, whether to permit Federal public safety agency use of the
> public safety broadband spectrum, with any such use subject to the
> terms and conditions of the NSA.
>
> \(9\) Review of requests for waiver submitted by public safety
> entities to conduct wideband operations pursuant to the procedures and
> restrictions in connection with such waivers as described in §
> 90.1432.
>
> **§ 90.1405 Shared Wireless Broadband Network.**
>
> The Shared Wireless Broadband Network developed by the 700 MHz
> Public/Private Partnership must be designed to meet requirements
> associated with a nationwide, public safety broadband network. At a
> minimum, the network must incorporate the following features:
>
> \(a\) Design for operation over a broadband technology platform that
> provides mobile voice, video, and data capability that is seamlessly
> interoperable across public safety local and state agencies,
> jurisdictions, and geographic areas, and which includes current and
> evolving state-of-the-art technologies reasonably made available in
> the commercial marketplace with features beneficial to the public
> safety community.
>
> \(b\) Sufficient signal coverage to ensure reliable operation
> throughout the service area consistent with typical public safety
> communications systems.
>
> \(c\) Sufficient robustness to meet the reliability and performance
> requirements of public safety.
>
> \(d\) Sufficient capacity to meet the needs of public safety.
>
> \(e\) Security and encryption consistent with state-of-the-art
> technologies.
>
> \(f\) A mechanism to automatically prioritize public safety
> communications over commercial uses on a real-time basis consistent
> with the requirements of § 90.1407(c).
>
> \(g\) Operational capabilities consistent with features and
> requirements that are typical of current and evolving state-of-the-art
> public safety systems.
>
> \(h\) Operational control of the network by the Public Safety
> Broadband Licensee to the extent necessary to ensure that public
> safety requirements are met.
>
> **§ 90.1407 Spectrum use in the network.**
>
> \(a\) *Spectrum use.* The Shared Wireless Broadband Network will
> operate using spectrum associated with the Upper 700 MHz D Block
> license in the 758-763 MHz and 788-793 MHz bands and the Public Safety
> Broadband License in the adjacent 763-768 MHz and 793-798 MHz bands.
>
> \(b\) *Access to spectrum in the 763-768 MHz and 793-798 MHz bands.*
> The Public Safety Broadband Licensee which holds the Public Safety
> Broadband License, pursuant to Part 90 rules, must lease the spectrum
> rights associated with this license, pursuant to a spectrum manager
> leasing arrangement set forth in Part 1 subpart X, to the Upper 700
> MHz D Block licensee and the Operating Company for the entire
> remaining term of the Public Safety Broadband License to effectuate
> the 700 MHz Public/Private Partnership. The Upper 700 MHz D Block
> licensee and the Operating Company, are the only entities that are
> eligible to lease the spectrum usage rights associated with the Public
> Safety Broadband License to operate on the 763-768 and 793-798 MHz
> bands. If the Upper 700 MHz D Block license is cancelled, this
> spectrum leasing arrangement will automatically terminate.
>
> \(c\) *Commercial operations in the* *763-768 MHz and 793-798 MHz
> bands.* Commercial operations in the 763-768 MHz and 793-798 MHz bands
> through the spectrum manager leasing arrangement shall not cause
> harmful interference to primary users (*i.e.,* public safety users)
> and cannot claim protection from harmful interference from the primary
> public safety operations in the 763-768 MHz and 793-798 MHz bands. The
> network providing commercial operations in the 763-768 MHz and 793-798
> MHz bands through the spectrum manager leasing arrangement must be
> designed to automatically assign priority to public safety users, to
> the exclusion and/or immediate preemption of any commercial use on a
> dynamic, real-time priority basis, and to guarantee that public safety
> users suffer no harmful interference or interruption or degradation of
> service due to commercial operations in the 763-768 MHz and 793-798
> MHz bands.
>
> **§ 90.1408 Organization and structure of the 700 MHz
> Public**/**Private Partnership.**
>
> \(a\) The Upper 700 MHz D Block licensee and the Network Assets Holder
> and such other related entities as the Commission may require or allow
> shall be formed by the winning bidder of the Upper 700 MHz D Block
> license. The Upper 700 MHz D Block licensee, the Network Assets
> Holder, and related entities as the Commission may require or allow
> must be Special Purpose Bankruptcy Remote Entities formed to hold the
> license, to hold the shared network assets, or for such other purpose
> as the Commission may require or allow. The winning bidder of the
> Upper 700 MHz D Block license shall also form the Operating Company,
> which must also be a Special Purpose Bankruptcy Remote Entity. Upon
> issuance of the Upper 700 MHz D Block license, the winning bidder will
> assign all of its rights and obligations under the NSA to the Upper
> 700 MHz D Block licensee, Network Assets Holder, the Operating
> Company, and any other related entities that the Commission may
> require or allow.
>
> \(b\) The Upper 700 MHz D Block licensee and other related entities as
> the Commission may require or allow shall have the obligation to build
> out the Shared Wireless Broadband Network, as provided for in the NSA
> or otherwise as authorized by the Commission.
>
> **§ 90.1410 Network Sharing Agreement.**
>
> The relationship between the Upper 700 MHz D Block licensee, the
> Public Safety Broadband Licensee, and related entities as the
> Commission may require or allow will be governed by the Network
> Sharing Agreement (NSA) and such other separate agreements as the
> Commission may require or allow that are negotiated and entered into
> between the parties. The NSA must, at a minimum, include the following
> terms:
>
> \(a\) All of the substantive rights and obligations of the parties
> relating to the NSA, as established by the Commission concerning the
> 700 MHz Public/Private Partnership.
>
> \(b\) Network specifications that comply with § 27.1305.
>
> \(c\) The definition of "emergency" for purposes of emergency priority
> access.
>
> \(d\) All service fees to be imposed for services to public safety,
> including fees for normal network service and fees for priority access
> to the D Block spectrum in an emergency.
>
> \(e\) A detailed build-out schedule consistent with § 27.1327,
> including coverage of major highways and interstates, as well as
> incorporated communities with a population in excess of 3,000.
>
> \(f\) The right of the Public Safety Broadband Licensee to determine
> and approve the specifications of public safety equipment used on the
> network and the right to purchase its own subscriber equipment from
> any vendor it chooses, to the extent such specifications and equipment
> are consistent with reasonable network control requirements
> established in the NSA.
>
> \(g\) The Upper 700 MHz D Block licensee must offer at least one
> handset suitable for public safety use that includes a seamlessly
> integrated satellite solution pursuant to the terms, conditions, and
> timeframes set forth in the NSA.
>
> \(h\) Any major modification of the terms of the NSA, related
> agreements or documents, or such other agreements as the Commission
> may require or allow must be submitted to the Commission for prior
> approval. All other modifications must be submitted to the Chiefs of
> the Wireless Telecommunications Bureau and the Public Safety and
> Homeland Security Bureau for prior approval.
>
> \(i\) The NSA shall require, in a separate agreement, the granting of
> an irrevocable and assignable right of first refusal to purchase the
> network assets if and whenever such assets are otherwise to be sold
> and an irrevocable and assignable option in favor of the Public Safety
> Broadband Licensee to purchase the network and all network assets if
> and whenever the Upper 700 MHz D Block license is cancelled or
> terminated, by reason of default or for any other reason, for a
> consideration equivalent to the fair market value of the tangible and
> intangible assets sold. This right and option shall be senior to, and
> have priority over, any other right, claim, or interest in or to the
> network or the network assets. The NSA shall also include a fair
> market valuation methodology to determine the fair market value of the
> shared wireless broadband network assets.
>
> \(j\) The NSA must have a term, not to exceed 10 years from February
> 17, 2009, that coincides with the terms of the Upper 700 MHz D Block
> license and the Public Safety Broadband License.
>
> **§ 90.1415 Establishment, execution, and application of the Network
> Sharing Agreement.**
>
> The following requirements and processes relate to the establishment,
> execution, and application of the NSA:
>
> \(a\) *Approval of NSA as pre-condition for granting the D Block
> License.* The Public Safety Broadband Licensee must negotiate an NSA
> and such other agreements as the Commission may require or allow with
> the winning bidder for the Upper 700 MHz D Block license. The NSA and
> related agreements or documents must be approved by the Commission and
> then executed by the relevant parties. Parties to the NSA must also
> include the Upper 700 MHz D Block licensee, the Network Assets Holder,
> and the Operating Company, as these entities are defined in § 90.7.
>
> \(b\) *Requirement of negotiation.* Negotiation of an NSA between the
> winning bidder for the Upper 700 MHz D Block license and the Public
> Safety Broadband Licensee must commence by the date the winning bidder
> files its long form application or the date on which the Commission
> designates the Public Safety Broadband Licensee, whichever is later,
> and must conclude within six months of that date. Parties to this
> negotiation are required to negotiate in good faith. Two members of
> the Commission staff, one from the Wireless Telecommunications Bureau
> and one from the Public Safety and Homeland Security Bureau, shall be
> present at all stages of the negotiation as neutral observers.
>
> \(c\) *Reporting requirements.* Beginning three months from the
> triggering of the six-month negotiation period, the Public Safety
> Broadband Licensee and the winning bidder for the Upper 700 MHz D
> Block license must jointly provide detailed reports, on a monthly
> basis and subject to a request for confidential treatment, on the
> progress of the negotiations throughout the remainder of the
> negotiations. These reports must include descriptions of all material
> issues that the parties have yet to resolve.
>
> \(d\) *Submission of final agreement.* As soon as the parties have
> reached an agreement on all the terms of the NSA, related agreements
> or documents, and such other agreements as the Commission may require
> or allow but not later than five business days after the six-month
> period for negotiation has expired, they must submit the NSA together
> with all agreements and related documents referenced in the NSA, for
> review and approval by the full Commission. The Commission will act on
> the NSA within 60 days of receipt. The Commission may approve the NSA
> in its entirety, approve with modifications, or require the parties to
> address additional terms or re-draft existing terms within a specified
> timeframe. After the NSA is approved, the parties must execute the NSA
> and such other agreements as the Commission may require or allow and
> submit executed copies to the Commission within 10 business days of
> approval.
>
> \(e\) *Submission of disputed issues.* If the parties have not reached
> agreement on all terms of the NSA and related agreements by the end of
> the six-month period, they must notify the Commission not later than
> five business days after the expiration of the six-month period of the
> terms on which they have agreed, the nature of the remaining issues,
> each party's position on each issue, whether additional negotiation is
> likely to produce an agreement, and, if so, a proposed deadline for
> reaching agreement on the NSA. Authority is delegated jointly to the
> Chiefs of the Wireless Telecommunications Bureau and the Public Safety
> and Homeland Security Bureau to resolve any remaining disputes.
>
> \(f\) *Resolution of disputes.* Actions to resolve disputes may
> include, but are not limited to: (1) granting additional time for
> negotiation; (2) issuing a decision on the disputed issues and
> requiring the submission of a draft agreement consistent with the
> decision; (3) directing the parties to further brief the remaining
> issues in full for immediate Commission decision; and/or (4) immediate
> denial of the long-form application filed by the winning bidder for
> the Upper 700 MHz D Block license.
>
> \(g\) *Default by winning bidder for Upper 700 MHz D Block license.*
> If the winning bidder for the Upper 700 MHz D Block fails to comply
> with negotiation or dispute resolution requirements or fails to
> execute a Commission-approved NSA, its long form application will be
> denied. If the long form application of the winning bidder of the
> Upper 700 MHz D Block license is denied for any reason, including as a
> consequence of an action taken pursuant to subsections (e) and (f), it
> will be deemed to have defaulted under §1.2109(c) and will be liable
> for the default payment specified in § 1.2104(g).
>
> **§ 90.1420 Failure to comply with the NSA or the Commission's
> Rules.**
>
> \(a\) Failure to comply with the Commission's rules or the terms of
> the NSA may warrant cancelling the Public Safety Broadband License.
> The potential remedies also include, but are not limited to, assigning
> the license to another entity, directing the Public Safety Broadband
> Licensee to transfer the assignable right to purchase the assets at
> fair market value, ordering specific performance, or ordering removal
> and replacement of individual officers, directors or member
> organizations of the Public Safety Broadband Licensee.
>
> \(b\) If the Commission cancels or terminates the Upper 700 MHz D
> Block license, a fair market valuation of the shared wireless
> broadband network assets shall be performed immediately, pursuant to
> the fair market valuation methodology set forth in the NSA. In the
> event that the Upper 700 MHz D Block license is awarded to a new
> entity, the Public Safety Broadband Licensee's option to purchase the
> network and all network assets if and whenever the Upper 700 MHz D
> Block license is cancelled or terminated and its right of first
> refusal to purchase the network assets if and whenever such assets are
> otherwise to be sold shall be assigned to the new Upper 700 MHz D
> Block licensee and the new Network Assets Holder.
>
> **§ 90.1425 Resolution of disputes after grant of the Upper 700 MHz D
> Block License.**
>
> \(a\) The Public Safety Broadband Licensee, the Operating Company, the
> Network Assets Holder, and the Upper 700 MHz D Block licensee may at
> any time bring a complaint to the Commission based on a claim that
> another party to the NSA has deviated from the terms of the NSA, or a
> petition for a declaratory ruling to resolve the proper interpretation
> of an NSA term or provision. The Commission also may at any time, on
> its own motion, determine to address any material breach or interpret
> any NSA term or provision.
>
> \(b\) The Commission shall have primary responsibility and
> jurisdiction for adjudicating disputes that arise following execution
> of the NSA. The Commission may, however, require the parties to first
> seek a settlement to the dispute or authorize the parties to resolve
> the dispute through litigation or other means. Breach of license
> terms, the NSA, or the Commission's rules may result in cancellation
> of the Public Safety Broadband License, the Upper 700 MHz D Block
> license, or both.
>
> \(c\) The Chiefs of the Public Safety and Homeland Security Bureau and
> the Wireless Telecommunications Bureau are delegated joint
> responsibility for adjudicating disputes.
>
> **§ 90.1430 Local Public Safety build-out and operation.**
>
> \(a\) The Upper 700 MHz D Block licensee and the Operating Company
> through its lease arrangements shall, except in the two limited
> circumstances set forth herein, have the exclusive right to build and
> operate the Shared Wireless Broadband Network.
>
> \(b\) *Rights to early build-out in areas with a build-out
> commitment.* In an area where the Upper 700 MHz D Block licensee has
> committed, in the NSA, to build out by a certain date, a public safety
> entity may, with the pre-approval of the Public Safety Broadband
> Licensee and subject to the requirements set forth herein, construct a
> broadband network in that area at its own expense so long as the
> network is capable of operating on the Shared Wireless Broadband
> Network and meets all the requirements and specifications of the
> network required under the NSA.
>
> \(1\) *Options for early build-out in areas with a build-out
> commitment*. In order to obtain authorization to construct a broadband
> network as set forth above, the requesting public safety entity must
> agree to one of the following:
>
> \(i\) to, on its own, or through the Public Safety Broadband Licensee
> acting on its behalf, construct the network at its own expense, and
> upon completion of construction, transfer the network to the Upper 700
> MHz D Block licensee, which shall then integrate that network into the
> Shared Wireless Broadband Network constructed pursuant to the NSA; or
>
> \(ii\) to, in agreement with the Upper 700 MHz D Block licensee,
> provide all funds necessary for the Upper 700 MHz D Block licensee to
> complete the early construction of the network, including any and all
> additional resource and personnel costs, allowing the Upper 700 MHz D
> Block licensee at all times to own, operate, and manage the network as
> an integrated part of the Shared Wireless Broadband Network.
>
> \(2\) *Negotiation of amendment to NSA*. Under either early build out
> option set forth above, the Public Safety Broadband Licensee, the
> Upper 700 MHz D Block licensee, and the public safety entity must,
> prior to any construction, negotiate an amendment to the NSA regarding
> this part of the network, specifying ownership rights, fees, and other
> terms, which may be distinct from the analogous terms governing the
> Shared Wireless Broadband Network, and such amendment must be approved
> by the Commission.
>
> \(i\) Such amendment must provide the terms under which the Upper 700
> MHz D Block licensee shall receive full ownership rights and shall
> compensate the public safety entity (or the Public Safety Broadband
> Licensee, where appropriate) for the construction of the network; and
> shall, absent agreement to the contrary, provide for such transfer and
> compensation to occur prior to the scheduled build out date for such
> network in the NSA.
>
> \(ii\) Any right to compensation from the Upper 700 MHz D Block
> licensee related to such early build-out shall be limited to the cost
> that would have been incurred had the Upper 700 MHz D Block licensee
> constructed the network itself in accordance with the original terms
> and specifications of the NSA, as reasonably determined by the parties
> and negotiated as part of the required NSA amendment required above.
> Such costs shall not include costs attributable solely to advancing
> the date of construction or otherwise expediting the construction
> process.
>
> \(3\) *Operations.* The public safety entity may not commence
> operations on the network until ownership of the network has been
> transferred to the Upper 700 MHz D Block licensee. Further, no
> operations shall be allowed except those authorized and conducted
> pursuant to the authority of the Public Safety Broadband Licensee.
>
> \(4\) *Attribution of early build-out to national benchmarks.* Upon
> completion of construction, transfer of ownership to the Upper 700 MHz
> D Block licensee, and compensation as required herein, if applicable,
> the Upper 700 MHz D Block licensee may include the network constructed
> pursuant to the early build-out provisions herein for purposes of
> determining whether it has met its national build-out benchmarks and
> the build-out requirements of the NSA.
>
> \(5\) *Rights to build out and operate in areas without a build-out
> commitment.* In areas for which the NSA does not require the Upper 700
> MHz D Block licensee to build out the Shared Wireless Broadband
> Network, a public safety entity may build out and operate a separate,
> exclusive network in the 700 MHz public safety broadband spectrum at
> any time, provided the public safety entity has received the written
> approval of the Public Safety Broadband Licensee and operates its
> independent network pursuant to a spectrum leasing arrangement into
> which the public safety entity has entered with the Public Safety
> Broadband Licensee.
>
> \(i\) Such leasing arrangement shall not require the approval or
> consent of the Upper 700 MHz D Block licensee; however, the Public
> Safety Broadband Licensee must provide the Upper 700 MHz D Block
> licensee with notice of the public safety entity's intent to construct
> in that area within 30 days of receipt of a request from a public
> safety entity seeking to exercise this option, and shall inform the
> Upper 700 MHz D Block licensee of the public safety entity's
> anticipated build-out date(s).
>
> \(ii\) Should the Upper 700 MHz D Block licensee, within 30 calendar
> days from receipt of notice of the public safety entity's intent to
> construct in that area, certify in writing to the Public Safety
> Broadband Licensee that it will build out the shared network in the
> area within a reasonable time of the anticipated build-out date(s), as
> determined by the Public Safety Broadband Licensee, the Public Safety
> Broadband Licensee shall not allow the public safety entity to build
> and operate its own separate exclusive network in that area, provided
> that the Upper 700 MHz D Block licensee and the Public Safety
> Broadband Licensee execute an amendment to the NSA indicating the
> Upper 700 MHz D Block licensee's commitment to build the network in
> that area. Such commitment shall become enforceable against the Upper
> 700 MHz D Block licensee as part of its overall build-out
> requirements.
>
> \(iii\) If the Upper 700 MHz D Block licensee does not exercise its
> option to commit to build out the network in the requested area within
> 30 calendar days of receipt of notice of the public safety entity's
> intent to construct in such area, the Public Safety Broadband Licensee
> and the public safety entity may proceed with a spectrum leasing
> arrangement, which must be filed with and approved by the Commission
> prior to the public safety entity commencing any operations. The
> spectrum leasing arrangement must take the form of a spectrum manager
> leasing arrangement under the rules specified in § 1.9020 of this
> chapter, and incorporate the following conditions:
>
> \(a\) The network must provide broadband operations;
>
> \(b\) The network must be fully interoperable with the Shared Wireless
> Broadband Network;
>
> \(c\) The network must be available for use by any public safety
> entity in the area;
>
> \(d\) The network must satisfy any other terms or conditions required
> by the Public Safety Broadband Licensee; and
>
> \(e\) The public safety entity must construct and place into operation
> its network within one year of the effective date of the spectrum
> manager leasing arrangement. If the public safety entity fails to
> place the network into operation within one year, the Public Safety
> Broadband Licensee shall terminate the spectrum leasing arrangement
> pursuant to § 1.9020(h)(3). The public safety entity may also seek
> extended implementation authority from the Commission pursuant to the
> requirements of § 90.629 of this Part.
>
> \(6\) Except as set forth herein, the separate network is not required
> to meet the other specifications of the Shared Wireless Broadband
> Network. Absent agreement of the public safety entity, the Public
> Safety Broadband Licensee, and the Upper 700 MHz D Block licensee, the
> separate network may not operate using any spectrum associated with
> the Upper 700 MHz D Block license.
>
> \(7\) The Public Safety Broadband Licensee must file with the
> Commission any spectrum manager leasing arrangement as specified in §
> 1.9020(e) of this chapter; such filing shall identify the public
> safety entity leasing the spectrum, the particular areas of spectrum
> leased as part of this build-out option, and the specific network
> infrastructure and equipment deployed on such leased spectrum.
>
> **§ 90.1432 Conditions for waiver to allow limited and temporary
> wideband operations in the 700 MHz Public Safety spectrum.**
>
> \(a\) *Wideband operations in the 700 MHz Public Safety spectrum.*
> Wideband operations are prohibited in the public safety allocation of
> the 700 MHz band public safety spectrum except where the Commission
> has granted a waiver pursuant to §§ 1.3 and 1.925 of this chapter and
> subject to the additional conditions and requirements specified below.
> Grants of waiver are restricted to the deployment of a wideband system
> in the consolidated narrowband portion or the internal public safety
> guard band portion of the public safety broadband spectrum.  Where
> spectrum in the narrowband segment or internal guard band segment is
> unavailable for wideband operations, public safety entities may
> request a waiver to operate in the upper 1.25 megahertz of the public
> safety broadband spectrum.
>
> \(b\) Any public safety entity seeking to conduct wideband operations
> within the public safety allocation must file a request for waiver
> that is accompanied by an application for authorization and includes
> the following information:
>
> \(1\) a letter from the Public Safety Broadband Licensee, confirming
> that the proposed wideband deployment is not inconsistent with the
> broadband deployment plan for the affected or adjacent service areas;
> and
>
> \(2\) a description of the conditions or transition requirements, if
> any, agreed to between the applicant and the Public Safety Broadband
> Licensee.
>
> \(c\) *Additional requirement for wideband operations in the
> narrowband segment and Internal Guard Band.* If an applicant seeks
> permission to deploy wideband systems in the narrowband segment, its
> waiver request must also include a letter from the appropriate
> regional planning committee or state licensee confirming that the
> proposed wideband deployment will not disrupt any regional or state
> planning efforts that are underway.
>
> \(d\) *Additional requirements and conditions for wideband operations
> in the broadband segment.* Permission to conduct wideband operations
> in the broadband segment will be granted only where spectrum in the
> narrowband segment or the internal guard band is unavailable for
> wideband operations. In no event will permission be granted to conduct
> wideband operations in geographic areas scheduled for broadband
> deployment within the first three years of the build-out plan for the
> Shared Wireless Broadband Network.
>
> \(1\) An applicant seeking permission to deploy wideband systems in
> the broadband segment must have first issued a request for proposal
> (RFP) that permitted interested parties to submit broadband proposals
> that are technically consistent with the Shared Wireless Broadband
> Network.
>
> \(2\) A request for waiver that seeks permission to deploy wideband
> systems in the broadband segment must include the following
> information:
>
> \(i\) a substantially supported, detailed technical showing
> demonstrating that insufficient spectrum in the narrowband segment or
> the internal guard band is available to support the desired wideband
> operations;
>
> \(ii\) a showing that rejected responses to the required broadband
> network RFP were more costly, provided less coverage as measured by
> throughput at the network edge, or were otherwise inferior to the
> accepted wideband proposal; and
>
> \(iii\) a detailed plan for integration of such wideband system into
> the Shared Wireless Broadband Network.  This plan must specify how and
> by what date the wideband applicant will integrate its proposed
> wideband system into Shared Wireless Broadband Network and must
> include a certification that the public safety entity will not seek
> reimbursement for any costs involved in converting the wideband system
> to Shared Wireless Broadband Network upon completion of that network
> in the applicant's geographic area.
>
> \(3\) Authority to conduct wideband operations in the broadband
> segment of the public safety spectrum will be subject to the following
> conditions:
>
> \(i\) All devices operating on the wideband system must be designed to
> interoperate with Shared Wireless Broadband Network;
>
> \(ii\) All waivers will expire automatically upon the Upper 700 MHz D
> Block licensee's initiation of service in the service area covered by
> such waiver.
>
> \(e\) *Secondary status of wideband operations.* All wideband
> operations permitted under this section shall be secondary to the
> authorized narrowband or broadband applications, as applicable.
>
> \(f\) *License terms for wideband operations*. Any secondary license
> to conduct wideband operations in the public safety spectrum shall
> have a term of no more than five years.
>
> \(g\) *Renewal of wideband authorization*. Any request for renewal of
> an initial authorization to conduct wideband operations shall be filed
> not less than 180 days prior to expiration of the license.  All
> renewal requests must include a showing that continued operation of
> the wideband system is in the public interest and must be accompanied
> by a letter from the Public Safety Broadband Licensee confirming that
> continuing wideband operations are not inconsistent with the broadband
> deployment plan for the affected or adjacent service areas. The
> license term for any renewal of a license granted under the waiver
> provisions herein shall not exceed three years. No more than one
> license renewal will be granted.
>
> \(h\) *Grandfathered wideband STA operations*.  Upon request, the
> Public Safety and Homeland Security Bureau may grant a public safety
> entity that has constructed, deployed, and was operating a wideband
> system as of July 31, 2007 pursuant to STA to extend the STA grant for
> periods of no more than 180 days until, but not later than, six months
> following the selection of the Public Safety Broadband Licensee.
>
> **§ 90.1435 Prohibition on discontinuance of Public Safety
> operations.**
>
> The Upper 700 MHz D Block licensee, the Operating Company, and the
> Network Assets Holder are prohibited from discontinuing or degrading
> the broadband network service provided to the Public Safety Broadband
> Licensee or to public safety entities unless either at the request of
> the entity or entities in question or it has first obtained the
> approval of the Commission. The Upper 700 MHz D Block licensee shall
> notify the affected public safety entity or entities and the Public
> Safety Broadband Licensee at least 30 days prior to any unrequested
> discontinuance or degradation of network service.
>
> **§ 90.1440** **Reporting obligations.**
>
> \(a\) The Upper 700 MHz D Block licensee and the Public Safety
> Broadband Licensee shall jointly file quarterly reports with the
> Commission. These reports shall include audited financial statements,
> how the specific requirements of public safety are being met, detailed
> information on the areas where broadband service has been deployed,
> which public safety entities are using the broadband network in each
> area of operation, what types of applications are in use in each area
> of operation, and the number of declared emergencies in each area of
> operation.

\(b\) The Public Safety Broadband Licensee and the Upper 700 MHz D Block
licensee have joint responsibility to register the base station
locations with the Commission, providing basic technical information,
including geographic location.

**APPENDIX C**

**Final Regulatory Flexibility Analysis**

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^1150] an Initial Regulatory Flexibility Analysis (IRFA) was
    included in the *700 MHz Further Notice*[^1151] in WT Docket No.
    06-150, WT Docket No. 01-309; WT Docket No. 06-169, WT Docket No.
    03-264, CC Docket No. 94-102, PS Docket No. 06-229, and WT Docket
    No. 96-86. [^1152] The Commission sought written public comment on
    the proposals in these dockets, including comment on the IRFA. This
    Final Regulatory Flexibility Analysis (FRFA) conforms to the
    RFA.[^1153]

2.  Although Section 213 of the Consolidated Appropriations Act of 2000
    provides that the RFA shall not apply to the rules and competitive
    bidding procedures for frequencies in the 746-806 MHz Band,[^1154]
    the Commission believes that it would serve the public interest to
    analyze the possible significant economic impact of the proposed
    policy and rule changes in this band on small entities. Accordingly,
    this FRFA contains an analysis of this impact in connection with all
    spectrum that falls within the scope of this *Second Report and
    Order*, including spectrum in the 746-806 MHz Band.

## Need for, and Objectives of, the Rules

3.  In the *Second Report and Order*, the Commission takes a number of
    steps to facilitate access to spectrum and the provision of service
    to consumers, especially those in rural areas, and to simplify and
    clarify our rules related to the commercial 700 MHz spectrum. It
    designates a spectrum block in the upper portions of the commercial
    spectrum for a commercial licensee that will be part of a
    public/private partnership (the "700 MHz Public/Private
    Partnership") entered with a national public safety broadband
    licensee for the public safety broadband spectrum, in a reconfigured
    700 MHz Public Safety Band, to promote the development of nationwide
    interoperable broadband services for public safety users. The
    Commission also changes the location of the existing 700 MHz Guard
    Band licenses, provides for a one megahertz shift of the other
    commercial spectrum blocks in the Upper 700 MHz Band and the 700 MHz
    Public Safety Band, and reduces the size of the Guard Band B Block
    to make two additional megahertz of commercial spectrum available
    for auction.

4.  The band plan provides a balanced mix of geographic service area
    licenses and spectrum block sizes for the 62 megahertz of commercial
    spectrum to be auctioned. The Commission determined that it will
    auction two 12-megahertz spectrum blocks (comprised of paired
    6-megahertz blocks), one licensed by Cellular Market Areas (CMAs)
    and one by Economic Areas (EAs); one 22-megahertz spectrum block
    (paired 11-megahertz blocks) by Regional Economic Area Groupings
    (REAGs); and one 6-megahertz unpaired spectrum block by EAs. It also
    designates one 10-megahertz spectrum block (paired 5-megahertz
    blocks), the Upper 700 MHz Band D Block, to be licensed on a
    nationwide basis and used as part of the 700 MHz Public/Private
    Partnership entered between this commercial licensee and the
    licensee that will be assigned the public safety broadband spectrum
    (hereinafter, the Public Safety Broadband Licensee).

5.  In addition, the Commission replaces the current "substantial
    service" requirements for 700 MHz Band commercial licenses that have
    not been auctioned with significantly more stringent performance
    requirements, and makes unserved areas available to third parties
    who wish to provide service to these areas. By adopting these more
    rigorous requirements, the Commission ensures that the 700 MHz
    Commercial Services licensees put the spectrum to use throughout the
    course of their license terms and serve the majority of users in
    their license areas Additionally, for one commercial spectrum block
    in the 700 MHz Band -- the Upper 700 MHz C Block (700 MHz C Block)--
    the Commission imposes requirements on those licensees to provide
    open platforms for devices and applications, and concludes that it
    would not serve the public interest at this time to mandate broader
    openness requirements.

6.  The *Second Report and Order* also revises the 700 MHz band plan
    with respect to the Upper 700 MHz Guard Bands, such that all
    existing A Block licenses relocate to a reconfigured A Block between
    the C and D Blocks, pursuant to an agreement between all but one of
    the Guard Bands licensees. As part of this agreement, the existing B
    Block licenses are relinquished, and the B Block is reconfigured
    from 4 to 2 megahertz and located immediately above the public
    safety narrowband spectrum. The reconfigured B Block serves as a
    guard band to protect the public safety narrowband channels, and
    remains empty as a commercial allocation at this time. With respect
    to the Guard Bands licensee that did not participate in the
    agreement, its one A Block license and two B Block licenses are
    grandfathered, with minor modifications to facilitate the overall
    revised band plan. In addition to these band plan issues with
    respect to the Guard Bands, the *Second Report and Order* also
    revises the service rules with respect to the reconfigured A Block,
    bringing it largely into parity with the adjacent Commercial
    Services spectrum given the new spectral location and its
    relationship to the rest of the band including the public safety
    spectrum.

7.  Further, the Second Report and Order seeks to achieve broadband
    communications capabilities consistent with a nationwide
    interoperability standard for public safety. The Commission expects
    that modern public safety services will increasingly depend on the
    advanced communications capabilities afforded by wireless broadband
    technologies, which should enable first responders to perform their
    vital safety-of-life and other critical roles. The Second Report and
    Order re-designates the wideband spectrum to broadband use
    consistent with a nationwide interoperability standard, and
    prohibits wideband operations on a going forward basis in the newly
    designated broadband spectrum. The Second Report and Order also
    consolidates the narrowband spectrum to the top of the Public Safety
    Band, locates the broadband spectrum at the bottom of the Public
    Safety Band, and divides these segments with an internal guard band.
    This reconfiguration reduces the amount of spectrum necessary to
    separate and protect the public safety broadband and narrowband
    allocations, and facilitates partnerships between public safety
    broadband operations and adjacent commercial broadband technologies,
    thereby optimizing the 700 MHz public safety band plan. Finally, in
    order to promote the rapid deployment of a nationwide, interoperable
    broadband public safety network, the Second Report and Order creates
    a single nationwide geographic area Public Safety Broadband License
    which will be administered by a single Public Safety Broadband
    Licensee.

8.  With regard to auctions-related issues, the Commission decides to
    utilize anonymous bidding to enhance the effectiveness of the
    auction of 700 MHz licenses, as well as allowing package bidding for
    the Upper 700 MHz Band C Block, and decides not to grant a "new
    entrant" bidding credit for the 700 MHz Band licenses. The
    Commission also declines to impose eligibility restrictions for the
    licenses in the 700 MHz Band. Finally, the Commission will offer
    bidding credits in the D Block, as described fully below.

## Summary of Significant Issues Raised by Public Comments in Response to the IRFA

9.  No comments specifically addressed the IRFAs from any of the
    respective proceedings. We have nonetheless addressed small entity
    issues found in comments in this FRFA.

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

10. The RFA directs agencies to provide a description of, and, where
    feasible, an estimate of, the number of small entities that may be
    affected by the proposed rules, if adopted.[^1155] The RFA generally
    defines the term "small entity" as having the same meaning as the
    terms "small business," "small organization," and "small
    governmental jurisdiction."[^1156] In addition, the term "small
    business" has the same meaning as the term "small business concern"
    under the Small Business Act.[^1157] A "small business concern" is
    one which: (1) is independently owned and operated; (2) is not
    dominant in its field of operation; and (3) satisfies any additional
    criteria established by the Small Business Administration
    (SBA).[^1158]

11. *[Small Businesses]{.underline}*. Nationwide, there are a total of
    approximately 22.4 million small businesses, according to SBA
    data.[^1159]

12. *[Small Organizations]{.underline}.* Nationwide, there are
    approximately 1.6 million small organizations.[^1160]

13. *[Governmental Entities]{.underline}.* 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."[^1161] As of 2002, there
    were approximately 87,525 governmental jurisdictions in the United
    States.[^1162] This number includes 38,967 county governments,
    municipalities, and townships, of which 37,373 (approximately 95.9%)
    have populations of fewer than 50,000, and of which 1,594 have
    populations of 50,000 or more. Thus, we estimate the number of small
    governmental jurisdictions overall to be 85,931 or fewer.

14. *[Wireless Service Providers]{.underline}*. The SBA has developed a
    small business size standard for wireless firms within the two broad
    economic census categories of \"Paging\"[^1163] and \"Cellular and
    Other Wireless Telecommunications.\"[^1164] Under both categories,
    the SBA deems a wireless business to be small if it has 1,500 or
    fewer employees. For the census category of Paging, Census Bureau
    data for 2002 show that there were 807 firms in this category that
    operated for the entire year.[^1165] Of this total, 804 firms had
    employment of 999 or fewer employees, and three firms had employment
    of 1,000 employees or more.[^1166] Thus, under this category and
    associated small business size standard, the majority of firms can
    be considered small. For the census category of Cellular and Other
    Wireless Telecommunications, Census Bureau data for 2002 show that
    there were 1,397 firms in this category that operated for the entire
    year.[^1167] Of this total, 1,378 firms had employment of 999 or
    fewer employees, and 19 firms had employment of 1,000 employees or
    more.[^1168] Thus, under this second category and size standard, the
    majority of firms can, again, be considered small.

15. When identifying small entities that could be affected by the
    Commission's new rules, this FRFA provides information describing
    auctions results, including the number of small entities that were
    winning bidders. However, the number of winning bidders that qualify
    as small businesses at the close of an auction does not necessarily
    reflect the total number of small entities currently in a particular
    service. The Commission does not generally require that licensees
    later provide business size information, except in the context of an
    assignment or transfer of control application where unjust
    enrichment issues are implicated.

16. *[700 MHz Guard Band Licenses]{.underline}.* In the *700 MHz Guard
    Band Order*, the Commission adopted size standards for "small
    businesses" and "very small businesses" for purposes of determining
    their eligibility for special provisions such as bidding credits and
    installment payments.[^1169] A small business in this service is an
    entity that, together with its affiliates and controlling
    principals, has average gross revenues not exceeding \$40 million
    for the preceding three years.[^1170] Additionally, a "very small
    business" is an entity that, together with its affiliates and
    controlling principals, has average gross revenues that are not more
    than \$15 million for the preceding three years.[^1171] SBA approval
    of these definitions is not required.[^1172] An auction of 52 Major
    Economic Area (MEA) licenses commenced on September 6, 2000, and
    closed on September 21, 2000.[^1173] Of the 104 licenses auctioned,
    96 licenses were sold to nine bidders. Five of these bidders were
    small businesses that won a total of 26 licenses. A second auction
    of 700 MHz Guard Band licenses commenced on February 13, 2001, and
    closed on February 21, 2001. All eight of the licenses auctioned
    were sold to three bidders. One of these bidders was a small
    business that won a total of two licenses.[^1174]

17. *[Upper 700 MHz Band Licenses]{.underline}.* The Commission released
    a *Report and Order* authorizing service in the Upper 700 MHz
    band.[^1175] An auction for these licenses, previously scheduled for
    January 13, 2003, was postponed.[^1176]

18. *[Lower 700 MHz Band Licenses]{.underline}.* The Commission adopted
    criteria for defining three groups of small businesses for purposes
    of determining their eligibility for special provisions such as
    bidding credits.[^1177] The Commission has defined a small business
    as an entity that, together with its affiliates and controlling
    principals, has average gross revenues not exceeding \$40 million
    for the preceding three years.[^1178] A very small business is
    defined as an entity that, together with its affiliates and
    controlling principals, has average gross revenues that are not more
    than \$15 million for the preceding three years.[^1179]
    Additionally, the Lower 700 MHz Band has a third category of small
    business status that may be claimed for Metropolitan/Rural Service
    Area (MSA/RSA) licenses. The third category is entrepreneur, which
    is defined as an entity that, together with its affiliates and
    controlling principals, has average gross revenues that are not more
    than \$3 million for the preceding three years.[^1180] The SBA has
    approved these small size standards.[^1181] An auction of 740
    licenses (one license in each of the 734 MSAs/RSAs and one license
    in each of the six Economic Area Groupings (EAGs)) commenced on
    August 27, 2002, and closed on September 18, 2002. Of the 740
    licenses available for auction, 484 licenses were sold to 102
    winning bidders. Seventy-two of the winning bidders claimed small
    business, very small business or entrepreneur status and won a total
    of 329 licenses.[^1182] A second auction commenced on May 28, 2003,
    and closed on June 13, 2003, and included 256 licenses: 5 EAG
    licenses and 476 CMA licenses.[^1183] Seventeen winning bidders
    claimed small or very small business status and won sixty licenses,
    and nine winning bidders claimed entrepreneur status and won 154
    licenses.[^1184]

19. *[Public Safety Radio Licensees]{.underline}.* As a general matter,
    public safety radio licensees include police, fire, local
    government, forestry conservation, highway maintenance, and
    emergency medical services.[^1185] The SBA rules contain a small
    business size standard for cellular and other wireless
    telecommunications companies, which encompasses business entities
    engaged in wireless communications employing no more than 1,500
    persons.[^1186] According to Census Bureau data for 2002, in this
    category there were 8,863 firms that operated for the entire
    year.[^1187] Of this total, 401 firms had 100 or more employees, and
    the remainder had fewer than 100 employees.[^1188] With respect to
    local governments, in particular, since many governmental entities
    as well as private businesses comprise the licensees for these
    services, we include under public safety services the number of
    government entities affected.

20. [*Wireless Communications Equipment Manufacturers:* *Radio and
    Television Broadcasting and Wireless Communications Equipment
    Manufacturing*]{.underline}*.* While these entities are merely
    indirectly affected our action, we see are describing them to
    achieve a fuller record. The Census Bureau defines this category as
    follows: "This industry comprises establishments primarily engaged
    in manufacturing radio and television broadcast and wireless
    communications equipment. Examples of products made by these
    establishments are: transmitting and receiving antennas, cable
    television equipment, GPS equipment, pagers, cellular phones, mobile
    communications equipment, and radio and television studio and
    broadcasting equipment."[^1189] The SBA has developed a small
    business size standard for Radio and Television Broadcasting and
    Wireless Communications Equipment Manufacturing, which is: all such
    firms having 750 or fewer employees.[^1190] According to Census
    Bureau data for 2002, there were a total of 1,041 establishments in
    this category that operated for the entire year.[^1191] Of this
    total, 1,010 had employment of under 500, and an additional 13 had
    employment of 500 to 999.[^1192] Thus, under this size standard, the
    majority of firms can be considered small.

21. *[Software Publishers]{.underline}.* While these entities are merely
    indirectly affected by our action, we are describing them to achieve
    a fuller record. These companies may design, develop or publish
    software and may provide other support services to software
    purchasers, such as providing documentation or assisting in
    installation. The companies may also design software to meet the
    needs of specific users.[^1193] The SBA has developed a small
    business size standard of \$23 million or less in average annual
    receipts for the category of Software Publishers.[^1194] For
    Software Publishers, Census Bureau data for 2002 indicate that there
    were 6,155 firms in the category that operated for the entire
    year.[^1195] Of these, 7,633 had annual receipts of under \$10
    million, and an additional 403 firms had receipts of between \$10
    million and \$24, 999,999. For providers of Custom Computer
    Programming Services, the Census Bureau data indicate that there
    were 32,269 firms that operated for the entire year.[^1196] Of
    these, 31,416 had annual receipts of under \$10 million, and an
    additional 565 firms had receipts of between \$10 million and
    \$24,999,999. Consequently, we estimate that the majority of the
    firms in this category are small entities that may be affected by
    our action.

## Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities

22. The projected reporting, recordkeeping, and other compliance
    requirements resulting from the *Second Report and Order* will apply
    to all entities in the same manner. The Commission believes that
    applying the same rules equally to all entities in this context
    promotes fairness. The Commission does not believe that the costs
    and/or administrative burdens associated with the rules will unduly
    burden small entities. The revisions the Commission adopts should
    benefit small entities by giving them more information, more
    flexibility, and more options for gaining access to valuable
    wireless spectrum.

23. [Performance Requirements]{.underline}. In this *Second Report and
    Order*, the Commission replaces the current "substantial service"
    requirements for the 700 MHz Band commercial licenses that have not
    been auctioned with significantly more stringent performance
    requirements. These include the use of interim and end-of-term
    benchmarks, with geographic area benchmarks for licenses based on
    CMAs and EAs, and population benchmarks for licenses based on REAGs.
    Licensees must meet the interim requirement within four years of the
    end of the DTV transition. Failure to meet the interim requirement
    will result in a two-year reduction in license term, as well as
    possible enforcement action, including forfeitures. Licensees that
    fail to meet the end-of-term benchmarks will be subject to a
    "keep-what-you-use" rule, under which the licensee will lose its
    authorization for unserved portions of its license area, which will
    be automatically returned to the Commission for reassignment.

24. Licensees must demonstrate compliance with our interim and
    end-of-term construction benchmarks by filing a construction
    notification with the Commission within 15 days of the passage of
    the relevant benchmark certifying that they have met our performance
    requirements or, if they have not met our performance requirements,
    they must file a description and certification of the areas for
    which they are providing service. The information contained in the
    licensee's construction notification must include electronic
    coverage maps and other supporting documentation. The electronic
    coverage maps must clearly and accurately depict the boundaries of
    each EA or CMA in the licensee's service territory, and the areas
    where the licensee's signal strength is sufficient to provide
    service to users. In addition to filing electronic coverage maps,
    each licensee must file supporting documentation certifying the type
    of service it is providing for each EA or CMA within its license
    service territory.

25. [Guard Band Issues]{.underline}. The *Second Report and Order*
    relocates the A Block away from the public safety narrowband
    spectrum with respect to the upper half of the original paired A
    Block. Accordingly, the reconfigured A Block no longer serves as a
    guard band to protect the public safety spectrum from commercial
    operations. The existing frequency coordination requirement, which
    was created to protect public safety operations from Guard Bands
    operations, is therefore eliminated with respect to the reconfigured
    A Block.

26. [Open Platforms for Devices and Applications]{.underline}. In this
    *Second Report and Order*, the Commission adopts a requirement for
    the 700 MHz C Block licensees to provide open platforms for devices
    and applications. 700 MHz C Block licensees must allow customers,
    device manufacturers, third-party application developers and others
    to use or develop the devices and applications of their choosing on
    the 700 MHz C Block network so long as they meet all applicable
    regulatory requirements and comply with reasonable conditions
    related to the management of the wireless network. The Commission
    does not, at this time, specify a particular process for wireless
    service providers to develop reasonable network management and
    openness standards, including through participation in standards
    setting organizations. The Commission expects licensees to publish
    their standards once adopted, which will be non-proprietary, such
    that they would be open to any third party vendors and that the
    standards applied to third parties will be no more restrictive than
    those applied to the provider's preferred vendors. The Commission
    also requires 700 MHz C Block licensees to provide to potential
    customers notice of the customers' rights to request the attachment
    of a device or application to the licensee's network, and notice of
    the licensee's process for customers to make such requests,
    including the relevant network criteria. In addition, 700 MHz C
    Block licensees are required to establish a reasonable process for
    expeditiously reviewing and processing requests to employ devices
    and applications on the licensee's network and offer a specific
    explanation for denial of any such request, and an opportunity for
    amendment of the request to accommodate the provider\'s concerns.
    The Commission also provides for its existing complaint procedures
    to be invoked if a violation of this requirement occurs. Once a
    complainant sets forth a *prima facie* case that the 700 MHz C Block
    licensee has refused to attach a device or application in violation
    of the requirement or has otherwise violated the rule, the 700 MHz C
    Block licensee shall have the burden of proof to demonstrate that it
    has adopted reasonable network standards and reasonably applied
    those standards in the complainant's case. The Commission commits to
    rule on these complaints within 180 days.

27. [Public Safety Broadband]{.underline}. The *Second Report and Order*
    re-designates the wideband spectrum to broadband use consistent with
    a nationwide interoperability standard, and prohibits wideband
    operations on a going forward basis. The Commission will only grant
    limited exceptions to this rule through a waiver process. As a
    result of the decision to prohibit wideband operations outside of
    this waiver process, Regional Planning Committee plans already
    approved or on file with the Commission will require amendment. The
    *Second Report and Order* also consolidates the narrowband channels
    to the top of the public safety band, locates the broadband spectrum
    at the bottom of the public safety band, divides these segments with
    an internal guard band, and creates a single Public Safety Broadband
    License/Licensee to promote the rapid deployment of a nationwide,
    interoperable broadband public safety network. The relocation of
    public safety narrowband operations in the consolidated channels
    will entail some additional reporting, recordkeeping and compliance
    efforts by existing public safety entities with regard to the number
    and location of their affected narrowband handsets and base
    stations. The *Second Report and Order* does not otherwise propose
    any additional reporting, recordkeeping or other compliance
    requirements.

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

28. The RFA requires an agency to describe in the IRFA any significant
    alternatives that it has considered in reaching its proposed
    approach, which may include (among others) the following four
    alternatives: (1) the establishment of differing compliance or
    reporting requirements or timetables that take into account the
    resources available to small entities; (2) the clarification,
    consolidation, or simplification of compliance or reporting
    requirements under the rule for small entities; (3) the use of
    performance, rather than design, standards; and (4) an exemption
    from coverage of the rule, or any part thereof, for small
    entities.[^1197] We hereby incorporate by reference the discussion
    in the Second Report and Order of our consideration of the impact on
    small entities of the rules we adopt here.

29. [Band Plan Issues]{.underline}. The *Second Report and Order*
    revises the 700 MHz band plan for the commercial services and public
    safety services in a manner that will improve the opportunity of
    small entities to obtain valuable wireless spectrum by providing
    smaller licensing areas that better meet the needs of small
    entities. The Commission's goals for the 700 MHz Band are to promote
    dissemination of licenses among a wide variety of applicants,
    including small entities, accommodate the competing need for both
    large and small licensing areas, meet the various needs expressed by
    potential entrants seeking access to spectrum and incumbents seeking
    additional spectrum, and provide for large spectrum blocks that can
    facilitate broadband deployment in the band. To achieve these goals
    the revised plan provides for two 12-megahertz spectrum blocks
    (comprised of paired 6-megahertz blocks), one licensed by CMAs and
    one by EAs; one 22-megahertz spectrum block (paired 11-megahertz
    blocks) by REAGs; and one 6-megahertz unpaired spectrum block by
    EAs. The revision also designates one 10-megahertz spectrum block
    (paired 5-megahertz blocks), the Upper 700 MHz D Block, to be
    licensed on a nationwide basis and used as part of the 700 MHz
    Public/Private Partnership.

30. Providing for an additional 700 MHz Band spectrum block licensed on
    a CMA basis (the B Block) will increase the opportunity of small
    entities to obtain smaller license areas that meet their needs while
    avoiding the transaction costs associated with obtaining access to
    spectrum in the secondary market, costs that are incurred when these
    small providers must arrange the terms by which another licensee
    grants access to its spectrum by means of partitioning,
    disaggregation, or spectrum leasing.

31. In addition, the Commission adopts EAs as the geographic service
    area for licenses in Block A of the Lower 700 MHz Band, making 176
    licenses available in this block. The Commission also adopts EAs for
    the unpaired 6-megahertz E block of the Lower 700 MHz Band which
    further enhances the mix of geographic sizes for licenses in the
    band. These decisions will also create opportunities for small
    entities to acquire license for small geographic service areas in
    the Lower 700 MHz Band.

32. [Frequency Coordination and the Guard Bands]{.underline}. The
    service area definition for the Upper 700 MHz Guard Bands is the
    MEA, which is a smaller license area and therefore can provide
    greater opportunities for small entrants than larger service area
    definitions such as the REAG. Accordingly, among the licensed Guard
    Bands and the lessees currently using their spectrum, there may be a
    significant number of small entities. Additionally, continued
    operations in the Guard Bands A Block may continue to involve a
    significant number of small entities through Secondary Markets
    arrangements. Since the *Second Report and Order* removes the
    requirement for all A Block operations to be frequency coordinated
    with public safety entities, any small entity engaged in ownership
    of, or operations on, the A Block will find the frequency
    coordination burden lifted to their significant benefit.

33. [Performance Requirements]{.underline}. In this *Second Report and
    Order*, the Commission adopts stringent performance requirements for
    the 700 MHz Commercial Services licenses in order to promote the
    provision of innovative services to consumers throughout the license
    areas, including in rural areas. With regard to geographic-based
    benchmarks for licenses based on CMAs and EAs, the Commission seeks
    to promote service across as much of the geographic area of the
    country as is practicable. Parties that seek to acquire licenses
    based on CMAs and EAs may be small and rural providers that are less
    likely to provide regional or nationwide service, but they
    nonetheless play an important role in bringing new services to
    consumers in many of these more rural areas. The use of small
    license areas such as CMAs will create opportunities for small and
    rural businesses and will foster the deployment of competitive
    wireless broadband services in rural areas. Because the Commission
    adopts smaller geographic license areas such as CMAs to facilitate
    the provision of service, including broadband, in rural areas, it
    also adopts performance requirements that are designed to ensure
    that service is offered to consumers in these areas. Because of the
    700 MHz band's excellent propagation characteristics and suitability
    for delivering advanced wireless services to rural areas, the
    Commission establishes benchmarks that require build-out to a
    significant portion of the geographic are in those markets. In
    addition, the performance requirements adopted here will discourage
    larger entities from purchasing spectrum for the purpose of
    warehousing it and thus may provide small entities with a greater
    chance of obtaining valuable spectrum.

34. In the *Second Report and Order*, the Commission adopts
    population-based benchmarks for REAG licensees with large geographic
    areas in order to facilitate the roll out of advanced services on a
    nationwide or regional basis. Because of the significant capital
    investment and logistical challenges associated with building a
    regional or nationwide system without existing infrastructure,
    population benchmarks, rather than geographic benchmarks, will best
    allow a potential new entrant to achieve the economies of scale
    needed for a viable business model, while also ensuring that a
    majority of the population in a given region may have access to
    these services. Moreover, the performance requirements adopted here
    will discourage larger entities from purchasing spectrum for the
    purpose of warehousing it and thus may provide small entities with a
    greater chance of obtaining valuable spectrum.

35. Additionally, the keep-what-you-use rule is pro-competitive and
    provides another method for smaller license areas to be made
    available to small businesses, thus promoting access to spectrum and
    the provision of service, especially in rural areas. This rule
    ensures that spectrum covering areas that are not adequately built
    out is returned to the Commission and others are given an
    opportunity to acquire licenses for this spectrum. Because the
    license areas returned to the Commission under the keep-what-you-use
    rule are likely to be smaller in nature, this rule will provide
    small entities with an additional opportunity to obtain valuable
    wireless spectrum.

36. Although the Commission recognizes that the performance and
    reporting requirements for the 700 MHz Commercial Services licenses
    places burdens on both large and small businesses alike, these
    requirements will further several important policy objectives
    including taking advantage of the excellent propagation
    characteristics of the spectrum in the 700 MHz Band enabling broader
    coverage at lower costs, promoting the provision of innovative
    services to consumers throughout the license areas, including rural
    areas, and allowing large license areas to be served at lower
    infrastructure costs. Moreover, the inclusion of interim benchmark
    reporting requirements ensures that licensees provide service to
    consumers as early as possible. Because of the importance of these
    requirements, we do not believe that they should be applied on a
    differential basis to large and small business. Neither do we
    believe that such requirements will impose an unacceptable burden on
    small entities.

37. [License Terms]{.underline}. The *Second Report and Order* extends
    the license terms of all the existing A Block licensees, given the
    changed circumstances of the band plan and service rules, as the
    licensees are relocated to the reconfigured A Block. This license
    term extension will benefit any Guard Bands licensees, and any
    lessees currently using their spectrum, that may be small entities
    as they will have more flexibility in the use of their spectrum with
    a longer period of time within which to make use of the spectrum.

38. [Partitioning and Disaggregation]{.underline}. In this *Second
    Report and Order*, the Commission concludes that Section 27.15(d) of
    its rules regarding partitioning and disaggregation should be
    amended to clarify how the performance obligations will apply to the
    partitioning and disaggregation of the 700 MHz Commercial Services
    licenses that remain to be auctioned. These modifications seek to
    continue to provide flexibility to licensees and third parties to
    enter into partitioning and disaggregation arrangements that will
    facilitate the provision of new services to consumers, including
    consumers in unserved and underserved areas.

39. Under the modifications of the Section 27.15 (d) rules relating to
    geographic partitioning of new 700 MHz Commercial Services licenses,
    the Commission establishes two options for partitioners and
    partitionees with regard to the newly adopted performance
    requirements. Under the first option, the partitioner and
    partitionee must each certify to the Commission that they will share
    responsibility for meeting the performance requirements for the
    entire geographic license area. If the parties meet the end-of-term
    construction benchmarks, they will retain the ability to continue to
    build out the unserved portion of their license areas. Parties that
    fail to meet the end-of-term benchmarks will be subject to a
    "keep-what-you-use" rule, under which they will lose their
    authorization for unserved portions of their license areas, which
    will automatically cancel and return to the Commission for
    reassignment. This option enables parties to share the cost of
    meeting the stricter buildout benchmarks as required by the
    Commission under its new performance requirements, while ensuring
    that buildout will occur over the original license are to the same
    extent as it would have occurred had the license never been
    partitioned. Under the second option, the partitioner and
    partitionee must each certify that it will independently meet the
    applicable performance requirements for its respective partitioned
    service area. If the partitioner or partitionee fails to meet the
    four-year build-out requirement for its respective area, then its
    license term will be reduced by two years. If the parties meet the
    end-of-term construction benchmarks, they will retain the ability to
    continue to build out the unserved portion of their license areas.
    Parties that fail to meet the end-of-term benchmarks will be subject
    to an automatic "keep-what-you-use" rule, under which they will lose
    their authorization for unserved portions of their license areas,
    which will automatically cancel and return to the Commission for
    reassignment. This option provides a way for partitioners and
    partitionees to ensure that their licenses will not be affected by
    the other party's conduct with regard to meeting the applicable
    performance requirements.

40. Under the modifications of the Section 27.15(d) rules relating to
    disaggregation of new 700 MHz Commercial Services band licenses, the
    Commission provides that the disaggregator, disaggregate, or both
    the disaggregator and disaggregate working together, can meet the
    four-year and end-of-term construction benchmarks for the entire
    geographic license area. If either party meets the performance
    requirement, then the requirement will be satisfied for both
    parties. If neither party meets the four-year build-out requirement,
    then each of their license terms will be reduced by two years. If
    either of the parties meets the end-of-term build-out requirement,
    then this requirement is considered to be satisfied for both
    parties. Those parties that meet the end-of-term construction
    benchmarks will retain the ability to continue to build out the
    unserved portion of their license areas. Parties that fail to meet
    the end-of-term benchmarks will be subject to an automatic
    "keep-what-you-use" rule, under which they will lose their
    authorization for unserved portions of their license areas, which
    will automatically cancel and return to the Commission for
    reassignment.

41. Partitioning and disaggregation allow smaller or newly-formed
    entities to enter the market for the first time, because they will
    be able to negotiate for portions of original licenses at costs that
    are proportionately less than the entire license. Moreover, these
    modifications provide the opportunity for small businesses to enter
    into partitioning and disaggregation agreements that would enable
    them to share the cost of meeting the more stringent performance
    requirements for the unauctioned commercial 700 MHz Band spectrum.

42. [Open Platforms for Devices and Applications]{.underline}. In order
    to promote innovation in the 700 MHz spectrum band from the outset,
    the Commission is imposing certain conditions on the 700 MHz C Block
    to provide open platforms for devices and applications. The C Block
    -- a large 22-megahertz block (comprised of paired 11-megahertz
    blocks) -- is of sufficient size and scope to provide an environment
    conducive for the development and deployment of 4G services designed
    to compete with other broadband alternatives, and to provide an
    opportunity for innovators and entrepreneurs to develop equipment
    and applications that require substantial bandwidth to realize their
    full potential. The requirements should also provide sufficient
    potential market penetration to attract investment and achieve
    economies of scale in the equipment marketplace. In addition, we
    believe that the open platform requirement for devices and
    applications will provide additional opportunities for small
    entities to participate in the device and application market, since
    such a requirement will make it easier for customers, device
    manufacturers, third-party application developers, and others to use
    or develop devices and applications made by small entities on the
    network of the C Block licensee.

43. In adopting this requirement for the 700 MHz C Block, the Commission
    has taken a targeted, focused approach to achieve benefits to
    consumers. In particular, the Commission declines to impose
    additional openness requirements on the 700 MHz C Block, including
    wholesale and interconnection requirements. In addition, the
    commission declines at this time to impose the requirement to
    provide open platforms for devices and applications or other
    openness obligations broadly in the 700 MHz Band, or in other
    spectrum bands.

44. [Licensee Eligibility.]{.underline} The Commission declines to
    impose eligibility restrictions for the licenses in the 700 MHz
    band. The record does not demonstrate that open eligibility is
    likely to result in substantial competitive harm in the provision of
    broadband services. There are numerous actual and potential
    broadband service providers, and currently, consumers can obtain
    broadband service from wireline providers, cable companies,
    satellite, and wireless providers. Given this number of providers,
    it is unlikely that incumbent local exchange carriers, cable
    providers, or large wireless carriers would be able to behave in an
    anticompetitive manner as a result of any potential acquisition of
    700 MHz spectrum. Furthermore, there are potential competitive
    benefits to not imposing eligibility requirements. First, allowing
    incumbents to hold 700 MHz band licenses will provide opportunities
    for these carriers to extend service into rural and hard-to-serve
    areas, which is a major goal the Commission seeks to achieve. Also,
    an incumbent service provider may already be a rural provider and to
    limit their eligibility would be contrary to the goals of the
    Commission. We also do not believe that imposing eligibility
    restrictions for licenses in the 700 MHz band is necessary to
    provide small entities with the opportunity to obtain such licenses.
    As discussed above, among other things, the smaller licensing areas
    made available here will increase opportunities for small entities.

45. [Anonymous Bidding.]{.underline} In response to its request for
    comments on whether to use anonymous bidding (or "limited
    information") procedures in the auction of the new 700 MHz licenses,
    the Commission received comments both in support of and in
    opposition to such procedures. One of the supporters is a small
    licensee who argued that anonymous bidding would bring about a more
    level playing field between large and small bidders.[^1198] The
    Commission further concludes that the many uncertainties regarding
    the technologies that will be used in the 700 MHz Band will result
    in the potential anti-competitive use of detailed information
    regarding bidding outweighing the benefit to some bidders of having
    such information.

46. The Commission further concludes that anonymous bidding should be
    employed even if the pre-auction eligibility ratio indicates that
    competition in the auction will be significant. Even in an auction
    with many competitors individual bidders could still use retaliatory
    bidding unilaterally to block the market, and it is important to
    avoid that from occurring especially given that the 700 MHz auction
    is going to offer multiple, substitutable blocks of licenses for
    sale, with prices relatively high, and the outcome having possible
    significant effects on post-auction market structure.

47. The Commission does not believe that anonymous bidding will have a
    detrimental effect on small entities. First, as discussed in Section
    III.A.3.a of the Order, the potential benefit to bidders, such as
    small entities, of knowing the identity of other parties placing
    bids for particular licenses appears likely to be less in this
    auction than in past Commission auctions, in light of the early
    stage of development with respect to new services in these
    frequencies. Second, because bidding information can be used by
    incumbents to deter or exclude new entrants, we believe that
    anonymous bidding will increase the opportunities for new entrants,
    including small entities, to obtain licenses.

48. [Package Bidding.]{.underline} Commenters are divided on the issue
    of package bidding for the upcoming auction of the 700 MHz band of
    spectrum. While some commenters support package bidding because they
    feel it is essential for a new entrant seeking to aggregate licenses
    and offer service nationwide,[^1199] there are other commenters who
    feel that package bidding will disadvantage bidders not bidding on
    packages, which are more likely to be small entities.[^1200]

49. The Commission concludes that package bidding, with respect to the
    Upper 700 MHz Band C Block, would serve the public interest by
    reducing the exposure problem that might otherwise inhibit bidders
    seeking to create a nationwide footprint. Absent package bidding,
    the exposure problem creates an opportunity for competitors to block
    a would-be package bidder without actually competing for all the
    licenses in the package.[^1201]

50. Minimizing the exposure problem, by implementing package bidding,
    should facilitate the entry of applicants whose business plans
    require the economies of scale that only can be obtained with
    nationwide operation. The Commission further concludes that package
    bidding solely with respect to licenses for the Upper 700 MHz Band C
    Block provides sufficient opportunities to bid with minimal risk of
    an exposure problem. However, we limit package bidding to the C
    Block so that bidders, including small entities, who are unwilling
    or unable to compete against package bids will not be deterred from
    participating in the auction. The variety of blocks and licenses
    that are not subjected to package bidding will provide any such
    bidders, including small entities, with a wide array of
    opportunities.

51. ["New Entrant" Bidding Credit.]{.underline} The possibility of
    granting "new entrant" bidding credits attracted far less comment
    than other issues relating to the auction of the 700 MHz licenses,
    and those parties that did respond were divided on the issue. The
    Commission concludes that a "new entrant" bidding credit for the 700
    MHz Band licenses is not needed to facilitate the entry of new
    service providers. The Commission already offers substantial bidding
    credits to small entities, many of which may be new entrants in the
    spectrum services market, and we therefore do not believe that there
    is a need for an additional "new entrant" bidding credit. In
    addition, the availability of multiple licenses in each and every
    market with varied geographic sizes, coupled with the large number
    of licenses should offer new ventures, including small entities, a
    variety of opportunities to provide service.

52. [Bidding Credits for the 700 MHz Public/Private
    Partnership.]{.underline} A number of small entities have proposed,
    in their comments, that the Commission should offer designated
    entities bidding credits with regards to the license that has been
    proposed by Frontline. [^1202] In brief, these commenters maintain
    that bidding credits will help potential applicants overcome efforts
    by incumbents to prevent others from winning newly available
    licenses.

53. The Commission concludes that it should provide applicants that are
    eligible to be licensed as designated entities with bidding credits
    in the auction of the D Block license, consistent with the
    Commission's prior decision regarding bidding credits for 700 MHz
    licenses and our current designated entities rules. This decision
    will improve the opportunity for small entities to successfully bid
    for the D Block license.

54. [Public Safety Broadband]{.underline}. The *Second Report and Order*
    reallocates the wideband spectrum to broadband use consistent with a
    nationwide interoperability standard, and prohibits wideband
    operations within the newly designated broadband spectrum on a going
    forward basis. The public safety community expressed broad support
    for a broadband allocation to enable advanced communications
    capabilities. The availability of a contiguous block of broadband
    spectrum, subject to a nationwide interoperability standard, enables
    partnerships with commercial licensees in adjacent broadband
    spectrum. As a result, the band plan ultimately enables public
    safety entities to utilize the 700 MHz spectrum in a more
    cost-effective and spectrally efficient manner to address their
    homeland security and emergency response roles. In particular, we
    believe that the interoperable broadband network will be of benefit
    to smaller governmental entities who would otherwise be unlikely to
    have the resources to construct such a network. Because the
    Commission does not anticipate that this reallocation will impose
    additional economic burdens on public safety, and is in fact
    designed to reduce economic burdens on public safety, the Commission
    has taken steps to minimize any adverse impact of the rule changes.

55. The *Second Report and Order* also consolidates the narrowband
    spectrum to the top of the public safety band and locates the
    broadband spectrum at the bottom of the public safety band, in light
    of the potentially significant benefits such reconfiguration will
    afford the public safety community. The alternative would have been
    to retain the existing band plan. The *Further Notice* sought
    comment on how to implement reconfiguration of the narrowband
    channels with minimum disruption to incumbent operations. The
    *Second Report and Order* accommodates public safety operations in
    the border areas with Canada and Mexico, and defrays the costs of
    relocation by providing that such costs will be covered by the D
    Block Licensee. This defrayal of costs should be of particular
    benefit to small governmental entities, which are less likely to
    have the resources to fund such a relocation on their own. The
    Commission expects that the number of entities impacted and the
    expected cost of reconfiguration should be relatively minor. In
    order to receive reimbursement for the cost of the transition,
    however, affected public safety entities are required to provide
    information regarding the narrowband radios and base stations that
    they have deployed. We do not believe that such a reporting
    requirement will place an unacceptable burden on small governmental
    entities.

## Report to Congress

56. The Commission will send a copy of the *Second Report and Order*,
    including this FRFA, in a report to be sent to Congress and the
    Government Accountability Office pursuant to the Congressional
    Review Act.[^1203] In addition, the Commission will send a copy of
    the *Second Report and Order*, including this FRFA, to the Chief
    Counsel for Advocacy of the SBA. A copy of the *Second Report and
    Order* and FRFA (or summaries thereof) will also be published in the
    Federal Register.[^1204]

**APPENDIX D**

**Upper 700 MHz A Block License Modifications**

  ------------ ------------------------------ ------------------------------
  **Market**   **Guard Band A Block\          **Modified Guard Band A Block\
               (746-747, 776-777 MHz)**       (757-758, 787-788 MHz)**

  MEA001       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA002       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA003       PTPMS II Communications,       PTPMS II Communications,
               L.L.C.                         L.L.C.

  MEA004       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA005       Dominion 700, Inc.             Dominion 700, Inc.

  MEA006       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA007       Access 700, LLC                Pegasus Guard Band, LLC

  MEA008       Access 700, LLC                Access 700 Holdings, LLC

  MEA009       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA010       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA011       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA012       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA013       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA014       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA015       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA016       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA017       Pegasus Guard Band, LLC        Access 700, LLC

  MEA018       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA019       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA020       Access 700, LLC                Access 700, LLC

  MEA021       Access 700, LLC                Access 700, LLC

  MEA022       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA023       Pegasus Guard Band, LLC        Access 700, LLC

  MEA024       Access 700, LLC                Access 700, LLC

  MEA025       Pegasus Guard Band, LLC        Access 700, LLC

  MEA026       Access 700, LLC                Access 700, LLC

  MEA027       Access 700, LLC                Access 700, LLC

  MEA028       Pegasus Guard Band, LLC        Access 700, LLC

  MEA029       Access 700, LLC                Access 700, LLC

  MEA030       Access 700, LLC                Access 700, LLC

  MEA031       Access 700, LLC                Access 700, LLC

  MEA032       Access 700, LLC                Access 700, LLC

  MEA033       Access 700, LLC                Access 700, LLC

  MEA034       Pegasus Guard Band, LLC        Access 700, LLC

  MEA035       Pegasus Guard Band, LLC        Access 700, LLC

  MEA036       Pegasus Guard Band, LLC        Access 700, LLC

  MEA037       Access 700, LLC                Access 700, LLC

  MEA038       Access 700, LLC                Access 700, LLC

  MEA039       Access 700, LLC                Access 700, LLC

  MEA040       Pegasus Guard Band, LLC        Access 700, LLC

  MEA041       Pegasus Guard Band, LLC        Access 700, LLC

  MEA042       Access 700, LLC                Access 700, LLC

  MEA043       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA044       Access 700, LLC                Access 700, LLC

  MEA045       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA046       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA047       Pegasus Guard Band, LLC        Access 700 Holdings, LLC

  MEA048       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA049       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA050       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA051       Pegasus Guard Band, LLC        Pegasus Guard Band, LLC

  MEA052       Access 700, LLC                Access 700, LLC
  ------------ ------------------------------ ------------------------------

**STATEMENT OF**

**CHAIRMAN KEVIN J. MARTIN**

Re: Service Rules for the 698-746, 747-762 and 777-792 MHz Bands (WT
Docket No. 06-150); Revision of the Commission's Rules to Ensure
Compatibility with Enhanced 911 Emergency Calling Systems (CC Docket No.
94-102); Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Telephones (WT Docket No. 01-309); Biennial Regulatory
Review -- Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and
Harmonize Various Rules Affecting Wireless Radio Services (WT Docket No.
03-264); Former Nextel Communications, Inc. Upper 700 MHz Guard Band
Licenses and Revisions to Part 27 of the Commission's Rules (WT Docket
No. 06-169); Implementing a Nationwide, Broadband, Interoperable Public
Safety Network in the 700 MHz Band (PS Docket No. 06-229); Development
of Operational, Technical and Spectrum Requirements for Meeting Federal,
State and Local Public Safety Communications Requirements Through the
Year 2010 (WT Docket No. 96-86); Declaratory Ruling on Reporting
Requirement under Commission's Part 1 Anti-Collusion Rule (WT Docket No.
07-166); Second Report and Order

With this Second Report and Order, the Commission takes an historic step
towards two goals that have been priorities of mine as Chairman: (1)
creating a nationwide, interoperable public safety broadband network and
(2) furthering pro-competition broadband policies designed to increase
penetration and ensure that consumers benefit from innovation and
technological advancements.

First and foremost, we have no greater responsibility than meeting the
needs of public safety. And I appreciate the presence of so many
representatives of the public safety community here today. During a
crisis, public safety officials need to be able to communicate with one
another. We are all aware of problems that have been created by the lack
of interoperability for public safety communications during recent
crises like 9/11 and Hurricane Katrina. Emergencies -- natural or
man-made -- do not make distinctions among emergency responders. It is
imperative that the Commission recognize these challenges and provide a
communications solution for our Nation's first responders that is
available to everyone, regardless of the uniform they wear or the towns
in which they live and work.

The public safety-private partnership we adopt today will ensure that
public safety keeps pace with the advances in communications and gives
first responders the broadband communications capabilities they need to
protect safety of life and property of the American public. It has been
almost six years since brave police and fire fighters ran into the Twin
Towers and the Pentagon without an effective emergency communications
system. We should not make these brave men and women wait any longer.

While I also would have supported a network exclusively for the use of
public safety, the simple reality is that there currently is no way to
fund such an enterprise. The use of a public safety-private partnership,
however, creates an opportunity to provide state-of-the-art technologies
to our Nation's first responders in a timely and affordable manner. Many
national and local public safety organizations have expressed support
for a public-private partnership approach as their last, best chance to
make this network a reality. We cannot afford to let the opportunity
that the 700 MHz band offers for public safety pass us by.

The adoption of a National Public Safety Broadband Licensee to be a part
of this partnership is also the best way to establish a truly
interoperable network. The local licensing regime that has been used to
date has resulted in a patchwork of networks that do not talk to each
other. We cannot keep licensing public safety spectrum in the same
manner as before and expect a different result. A National Public Safety
Broadband Licensee will facilitate a unified national approach to the
use of this spectrum, finally enabling all public safety users to talk
to each other during a crisis. I therefore wholly support the public
safety-private partnership adopted in today's order.

In addition, the license winner for about one-third of the spectrum will
be required to provide a platform that is more open to devices and
applications. Consumers will be able to use the wireless device of their
choice and download whatever software they want onto it.

I am committed to ensuring that the fruits of wireless innovation
swiftly pass into the hand of consumers. Currently, American consumers
are too often asked to throw away their old phones and buy new ones if
they want to switch cell phone carriers. And when they buy that new
phone, it is the wireless provider, not the consumer, who chooses what
applications the consumer will be allowed to use on that new handset.

Wireless consumers in many other countries face fewer restraints: for
example, they can take their cell phones with them when they change
carriers, and they can use widely available Wi-Fi networks -- available
in their homes, at the airport or at other hotspots -- to access the
Internet.

This auction provides an opportunity to have a significant impact on the
next phase of wireless broadband innovation. A network that is more open
to devices and applications can help foster innovation on the edges of
the network. As important, it will give consumers greater freedom to use
the wireless devices and applications of their choice when they purchase
service from the new network owner.

When the same decision was made decades ago on the wireline network, we
saw an explosion in innovation and choice. In the wake of the Carterfone
decision, AT&T subscribers went from renting black rotary phones to
purchasing competitively priced, innovative phones such as cordless
phones with voice mail and caller ID. Investment in the market
increased, new phones and calling features were developed and consumers
benefited. Ultimately, these rules facilitated the development of the
Internet, as consumers were able to attach modems to the network and go
anywhere the Internet could take them without interference from the
network owner.

We will ensure these open platform rules are implemented, through
significant enforcement mechanisms that place the burden on the licensee
to demonstrate their compliance and that their policies are fair and
reasonable. The auction provides a rare chance to promote innovation and
consumer choice without disrupting existing networks or business plans.
Indeed, the vast majority of spectrum used for wireless services will
remain without such restrictions.

We must continue to encourage the critical investment needed to build
the next generation wireless network. Since I have been Chairman, I have
advocated strongly that applying network neutrality obligations,
unbundling, or mandatory wholesale requirements to networks can
undermine investment incentives. I do not support such regulations. The
Order we adopt today does not apply these regulations to this block or
any other block. The Commission has found the right balance between
providing incentives for infrastructure investment and fostering
innovation for new services and products.

The Commission recognizes that spectrum is a unique public asset, and we
must obtain a fair return on this asset for the American people. To
ensure that a fair price is paid, the Order includes a reserve price for
this block of spectrum. That price, which is based on the winning bids
for spectrum in our recent AWS-1 auction, will safeguard the value of
the spectrum for American tax-payers.

Finally, the order adopted today provides a variety of block sizes and
geographic areas, which will allow for broad participation by potential
bidders with a variety service plans and business models. Stringent
build-out requirements -- the toughest ever imposed by the Commission --
will ensure that this spectrum is put to use quickly in both urban and
rural areas. Those who fail to follow through will face tough penalties
including the loss of spectrum.

This mix includes a block of spectrum that contains the ingredients to
allow a national wireless broadband service to emerge. I have said it
before, but it bears repeating, the upcoming auction presents the single
most important opportunity for us to achieve the goal of a nationwide
third broadband pipe -- one that would be available to rural as well as
urban Americans. With the adoption of this order, we are one step closer
to allowing all Americans to enjoy the benefits of broadband competition
-- availability, high speeds, and low prices.

In conclusion, I am pleased that the Commission is adopting a fair and
balanced plan that will help:

1)  Facilitate next generation wireless broadband services in both urban
    and rural areas;

2)  Establish a public-private partnership to deploy a wireless
    broadband network for public safety that will address the
    interoperability problems of today's system; and

3)  Provide a more open wireless platform that will facilitate
    innovation and investment.

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

**APPROVING IN PART, CONCURRING IN PART**

** **

Re: Service Rules for the 698-746, 747-762 and 777-792 MHz Bands (WT
Docket No. 06-150); Revision of the Commission's Rules to Ensure
Compatibility with Enhanced 911 Emergency Calling Systems (CC Docket No.
94-102); Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Telephones (WT Docket No. 01-309); Biennial Regulatory
Review -- Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and
Harmonize Various Rules Affecting Wireless Radio Services (WT Docket No.
03-264); Former Nextel Communications, Inc. Upper 700 MHz Guard Band
Licenses and Revisions to Part 27 of the Commission's Rules (WT Docket
No. 06-169); Implementing a Nationwide, Broadband, Interoperable Public
Safety Network in the 700 MHz Band (PS Docket No. 06-229); Development
of Operational, Technical and Spectrum Requirements for Meeting Federal,
State and Local Public Safety Communications Requirements Through the
Year 2010 (WT Docket No. 96-86); Declaratory Ruling on Reporting
Requirement under Commission's Part 1 Anti-Collusion Rule (WT Docket No.
07-166); Second Report and Order

Today we set the ground rules for how some of the most valuable spectrum
on earth will be used. The stakes are enormous. Will our decisions today
make our nation's citizens safer in the event of an emergency? Will they
increase the number and quality of wireless services available to
American consumers---to ***all*** consumers, both urban and rural? Will
they help correct America's dismal broadband performance?

Let's begin with public safety, because that's the most critical part of
all this. As I have many times said, my first preference---by a long
country mile---would have been a fully-funded, federally-funded
public-safety-grade network reserved solely for first responders and
built to the specifications they deem essential for their job of
protecting you and me. At this late date, that is apparently not to be.
In light of the options before us today, then, I believe that pursuing a
shared public-private model---and trying to make it work---is the next
best choice. There are no guaranteed outcomes here, but we have to find
a way---finally---to get this done.

For far too long, our nation's first responders have struggled with the
lack of interoperability. The terrible costs of this failure became
tragically apparent in the aftermath of 9/11 and again following
Hurricane Katrina. Today's item creates a framework for building a
national broadband network, based on a common technical standard, that
will allow universal interoperability among every jurisdiction in the
country. This represents a tremendous step forward.

Our nation's first responders have struggled for too long without
finding the capital necessary to build out a broadband network with the
configuration and the features they so desperately need and deserve.
Given where we are today, I think it is entirely appropriate to permit
them to trade access to their spectrum during off-peak periods---but
always with the ability to preempt commercial use during any time of
need---in return for access to a public-safety-grade broadband network.
This network will reach virtually all of the nation's citizens within 10
years. It will be constructed to the standards that public safety
demands and expects. And it will harness the astonishing technological
advances of the commercial wireless sector. If it works---and it's a
***big*** if---the American people will be appreciably safer.

Moreover, the shared network concept means that public safety will have
access to 20 MHz of broadband spectrum in the event of an emergency, not
just 10 MHz. This too is a difference that can save lives. Bandwidth
matters; speed matters.

One additional benefit of creating a national public safety licensee is
the effect it will have on the price and quality of equipment that first
responders use. Today, we have thousands of public safety agencies that
deal with a handful of equipment manufacturers, so public safety doesn't
have much protection against the higher prices big suppliers can charge
for the tools public safety must have. Our first responders can't
negotiate lower prices, nor can they drive technology development.
Today's order changes that equation. It establishes a single public
safety purchasing block. This will result in equipment that is both
better and less expensive, exactly what our nation's first responders
need. The item also ensures that the national public safety
licensee---and not the commercial operator---will have the final word on
which devices public safety users can attach to the network.

I appreciate my colleagues' willingness to work with me to build these
many safeguards for public safety into today's order. But I also want to
emphasize my belief that our work has really just begun. At the end of
the day, we need to ensure that this network ***actually works for
public safety*.** To me, this cannot and will not happen without strong
and ongoing FCC oversight. I have believed this for years. Today we put
the Commission in the middle of the public safety action---right where
it should have been all along. When the parties reach a network sharing
agreement, the license will be granted only if the full Commission
concludes that the terms reached are in the public interest. If
agreement has not been reached, the full FCC has the authority either to
decide outstanding disputes or to select another commercial entity to
negotiate a different network sharing agreement. After the license has
been granted, there will inevitably be questions about what a particular
provision means or whether it is necessary to adjust certain terms in
the agreement. Again, the Commission will be at the table, and it will
be there during the ensuing operation of the license, too.

Only a strong, active and involved FCC can hold the commercial licensee
to the spirit, as well as the letter, of the network sharing agreement.
I have no illusions that this process will be easy---but the stakes are
just too high to give this effort anything other than the fullest
measure of the Commission's effort.

Let's get one more thing on the table. The requirements we announce
today are very demanding. Building this network will involve costs above
and beyond those required to build a typical commercial network. But I
think that these are the minimum process requirements necessary to
ensure that the network actually works for public safety*.* If the
stringency of the requirements we announce today means that no one shows
up to bid on the commercial license, or that the two parties ultimately
cannot reach an agreement that ends up being in the public interest,
then I am perfectly willing to go back to the drawing board. I won't be
happy if this happens, but I'm not about to cut corners if it means
compromising public safety. Far better that public safety remains in
control of its spectrum---and free to find another model for funding
it---than for this Commission to bless a sharing arrangement that does
not fully protect the nation's citizens and its first responders.

Let me turn now to the commercial side of this auction. There is a lot
in this part of the Order of which we can be proud---but here, too,
there are no guarantees and some last-minute changes give me
considerable pause. First, the good news. I commend the Chairman's
leadership on the *Carterfone* issue. Six months ago, *Carterfone* was a
term of largely historical interest---an important and venerable
decision, to be sure, but hardly on the tips of most policymakers'
tongues. Even four months ago, when I called for a general rulemaking on
how *Carterfone* could be applied to the current wireless marketplace, I
had little hope that such principles would be codified in our wireless
rules anytime soon.

Now, within just the last month, *Carterfone* and wireless open access
have been on the front pages of *USA Today*, the *New York Times*, and
the *Washington Post*. They have been the subject of Congressional
hearings and industry and academic policy forums, as well thousands of
emails and letters to the Commission from citizens across the country.
What a striking reminder of just how powerful a good idea can
be---especially when coupled with strong Congressional oversight and
grass roots activism. I find it extremely heartening to see that an
academic paper---in this case by Professor Timothy Wu of Columbia Law
School---can have such an immediate and forceful influence on policy.
Credit is due to Professor Wu as well as many tireless advocates in the
public interest and high-tech communities for bringing this idea to the
fore. As Congressman Ed Markey, who has been a true trail-blazer here,
put it: *Carterfone* "result\[ed in\] ... incredible innovation and
\[was\] an unquestioned policy success. The FCC has a rare chance to
foster similar innovation in the wireless marketplace in the upcoming
auctions." Wireless *Carterfone*, in short, is an idea whose time has
come.

It is especially heartening to see wireless open access getting so much
attention because I am a true believer in openness and decentralization
when it comes to ***all*** of the industries this Commission regulates.
Whether we're talking about media ownership, the future of the Internet,
video distribution, or ownership of wireless and wireline assets, I
believe that reducing the power of gatekeepers and increasing the
intensity of competition is the right policy call. It's the right call
because it returns power to consumers and entrepreneurs and limits
incumbents' power to extract monopoly or oligopoly rents. The device and
application openness principles that today's Order implements for 22 MHz
of the commercial spectrum will mean more choices, better services and
lower prices. They will permit entrepreneurs to innovate without asking
somebody else for permission---just as the developers of the fax
machine, dial-up modem, and Wi-Fi router did.

Of course, as with so much of the Commission's work, the devil will be
in the details. It is especially important that today's item gives
consumers, device manufacturers, and other interested parties a right to
seek redress if the C-block licensee seeks to discriminate against them.
I believe that this case-by-case approach strikes the appropriate
balance between preventing harm to the network and giving teeth to our
anti-discrimination mandate. Justice delayed is often justice denied,
the old adage says, and that is why I am happy that we announce today a
180-day shot clock for Commission enforcement decisions.

Even though the device and application openness principles are indeed
good news, the Order does not go far enough in one important respect. We
all know that America's broadband performance leaves a lot to be
desired. To me, the culprit is clear: a stultifying lack of competition
in the broadband market, which in the words of the Congressional
Research Service is a plain old "cable and telephone . . . duopoly." A
22 MHz block of 700 MHz spectrum is uniquely suited to provide a
broadband alternative, with speeds and prices that beat current DSL and
cable modem offerings. Maybe this can happen yet in this spectrum, but
by declining to impose a wholesale requirement on the 22 MHz C-block,
the Commission misses an important opportunity to bring a robust and
badly-needed third broadband pipe into American homes.

A wholesale requirement would have been sound policy for several
reasons. First, requiring licensees to offer network capacity on
non-discriminatory terms would have been an enormous shot in the arm for
smaller companies---including those owned by women and minorities---that
aren't interested in or capable of raising the huge sums necessary to
build a full-scale network. Smaller entrepreneurs deserve an alternate
path to wireless access. Wholesale would have been good news for
them---and for consumers.

Second, a wholesale requirement would have leveled the playing field for
companies that want to get into the network business but cannot break
through the defenses erected by the massive incumbents who dominate the
industry. It is not hard to see why companies with extensive networks
and millions of customers are generally able to outbid new entrants,
even deep-pocketed ones. After all, the incumbents are (quite
rationally) willing to pay an enormous "blocking premium" just to
discourage new competitors. And their existing network infrastructure
gives them a huge cost advantage when it comes to building a new
network. Our current spectrum rules are tilted too much toward companies
with built-in, competition-killing advantages.

Moreover, due to the Commission's short-sighted decision a few years ago
to eliminate spectrum caps, we have seen a wave of consolidation among
wireless incumbents that has substantially increased the hurdles facing
potential new entrants. And now we live in a world where the two leading
***wireless*** companies are owned in whole or in part by the leading
***wireline*** telephone companies. It is no knock on these companies to
say that they may be more than a little reluctant to employ their
spectrum holdings to put price and quality pressure on their wireline
broadband products. What else would we expect them to do? The solution
is to encourage an additional wireless competitor that has no
affiliation with a wireline provider. A wholesale requirement would have
given unaffiliated companies the fighting chance they need.

Third, the record in this proceeding clearly demonstrates a strong
business case for the wholesale model. Some parties initially raised
doubts about whether a wholesale business model could be economically
self-sustaining. I believe that the record compiled in this proceeding
answers that question. Several sophisticated companies and financial
institutions have concluded that wholesale is indeed a viable economic
model.

I think it is very good news for consumers that we adopt build-out
requirements in this band that are among the strongest and most
innovative that we have ever adopted. Use-it-or-lose-it provisions,
along with geography-based benchmarks in the lower band, will ensure
that licensees have a reasonable period to make use of their spectrum
rights, while also allowing third parties a chance to provide service in
areas where the original licensees are not. In one respect, I would have
gone further. I believe that Commissioner Adelstein's proposal that
licensees who have met their 10-year benchmark should still be subject
to "triggered" use-it-or-lose it provisions---because if a competitor is
willing to make use of remaining unused spectrum, it should have the
right to do so. Spectrum is too valuable a resource to allow it to lay
fallow.

My deepening concern this afternoon is that this auction might not end
up being the stimulus to a third pipe, the right to attach devices, to
run applications and to encourage the innovation and entrepreneurship
that we all hope for because of some add-on provisions. The item now
imposes reserve prices on each of the individual spectrum blocks,
something without precedent in previous auctions and something, it seems
to me, rather at odds with letting the market pick the auction block
winners. The procedure in this Order carries chilling risk to the
success of the auction. If some of these blocks do not fetch the bid
prices stipulated, perhaps because of gaming of the worst sort, they
will be re-auctioned with weaker build-out requirements. If the 22 MHz
block, where we hope for *Carterfone* open access principles, fails to
elicit a \$4.6 billion bid, it will be re-auctioned without *Carterfone*
open access. In the end, all of this micro-managing virtually hands
industry the pen to write the auction rules and to constrict all the
opportunities this spectrum held forth. The end result could be: same
old, same old. What a pity that would be!

In closing, we came farther on some things than many thought likely a
few months, or even a few weeks, ago. There is much to approve in this
Order. I will concur in two parts because wholesale open access is not
stipulated and also because of the concerns I have discussed regarding
how the micro-managed reserve pricing scheme could subvert the higher
goals of the auction.

Many individuals and groups---too numerous to mention---worked hard to
assist us in our deliberations on this proceeding. I do want to thank
the Bureaus and particularly commend Chief Derek Poarch and Fred
Campbell for their insights, vision, constant availability and just
plain dogged determination to get to a promising result. I want to thank
the public safety community who gave so generously of its perspective
and counsel; consumer and advocacy groups that worked to make this more
consumer- and democracy-friendly, and the many entrepreneurs and
business leaders who shared their perspectives on how to make this
effort viable. I thank my personal staff, particularly Bruce Gottlieb,
for his tireless efforts, and also the staffs of my colleagues. I am
grateful to Chairman Martin for his vision and courage, and I thank each
of my colleagues for their commitment to public safety and their yeoman
work on this important proceeding. This has been a truly monumental
effort. I hope it works. And I pledge my ongoing commitment to make that
happen.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

**APPROVING IN PART, CONCURRING IN PART**

Re: Service Rules for the 698-746, 747-762 and 777-792 MHz Bands (WT
Docket No. 06-150); Revision of the Commission's Rules to Ensure
Compatibility with Enhanced 911 Emergency Calling Systems (CC Docket No.
94-102); Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Telephones (WT Docket No. 01-309); Biennial Regulatory
Review -- Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and
Harmonize Various Rules Affecting Wireless Radio Services (WT Docket No.
03-264); Former Nextel Communications, Inc. Upper 700 MHz Guard Band
Licenses and Revisions to Part 27 of the Commission's Rules (WT Docket
No. 06-169); Implementing a Nationwide, Broadband, Interoperable Public
Safety Network in the 700 MHz Band (PS Docket No. 06-229); Development
of Operational, Technical and Spectrum Requirements for Meeting Federal,
State and Local Public Safety Communications Requirements Through the
Year 2010 (WT Docket No. 96-86); Declaratory Ruling on Reporting
Requirement under Commission's Part 1 Anti-Collusion Rule (WT Docket No.
07-166); Second Report and Order

Our decision today is one of the most significant and groundbreaking we
have conducted in the time I have served. These 700 MHz licenses are the
finest crown jewels the FCC has to put up for auction. This coveted
spectrum presents us with a historic opportunity to facilitate vibrant,
spectrum-based opportunities for both consumers and wireless providers.
I am pleased that today's item, to some extent, embraces this potential
for the next generation of wireless broadband service providers. I
commend Chairman Kevin Martin for his leadership in steering this item
on a consensus path that serves consumers.

Most of the time, our decisions are relatively narrow -- limited to a
specific issue or segment of industry. Other times, we are presented
with an opportunity to shape a larger segment of the market. On this
rare occasion, we are presented with the dual opportunity to
fundamentally begin to change the way over 200 million U.S. consumers
receive their wireless services, while at the same time substantially
redefining the FCC's approach to spectrum policy for years to come.

It would have been easier to stick with what's tried and true in
considering the 700 MHz band. We could have declined to adopt any
controversial conditions to open the market; we could have stuck with
our traditional substantial service construction standard; we could have
allowed public safety agencies to fend for themselves in trying to
develop a long-awaited interoperable network. We could hold a fine
auction without much effort. But because our job is to promote the
public interest, the status quo was not an option.

I have heard the plea of 250,000 consumers who submitted comments in
support of open access. I have heard the concerns of Silicon Valley's
best minds expressing frustration with their inability to innovate in
the wireless space. I have heard the public safety community's cry for
help, and their willingness to join their spectrum with a commercial
provider in order to create a unique public-private partnership. And
we've responded.

*Open Access*. While this item does not deliver everything consumers and
innovators wanted, or many of the improvements I suggested, our decision
today represents an important step, if a modest one, in the right
direction. We can be proud to say we are offering consumers a new
paradigm they have longed for and certainly deserve. We cannot afford to
let innovation in wireless devices and applications take root in Europe
and Asia before it can occur in the U.S. If we want to maintain our
world leadership in technology, we need to harness the full creativity
of our many wireless engineers and entrepreneurs. We need to unleash
them from the shackles of a handful of gatekeepers who dominate access
to the wireless mass market.

The item before us is a positive step for consumers because its sets in
motion a new approach. I am pleased with the willingness of my
colleagues to support a meaningful, though not perfect, open access
environment on a significant portion of the 700 MHz spectrum. It
represents an honest, good faith effort to establish an open access
regime for devices and applications.

I especially appreciate my colleagues' willingness to work with me to
include real enforcement with teeth, and provisions to promote a
genuinely open standard that innovators can build upon. The Order before
us is significantly improved in these areas, although the true test of
their effectiveness will be seen over time and through future Commission
actions and oversight. So, we'll need a true commitment if this Order is
going to be effective. If successful, our approach can ultimately lead
to benefits for the many consumers who so desperately want unfettered
ability to use any wireless handset and download any application they
want on the C Block spectrum.

The past several years have seen an explosion of new opportunities for
consumers, like Wi-Fi, WiMax, and more advanced mobile services. But
despite these technological advances, consumers are frustrated by
arbitrary limitations on the types of devices and functions they can
access. The open access requirements we adopt today can and should
improve the consumer experience. Now, instead of being limited to
purchasing a phone and service contract from one network provider, a
consumer can purchase any wireless device compatible with the C Block
network and use all of the available features and functions.

This also means progress for wireless innovators -- application
developers, manufacturers, and carriers alike who will now be unleashed
to bring new multi-media products to market for use on this spectrum.
The Internet has been a source of remarkable innovation and an engine
for economic growth and productivity. It is critical that we bring the
benefits of the Internet to the wireless world, and I believe our
actions today take us in that direction.

*Wholesale*. One of the best options for promoting broadband,
particularly in rural areas, and for providing new competition all
across the country, is maximizing the potential of spectrum-based
services. Instead of the third "pipe," this holds promise as the third
"channel." Or -- if we can wax truly optimistic -- perhaps we have an
opportunity for a fourth or fifth channel through the innovative use of
spectrum. Ideally, this auction will facilitate the emergence of new
broadband channels with the goal of providing consumers everywhere the
benefits of a high-quality wireless broadband network.

Though we have hope and expectations for this auction, we must recognize
that today's decision alone won't solve our broadband challenges, nor
will it provide any instant remedies. Even if all goes well, today's
decision won't afford opportunities until 2010 at the earliest. Yet,
right now, we face major challenges bringing affordable, truly-high
speed broadband to all our communities and ensuring that we give our
citizens the same choices and tools that are available to citizens in
the countries that are our leading global competitors. So, we can
certainly ill afford to claim "victory" and sit idly on our hands for
the next two plus years.

While I remain hopeful that such a third channel does emerge, I am
concerned that we haven't done enough here to open up these critical
airwaves to badly needed competition in the broadband space. Those who
argue such measures are not necessary because the wireless market is
already competitive miss the point. The real problem is the lack of
competition in the *broadband* market, where 96 percent of consumers are
served by the incumbent telephone or cable company.

I believe that a truly open wholesale model would stand as a breeding
ground for innovation, for allowing new and diverse competitors to
flourish, and for spurring unparalleled levels of competition into the
broadband marketplace. While this item represents progress for consumers
in terms of new openness for devices and applications, I can only concur
to this portion of the item because we could have done more to promote
open markets by adopting a wholesale model to attract vigorous
competitive alternatives.

We have also lost an opportunity to provide crucial bidding credits to
designated entities that wholesale fully built-out network services. I
think it is essential that we revisit our policies in this respect to
ensure that all bidders have opportunities to bid, particularly where
wholesale service is a compelling option for new and diverse providers.

We have had to strike a compromise -- and while the measures we take
here today are less than what I would have proposed, they are
significant and will serve consumers well. At the end of the day,
though, I am afraid we may have missed a golden opportunity to open that
elusive third channel into the home.

*Band Plan and Service Rules.* I've often talked of "spectrum
facilitation" -- looking at all approaches, technical, economic or
regulatory, to get spectrum into the hands of operators ready to serve
consumers at the most local levels possible. We have a special
responsibility to establish band plans that allow for a diversity of
license sizes and to maximize the level of utilization by giving more
options so that the market can perform most efficiently. I recognize
that many small providers believe that we have failed to provide for
them today. I am somewhat frustrated that the pro-consumer open access
provisions were tied to a large 22 MHz block, and would have been happy
to break that into pieces that could have better accommodated the needs
of a variety of sizes of players. I am also concerned that the reserve
price and second auction requirements set out in this item leave open a
real potential for gaming and may result in unintended consequences.

But I am pleased that we have added a paired Economic Area block in the
lower band to the Cellular Market Area license already set for auction.
And, as discussed below, we have adopted aggressive build-out
requirements to promote network buildout. These are significant changes
that will help provide additional opportunities for small and mid-sized
interests, rural providers, and new entrants.

Our job at the FCC is to do whatever we can to promote spectrum-based
opportunities in the future. To get there, I am continually evaluating
the FCC's service and construction rules to ensure that our policies do
not undercut the ability of wireless innovators to get access to new or
unused spectrum. I have advocated a carrot and stick approach. We want
to promote flexibility and innovation, but since the spectrum is a
finite public resource, we want to see results as well.

In our item today, we adopt some of the strongest performance
requirements in history to ensure that this wireless frontier truly gets
developed. As we did with the homesteaders 150 years ago, we are happy
to get this prime real estate in the hands of those that will use it.
Just like the government required of homesteaders, we want this fertile
soil tilled and put into use, including in rural areas of the country.
Out of this development will sprout the fruits of innovative product and
service offerings to every corner of America.

Regrettably, though, I have long advocated the adoption of a triggered
"keep what you use" approach to spectrum policy, and I am disappointed
that such an approach is not adopted in this item. I am hopeful we can
make progress on this because I think it presents the best vehicle to
ensure that fallow spectrum is either put to use or made available to
other interested parties.

*Public-Private Partnership for Public Safety*. Finally, I'd like to
turn to perhaps the most paramount issue for this Commission: public
safety. The role of communications is so important during emergencies,
whether citizens are trying to find out what is happening with their
families or emergency personnel are responding to an urgent situation.
It is critical that the Commission provide the best leadership possible
to ensure that communications are fully operational during these most
serious events. Indeed, this is one of our core directives under the
Communications Act of 1934, codified in the Act's very first section.

The Commission can and must play a key role in improving our nation's
disaster preparedness, network reliability, and communications among
first responders. This item marks a pivotal step in addressing the needs
of public safety. Six years after the tragedies of 9/11 and three years
after the 9/11 Commission issued its report on terror attacks on the
United States, our country is still without a national interoperable
public safety broadband network. Policymakers all agree that our first
responders need the best technology and communications network possible.
Yet to date, there have been no other viable plans brought forward to
realize the critical need for an interoperable network for public
safety.

The implementation of this shared commercial and public safety network
presents a myriad of complex and novel issues. There is no guarantee
that the model we\'ve created here will nurture a nationwide
interoperable public safety system that is both commercially viable and
technically feasible. And while I would prefer direct Federal funding
for building a national public safety broadband network, it presents the
only option available to us at the Commission. For this reason, I am
happy that this Commission is stepping forward to meet this challenge by
paving the way for a public/private partnership. This may be the only
way to realize the important goal of making a nationwide and
interoperable network truly available to our nation's first responders.

*Conclusion.* There's an old expression that to make an omelet, you have
to break some eggs. Today, we are cooking up a new age of wireless
services. I appreciate the steps we are taking, and am pleased that we
are moving forward in ways that this Commission would have never even
considered a year or two ago. I look forward to a successful auction and
the successful implementation of our exciting new policies.

**STATEMENT OF**

**COMMISSIONER DEBORAH TAYLOR TATE**

**APPROVING IN PART, CONCURRING IN PART**

Re: Service Rules for the 698-746, 747-762 and 777-792 MHz Bands (WT
Docket No. 06-150); Revision of the Commission's Rules to Ensure
Compatibility with Enhanced 911 Emergency Calling Systems (CC Docket No.
94-102); Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Telephones (WT Docket No. 01-309); Biennial Regulatory
Review -- Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and
Harmonize Various Rules Affecting Wireless Radio Services (WT Docket No.
03-264); Former Nextel Communications, Inc. Upper 700 MHz Guard Band
Licenses and Revisions to Part 27 of the Commission's Rules (WT Docket
No. 06-169); Implementing a Nationwide, Broadband, Interoperable Public
Safety Network in the 700 MHz Band (PS Docket No. 06-229); Development
of Operational, Technical and Spectrum Requirements for Meeting Federal,
State and Local Public Safety Communications Requirements Through the
Year 2010 (WT Docket No. 96-86); Declaratory Ruling on Reporting
Requirement under Commission's Part 1 Anti-Collusion Rule (WT Docket No.
07-166); Second Report and Order

To begin, I also would like to thank the staff of the Wireless Bureau
and the Public Safety and Homeland Security Bureau for their incredibly
hard work on this item.

With the upcoming auction of spectrum in the 700 MHz Band, we have the
historic opportunity to generate billions of dollars for the U.S.
Treasury and its taxpayers, spur the development of broadband to rural
Americans, and support the creation of a nationwide interoperable
broadband communications network for the benefit of state and local
public safety users---and ultimately for the safety and security of all
Americans. A majority of this Commission has agreed to the rules
established by this item and I cannot say they are totally wrong. I may
not agree with their reasoning or philosophy, but this is a very close
call. Given the importance of this auction, our statutory time
constraints and my desire to always try to reach a consensus, overall I
support the item, noting my strong support for the portions of the order
related to public safety service, while being lukewarm regarding the
portion of the item that places what my colleagues call "open access" in
the C Block on devices. I can only concur as to the majority's extension
of open access to applications. There is much that is good about this
item, but it is by no means a perfect one.

I would have preferred, as some commenters noted, to have a full and
open hearing, time for thoughtful discussion within the context of
another, more appropriate legal venue. However, this was my only chance
to have what I consider a more positive impact on a less than perfect
experiment.

First and foremost is our joint desire and one we have all spent a great
deal of time discussing: a nationwide broadband infrastructure for
public safety. The promise of this type of network will help finally
fulfill important and indeed life-saving goals of the 911 Commission,
our own post-Katrina panel as well as what we have seen and heard around
the nation: the ability for a firefighter and a police chief to
communicate during a local emergency.

Regarding our public safety community, the dissemination of vital
information and interoperable communications are the backbone of our
defense against attacks on our homeland, as well as our ability to
respond to natural disasters or even an environmental crisis or
pandemic. Today's item strengthens this defense. In addition, we re-band
the public safety spectrum in a way that will allow more broadband
service to the public safety community by working in cooperation with
the commercial licensee involved in a public/private partnership. With
input from the public safety community regarding their needs and desires
and a number of fascinating, entrepreneurial concepts proposed in the
comments, the public/private partnership made possible by this order
also will help create important incentives for a commercial entity to
serve private consumers as well as the public safety community as they
protect the safety of life, health, and property of all Americans. We
also adopt strict build-out rules for the commercial licensee in this
partnership, with an aggressive schedule for serving public safety
users.

In addition, I am pleased that the item helps promote broadband service
in rural America. Broadband deployment means, or should mean, the
availability of advanced services to all Americans. As a former state
official in a state with a large rural population, expanding the
availability of broadband beyond the largest cities is important to me.
Just last week, I joined Tennessee officials for the announcement of
"Connect Tennessee". This public-private partnership, already wildly
successful in Kentucky, will be a blueprint for expanding and
encouraging all types of broadband connectivity. This item takes an
important step towards this goal by adopting smaller geographic license
areas for almost half of the spectrum to be auctioned in the 700 MHz
Band. Such a policy makes it easier for small and rural service
providers -- firms that often best know the rural consumer -- to acquire
the spectrum they need to serve in these rural markets. We also
establish strict build-out requirements to ensure that the majority of
consumers, including those in rural areas, are served.

For the most part, the rules that we apply to the 700 MHz Band also will
allow licensees the flexibility they need to experiment and develop
those services that are demanded by consumers. Similarly, the mix of
geographic license areas -- including smaller license areas over CMAs
and EAs as well as larger license areas -- will allow potential service
providers of all sizes to more easily acquire spectrum licenses that
meet their business needs.

We take other steps in this order in a similar effort to allow consumers
more control over the devices and applications they use in one specific
block, the Upper 700 MHz C Block. I am hesitant to use the term "open
access," since it means different things to different people. Here, I
interpret our decision to pertain to "unlocking and unblocking" legal
devices and applications as used by the consumer, while also recognizing
and specifically allowing for protection of the network, and nothing
more. I hope this decision will unleash untold new devices and
applications that users will be able to enjoy at home, at work, on the
go, in hotspots, and in rural areas.

Many consumers want mobile devices that are not tied to any one network.
For this reason, I support device portability as yet another means of
consumer choice. I also recognize that at least some network operators
increasingly are giving their customers this option, or stating they may
give this option, in the future. Thus, to some extent, the item we adopt
today simply codifies what the market already is doing.

Many consumers also want to access a variety of applications, including
some currently not available under arrangements with many network
operators. This issue poses great potential for incredible consumer
benefit. It also poses risks.

Moreover, we should keep in mind that our wireless infrastructure,
including commercial wireless infrastructure, plays an important role in
supporting public safety and homeland security. The conditions we adopt
today are designed to apply so long as the operator's network is
properly protected. We should not underestimate the value of reasonable
requirements established by a network operator to protect its network
and allow for compliance with its regulatory obligations, such as an
obligation to provide e911 service.

None of us would want an e911 call to go unanswered because it could not
find its way through a maze of movie and music downloads, or malicious
software. Thus, the network operator must be able to reasonably manage
the foreign applications on its network.

I also recognize that, in adopting these limited conditions, we also may
influence the next generation of industry structure. Mandating a certain
type of industry structure in one band may have a positive impact, and
certainly that is what we hope. Again, we must carefully consider the
risks.

We should not forget that the U.S. wireless market that has so
effectively served American consumers is one of the most competitive in
the world, with prices lower, and usage higher, than any country in
Europe and almost any country in the world. It also is a market with
great innovation, including, most recently, the Apple I-phone and a
Sprint Nextel partnership with Google to bring applications via WiMax
service.

I hope today's item will not result in unexpected negative consequences,
such as consumers seeing less of such innovations or losing access to
the many packages of services they enjoy today. If this effort is
successful, consumers will enjoy the fruits of one additional type of
business model in the years to come. In the end, it is the consumer and
the marketplace who will be the judge.

It is with these concerns that I support the narrowly tailored
requirements in this order. However, let me be clear regarding what it
does not include. As adopted here, these rules do not apply to any
currently issued spectrum license. They do not directly affect any
existing network. They do not affect any existing pricing structure.
Carriers will still be free to establish business plans of their choice,
including, for instance, pricing models based on the amount of bandwidth
used, tiered pricing, or other innovations we have not yet seen.
Carriers also will retain the ability to establish reasonable safeguards
in order to protect their network. Moreover, even if a device meets
network certifications, wireless providers of course may stop malicious
or illegal applications. Similarly, carriers will not be liable for
harms that arise out of the use of foreign devices, including harms
related to applications used on such devices, much like our treatment of
cable and wireline providers when customers use foreign devices on their
networks. Given our recognition of the importance that wireless
infrastructure plays -- and will continue to play for years to come --
in homeland security, the carriers are held harmless for devices and
applications that cause network failures that may affect e911, CALEA, or
other social obligations required by law.

We also provide even more safeguards regarding the auction proceeds and
the potential winning bids pursuant to the Deficit Reduction Act of
2005, by setting a reasonable reserve price for spectrum blocks in this
auction. Thus, if we are wrong about the "open access" conditions and
the reserve price is not met, then this spectrum block, as the Chairman
recently testified, will immediately be re-auctioned without any of
these conditions.

My hope is that we have created an incubator for the next killer app,
the next platform or the next cool device. In fact, the
entrepreneur-inventor who will make all this happen is probably just in
the 8^th^ grade. We have provided one finite place to encourage the next
fantastic innovation to occur and for Americans to roam free across
networks, miles and corporate business models.

**STATEMENT OF**

**COMMISSIONER ROBERT M. McDOWELL**

**APPROVING IN PART, DISSENTING IN PART**

Re: Service Rules for the 698-746, 747-762 and 777-792 MHz Bands (WT
Docket No. 06-150); Revision of the Commission's Rules to Ensure
Compatibility with Enhanced 911 Emergency Calling Systems (CC Docket No.
94-102); Section 68.4(a) of the Commission's Rules Governing Hearing
Aid-Compatible Telephones (WT Docket No. 01-309); Biennial Regulatory
Review -- Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and
Harmonize Various Rules Affecting Wireless Radio Services (WT Docket No.
03-264); Former Nextel Communications, Inc. Upper 700 MHz Guard Band
Licenses and Revisions to Part 27 of the Commission's Rules (WT Docket
No. 06-169); Implementing a Nationwide, Broadband, Interoperable Public
Safety Network in the 700 MHz Band (PS Docket No. 06-229); Development
of Operational, Technical and Spectrum Requirements for Meeting Federal,
State and Local Public Safety Communications Requirements Through the
Year 2010 (WT Docket No. 96-86); Declaratory Ruling on Reporting
Requirement under Commission's Part 1 Anti-Collusion Rule (WT Docket No.
07-166); Second Report and Order

First, I would like to thank my colleagues, the dozens of bureau
professionals, the scores of representatives from the tech community,
the investment community, consumer, public safety, public interest
groups, and potential bidders - both large and small - with whom I have
met and who have worked so hard on what is being dubbed the "auction of
the century." Thank you for your suggestions and insight regarding what
is the best way to use this spectrum to meet the demands of American
consumers. This is an historic day for the Commission and for America.

The Order before us has certain positive attributes. Among them is the
plan to spark a public/private partnership for public safety by
allocating an additional 10 megahertz of spectrum to aid in the
construction of a nationwide, interoperable network. This plan has been
assembled as the result of close coordination with the public safety
community, and I am pleased to support it. We all owe many thanks to my
distinguished colleague, Commissioner Copps, for his passion, vision,
leadership, and toil on this matter that is so vital to our country. Of
course, the next step is to ensure that a bidder willing to accommodate
public safety's specifications buys this slice of spectrum at auction
and builds it out in a timely manner with state-of-the-art technology.
With today's action, public safety will have about 107 megahertz of
spectrum at its disposal.[^1205] So it appears to me that ongoing
efforts should more closely focus on attaining the quickest and most
efficient use of this spectrum. Protection of America's security can't
wait any longer.

Another positive attribute of today's Order is the band plan for the
commercial blocks of the 700 MHz spectrum, which I am supporting. This
band plan has been advocated by a wide variety of interested parties,
including possible new entrants, Silicon Valley companies, as well as
existing wireless license holders. The band plan, minus the open access
condition, could provide new opportunities for a wide variety of
technologies and business plans.

With respect to performance requirements for the commercial spectrum, I
have listened to parties discuss the merits of various requirements with
an open mind. On the one hand, it is important that the Commission not
set the bar too high, which may cause licensees to deploy less robust
technologies. On the other hand, this spectrum has excellent propagation
characteristics, so network construction should be more economically
efficient. Certainly we want to ensure that all Americans, no matter
where they live or work, have prompt access to advanced wireless
services. I support the requirements set forth in the Order, and am
pleased that the new rules will allow interested entities access to any
un-built spectrum sooner rather than later.

After careful deliberation, my conclusions regarding some of the other
more-publicized issues are as follows:

1)  While we can agree on the destination \-- consumers should be able
    to enjoy device and application portability if they want \-- we may
    respectfully disagree about the best path to get there;

2)  In an unencumbered auction, any winning bidder is free to offer
    those features without restrictions;

3)  Large wealthy corporations interested in a particular business plan
    do not need the government's help in this auction; and

4)  In the absence of market failure, I favor a market-based
    pro-competition solution to the challenges raised in this proceeding
    over a prescriptive regulatory approach.

In other words, I am disappointed that the majority didn't try to work
with industry to forge a consensus solution rather than rushing to
regulate without thinking through possible unintended consequences.

As background, my original vision for the 700 MHz auction was for our
rules to maximize investment, innovation, and consumer choice by
promoting competition through the crafting of a wide variety of
unencumbered market and spectrum block sizes. We had the opportunity to
help foster the development of a fourth, fifth or sixth new broadband
pipe offered perhaps by small town entrepreneurs or new regional
players. In fact, we've heard from a broad array of companies, and an
overwhelming number of Members of Congress on this important point.
Unfortunately, the encumbered spectrum structure supported by the
majority will force large wealthy bidders away from the Upper Band and
into the smaller, unencumbered blocks in the Lower Band. Smaller
players, especially rural companies, will be unable to match the higher
bids of the well-funded giants.

Depriving the nascent 700 MHz market place of smaller new entrants will
result in less innovation and competition, not more. Consumers could be
short-changed as a result. And it is small new entrants that should be
as important to this equation as large new entrants. Pinning our hopes
on a single national "white knight" to offer only one new pipe is risky
at best. And keep in mind that the Commission's rules do not prevent any
bidder from offering any kind of new application or functionality,
including device portability, or from aggregating smaller market sizes
to forge a national footprint, as we witnessed with last summer's
Advanced Wireless Services auction. Throughout this proceeding, I have
not heard a convincing argument refuting why wealthy Silicon Valley new
entrants are not as capable of bidding on unencumbered spectrum as other
wealthy companies. More importantly, I remain unconvinced that the
Commission must favor large companies over smaller entrepreneurs. Why
not give both an equally fair shot with *one* open, condition-free
auction that offers varied market and spectrum block sizes?

Curiously, however, in an effort to favor a specific business plan, the
majority has fashioned a highly-tailored garment that may fit no one.
It's not what Silicon Valley wants; it's not what smaller players have
told me they want; and it's not what rural companies want. To date, the
Commission has received no assurances that any company is actually
interested in bidding on the encumbered spectrum. Not one. The majority
recognizes the risk that the encumbrances pose by taking the
unprecedented step of designing a fall-back "Plan B" auction in the
event the first auction fails. Perhaps the majority has only little more
confidence in its plan than I do.

If this new regulatory regime is all in the name of fostering device and
application portability, I want consumers to know that the seeds of
these offerings are already germinating. The wireless market is starting
to deliver device and application portability because it has been
allowed to function freely and has been responsive to consumer demand.
For example, over the past couple of years, wireless carriers have
offered at least ten different phones that are compatible with *any*
Wi-Fi network. This capability allows consumers to navigate the Internet
just as they can on their home computer, and download software such as
voice over Internet protocol applications, or popular search engines.

Savvy consumers may be the only ones who are "in-the-know" today, but
they are the early adopters who are paving the way for the rest of us
laggards. Further, these business developments are by no means the end
of the innovation that is rising above the horizon, but the beginning of
a brighter revolution that is already dissolving walled gardens across
all platforms. Just ask America Online about the long-term viability of
a walled garden strategy. So, I'm not sure it makes sense for the
majority to take credit today for spurring device and application
portability when it's sprouting on its own.

The new regime adopted today is being imposed against the backdrop of a
vibrant wireless market. Just last fall, in our *2006 Wireless
Competition Report*,[^1206] all five of us concluded that it was
healthy, open and competitive. There, we noted that, over the last 13
years, wireless subscriber growth has grown exponentially and
competition among numerous providers has flourished. Ninety-eight
percent of the total U.S. population continues to live in counties where
three or more different operators compete to offer wireless service,
while nearly 94 percent of the U.S. population continues to live in
counties with four or more different operators competing to offer
service.[^1207] At the same time, prices are decreasing. Our report
estimates that revenue per minute (RPM) declined 22 percent in 2005
alone.[^1208] RPM currently stands at \$0.07, as compared with \$0.47 in
December 1994 -- a decline of 86 percent.[^1209]

It is interesting that today's Order does not cross reference or
otherwise discuss the Federal Trade Commission's recent unanimous and
bipartisan finding that there is no need for net neutrality regulations
like the ones imposed today.[^1210] Only one month ago, the FTC's
Internet Task Force recommended that policymakers proceed "with caution
before enacting broad, *ex ante* restrictions in \[the\] unsettled,
dynamic environment" of broadband Internet access.[^1211] Specifically,
the report concludes that the effect of potential conduct by broadband
providers on consumer welfare is "indeterminate."[^1212] The report
adds, "No regulation, however well-intended, is cost-free, and it may be
particularly difficult to avoid unintended consequences here, where the
conduct at which regulation would be directed largely has not yet
occurred,"[^1213] and cites growing consumer demand, increasing access
speeds, falling prices, and new market entrants as evidence that
competitiveness in the broadband Internet access industry is moving in
the right direction.[^1214] Today's Order offers no evidence to refute
the FTC's findings and conclusions. Furthermore, the FCC should heed the
FTC's warning about the unintended consequences of unnecessary
regulation.

Perhaps most surprisingly, today's Order acknowledges that the
Commission need not decide whether competition is sufficient enough to
refrain from imposing open access requirements in this proceeding
because these questions are being considered more broadly elsewhere.
Despite this express acknowledgement, however, the majority seeks to
"encourage additional innovation and consumer choice" and "spur the
development of innovative products and services" by encumbering the C
Block license. At the same time, the Order does not dismiss or otherwise
dispose of the pending *Skype Petition*.[^1215]

Moreover, the majority's decision to impose "open access" requirements
on the C Block licensee represents a sharp departure from well-settled
FCC precedent. First, the decision runs contrary to the market-driven
framework established by Congress. Starting at least as early as 1994,
the Commission established as a principal objective the goal of ensuring
that unwarranted regulatory burdens are not imposed upon any wireless
providers.[^1216] Just this year, I was pleased to support the
Commission's action to classify wireless broadband Internet access
service as an information service because our determination will
maximize innovation and consumer benefits as wireless services continue
to flourish and evolve. By dictating how spectrum must be used, the
majority is locking the Commission into a particular approach that is
not guaranteed to work but is guaranteed to be nearly impossible to
change.

Some say that *Carterfone*-style regulations are appropriate for
application to today's wireless marketplace because application of that
policy revolutionized the wireline marketplace.[^1217] Before arriving
at the Commission, I spent my entire career counseling wireline
entrepreneurs. There is a world of difference between the wireline
industry of the 1960's and today's wireless market.

First, the AT&T of the 1960's was a nearly 100-year-old government
protected and subsidized monopoly. By any measure, today's U.S. wireless
service providers lack market or monopoly power, as this Commission
concluded just 10 months ago.[^1218] Second, unlike wireline voice
services offered in the 1960's, today's U.S. wireless service providers
have never integrated into the applications or equipment markets. Third,
under common antitrust analysis, today's wireless providers lack the
ability to exercise buying power over upstream handset suppliers, of
which there are many competitors, which wield significant countervailing
selling power. Fourth, wireless service providers are not subject to
price regulation in the market in which they are alleged to have market
power, which otherwise might encourage them to seek profits in
complementary markets.[^1219]

Others cite the European wireless marketplace as the one the U.S. should
emulate. A closer look reveals that the European scenario isn't so rosy.
First, as noted earlier, in our *2006 Wireless Competition Report*, the
Commission found that, in addition to the four nationwide mobile
telephone operators in the U.S., several large regional operators and a
significant number of mobile telephone operators with smaller footprints
compete in many regional and local U.S. markets.[^1220] In contrast, in
Western Europe, national mobile operators do not face competition from
smaller facilities-based carriers like they do in the U.S.[^1221] The
top two competitors in Germany and Italy, for instance, have a combined
market share of 74 percent.[^1222] In Finland, the combined share is 85
percent.[^1223] Whereas the FCC has consistently resisted broadly
imposing technology mandates, European regulators mandated the use of a
single technology: GSM. Given the dearth of choice among carriers and
technologies, European per minute rates are high -- approaching 22 cents
per minute. Roaming rates from country-to-country are even worse --
sometimes \$1.50 per minute. Additionally, up front costs to consumers
are much higher there than here.

I have also heard that today's action is just like the Commission's
adoption of Wireless Local Number Portability (LNP) requirements in
2003. I disagree. First, the Commission mandated LNP only after years of
attempts to broker negotiations between industry and consumers ended in
failure. No such effort at negotiation has been attempted here. On a
substantive level, LNP does not involve complicated network management
issues like device and application portability does. Instead, LNP is
completed through a simple computer dip, which has nothing to do with
the complexities of a carrier's network. Finally, without knowing what
standard(s) the C Block licensee will adopt, it is unclear in today's
Order whether its customers will be able to port to other networks. I
wonder whether this will lead the Commission down the path of imposing a
European-style technical standard.

With respect to auction reserve prices, I believe these are best left to
market forces. Like artificial conditions, reserve prices have the
effect of skewing the auction and hindering the efficient allocation of
spectrum. The problem with setting reserve prices is that it puts the
Commission, rather than the market, in the precarious position of
identifying the right value for the spectrum.

Finally, I am disappointed that the majority has rushed headlong to
regulate with scant evidence in the record and without undertaking a
sincere effort to try to bring together consumer groups, industry and
all interested parties to broker a private sector solution to any
perceived imperfections. The Commission has a long and proud history of
meeting similar challenges in such a positive and constructive way. I
wish we had done so here.

For these reasons, I respectfully cast my very first dissent in part.
Specifically, I dissent from Sections III.A.2.a.iii. (Open Access) and
III.A.3.d. (Reserve Prices) of today's Order.

[^1]: *See* Deficit Reduction Act of 2005, Pub. L. No. 109-171, 120
    Stat. 4 (2006) ("DRA"). Title III of the DRA is the DTV Act.

[^2]: *See* Service Rules for the 698-749, 747-762 and 777-792 MHz
    Bands, WT Docket No. 06-150, Revision of the Commission's Rules to
    Ensure Compatibility with Enhanced 911 Emergency Calling Systems and
    Section 68.4(a) of the Commission's Rules Governing Hearing
    Aid-Compatible Telephones, CC Docket No. 94-102, WT Docket No.
    01-309, *Notice of Proposed Rule Making, Fourth Further Notice of
    Proposed Rule Making, and Second Further Notice of Proposed Rule
    Making*, 21 FCC Rcd 9345 (2006) (*700 MHz Commercial Services
    Notice)*.

[^3]: *See* Former Nextel Communications, Inc. Upper 700 MHz Guard Band
    Licenses and Revisions to Part 27 of the Commission's Rules,
    Development of Operational, Technical and Spectrum Requirements for
    Meeting Federal, State and Local Public Safety Communications
    Requirements Through the Year 2010, WT Docket Nos. 06-169 and 96-86,
    *Notice of Proposed Rule Making*, 21 FCC Rcd 10413 (2006) (*700 MHz
    Guard Bands Notice*).

[^4]: *See* Implementing a Nationwide, Broadband, Interoperable Public
    Safety Network in the 700 MHz Band, Development of Operational,
    Technical and Spectrum Requirements for Meeting Federal, State and
    Local Public Safety Communications Requirements Through the Year
    2010, PS Docket No. 06-229, WT Docket No. 96-86, *Ninth Notice of
    Proposed Rulemaking*, 21 FCC Rcd 14837 (2006) (*700 MHz Public
    Safety Ninth Notice*); Development of Operational, Technical and
    Spectrum Requirements for Meeting Federal, State and Local Public
    Safety Communications Requirements Through the Year 2010, WT Docket
    No. 96-86, *Eighth Notice of Proposed Rulemaking*, 21 FCC Rcd 3668
    (2006) (*700 MHz Public Safety Eighth Notice*).

[^5]: Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT
    Docket No. 06-150, Revision of the Commission's Rules to Ensure
    Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket
    No. 94-102, Section 68.4(a) of the Commission's Rules Governing
    Hearing Aid-Compatible Telephones, WT Docket No. 01-309, Biennial
    Regulatory Review -- Amendment of Parts 1, 22, 24, 27, and 90 to
    Streamline and Harmonize Various Rules Affecting Wireless Radio
    Services, WT Docket 03-264, Former Nextel Communications, Inc. Upper
    700 MHz Guard Band Licenses and Revisions to Part 27 of the
    Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide,
    Broadband, Interoperable Public Safety Network in the 700 MHz Band,
    PS Docket No. 06-229, Development of Operational, Technical and
    Spectrum Requirements for Meeting Federal, State and Local Public
    Safety Communications Requirements Through the Year 2010, WT Docket
    No. 96-86, *Report and Order and Further Notice of Proposed
    Rulemaking*, 22 FCC Rcd 8064 (2007) (*700 MHz Report and Order* and
    *700 MHz Further Notice*, respectively). Citations to Comments and
    Reply Comments filed in response to the *700 MHz Further Notice* are
    designated "\[Name of Party\] *700 MHz Further Notice* Comments (or
    Reply Comments) at \[page number\]." A list of commenters can be
    found in Appendix A. We cite to comments filed in response to the
    *700 MHz Commercial Services Notice*, the *700 MHz Guard Bands
    Notice*, and the *700 MHz Public Safety Ninth Notice* using a
    comparable format. A list of commenters in those proceedings can be
    found in Appendix A of the *700 MHz Further Notice*. *See 700 MHz
    Further Notice*, 22 FCC Rcd at 8173, App. A.

[^6]: *700 MHz Report and Order,* 22 FCC Rcd at 8121-28 ¶¶ 151-68*.*

[^7]: *700 MHz Further Notice,* 22 FCC Rcd at 8160-68 ¶¶ 268-90*.*

[^8]: *See 700 MHz Report and Order,* 22 FCC Rcd at 8066-67 ¶¶ 2-4.

[^9]: *See* Deficit Reduction Act of 2005, Pub. L. No. 109-171, 120
    Stat. 4 (2006) ("DRA"). Title III of the DRA is the DTV Act. *See
    generally 700 MHz Commercial Services Notice*; *700 MHz Guard Bands
    Notice*; *700 MHz Public Safety Eighth Notice.*

[^10]: *See* Reallocation of Television Channels 60-69, the 746-806 MHz
    Band, ET Docket No. 97-157, *Report and Order*, 12 FCC Rcd 22953
    (1998), *recon.* 13 FCC Rcd 21578 (1998) (*Upper 700 MHz
    Reallocation Order*); Service Rules for the 746-764 and 776-794 MHz
    Bands, and Revisions to Part 27 of the Commission's Rules, WT Docket
    No. 99-168, *First Report and Order*, 15 FCC Rcd 476 (2000) (*Upper
    700 MHz First Report and Order*).

[^11]: *See* Reallocation and Service Rules for the 698-746 MHz Spectrum
    Band (Television Channels 52-59), GN Docket No. 01-74, *Report and
    Order*, 17 FCC Rcd 1022 (2002) (*Lower 700 MHz Report and Order*);
    Reallocation and Service Rules for the 698-746 MHz Spectrum Band
    (Television Channels 52-59), GN Docket No. 01-74, *Memorandum
    Opinion and Order*, 17 FCC Rcd 11613 (2002) (*Lower 700 MHz MO&O*).

[^12]: *See* Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat.
    251 § 3004 (1997) (adding new § 337 of the Communications Act);
    *Upper 700 MHz Reallocation Order*, 12 FCC Rcd at 22955 ¶ 5.

[^13]: *See 700 MHz Public Safety Ninth Notice*, 21 FCC Rcd at 14838-39
    ¶¶ 5-6; *see generally 700 MHz Public Safety Eighth Notice*.

[^14]: *See 700 MHz Guard Bands Notice*, 21 FCC Rcd at 10414 ¶ 1 n.1.

[^15]: 47 U.S.C. § 309(j)(14)(C)(i)(II) (2005). Among the objectives of
    Section 309(j) of the Act are "the development and rapid deployment
    of new technologies, products, and services for the benefit of the
    public, including those residing in rural areas;" "promoting
    economic opportunity and competition and ensuring that new and
    innovative technologies are readily accessible to the American
    people by avoiding excessive concentration of licenses and by
    disseminating licenses among a wide variety of applicants, including
    small businesses, rural telephone companies, and businesses owned by
    members of minority groups and women;" and the "efficient and
    intensive use of the electromagnetic spectrum." 47 U.S.C. §
    309(j)(3).

[^16]: *See* Advanced Television Systems and Their Impact upon the
    Existing Television Broadcast Service, MM Docket No. 87-268,
    *Memorandum Opinion and Order on Reconsideration of the Sixth Report
    and Order*, 13 FCC Rcd 7418, 7435-36 ¶ 42 (1998) (*DTV MO&O of the
    Sixth Report and Order*). The Commission stated that expanding the
    DTV core spectrum would permit recovery of 108 megahertz of spectrum
    at the end of the DTV transition period. *Id.* at 7436 ¶ 45.

[^17]: *See generally 700 MHz Commercial Services Notice.*

[^18]: Service Rules for the 746-764 and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission's Rules, WT Docket No.
    99-168, *Second Report and Order*, 15 FCC Rcd 5299, 5329-30 ¶¶ 69-71
    (2000) (*Upper 700 MHz Second Report and Order*).

[^19]: *See Upper 700 MHz First Report and Order*, 15 FCC Rcd at 500-502
    ¶¶ 56-61.

[^20]: *See id.* at 500 ¶ 56.

[^21]: *See* Consolidated Appropriations Act, 2000, Pub. L. No. 106-113,
    113 stat. 2502, Appendix E, Sec. 213(a)(3), *reprinted in* 47
    U.S.C.A. § 337 Note at Sec. 213(a)(3). With regard to previous
    statutory requirements to complete the auction by a certain date, in
    the *Upper 700 MHz First Report and Order*, the Commission stated
    that its experience "has shown that simultaneous multiple-round
    auctions for a larger number of licenses are more complex and take
    longer to complete than similar auctions involving fewer licenses."
    *Upper 700 MHz First Report & Order,* 15 FCC Rcd at 500 ¶ 57.

[^22]: *See Upper 700 MHz First Report and Order,* 15 FCC Rcd at 500 ¶¶
    56-57.

[^23]: *Id.* at 501 ¶ 59.

[^24]: *See Lower 700 MHz Report and Order*, 17 FCC Rcd at 1029, 1054-55
    ¶¶ 13, 76.

[^25]: Auction Reform Act of 2002, Pub. L. No. 107-195, 116 Stat. 715
    (codified as 47 U.S.C. § 309(j)(15)).

[^26]: *See Lower 700 MHz Report and Order,* 17 FCC Rcd at 1061 ¶¶
    95-96.

[^27]: *Id*. at 1059 ¶ 90.

[^28]: *See Lower 700 MHz MO&O*, 17 FCC Rcd at 11619 ¶ 14 n.32 (noting
    that one 12-megahertz block of spectrum "is significant" in that it
    equals 25 percent of the 48 megahertz of spectrum in the Lower 700
    MHz Band).

[^29]: *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1059 ¶ 90,
    1060-61 ¶ 94.

[^30]: *Id.* at 1059-60 ¶¶ 91, 93. The Commission used the definition of
    EAGs as defined in the Upper 700 MHz Band proceeding, which included
    a particular definition concerning the division of the Gulf of
    Mexico between two EAGs. *See id.* at 1059 ¶ 90 & n.257.

[^31]: *See generally 700 MHz Commercial Services Notice*, 21 FCC Rcd at
    9346-48 ¶¶ 1-2.

[^32]: *See* Reallocation of Television Channels 60-69, the 746-806 MHz
    Band, ET Docket No. 97-157, *Report and Order*, 12 FCC Rcd 22953
    (1998), *recon.* 13 FCC Rcd 21578 (1998); Service Rules for the
    746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the
    Commission's Rules, WT Docket No. 99-168, *First Report and Order*,
    15 FCC Rcd 476 (2000) (*Upper 700 MHz First Report and Order*).

[^33]: *See Upper 700 MHz First Report and Order*, 15 FCC Rcd at 490-91
    ¶ 33.

[^34]: *Id.*

[^35]: *Id.* at 491 ¶ 34. The Commission also allocated each of the
    Upper 700 MHz spectrum blocks so that they would align with as few
    incumbent television broadcast channels as possible, in order to
    expedite deployment, reduce the number of potential negotiated
    agreements with broadcasters, and avoid a problem of "free riding"
    third parties benefiting from others' negotiations. *Id.* at 492 ¶
    37.

[^36]: Service Rules for the 746-764 and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission's Rules, WT Docket No.
    99-168, *Second Report and Order*, 15 FCC Rcd 5299, 5308-09 ¶ 19
    (2000) (*Upper 700 MHz Second Report and Order*).

[^37]: *Id.* at 5307-08 ¶ 17.

[^38]: *Id*. at 5308 ¶ 18.

[^39]: *Id.* at 5312-13 ¶ 27.

[^40]: *Id.* at 5313 ¶ 30.

[^41]: Former Nextel Communications, Inc. Upper 700 MHz Guard Band
    Licenses and Revisions to Part 27 of the Commission's Rules,
    Development of Operational, Technical and Spectrum Requirements for
    Meeting Federal, State and Local Public Safety Communications
    Requirements Through the Year 2010, WT Docket Nos. 06-169 and 96-86,
    *Notice of Proposed Rule Making*, 21 FCC Rcd 10413 (2006) (*700 MHz
    Guard Bands Notice*).

[^42]: *See* Deficit Reduction Act of 2005, Pub. L. No. 109-171, 120
    Stat. 4 (2006) ("DTV Act").

[^43]: *700 MHz Guard Bands Notice*, 21 FCC Rcd at 10419 ¶ 13.

[^44]: *Upper 700 MHz Second Report and Order*, 15 FCC Rcd at 5332-33 ¶¶
    75-80.

[^45]: *See* Band Manager Reports *found at*
    <http://wireless.fcc.gov/services/index.htm?job=guardband_reports&id=700_guard>.

[^46]: *700 MHz Guard Bands Notice*, 21 FCC Rcd at 10429-30 ¶¶ 37-39.

[^47]: *See 700 MHz Further Notice*, 22 FCC Rcd at 8144-52 ¶¶ 222-242
    (detailed discussion of the BOP and other proposals for the Guard
    Bands spectrum).

[^48]: *700 MHz Guard Bands Notice*, 21 FCC Rcd at 10433-34 ¶ 46.

[^49]: *Id*. at 10434-35 ¶ 47.

[^50]: *See* Intelligence Reform Act, Pub. L. No. 108-458, 118 Stat.
    3638 § 7502(d)(1) (2004).

[^51]: *See* Report to Congress on the Study to Assess the Short-Term
    and Long-Term Needs for Allocations of Additional Portions of the
    Electromagnetic Spectrum for Federal, State, and Local Emergency
    Response Providers, WT Docket No. 05-157 at 13 ¶ 26 (Dec. 16, 2005)
    (*Intel Reform Act Report*).

[^52]: *Id.*

[^53]: *See 700 MHz Public Safety Eighth Notice*, 21 FCC Rcd at 3669 ¶
    2.

[^54]: *Id.* at 3676-79 ¶¶ 14-22.

[^55]: *See id.* at 3675-76 ¶ 13, 3683-84 ¶ 33.

[^56]: *See* *700 MHz Guard Bands Notice*, 21 FCC Rcd at 10431-35 ¶¶
    42-48.

[^57]: *700 MHz Public Safety Ninth Notice*, 21 FCC Rcd at 14838 ¶ 3.

[^58]: *700 MHz Report and Order,* 22 FCC Rcd at 8108-14 ¶¶ 120-136.

[^59]: *Id*. at 8115-21 ¶¶ 137-150.

[^60]: *Id*. at 8121-28 ¶¶ 151-168.

[^61]: *700 MHz Further Notice*, 22 FCC Rcd at 8129-31 ¶¶ 177-81.

[^62]: *See id.* at 8131-40 ¶¶ 182-206.

[^63]: *Id.* at 8140-43 ¶¶ 207-20.

[^64]: *Id.* at 8144-54 ¶¶ 222-49.

[^65]: *Id.* at 8147-50 ¶¶ 228-34.

[^66]: *Id.* at 8150-52 ¶¶ 235-41.

[^67]: *Id.* at 8152 ¶ 242.

[^68]: *Id.* at 8155-56 ¶¶ 252-3.

[^69]: *Id.* at 8156-57 ¶¶ 254-7.

[^70]: *Id.* at 8160-68 ¶¶ 268-90. *See generally* Frontline *700 MHz
    Public Safety Ninth Notice* Comments; Comments of Frontline
    Wireless, LLC, WT Docket No. 06-150 (filed Mar. 6, 2007); Frontline
    *700 MHz Public Safety Ninth Notice* Reply Comments; Letter from
    Matthew S. DelNero, counsel to Frontline Wireless, LLC, to Marlene
    H. Dortch, Secretary, FCC, *Ex Parte* in WT Docket Nos. 96-86 and
    06-150 and PS Docket No. 06-229 (filed Mar. 12, 2007); Letter from
    John Blevins, counsel to Frontline Wireless, LLC, to Marlene H.
    Dortch, Secretary, FCC, *Ex Parte* in WT Docket Nos. 06-150 and
    06-169 and PS Docket No. 06-229 (filed Mar. 27, 2007).

[^71]: *See 700 MHz Further Notice*, 22 FCC Rcd at 8164 ¶ 277.

[^72]: *Id.* at 8164 ¶ 278.

[^73]: *Id.* at 8164 ¶ 279.

[^74]: Letter from Richard S. Whitt, Esq., Washington Telecom and Media
    Counsel, Google, Inc. to Marlene H. Dortch, Secretary, FCC, filed
    May 21, 2007 (*Google Ex Parte*).

[^75]: Comment Sought on Google Proposals Regarding Service Rules for
    700 MHz Spectrum, 72 Fed. Reg. 29930 (May 30, 2007) (*Google 700 MHz
    Service Rules PN*).

[^76]: *See* Service Rules for Advanced Wireless Services in the 1.7 and
    2.1 GHz Bands, WT Docket No. 02-353, *Order on Reconsideration*, 20
    FCC Rcd 14058,14069 ¶ 20 (2005) (*AWS-1 Order on Reconsideration*).

[^77]: *See 700 MHz Commercial Services Notice*, 21 FCC Rcd at 9362-69
    ¶¶ 27-48.

[^78]: *Id*. at 9347 ¶ 2, 9362-73 ¶¶ 27-59.

[^79]: *Id.* at 9352-53 ¶ 11, 9370-72 ¶¶ 51-55; *Upper 700 MHz First
    Report and Order,* 15 FCC Rcd at 492 ¶ 38.

[^80]: *See 700 MHz Commercial Services Notice*, 21 FCC Rcd at 9369-70 ¶
    50.

[^81]: *See* Aloha *700 MHz Commercial Services Notice* Comments at ii,
    3-6; Aloha *700 MHz Commercial Services Notice* Reply Comments at
    1-3; Corr *700 MHz Commercial Services Notice* Comments at 3; Leap
    *700 MHz Commercial Services Notice* Comments 4-6; MetroPCS *700 MHz
    Commercial Services Notice* Reply Comments at 2-8; Letter from
    Michelle C. Farquhar, counsel for SpectrumCo LLC, to Marlene H.
    Dortch, Secretary, FCC, in WT Docket No. 06-150 (filed Jan. 9, 2007)
    ("SpectrumCo Jan. 9, 2007 *Ex Parte* in WT Docket No. 06-150") at
    2-11; U.S. Cellular *700 MHz Commercial Services Notice* Comments at
    4-7; Letter from Multiple Commenters to Marlene H. Dortch,
    Secretary, Federal Communications Commission, WT Docket No. 06-150
    (filed October 20, 2006) ("Balanced Consensus Plan") (signatories to
    the Balanced Consensus Plan were Alltel, Aloha, Blooston, C&W,
    ConnectME Authority, Corr, Dobson, Leap, Maine Office of Chief
    Information Officer, MetroPCS, NTCA, Nebraska PSC, North Dakota PSC,
    RCA, RTG, Union, US Cellular, Vermont Department of Public Service
    *et al.*, Vermont Telephone Company); MilkyWay *700 MHz Commercial
    Services Notice* Comments at 4; *see also* CTIA *700 MHz Commercial
    Services Notice* Comments at 6 (mix of service areas for AWS-1
    spectrum served the wireless marketplace well).

[^82]: *See* Aloha *700 MHz Commercial Services Notice* Comments at ii,
    3-6; Balanced Consensus Plan; Blooston *700 MHz Commercial Services
    Notice* Comments at 2; Corr *700 MHz Commercial Services Notice* at
    2-4; Dobson *700 MHz Commercial Services Notice* Comments at 2-4;
    Leap *700 MHz Commercial Services Notice* Comments at 4-6; MilkyWay
    *700 MHz Commercial Services Notice* Comments at 1-6; U.S. Cellular
    *700 MHz Commercial Services Notice* Comments at 4-7.

[^83]: *See* Aloha *700 MHz Commercial Services Notice* Comments at 3;
    Aloha *700 MHz Commercial Services Notice* Reply Comments at 2-3;
    Blooston *700 MHz Commercial Services Notice* Comments at 1, 2; C&W
    *700 MHz Commercial Services Notice* Comments at 2; Consumer
    Federation of America, *et al*. *700 MHz Commercial Services Notice*
    Comments at 4-5; Corr *700 MHz Commercial Services Notice* Comments
    at 2-4; Dobson *700 MHz Commercial Services Notice* Comments at 2-4;
    Howard/Javed *700 MHz Commercial Services Notice* Comments at i,
    9-11, 21; Leap *700 MHz Commercial Services Notice* Comments at 5;
    MetroPCS *700 MHz Commercial Services Notice* Comments at 13;
    MetroPCS *700 MHz Commercial Services Notice* Reply Comments at 2-3;
    MilkyWay *700 MHz Commercial Services Notice* Comments at 3-5;
    NextWave *700 MHz Commercial Services Notice* Reply Comments at
    12-13; OPASTCO *700 MHz Commercial Services Notice* Comments at 2-3;
    RCA *700 MHz Commercial Services Notice* Comments at 4-8; RCA *700
    MHz Commercial Services Notice* Reply Comments at 3; RTG *700 MHz
    Commercial Services Notice* Comments at 2-3; RTG *700 MHz Commercial
    Services Notice* Reply Comments at 3; U.S. Cellular *700 MHz
    Commercial Services Notice* Comments at 5-7; U.S. Cellular *700 MHz
    Commercial Services Notice* Reply Comments at 4-5; *see also* NTCA
    *700 MHz Commercial Services Notice* Comments at 6 (supporting 20
    megahertz allocation over CMAs).

[^84]: The Balanced Consensus Plan recommended a mix of six different
    licenses, two each over CMAs (22 megahertz total), EAs (20 megahertz
    total), and REAGs (12 megahertz paired; 6 megahertz unpaired). This
    plan also included a proposed reconfiguration of current D Block in
    the Upper 700 MHz Band by splitting that block into two 10-megahertz
    blocks. In a subsequent *ex parte* submission by representatives of
    multiple parties supporting the Balanced Consensus Plan, the
    following changes to the 700 MHz band plan were proposed: (1) in the
    Lower 700 MHz Band, license one paired block over CMAs, and one
    paired block over EAs, and the remaining unpaired spectrum over
    REAGs; (2) in the Upper 700 MHz Band, subdivide the 20-megahertz
    block into two 10-megahertz paired blocks, and make one of those two
    blocks available on a basis smaller than an REAGs. Letter from
    Michael Lazarus, filing on behalf of MetroPCS Communications Inc.
    *et al*., to Marlene H. Dortch, Secretary, FCC, *Ex Parte* in WT
    Docket Nos. 06-150 (filed Apr. 18, 2007).

[^85]: *See* MilkyWay *700 MHz Commercial Services Notice* Comments at
    4-5 (supporting a mix of different license sizes, including CMAs);
    Polar *700 MHz Commercial Services Notice* Comments at 1 (urging CMA
    licenses over 20 megahertz); Frontier *700 MHz Commercial Services
    Notice* Comments at 1, 5-7 (supports reducing size of all
    unauctioned spectrum to areas no larger than RSAs and MSAs; also
    supports county-sized licenses); T-Mobile *700 MHz Commercial
    Services Notice* Reply Comments at 3 (geographic areas smaller than
    EAGs are more likely to fall within business plans of parties with
    limited resources); OPASTCO *700 MHz Commercial Services Notice*
    Comments at 2; NextWave *700 MHz Commercial Services Notice* Reply
    Comments at 12-13; Howard/Javed *700 MHz Commercial Services Notice*
    Comments at i, 9; Navajo Nation *700 MHz Commercial Services Notice*
    Comments at 1 (supporting EA licensing).

[^86]: *See* NextWave *700 MHz Commercial Services Notice* Reply
    Comments at 9-12; *see also* Howard/Javed *700 MHz Commercial
    Services Notice* Comments at i, 9 (supporting the provision of
    easements allowing unlicensed use of 700 MHz spectrum). The issues
    raised by these commenters concerning unlicensed use of the 700 MHz
    Band are addressed in this Second Report and Order.

[^87]: *See* Access Spectrum/Pegasus *700 MHz Commercial Services
    Notice* Comments at 23-24.

[^88]: *See* Cingular *700 MHz Commercial Services Notice* Comments at
    5-9 (commenting that absent need for spectrum in rural areas and
    economic basis for CMAs, the band plan should not be modified);
    Cingular *700 MHz Commercial Services Notice* Reply Comments at 3-9;
    Verizon Wireless *700 MHz Commercial Services Notice* Comments at
    3-5; Verizon Wireless *700 MHz Commercial Services Notice* Reply
    Comments at 3-6; Motorola *700 MHz Commercial Services Notice*
    Comments at i, 3-9; Motorola *700 MHz Commercial Services Notice*
    Reply Comments at 2-3; AT&T *700 MHz Commercial Services Notice*
    Comments at 3-11; AT&T *700 MHz Commercial Services Notice* Reply
    Comments at 3-12; *see also* CTIA *700 MHz Commercial Services
    Notice* Comments at 1-2 (commenting that in large part, the existing
    licensing and service rules should be left unchanged); Qualcomm *700
    MHz Commercial Services Notice* Comments at 17 (commenting that
    economies of scale argues in favor of big geographic areas).
    Cingular and AT&T argue that if any change is to be made to the size
    of service areas, then such changes should be limited. Cingular *700
    MHz Commercial Services Notice* Reply Comments at 9 (arguing that
    any changes to band plan should be limited to the Upper 700 MHz
    Band); AT&T *700 MHz Commercial Services Notice* Reply Comments at
    15 (noting that if any change is made, it should be to one block
    only, and that the Lower 700 MHz Band should not be changed).

[^89]: CTIA *700 MHz Commercial Services Notice* Comments at 5-6; *see
    also* Verizon Wireless *700 MHz Commercial Services Notice* Reply
    Comments in at 4-5 (commenting that the 700 MHz Band spectrum will
    not be auctioned "in a vacuum").

[^90]: DIRECTV/EchoStar *700 MHz Commercial Services Notice* Comments at
    3.

[^91]: *See* Motorola *700 MHz Commercial Services Notice* Comments at
    5-6 (commenting that broadband generally more efficient when
    deployed in wider bandwidth); Qualcomm *700 MHz Commercial Services
    Notice* Comments at 18 (commenting that 20-megahertz block helps to
    facilitate delivery of technically advanced services and dividing
    the block may decrease overall spectral efficiency); Verizon
    Wireless *700 MHz Commercial Services Notice* Reply Comments at 6-7
    (commenting that only this block could arguably be considered as
    large); CTIA *700 MHz Commercial Services Notice* Comments at 6-7
    (commenting that licenses of 20 megahertz or more provide important
    opportunities for broadband services, and it's the only large block
    in the band); DIRECTV/EchoStar *700 MHz Commercial Services Notice*
    Reply Comments at 7-8 (commenting that 20 megahertz may not be
    enough spectrum to permit competition with incumbents given the
    growth of applications); *see also* Polar *700 MHz Commercial
    Services Notice* Comments at 1 (arguing that CMA licenses should be
    made available over 20 megahertz to support future wireless
    broadband applications).

[^92]: The Commission sought comment on the BOP in its notice respecting
    issues affecting the 700 MHz Guard Bands. *See 700 MHz Guard Band
    Service Notice*, 21 FCC Rcd 10413 (2006).

[^93]: *See* Access Spectrum/Pegasus *700 MHz Commercial Services
    Notice* Comments at 3-4. In reply comments, Cyren Call argues that
    proposals relating to the public safety spectrum in the Upper 700
    MHz Band such as those suggested by Access Spectrum/Pegasus should
    be considered in a consolidated manner. Cyren Call *700 MHz
    Commercial Services Notice* Reply Comments at 3. We note that a
    petition for rulemaking submitted by Cyren Call seeking, *inter
    alia*, the reallocation of commercial spectrum in the Upper 700 MHz
    Band has been dismissed; however, that docket remains open.
    Reallocation of 30 MHz of 700 MHz Spectrum (747-762/777-792 MHz)
    from Commercial Use, RM-11348, *Order*, 21 FCC Rcd 13123 (Public
    Safety and Homeland Security Bureau Nov. 3, 2006).

[^94]: Navini *700 MHz Commercial Services Notice* Comments at 1.

[^95]: Corr *700 MHz Commercial Services Notice* Comments at 3.

[^96]: Commenters that supported the Balanced Consensus Plan suggested
    that D Block in the Upper 700 MHz Band be split into equal
    10-megahertz blocks. *See* Balanced Consensus Plan. In addition to
    the commenters supporting the Balanced Consensus Plan, Navajo
    Nation, T-Mobile, and Frontier also supported dividing D Block.
    *See* Navajo Nation *700 MHz Commercial Services Notice* Comments at
    2; T-Mobile *700 MHz Commercial Services Notice* Reply Comments at
    3-4; Frontier *700 MHz Commercial Services Notice* Comments at 7.
    The Consumer Federation of America, *et al*. generally supported
    small spectrum blocks but did not specifically propose dividing D
    Block. *See* Consumer Federation of America, *et al*. *700 MHz
    Commercial Services Notice* Comments 4-5.

[^97]: *See* Frontier *700 MHz Commercial Services Notice* Comments at
    7; MetroPCS *700 MHz Commercial Services Notice* Comments at 13-14.

[^98]: NextWave *700 MHz Commercial Services Notice* Reply Comments at
    2-9 & Attach. I. In offering this alternative proposal, NextWave
    modified its original band plan proposal which suggested adopting
    unpaired spectrum blocks of 6-15 megahertz. *See* NextWave *700 MHz
    Commercial Services Notice* Comments at 6-10 & Attach. I.

[^99]: *See* Howard/Javed *700 MHz Commercial Services Notice* Comments
    at 8, 9-23.

[^100]: *See* Tropos *700 MHz Commercial Services* Comments at 10.

[^101]: *See* Tropos *700 MHz Commercial Services Notice* Comments;
    Tropos *700 MHz Commercial Services Notice* Reply Comments.

[^102]: *See* CTIA *Commercial Services Notice* Reply Comments at 10-11;
    AT&T *Commercial Services Notice* Reply Comments at 13; Cingular
    *Commercial Services Notice* Reply Comments at 11.

[^103]: *700 MHz Report and Order,* 22 FCC Rcd at 8082-86 ¶¶ 42-49.

[^104]: *Id*. at 8083 ¶ 43.

[^105]: *See id.* at 8130 ¶ 178.

[^106]: *700 MHz Further Notice*, 22 FCC Rcd at 8130-31 ¶¶ 178-81.

[^107]: *Id*. at 8132-40 ¶¶ 183-206.

[^108]: We also note here that two proposals (Proposals 1 and 2) assume
    that we eliminate the Guard Band B Block and subsume that 4
    megahertz of spectrum within the unauctioned 30 megahertz of
    commercial spectrum of the Upper 700 MHz Band available for auction,
    while the other three proposals (Proposals 3, 4, and 5) assume that
    we modify the 700 MHz Guard Bands and shift their location, as well
    as the public safety allocation in the band, in a manner that would
    result in 2 megahertz of Guard Band spectrum being subsumed in the
    commercial spectrum available for auction. *See 700 MHz Further
    Notice,* 22 FCC Rcd at 8132-40 ¶¶ 183-206. We discuss elsewhere our
    decision to revise the change the spectral locations of the Guard
    Band A and B Blocks and shift the other Upper 700 MHz commercial
    blocks and the public safety allocation one megahertz, while
    reducing the size of the Guard Band B Block, which results in 2
    megahertz of additional commercial spectrum for auction.

[^109]: We address elsewhere the Upper 700 MHz D Block that will be
    dedicated to the 700 MHz Public/Private Partnership.

[^110]: *See* *700 MHz Further Notice*, 22 FCC Rcd at 8168 ¶ 290.

[^111]: *See* Frontier *700 MHz Further Notice Comments* at 2
    (commenting that Upper 700 MHz Band should include one license over
    CMAs or smaller license areas); RTG *700 MHz Further Notice*
    Comments at 3-6; NTCA *700 MHz Further Notice* Reply Comments at
    3-5; Vermont Department of Public Service, *et al.* *700 MHz Further
    Notice* Reply Comments at 5-6; Union *700 MHz Further Notice* Reply
    Comments at 2; USA Broadband *700 MHz Further Notice* Reply Comments
    at 2; WISPA *700 MHz Further Notice* Comments at 3-5; Alltel *700
    MHz Further Notice* Comments at 2, 3-4 (supporting multiple license
    blocks with smaller geographic areas and CMAs in particular in the
    Upper and Lower 700 MHz Bands); RCA *700 MHz Further Notice*
    Comments at 2 (supporting adoption of CMA licenses in Lower 700 MHz
    Band, and a license smaller than REAGs, preferably CMAs, in the
    Upper 700 MHz Band); U.S. Cellular *700 MHz Further Notice* Reply
    Comments at 4-9 (supporting CMA opportunities in Upper 700 MHz Band
    and in Lower 700 MHz Band); MetroPCS *700 MHz Further Notice*
    Comments at 15 (supporting Balanced Consensus Plan as modified).

[^112]: *See* McBride *700 MHz Further Notice* Comments at 8-9; Sprint
    Nextel *700 MHz Further Notice* Comments at 5 (suggesting that the
    existing 20-megahertz block be reconfigured to provide for two
    10-megahertz blocks); Blooston *700 MHz Further Notice* Reply
    Comments at 3 (commenting that two 10-megahertz blocks in the Upper
    700 MHz Band should be licensed over CMAs); Centennial *700 MHz
    Further Notice* Comments at 3-6.

[^113]: Frontier *700 MHz Further Notice* Comments at 2,8 (supporting
    one block over CMAs in the Lower 700 MHz Band and one block over
    CMAs or "smaller license areas" in the Upper 700 MHz Band).

[^114]: U.S. Cellular *700 MHz Further Notice* Comments at 2.

[^115]: SpectrumCo *700 MHz Further Notice* Comments at iv, 10-11.

[^116]: See Cellular South *700 MHz Further Notice* Reply Comments at 6;
    Cellular South *Ex Parte* June 26, 2007 (suggesting that a CMA
    license should be offered in the lower band, and a license smaller
    than an REAG in the upper band).

[^117]: WCA *700 MHz Further Notice* Comments at 12.

[^118]: Cyren Call *700 MHz Further Notice* Comments at 39.

[^119]: *See* 700 MHz Independents *700 MHz Further Notice* Comments at
    3; RTG *700 MHz Further Notice* Comments at 3.

[^120]: *See* Frontier *700 MHz Further Notice* Comments at 7; Embarq
    *700 MHz Further Notice* Comments at 5-6; SBA *700 MHz Further
    Notice* Comments at 9 (quoting from SpectrumCo *ex parte*
    submission).

[^121]: *See* Alltel *700 MHz Further Notice* Comments at 2, 4; Aloha
    *700 MHz Further Notice* Comments at 2-3; Frontier *700 MHz Further
    Notice* Comments at 7; Embarq *700 MHz Further Notice* Comments at
    5-6; WISPA *700 MHz Further Notice* Comments at 4; RCA *700 MHz
    Further Notice* Reply Comments at 12; RTG *700 MHz Further Notice*
    Comments at 6.

[^122]: *See* Cellular South *700 MHz Further Notice* Comments at 8, 10
    (increasing likelihood of acquiring licenses for areas they intend
    to serve); Frontier *700 MHz Further Notice* Comments at 4 (enabling
    acquisition of licenses for rural areas alone); RTG *700 MHz Further
    Notice* Comments at 5 (commenting that large companies can acquire
    spectrum for needed urban areas without acquiring spectrum for rural
    areas).

[^123]: *See* Alltel *700 MHz Further Notice* Comments at 3; Cellular
    South *700 MHz Further Notice* Comments at 8-9, 10; Embarq *700 MHz
    Further Notice* Comments at 6.

[^124]: *See* Cellular South *700 MHz Further Notice* Comments at 9;
    Centennial *700 MHz Further Notice* Comments at 6-7.

[^125]: *See* Centennial *700 MHz Further Notice* Comments at 6.

[^126]: 4G Coalition *700 MHz Further Notice* Comments at 8-9.

[^127]: *See* Google *700 MHz Further Notice* Comments at 2, 7. The 4G
    Coalition and Google support licensing Proposal 3's smaller
    10-megahertz block (comprised of paired 5-megahertz blocks) over
    MEAs. *See* 4G Coalition *700 MHz Further Notice* Comments at 8-9;
    Google *700 MHz Further Notice* Comments at 7.

[^128]: *See* PISC *700 MHz Further Notice* Comments at 35-36.

[^129]: *Id*. at 36.

[^130]: *See* Verizon Wireless *700 MHz Further Notice* Comments at
    10-11, 12-14. Verizon Wireless also comments that these REAGs should
    be paired, and notes that the role which the Commission has stated
    REAGs have in promoting advanced services. *Id.* at 12.

[^131]: *See* AT&T *700 MHz Further Notice* Comments at 4-7.

[^132]: *See, e.g*., AT&T *700 MHz Further Notice* Comments at 3-4;
    Cellular South *700 MHz Further Notice* Comments at 9-11; Leap *700
    MHz Further Notice* Comments at 3; MetroPCS *700 MHz Further Notice*
    Comments at 13; RCA *700 MHz Further Notice* Comments at 11-12;
    Union *700 MHz Further Notice* Comments at 3-5; *see also* U.S.
    Cellular *700 MHz Further Notice* Reply Comments at 5 (supporting
    lower band proposal based on the proposal's widespread support).

[^133]: RCA *700 MHz Further Notice* Comments at 12; *see also* Cellular
    South *700 MHz Further Notice* Comments at 10.

[^134]: *See* 700 MHz Independents *700 MHz Further Notice* Comments at
    3-4; Aloha *700 MHz Further Notice* Comments at 2-3; Blooston *700
    MHz Further Notice* Comments at 3; Cellular South *700 MHz Further
    Notice* Comments at 10; Dobson *700 MHz Further Notice* Comments at
    3; NTCA *700 MHz Further Notice* Comments at 3-4; RTG *700 MHz
    Further Notice* Comments at 3; RCA *700 MHz Further Notice* Comments
    at 11-12; WISPA *700 MHz Further Notice* Comments at 4-5.

[^135]: *See* 700 MHz Independents *700 MHz Further Notice* Comments at
    4-5; Aloha *700 MHz Further Notice* Comments at 2-3; Cellular South
    *700 MHz Further Notice* Comments at 10; Union Telephone *700 MHz
    Further Notice* Comments at 4.

[^136]: *See* 700 MHz Independents *700 MHz Further Notice* Comments at
    5; RTG *700 MHz Further Notice* Comments at 4-5.

[^137]: *See* Cellular South *700 MHz Further Notice* Comments at 10-11;
    RCA *700 MHz Further Notice* Comments at 11-12.

[^138]: *See* Aloha *700 MHz Further Notice* Comments at 3; Aloha *700
    MHz Further Notice* Reply Comments at 2.

[^139]: *See* Cyren Call *700 MHz Further Notice* Comments at 39.

[^140]: *See* PISC *700 MHz Further Notice* Comments at 36; *see also*
    "*Ex Parte* Reply Comments of the *Ad Hoc* Public Interest Spectrum
    Coalition," WT Docket No. 06-150 (filed July 6, 2007)(arguing that
    increasing the number of licenses increases the ability of
    incumbents to block new entrants).

[^141]: *See* 4G Coalition *700 MHz Further Notice* Comments at 2-4, 6
    (urging the adoption of a 22-megahertz block); CCIA *700 MHz Further
    Notice* Comments at 3.

[^142]: *See* Google *700 MHz Further Notice* Comments at 7 (discussing
    22-megahertz block).

[^143]: *See* Verizon Wireless *700 MHz Further Notice* Comments at 11
    (commenting on the need for at least a 20-megahertz block to meet
    such data rates), 16 (commenting that 22-megahertz of paired
    spectrum supports broadband deployment).

[^144]: *See* Ericsson *700 MHz Further Notice* Comments at 24. Ericsson
    also comments that a 22-megahertz block is unnecessarily large.
    *Id.* at 2.

[^145]: *See* 700 MHz Independents *700 MHz Further Notice* Comments at
    6-7; Aloha *700 MHz Further Notice* Comments at 3; Blooston *700 MHz
    Further Notice* Comments at 4; Cellular South *700 MHz Further
    Notice* Comments at 11-19; Centennial *700 MHz Further Notice*
    Comments at 3; Leap *700 MHz Further Notice* Comments at 3-4; Leap
    *700 MHz Further Notice* Reply Comments at 2-3; MetroPCS *700 MHz
    Further Notice* Comments at 24-26; MetroPCS *700 MHz Further Notice*
    Reply Comments at 4-9; SpectrumCo *700 MHz Further Notice* Comments
    at 9-10; Sprint Nextel *700 MHz Further Notice* Comments at 2-5;
    T-Mobile *700 MHz Further Notice* Reply Comments at 10-11; Union
    *700 MHz Further Notice* Comments at 5; U.S. Cellular *700 MHz
    Further Notice* Comments at 8; AT&T *700 MHz Further Notice*
    Comments at 4-5.

[^146]: *See* Cellular South *700 MHz Further Notice* Comments at 11-12.

[^147]: *See* RCA *700 MHz Further Notice* Comments at 13.

[^148]: *See* MetroPCS *700 MHz Further Notice* Comments at 25-26.

[^149]: *See* SpectrumCo *700 MHz Further Notice* Comments at 2, 15.

[^150]: *Google Ex Parte Letter* at 4-5. WTB sought comment on Google's
    proposal in its ex parte letter, including its position regarding
    the E Block of the Lower 700 MHz Band. *See Google 700 MHz Service
    Rules PN* at 2. Elements of Google's proposal, other than those
    regarding its proposal relating to E Block of the Lower 700 MHz
    Band, are addressed elsewhere.

[^151]: *See* Google *Google Ex Parte* Reply Comments at 7-9.

[^152]: *See* AT&T *Google Ex Parte* Comments at 9-10; CTIA *Google Ex
    Parte* Comments at 3; Qualcomm *Google Ex Parte* Comments at iii,
    2-6; RTG *Google Ex Parte* Comments at 3; Verizon Wireless *Google
    Ex Parte* Comments at 2, 7; *see also* MetroPCS *Google Ex Parte*
    Comments at 3-4 & n.9 (commenting on inconsistencies in Google's
    position); Qualcomm *Google Ex Parte* Reply Comments at 2-4 (arguing
    that there is no legitimate reason to prohibit certain uses of the E
    Block and allow only other particular uses).

[^153]: *See 700 MHz Report and Order,* 22 FCC Rcd at 8082-86 ¶¶ 42-45.

[^154]: *AWS-1 Order on Reconsideration*, 20 FCC Rcd at 14066-67 ¶ 15
    (larger 20-megahertz blocks should enable a broader range of
    broadband services, and accommodate future higher data rates); *see
    also* Service Rules for Advanced Wireless Services in the 1.7 and
    2.1 GHz Bands, WT Docket No. 02-353, *Report and Order*, 18 FCC Rcd
    25162, 25178 ¶ 44 (2003) (*AWS-1 Report and Order*).

[^155]: *AWS-1 Order on Reconsideration*, 20 FCC Rcd at 14066-67¶ 15,
    14068-69 ¶ 19-20. In the AWS-1 band plan, three of the six license
    blocks, involving two-thirds of the band (totaling 60 megahertz)
    were licensed by large, 20-megahertz blocks. *Id.* at 14069 ¶ 20.

[^156]: We depart from the AWS-1 band plan by licensing most of the 700
    MHz Band over smaller blocks as part of our effort to balance
    several competing goals in the band plan. We note in particular our
    decision to assign the Upper 700 MHz Band's D Block over 10
    megahertz (comprised of paired 5 megahertz blocks) as part of a
    unique Public/Private Partnership. In addition, we facilitate access
    to spectrum by smaller service providers by maintaining the size of
    all the spectrum blocks in the Lower 700 MHz Band. This approach to
    the Lower 700 MHz Band is consistent with our proposal in the *700
    MHz Further Notice,* 22 FCC Rcd at 8130 ¶ 178 which was supported by
    several parties in the record, *see* TCA *700 MHz Further Notice*
    Reply Comments at 2-4; Leap *700 MHz Further Notice* Comments at 3;
    Cellular South *700 MHz Further Notice* Reply Comments at 6.

[^157]: *See* 700 MHz Independents *700 MHz Further Notice* Comments at
    2; Blooston *700 MHz Further Notice* Comments at 2-4; Centennial
    *700 MHz Further Notice* Comments at 3, 5; C&W *700 MHz Commercial
    Services Notice* Comments at 3; Core *700 MHz Commercial Services
    Notice* Reply Comments at 4; Frontier *700 MHz Further Notice*
    Comments at 2-4, 6; Embarq *700 MHz Further Notice* Comments at 8;
    NTCA *700 MHz Further Notice* Comments at 3-5; RCA *700 MHz Further
    Notice* Comments at 2; RTG *700 MHz Further Notice* Reply Comments
    at 4-7; WISPA *700 MHz Further Notice* Comments at 5; Union *700 MHz
    Further Notice* Reply Comments at 7; USA Broadband *700 MHz Further
    Notice* Reply Comments at 2; *see also* Vermont et al. *700 MHz
    Further Notice* Reply Comments at 5-6. We note that McBride asks
    that we license all of the spectrum over CMAs, but we already have
    decided in the *700 MHz Report and Order* to license the spectrum
    using a mix of geographic areas. *700 MHz Report and Order*, 22 FCC
    Rcd at 8082 ¶ 42. We also note that Frontier requests that we
    consider licensing spectrum over a geographic area smaller than
    CMAs, but we have already declined to adopt service areas smaller
    than CMAs. *Id.* at 8085 ¶ 46.

[^158]: *See* Union *700 MHz Commercial Services Notice* Comments at 3
    (stating that the "process of aggregating, disaggregating, and
    partitioning add significant costs and complexity, and can delay
    initiation of service, especially for small rural carriers"); U.S.
    Cellular *700 MHz Commercial Services Notice* Comments at 9; *see
    also* Howard/Javed Comments at 12 ; 700 MHz Independents *700 MHz
    Further Notice* Comments at 2 (commenting that due to factors
    including transaction costs, large companies generally have been
    uninterested and unwilling to partition or lease the rural portions
    of their license areas); Corr *700 MHz Commercial Services Notice*
    Comments at 2 (partitioning and disaggregation has not worked to
    break up larger pieces of spectrum); Consumer Federation of America,
    *et al*. *700 MHz Commercial Services Notice* Comments at 5
    (prospective new entrants often are at mercy in the secondary market
    of license holders); Sprint Nextel *700 MHz Further Notice* Comments
    at 6 (stating that bidders interested in smaller geographic license
    areas would have to convince larger area license winner to
    partition, and then incur the "often quite substantial transaction
    costs").

[^159]: *See* 700 MHz Independents *700 MHz Further Notice* Comments at
    5; U.S. Cellular *700 MHz Commercial Services Notice* Reply Comments
    at 4; Blooston *700 MHz Commercial Services Notice* Comments at 2;
    RTG *700 MHz Commercial Services Notice* Comments at 5; Howard/Javed
    *700 MHz Commercial Services Notice* Comments at 10. In the AWS-1
    proceeding, the Commission stated that "RSAs and MSAs allow entities
    to mix and match rural and urban areas according to their business
    plans and that, by being smaller, these types of geographic service
    areas provide entry opportunities for smaller carriers, new
    entrants, and rural telephone companies." *AWS-1 Order on
    Reconsideration*, 20 FCC Rcd at 14066 ¶ 14.

[^160]: *See Lower 700 MHz Report and Order*, 17 FCC Rcd at 1061 ¶ 95
    (*quoting* 47 U.S.C. § 309(j)(3)(B)). The Commission also is to
    "prescribe area designations and bandwidth assignments that promote
    ... economic opportunity for a wide variety of applicants, including
    small businesses, rural telephone companies, and businesses owned by
    members of minority groups and women." 47 U.S.C. 309(j)(4)(C).

[^161]: *See, e.g.,* 700 MHz Independents *700 MHz Further Notice*
    Comments at 2; Aloha *700 MHz Further Notice* Comments at 3-4;
    Blooston *700 MHz Further Notice* Comments at 2-3; Cellular South
    *700 MHz Further Notice* Comments at 10; Dobson *700 MHz Further
    Notice* Comments at 3; NTCA *700 MHz Further Notice* Comments at
    3-4; RTG *700 MHz Further Notice* Comments at 3; RCA *700 MHz
    Further Notice* Comments at 11; WISPA *700 MHz Further Notice*
    Comments at 4; MilkyWay *700 MHz Commercial Services Notice*
    Comments at 1; ; MetroPCS *700 MHz Further Notice* Comments at 15;
    Leap *700 MHz Further Notice* Comments at 3; Corr *700 MHz
    Commercial Services Notice* Reply Comments at 4; *see also* Comments
    of Rural Telecommunications Group, Inc. in Support of Modification
    of License Area Sizes for 700 MHz Spectrum, Reallocation and Service
    Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59),
    GN Docket No. 01-74, Service Rules for the 746-764 and 776-794 MHz
    Bands, and Revisions to Part 27 of the Commission's Rules, WT Docket
    No. 99-168, Rural Telecommunications Group, Inc. (filed Sept. 27,
    2005) (requesting that MSA/RSA licenses be provided for Lower Band
    Block B and Upper Band Block C, totaling 22 megahertz of spectrum).

[^162]: *See* Corr *700 MHz Commercial Services* Reply Comments at 4;
    RTG *700 MHz Further Notice* Comments at 4; 700 MHz Independents
    *700 MHz Further Notice* Comments at 4-5; Cellular South *700 MHz
    Further Notice* Comments at 10; Union *700 MHz Further Notice*
    Comments at 4; USA Broadband *700 MHz Further Notice* Comments at 2.

[^163]: *AWS-1 Order on Reconsideration*, 20 FCC Rcd at 14067 ¶ 20. We
    recognize that our decision may alter the ability of licensees in
    Blocks A and B of the Lower 700 MHz Band to aggregate those licenses
    since they will be licensed using EAs and CMAs. However, our overall
    decision respecting the size of geographic service areas and
    spectrum blocks provides opportunities for licensees to obtain wider
    bandwidth, including through the potential aggregation of Blocks B
    and C of the Lower 700 MHz Band.

[^164]: *See* Polar *700 MHz Commercial Services Notice* Comments at 1
    (arguing that a 20 megahertz block should be auctioned over CMAs);
    *see also* NTCA *700 MHz Commercial Services Notice* Comments at 2,
    6-7 (prior to supporting Balanced Consensus Plan, arguing that a 20
    megahertz block should be auctioned over CMAs); Dobson *700 MHz
    Commercial Services Notice* Comments at 4-5 (prior to supporting
    Balanced Consensus Plan, arguing that two CMA blocks should be
    auctioned, one comprised of 20 megahertz and one comprised of 10
    megahertz).

[^165]: *See* Navajo Nation *700 MHz Commercial Services Notice*
    Comments at 1.

[^166]: As we discuss elsewhere in this order, this 22-megahertz block
    will be revised to provide for two paired blocks of spectrum in the
    event certain provisions relating to the aggregate reserve price for
    that block are not met.

[^167]: For the AWS-1 spectrum, three of the six licenses were of wider
    bandwidth, *i.e.*, 20 megahertz (comprised of two 10-megahertz
    paired blocks). *See* *AWS-1 Order on Reconsideration*, 20 FCC Rcd
    at 14069 ¶ 20.

[^168]: However, as we discuss elsewhere, with respect to sizes of
    spectrum blocks, we are departing from the AWS-1 band plan by
    licensing more spectrum blocks in the 700 MHz Band in smaller sizes.

[^169]: *See AWS-1 Report and Order*, 18 FCC Rcd at 25178 ¶ 44; *AWS-1
    Order on Reconsideration,* 20 FCC Rcd at 14066-67 ¶ 15.

[^170]: *See* CTIA *700 MHz Commercial Services Notice* Comments at 6-7
    (addressing a 20-megahertz block); CCIA *700 MHz Further Notice
    Comments* at 3 (commenting that a larger block will improve chances
    for creating a new nationwide wireless broadband network).

[^171]: *See* Qualcomm *700 MHz Commercial Services* Comments at 11-12,
    18; Motorola *700 MHz Commercial Services* Comments at i, 3, 5-6;
    Verizon Wireless *700 MHz Further Notice* Comments at 11-12 (stating
    that 4G services will require large blocks to achieve fastest data
    rates).

[^172]: *See* CCIA *700 MHz Further Notice* Comments at 3 (stating that
    a new nationwide wireless broadband network resulting from use of
    large block could take advantage of economies of scale); Verizon
    Wireless *700 MHz Further Notice* Comments at 7-8 (commenting that a
    larger spectrum block "will help to ensure the near-term deployment
    of next generation wireless broadband networks, providing the best
    opportunity for the United States to lead the world in 4G wireless
    development."); 4G *700 MHz Further Notice* Comments at 2-4
    (technologies with adjustable signal bands can benefit from larger
    blocks, as can technologies with fixed waveforms); Google *700 MHz
    Further Notice* Comments at 7 (commenting that a larger block will
    provide greater flexibility for some technologies, and provide
    greater capacity for others); Motorola *700 MHz Commercial Services
    Notice* Comments at 5 (commenting that wider blocks afford licensees
    the flexibility to deploy advanced broadband services that operate
    using wider channels); Qualcomm *700 MHz Commercial Services Notice*
    Comments at 18 (commenting that a larger spectrum block will
    facilitate the delivery of the most technically advanced wireless
    services in this and the next decade); *see also* DIRECTV/EchoStar
    *700 MHz Commercial Services Notice* Comments at 12 (commenting that
    a block of 20-megahertz may not be enough for the services they
    envision; technology now under development would use larger,
    contiguous spectrum blocks).

[^173]: *See* Verizon Wireless *700 MHz Further Notice* Comments at
    11-12 ("wireless broadband deployment requires more contiguous
    spectrum, and emerging 4G technologies require 20 megahertz of
    spectrum to achieve the fastest possible data rates").

[^174]: Certain commenters argue that paired 5 megahertz blocks provide
    sufficient capacity for some technologies, *see* Sprint Nextel *700
    MHz Further Notice* Comments at 2, MetroPCS *Further Notice*
    Comments at 7-8, or that a 22-megahertz block is unnecessary and
    diverts the use of spectrum from frequency arrangements that could
    lower the technical requirements for the broadband technologies,
    *see* Ericsson *700 MHz Further Notice* Comments at 2.

[^175]: While 1x EVDO Rel 0 supports 2.4 Mbps over a 1.25 MHz channel,
    1x EVDO Rev C or Ultra MobileBroadband (UMB) 4G technology is
    projected to support 40 Mbps data rate in a paired 10 MHz channel or
    approximately twice the spectral efficiency. *See* Qualcomm,
    "Qualcomm Introduces Complete solution for Ultra Mobile Broadband"
    at
    <http://www.qualcomm.com/press/releases/2007/070327_complete_solution_ultra.html>.

[^176]: *Id*. Note that 4G systems may utilize higher modulation schemes
    and MIMO systems to increase the data rate in both the down and up
    links.

[^177]: *See* 3G americas "Mobile Broadband, EDGE, HSPA & LTE" at
    <http://www.3gamericas.org/PDFs/white_papers/2006_Rysavy_Data_Paper_FINAL_09.15.06.pdf>

    at 55 (Sept. 2006).

[^178]: *See* IEEE 802.16 Broadband Wireless Access Working Group,
    "Draft IEEE 802.16m Requirements" at
    [[http://ieee802.org/16/tgm/docs/80216m-07_002r2.pdf]{.underline}](http://ieee802.org/16/tgm/docs/80216m-07_002r2.pdf).
    Using a minimum spectral efficiency of 6.5 bps/Hz will yield a
    minimum peak data rate of 65 Mbps in 10 MHz bandwidth (2 x 10 MHz).

[^179]: *700 MHz Commercial Services Notice,* 21 FCC Rcd at 9371 n.144.

[^180]: The CDMA Development Group reports that a single 1xEV-DO (Rev.
    0) transmission on a 10-megahertz block produces a throughput of
    4200-6090 kb/s, but two 1xEV-DO (Rev. 0) transmissions on two
    5-megahertz blocks produce a throughput of only 3600-5220 kb/s. *700
    MHz Commercial Services Notice*, 21 FCC Rcd at 9371 n.144, citing
    Delivering Voice and Data: Comparing CDMA2000 and
    GSM/GPRS/EDGE/UMTS, CDMA Development Group, Dec. 2005 available at
    http://www.cdg.org/resources/white_papers/files/Capacity%20Dec%202005.pdf.
    The CDMA Development Group is a consortium comprised of CDMA service
    providers and manufacturers, application developers, and content
    providers.

[^181]: *See* 47 C.F.R. § 27.50(c).

[^182]: *See* Verizon Wireless *700 MHz Further Notice* Comments at
    16-17 (stating that sufficient spectrum would be available with a
    22-megahertz block to allow the commercial licensee to designate a
    potion of the spectrum as an internal guard band); *see also* 4G
    Coalition *700 MHz Further Notice* Comments at 3-4 (commenting on
    the potential for a buffer to account for potential interference).

[^183]: *See* Northrup Grumman *700 MHz Further Notice* Comments at 5-6;
    AT&T *700 MHz Further Notice* Comments at 4-5; Cyren Call *700 MHz
    Further Notice* Comments at 39; Frontline *700 MHz Further Notice*
    Comments at 51-54.

[^184]: *See* Cellular South *700 MHz Further Notice* Reply Comments at
    7; MetroPCS *700 MHz Further Notice* Comments at 6, 26; SpectrumCo
    *700 MHz Further Notice* Comments at 13.

[^185]: *See, e.g.,* Cellular South *700 MHz Further Notice* Comments at
    12, 15; Leap *700 MHz Further Notice* Reply Comments at 2-3; Sprint
    *700 MHz Further Notice* Comments at 3-5;

[^186]: *See, e.g.*, DIRECTV/EchoStar *700 MHz Commercial Services*
    Reply Comments at 7-8 (dividing the 20-megahertz D Block would
    artificially limit the types of services available in the 700 MHz
    Band); Motorola *700 MHz Commercial Services* Comments at 5
    (generally recommending that commercial spectrum be licensed in
    wider spectrum blocks); Qualcomm *700 MHz Commercial Services*
    Comments at 18 (the D Block should remain intact because certain
    technologies require 20-megahertz bandwidth for fastest possible
    data transmission); Verizon Wireless *700 MHz Commercial Services*
    Reply Comments at 6-7 (asserts that a 20-megahertz paired license
    should be retained); CTIA *700 MHz Commercial Services* Comments at
    6-7 (supports maintaining at least 20 megahertz of paired spectrum
    in the Upper 700 MHz Band D Block).

[^187]: *See* PISC *700 MHz Further Notice* Comments at 36; 4G Coalition
    *700 MHz Further Notice* Comments at 2-4, 6; Google *700 MHz Further
    Notice* Comments at 7; Verizon Wireless *700 MHz Further Notice*
    Comments at 11, 16; WCA *700 MHz Further Notice* Comments at 3.

[^188]: *See AWS-1 Report and Order,* 18 FCC Rcd at 25176 ¶ 38.

[^189]: *Id*.

[^190]: *AWS-1 Order on Reconsideration*, 20 FCC Rcd at 14066 ¶ 14,
    14068 ¶ 18.

[^191]: The Commission provided for a 10-megahertz block of EA licenses
    in the AWS auction, and the data from that auction demonstrates that
    10-megahertz EA licenses provided an alternative to CMA licenses for
    small bidders. Of the 176 Block C licenses offered in Auction No.
    66, 173 licenses were won (98.3 percent). Of those 173 licenses, 40
    licenses (23.1 percent) were won by small businesses that were
    eligible for bidding credits in the auction. The Commission also
    provided for a 20-megahertz block of EA licenses in the AWS auction.

[^192]: *See* Union *700 MHz Commercial Services Notice* Comments at 3-4
    (obtained EA and CMA licenses in Auction No. 66 due to affordability
    and ability to integrate); WCA *700 MHz Further Notice* Comments at
    12 (commenting that EAs allow companies of various sizes and with a
    variety of business plans to compete for spectrum); Navajo Nation
    *700 MHz Commercial Services Notice* Comments at 1 (EA licensees
    will have more of a localized interest and allow for focusing on
    improving services in local area); *see also* SpectrumCo *700 MHz
    Further Notice* Comments at 10 (commenting that EAs accommodate the
    demand of bidders to acquire licenses with an array of service
    territory sizes and license configurations). In Auction No. 66, of
    104 winning bidders, 70 (approximately 67%) won CMA licenses only,
    and 21 (approximately 20%) won only EA or combinations of EA and CMA
    licenses. *See* U.S. Cellular *700 MHz Commercial Services Notice*
    Comments at 6; U.S. Cellular *700 MHz Commercial Services Notice*
    Reply Comments at 8.

[^193]: *See* *AWS-1 Report and Order*, 18 FCC Rcd at 25176 ¶ 37; *see
    also* 47 C.F.R. § 27.6(a) (reflecting that REAGs and MEAs are based
    on EAs). This building block approach makes EA and REAGs, coupled
    with existing MEA licenses in the 700 MHz Band, preferable to the
    use of Metropolitan Trading Areas (MTAs) which we decline to adopt
    for this spectrum. We note that the Vermont Department of Public
    Service, *et al*. initially proposed the use of MTAs, but
    subsequently stated its support for our lower band proposal in the
    *700 MHz Further Notice* which does not include MTAs. *Compare*
    Vermont Department of Public Service, *et al. 700 MHz Commercial
    Services Notice* Comments at 4 (suggesting adoption of MTAs) *with*
    Vermont Department of Public Service, *et al. 700 MHz Further
    Notice* Comments at 5-6 (fully supporting the lower band proposal in
    the *700 MHz Further Notice*). We also note that the geographic
    areas we adopt in this Second Report and Order are consistent with
    the geographic areas used for AWS-1 licensing, while MTAs are not,
    which may further facilitate spectrum use.

[^194]: *See* SpectrumCo *700 MHz Further Notice* Comments at 10; WCA
    *700 MHz Further Notice* Comments at 12-13.

[^195]: *See* *AWS-1 Report and Order*, 18 FCC Rcd at 25176 ¶ 37
    ("\[T\]he licensing areas we have chosen will allow licensees to
    make adjustments to suit their individual needs.").

[^196]: *See* WCA *700 MHz Further Notice* Comments at 12; Balanced
    Consensus Proposal Reply Comments, Attach.; SpectrumCo *700 MHz
    Further Notice* Comments at 10-11.

[^197]: We note, for example, that the AWS-1 band plan locates the CMA
    block immediately adjacent to an EA block. *See AWS-1 Order on
    Reconsideration,* 20 FCC Rcd at 14069 ¶ 20.

[^198]: *See* Auction of Advanced Wireless Services Licenses Closes;
    Winning Bidders Announced for Auction No. 66, Attach. A, *Public
    Notice*, 21 FCC Rcd 10521, 10529-84 (2006).

[^199]: *See* *700 MHz Report and Order*, 22 FCC Rcd at 8082-85 ¶¶
    42-45.

[^200]: *Id*. at 8100 ¶ 95.

[^201]: *See* Cellular South *700 MHz Further Notice* Comments at 10-11;
    RCA *700 MHz Further Notice* Comments at 12.

[^202]: *See* Aloha *700 MHz Further Notice* Comments at 3 (commenting
    that EAs should be adopted for this block to accommodate small
    concerns interested in using the spectrum for one-way high powered
    transmissions).

[^203]: Howard/Javed propose that the Commission mandate that B Block of
    the Lower 700 MHz Band be used for delivering fixed wireless
    broadband to "underserved areas formally designated as such." *See*
    Howard/Javed *700 MHz Commercial Services* Comments at 38-40.
    Alternatively, they ask that separate procedures for MSAs, on the
    one hand, and RSAs, on the other hand, be employed respecting the
    use of fixed wireless broadband in those license areas, and that
    such procedures obligate B Block licensees to enter into agreements
    with parties proposing to use that spectrum to serve underserved
    areas. *Id.* at 40-41.

[^204]: *See* *generally 700 MHz Commercial Services Notice; 700 MHz
    Further Notice; see also* Howard/Javed *700 MHz Commercial Services*
    Comments at 38.

[^205]: *See* TCA *700 MHz Further Notice* Comments at 3-5; Leap *700
    MHz Further Notice* Comments at 3; Cellular South *700 MHz Further
    Notice* Reply Comments at 6.

[^206]: We also determine elsewhere in this Second Report and Order that
    there are benefits associated with having a 12-megahertz A Block
    licensed on an EA basis next to the 12-megahertz B Block licensed on
    a CMA basis because small and regional providers will be able to
    combine these smaller area licenses with identical spectrum block
    sizes.

[^207]: Howard/Javed *700 MHz Commercial Services* Comments at 23.

[^208]: *See* Tropos *700 MHz Commercial Services* Comments at 10.

[^209]: *See* CTIA *Commercial Services Notice* Reply Comments at 10-11;
    AT&T *Commercial Services Notice* Reply Comments at 13.

[^210]: *See* Corr *700 MHz Commercial Services* Comments at 3.

[^211]: *See* NextWave *700 MHz Commercial Services* Comments at 6-10 &
    Attach. I; NextWave *700 MHz Commercial Services* Reply Comments at
    2-9 & Attach. I. NextWave's modified proposal includes two new
    *unpaired* 10-megahertz blocks and one new *paired* 10-megahertz
    block (comprised of two 5-megahertz blocks) in the Upper 700 MHz
    Band, and two new unpaired 12-megahertz blocks in the Lower 700 MHz
    Band. The size and location of the current unpaired 6-megahertz
    block, E Block in the Lower 700 MHz Band, would not be altered.
    *See* NextWave *700 MHz Commercial Services* Reply Comments at
    Attach. I. NextWave's original proposal suggested adopting unpaired
    spectrum blocks of 6-15 megahertz. *See* NextWave *700 MHz
    Commercial Services Notice* Comments at 7-8 & Attach. I. The reasons
    for opposing NextWave's proposal include: it would hamper the growth
    of alternative services, *see* AT&T *700 MHz Commercial Services*
    Reply Comments at 13-14 & n.32; MetroPCS *700 MHz Commercial
    Services* Reply Comments at 15; it has not been demonstrated that
    TDD will be successful in the marketplace, *see* MetroPCS *700 MHz
    Commercial Services* Reply Comments at 15; Alltel *700 MHz
    Commercial Services* Reply Comments at 5; and the Commission's
    decision should not favor a particular technology, *see* Cingular
    *700 MHz Commercial Services* Reply Comments at 10; AT&T *700 MHz
    Commercial Services* Reply Comments at 14.

[^212]: Navini *700 MHz Commercial Services* Comments at 1. Navini
    states that its current offering is built on a TDD scheme utilizing
    16.5 megahertz bands. *Id*.

[^213]: *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1070-71 ¶ 125,
    1051-52 ¶ 70.

[^214]: *See* Letter from Richard S. Whitt, counsel for Google Inc. to
    Marlene H. Dortch, Secretary, FCC, in WT Docket No. 06-150 (filed
    May 21, 2007) ("Google May 21 *Ex Parte* in WT Docket No. 06-150")
    at 4-5. Specifically, Google argues that the E Block "only should be
    (1) utilized for interactive, two-way broadband services, (2)
    connected to the public Internet, and (3) used to support innovative
    software-based applications, services, and devices." *Id.* at 4.

[^215]: *Lower 700 MHz Report and Order*, 17 FCC Rcd at 1023 ¶ 1. The
    Commission further found that a flexible use approach was consistent
    with Section 303(y) of the Communications Act, which requires the
    Commission to make affirmative findings that a proposed flexible use
    allocation (1) is consistent with international agreements; (2)
    would be in the public interest; (3) would not deter investment in
    communications services and systems, or technology development; and
    (4) would not result in harmful interference among users. *Id*. at
    1030 ¶ 15 (citing 47 U.S.C. § 303(y)). The Commission's rules allow
    non-guard band 700 MHz licensees to provide "any services for which
    its frequency bands are allocated." 47 C.F.R. § 27.2(a).

[^216]: *See* Qualcomm *Google Ex Parte* Comments at 3-4. Qualcomm
    comments that other mobile video technologies also operate in a
    6-megahertz unpaired block of spectrum. *Id*. at 4.

[^217]: *See* APCO et al. *700 MHz Commercial Services Notice* Reply
    Comments at 2.

[^218]: *Id*. The Balanced Budget Act mandated that with respect to the
    60 megahertz in the Upper 700 MHz Band, the Commission allocate 24
    megahertz of spectrum for public safety services and the remaining
    36 megahertz of spectrum for commercial use to be assigned by
    competitive bidding. *See* 47 U.S.C. § 337(a) (enacted by the
    Balanced Budget Act of 1997, Pub. L. No. 105-33, § 3004, 111 Stat.
    251, 266 (adding new Section 337(a) and establishing initial
    timetable for conducting auctions)); Balanced Budget Act of 1997 §
    3004 (adding new § 337 of the Communications Act). The Commission
    has made that allocation. *See* Reallocation of Television Channels
    60-69, the 746-806 MHz Band, ET Docket No. 97-157, *Report and
    Order*, 12 FCC Rcd 22953 ¶ 1 (1998), *recon*., 13 FCC Rcd 21578
    (1998) (Upper 700 MHz Reallocation Order). The DTV Act requires that
    the Commission auction the "recovered analog spectrum" which does
    not include the spectrum required by Section 337 of the Act to be
    made available for public safety services. DTV Act § 3003(a)(2);
    *see also* *700 MHz Commercial Services Notice*, 21 FCC Rcd at 9349
    ¶ 5, 9350-51 ¶ 9.

[^219]: *See 700 MHz Further Notice*, 22 FCC Rcd at 8132 ¶ 183.

[^220]: *Id.*

[^221]: *Id.* at 8147 ¶ 227. The Commission initially sought comment on
    the BOP and other proposals regarding the Guard Bands in the *700
    MHz Guard Bands Notice*. *See 700 MHz Guard Bands Notice,* 21 FCC
    Rcd at 10430-35 ¶¶ 40-48.

[^222]: *See 700 MHz* *Further Notice,* 22 FCC Rcd at 8147 ¶ 227.

[^223]: *Id.*

[^224]: *Id.* The Commission added that the BOP also could create an
    increased potential for interference between 700 MHz Band public
    safety and commercial operations. *Id.*

[^225]: *See 700 MHz Further Notice,* 22 FCC Rcd at 8136 ¶¶ 195-196;
    *see also 700 MHz Guard Bands Notice*, 21 FCC Rcd at 10432 ¶ 45.

[^226]: Broadcasting Public Notice CRTC 2007-53 (May 17, 2007),
    available at
    [[http://www.crtc.gc.ca/archive/ENG/Notices/2007/pb2007-53.htm]{.underline}](http://www.crtc.gc.ca/archive/ENG/Notices/2007/pb2007-53.htm).

[^227]: Access Spectrum/Pegasus *700 MHz Further Notice* Comments at 8.
    Mexican television broadcasters operate in the border areas on TV
    channels 63 and 64. *Id.* According to Access Spectrum/Pegasus,
    having interoperable public safety channels on both channels 63 and
    68 in the United States helps alleviate interference issues. Access
    Spectrum/Pegasus *700 MHz Further Notice* Comments at 10.

[^228]: *See 700 MHz Further Notice,* 22 FCC Rcd at 8136 ¶¶ 195-196.

[^229]: *Id.* at 8136-8137 ¶¶ 195-199.

[^230]: *Id.* at 8137 ¶ 199.

[^231]: *Id.*

[^232]: *See* Letter from Kathleen Wallman, on behalf of Access
    Spectrum, LLC, Dominion 700, Inc., Pegasus Communications
    Corporation, and Radiofone Nationwide PCS, LLC, to Marlene H.
    Dortch, Secretary, FCC, *Ex Parte* in WT Docket Nos. 96-86, 06-150,
    06-169, PS Docket No. 06-229 (filed July 9, 2007) ("Access
    Spectrum/Pegasus July 6, 2007 *Ex Parte*").

[^233]: *See* Northrop Grumman *700 MHz Further Notice* Comments at 4.

[^234]: *See* WCA *700 MHz Further Notice* Comments at 4.

[^235]: *Id.* at 4-6, 9.

[^236]: *See* 4G Coalition *700 MHz Further Notice* Comments at 22.

[^237]: *See* Verizon Wireless *700 MHz Further Notice* Comments at 16.

[^238]: *Id.* at 17. Verizon Wireless suggests that the proposal would
    diminish the risk of interference to public safety licensees because
    it would retain the 1-megahertz guard band that separates the
    commercial and public safety spectrum, and also would provide enough
    spectrum in a larger 22-megahertz Upper 700 MHz Band C Block to
    allow for the use of an additional internal guard band to protect
    against high-power operations from the Lower 700 MHz Band C Block.
    *Id.* at 18.

[^239]: *See* NPSTC *700 MHz Further Notice* Comments at 25.

[^240]: *See* Arcadian *700 MHz Further Notice* Reply Comments at 3.

[^241]: *See* ALU *700 MHz Further Notice* Comments at 22.

[^242]: *See* AT&T *700 MHz Further Notice* Reply Comments at 25-28.

[^243]: *See* MetroPCS *700 MHz Further Notice* Comments at 24; *see
    also* Letter from Mark Stachiw, MetroPCS to Marlene H. Dortch,
    Secretary, FCC, *Ex Parte* in WT Docket No. 06-169 (filed Mar. 22,
    2007).

[^244]: *See, e.g.,* Access Spectrum/Pegasus *700 MHz Further Notice*
    Comments, App. B; Northrop Grumman *700 MHz Further Notice* Comments
    at 10.

[^245]: *See* Alcatel-Lucent *700 MHz Further Notice* Comments at 24.

[^246]: *Id.* at 21.

[^247]: *See* Access Spectrum/Pegasus *700 MHz Further Notice* Reply
    Comments at 10-11.

[^248]: *Id.* at 12.

[^249]: *See* Northrop Grumman *700 MHz Further Notice* Comments at 4.

[^250]: *See* WCA *700 MHz Further Notice* Comments at 8.

[^251]: *See* 4G Coalition *700 MHz Further Notice* Comments at 22.

[^252]: *Id.* at 22.

[^253]: *See* NPSTC *700 MHz Further Notice* Comments at 23, 24.

[^254]: *See* Ericsson *700 MHz Further Notice* Comments at 17.

[^255]: *Id.*

[^256]: *Id.*

[^257]: *Id.* at 21.

[^258]: *See* Cyren Call *700 MHz Further Notice* Comments, Att. 1.

[^259]: *See* Ericsson *700 MHz Further Notice* Comments at 23.

[^260]: *Id.* at 23-24.

[^261]: *Id.* at 26-27.

[^262]: Verizon Wireless *700 MHz Further Notice* Reply Comments at 11.

[^263]: *See* Access Spectrum/Pegasus July 6, 2007 *Ex Parte*.

[^264]: However, as discussed below, a reconfigured 1-megahertz B Block
    remains necessary as a guard band between the public safety
    narrowband channels and the upper half of the paired C Block.

[^265]: By contrast, the upper half of the reconfigured B Block (at
    805-806 MHz) will be located between 700 MHz public safety and 800
    MHz public safety spectrum rather than between commercial and public
    safety spectrum.

[^266]: Access Spectrum/Pegasus *700 MHz Further Notice* Comments at
    13-14. Access Spectrum/Pegasus proposed that the vouchers be useable
    in any auction and fully transferable, measured by the population
    covered by the surrendered bandwidth (*i.e.*, in MHz-pops), and
    expressed in a \$/MHz-pop value equal to the gross value of winning
    bids in the auction of Upper 700 MHz licenses divided by the total
    MHz-pops auctioned. *Id.*

[^267]: Under the option variant, after the auction of the adjacent D
    Block, Access Spectrum/Pegasus could choose to either: (a) sell each
    repacked A Block license to the D Block licensee at the D Block's
    \$/MHz-pop auction value; or (b) move to the reconfigured B Block
    within the matching service area. *Id.* at 11, n.15, App. A at 2-3.

[^268]: *See* Letter from Ruth Milkman, Counsel, Access Spectrum, LLC to
    Marlene H. Dortch, Secretary, FCC, *Ex Parte* in WT Docket Nos.
    96-86, 06-150, 06-169, PS Docket No. 06-229 at 2 (filed July 3,
    2007).

[^269]: *See* Access Spectrum/Pegasus *700 MHz Further Notice* Reply
    Comments at 7. With respect to Radiofone, Access Spectrum/Pegasus
    propose that the Radiofone B Block license be grandfathered at its
    existing spectral location, such that the available public safety
    broadband spectrum in the Gulf service area would be reduced from 5
    megahertz to 4 megahertz.

[^270]: Access Spectrum/Pegasus July 6, 2007 *Ex Parte*. Radiofone has
    agreed to surrender its B Block license in the Gulf (MEA 52), and
    will not hold any license in the relocated A Block. *See* Letter
    from Access Spectrum, LLC, Dominion 700, Inc., Pegasus
    Communications Corporation, and Radiofone Nationwide PCS, LLC, to
    Marlene H. Dortch, Secretary, FCC, *Ex Parte* in WT Docket Nos.
    96-86, 06-150, 06-169, PS Docket No. 06-229 (filed July 13, 2007)
    ("Access Spectrum/Pegasus July 13, 2007 *Ex Parte*").

[^271]: Access Spectrum/Pegasus July 6, 2007 *Ex Parte*.

[^272]: *Id.*

[^273]: *See* Letter from Robert M. Gurss, APCO International, to
    Marlene H. Dortch, Secretary, FCC, *Ex Parte* in WT Docket Nos.
    96-86, 06-150, and 06-169, and PS Docket No. 06-229 (filed July 9,
    2007) (noting that APCO and NPSTC support the July 6, 2007 Guard
    Bands Proposal, provided that the Commission ensures "reimbursement
    for public safety narrowband licensees that incur costs to reprogram
    radios to the new channel allotments").

[^274]: *See* Letter from 4G Coalition to Marlene H. Dortch, Secretary,
    FCC, *Ex Parte* in WT Docket Nos. 96-86, 06-150, 06-169, PS Docket
    No. 06-229 at 1 (filed July 11, 2007).

[^275]: *See* Letter from Access Spectrum, LLC, Access 700, LLC, Access
    700 Holdings, LLC, Dominion 700, Inc., Pegasus Guard Band LLC, and
    Radiofone Nationwide PCS, LLC, to Marlene H. Dortch, Secretary, FCC,
    *Ex Parte* in WT Docket Nos. 96-86, 06-150, 06-169, PS Docket No.
    06-229 at 2 (filed July 26, 2007) ("Access Spectrum/Pegasus July 26,
    2007 *Ex Parte*").

[^276]: *Id.* at 1.

[^277]: *Id.*

[^278]: *See* Letter from Access Spectrum, LLC, Access 700, LLC, Access
    700 Holdings, and Arcadian Networks, Inc., to Marlene H. Dortch,
    Secretary, FCC, *Ex Parte* in WT Docket Nos. 96-86, 06-150, 06-169,
    PS Docket No. 06-229 (filed July 27, 2007) ("Access
    Spectrum/Arcadian July 27, 2007 *Ex Parte*").

[^279]: MetroPCS contends that the additional flexibility and
    capabilities that would be afforded the Guard Bands licensees under
    the alternative to the BOP (that were unavailable at auction) would
    create a "windfall" for the incumbents. *See* MetroPCS *700 MHz
    Further Notice* Comments at 24. Similarly, Cyren Call asserts that
    locating the "new" A Block between public safety and commercial
    spectrum would force the commercial licensee to purchase the A Block
    spectrum and result in an economic windfall to the A Block
    licensees. Cyren Call *700 MHz Further Notice* Comments at 32.

[^280]: *700 MHz Further Notice,* 22 FCC Rcd at 8132 ¶ 185.

[^281]: *See, e.g.,* NPSTC Reply Comments in WT Docket No. 96-86 at 7-12
    (filed July 6, 2006); Letter from APCO, International Association of
    Chiefs of Police, International Association of Fire Chiefs, Major
    Cities Chiefs Association, Major Counties Sheriffs Association and
    National Sheriffs' Association to Catherine Seidel, Acting Chief,
    Wireless Bureau, FCC, *Ex Parte* in WT Docket No. 96-86 (filed July
    31, 2006).

[^282]: 47 U.S.C. § 316(a)(1).

[^283]: *Peoples Broadcasting Co. v. United States*, 209 F.2d 286, 288
    (D.C. Cir. 1953) (upholding the Commission's authority to modify a
    television station license without an application by the licensee
    for such a modification, noting that "if modification of licenses
    were entirely dependent upon the wishes of existing licensees, a
    large part of the regulatory power of the Commission would be
    nullified").

[^284]: *Community Television, Inc. v. FCC*, 216 F.3d 1133, 1140 (D.C.
    Cir. 2000). In *Community Television*, the court upheld the FCC's
    rules establishing procedures and a timetable under which television
    broadcasting would migrate from analog to digital technology.

[^285]: *See Rainbow Broadcasting v. FCC*, 949 F.2d 405, 410 (D.C. Cir.
    1991), in which the court held the Commission had the authority to
    allow noncommercial and commercial television licensees to exchange
    channels without exposing licensees to competing applications,
    despite third-party interest in acquiring the swapped licenses.

[^286]: *See* 47 U.S.C. § 316(a)(1) ( "\[a\]ny station license . . . may
    be modified by the Commission . . . if in the judgment of the
    Commission such action will promote the public interest, convenience
    and necessity"). The U.S. Court of Appeals for the District of
    Columbia Circuit has held that "Section 316 grants the Commission
    broad power to modify licenses; \[and\] the Commission need only
    find that the proposed modification serves the public interest,
    convenience and necessity." *California Metro Mobile Communications
    v. FCC,* 365 F.3d 38, 45 (D.C. Cir. 2004). The court found that
    Section 316 is not unambiguous and therefore deferred to the
    Commission's interpretation that "section 316 contains no limitation
    on the time frame within which it may act to modify a license and
    that its action under the section is not subject to the limitations
    on revocation, modification or reconsideration imposed by
    \[s\]ection 405." *Id.* at 45 (*citations omitted*)*.* The court
    also found that the Commission's modification served the public
    interest, even though the modification was based on potential rather
    than actual interference, and it caused a minor disruption in CMMC's
    operations. *Id*. at 46.

[^287]: *See* Access Spectrum/Pegasus July 6, 2007 *Ex Parte;* Access
    Spectrum/Pegasus July 26, 2007 *Ex Parte*.

[^288]: 47 U.S.C. §§ 337, 309.

[^289]: *See* Letter from Gunnar Halley, Counsel to Access Spectrum,
    LLC, to Marlene H. Dortch, Secretary, FCC, *Ex Parte* in WT Docket
    Nos. 96-86, 06-150, 06-169, PS Docket No. 06-229 (filed July 24,
    2007) ("Access Spectrum July 24, 2007 *Ex Parte*").

[^290]: *See* Access Spectrum/Arcadian July 27, 2007 *Ex Parte*. Access
    initially requested primary authorization for these markets until
    grant of the Upper 700 MHz C Block license, followed by secondary
    authorization through February 17, 2009 (the DTV transition date).
    *See* Access Spectrum July 24, 2007 *Ex Parte.*

[^291]: *Id.*

[^292]: Access Spectrum states that it does not intend to renew the SUAs
    for MEA 52 (Gulf of Mexico) and MEA 32 (Dallas), which expire April
    16 and August 31, 2008, respectively, at their current spectral
    locations, and that it will expeditiously relocate "relatively
    modest" systems in MEA 26 (Memphis), MEA 37 (Oklahoma City), and MEA
    44 (where its customer operates a system in the Las Vegas area) once
    the associated equipment has been authorized for use by the
    Commission. Access Spectrum July 24, 2007 *Ex Parte* at 1-2.

[^293]: 47 U.S.C. § 309(f).

[^294]: *See 700 MHz Further Notice*, 22 FCC Rcd at 8137 ¶ 199.

[^295]: *See* Access Spectrum/Pegasus Reply Comments in WT Docket No.
    06-169 at 8.

[^296]: *See 700 MHz Further Notice*, 22 FCC Rcd at 8132-33 ¶ 186.

[^297]: *See* PTPMS II July 6, 2007 *Ex Parte* at 2.

[^298]: *Id.* at 3-4.

[^299]: *See* Improving Public Safety Communications in the 800 MHz
    Band, WT Docket No. 02-55, *Report and Order*, 19 FCC Rcd 14969,
    14971 ¶ 1 (2004) ("*800 MHz Report and Order*").

[^300]: *See 700 MHz Further Notice*, 22 FCC Rcd at 8137 ¶ 199.

[^301]: 47 U.S.C §§ 316, 303, 301, 154(i).

[^302]: *See* PTPMS II Guard Band Manager's Annual Report, available at
    <http://wireless.fcc.gov/services/index.htm?job=guardband_reports&id=700_guard>.

[^303]: 47 C.F.R. § 2.105(c)(2).

[^304]: 47 U.S.C. § 316; 47 C.F.R. § 1.87.

[^305]: *See* Access Spectrum/Pegasus July 6, 2007 *Ex Parte;* Access
    Spectrum/Pegasus July 26, 2007 *Ex Parte*.

[^306]: 47 U.S.C. § 337(a), as enacted by the Balanced Budget Act of
    1997, Pub. L. No. 105-33, Title III, 111 Stat. 251 (1997). Section
    337(a) provides in pertinent part:

    > \(a\) . . . the Commission shall allocate the electromagnetic
    > spectrum between 746 megahertz and 806 megahertz, inclusive, as
    > follows:
    >
    > \(1\) 24 megahertz of that spectrum for public safety services
    > according to the terms and conditions established by the
    > Commission, in consultation with the Secretary of Commerce and the
    > Attorney General; and
    >
    > \(2\) 36 megahertz of that spectrum for commercial use to be
    > assigned by competitive bidding pursuant to Section 309(j).

    Congress also established a deadline of January 1, 1998 for this
    allocation, as well as a deadline of September 30, 1998 for
    assignment of the public safety licenses. *See* 47 U.S.C. § 337(b).
    On December 31, 1997, the Commission released an Order fulfilling
    Congress' allocation directive. *See* Reallocation of Television
    Channels 60-69, the 746-806 MHz Band, ET Docket No. 97-157, *Report
    and Order*, 12 FCC Rcd 22953, 22962 ¶ 17 (1998).

[^307]: Reallocation of Television Channels 60-69, the 746-806 MHz Band,
    ET Docket No. 97-157, *Report and Order*, 12 FCC Rcd 22953 (1997).
    The commercial portion at 746-764 MHz and 776-794 MHz includes the
    two blocks of paired Guard Bands spectrum at 746-747 MHz and 776-777
    MHz, and 762-764 MHz and 792-794 MHz.

[^308]: *See Upper 700 MHz Second Report and Order*, 15 FCC Rcd at
    5316-19 ¶¶ 36-40.

[^309]: *Id*.

[^310]: *700 MHz Further Notice*, 22 FCC Rcd at 8147 ¶ 227.

[^311]: *Id.* The Commission added that the BOP could also result in
    interference between 700 MHz Band public safety and commercial
    operations. *Id.*

[^312]: If, in contrast, these proponents' reading of Section 337 is
    incorrect, and the statutory language in fact requires the
    Commission to maintain the specified 24/36 megahertz allocations in
    perpetuity (barring future legislative action), the result would be
    the same: the statute would prohibit us from altering these
    allocations at this time.

[^313]: 47 U.S.C. § 337(a)(2).

[^314]: As we expressed in the *700 MHz Further Notice*, CII entities
    are eligible to participate in future auctions for spectrum in the
    700 MHz Band. *See 700 MHz Further Notice*, 22 FCC Rcd at 8149 ¶ 
    233 n.491.

[^315]: *Upper 700 MHz First Report and Order,* 15 FCC Rcd at 505-506 ¶¶
    70-72.

[^316]: 47 C.F.R. § 27.14(a). This section defines "substantial service"
    as "service which is sound, favorable, and substantially above a
    level of mediocre service which just might minimally warrant
    renewal." *Id.*

[^317]: *See Upper 700 MHz First Report and Order*, 15 FCC Rcd at 505 ¶
    70.

[^318]: *See Lower 700 MHz Report and Order*, 17 FCC Rcd at 1079 ¶¶
    149-151.

[^319]: *Rural Report and Order*, 19 FCC Rcd at 19123 ¶ 79.

[^320]: 47 C.F.R. § 1.946(c).

[^321]: *700 MHz Commercial Services Notice*, 21 FCC Rcd at 9373-76 ¶¶
    60-69.

[^322]: *Id.* at ¶ 62-63.

[^323]: *Id.* at ¶ 64-66.

[^324]: *Id.* at ¶ 67-69.

[^325]: *See, e.g.*, AT&T *700 MHz Commercial Services Notice* Comments
    at 12-16; AT&T *700 MHz Commercial Services Notice* Reply Comments
    at 21-24; CTIA *700 MHz Commercial Services Notice* Comments at
    7-16; Cingular *700 MHz Commercial Services Notice* Comments at
    9-13; Corr *700 MHz Commercial Services Notice* Comments at 5-8;
    Dobson *700 MHz Commercial Services Notice* Comments at 5-10; Leap
    *700 MHz Commercial Services Notice* Comments at 9-10; Leap *700 MHz
    Commercial Services Notice* Reply Comments at 5-6; MetroPCS *700 MHz
    Commercial Services Notice* Comments at 15-16; MetroPCS *700 MHz
    Commercial Services Notice* Reply Comments at 10-12; MilkyWay *700
    MHz Commercial Services Notice* Comments at 7-9; NextWave *700 MHz
    Commercial Services Notice* Reply Comments at 14; Qualcomm *700 MHz
    Commercial Services Notice* Comments at 19; Union Telephone *700 MHz
    Commercial Services Notice* Comments at 5-6; U.S. Cellular *700 MHz
    Commercial Services Notice* Comments at 12-16; U.S. Cellular *700
    MHz Commercial Services Notice* Reply Comments at 11-16; Verizon
    Wireless *700 MHz Commercial Services Notice* Comments at 6-9.

[^326]: *See, e.g.*, Howard/Javed *700 MHz Commercial Services Notice*
    Comments at 24-26; Navajo Nation *700 MHz Commercial Services
    Notice* Comments at 2-3; OPASTCO *700 MHz Commercial Services
    Notice* Comments at 5-6; RCA *700 MHz Commercial Services Notice*
    Comments at 8-10; RCA *700 MHz Commercial Services Notice* Reply
    Comments at 4-7; RTG *700 MHz Commercial Services Notice* Comments
    at 8-9; Vermont Department of Public Service *et al. 700 MHz
    Commercial Services Notice* Comments at 5-10; Vermont Department of
    Public Service *et al. 700 MHz Commercial Services Notice* Reply
    Comments at 4-7.

[^327]: *See, e.g.,* DIRECTV/EchoStar *700 MHz Commercial Services
    Notice* Comments at 9; Navajo Nation *700 MHz Commercial Services
    Notice* Comments at 2-3; RCA *700 MHz Commercial Services Notice*
    Comments at 8-10; RCA *700 MHz Commercial Services Notice* Reply
    Comments at 4-7; Vermont Department of Public Service, *et al. 700
    MHz Commercial Services Notice* Comments at 5-8. The Navajo Nation,
    RCA, and the Vermont Department of Public Service, *et al.*
    favorably discuss both benchmarks and a "keep-what-you-use"
    approach.

[^328]: *See* RCA *700 MHz Commercial Services Notice* Comments at 8-10;
    RCA *700 MHz Commercial Services Notice* Reply Comments at 4-8.

[^329]: *See* Vermont Department of Public Service, *et al. 700 MHz
    Commercial Services Notice* Comments at 5-8.

[^330]: *See, e.g.,* Howard/Javed *700 MHz Commercial Services Notice*
    Comments at 31-37; NextWave *700 MHz Commercial Services Notice*
    Reply Comments in WT Docket No. 06-150 at 9-12 (supporting rules
    allowing unlicensed use on a secondary basis); Tropos Comments in WT
    Docket No. 06-150 at 9-11 (recommending bands designated for
    unlicensed use).

[^331]: Unlicensed Operation in the TV Broadcast Bands, Additional
    Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Band,
    ET Docket No. 04-186, *First Report and Order and Further Notice of
    Proposed Rulemaking,* 21 FCC Rcd 12266 (2006) (*TV White Spaces
    Report and Order*).

[^332]: *See* Howard/Javed *700 MHz Commercial Services Notice* Comments
    at 31-37; NextWave *700 MHz Commercial Services Notice* Reply
    Comments at 9-12.

[^333]: *See* CTIA *700 MHz Commercial Services Notice* Reply Comments
    at 11.

[^334]: *See 700 MHz Further Notice*, 22 FCC Rcd at 8140-43 ¶¶ 207-220.

[^335]: *See 700 MHz Further Notice*, 22 FCC Rcd at 8142 ¶ 212.

[^336]: *See id.*

[^337]: *See 700 MHz Further Notice*, 22 FCC Rcd at 8142 ¶ 213.

[^338]: *Id.* at 8142-43 ¶¶ 214-15.

[^339]: *Id.* at 8142 ¶ 214.

[^340]: *Id.*

[^341]: *Id.* at 8142 ¶ 215.

[^342]: *Id.* at 8142-43 ¶ 215.

[^343]: *See 700 MHz Further Notice*, 22 FCC Rcd at 8142 ¶ 214.

[^344]: *See 700 MHz Further Notice*, 22 FCC Rcd at 8143 ¶ 217.

[^345]: *See 700 MHz Further Notice*, 22 FCC Rcd at 8143 ¶ 220.

[^346]: *See*, *e.g*., 4G Coalition *700 MHz Further Notice* Comments at
    12-20; AT&T *700 MHz Further Notice* Comments at 14-17; Blooston
    *700 MHz Further Notice* Comments at 7-9; Council Tree *700 MHz
    Further Notice* Comments at 12-15; CTIA *700 MHz Further Notice*
    Comments at 3-10; Dobson *700 MHz Further Notice* Comments at 3;
    Leap *700 MHz Further Notice* Comments at 5-7; McBride *700 MHz
    Further Notice* Comments at 16-17; MetroPCS *700 MHz Further Notice*
    Comments at 29-38; RTG *700 MHz Further Notice* Comments at 8-12;
    SpectrumCo *700 MHz Further Notice* Comments at 20-30; TIA *700 MHz
    Further Notice* Comments at 7-8; Union *700 MHz Further Notice*
    Comments at 8; USCC *700 MHz Further Notice* Comments at 14-19;
    Verizon Wireless *700 MHz Further Notice* Comments at 19-31.

[^347]: *See* Blooston *700 MHz Further Notice* Comments at 7-9; Dobson
    *700 MHz Further Notice* Comments at 3-6; Leap *700 MHz Further
    Notice* Comments at 5-7; Union *700 MHz Further Notice* Comments at
    10; AT&T *700 MHz Further Notice* Comments at 15; U.S. Cellular *700
    MHz Further Notice* Comments at 14-19; Verizon Wireless *700 MHz
    Further Notice* Comments at 28-30.

[^348]: *See* CTIA *700 MHz Further Notice* Comments at 10; TIA *700 MHz
    Further Notice* Comments at 7-8.

[^349]: *See* 4G Coalition *700 MHz Further Notice* Comments at 12-14,
    16-18; SpectrumCo *700 MHz Further Notice* Comments at 21-24.

[^350]: *See* Leap *700 MHz Further Notice* Comments at 6.

[^351]: *See* Union *700 MHz Further Notice* Comments at 8.

[^352]: *See*, *e.g*., 700 MHz Independents *700 MHz Further Notice*
    Comments at 8-10; Aloha *700 MHz Further Notice* Comments at 3-4;
    CCIA *700 MHz Further Notice* Comments at 4; Cellular South *700 MHz
    Further Notice* Comments at 3-5; Embarq *700 MHz Further Notice*
    Comments at 5; Frontier *700 MHz Further Notice* Comments at 10-12;
    RCA *700 MHz Further Notice* Comments at 11; RTG *700 MHz Further
    Notice* Comments at 8-12; WISPA *700 MHz Further Notice* Comments at
    12-14; *see* *also* RCA *700 MHz Further Notice* Reply Comments at
    1-11.

[^353]: *See* AT&T *700 MHz Further Notice* Comments at 19-20; Verizon
    Wireless *700 MHz Further Notice* Comments at 28-30, Attach. A at
    4-5, 7.

[^354]: *See* Dobson *700 MHz Further Notice* Comments 6-7.

[^355]: *See* Motorola *700 MHz Further Notice* Comments at 34.

[^356]: *See* AT&T *700 MHz Further Notice* Comments at 19-20.

[^357]: *See* Verizon Wireless *700 MHz Further Notice* Comments at
    28-29.

[^358]: *See* Dobson *700 MHz Further Notice* Comments 6-7.

[^359]: *See* Cellular South *700 MHz Further Notice* Comments at 3-8.

[^360]: *See* RCA *700 MHz Further Notice* Reply Comments at 7-8, RTG
    *700 MHz Further Notice* Reply Comments at 8-10.

[^361]: *See* NENA *700 MHz Further Notice* Reply Comments at 3.

[^362]: *See* Vermont Department of Public Service *et al. 700 MHz
    Further Notice* Reply Comments at 1-3.

[^363]: *See* RCA *700 MHz Further Notice* Comments at 7-8; RTG *700 MHz
    Further Notice* Comments at 9-12; RCA *700 MHz Further Notice* Reply
    Comments at 7-8, 11; RTG *700 MHz Further Notice* Reply Comments at
    8.

[^364]: *See* Vermont Department of Public Service *et al. 700 MHz
    Further Notice* Reply Comments at 1-2.

[^365]: *See, e.g*., 700 MHz Independents *700 MHz Further Notice*
    Comments at 8-10 (support adoption of rules similar to those used
    for licensing unserved cellular areas); PISC *700 MHz Further
    Notice* Comments at 37 (agrees with the general proposal that
    licensees should be subject to a "use-or-lose" license condition);
    Aloha *700 MHz Further Notice* Comments at 4 (supports the general
    "keep-what-you-use" proposal set forth in the 700 MHz Further
    Notice); Blooston *700 MHz Further Notice* Comments at 7-8
    (Commission should exempt CMA licenses from "keep-what-you-use"
    performance criteria); CCIA *700 MHz Further Notice* Comments at 4
    (urges the Commission to adopt "keep-what-you-use"); Cellular South
    *700 MHz Further Notice* Comments at 6 (supports RCA's proportionate
    "keep-what-you-use" approach); Dobson *700 MHz Further Notice*
    Comments at 6-7 (supports use of "keep what you use" relicensing for
    small-sized service areas only); RCA *700 MHz Further Notice*
    Comments at 7-8; RTG *700 MHz Further Notice* Comments at 5-7, 9
    (supports cellular "keep-what-you-use" procedures); Verizon Wireless
    *700 MHz Further Notice* Comments at 19-31; Vermont Department of
    Public Service et al. *700 MHz Further Notice* Reply Comments at
    1-3.

[^366]: *See, e.g*., AT&T *700 MHz Further Notice* Comments at 14-17
    ("keep-what-you-use" re-licensing approach is inconsistent with
    long-standing Commission policy); CTIA *700 MHz Further Notice*
    Comments at 10 (Commission should establish performance requirements
    similar to AWS performance requirements); Leap *700 MHz Further
    Notice* Comments at 6 ("keep-what-you-use" could have particularly
    unfortunate consequences); MetroPCS *700 MHz Further Notice*
    Comments at 30 ("keep-what-you-use" mechanisms are particularly
    burdensome for smaller and regional carriers); Motorola *700 MHz
    Further* *Notice* Comments at 36 ("keep-what-you-use" creates
    uncertainty, may chill the auction process, and is not necessary
    given the competitive nature of the commercial market); SpectrumCo
    *700 MHz Further Notice* Comments at 20-30 (Commission should not
    adopt either of the "keep what you use" policy proposals described
    in the *700 MHz Further Notice*); TIA *700 MHz Further Notice*
    Comments at 7-8 (Commission should apply the same construction
    obligations that it has applied in the broadband PCS context); Union
    *700 MHz Further Notice* Comments at 9 (opposes re-licensing
    mechanism to reclaim spectrum); USCC *700 MHz Further Notice*
    Comments at 17-18 ("keep-what-you-use" requirement will create
    powerful regulatory incentives to engage in economically irrational
    behavior); WISPA *700 MHz Further Notice* Comments at 12-14 (a
    licensee that fails to meet the applicable benchmarks should not
    automatically have its license area reduced, but should face a
    higher level of scrutiny at the end of its license term).

[^367]: *See*, *e.g*., PISC *700 MHz Further Notice* Comments at 37;
    Google *700 MHz Further Notice* Comments at 9.

[^368]: *See* RCA *700 MHz Further Notice* Comments at 5.

[^369]: *See* Vermont Department of Public Service *et al. 700 MHz
    Further Notice* Reply Comments at 1-3.

[^370]: *See, e.g.*, 4G Coalition *700 MHz Further Notice* Comments at
    12-20; 700 MHz Independents *700 MHz Further Notice* Comments at
    8-10; Aloha *700 MHz Further Notice* Comments at 3-4; Dobson *700
    MHz Further Notice* Comments at 3; Frontier *700 MHz Further Notice*
    Comments at 10-12; RTG *700 MHz Further Notice* Comments at 8-12;
    Union *700 MHz Further Notice* Comments at 8; Verizon Wireless *700
    MHz Further Notice* Comments at 19-31; WISPA *700 MHz Further
    Notice* Comments at 12-14.

[^371]: *See* Blooston *700 MHz Further Notice* Comments at 7-8.

[^372]: *See, e.g.,* RTG *700 MHz Further Notice* Comments at 9-10; NTCA
    *700 MHz Further Notice* Comments at 5-7; Union *700 MHz Further
    Notice* Reply Comments at 4-6.

[^373]: *See* Dobson *700 MHz Further Notice* Comments at 3-7.

[^374]: *See* 4G Coalition *700 MHz Further Notice* Comments at 15.

[^375]: *See, e.g*., 700 MHz Independents *700 MHz Further Notice*
    Comments at 8-10; Cellular South *700 MHz Further Notice* Comments
    at 6; Union *700 MHz Further Notice* Comments at 8.

[^376]: *See, e.g*., 4G Coalition *700 MHz Further Notice* Comments at
    17; Dobson *700 MHz Further Notice* Comments at 3; Verizon Wireless
    *700 MHz Further Notice* Comments at 19-31. According to SpectrumCo,
    "greenmail" is "a practice by which parties not interested in
    actually providing service utilize the regulatory process to extract
    concessions from licensees." SpectrumCo *700 MHz Further Notice*
    Comments at 29.

[^377]: The interim benchmark for initial licenses in a market granted
    after February 17, 2009 shall be four years from the date of license
    issuance.

[^378]: As adopted herein, the length of original license term is ten
    years from the date of the DTV transition.

[^379]: *See* Aloha *700 MHz Commercial Services Notice* Comments at 2;
    Blooston *700 MHz Commercial Services Notice* Comments at 3; Dobson
    *700 MHz Commercial Services Notice* Comments at 3; Frontier *700
    MHz Commercial Services Notice* Comments at 4; NTCA *700 MHz
    Commercial Services Notice* Comments 3-5; RCA *700 MHz Commercial
    Services Notice* Comments at 3-4; RTG *700 MHz Commercial Services
    Notice* Comments at 4-5.

[^380]: *See* Aloha *700 MHz Commercial Services Notice* Comments at
    3-6; Balanced Consensus Plan *700 MHz Commercial Services Notice*
    Comment at Attach.; Blooston *700 MHz Commercial Services Notice*
    Comments at 2; C&W *700 MHz Commercial Services Notice* Reply
    Comments at 2-3; Corr *700 MHz Commercial Services Notice* Comments
    at 2-4; Dobson *700 MHz Commercial Services Notice* Comments at 2-4;
    Howard/Javed *700 MHz Commercial Services Notice* Comments at 9;
    Leap *700 MHz Commercial Services Notice* Comments at 4-6; MilkyWay
    *700 MHz Commercial Services Notice* Comments at 1-6; NextWave *700
    MHz Commercial Services Notice* Comments at 2-6; NTCA *700 MHz
    Commercial Services Notice* Comments at 6; OPASTCO *700 MHz
    Commercial Services Notice* Comments at 2-3; RCA *700 MHz Commercial
    Services Notice* Comments at 4-8; RTG *700 MHz Commercial Services
    Notice* Comments at 2; U.S. Cellular *700 MHz Commercial Services
    Notice* Comments at 4.

[^381]: *See* RCA *700 MHz Further Notice* Reply Comments at 10.

[^382]: RTG *700 MHz Commercial Services Notice* Comments at 4.

[^383]: Cellular South *700 MHz Further Notice* Comments at 3.

[^384]: *See*, *e.g*., Aloha *700 MHz Further Notice* Comments at 4;
    CCIA *700 MHz Further Notice* Comments at 4; Cellular South *700 MHz
    Further Notice* Comments at 4; RCA *700 MHz Further Notice* Comments
    at 5; Vermont Department of Public Service *700 MHz Further Notice*
    Reply Comments at 1-2; WISPA *700 MHz Further Notice* Comments at
    12.

[^385]: We are concerned that the proposed three-year benchmark may not
    provide sufficient time for providers of advanced services to
    acquire and deploy 4G technologies. Such 4G network build-out will
    require the commercial availability of end-to-end integrated
    systems, including subscriber terminals, radio access network, core
    network, and transport network, in addition to flexible enhanced
    services and integrated back-office and customer support centers. To
    achieve a commercial availability benchmark, teams of service
    providers, vendors and integrators must complete several parallel
    processes, including completion of the standards, product
    development, field trials, interoperability testing and larger scale
    trials, followed by deployment. Such an implementation is
    challenging and it may not be possible for carriers to complete
    these tasks prior to the end of the three-year benchmark that was
    proposed in the *700 MHz Further Notice*.

[^386]: More information on lands owned or administered by the Federal
    Government is available from the Department of the Interior at
    [http://www.doi.gov](http://www.doi.gov/). In excluding these areas
    for purposes of calculating whether a licensee has met the relevant
    build-out requirements, however, we do not intend to discourage
    deployment to populated tribal areas. Accordingly, excluded areas do
    not include those populated lands held by tribal governments or
    those held by the Federal Government in trust or for the benefit of
    a recognized tribe.

[^387]: *See*, *e.g*., Cellular South *700 MHz Further Notice* Comments
    at 6.

[^388]: *See* Dobson *700 MHz Further Notice* Comments at 3-7.

[^389]: *See* AT&T *700 MHz Further Notice* Comments at 19-20; Verizon
    Wireless *700 MHz Further Notice* Comments at 28-29.

[^390]: See Verizon Wireless *700 MHz Further Notice* Comments at 28-29.

[^391]: *See* 47 C.F.R. § 1.946(d) ("The notification must be filed with
    Commission within 15 days of the expiration of the applicable
    construction or coverage period.").

[^392]: When the Commission adopted a benchmark approach for Personal
    Communications Service (PCS), it stated: "Licensees must file maps
    and other supporting documents showing compliance with the
    respective construction requirements within the appropriate five-
    and ten-year benchmarks of the date of their initial licenses." 47
    C.F.R. § 24.203(c). *See*, *e.g*., Cellular South *700 MHz Further*
    *Notice* Comments at 5.

[^393]: *See*, *e.g*., 47 C.F.R. § 1.17 (Truthful and accurate
    statements to the Commission); 47 C.F.R. § 1.917 ("Willful false
    statements made therein, however, are punishable by fine and
    imprisonment, 18 U.S.C. 1001, and by appropriate administrative
    sanctions, including revocation of station license pursuant to
    312(a)(1) of the Communications Act of 1934, as amended.").

[^394]: We decline to adopt the suggestion from RTG that we define a
    bright line test for what constitutes sufficient signal strength,
    because we will be able to determine compliance with our build-out
    requirements on the basis of these detailed filing requirements.
    *See* RTG *700 MHz Further Notice* Comments at 8-12.

[^395]: For EA and CMA licenses, if any part of the license area
    includes government lands, the licensee must certify in the
    supporting documentation what percentage of the EA or CMA contains
    government lands exempted from coverage.

[^396]: 47 C.F.R. § 1.935. In addition to applications, Section 1.935
    also addresses petitions to deny, informal objections, or other
    pleadings.

[^397]: *Id.*

[^398]: 47 C.F.R. §§ 22.946(c), 22.949.

[^399]: *See* 47 C.F.R. § 22.951.

[^400]: 47 U.S.C. § 333.

[^401]: Some commenters argue that the details of implementation of
    "keep-what-you-use" will be overly burdensome and contentious. *See,
    e.g*., Leap *700 MHz Further Notice* Comments at 5-7; Verizon
    Wireless *700 MHz Further Notice* Comments at 19-31.

[^402]: *See, e.g.*, 47 C.F.R. § 24.203(b) (sets out different
    construction obligations for certain 15 MHz C Block PCS licenses
    that result from disaggregation as compared to other 15 MHz C Block
    licenses that result from disaggregation).

[^403]: *See, e.g.,* Aloha *700 MHz Commercial Services Notice* Comments
    at 2; Blooston *700 MHz Commercial Services Notice* Comments at 3;
    Dobson *700 MHz Commercial Services Notice* Comments at 3; Frontier
    *700 MHz Commercial Services Notice* Comments at 4; NTCA *700 MHz
    Commercial Services Notice* Comments at 3-5; RCA *700 MHz Commercial
    Services Notice* Comments at 3-4; RTG *700 MHz Commercial Services
    Notice* Comments at 4-5.

[^404]: *See, e.g.,* Howard/Javed *700 MHz Commercial Services Notice*
    Comments at 31-37; NextWave *700 MHz Commercial Services Notice*
    Reply Comments at 9-12; PISC *700 MHz Further Notice* Comments at
    37; *see also* Google *700 MHz Further Notice* Comments at 9.

[^405]: *TV White Spaces Report and Order*, 21 FCC Rcd at 12275 ¶ 21.

[^406]: For example, in addressing the issue of unlicensed use in the TV
    white spaces, the Commission noted that in 13 markets across the
    country Private Land Mobile Radio Service (PLMRS) licensees use some
    channels in the range of channels 14-20, and it observed that
    personal/portable mobile devices could be easily transported into
    these areas. Accordingly, the Commission prohibited such devices
    from operating on these channels in any part of the country. *See TV
    White Spaces Report and Order*, FCC Rcd at 12275 ¶ 21.

[^407]: 47 C.F.R. § 27.15.

[^408]: Geographic Partitioning and Spectrum Disaggregation by
    Commercial Mobile Radio Service Licensees, *Report and Order and
    Further Notice of Proposed Rulemaking*, 11 FCC Rcd 21831 ¶ 1 (1996)
    (*CMRS Partitioning and Disaggregation Order*).

[^409]: *See, e.g.*, 47 C.F.R. § 27.15 (partitioning and disaggregation
    rules for Part 27 licenses).

[^410]: *See id.*

[^411]: *CMRS Partitioning and Disaggregation Order*, 11 FCC Rcd at
    21864 ¶ 61.

[^412]: 47 C.F.R. § 27.15(d)(1).

[^413]: 47 C.F.R.§ 27.14(a) (every Part 27 licensee must establish
    substantial service at the end of the license term).

[^414]: 47 C.F.R. § 27.15(d)(2).

[^415]: 47 C.F.R. § 27.14(a) (every Part 27 licensee must establish
    substantial service at the end of the license term).

[^416]: *Id.*

[^417]: Specifically, we will keep in place for new 700 MHz Commercial
    Services licensees the other existing Section 27.15 rules pertaining
    to geographic partitioning and spectrum disaggregation -- Sections
    27.15(a), (b), and (c). These sections address eligibility,
    technical standards, and license term.

[^418]: For applications seeking Commission approval for license
    partitioning that would occur before the four-year performance
    requirements have become due, the partitioner and partitionee each
    must certify that they will share responsibility for meeting the
    four- and ten-year benchmarks for the original geographic license
    area. For applications seeking Commission approval for license
    partitioning after the four-year benchmark has been met, both
    parties must certify that they will share responsibility for meeting
    the ten-year build-out requirement.

[^419]: If the parties choose this option and enter into a partitioning
    agreement before the four-year build-out requirements have become
    due, then each party must certify that it will meet both the four-
    and ten-year build-out requirements for its respective partitioned
    geographic license area. If the parties enter into a partitioning
    agreement after the four-year construction benchmark has been met,
    then each party must certify that it will meet the ten-year
    build-out requirement for its respective partitioned license area.

[^420]: To the extent that a REAG licensee partitions a license, and the
    four-year construction benchmark is not met with regard to any EA
    area, the REAG licensee's license term would be reduced to eight
    years, thus requiring that the licensee meet the end-of-term
    benchmark at an accelerated schedule.

[^421]: For a disaggregation that would occur before the four-year
    build-out requirement is due, the disaggregator, disaggregatee, or
    both the disaggregator and disaggregatee working together must meet
    the four- and ten-year benchmarks for the geographic license area.
    For disaggregation that would occur after the interim four-year
    benchmark has been met, the disaggregator, disaggregatee, or both
    the disaggregator and disaggregate working together must meet the
    ten-year build-out requirement.

[^422]: Similar to the rules applicable to partitioning discussed above,
    to the extent that a REAG licensee disaggregates a license and the
    four-year construction benchmark is not met with regard to any EA
    area, the REAG licensee's license term would be reduced to eight
    years, thus requiring that the licensee meet the end-of-term
    benchmark at an accelerated schedule.

[^423]: The *Ad Hoc* Public Interest Spectrum Coalition consists of the
    Consumer Federation of America, Consumers Union, Free Press, Media
    Access Project, New America Foundation, and Public Knowledge.

[^424]: PISC's proposal for the 700 MHz Band generally is more extensive
    than a similar proposal by Frontline for open access in a portion of
    the Upper 700 MHz spectrum Frontline proposes to be used for a
    public/private partnership license. *See 700 MHz* *Further Notice*,
    22 FCC Rcd at 8167-68 ¶ 290.

[^425]: PISC *700 MHz Further Notice* Comments at 12.

[^426]: PISC *700 MHz Further Notice* Comments at 7.

[^427]: WFCI June 7 E*x Parte* at 4.

[^428]: Frontline *700 MHz Further Notice* Comments at 21-22.

[^429]: MoveOn.org June 4, 2007 Reply Comments at 1; Skype July 10, 2007
    *Ex Parte* at 3.

[^430]: PISC *700 MHz Further Notice* Comments at 7. Handset or phone
    "locking," for example, is one practice that arguably prevents
    consumers from migrating otherwise technically compatible equipment
    from one wireless service provider to another. Providers claim that
    it is a practice designed to combat fraud. *See* Verizon Wireless
    July 25 *Exempt Ex Parte*, Attach. at 22-23, and Verizon Wireless
    July 27 *Exempt Ex Parte* at 2 (locking restrictions should be
    limited to locking or programming a device to prevent a user from
    activating device on another carrier\'s network); *see also, e.g.*,
    the following comments filed in the Skype proceeding, RM-11361: PISC
    Comments at ii, 8; API Comments at 2; Consumers Union at i, 2-5, 11;
    NASUCA Comments at 3; PPH Comments at 2-3; PISC Comments at 2-3, 8;
    Ram Fish Comments at 3, 9; BT Americas Reply Comments at 1, 8-10,
    12; NASUCA Reply Comments at 5.

[^431]: WFCI July 3, 2007 *Ex Parte,* Attach. at 1-11.

[^432]: PISC *700 MHz Further Notice* Comments at 15, 22-26; MoveOn.org
    *700 MHz Further Notice* Reply Comments at 1; *see also* CCIA *700
    MHz Further Notice* Comments at 6; Frontline *700 MHz Further
    Notice* Comments at 21-22; Google *700 MHz Further Notice* Comments
    at 2; Frontline *700 MHz Further Notice* Comments on Google's
    Comments at 4; WFCI *700 MHz Further Notice* Comments at 3.

[^433]: *Use of the Carterfone Device in Message Toll Telephone
    Service*, 13 FCC 2d 420 (1968).

[^434]: *See*, *e.g.,* PISC *700 MHz Further Notice* Comments at 16-19;
    Vanu *700 MHz Further Notice* Comments at 4; Google June 9, 2007 *Ex
    Parte* at 5-6; *see also* Frontline *700 MHz Further Notice*
    Comments at 22. In addition, approximately 250,000 individual
    citizens filed brief comments both during and after the formal
    comment periods asking the Commission to ensure that large
    corporations will not stifle competition and innovation in Internet
    markets over U.S. airwaves, and to set aside at least 30 MHz of
    spectrum for open and non-discriminatory Internet access.

[^435]: *See*, *e.g.*, PISC *700 MHz Further Notice* Comments at 20-22;
    Vanu *700 MHz Further Notice* Comments at 5; The Coalition for 4G in
    America July 20 *Ex Parte* at 1; Public Knowledge July 23 *Ex Parte*
    at 4-7; *see also* Frontline *700 MHz Further Notice* Comments at
    21; Frontline *700 MHz Further Notice* Reply Comments at 32.

[^436]: Google July 9 *Ex Parte* at 4-8.

[^437]: CTIA *700 MHz Further Notice* Comments at 24; Dobson *700 MHz
    Further Notice* Comments at 9-10; MetroPCS *700 MHz Further Notice*
    Comments at 39; Qualcomm *700 MHz Further Notice* Comments at 11-12;
    CTIA *700 MHz Further Notice* Reply Comments at 10, 13; MetroPCS
    *700 MHz Further Notice* Reply Comments at 25-27; Qualcomm *700 MHz
    Further Notice* Reply Comments at 5; T-Mobile *700 MHz Further
    Notice* Reply Comments at 4-5, 7-9; TCA *700 MHz Further Notice*
    Reply Comments at 4-5; Verizon Wireless *700 MHz Further Notice*
    Reply Comments at 15; *see also* MetroPCS *700 MHz Further Notice*
    Reply Comments at 35-36; Verizon Wireless *700 MHz Further Notice*
    Comments at 46; U.S. Cellular July 24, 2007 *Ex Parte* at 2; Verizon
    July 25 *Exempt ex parte*, attaching Verizon's Comments in RM-11361.
    *Cf*. AT&T *700 MHz Further Notice* Comments at 22, 28-33; AT&T *700
    MHz Further Notice* Reply Comments at 3-6. We note that although
    AT&T's comments and reply comments generally opposed "open access,"
    in recent filings AT&T states that it supports a limited access
    requirement so long as there are safeguards addressing its earlier
    concerns. AT&T July 20 *Ex Parte*, Attach. at 2.

[^438]: *See, e.g.*, CTIA July 19, 2007 *Ex Parte* at 1-2 (noting CTIA's
    demonstration of handsets from four largest wireless carriers with
    integrated open Wi-Fi connectivity as well as ability to "easily run
    Skype application").

[^439]: CTIA *700 MHz Further Notice* Comments at 23-24; Dobson *700 MHz
    Further Notice* Comments at 10-11; Qualcomm *700 MHz Further Notice*
    Comments at 12; MetroPCS *700 MHz Further Notice* Reply Comments at
    28-31; T-Mobile *700 MHz Further Notice* Reply Comments at 10; *see
    also* Verizon Wireless *700 MHz Further Notice* Comments at 46-48;
    Verizon Wireless *700 MHz Further Notice* Reply Comments at 21-22.

[^440]: *See, e.g.,* Verizon Wireless July 24 *Ex Parte* at 4.

[^441]: Verizon Wireless July 24 *Ex Parte* at 3.

[^442]: CTIA *700 MHz Further Notice* Comments at 24; Dobson *700 MHz
    Further Notice* Comments at 10; MetroPCS *700 MHz Further Notice*
    Comments at 39-40; Qualcomm *700 MHz Further Notice* Comments at 12;
    AT&T *700 MHz Further Notice* Reply Comments at 3, 13-17; MetroPCS
    *700 MHz Further Notice* Reply Comments at 25, 27-28,40; Qualcomm
    *700 MHz Further Notice* Reply Comments at 6; T-Mobile *700 MHz
    Further Notice* Reply Comments at 9; TCA *700 MHz Further Notice*
    Reply Comments at 5; *see also* CTIA *700 MHz Further Notice*
    Comments at 17-19; Verizon Wireless *700 MHz Further Notice*
    Comments at 46-47; MetroPCS *700 MHz Further Notice* Reply Comments
    at 40; Verizon Wireless *700 MHz Further Notice* Reply Comments at
    19-20.

[^443]: *See, e.g.*, Verizon Wireless July 24 *Ex Parte* at 2-3;
    MetroPCS July 16 *Ex Parte* at 1-2; *see also* CTIA June 29 *Ex
    Parte* at 2 (open access proposals are premature); *cf*. Wireless
    Internet Service Providers Ass'n July 12 *Ex Parte* at 1 (opposed to
    open access proposals in markets where bidding credits are
    available, but notes that open access for larger geographic spectrum
    blocks would provide opportunity for new entrants).

[^444]: Verizon Wireless July 24 *Ex Parte* at 7-8.

[^445]: Verizon Wireless July 24 *Ex Parte* at 9-12. Verizon Wireless
    compares the 22 MHz block licensees to the AWS-1 licensees, where
    open access requirements were not imposed, arguing that spectrum
    allocation was intended for the same type of service as 700 MHz and
    therefore these licensees should have the same regulatory
    requirements.

[^446]: AT&T July 20 *Ex Parte*, Attach. at 1-2.

[^447]: AT&T July 20 *Ex Parte*, Attach. at 2; *but see* CTIA June 29
    *Ex Parte* at 1-2 (open access proposals effectively remove
    availability of spectrum to small and rural providers); MetroPCS
    July 16, 2007 *Ex Parte* at 2*.*

[^448]: Broadband Industry Practices, WC Docket No. 07-52, *Notice of
    Inquiry*, 22 FCC Rcd 7894 (2007) (*Broadband Practices*).

[^449]: *Petition to Confirm a Consumer's Right to Use Internet
    Communications Software and Attach Devices to Wireless Networks*,
    RM-11361 (filed Feb. 20, 2007) (*Skype Petition*). Our discussion of
    the Skype Petition herein is not intended to weigh the merits of
    Skype's request.

[^450]: CTIA *700 MHz Further Notice* Comments at 24-25; MetroPCS *700
    MHz Further Notice* Comments at 40; TIA *700 MHz Further Notice*
    Comments at 8-9; Verizon Wireless *700 MHz Further Notice* Comments
    at 48-49; AT&T *700 MHz Further Notice* Reply Comments at 4; CTIA
    *700 MHz Further Notice* Reply Comments at 13; T-Mobile *700 MHz
    Further Notice* Reply Comments at 10; *see also* CTIA *700 MHz
    Further Notice* Comments at 18; MetroPCS *700 MHz Further Notice*
    Reply Comments at 40.

[^451]: *Broadband Practices*, 22 FCC Rcd at 7894.

[^452]: Appropriate Framework for Broadband Access to the Internet over
    Wireline Facilities, CC Docket No. 02-33, *Policy Statement*, 20 FCC
    Rcd 14986, 14988 (2005) (*Broadband Policy Statement*).

[^453]: *Skype Petition* at 9-12; *see Use of the Carterfone Device in
    Message Toll Telephone Service,* 13 FCC 2d 420 (1968). Skype states
    that it offers consumers a way to reduce the costs of their
    conversations through VoIP and in so doing, stimulates demand for
    wireless networks. It also claims that it has mobile versions of its
    software that are optimized for wireless networks. Skype *Skype
    Petition* Reply Comments at 15-16.

[^454]: *Skype Petition* at 28-32.

[^455]: *See* Appropriate Regulatory Treatment for Broadband Access to
    the Internet Over Wireless Networks, WT Docket No. 07-53,
    *Declaratory Ruling*, 22 FCC Rcd 5901, 5908 ¶ 16 (2007).

[^456]: *Id.*

[^457]: Tim Wu, *Wireless Net Neutrality: Cellular Carterfone and
    Consumer Choice in Mobile Broadband*, New America Foundation, Feb.
    2007, at 9-12 \<http://ssrn.com/abstract=962027\>.

[^458]: Implementation of Section 6002(b) of the Omnibus Budget
    Reconciliation Act of 1993, WT Docket No. 06-17, *Eleventh* Report,
    21 FCC Rcd 10947, 10950 ¶¶ 2-3 (2006) (*Eleventh Annual CMRS
    Competition Report*).

[^459]: Tim Wu, *Wireless Net Neutrality: Cellular Carterfone and
    Consumer Choice in Mobile Broadband*, New America Foundation, Feb.
    2007, at 38 <http://ssrn.com/abstract=962027> ("\[T\]aking the time
    to do comparisons on the basis of whether the carrier cripples
    technological feature sets is something only a select group of
    consumers have the time or expertise to do.").

[^460]: *See, e.g.*, Verizon Wireless July 25 *Ex Parte*, Attachment at
    7-15.

[^461]: *See, e.g.*, PISC *700 MHz Further Notice* Comments at 7;
    MoveOn.org Reply Comments at 1.

[^462]: We note, for example, that the competitive characteristics of
    the wireless voice market may not be the same as those of the
    wireless broadband market.

[^463]: We disagree with Verizon Wireless's contention that an open
    access requirement would be inconsistent with the Commission's
    precedent of deregulating broadband services and treating broadband
    platforms similarly. Verizon Wireless July 23 *Ex Parte* at 7-8. As
    we note below, the Commission has not yet made a finding regarding
    whether to apply open access requirements to wireless broadband
    services generally, and in this *Order*, defers that determination
    to the appropriate pending proceedings.

[^464]: *See, e.g.,* Unlicensed Operation in the TV Broadcast Bands, ,
    ET Docket No. 04-186, *First Report and Order and Further Notice of
    Proposed Rule Making*, 21 FCC Rcd 12266 (2006) (*Unlicensed
    Operation in the TV Broadcast Band First Report and Order)*;
    Wireless Operations in the 3650-3700 MHz Band, ET Docket No. 04-151,
    *Memorandum Opinion and Order*, 22 FCC Rcd 10421, 10425-30 (2007)
    (*3650 MHz Reconsideration Order*); Revision of Part 15 of the
    Commission's Rules Regarding Ultra-Wideband Transmission Systems, ET
    Docket No. 98-153, *First Report and Order*, 17 FCC Rcd 7435,
    7441-46 (2002).

[^465]: *3650 MHz Reconsideration Order*, 22 FCC Rcd 10421 (2007);
    Unlicensed *Operation in the TV Broadcast Bands* *First Report and
    Order*, 21 FCC Rcd 12266 (2006); Spectrum Policy Task Force Report,
    ET Docket No. 02-135 (2002). Also see the special requirements
    adopted herein for the Upper 700 MHz D Block, related to its
    operation under a Public/Private Partnership.

[^466]: *E.g.*, PISC notes that the licensing of the new 700 MHz
    spectrum presents a unique opportunity to affirmatively facilitate
    the creation of new broadband competitors. PISC also claims that
    favorable propagation characteristics of the 700 MHz
    spectrum---compared with the higher frequencies allocated to the
    PCS, AWS and unlicensed wireless services---could make this spectrum
    "many consumers' primary source of high speed Internet access and
    low-cost voice service." PISC *700 MHz Further Notice* Comments at
    14-15, and App. A at 15.

[^467]: *See* PISC *700 MHz Further Notice* Comments at 12-29 (urging
    adoption of wholesale service, net neutrality and *Carterfone*
    requirements); Google July 9 *Ex parte* at 4-9 (advocating "open
    platform" requirements).

[^468]: *Eleventh Annual CMRS Competition Report*, 21 FCC Rcd at
    10950-51 ¶¶ 1-5, 11029-31 ¶¶ 213-216.

[^469]: Google July 9 *Ex Parte* at 4 (supporting the need for open
    access to level the playing field because of large incumbents'
    "significant built-in advantages \[of\] economic and operational
    barriers to entry"); Verizon Wireless July 24 *Ex Parte* at 2
    (opposing Google's "level playing field" argument). The Commission
    has historically required that, to the extent practical, technical
    and operational rules should be comparable for CMRS services.
    However, we have also recognized that with different policy goals --
    or under different circumstances -- we may come to different
    conclusions regarding the extent of competition. *See*
    *Implementation of Sections 3(n) and 332 of the Communications Act,
    Regulatory Treatment of Mobile Services,* 9 FCC Rcd 7988, ¶ 14
    (1994).

[^470]: *See, e.g.*, 47 U.S.C. § 303 (stating that if "the public
    convenience, interest, or necessity requires \[, the Commission\]
    shall . . . (r) . . . prescribe such restrictions and conditions,
    not inconsistent with law, as may be necessary to carry out the
    provisions of this Act"); *Schurz Communications, Inc. v. FCC*, 982
    F.2d 1043, 1048 (7th Cir. 1992) (Communications Act invests
    Commission with "enormous discretion" in promulgating licensee
    obligations that the agency determines will serve the public
    interest).

[^471]: *See, e.g.*, 47 U.S.C. § 309(j)(3) (requiring that, "in
    specifying eligibility and other characteristics of . . . licenses
    \[to be issued by competitive bidding\] . . . , and in designing the
    methodologies for use under this subsection, the Commission shall
    include safeguards to protect the public interest in the use of the
    spectrum and shall seek to promote the purposes specified in section
    1 of this Act and \[in six\] . . . objectives \[enumerated in
    subsection (j)(3)(A)-(F)\]"); 47 U.S.C. § 309(j)(3)(A) & (D)
    (listing as subsection (j)(3) objectives "(A) the development and
    rapid deployment of new technologies, products, and services for the
    benefit of the public . . . without administrative or judicial
    delays; . . . \[and\] (D) efficient and intensive use of the
    electromagnetic spectrum"); 47 U.S.C. § 151 \[Section 1 of the
    Communications Act\] (stating that one of the purposes for the
    creation of the FCC is to foster "a rapid, efficient . . . radio
    communication service with adequate facilities at reasonable
    charges"); 47 U.S.C. § 303 (authorizing the Commission, "as public
    interest, convenience, or necessity requires," to "(b) \[p\]rescribe
    the nature of the service to be rendered by each class of licensed
    stations and each station within any class . . . (g) \[s\]tudy new
    uses for radio, provide for experimental uses of frequencies, and
    generally encourage the larger and more effective use of radio in
    the public interest"); 47 U.S.C. § 157 nt (directing the FCC to
    encourage the deployment of advanced telecommunications capability
    through regulatory measures that promote competition or remove
    barriers to infrastructure investment). In addition, the
    Communications Act provides the Commission with broad powers to take
    action necessary to execute its functions and to carry out the
    provisions of the Act. 47 U.S.C. §§ 154(i) (stating that the
    Commission "may perform any and all acts, make such rules and
    regulations, and issue such orders, not inconsistent with this Act,
    as may be necessary in the execution of its functions") and 303(r)
    (listing, as one of the Commission's general powers, the authority
    to "\[m\]ake such rules and regulations and prescribe such
    restrictions and conditions, not inconsistent with law, as may be
    necessary to carry out the provisions of this Act").

[^472]: Verizon Wireless July 24 *Ex Parte* at 7-8.

[^473]: *See* Verizon Wireless July 24 *Ex Parte* at 19-20.

[^474]: Verizon Wireless July 24 *Ex Parte* at 7-8.

[^475]: *Id.* at 12-15.

[^476]: Verizon Wireless July 24 *Ex Parte* at 20-21.

[^477]: Verizon Wireless July 24 *Ex Parte* at 16.

[^478]: *Id*.

[^479]: 47 U.S.C. § 157 nt (directing the Commission to encourage the
    deployment of advanced telecommunications capability through
    regulatory measures that promote competition or remove barriers to
    infrastructure investment).

[^480]: 47 U.S.C. §§ 154(i), 303(r), 309(j)(3).

[^481]: For example, Verizon Wireless points to these alleged negative
    effects in arguing that open access requirements work against the
    Section 309(j)(3)(D) objective of promoting efficient and intensive
    use of the spectrum and are unsupported by the Commission's Section
    4(i) and 303(r) powers to impose regulations that are necessary to
    carry out the provisions of the Communications Act and to execute
    the agency's functions. Verizon Wireless July 24 *Ex Parte* at
    17-20.

[^482]: For example, our 1992 order permitting the bundling of handsets
    with wireless service contracts was based on the status of the
    wireless marketplace at that time, not on any limit to our
    regulatory authority. Interestingly, that order noted that "current
    nondiscrimination requirements preclude a cellular carrier from
    refusing to provide service to a customer on the basis of what CPE
    the customer owns," which is one of the very objectives we seek to
    obtain here. *See* Bundling of Cellular Customer Premises Equipment
    and Cellular Service, CC Docket No. 91-34, *Report and Order*, 7 FCC
    Rcd 4028, 4032 (1992).

[^483]: *Cf.* 47 U.S.C. § 309(j)(7)(A) ("In making a decision pursuant
    to Section
    [303](http://www.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000303----000-.html)[(c)](http://www.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000303----000-.html#c)
    of this title to assign a band of frequencies to a use for which
    licenses or permits will be issued pursuant to this subsection, and
    in prescribing regulations pursuant to paragraph (4)(C) of this
    subsection, the Commission may not base a finding of public
    interest, convenience, and necessity on the expectation of Federal
    revenues from the use of a system of competitive bidding under this
    subsection."); *id.* § 309(j)(7)(B) ("In prescribing regulations
    pursuant to paragraph (4)(A) of this subsection, the Commission may
    not base a finding of public interest, convenience, and necessity
    solely or predominantly on the expectation of Federal revenues from
    the use of a system of competitive bidding under this subsection.").

[^484]: We also reject Verizon Wireless's assertion that the
    requirements we adopt here are designed to unjustly enrich Google in
    violation of Section 309(j)(3)(C). *See* Verizon Wireless July 24
    *Ex Parte* at 17. As indicated above, we do not implement today all
    of the requirements proposed by Google, and our rules are designed
    to enhance innovation and consumer choice, not to benefit any
    particular company.

[^485]: *See* 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
    Second Report and Order*, 21 FCC Rcd 6703, 6708, ¶ 12.

[^486]: *See, e.g.*, *U.S. Airwaves, Inc. v. FCC*, 232 F.3d 227 (D.C.
    Cir. 2000) (recognizing that statutory goals of Section 309(j)(3),
    as well as goals of maintaining the integrity of the auctions
    process and ensuring fairness to all market participants, may be
    competing and potentially in opposition, and that a "regulatory
    decision in which the Commission must balance competing goals is . .
    . \[nevertheless\] valid if the agency can show that its resolution
    'reasonably advances at least one of those objectives and \[that\]
    its decisionmaking process was regular.' *Fresno Mobile Radio, Inc.
    v. FCC*, 165 F.3d 965, 971 (D.C. Cir. 1999)"); *Melcher v. FCC*, 134
    F.3d 1143, 1154 (D.C. Cir. 1998) (recognizing that even within one
    of the Section 309(j)(3) objectives -- subsection (B) -- Congress
    set forth "a number of potentially conflicting objectives," and that
    the Commission has the discretion to decide how much precedence
    particular policies will be granted when several will be implicated
    in a single decision).

[^487]: For similar reasons, we believe that our decision to impose
    requirements for open platforms for devices and attachments is
    consistent with other statutory provisions that direct the
    Commission to promote new and advanced technologies, *see, e.g.*, 47
    U.S.C. § 157, Pub. L. No. 104-104, § 706, 110 Stat. 56 (1996),
    notwithstanding Verizon Wireless's claim to the contrary, *see*
    Verizon Wireless July 24, 2007 *Ex Parte* at 15-16.

[^488]: *See* Verizon Wireless July 24, 2007 *Ex Parte* at 19-20.

[^489]: *Id*. at 19.

[^490]: *See infra,* ¶ 223.

[^491]: We note that many of Verizon Wireless's First Amendment
    arguments relate to proposed open access requirements that we do
    *not* adopt today, such as open access requirements for networks and
    services. *See infra,* ¶¶ 222-228*,* and Verizon Wireless July 24
    *Ex Parte* at 12-14. We address only those arguments that are
    relevant to the requirements we adopt, which are limited to devices
    and applications.

[^492]: *Spence v. State of Washington,* 418 U.S. 405, 409 (1974).

[^493]: *Cf. Hill v. Colorado*, 530 U.S. 703, 716-717 (2000) ("The
    unwilling listener's interest in avoiding unwanted communication has
    been repeatedly identified in our cases.") and *Rowan v. U.S. Post
    Office Dept.*, 397 U.S. 728, 737 (1970) ("Nothing in the
    Constitution compels us to listen or view any unwanted
    communication.").

[^494]: *See Clark v. Community for Creative Non-Violence*, 468 U.S.
    288, 294, n.5 (1984) ("Although it is common to place the burden
    upon the Government to justify impingements on First Amendment
    interests, it is the obligation of the person desiring to engage in
    assertedly expressive conduct to demonstrate that the First
    Amendment even applies.").

[^495]: *Turner Broadcasting System, Inc. v. FCC*, 520 U.S. 180, 189
    (1997).

[^496]: *See supra*, ¶ 204*.*

[^497]: *See Mainstream Marketing Services, Inc. v. FTC*, 358 F.3d 1228,
    1242 (10th Cir. 2004), *citing Rowan v. United States Post Office
    Dep't*, 397 U.S. 728 (1970) and *Martin v. City of Struthers,* 319
    U.S. 141 (1941) ("The Supreme Court has repeatedly held that speech
    restrictions based on private choice (*i.e.,* an opt-in feature) are
    less restrictive than laws that prohibit speech directly.").

[^498]: *See* *Zaunderer v. Office of Disciplinary Counsel of the
    Supreme Court*, 471 U.S. 626, 637 (1985) ("\[C\]ommercial speech" is
    entitled to the protection of the First Amendment, albeit to
    protection somewhat less extensive than that afforded "noncommercial
    speech."); *see also* *Central Hudson v. Pub. Serv. Comm'n of New
    York*, 447 U.S. 557, 564 (1980), which provides a three-part test
    applicable to regulations restricting non-misleading commercial
    speech that relates to lawful activity: (1) the government must
    assert a substantial interest to be achieved by the regulation; (2)
    the regulation must directly advance that governmental interest,
    meaning that it must do more than provide "only ineffectual or
    remote support for the government's purpose;" and (3) the regulation
    must be narrowly tailored not to restrict more speech than
    necessary. We believe our analysis above clearly demonstrates that
    (1) a substantial interest is achieved by our rules for open
    platforms for devices and attachments; (2) the rules directly
    advance the government interest; and (3) the rules are narrowly
    tailored.

[^499]: Verizon Wireless July 24 *Ex Parte* at 20-21.

[^500]: We note that the Copyright Office has granted a three-year
    exemption to the anti-circumvention provisions of Section 1201 of
    the Digital Millennium Copyright Act, for "computer programs in the
    form of firmware that enable wireless telephone handsets to connect
    to wireless telephone communication network, when circumvention is
    accomplished for the sole purpose of lawfully connecting to a
    wireless telephone communication network." It found that software
    locks on mobile handsets adversely affect the ability of consumers
    to make non-infringing use of the software in those handsets. 17
    Fed. Reg. 68472 (Nov. 27, 2006). We also note that a court appeal of
    the exemption ruling is ongoing.

[^501]: *See* Google July 24 *Ex Parte* at 3-4 (raising concerns about
    whether providers can avoid an open access requirement by refusing
    to attach multimode devices).

[^502]: We also note that wireless service providers may continue to use
    their choice of operating systems, and are not required to modify
    their network infrastructure or device-level operating systems to
    accommodate particular devices or applications.  Device
    manufacturers and applications developers are free to design their
    equipment and applications to work with providers' network
    infrastructure and operating systems, and must be given the
    applicable parameters as part of the standards provided to third
    parties.

[^503]: For example, a provider could exclude devices such as signal
    boosters and repeaters to the extent they are inconsistent with the
    technical or operational parameters of the network.

[^504]: Publication could be accomplished, for example, by posting on
    the provider's website.

[^505]: Information about NRIC can be found at http://www.nric.org.

[^506]: OMA's website is at http://openmobilealliance.org.

[^507]: 47 C.F.R. § 20.18.

[^508]: 47 C.F.R. § 20.18.

[^509]: *See* Wireless Communications and Public Safety Act of 1999,
    Pub. L. No. 106-81, enacted Oct. 26, 1999, at Section 4 (911 Act).

[^510]: 47 C.F.R. § 20.19(c)(1). This section, among other things,
    provides that handset manufacturers must "\[e\]nsure at least 50
    percent of their handset offerings for each air interface offered
    comply" with the Commission's hearing aid compatibility standards by
    February 18, 2008.

[^511]: We note that wireless service providers in the 700 MHz Band will
    not immediately be subject to hearing aid compatibility obligations.
    Although we determined in the *700 MHz Report and Order* that
    hearing aid compatibility requirements should be extended to 700 MHz
    licensees, among others, we declined to do so immediately because of
    the lack of an applicable technical standard for the band, and
    instead established a two-year period for the development of such a
    standard. *700 MHz Report and Order*, 22 FCC Rcd at 8117-21 ¶¶
    142-150. In addition, we note that under our current rules, wireless
    providers subject to these obligations that offer fewer than three
    handsets per air interface to customers are not obligated to provide
    hearing aid compatible handsets. *See* 47 C.F.R § 20.19(e)(1).

[^512]: 47 C.F.R. § 20.19(c)(2)(ii).

[^513]: *See* 47 C.F.R. § 20.19(c)(1).

[^514]: *See* 47 C.F.R. §§ 20.19(c)(2)(i)(A), 20.19(e).

[^515]: *See* Section 68.4(a) of the Commission's Rules Governing
    Hearing Aid-Compatible Telephones, WT Docket No. 01-309, *Report and
    Order,* 18 FCC Rcd 16753, 16782-83 ¶ 74 (2003). This order directed
    Commission staff to "deliver to the Commission a report that
    assesses the impact of our rules in achieving greater compatibility
    between hearing aids and digital wireless phones" shortly after
    three years from the order's effective date. *Id*.

[^516]: On November 8, 2006, the Wireless Bureau released a public
    notice seeking comment on topics to be addressed in the hearing aid
    compatibility report to be prepared by Commission staff. *See*
    Wireless Telecommunications Bureau Seeks Comments on Topics to be
    Addressed in Hearing Aid Compatibility Report, WT Docket No. 06-203,
    *Public Notice*, 21 FCC Rcd 13136 (2006).

[^517]: Formal complaints are filed pursuant to Section 208 of the
    Communications Act, 47 U.S.C. § 208, and are governed by Sections
    1.720-1.736 of the Commission's rules, 47 C.F.R. §§ 1.720-1.736.
    Informal complaints are governed by Sections 1.716-1.719 of the
    Commission's rules, 47 C.F.R. §§ 1.716-1.719.

[^518]: *See* 47 U.S.C. § 503*.*

[^519]: *See* 47 U.S.C. § 312(a).

[^520]: *See* 47 U.S.C. § 312(b).

[^521]: *See* Skype July 24 *Ex Parte* at 1-2 (requesting rule
    modifications so that complainants would be required to make only a
    prima facie case of violation, and the agency would be required to
    resolve all complaints within 180 days of filing); Google July 24
    *Ex Parte* at 4 (requesting rule modifications so that complainants
    would be required to make only a prima facie case of violation).

[^522]: *See* Google July 24 *Ex Parte* at 4.

[^523]: *See* 47 C.F.R. § 1.2*.*

[^524]: Letter from Richard S. Whitt, Esq., Washington Telecom and Media
    Counsel, Google, Inc. to Marlene H. Dortch, Secretary, FCC, filed
    May 21, 2007 (*Google Ex Parte*); *see also Google 700 MHz Band
    Further Notice Comments* at 7 (*Google* *Ex Parte* "seek\[s\]
    confirmation that successful bidders in the 700 MHz auction have the
    requisite authority to conduct dynamic auctions of their spectrum
    holdings"), Appendix A (incorporating *Google Ex Parte* as part of
    its comments). Google states that for every inquiry using the Google
    "search engine," the company separately performs its own real-time
    auction to determine the market price of a particular advertisement
    linked to a particular search term. Google asserts that, in the same
    way, an auction could be performed for a radio transmission in a
    pertinent place and time to determine the economic value that the
    market would support for that transaction. *Google Ex Parte* at 6.

[^525]: *Google Ex Parte* at 3.

[^526]: *Google Ex Parte* at 6.

[^527]: *Google Ex Parte* at 6*.* Google also proposed that the
    Commission require that the unpaired 6-megahertz Lower 700 MHz Band
    E Block should be reserved for broadband platforms. *Id.* This
    particular proposal is discussed elsewhere in this Second Report and
    Order. As noted above, on May 24, 2007, the Wireless Bureau issued a
    Public Notice seeking comment on Google's service rules proposals.
    Public Notice, *Comment Sought on Google Proposals Regarding Service
    Rules for 700 MHz Band Spectrum,* WT Docket 06-150 *et al.,* DA
    07-2197 (WTB, rel. May 24, 2007).

[^528]: *Google Ex Parte* at 3.

[^529]: *Google Ex Parte* at 4.

[^530]: *Google Ex Parte* at 4-5.

[^531]: *Google Ex Parte* at 2-5.

[^532]: *See*, *e.g.*, CTIA *Google Ex Parte* Comments at 14; MetroPCS
    *Google Ex Parte* Comments at 13 (maintaining that, while Google's
    proposal may have merit, it comes too late in a proceeding "with
    tight statutory deadlines" to be considered); AT&T *Google Ex Parte*
    Comments at 6; Verizon Wireless *Google Ex Parte* Comments at 8.

[^533]: CCIA *Google Ex Parte* Comments at 2;

[^534]: *See*, *e.g.*, CCIA *Google Ex Parte* Comments at 2, 4;
    Frontline *Google Ex Parte* Comments at 11; Wireless Founders
    Coalition for Innovation *Google Ex Parte* Comments at 4-5
    (supporting use of "open auctions" with regard to the proposed
    commercial public-private partnership license); Vanu *Google Ex
    Parte* Comments at 2 (supporting "any rulemakings that can
    contribute to the goal of making spectrum a more accessible
    commodity, including but not limited to, the concept of dynamic
    spectrum auctions" ).

[^535]: *See*, *e.g.*, Wireless Founders Coalition for Innovation
    *Google Ex Parte* Comments at 4; CCIA *Google Ex Parte* Comments at
    1, 3; Vanu *Google Ex Parte* Comments at 2, 5.

[^536]: *See, e.g.*, Frontline *Google Ex Parte* Comments at 5-6;
    Wireless Founders Coalition for Innovation *Google Ex Parte*
    Comments at 4; CCIA *Google Ex Parte* Comments at 3-4.

[^537]: Verizon Wireless *Google Ex Parte* Comments at 2; CTIA *Google
    Ex Parte* Comments at 6; AT&T *Google Ex Parte* Comments at 3-6;
    MetroPCS *Google Ex Parte* Comments at 5, 10.

[^538]: Verizon Wireless *Google Ex Parte* Comments at 2-4.

[^539]: Verizon Wireless *Google Ex Parte* Comments at 3-4; AT&T *Google
    Ex Parte* Comments at 4-5 (noting statutory obligations such as
    foreign ownership and control limitations and compliance with CALEA,
    as well as other requirements under the secondary markets rules);
    CTIA *Google Ex Parte* Comments at 6-8 (expressing concerns that
    dynamic auctions could make it difficult to determine whether
    spectrum users were in compliance with Title II obligations, cripple
    enforcement against parties causing out of band harmful
    interference, and allow evasion of various license qualification
    requirements).

[^540]: Verizon Wireless *Google Ex Parte* Comments at 3-4.

[^541]: MetroPCS *Google Ex Parte* Comments at 2, 5-9. MetroPCS
    interprets Google's dynamic auction mechanisms as "contemplat\[ing\]
    demand-based pricing in which consumers will be charged different
    prices." *Id*. at 5. MetroPCS notes that such discriminatory pricing
    would be forbidden to common carriers, raising a classification
    issue. *Id*. at 8-9. In the view of MetroPCS, these ambiguities
    foreclose Google from receiving the relief it seeks. *Id.* at 8-10.
    Moreover, MetroPCS argues that Google is in effect petitioning for a
    declaratory ruling without shouldering a proponent's burdens:
    nowhere does Google demonstrate how its proposals comport with the
    core legal requirements, such as those relating to Title II
    obligations, and other Commission rules. MetroPCS therefore
    concludes that it would be premature to consider Google's request.
    *Id*. at 9-10. In its reply comments, Google contends that
    MetroPCS's objections are "peripheral speculations." *See* Google
    *Google Ex Parte* Reply Comments at 5-6.

[^542]: Verizon Wireless *Google Ex Parte* Comments at 2-4.

[^543]: NPSTC *Google Ex Parte* Comments at 3-5; NENA *Google Ex Parte*
    Reply Comments at 4-5.

[^544]: Vanu *Google Ex Parte* Comments at 2.

[^545]: Vanu *Google Ex Parte* Comments at 3-4.

[^546]: Vanu *Google Ex Parte* Comments at 4-5.

[^547]: Google *Google Ex Parte* Reply Comments at 4.

[^548]: Google *Google Ex Parte* Reply Comments at 4.

[^549]: Google *Google Ex Parte* Reply Comments at 9-10.

[^550]: *See*, *e.g.*, AT&T *Google Ex Parte* Comments at 8-11; CTIA
    *Google Ex Parte* Comments at 3; MetroPCS *Google Ex Parte* Comments
    at 9; NENA *Google Ex Parte* Reply Comments at 3-5 (opposing use in
    public safety-related spectrum); NPTSTC *Google Ex Parte* Comments
    at 4 (same); RTG *Google Ex Parte* Comments at 2; Qualcomm *Google
    Ex Parte* Comments at 3; Qualcomm *Google Ex Parte* Reply Comments
    at 3; Verizon Wireless *Google Ex Parte* Comments at 4-5.

[^551]: Qualcomm *700 MHz Further Notice* Reply Comments at 2; Qualcomm
    *Google Ex Parte* Comments at 6-8; AT&T *Google Ex Parte* Comments
    at 8 (mandating rules designed to promote particular technologies or
    services is inconsistent with the Commission's long-standing
    policies of maintaining technical and service neutrality in its
    rules and allowing flexible spectrum use by licensees).

[^552]: MetroPCS *Google Ex Parte* Comments at 10 and n.25 (indicating
    that dynamic auctions may be 5 or 10 years away); Vanu *Google Ex
    Parte* Comments at 3-4 (noting that "it is not yet technically
    feasible for a wireless device to calculate interference temperature
    in a meaningful way"); NPSTC *Google Ex Parte* Comments at 9-10 (no
    sensing technologies yet exist able to meet acceptable public safety
    standards).

[^553]: Frontline *700 MHz Further Notice* Comments at 23-24.

[^554]: CCIA *Google Ex Parte* Comments at 1 (sharing risk and
    investment up front and over time would help to finance actual
    construction costs and facilitate entry of new licensees).

[^555]: *See Upper 700 MHz First Report and Order*, 15 FCC Rcd at
    483-487 ¶¶ 15-25; *Lower 700 MHz Band Report and Order*, 17 FCC Rcd
    at 1051-52 ¶¶ 70-71; Order Promoting Efficient Use of Spectrum
    Through Elimination of Barriers to the Development of Secondary
    Markets*,* WT Docket 00-230, *Report and Order and Further Notice of
    Proposed Rulemaking,* 18 FCC Rcd 20604 (2003) (*Secondary Markets
    First Report and Order*) (applying secondary market spectrum leasing
    rules to commercial 700 MHz Band services); *Erratum,* 18 FCC Rcd
    24817 (2003); *Second Report and Order, Order on Reconsideration,
    and Second Further Notice of Proposed Rulemaking,* 19 FCC Rcd 17503
    (2004) (*Secondary Markets Second Report and Order*); *Third Report
    and Order,* 22 FCC Rcd 7209 (April 11, 2007) (*Secondary Markets
    Third Report and Order*); *see also* 47 C.F.R. §§ 27.2 (Part 27
    rules applicable to commercial 700 MHz Band services), §§ 1.9001 *et
    seq.* (Subpart X rules concerning "Spectrum Leasing").

[^556]: Google *Google Ex Parte* Reply Comments at 4.

[^557]: *See Promoting Efficient Use of Spectrum Through Elimination of
    Barriers to the Development of Secondary Markets,* WT Docket 00-230,
    *Report and Order and Further Notice of Proposed Rulemaking,* 18 FCC
    Rcd 20604 (2003) *Secondary Markets First Report and Order*);
    *Erratum,* 18 FCC Rcd 24817 (2003); *Second Report and Order, Order
    on Reconsideration, and Second Further Notice of Proposed
    Rulemaking,* 19 FCC Rcd 17503 (2004) (*Secondary Markets Second
    Report and Order*); *Third Report and Order,* 22 FCC Rcd 7209 (April
    11, 2007) (*Secondary Markets Third Report and Order*); *see also*
    47 C.F.R. §§ 1.9001 *et seq.* (Subpart X rules concerning "Spectrum
    Leasing").

[^558]: *Secondary Markets Second Report and Order*, 19 FCC Rcd at
    17545-54 ¶¶ 85-99.

[^559]: *Secondary Markets Second Report and Order*, 19 FCC Rcd at
    17546-48 ¶¶ 88-90 (explaining that "a variety of dynamic forms of
    spectrum leasing arrangements" are permitted, and providing a number
    of illustrative, but non-exhaustive, examples of permissible dynamic
    forms of spectrum leasing utilizing advanced technologies).

[^560]: *Secondary Markets Second Report and Order*, 19 FCC Rcd at
    17547-48 ¶¶ 88-89.

[^561]: *Secondary Markets Second Report and Order*, 19 FCC Rcd at
    17549-53 ¶¶ 91-99; *see also Secondary Markets Third Report and
    Order*, 22 FCC Rcd at 7209-12 ¶¶ 3-9 (discussing rules applicable to
    "private commons" arrangements).

[^562]: *Secondary Markets Second Report and Order*, 19 FCC Rcd at
    17545-54 ¶¶ 85-99.

[^563]: *Secondary Markets Second Report and Order*, 19 FCC Rcd at 17546
    ¶ 86.

[^564]: For instance, one possibility Google envisions is that the
    communications device itself measures and enforces regulatory
    requirements that the total amount of power being transmitted by all
    devices in any location be limited to a specified cap. *Google Ex
    Parte* at 3. Based on the current record, we do not consider whether
    there would need to be any changes to our technical rules or
    equipment authorization rules for a licensee to implement that
    specific suggestion.

[^565]: Google *Google Ex Parte* Reply Comments at 4.

[^566]: MetroPCS *Google Ex Parte* Comments at 8-9.

[^567]: *See, e.g., Secondary Markets Second Report and Order*, 19 FCC
    Rcd at 17547-54 ¶¶ 88-99 (providing guidance for licensees and
    spectrum lessees who provide dynamic spectrum access to their
    networks through secondary market mechanisms); *Secondary Markets
    Third Report and Order*, 22 FCC Rcd 7209 (providing additional
    guidance).

[^568]: Guard band licensees were also restricted from employing systems
    with cellular architectures to minimize the frequency coordination
    activities that would be required of public safety licensees.

[^569]: Alcatel-Lucent argues that "with the likelihood that similar
    architectures will be deployed in the commercial and public safety
    spectrum, the potential for commercial broadband interference into
    the adjacent public safety spectrum is significantly reduced."
    Alcatel-Lucent *700 MHz Further Notice* Comments at 19-20; *see
    also* Ericsson *700 MHz Further Notice* Comments at 29-30.

[^570]: Motorola states that "\[i\]n adopting the existing standard, the
    Commission recognized the inadequacy of the commercial standard 43
    +10log P to adequately protect public safety. Ignoring this fact and
    subjecting public safety receivers to higher interference risks
    requires more consideration than a simple expectation that system
    architectures may be similar." Motorola *700 MHz Further Notice*
    Reply Comments at 11-12.

[^571]: *700 MHz Report and Order*, 22 FCC Rcd at 8143-44 ¶ 221.

[^572]: *700 MHz Report and Order*, 22 FCC Rcd at 8144 ¶ 221.

[^573]: *See, e.g.,* Amendment of Parts 1, 21, 73, 74 and 101 of the
    Commission's Rules to Facilitate the Provision of Fixed and Mobile
    Broadband Access, Educational and Other Advanced Services in the
    2150-2162 and 2500-2690 MHz Bands, *Report and Order and Further
    Notice of Proposed Rulemaking*, 19 FCC Rcd 14165, 14227-32 ¶¶ 165-76
    (2004) (finding that parties favoring restricting eligibility of
    cable operators and ILECs to acquire BRS/EBS licenses for the
    provision of non-video services had not shown that eligibility of
    such service providers is likely to result in substantial
    competitive harm or that, even if specific markets experienced harm
    to competition, the eligibility restrictions advocated would be
    effective in eliminating that harm), *Third Memorandum Opinion and
    Order*, 21 FCC Rcd 5606, 5701-02 ¶¶ 229-31 (2006); Allocations and
    Service Rules for the 71-76 GHz, 81-86 GHz and 92-95 GHz Bands,
    *Report and Order,* 18 FCC Rcd 23318, 23345-47, ¶¶ 68-70 (2003)
    (finding no significant likelihood of competitive harm in any
    markets and therefore declining to impose eligibility restrictions);
    Amendment of Parts 2 and 25 of the Commission's Rules to Permit
    Operation of NGSO FSS Systems Co-Frequency with GSO and Terrestrial
    Systems in the Ku-Band Frequency Range, Amendment of the
    Commission\'s Rules to Authorize Subsidiary Terrestrial Use of the
    12.2-12.7 GHz Band by Direct Broadcast Satellite Licensees and Their
    Affiliates, and Applications of Broadwave USA, PDC Broadband
    Corporation, and Satellite Receivers, Ltd. to Provide A Fixed
    Service in the 12.2-12.7 GHz Band, *Memorandum Opinion and Order and
    Second Report and Order*, 17 FCC Rcd 9614, 9677-82, ¶¶ 159-70 (2002)
    (concluding that open eligibility for MVDDS licenses for DBS service
    providers and distributors will not result in substantial
    competitive harm but that open eligibility for in‑region cable
    operators poses a significant likelihood of substantial competitive
    harm; and therefore prohibiting any cable operator, or any entity
    owning an attributable interest in a cable operator, from holding an
    attributable interest in an MVDDS license if such cable operator's
    service area significantly overlaps the MVDDS license area);
    Amendment of the Commission's Rules Regarding the 37.0-38.6 GHz and
    38.6 -40.0 GHz Bands, Implementation of Section 309(j) of the
    Communications Act -- Competitive Bidding, 37.0-38.6 GHz and
    38.6-40.0 GHz, *Report and Order and Second Notice of Proposed Rule
    Making,* 12 FCC Rcd 18600, 18619-20, ¶¶ 32-35 (1997) (finding it
    unlikely that substantial anticompetitive effects would result from
    LEC eligibility); *cf.* Auction of Direct Broadcast Satellite
    Licenses, 19 FCC Rcd 23849, 23856, 23869-71 (2004) (making DBS
    incumbents ineligible for two DBS licenses that afford a last
    opportunity for new entry in the DBS market).

[^574]: Rulemaking to Amend Parts 1, 2, 21 and 25 of the Commission's
    Rules to Redesignate the 27.5-29.5 GHz Frequency Band, to Reallocate
    the 29.5-30-0 GHz Frequency Band, to Establish Rules and Policies
    for Local Multipoint Distribution Service and for Fixed Satellite
    Services, *Third Report and Order and Memorandum Opinion and Order*,
    15 FCC Rcd 11857, 11861-62 ¶¶ 7-12 (2000) (explaining why this
    standard, and not the substantial market power test, is the
    appropriate standard to use in determining whether LMDS eligibility
    restriction previously imposed on ILECs and cable companies should
    be allowed to sunset).

[^575]: PISC *700 MHz Further Notice* Comments at 7-12, 35. *Cf.* AT&T
    *700 MHz Further Notice* Reply Comments (summarizing comments for
    and against eligibility restrictions).

[^576]: PISC *700 MHz Further Notice* Comments at 35.

[^577]: PISC *700 MHz Further Notice* Comments at 35.

[^578]: Frontline *700 MHz Further Notice* Comments at 9-16, Ex. 1 at
    6-11.

[^579]: Frontline *700 MHz Further Notice* Comments at 17; PISC *700 MHz
    Further Notice* Comments at 12.

[^580]: CCIA *700 MHz Further Notice* Comments at 5.

[^581]: *See, e.g.*, TIA *700 MHz Further Notice* Comments at 3, 5 and
    7; CTIA *700 MHz Further Notice* Comments at 10; RTG *700 MHz
    Further Notice* Comments at 12; NCTA *700 MHz Further Notice*
    Comments at 2-3; 700 MHz Independents *700 MHz Further Notice*
    Comments at 10; MetroPCS *700 MHz Further Notice* Comments at 38;
    USCC *700 MHz Further Notice* Comments at 21; AT&T *700 MHz Further
    Notice* Comments at 20; Verizon Wireless *700 MHz Further Notice*
    Comments at 31; SpectrumCo *700 MHz Further Notice* Comments at 7;
    Qualcomm *700 MHz Further Notice* Comments at 9-10; Motorola *700
    MHz Further Notice* Comments at 35.

[^582]: CTIA *700 MHz Further Notice* Comments at 11-12; TIA *700 MHz
    Further Notice* Comments at 6.

[^583]: NCTA *700 MHz Further Notice* Comments at 4 (citing WiMax and
    BPL); AT&T *700 MHz Further Notice* Comments at 32-33 (citing WiMax,
    BPL, and satellite).

[^584]: NCTA *700 MHz Further Notice* Comments at 3; TIA *700 MHz
    Further Notice* Comments at 6; WISP *700 MHz Further Notice*
    Comments at 7; MetroPCS *700 MHz Further Notice* Comments at 43;
    Qualcomm *700 MHz Further Notice* Comments at 10; Verizon Wireless
    *700 MHz Further Notice* Comments at 31-32.

[^585]: Blooston *700 MHz Further Notice* Comments at 5-6; Frontier *700
    MHz Further Notice* Comments at 13; CTIA *700 MHz Further Notice*
    Comments at 17.

[^586]: Satellite broadband providers include WildBlue and Hughes. *See*
    <http://www.wildblue.com/>
    [http://www.hughes.com/HUGHES/Rooms/DisplayPages/LayoutInitial?pageid=HNS_home&Container=com.webridge.entity.Entity\[OID\[48D310485DF714449F65AAD3E8CE2313](http://www.hughes.com/HUGHES/Rooms/DisplayPages/LayoutInitial?pageid=HNS_home&Container=com.webridge.entity.Entity[OID[48D310485DF714449F65AAD3E8CE2313)\]\]
    (last visited May 18, 2007). Wireless providers include not only the
    large national mobile telephony providers (Verizon Wireless, AT&T
    Mobility, Sprint Nextel, and T-Mobile) but also smaller regional
    mobile telephony providers such as Alltel and USCC. Further, there
    are various other wireless Internet service providers such as
    Clearwire, as well as Wi-Fi (hot spot) providers. *See*
    Implementation of Section 6002(b) of the Omnibus Budget
    Reconciliation Act of 1993, Annual Report and Analysis of
    Competitive Market Conditions with Respect to Commercial Mobile
    Services, WT Docket No. 06-17, *Eleventh Report*, 21 FCC Rcd 10947,
    10961-62 ¶ 30-32, 10993 ¶ 112 (2006) (*Eleventh Competition
    Report*); <http://easyedge.uscc.com/easyedge/Home.do>.

[^587]: *See* "FCC's Advanced Wireless Services (AWS) Spectrum Auction
    Concludes," News Release (rel. Sept. 18, 2006), available at
    <http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-267467A1.doc>
    (last visited May 18, 2007); Consolidated Request of the WCS
    Coalition for Limited Waiver of Construction Deadline for 132 WCS
    Licenses, Request of WCS Wireless, LLC for Limited Waiver of
    Construction Deadline for 16 WCS Licenses, Request of Cellutec, Inc.
    for Limited Waiver of Construction Deadlines for stations KNLB242
    and KNLB216 in Guam/Northern Mariana and American Samoa, WT Docket
    No. 06-102, *Order*, 21 FCC Rcd 14134, 14140-41 ¶ 12 (2006);
    Wireless Operations in the 3650-3700 Band, ET Docket No. 04-151,
    *Report and Order and Memorandum Opinion and Order*, 20 FCC Rcd 6502
    ( 2005).

[^588]: *See* Amendment of Part 15 Regarding New Requirements and
    Measurement Guidelines for Access Broadband over Power Line Systems,
    Carrier Current Systems, including Broadband over Power Line
    Systems, ET Docket No. 04-37, *Memorandum Report and Order*, 21 FCC
    Rcd 10413 (2006); Amendment of Part 15 Regarding New Requirements
    and Measurement Guidelines for Access Broadband over Power Line
    Systems, Carrier Current Systems, including Broadband over Power
    Line Systems, ET Docket No. 04-37, *Report and Order*, 19 FCC Rcd
    21265 (2004).

[^589]: Industry Analysis and Technology Division, Wireline Competition
    Bureau, "High-Speed Services for Internet Access: Status as of June
    2006," January 2007 at Table 1.

[^590]: Industry Analysis and Technology Division, Wireline Competition
    Bureau, "High-Speed Services for Internet Access: Status as of June
    2006," January 2007 at Table 1.

[^591]: *See, e.g.*, Blooston *700 MHz Further Notice* Comments at 5-6;
    RTG *700 MHz Further Notice Comments* at 13; 700 MHz Independents
    *700 MHz Further Notice* Comments at 9-11.

[^592]: *See* Implementation of Section 309(j) of the Communications Act
    -- Competitive Bidding, *Second Report and Order*, 9 FCC Rcd 2348,
    2349-50 ¶¶ 3-7 (1994).

[^593]: *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 490 ¶ 33.

[^594]: Although filtering is used to minimize interference, no receiver
    filter can confine emissions to a specific channel; some signals
    will inevitably "spillover" into nearby spectrum. Compounding the
    problem, public safety narrowband receivers often are not
    sufficiently selective to reject undesired signals that may be
    present under these conditions.

[^595]: Overload (also known as receiver or front-end overload) is an
    informal term describing situations where a receiver is exposed to
    very strong signal levels leading to a loss of receiver sensitivity.

[^596]: *See Upper 700 MHz Second Report and Order*, 15 FCC Rcd at 5307
    ¶ 16. The Commission reasoned that applying the same out-of-band
    emissions limits in both the Guard Bands and the public safety bands
    will provide the same effective technical interference protection to
    public safety users as users of public safety equipment provide to
    themselves. *Id.*

[^597]: 47 C.F.R. § 27.53.

[^598]: Frequency coordination permits Guard Bands and public safety
    operators to select frequencies that are as far from one another as
    possible.

[^599]: *See Upper 700 MHz Second Report and Order*, 15 FCC Rcd at
    5308-09 ¶¶ 18-19.

[^600]: Access Spectrum/Pegasus *700 MHz Further Notice* Comments at 17;
    Arcadian *700 MHz Further Notice* Reply Comments at 9.

[^601]: Although Access Spectrum/Pegasus's argument was made in the
    context of the alternative Access Spectrum/Pegasus proposal
    (Proposal 3), it can similarly be applied in the context of a
    reconfigured A Block placed between the commercial C and D Blocks.

[^602]: Access Spectrum/Pegasus *700 MHz Further Notice* Comments at
    17-19. Access Spectrum/Pegasus propose that we apply OOBE limits as
    recommended in WT Docket No. 06-169 by Access Spectrum/Pegasus and
    the 700 MHz Technical Working Group. *See Ex Parte* from Ruth
    Milkman, Counsel for Access Spectrum, LLC and Kathleen Wallman,
    Adviser to Pegasus Communications Corporation, to Marlene H. Dortch,
    Secretary, FCC in WT Docket Nos. 06-169 and 96-86 (filed Jan. 26,
    2007) (*Second Report of the 700 MHz Technical Working Group* or
    *Second TWG Report*).

[^603]: Access Spectrum/Pegasus *700 MHz Further Notice* Comments at 19.
    Specifically, in the event that wideband operations are permitted,
    Access Spectrum/Pegasus recommend that the 76 + 10log P/65 + 10log P
    attenuation requirement begin 1 megahertz inside the public safety
    spectrum, or 764/794 MHz, respectively. Access Spectrum/Pegasus
    state that, in the event that we do not permit wideband operations
    in the public safety broadband block, we should require A Block
    licensees to meet the 76 + 10log P/65 + 10log P attenuation
    requirement 1.5 megahertz inside the public safety broadband block,
    *i.e.* 764.5/794.5 MHz, respectively. Access Spectrum/Pegasus,
    however, do not provide a basis for this difference.

[^604]: *Id.*

[^605]: *See* Access Spectrum/Pegasus *700 MHz Further Notice* Comments
    at 17.

[^606]: *See Upper 700 MHz Second Report and Order*, 15 FCC Rcd at
    5307-08 ¶ 17. The Commission noted that the significant interference
    problems arising from the adjacency of 700 MHz commercial and public
    safety spectrum are further compounded by the conflicting network
    architectures typically employed by public safety narrowband
    operations and commercial systems. Cellular systems, by design, are
    composed of large numbers of base stations within a relatively small
    geographic area. Public safety systems, on the other hand, are
    typically composed of high-powered base stations operating at a few
    sites that provide coverage to a large geographic area. This mix of
    network architectures often result in an interference
    scenario---sometimes referred to as "near-far"---that arises when a
    cellular system operates in close proximity to a public safety
    system. In the near-far scenario, interference occurs where a public
    safety mobile/portable unit receives a stronger signal from a
    nearby, adjacent channel commercial base station rather than from
    the desired, distant public safety transmitter. The Commission found
    it necessary to re-band the 800 MHz band to resolve this type of
    "near-far" interference, which, in that band, was "caused by a
    fundamentally incompatible mix of two types of communications
    systems: cellular-architecture multi-cell systems---used by ESMR and
    cellular telephone licensees---and high-site non-cellular
    systems---used by public safety, private wireless and some SMR
    licensees . . . ." *See 800 MHz Report and Order*, 19 FCC Rcd at
    14972-73 ¶ 2.

[^607]: *700 MHz Guard Bands Notice*, 21 FCC Rcd at 10421 ¶ 18.

[^608]: *Id.*

[^609]: The Commission defined a cellular system architecture as "one
    where large geographic service areas are segmented into many smaller
    areas or cells, each of which uses its own base station, to enable
    frequencies to be reused at relatively short distances." *Upper 700
    MHz Second Report and Order*, 15 FCC at 5306 ¶ 14 n.34.
    The Commission noted that its definition is similar to that
    established in 47 C.F.R. ¶ 22.99. *Id.*

[^610]: *Id.* at 5308-09 ¶ 19.

[^611]: *Id.*

[^612]: Access Spectrum/Pegasus *700 MHz Further Notice* Comments at 20.

[^613]: Access Spectrum/Pegasus *700 MHz Further Notice* Comments at 20;
    Arcadian *700 MHz Further Notice* Reply Comments at 9.

[^614]: *See id*.

[^615]: *See* 47 C.F.R. §§ 27.2(b), 27.601(d).

[^616]: *See* 47 C.F.R. §§ 27.50(b), (c).

[^617]: *See* 47 C.F.R. §§ 27.50(c), 27.55(b).

[^618]: *See* AT&T *700 MHz Further Notice* Comments at 5.

[^619]: *See* Verizon Wireless *700 MHz Further Notice* Comments at 16
    (removal of A Block Guard Band at 746-747 MHz "can be undertaken
    without creating new interference to commercial users, because the C
    Block is increased in size, to 22 MHz, allowing for some of the
    spectrum to be used for an 'internal guard band.'"); *see also* AT&T
    *700 MHz Further Notice* Comments at 5 n.5 ("it is critical that the
    Upper 700 MHz C Block license be allocated 11 MHz (2 x 5.5 MHz) so
    as to provide the licensee with the capability of utilizing an
    internal guard band").

[^620]: Ericsson *700 MHz Further Notice* Comments at 20.

[^621]: *Upper 700 MHz First Report and Order*, 15 FCC Rcd at 491 ¶ 33.

[^622]: *Id.* at ¶ 34.

[^623]: By permitting B Block licensees the option of complying with the
    76 + 10log P/65 + 10log P attenuation requirement, we resolve the
    issue identified in the *700 MHz Guard Bands Notice* with respect to
    the appropriate emission limits that Guard Band licensees should use
    for channel bandwidths greater than 150 kHz. *See 700 MHz Guard
    Bands Notice*, 21 FCC Rcd at 10428 ¶ 34.

[^624]: *See supra* Section III.A.1.b.ii.a.

[^625]: *Id.*

[^626]: *See 700 MHz Report and Order*, 22 FCC Rcd at 8096 ¶ 84.

[^627]: *Id.*

[^628]: *700 MHz Report and Order*, 22 FCC Rcd at 8153 ¶ 246.

[^629]: 47 C.F.R. § 1.2104(h).

[^630]: *700 MHz Report and Order*, 22 FCC Rcd at 8153 ¶ 247; s*ee,
    e.g.,* Auction of 1.4 GHz Band Licenses, Scheduled for February 7,
    2007, Notice and Filing Requirements, Minimum Opening Bids, Upfront
    Payments and Other Procedures for Auction No. 69, *Public Notice*,
    21 FCC Rcd 12393, ¶¶ 4-6 (2006); Auction of Advanced Wireless
    Services Licenses Scheduled for June 29, 2006, Notice and Filing
    Requirement, Minimum Opening Bids, Upfront Payment and Other
    Procedures for Auction No. 66, *Public Notice*, 21 FCC Rcd 4562, ¶¶
    140-157 (2006) ("*Auction No. 66 Procedures Public Notice*").

[^631]: *See 700 MHz Further Notice*, 22 FCC Rcd at 8153 ¶ 247; *see
    also Auction No. 66 Procedures Public Notice* at ¶¶ 140-157.

[^632]: *700 MHz Further Notice*, 22 FCC Rcd at 8154 ¶ 248.

[^633]: *Id.*

[^634]: *See, e.g.*, *Auction No. 66 Procedures Public Notice,* 21 FCC
    Rcd at ¶ 142.

[^635]: *700 MHz Further Notice*, 22 FCC Rcd at 8154 ¶ 248.

[^636]: *Id.*

[^637]: *700 MHz Further Notice*, 22 FCC Rcd at 8153 ¶ 246. PISC
    contends that the more licenses the Commission offers, the greater
    the need for anonymous bidding, to thwart bidders using additional
    licenses to "signal" other bidders and to protect new entrants
    attempting to aggregate a larger number of licenses. PISC *700 MHz
    Further Notice Comments* at 33-34. However, PISC supports anonymous
    bidding generally, and does not make this position contingent on the
    band plan adopted. In opposition, MetroPCS notes that the
    availability of multiple blocks in the band plan makes "blocking"
    bidding strategies more difficult to implement, thereby lessening
    any perceived need for anonymous bidding to protect against such
    strategies. MetroPCS *700 MHz Further Notice* Comments at 47-48.
    While this observation suggests that the need for anonymous bidding
    may be less for band plans with larger number of blocks, MetroPCS
    opposes anonymous bidding generally, and does not make this position
    contingent on the band plan adopted.

[^638]: PISC April 3, 2007 *Ex Parte* Comments in PS Docket No. 06-229
    and WT Docket Nos. 06-150, 05-211, 96-86 at 13; Letter from Harold
    Feld, counsel to Media Access Project, to Marlene H. Dortch,
    Secretary, FCC, *Ex Parte* in WT Docket No. 06-150 (filed Apr. 19,
    2007) (contending that accompanying Affidavit of Dr. Gregory Rose
    demonstrates that the open auction structure of Auction No. 66
    permitted incumbents to engage in retaliatory bidding).

[^639]: *See* PISC *700 MHz Further Notice* Comments at 30-34; Frontline
    *700 MHz Further Notice* Comments at 56; Google *700 MHz Further
    Notice* Comments at 10; McBride *700 MHz Further Notice* Comments at
    11; Verizon Wireless *700 MHz Further Notice* Comments at 35-36.

[^640]: Frontline *700 MHz Further Notice* Comments at 56.

[^641]: Google *700 MHz Further Notice* Comments at 10.

[^642]: McBride *700 MHz Further Notice* Comments at 11.

[^643]: Verizon Wireless *700 MHz Further Notice* Comments at 36.

[^644]: PISC *700 MHz Further Notice* Comments, Attach. B, C. We do not
    find that the Rose studies support the claims made by PISC. To
    support the claim of retaliatory bidding, Rose applies procedures
    used by Cramton and Schwartz to study an earlier auction and
    identifies less than two-tenths of one percent of the bids placed in
    Auction No. 66 as "retaliatory." PISC *700 MHz Further Notice*
    Comments, Attach. B at 7-9. The Cramton and Schwartz study, however,
    relied heavily on "code bids" to help focus the search for likely
    retaliatory bids. Cramton, P. and J. Schwartz, "Collusive Bidding in
    FCC Spectrum Auctions," *Contributions to Economic Analysis and
    Policy* I:1 (2002) ("*Cramton and Schwartz*"). Auction No. 66 did
    not permit bidders to customize bid amounts to place "code bids."
    PISC *700 MHz Further Notice* Comments, Attach. B at 8. As a result,
    Rose's application of the Cramton and Schwartz methodology to
    Auction No. 66 is less likely to produce reliable results. In
    addition, unlike the Cramton and Schwartz study, Rose does not
    control for alternative hypotheses before making conclusions about
    the effects of retaliatory bidding on the auction outcome. *Cramton
    and Schwartz* at 9. In his study, Rose finds 31 retaliatory bids but
    does not identify the bidders placing those bids or whether they are
    incumbents. PISC *700 MHz Further Notice* Comments, Attach. B at 8.
    Absent such information, the study does not demonstrate its claim
    that incumbents engaged in retaliatory bidding. Moreover, Rose finds
    no instances of retaliatory bidding in the REAG block, which appears
    to be inconsistent with claims in the study that incumbents directed
    their efforts at denying a national footprint to Wireless DBS, which
    bid primarily in the REAG blocks. *Id.* at 9.

    To argue that bidders in Auction No. 66 engaged in blocking
    behavior, Rose presents pages of "challenge rates," without defining
    how the rates are calculated. PISC *700 MHz Further Notice*
    Comments, Attach. C at 6-9. Without a basic definition, it is
    impossible to determine whether the numbers are meaningful. Rose
    asserts that a higher challenge rate indicates blocking behavior.
    However, a more careful investigation of the bidding activity behind
    some of the highest rates of challenge suggests nothing irregular.
    For example, Cellco bid against Command Connect, LLC, six times in
    rounds 121-132 on the Louisiana-3 (CMA 456) license, which is
    adjacent to an REAG license on which Cellco was the provisional
    winner. This behavior earned them an unusually high challenge rate
    of 8.884 (compared to challenge rates generally between 0 and -1).
    *Id.* at 8. Atlantic Wireless bid against NTELOS only once, but this
    single bid somehow earned a very high challenge rate of 4.2286.
    *Id.* at 16. These examples undermine claims that challenge rates
    capture any meaningful information, especially in the absence of
    information on how the rates are derived. Given these and other
    shortcomings in the Rose studies, the studies do not demonstrate
    that incumbents engaged in retaliatory and blocking bidding behavior
    to deter entry in Auction No. 66.

[^645]: PISC *700 MHz Further Notice* Comments at 33. We note that
    PISC's theory appears premised on a misunderstanding of the
    pre-auction application process and the Commission pre-auction
    assessment of competition. PISC speculates that "\[b\]ecause the
    Commission allows parties to correct imperfect applications, parties
    willing to front 'dummy bidders' to drive up the ratio have the
    opportunity to game the system with precision. After the initial
    application round, the parties fronting dummy bidders will correct a
    sufficient number of applications to ensure that -- as happened in
    the AWS auction -- just enough bidders qualify to trigger the open
    bidding rules." *Id.* Contrary to PISC, the Commission has not based
    the use of anonymous bidding on the number of qualified applications
    but rather on the total amount of upfront payments received from
    qualified bidders. And while the Commission affords applicants an
    opportunity to correct the data submitted in applications, there is
    not an analogous opportunity to "correct" upfront payments. Thus,
    contrary to PISC, the Commission's procedures do not enhance the
    ability of any party to "game" the system.

[^646]: Verizon Wireless *700 MHz Further Notice* Comments at 37-38.

[^647]: *See* USCC *700 MHz Further Notice* Reply Comments at 16-18
    (citing comments filed in opposition to anonymous bidding). Prior to
    the *700 MHz Further Notice*, one party contended that smaller
    auction participants may encounter difficulties with financing if
    the Commission withholds information during the auction. *See*
    Letter from George Y. Wheeler, counsel to United States Cellular
    Corp., to Marlene H. Dortch, Secretary, FCC, *Ex Parte* in WT Docket
    Nos. 06-150, 06-169, 96-86, 05-265, and 00-139, and PS Docket No.
    06-229 (filed Mar. 27, 2007) at 7.

[^648]: *See* USCC *700 MHz Further Notice* Reply Comments at 16-18.

[^649]: RTG *700 MHz Further Notice* Comments at 14-15; USCC *700 MHz
    Further Notice* Reply Comments at 17. RTG also speculates that
    larger bidders will have sufficient resources to analyze available
    bidding information and determine bidder identities, leaving smaller
    bidders at a relative disadvantage. RTG *700 MHz Further Notice*
    Comments at 9; USCC *700 MHz Further Notice* Reply Comments at 17.

[^650]: MetroPCS *700 MHz Further Notice* Comments at 47 ("MetroPCS
    might decide to continue bidding at a higher per pop price in this
    market, as compared to moving to a lower cost market containing new
    entrants with business plans less distinguishable from that of
    MetroPCS.")

[^651]: *See* USCC *700 MHz Further Notice* Reply Comments at 18-19 &
    n.37 (summarizing comments by Aloha, AT&T, MetroPCS, and
    SpectrumCo).

[^652]: Alltel *700 MHz Further Notice* Comments at 9-10.

[^653]: USCC *700 MHz Further Notice* Reply Comments at 16.

[^654]: USCC *700 MHz Further Notice* Reply Comments at 17.

[^655]: As discussed earlier, we do not rely on the Rose studies as a
    basis for this conclusion.

[^656]: 47 C.F.R. §§ 0.131, 0.331.

[^657]: "Auction of Advanced Wireless Services Licenses Scheduled for
    June 29, 2006; Comment Sought on Reserve Prices or Minimum Opening
    Bids and Other Procedures," *Public Notice*, 21 FCC Rcd 794, 799
    (2006).

[^658]: *See, e.g.,* "Auction of Broadband PCS Spectrum Licenses Closes;
    Winning Bidders Announced for Auction No. 71," *Public Notice*, 22
    FCC Rcd 9247 (2007). The Commission also established anonymous
    bidding procedures for two other auctions (Auctions 66 and 69)
    contingent on a pre-auction assessment on the likely competitiveness
    of the auction. Since the competitiveness threshold was met in those
    two auctions, the bidding was conducted with full information
    disclosure between bidding rounds. We note that with respect to
    three of the four auctions for which comment has been sought on
    anonymous bidding procedures, there were no comments at all
    submitted on the anonymous bidding issue.

[^659]: PISC *700 MHz Further Notice* Comments at 32.

[^660]: USCC *700 MHz Further Notice* Reply Comments at 18.

[^661]: *See* Auction of Broadband PCS Spectrum Licenses, 23 Bidders
    Qualified to Participate in Auction 71; Limited Information
    Procedures to be Used," DA 07-1921, *Public Notice*, 22 FCC Rcd 8347
    (2007).

[^662]: *See* 47 C.F.R. § 1.2105(c)(1).

[^663]: 47 C.F.R. § 1.2105(c)(6).

[^664]: Amendment of Part 1 of the Commission's Rules -- Competitive
    Bidding Procedures, *Seventh Report and Order*, 16 FCC Rcd 17546,
    17554 ¶ 15 (2001).

[^665]: Amendment of Part 1 of the Commission's Rules -- Competitive
    Bidding Procedures, *Seventh Report and Order*, 16 FCC Rcd 17546,
    17554 ¶ 15 (2001).

[^666]: *See* 47 U.S.C. § 503(b)(6).

[^667]: *See 700 MHz Further Notice*, 22 FCC Rcd at 8134 ¶ 191 (Band
    Plan Proposal 1, package bidding for 22 megahertz REAG C Block); ¶
    202 (Band Plan Proposal 4, package bidding for 11 megahertz REAG C
    Block and/or 11 megahertz REAG or EA D Block), 8139 ¶ 206 (Band Plan
    Proposal 5, package bidding for 11 megahertz C Block).

[^668]: *700 MHz Report and Order*, 22 FCC Rcd at 8091 ¶ 69.

[^669]: *See, e.g.,* Google *700 MHz Further Notice* Comments at 7-8.

[^670]: AT&T *700 MHz Further Notice Comments* at 35.

[^671]: 4G Coalition *700 MHz Further Notice* Comments at 10-12.

[^672]: Frontline *700 MHz Further Notice* Comments, Exhibit 1 at 22-23.

[^673]: Embarq *700 MHz Further Notice* Comments at 5-7; *see* Alltel
    *700 MHz Further Notice* Comments at 9-10 (otherwise opposed to
    package bidding generally, Alltel asserts that if used package
    bidding should be used with blocks licensed by CMA).

[^674]: *See* Aloha *700 MHz Further Notice* Comments at 7-8; Blooston
    *700 MHz Further Notice* Comments at 10; Cellular South *700 MHz
    Further Notice* Comments at 16; Leap *700 MHz Further Notice*
    Comments at 9; MetroPCS *700 MHz Further Notice* Comments at 22; RCA
    *700 MHz Further Notice* Comments at 18; RTG *700 MHz Further
    Notice* Comments at 16.

[^675]: Alltel *700 MHz Further Notice* Comments at 10.

[^676]: SpectrumCo *700 MHz Further Notice* Comments at 16; Verizon
    Wireless *700 MHz Further Notice* Comments at 39; USCC *700 MHz
    Further Notice* Reply Comments at 10.

[^677]: Verizon Wireless *700 MHz Further Notice* Comments at 43.

[^678]: Verizon Wireless *700 MHz Further Notice* Comments at 38-43
    (objecting to the assumed details of a purported "hybrid" auction);
    USCC *700 MHz Further Notice* Comments at 14-16 (assuming that
    recently released experiments present all the pertinent details of a
    package bidding auction design).

[^679]: Google *700 MHz Further Notice* Comments at 8.

[^680]: 47 C.F.R. §§ 0.131, 0.331.

[^681]: *700 MHz Further Notice*, 22 FCC Rcd at 8144 ¶ 221.

[^682]: *700 MHz Further Notice*, 22 FCC Rcd at 8144 ¶ 221.

[^683]: Some parties responded with alternatives appear to be beyond the
    scope of the *700 MHz Further Notice*. Alltel proposed that rather
    than grant a credit to new entrants, the Commission charge
    incumbents a premium. Alltel *700 MHz Further Notice* Comments at
    14; *see also* AT&T *700 MHz Further Notice* Reply Comments at 9,
    n.30 (arguing that the perimum is beyond the scope of the notice
    provided for by the *700 MHz Further Notice*. WISPA proposes a 20
    percent credit for existing broadband service providers, identified
    as parties filing FCC Form 477, that do not have "material
    relationships" with a "large wireless carrier" or a "large cable
    operator," when bidding on licenses in rural CMAs. WISPA *700 MHz
    Further Notice* Comments at 7-12; *see also* USA Broadband *700 MHz
    Further Notice Reply Comments* at 3 (supporting WISPA proposal).
    Whatever merits such a targeted credit might have, it is not as a
    general new entrant bidding credit.

[^684]: PISC *700 MHz Further Notice* Comments at 35.

[^685]: Google *700 MHz Further Notice* Comments at 9-10.

[^686]: Frontline *700 MHz Further Notice* Comments, Exhibit 1 at 23-25.

[^687]: McBride *700 MHz Further Notice* Comments at 8.

[^688]: Wirefree Partners *700 MHz Further Notice* Comments at 7-8.

[^689]: AT&T *700 MHz Further Notice* Comments at 9-10 (citing Wirefree
    Partners).

[^690]: Balanced Budget Act of 1997, Pub. Law 105-33, 111 Stat. 251
    (1997) (codified at 47 U.S.C. § 309(j)(4)(F)). The Commission's
    competitive bidding rules have, since their inception, allowed for
    the use of reserve prices. *See* Implementation of Section 309(j) of
    the Communications Act -- Competitive Bidding, PP Docket No. 93-253,
    *Second Report and Order*, 9 FCC Rcd 2348, 2384 ¶¶ 206-07, 2387 ¶
    224 (1994); 47 C.F.R. § 1.2104(c) (1994-present).

[^691]: *See* Auction of 800 MHz SMR Upper 10 MHz Band; Minimum Opening
    Bids or Reserve Prices, *Order*, 12 FCC Rcd 16354, 16358 ¶ 11 (WTB
    1997).

[^692]: *See, e.g.*, Auction of Advanced Wireless Services Licenses
    Schedule for June 29, 2006, Notice and Filing Requirements, Minimum
    Opening Bids, Upfront Payments and Other Procedures for Auction No.
    66, Public Notice, 21 FCC Rcd 4562 (2006) (setting a publicly
    disclosed reserve price); Auction of Licenses in the 747-762 and
    777-792 MHz Bands Scheduled for June 19, 2002, DA 02-260, *Public
    Notice,* 17 FCC Rcd 2117, 2122-23 (2002) (seeking comment on whether
    to set a publicly disclosed or undisclosed reserve price).

[^693]: Commercial Spectrum Enhancement Act, Pub. L. No. 108-494, 118
    Stat. 3986, Title II (2004) (codified in scattered sections of Title
    47 of the United States Code).

[^694]: *Id.*, § 203(b) (Section 203(b) amended Section 309(j) of the
    Communications Act by adding at the end a new paragraph (15)).

[^695]: 47 U.S.C. § 309(j)(3)(C).

[^696]: *See, e.g.*, 47 U.S.C. § 309(j)(3)(C) & (D).

[^697]: 47 U.S.C. § 309(j)(4)(F).

[^698]: This includes the D Block license, which will be subject to
    various conditions related to the 700 MHz Public/Private
    Partnership.

[^699]: *See* 47 U.S.C. § 309(j)(3)(A).

[^700]: Aggregate reserve price calculation for 700 MHz Band auction
    based on Auction No. 66 (AWS) bids:

    700 MHz Block700 MHz Bandwidth (MHz)Geographic Area TypeComparable
    AWS BlockAWS Bandwidth (MHz)Bandwidth Ratio 700/AWSAWS Bids700 MHz
    Reserve\*A12EAC101.2\$1,491,238,000 \$1,789,485,600
    B12CMAA200.6\$2,268,029,200 \$1,360,817,520
    E6EAC100.6\$1,491,238,000 \$894,742,800 C22REAGF201.1\$4,174,486,000
    \$4,591,934,600 D10Nationwide\*\*D and E101.0\$1,749,031,000
    \$1,749,031,000 Total62\$10,386,011,520 \* Calculated as the
    bandwidth ratio times AWS bids.\*\* Since AWS did not have any
    nationwide licenses, reserve price calculation is based on 10 MHz
    REAG licenses.Auction No. 66 results are available at
    [http://wireless.fcc.gov/auctions/66/](http://wireless.fcc.gov/auctions/default.htm?job=auction_summary&id=66).

[^701]: These mandates total \$10.1825 billion. *See* DTV Act, §§
    3005-3012; 47 U.S.C. § 309(j)(8)(E)(iii).

[^702]: DTV Act, § 3002(b)(1).

[^703]: *See* 47 U.S.C. § 309(j)(4)(F); 47 C.F.R. § 1.2104(c); *see
    also* Auction of 800 MHz SMR Upper 10 MHz Band; Minimum Opening Bids
    or Reserve Prices, *Order*, 12 FCC Rcd 16354, 16358 ¶ 11 (WTB 1997).

[^704]: We provide here for alternative licenses in the A, B, C, and E
    Blocks of the 700 MHz Band only in the event that all licenses in
    one of those blocks are not assigned because the auction results do
    not satisfy the applicable block-specific reserve price for the
    licenses originally offered.

[^705]: July 2, 2007 Letter from Gerard J. Waldron, Covington & Burling
    LLP, Counsel to Frontline Wireless, LLC, with attached slide deck
    "Verizon's Spectrum Grab: Summary of Economic Arguments," slides
    10-13.

[^706]: *Id.*

[^707]: *See* Frontline July 23, 2007 *Ex Parte* letter at 2. 47 U.S.C.
    § 309(j)(7)(A) provides that "\[i\]n making a decision pursuant to
    Section 303(c) to assign a band of frequencies to a use for which
    licenses or permits will be issued pursuant to this subsection, and
    in prescribing regulations pursuant to paragraph 4(C) of this
    subsection, the Commission may not base a finding of public
    interest, convenience, and necessity on the expectation of Federal
    revenues from the use of a system of competitive bidding under this
    subsection."

[^708]: In any event, we note that the limited Section 309(j)(7)
    prohibition against basing a public interest finding on the
    expectation of Federal auction revenues would not apply to our
    decision regarding the possible removal of the open platform
    requirement.

[^709]: As discussed below, because we determine that the auction
    procedures to be established should limit qualified bidders for any
    auction of alternative licenses to those that qualify to bid in the
    auction offering licenses in all blocks of the 700 MHz Band, we note
    that bidders interested in the alternative C Block licenses will be
    required to qualify to bid in the upcoming auction that will offer
    licenses in all blocks.

[^710]: *700 MHz Further Notice*, 22 FCC Rcd at 8161 ¶ 272.

[^711]: For example, the Wireless Bureau may be required to adopt
    procedures to maintain the anonymity of bidders until the completion
    of the second auction to maintain the integrity of the second
    auction, prevent collusion, or prevent the disclosure of bidding
    strategies that would influence the behavior of bidders in the
    second auction.

[^712]: *See* 47 C.F.R. § 1.2105(c)(1).

[^713]: 47 U.S.C. § 309(j)(15)(C)(v). The statute's reference to "the
    proceeds of such auction" refers to the statute's provision for
    bidding on licenses for the recovered analog spectrum that must
    commence not later than January 28, 2008. Licenses may be offered by
    January 28, 2008, and remain unassigned for a variety of reasons.
    *See* 47 C.F.R. § 1.2104 (c) (reserve prices), (d) (minimum opening
    bids), (g)(i) (withdrawals prior to close of auction), and (g)(ii)
    (default or disqualification after close of auction). In such
    circumstances, the deadline for commencement of bidding on licenses
    for the relevant spectrum will not preclude the Commission from
    offering the same or other licenses for the spectrum in a later
    auction.

[^714]: 47 U.S.C. § 309(j)(8)(E)(ii).

[^715]: *See, e.g.*, Auction of Advanced Wireless Services Licenses
    Closes, DA 06-1882, *Public Notice*, 21 FCC Rcd 10521 (2006) (35
    licenses remained FCC-held following auction).

[^716]: *See* 47 C.F.R. §§ 1.2107, 1.2108.

[^717]: *See* 47 C.F.R. § 1.2110(g).

[^718]: 47 U.S.C. § 309(j)(8)(E)(ii).

[^719]: *See* 47 C.F.R. § 1.2106(d) (upfront payments to be applied to
    down payments).

[^720]: *See* 47 C.F.R. § 1.2109 (enabling the Commission to set payment
    deadline prior to final license determinations).

[^721]: *700 MHz Further Notice*, 22 FCC Rcd at 8154 ¶ 250.

[^722]: *Id.* at 8157 ¶ 259, 8157-57 ¶¶ 260-61. The *700 MHz Further
    Notice* explained that while the Canadian government agreed to clear
    broadcasters from channels 63 and 68, there was no such agreement in
    place for channels 64 and 69. As a result, by consolidating the
    narrowband channels onto channels 64 and 69, operations in these
    channels would be subject to interference from Canadian broadcast
    operations. (This matter of potential interference that may be
    caused to public safety narrowband operations at the border will be
    referred hereafter as the "Canadian Border Issue.") The Canadian
    government recently announced that it has now established a date
    certain, August 30, 2011, by which it will complete the DTV
    transition for all broadcasters, including channels 64 and 69.
    Broadcasting Public Notice CRTC 2007-53 (May 17, 2007), available at
    <http://www.crtc.gc.ca/archive/ENG/Notices/2007/pb2007-53.htm>.
    Nevertheless, the Canadian Border Issue will persist for more than
    two years following the U.S. DTV transition date.

[^723]: *See*, *e.g*., Alcatel-Lucent *700 MHz Further Notice* Comments
    at ii and 3; AT&T *700 MHz Further Notice* Comments at 14; Frontline
    *700 MHz Further Notice* Comments at 51; Motorola *700 MHz Further
    Notice* Comments at 7; TIA *700 MHz Further Notice* Comments at 2;
    WCA *700 MHz Further Notice* Comments at 4.

[^724]: APCO *700 MHz Further Notice* Comments at 7; *see also* NATOA
    *700 MHz Further Notice* Comments at 5.

[^725]: Region 16 (Kansas) *700 MHz Further Notice* Comments at 2.

[^726]: Region 33 (Ohio) *700 MHz Further Notice* Comments at 2; *see
    also* Motorola *700 MHz Further Notice* Reply Comments at 3-11.

[^727]: For example, broadband technology would enable public safety
    agencies to transmit (1) real-time, full motion video from any
    location to any other location, (2) live video from an emergency
    scene to a command center, and (3) building diagrams, blueprints,
    and mug shots to personnel in the field. *See, e.g.*, Bechtel June
    14, 2007 *Ex Parte* in PS Docket No. 06-229.

[^728]: Alcatel-Lucent *700 MHz Further Notice* Comments at 18-19; *see
    also* ALU *700 MHz Further Notice* Comments at 3-12; AT&T *700 MHz
    Further Notice* Comments at 14; Ericsson *700 MHz Further Notice*
    Comments at 10-11; M/A COM *700 MHz Further Notice* Comments at 4;
    Motorola *700 MHz Further Notice* Comments at 7; NENA *700 MHz
    Further Notice* Comments at 2; Northrop Grumman *700 MHz Further
    Notice* Comments at 2-3; Qualcomm *700 MHz Further Notice* Comments
    at 38; Upper 700 MHz Licensees *700 MHz Further Notice* Comments at
    3; Access Spectrum June 14 *Ex Parte* in WT Docket Nos. 96-86,
    06-150 and 06-169, and PS Docket No. 06-229.

[^729]: Letter from Vincent R. Stile, Chair, NPSTC, to Kevin Martin,
    Chairman, FCC, WT Docket Nos. 96-86, 06-150, 06-169, and PS Docket
    No. 06-229, filed June 25, 2007 (*NPSTC June 2007 Ex Parte*).

[^730]: Letter from Steve B. Sharkey, Director, Spectrum and Standards
    Strategy, Motorola, Inc., to Marlene H. Dortch, Secretary, FCC, WT
    Docket Nos. 96-86, 06-150, 06-169, and PS Docket No. 06-229, filed
    June 29, 2007 (*Motorola June 2007 Ex Parte*).

[^731]: *See*, *e.g*., AT&T *700 MHz Further Notice* Comments at 14;
    Alcatel-Lucent *700 MHz Further Notice* Comments at 18; M/A-COM *700
    MHz Further Notice* Comments at 4; Motorola *700 MHz Further Notice*
    Comments at 7; TIA *700 MHz Further Notice* Comments at 3-4.

[^732]: As discussed elsewhere, we also are shifting downward, by 1
    megahertz, the entire 700 MHz public safety band.

[^733]: *700 MHz Further Notice*, 22 FCC Rcd at 8158-59 ¶¶ 262, 263.
    This did not take into account the fact that, as a result of the
    band plan we adopt today, the upper 1 megahertz of narrowband
    operations in channels 64 and 69 also would need to be relocated as
    a result of the 1 megahertz downward shift of the 700 MHz public
    safety band.

[^734]: *Id*. at 8159 ¶ 263.

[^735]: Motorola *700 MHz Further Notice* Comments at 7 n.3. Motorola
    states that the Commission should define a timeline for the
    consolidation of the narrowband blocks, estimating that it will take
    twelve months from establishing the new band plan to develop the
    revised code plug programming software and conduct the necessary
    testing to ensure that the radios can be reprogrammed. *Id.* at 12.

[^736]: Alcatel-Lucent *700 MHz Further Notice* Reply Comments at 8.

[^737]: In order to accomplish relocations in areas encumbered by
    existing TV operations that would continue until the DTV deadline,
    some relocations could be planned in advance, but not implemented,
    until the DTV transition date.

[^738]: *700 MHz Further Notice*, 22 FCC Rcd at 8159 ¶ 264.

[^739]: *Id*.

[^740]: As we explained, our licensing database shows that there are 38
    narrowband licenses on channels 63 and 68 that would be subject to
    relocation. But, in addition, all 50 states, Puerto Rico, the U.S.
    Virgin Islands and the District of Columbia were granted State
    Licenses, which authorize use of certain narrowband channels on TV
    channels 63, 64, 68 and 69. State licensees are not required to file
    individual applications to operate on narrowband channels. Thus, we
    have no way of estimating how many narrowband systems, and therefore
    numbers of radios in use, stem from operations being conducted
    pursuant to the State Licenses.

[^741]: *See* Motorola *700 MHz Further Notice* Comments at 11.

[^742]: Motorola June 2007 *Ex Parte* at 2-3.

[^743]: In the *700 MHz Further Notice*, we referred to "the nationwide
    licensee of the commercial Upper 700 MHz spectrum block proposed by
    Frontline." *700 MHz Further Notice*, 22 FCC Rcd at 8159 ¶ 264. For
    present purposes, this reference would translate to the D Block
    licensee.

[^744]: *700 MHz Further Notice*, 22 FCC Rcd at 8160 ¶ 265. As noted
    elsewhere, in this Second Report and Order, we have designated this
    entity the Public Safety Broadband Licensee.

[^745]: *See, e.g.*, APCO *700 MHz Further Notice* Comments at 9; NENA
    *700 MHz Further Notice* Comments at 3; NPSTC *700 MHz Further
    Notice* Comments at 26.

[^746]: *See* Missouri Highway Patrol *700 MHz Further Notice* Reply
    Comments at 3; Motorola *700 MHz Further Notice* Comments at 8; *see
    also* Northrop Grumman *700 MHz Further Notice* Reply Comments at
    5-6.

[^747]: *See supra* ¶¶ 120-121.

[^748]: Motorola July 2007 *Ex Parte* at 3.

[^749]: *700 MHz Further Notice*, 22 FCC Rcd at 8158 ¶ 262.

[^750]: Region 43 (Washington) *700 MHz Further Notice* Comments at 3;
    Region 43 (Washington) *700 MHz Further Notice* Reply Comments at 2.

[^751]: Region 16 (Kansas) *700 MHz Further Notice* Comments at 3.

[^752]: Region 33 (Ohio) *700 MHz Further Notice* Comments at 1.

[^753]: *See 700 MHz Further Notice*, 22 FCC Rcd at 8157 ¶ 257.

[^754]: *See*, *e.g*., Ericsson *700 MHz Further Notice* Comments at 21;
    M/A-COM *700 MHz Further Notice* Comments at 5; NPSTC *700 MHz
    Further Notice* Comments at 21; Region 43 (Washington) *700 MHz
    Further Notice* Comments at 7; Qualcomm *700 MHz Further Notice*
    Comments at 15; TIA *700 MHz Further Notice* Comments at 3; Verizon
    Wireless *700 MHz Further Notice* Comments at 16; Alcatel-Lucent
    *700 MHz Further Notice* Reply Comments at 1.

[^755]: M/A-COM *700 MHz Further Notice* Comments at 2-3; Missouri State
    Highway Patrol *700 MHz Further Notice* Comments at 9.

[^756]: WCA *700 MHz Further Notice* Comments at 4-5; *see also*
    Alcatel-Lucent *700 MHz Further Notice* Comments at iii.

[^757]: We do not foreclose the possibility of permitting the Public
    Safety Broadband Licensee to request that the Commission revisit the
    creation of the one megahertz guard band, if technology advances
    such that the guard band could be reduced without increasing the
    potential for interference.

[^758]: *700 MHz Further Notice*, 22 FCC Rcd at 8158 ¶ 260.

[^759]: *Id.* at 8158 ¶ 261. A few commenters expressed support for this
    use of the guard band. *See*, *e.g.*, Alcatel-Lucent *700 MHz
    Further Notice* Comments at 23-24; Frontline *700 MHz Further
    Notice* Comments at 55.

[^760]: Broadcasting Public Notice CRTC 2007-53 (May 17, 2007), found at
    \<<http://www.crtc.gc.ca/archive/ENG/Notices/2007/pb2007-53.htm>\>.

[^761]: *See, e.g.*, NPSTC *700 MHz Further Notice* Comments at 25
    (affirming "the virtues of the 'permanent shift' plan under
    Proposals 3, 4 and 5"); APCO *700 MHz Further Notice* Comments at
    9-10 ("Proposal 3 in the *FNPRM . . . *offers the best approach for
    addressing this issue, as it allows border areas access to
    narrowband channels."); M/A Com *700 MHz Further Notice* Comments at
    2-4 (supporting 1 megahertz downshift to accommodate operations in
    border areas); Upper 700 MHz Licensees *700 MHz Further Notice*
    Comments at 8-10 (arguing that the only way to ensure nationwide
    interoperability for public safety's mission-critical narrowband
    voice communications is adoption of a band plan that includes
    permanent, nationwide narrowband interoperability through shifting
    the public safety allocation down one MHz); California *700 MHz
    Further Notice* Comments at 3 (supporting Proposals 3, 4, or 5).

[^762]: Alcatel-Lucent *700 MHz Further Notice* Comments at 22
    (presenting a map showing the presence of Canadian TV stations
    broadcasting on TV channels 62 and 67).

[^763]: *See* M/A Com *700 MHz Further Notice* Comments at 3-4; Upper
    700 MHz Licensees *700 MHz Further Notice* Comments at 8-10.

[^764]: Alcatel-Lucent *700 MHz Further Notice* Comments at 24.

[^765]: Alcatel-Lucent states that along the U.S.-Mexico border, there
    are a number of primary assignments that affect deployment of
    broadband systems, but the most potentially troubling ramifications
    from border operations are along the Canadian boundary.
    Alcatel-Lucent *700 MHz Further Notice* Comments at 22 & n.46. The
    Upper 700 MHz Licensees state that public safety agencies located in
    regions along the border with Mexico would not confront impairment
    because there are no Mexican television broadcast operations in TV
    Channels 62 and 67 along the border. Upper 700 MHz Licensees *700
    MHz Further Notice* Reply Comments at 12 & n.3. Our own analysis
    confirms that there are no full power TV stations operating in
    Mexico along the border on TV channels 62 and 67.

[^766]: *700 MHz Further Notice*, 22 FCC Rcd at 8160 ¶ 267.

[^767]: Motorola *700 MHz Further Notice* Comments at 26; *see also*
    California *700 MHz Further Notice* Reply Comments at 7 (stating
    that it cannot comment on specific levels, but the public safety
    narrowband must be protected from interference).

[^768]: *Id*. at 27-28.

[^769]: Alcatel-Lucent *700 MHz Further Notice* Reply Comments at 11.

[^770]: Under this approach, the maximum allowable power levels are
    defined on a "per megahertz of spectrum bandwidth" basis, rather
    than on a "per emission" basis. This is helpful because with some
    technologies, only one emission is transmitted within a licensee's
    given bandwidth, while other technologies might employ multiple
    emissions over that same bandwidth. Establishing a power limit on a
    "per emission" basis could allow licensees employing a technology
    using multiple emissions to transmit more total energy in their
    given bandwidth than licensing using a technology with only one
    emission.

[^771]: *See 700 MHz Report and Order*, 22 FCC Rcd at 8099 ¶ 92.

[^772]: For example, a base station transmitting a signal with a
    bandwidth of 200 kHz could employ a power level of 1 kW ERP over the
    200 kHz bandwidth.

[^773]: For purposes of this Second Report and Order, "rural areas" are
    those counties in the United States having a population of fewer
    than 100 people per square mile, based on the most recently
    available population statistics from the Bureau of Census. *See
    Rural Report and Order*, 19 FCC Rcd at 19128 ¶ 89; 47 C.F.R. §
    27.50(d)(1).

[^774]: *700 MHz Report and Order*, 22 FCC Rcd at 8099 ¶ 93.

[^775]: *Id.* at 8103 ¶ 105.

[^776]: *Id.* at 8104 ¶ 106.

[^777]: Alcatel-Lucent *700 MHz Further Notice* Comments at 20.

[^778]: Ericsson *700 MHz Further Notice* Comments at 29-30.

[^779]: *See* Service Rules for the 746-764 and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission\'s Rules, WT Docket No.
    99-168, *First Report and Order*, 15 FCC Rcd 476, 518-20 ¶¶ 103-06
    (2000).

[^780]: *See* Alcatel-Lucent *700 MHz Further Notice* Comments at 20;
    Ericsson *700 MHz Further Notice Comments* at 29-30.

[^781]: Alcatel-Lucent *700 MHz Further Notice* Comments at 18.

[^782]: Northrop Grumman *700 MHz Further Notice* Reply Comments at 7-8.

[^783]: *Id*.

[^784]: *700 MHz Public Safety Ninth Notice*, 21 FCC Rcd at 14838 ¶ 3.

[^785]: *Id.* at 14843 ¶ 19.

[^786]: NPSTC *700 MHz Public Safety Ninth Notice* Comments at 1.

[^787]: APCO *700 MHz Public Safety Ninth Notice* Comments at 5.

[^788]: *See, e.g*., Ericsson *700 MHz Public Safety Ninth Notice*
    Comments at i; First Response Coalition *700 MHz Public Safety Ninth
    Notice* Comments at 3; Cisco Systems *700 MHz Public Safety Ninth
    Notice* Comments at iii; AT&T *700 MHz Public Safety Ninth Notice*
    Comments at i; Missouri State Highway Patrol *700 MHz Public Safety
    Ninth Notice* Comments at 4-5; Verizon Wireless*700 MHz Public
    Safety Ninth Notice* Comments at 4-5; WCA *700 MHz Further Notice*
    Comments at 9; Western Fire Chiefs Association *700 MHz Further
    Notice* Comments at 1; Virginia Fire Chiefs Association *700 MHz
    Further Notice* Comments at 2; Cyren Call *700 MHz Further Notice*
    Comments 2-3; Region 9 (Florida) *700 MHz Further Notice* Comments
    at 2; California *700 MHz Further Notice* Comments at 4.

[^789]: California *700 MHz Public Safety Ninth Notice* Comments at 1;
    *see also* Region 33 (Ohio) *700 MHz Public Safety Ninth Notice*
    Comments at 4; Texas Interoperability *700 MHz Public Safety Ninth
    Notice* Comments at 4-7.

[^790]: Region 43 (Washington) *700 MHz Public Safety Ninth Notice*
    Comments at 1, 3.

[^791]: Sharp Communications *700 MHz Public Safety Ninth Notice*
    Comments at 1.

[^792]: Metropolitan Washington Airports Authority *700 MHz Public
    Safety Ninth Notice* Comments at 2; *see also* Region 22 Public
    Safety Regional Planning Committee *700 MHz Public Safety Ninth
    Notice* Comments at 1; San Francisco Department of Emergency
    Management *700 MHz Public Safety Ninth Notice* Comments at 6. Other
    commenters suggest that it is premature to create a single national
    network. *See, e.g.*, NATOA *700 MHz Further Notice* Reply Comments
    at 6-7; Spectrum Coalition for Public Safety *7**00 MHz Further
    Notice* Reply Comments at 1-6; RCC *700 MHz Further Notice* Reply
    Comments at 8-9.

[^793]: The Commission recognized similar benefits of geographic-based
    licensing when it adopted state licensing in the 700 MHz Band. *See*
    Development of Operational, Technical and Spectrum Requirements for
    Meeting Federal, State and Local Public Safety Agency Communication
    Requirements Through the Year 2010, WT Docket No. 96-86, *Third
    Memorandum Opinion and Order and Third Report and Order*, 15 FCC Rcd
    19844, 19867-69 ¶¶ 54-57 (2000).

[^794]: *700 MHz Public Safety Ninth Notice*, 21 FCC at 14843 ¶ 20.

[^795]: *Id.* at 14844 ¶ 27.

[^796]: *Id.*

[^797]: APCO *700 MHz Public Safety Ninth Notice* Comments at 7; *see
    also* Peha *700 MHz Public Safety Ninth Notice* Comments at 5 ("We
    cannot place an unregulated for-profit monopoly in charge of
    critical infrastructure."); Cyren Call *700 MHz Public Safety Ninth
    Notice* Comments at 9 ("\[T\]he national licensee must represent and
    be entirely controlled by public safety entities. Its independence
    and authority must not be compromised by a commercial entity(s)
    having even a de facto or, worse, a de jure controlling interest in
    that licensee.").

[^798]: *See* Sprint-Nextel *700 MHz Public Safety Ninth Notice*
    Comments at 7 ("Some degree of participation by commercial entities,
    such as through a non-controlling or otherwise capped interest,
    would allow entities with specialized knowledge and real-world
    experience to more meaningfully contribute to the successful
    operation and management of an efficient, nationwide, public safety
    broadband network."); NTCH *700 MHz Public Safety Ninth Notice*
    Comments at 3 ("instead of divorcing \[the Public Safety Broadband
    Licensee\] from commercial carriers, it would be *made up of*
    them.") (emphasis in original); Mercatus *700 MHz Public Safety
    Ninth Notice* Comments at 10 ("A for-profit mission and quality
    service to first responders should not be considered mutually
    exclusive ideals.").

[^799]: *See* NPSTC *700 MHz Further Notice* Comments at 6; Nielson *700
    MHz Public Safety Ninth Notice* Comments at 3 ("This authority
    should also be non-profit to avoid any commandeering of the products
    to be offered and to prevent a monopoly in their availability.").

[^800]: APCO *700 MHz Public Safety Ninth Notice* Comments at 7; NPSTC
    *700 MHz Further Notice* Comments at 5; Virginia Fire Chiefs
    Association *700 MHz Further Notice* Comments at 2; Cyren Call April
    5, 2007 *Ex Parte* Notice, Attach. at 4 ("Only by having the FCC
    license held by an entity controlled by Public Safety will the
    public safety community have ultimate assurance that the network
    will be built and operated to meet its requirements.").

[^801]: NATOA *700 MHz Further Notice* Comments at 3-4; *see also* San
    Diego County *700 MHz Further Notice* Comments at 12.

[^802]: We believe these requirements address RCC's concern that the
    Public Safety Broadband Licensee be qualified to provide "public
    safety services" pursuant to Section 337(f)(1)(B). *See* RCC *700
    MHz Further Notice* Comments at 14 & 21-22. Section 337(a)(1)
    provides that the Commission must allocate 24 megahertz of spectrum
    in the Upper 700 MHz band for "public safety services." Section
    337(f)(1)(B), in turn, provides that "public safety services" are
    services that are provided (i) by State or local government
    entities; or (ii) by nongovernmental organizations that are
    authorized by a governmental entity whose primary mission is the
    provision of such services. Because the Public Safety Broadband
    Licensee will be a nongovernmental organization that will be
    authorized by a government entity whose primary mission is the
    provision of public safety services, it will clearly be providing
    "public safety services" consistent with the requirements of Section
    337(f)(1)(B)(ii). We recognize that Section 337(f)(1)(B) by its
    terms only requires that a nongovernmental organization receive
    authorization from one governmental entity whose primary mission is
    the provision of public safety services. However, given the nature
    of the license at issue here -- a nationwide license that will
    support an interoperable network for use by all public safety
    entities across the country -- we believe that applicants for the
    Public Safety Broadband License should be able to demonstrate
    support from a wide range of public safety entities across the
    country. In particular, authorizations from a broad sample of the
    public safety community for which the service is intended will
    better reflect the fact that the mission of the Public Safety
    Broadband Licensee derives from the primary public safety mission of
    a nationwide array of governmental entities. Furthermore, as the
    Public Safety Broadband Licensee launches its service in a given
    area, we will require that it provide (prior to launch) the same
    type of certification from at least one public safety governmental
    entity that plans on using the service in the area that will be
    served.

[^803]: We clarify that, in all cases in this Second Report and Order in
    which authority to take actions is delegated jointly to the Chiefs
    of PSHSB and WTB, we require any such actions to be approved by both
    Chiefs.

[^804]: APCO was established in 1935 and is dedicated to public safety
    communications. It has 15,000 members from all types of public
    safety organizations including emergency call centers, law
    enforcement agencies, emergency medical services, fire departments
    and emergency management centers. *See* APCO, at
    [http://www.apcointl.com](http://www.apcointl.com/). APCO's
    membership on the Board of Directors of the Public Safety Broadband
    Licensee would ensure broad representation of communications
    professionals in the public safety community.

[^805]: NENA fosters the technological advancement, availability and
    implementation of a universal emergency telephone number system,
    including IP-based Next Generation 911 capabilities. In carrying out
    its mission, NENA promotes research, planning, training and
    education. NENA presently has 7,000 members. *See* NENA, at
    http://www.nena.org. NENA's membership on the Board of Directors of
    the Public Safety Broadband Licensee would ensure representation of
    first responders and consideration of issues regarding the 911 link
    between the public and first responders.

[^806]: The IACP is the world's oldest and largest nonprofit membership
    organization of police executives, with over 20,000 members in over
    89 different countries. IACP's leadership consists of the operating
    chief executives of international, federal, state and local agencies
    of all sizes. *See* IACP, at
    [http://www.theiacp.org](http://www.theiacp.org/). IACP's membership
    on the Board of Directors of the Public Safety Broadband Licensee
    would ensure representation of a broad cross-section of police
    departments.

[^807]: Established in 1873, the IAFC is a network of more than 12,000
    chief fire and emergency officers. Its members are the world's
    leading experts in fire fighting, emergency medical services,
    terrorism response, hazardous materials spills, natural disasters,
    search & rescue, and public safety legislation. *See* IAFC, at
    [http://www.iafc.org](http://www.iafc.org/). IAFC's membership on
    the Board of Directors of the Public Safety Broadband Licensee would
    ensure representation of a broad cross-section of firefighters and
    emergency medical services first responders.

[^808]: Chartered in 1940, the National Sheriffs' Association is a
    non-profit organization dedicated to raising the level of
    professionalism among sheriffs, their deputies, and others in the
    field of criminal justice and public safety. *See* National
    Sheriffs' Association at
    [http://www.sheriffs.org](http://www.sheriffs.org/). The National
    Sheriffs' Association's membership on the Board of Directors of the
    Public Safety Broadband Licensee would ensure representation of law
    enforcement within rural and local levels with smaller populations.

[^809]: Founded in 1914, the ICMA has 8,200 members and is a local
    government leadership and management organization. Its mission is to
    create excellence in local governance by advocating and developing
    the professional management of local governments worldwide. *See*
    ICMA, at [http://www.icma.org](http://www.icma.org/). ICMA's
    membership on the Board of Directors of the Public Safety Broadband
    Licensee would ensure representation of local governments of all
    sizes, and will give a voice to city, town, and county governments
    of all sizes responsible for public safety and first responder
    organizations.

[^810]: Founded in 1908, the NGA is the collective voice of the nation's
    governors. It provides governors and their senior staff members with
    services that include representing states on Capitol Hill and before
    the Administration on key federal issues and developing policy
    reports on innovative state programs. *See* NGA, at
    [http://www.nga.org](http://www.nga.org/). NGA's membership on the
    Board of Directors of the Public Safety Broadband Licensee would
    ensure representation of state governments, including state police
    and national guard agencies, and coordination with efforts to obtain
    public safety communications interoperability at the state level.

[^811]: NPSTC is a federation of organizations whose mission is to
    improve public safety communications and interoperability through
    collaborative leadership. *See* NPSTC, at
    [http://www.npstc.org](http://www.npstc.org/)*.* Formed on May 1,
    1997, NPSTC is a federation of organizations representing public
    safety telecommunications. NPSTC was originally formed to encourage
    and facilitate implementation of the findings and recommendations of
    the Public Safety Wireless Advisory Committee (PSWAC), established
    in 1994 by the Commission and the National Telecommunications and
    Information Administration (NTIA) to evaluate the wireless
    communications needs of local, tribal, state, and federal public
    safety agencies through the year 2010, identify problems, and
    recommend possible solutions.

[^812]: NASEMSO was formed in 1980 as a non-profit organization. NASEMSO
    supports its members in developing EMS policy and oversight, as well
    as in providing vision, leadership and resources in the development
    and improvement of state, regional and local EMS and emergency care
    systems. *See* NASEMSO, at
    [http://www.nasemsd.org](http://www.nasemsd.org/). NASEMSO's
    membership on the Board of Directors of the Public Safety Broadband
    Licensee would ensure consideration of the unique communications
    needs of medical services first responders at all levels of
    government.

[^813]: *700 MHz Public Safety Ninth Notice*, 21 FCC Rcd at 14845 ¶ 31.

[^814]: *See id*. at 14845-48 ¶¶ 29, 32, 41.

[^815]: APCO *700 MHz Public Safety Ninth Notice* Comments at 10-11.

[^816]: Motorola *700 MHz Public Safety Ninth Notice* Comments at 15.

[^817]: Cyren Call *700 MHz Further Notice* Comments at 8.

[^818]: Virginia Fire Chiefs *700 MHz Further Notice* Comments at 2.

[^819]: *See* NPSTC *700 MHz Further Notice* Comments at 8.

[^820]: Each of these responsibilities is addressed more fully at
    various points throughout this Second Report and Order.

[^821]: *See infra* ¶ 405.

[^822]: The Commission previously has determined that Section 337 does
    not bar Federal Government public safety entities from using the 700
    MHz Band under certain conditions. Development of Operational,
    Technical and Spectrum Requirements for Meeting Federal, State and
    Local Public Safety Agency Communication Requirements Through the
    Year 2010, WT Docket No. 96-86, *First Report & Order and Third
    Notice of Proposed Rulemaking*, 14 FCC Rcd 152, 184 ¶ 66 (1998);
    *see also* 47 C.F.R. § 2.103(b).

[^823]: *See* *700 MHz Public Safety Ninth Notice*, 21 FCC Rcd at 14843
    ¶ 19.

[^824]: *Id.*

[^825]: The license area of the Public Safety Broadband License is
    composed of the contiguous 48 states, Alaska, Hawaii, the Gulf of
    Mexico, and the U.S. territories. The geographic scope of the Public
    Safety Broadband License therefore matches the scope of the D Block
    license.

[^826]: We will treat on a case-by-case basis possible involuntary
    transfers of control of the Public Safety Broadband Licensee, or
    other possible transfers of control based on changes in the Board,
    such as the disbanding of a constituent organization.

[^827]: *700 MHz Further Notice*, 22 FCC Rcd at 8161 ¶ 272.

[^828]: Any reference to D Block in this order will refer specifically
    to the Upper 700 MHz D Block, except where specifically noted to the
    contrary.

[^829]: Parties to the NSA are the Public Safety Broadband Licensee, the
    winning bidder of the D Block license, the special purpose
    bankruptcy remote entity to be the D Block licensee, the special
    purpose bankruptcy remote entity to hold the network assets, and the
    Operating Company. References in this Second Report and Order to the
    rights and obligations of the "Upper 700 MHz D Block licensee," the
    "D Block licensee," or other formulations used in this order
    include, as appropriate, the exercise or discharge of such rights or
    obligations, respectively, by related entities that are provided for
    in the NSA or otherwise as authorized by the Commission. Upon
    issuance of the D Block license, the winning bidder of the D Block
    license will assign all of its rights and obligations under the
    Network Sharing Agreement to the D Block licensee.

[^830]: *700 MHz Further Notice*, 22 FCC Rcd at 8164 ¶ 277.

[^831]: *Id.* at 8161-62 ¶ 273 n.553.

[^832]: *Id.* at 8162 ¶ 274.

[^833]: *Id.* at 8163 ¶ 275.

[^834]: Frontline *700 MHz Public Safety Ninth Notice* Comments at 1.

[^835]: *Id*.

[^836]: *Id.* at 8160-68 ¶¶ 268-290.

[^837]: *See, e.g*., Cellular South *700 MHz Further Notice* Comments at
    19-20; Embarq *700 MHz Further Notice* Comments at 3-4; Cyren Call
    *700 MHz Further Notice* Reply Comments at vi; APCO *700 MHz Further
    Notice* Reply Comments at 2.

[^838]: Embarq *700 MHz Further Notice* Comments at 3-4.

[^839]: Sprint Nextel *700 MHz Further Notice* Comments at 7-8.

[^840]: Google *700 MHz Further Notice* Comments at 8.

[^841]: *See*, *e.g.*, PISC *700 MHz Further Notice* Comments at 12;
    CCIA *700 MHz Further Notice* Comments at 5-7; Cellular South *700
    MHz Further Notice* Comments at 19-20.

[^842]: CTIA *700 MHz Further Notice* Comments at 19; L-3 *700 MHz
    Further Notice* Comments at 10; MetroPCS *700 MHz Further Notice*
    Comments at 10; NATOA 700 *MHz Further Notice* Comments at 15; New
    York, NY *700 MHz Further Notice* Comments at 5-7; RCC *700 MHz
    Further Notice* Comments at 20-22.

[^843]: Alltel *700 MHz Further Notice* Comments at 5 (stating that
    "limiting the number of bidders through service restrictions and
    public interest obligations could result in a below market price for
    the E Block spectrum, effectively giving it away without any
    concomitant guarantee of performance of the licensee's promises.");
    AT&T *700 MHz Further Notice* Comments at 10; CTIA 700 *MHz Further
    Notice* Comments at 18. *But see* Frontline *Ex Parte*, WT Docket
    No. 06-150 (filed June 29, 2007) (arguing that adopting the
    Frontline proposal will increase the price of the commercial license
    subject to public/private partnership obligations, by encouraging
    new entrants to bid and by promising the winner access to public
    safety spectrum on a secondary basis).

[^844]: AT&T *700 MHz Further Notice* Comments at 12-13; MetroPCS *700
    MHz Further Notice* Comments at 10-11; NATOA *700 MHz Further
    Notice* Comments at 11; Union *700 MHz Further Notice* Comments at
    16.

[^845]: MetroPCS *700 MHz Further Notice* Comments at 80-81
    (recommending that the Commission provide incentives for all
    commercial licensees to forge cooperative arrangements with public
    safety, rather than "endorsing a monopoly service provider");
    Arcadian *700 MHz Further Notice* Reply Comments at 4-6; AT&T *700
    MHz Further Notice* Reply Comments at 10-17; Stelera Wireless *700
    MHz Further Notice* Reply Comments at 1-3.

[^846]: Arcadian *700 MHz Further Notice* Reply Comments at 4-6; NATOA
    *700 MHz Further Notice* Reply Comments at 5-6.

[^847]: L-3 *700 MHz Further Notice* Comments at 11-12; NATOA *700 MHz
    Further Notice* Comments at 12; New York, NY *700 MHz Further
    Notice* Comments at 7-8; RCC *700 MHz Further Notice* Reply Comments
    at 23.

[^848]: NATOA *700 MHz Further Notice* Comments at 12.

[^849]: Cyren Call *700 MHz Further Notice* Comments at iii-iv.

[^850]: APCO *700 MHz Further Notice* Comments at 14-22. Other
    commenters also argue that additional conditions should be imposed
    on the public safety/private partnership licensee to ensure that the
    partnership serves the needs of public safety. *See, e.g*., Fire
    Fighters Georgia *700 MHz Further Notice* Comments at 2; Fire
    Fighters Hawaii *700 MHz Further Notice* Comments at 2; NPSTC *700
    MHz Further Notice* Reply Comments at 3.

[^851]: *700 MHz Public Safety Ninth Notice*, 21 FCC Rcd at 14838 ¶ 3.

[^852]: *Id.*

[^853]: *See*, *e.g.,* APCO *700 MHz Further Notice* Comments at 11;
    Northrop Grumman *700 MHz Further Notice* Comments at 5; Sprint
    Nextel *700 MHz Further Notice* Comments at 7-8.

[^854]: Sprint Nextel *700 MHz Further Notice* Comments at 7-8; *see
    also* Cyren Call *700 MHz Further Notice* Reply Comments at vi.

[^855]: *See, e.g.*, APCO *700 MHz Further Notice* Comments at 11;
    Cellular South 700 *MHz Further Notice* Comments at 19-20; Embarq
    *700 MHz Further Notice* Comments at 3-4; Cyren Call *700 MHz
    Further Notice* Reply Comments at vi.

[^856]:  Frontline *700 MHz Public Safety Ninth Notice* Comments at 17.

[^857]: Frontline Mar. 6 Comments in WT Docket No. 06-150 at 13.

[^858]: *See* NATOA *700 MHz Further Notice* Comments at 12 ("the mere
    duty to 'consult' does nothing to protect the interests and goals of
    the public safety community. There is apparently no requirement that
    the E Block licensee adopt any recommendation of the public safety
    group.").

[^859]: APCO *700 MHz Further Notice* Comments at 18.

[^860]: NPSTC *700 MHz Further Notice* Comments at 12.

[^861]: *Id*. at 13. A number of commenters also suggested that the
    public safety community develop a "statement of requirements" and
    publish it substantially prior to the auction. *See*, *e.g.*, APCO
    *700 MHz Further Notice* Reply Comments at 15; Frontline *700 MHz
    Further Notice* Reply Comments at 12-13; NENA *700 MHz Further
    Notice* Reply Comments at 2; Verizon Wireless *700 MHz Further
    Notice* Reply Comments at 7.

[^862]: RCC *700 MHz Further Notice* Reply Comments at 52.

[^863]: AT&T *700 MHz Further Notice* Comments at 13; *see also* Verizon
    Wireless *700 MHz Further Notice* Reply Comments at 23-24, 25 (clear
    specifications of public safety's requirements must be provided in
    advance of the auction to comply with the requirements of Section
    309(j)(3)(E) of the Act and ensure commercial success).

[^864]: Frontline *700 MHz Public Safety Ninth Notice* Comments at 7;
    *see also 700 MHz Further Notice*, 22 FCC Rcd at 8162 ¶ 274.

[^865]: Frontline *700 MHz Public Safety Ninth Notice* Comments at i.

[^866]: Frontline Mar. 6 Comments in WT Docket No. 06-150, at 14.

[^867]: *See 700 MHz Public Safety Ninth Notice*, 21 FCC Rcd at 14848 ¶
    41.

[^868]: *See* *id.* at 14849 ¶ 46.

[^869]: *See id.*

[^870]: *700 MHz Further Notice*, 22 FCC Rcd at 8161-62 n.553.

[^871]: CTIA *700 MHz Further Notice* Comments at 19; L-3 *700 MHz
    Further Notice* Comments at 10; MetroPCS *700 MHz Further Notice*
    Comments at n.132; NATOA *700 MHz Further Notice* Comments at 15;
    New York, NY *700 MHz Further Notice* Comments at 5-7; RCC *700 MHz
    Further Notice* Comments at 20-22. *Cf.* Cyren Call *700 MHz Further
    Notice* Reply Comments at 28-31 (arguing that Section 337 does not
    preclude the secondary commercial use of the 700 MHz public safety
    spectrum); Frontline *700 MHz Further Notice* Reply Comments at
    23-27 (arguing that Sections 1 and 301 permit, and Section 337 does
    not preclude, making public safety spectrum available for commercial
    use on a secondary basis).

[^872]: *See* CTIA *700 MHz Further Notice* Comments at 19-20; L-3 *700
    MHz Further Notice* Comments at 10; MetroPCS *700 MHz Further
    Notice* Comments at n.132; NATOA *700 MHz Further Notice* Comments
    at 15; New York, NY *700 MHz Further Notice* Comments at 5-7; RCC
    *700 MHz Further Notice* Comments at 20-22.

[^873]: *See* *id.* at n.132.

[^874]: *See* *id.* at 67.

[^875]: *See* MetroPCS *700 MHz Further Notice* Comments at 69.

[^876]: *See* Verizon Wireless *700 MHz Further Notice* Comments at 58;
    47 C.F.R. Part 64 App. B.

[^877]: *See*, *e.g.*, APCO *700 MHz Further Notice* Comments at 19;
    California *700 MHz Further Notice* Comments at 6.

[^878]: *See* APCO *700 MHz Further Notice* Comments at 19.

[^879]: *See* California *700 MHz Further Notice* Comments at 6.

[^880]: *See* GEOCommand *700 MHz Further Notice* Comments at 8 (arguing
    that Frontline proposal leaves the most critical element of the
    relationship undefined and urges the Commission to consider the
    precise nature and scope of the term necessary to justify access to
    E Block spectrum); NATOA *700 MHz Further Notice* Comments at 11.

[^881]: *See* APCO *700 MHz Further Notice* Comments at 19.

[^882]: *See* GEOCommand *700 MHz Further Notice* Comments at 9.

[^883]: *See* NPSTC *700 MHz Further Notice* Comments at 14.

[^884]: *See* California *700 MHz Further Notice* Comments at 7.

[^885]: CTIA *700 MHz Further Notice* Comments at 19; L-3 *700 MHz
    Further Notice* Comments at 10; MetroPCS *700 MHz Further Notice*
    Comments at 10; NATOA *700* *MHz Further Notice* Comments at 15; New
    York, NY *700 MHz Further Notice* Comments at 5-7; Verizon Wireless
    *700 MHz Further Notice* Comments at 53-56; *see also* Sprint Nextel
    *700 MHz Further Notice* Comments at 8 (urging the Commission to
    analyze these issues to ensure that a public/private partnership, if
    adopted, rests on firm legal footing).

[^886]: 47 U.S.C. § 337(a)(1), (f)(1)(A).

[^887]: We also require that this spectrum be subleased from the D Block
    licensee to the Operating Company through a spectrum subleasing
    arrangement under the Commission's rules. References in this order
    to the Public Safety Broadband Licensee's spectrum manager leasing
    arrangement with the D Block licensee also include reference, where
    appropriate, to this spectrum subleasing arrangement.

[^888]: Nothing in the Act or our rules prevents public safety entities
    from receiving service from commercial service providers. *See*
    Implementation of Sections 309(j) and 337 of the Communications Act
    of 1934 as Amended, WT Docket No. 99-87, *Report and Order and
    Further Notice of Proposed Rulemaking*, 15 FCC Rcd 22709, 22750
    n.232 (2000) (stating that public safety entities, rather than
    constructing their own systems, may find it more cost-effective to
    contract out to a commercial service provider).

[^889]: *See* 47 C.F.R. §§ 1.9010, 1.9020.

[^890]: *See* Amendment Of Parts 73 And 74 Of The Commission's Rules To
    Establish Rules For Digital Low Power Television, Television
    Translator, And Television Booster Stations And To Amend Rules For
    Digital Class A Television Station, MB 03-185, *Report and Order*,
    19 FCC Rcd 22038, ¶ 2 (2004).

[^891]: CTIA *700 MHz Further Notice* Comments at 19; L-3 *700 MHz
    Further Notice* Comments at 10; MetroPCS *700 MHz Further Notice*
    Comments at 10; NATOA *700* *MHz Further Notice* Comments at 15; New
    York, NY *700 MHz Further Notice* Comments at 5-7; Verizon Wireless
    *700 MHz Further Notice* Comments at 53-56; *see also* Sprint Nextel
    *700 MHz Further Notice* Comments at 8 (urging the Commission to
    analyze these issues to ensure that the public/private partnership,
    if adopted, rests on firm legal footing).

[^892]: *See* 47 U.S.C. § 337(a)(1).

[^893]: *See, e.g.*, Verizon Wireless *700 MHz Further Notice* Comments
    at 53.

[^894]: *See* CTIA *700 MHz Further Notice* Comments at 20.

[^895]: *See* Frontline *700 MHz Further Notice* Reply Comments at 25
    ("Nothing in Section 337 stands in the way of allowing secondary
    uses that do not interfere with the 700 MHz block's primary
    allocation. Not a word of the statute addresses secondary uses, and
    the Commission regularly allows such uses."). To the extent that we
    may have previously suggested that Section 337 required that the
    frequencies in this allocation must be used exclusively for public
    safety services, *see, e.g.*, *The Development of Operational,
    Technical and Spectrum Requirements for Meeting Federal, State and
    Local Public Safety Communications Requirements Through the Year
    2010*, First Report and Order and Third Proposed Notice of
    Rulemaking, 14 FCC Rcd. 152, 183 ¶ 58, we reject such a view for the
    reasons set forth above.

[^896]: *See* Frontline *700 MHz Further Notice* Reply Comments at 26
    ("Allowing commercial secondary usage is also entirely consistent
    with the Commission's wide discretion to 'establish terms and
    conditions' over public safety services under the statute.").

[^897]: *See* *id*. at 25 ("\[A\] public/private partnership to create a
    nationwide wireless broadband network that allows preemptible
    secondary commercial uses *expands* the ability of public safety
    entities to provide 'public safety services.'") (emphasis in
    original).

[^898]: 47 U.S.C. § 337(f)(1)(emphasis added).

[^899]: 47 U.S.C. § 337(f)(1)(A).

[^900]: We do not use the term "wholesale spectrum leasing arrangement"
    here to distinguish such a spectrum leasing agreement from any other
    form of leasing agreement. Rather, this term is simply used to
    distinguish the arrangement at issue here from the retail operations
    in which a public safety licensee may not engage.

[^901]: 47 U.S.C. § 153(46).

[^902]: Implementation of the Non-Accounting Safeguards of Sections 271
    and 272 of the Communications Act of 1934, as Amended, CC Docket No.
    96-149, *First Report and Order and Further Notice of Proposed
    Rulemaking*, 11 FCC Rcd 21905, 22032-34 ¶¶ 263-265
    (1996)(*Non-Accounting Safeguards Order*); Second Order on
    Reconsideration, 12 FCC Rcd 8653, 8670-71 ¶ 33
    (1997)(*Non-Accounting Safeguards Reconsideration Order*).

[^903]: 47 U.S.C. § 251(c)(4)(requiring certain carriers "to offer for
    resale at wholesale rates any telecommunications service that the
    carrier provides at retail").

[^904]: *Non-Accounting Safeguards Order,* 11 FCC Rcd at 22033-34 ¶¶
    264-65; *see also Non-Accounting Safeguards Reconsideration Order*,
    12 FCC Rcd at 8670-71 ¶ 33.

[^905]: Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat.
    56 (1996 Act)(codified at 47 U.S.C. §§ 151 *et seq.*).

[^906]: *See* Joint Statement of Managers, S. Conf. Rep. No. 104-230,
    104^th^ Cong., 2d Sess. 1 (1996).

[^907]: *See National Ass'n of Regulatory Util. Comm'rs v. FCC*, 525
    F.2d 630 (D.C. Cir.), *cert. denied,* 425 U.S. 992
    (1976)(*NARUC*)(defining common carrier as an entity that holds
    itself out to serve all potential users indifferently or is required
    by law to serve all potential users indifferently); *see also* 47
    U.S.C. § 332(d)(1)(an entity is a commercial mobile service provider
    and regulated as a common carrier if it provides a mobile service
    "for a profit and makes interconnected service available (A) to the
    public or (B) to such classes of eligible users as to be effectively
    available to a substantial portion of the public").

[^908]: *See NARUC,* 525 F.2d at 641 (essential to the common carrier
    concept is that the carrier undertakes to carry for all people
    indifferently), 642 ("The common law requirement of holding oneself
    out to serve the public indiscriminately draws such a logical and
    sensible line between the two types \[common and private\] of
    carriers.").

[^909]: *See* Cyren Call *700 MHz Further Notice* Reply Comments at 30
    (arguing that "it cannot have been the intent of Congress to provide
    the Public Safety community with an allocation of spectrum and yet
    deprive it of the means to make use of that spectrum even if those
    means have been developed and embraced by Public Safety and the
    FCC"); NPSTC *700 MHz Further Notice* Reply Comments at 5 (asserting
    that it would be "incongruous that a provision, directed towards
    ensuring a public safety allocation in the 700 MHz Band, would
    preclude effective use by public safety").

[^910]: Frontline Mar. 6 Comments in WT Docket No. 06-150, at 14.

[^911]: These limitations shall apply to the emergency access we require
    here. Although we mandate that the D Block licensee allow the Public
    Safety Broadband Licensee to access the D Block license spectrum
    during emergencies, nothing in this Second Report and Order shall be
    construed as prohibiting the D Block licensee from otherwise
    offering its commercial services to the Public Safety Broadband
    Licensee.

[^912]: Amendment of Part 90 of the Commission's Rules to Adopt
    Regulations for Automatic Vehicle Monitoring Systems, PR Docket No.
    93-61, 10 FCC Rcd 4695, ¶ 55 (1995).

[^913]: *See Secondary Markets Second Report and Order*, 19 FCC at
    17529-31 ¶¶ 53-56.

[^914]: *700 MHz Public Safety Ninth Notice*, 21 FCC Rcd at 14849 ¶ 44.

[^915]: *700 MHz Further Notice*, 22 FCC Rcd at 8162 ¶ 274.

[^916]: *Id.* Frontline Mar. 26 *Ex Parte,* WT Docket No. 06-150,
    Attach. at 3-4 (proposed 47 C.F.R. § 27.14). Frontline specified
    that the "auction clearing date" "refer\[ed\] to the Analog Spectrum
    Recovery Firm Deadline provided for in Section 3002 of the Deficit
    Reduction Act of 2005." *Id.*

[^917]: Frontline *700 MHz Further Notice* Comments at 40-41; *see also*
    Frontline *700 MHz Further Notice* Reply Comments at 19. Frontline
    stated that, if the Commission chooses a geographic based build-out
    requirement, the obligation should include coverage of Indian lands,
    but not federal lands. Frontline also indicated that, if the
    Commission chooses a population-based coverage requirement, the D
    Block licensee should be required to work with the adjacent public
    safety band licensee where public safety coverage needs might
    diverge from the goal of maximizing population coverage. *See*
    Frontline Mar. 26 *Ex Parte* in WT Docket Nos. 96-86 and 06-150 and
    PS Docket No. 06-229 at 7-8.

[^918]: Frontline *700 MHz Further Notice* Comments at 41. We note that,
    in its filings prior to the *700 MHz Further Notice*, Frontline's
    proposed build-out rule for Alaska would have covered only Alaskan
    cities of 10,000 or more by the end of the fourth year. *See*
    Frontline Mar. 26 *Ex Parte* in WT Docket Nos. 96-86 and 06-150 and
    PS Docket No. 06-229 at 8.

[^919]: *See* Frontline *700 MHz Further Notice* Comments at 40-41;
    *see* *also* Frontline Mar. 26 *Ex Parte* in WT Docket Nos. 96-86
    and 06-150 and PS Docket No. 06-229 (proposed rule modifications).

[^920]: NPSTC *700 MHz Further Notice* Comments at 12-13.

[^921]: *Id*.

[^922]: NPSTC *700 MHz Further Notice Ex Parte* at 2 (filed July 6,
    2007).

[^923]: APCO *700 MHz Further Notice* Comments at 18; California *700
    MHz Further Notice* Reply Comments at 4; NPSTC *700 MHz Further
    Notice* Comments at 12; APCO, IACP and IAFC *700 MHz Further Notice
    Ex Parte* (filed July 13, 2007); *see also* TIA *700 MHz Further
    Notice* Comments at 4-5.

[^924]: APCO, IACP and IAFC *700 MHz Further Notice Ex Parte* (filed
    July 13, 2007).

[^925]: Cyren Call *700 MHz Further Notice* Comments at 21.

[^926]: RCC *700 MHz Further Notice* Comments at 60; *see also* MetroPCS
    *700 MHz Further Notice* Comments at 64; MetroPCS *700 MHz Further
    Notice* Reply Comments at 49.

[^927]: NENA *700 MHz Further Notice* Comments at 4.

[^928]: AT&T *700 MHz Further Notice* Reply Comments at 24.

[^929]: Embarq *700 MHz Further* *Notice* Comments at 5.

[^930]: Northrop Grumman *700 MHz Further Notice* Comments at 5.

[^931]: Region 9 (Florida) *700 MHz Further Notice* Comments at 3;
    Region 14 (Indiana) *700 MHz Further Notice* Comments at 2; Region
    16 (Kansas) *700 MHz Further Notice* Comments at 3.

[^932]: Embarq *700 MHz Further Notice* Comments at 5 n.3.

[^933]: The nationwide D Block license area is composed of the
    contiguous 48 states, Alaska, Hawaii, the Gulf of Mexico, and the
    U.S. territories.

[^934]: *See* NPSTC *700 MHz Further Notice Ex Parte* at 2 (filed July
    6, 2007) (requesting that in addition to three population-based
    build-out benchmarks, the Commission should also adopt certain
    additional requirements to ensure coverage to isolated population
    centers).

[^935]: *See* "Network Sharing Agreement (NSA) and Mandatory
    Provisions," *supra*.

[^936]: Given these measures, the stringency of our population-based
    requirements, and the requirement we impose elsewhere that the
    build-out schedule established in the NSA may not satisfy the
    initial benchmarks exclusively through build-out of high population
    areas, we do not impose any additional requirements with regard to
    build-out in Alaska specifically.

[^937]: As discussed elsewhere, we adopt that the D Block license term
    must not exceed 10 years from February 17, 2009.

[^938]: *See* *700 MHz Report and Order*, 22 FCC Rcd at 8095 ¶ 82.

[^939]: *See* Mid-Size ILECs *700 MHz Further Notice* Comments at 5 n.3.

[^940]: Such interference protection will be provided through compliance
    with the provisions of Section 27.60 of the Commission's rules. 47
    C.F.R. § 27.60. Furthermore, certain B Block licensees will continue
    to be authorized to operate in the 762-764 and 792-794 MHz bands,
    which overlap portions of the 758-763 and 788-793 MHz D blocks. The
    D Block licensee will therefore be required to provide appropriate
    co-channel protection to those B Block licensees by limiting its
    base station field strength signal levels to no greater than 40 dBu
    at the B Block licensees' geographic borders.

[^941]: *See* NENA *700 MHz Further Notice* Comments at 3.

[^942]: APCO, IACP and IAFC *700 MHz Further Notice Ex Parte* (filed
    July 13, 2007).

[^943]: *See* APCO *700 MHz Further Notice* Comments at 18; Cyren Call
    *700 MHz Further Notice* Comments at 20; Embarq *700 MHz Further
    Notice* Comments at 5; Northrop Grumman *700 MHz Further Notice*
    Comments at 5; NPSTC *700 MHz Further Notice* Comments at 12; RCC
    *700 MHz Further Notice* Comments at 60; TIA *700 MHz Further
    Notice* Comments at 4; Union *700 MHz Further Notice* Comments at
    16.

[^944]: *See, e.g*., APCO *700 MHz Further Notice* Comments at 18;
    Embarq *700 MHz Further Notice* Comments at 5; MetroPCS *700 MHz
    Further Notice* Comments at 64; NENA *700 MHz Further Notice*
    Comments at 4; NPSTC *700 MHz Further Notice* Comments at 12; RCC
    *700 MHz Further Notice* Comments at 60; California *700 MHz Further
    Notice* Reply Comments at 4.

[^945]: *See* 47 C.F.R. § 1.946(d) ("The notification must be filed with
    Commission within 15 days of the expiration of the applicable
    construction or coverage period.").

[^946]: *See*, *e.g*., 47 C.F. R. §1.17 (Truthful and accurate
    statements to the Commission); 47 C.F.R. § 1.917 ("Willful false
    statements made therein, however, are punishable by fine and
    imprisonment, 18 U.S.C. 1001, and by appropriate administrative
    sanctions, including revocation of station license pursuant to
    312(a)(1) of the Communications Act of 1934, as amended.").

[^947]: Below we discuss conditions, requirements, and procedures that
    are intended to prevent or address breaches of obligations by the D
    Block licensee under either the Commission's rules or the NSA.

[^948]: *See* Frontline Mar. 26 *Ex Parte* in WT Docket Nos. 06-150 and
    06-169 and PS Docket No. 06-229, at 6-8.

[^949]: *See*, *e.g.*, Alltel *700 MHz Further Notice* Comments at 6-7.

[^950]: *See*, *e.g.*, AT&T *700 MHz Further Notice* Comments at 13 (to
    give bidders greater clarity, adoption of Frontline proposal should
    include "specification of the primary terms and conditions that
    would have to be part of a Network Service Agreement . . . as well
    as penalties or sanctions to be imposed for failure to meet these
    terms and conditions."); Cyren Call *700 MHz Further Notice*
    Comments at 22 (listing 17 elements to be included in NSA).

[^951]: *See* Cyren Call *700 MHz Further Notice* Comments at n.22
    (overly specific rules would "require potentially costly and
    time-consuming waiver requests should the parties agree to an
    arrangement that is not contemplated expressly in the FCC's
    regulations.").

[^952]: *See* *also* 47 C.F.R. §§ 1.903(b) ("The holding of an
    authorization does not create any rights beyond the terms,
    conditions and period specified in the authorization."), 1.945(e)
    ("The FCC may grant applications . . .subject to conditions other
    than those normally applied to authorizations of the same type.").

[^953]: As discussed elsewhere, the Public Safety Broadband Licensee has
    the responsibility to negotiate an NSA with the winning bidder on
    the D Block license for broadband service in the 700 MHz public
    safety broadband spectrum.

[^954]: All of the parties, including the winning bidder of the D Block
    license, the bankruptcy-remote entity to be the D Block licensee,
    the Network Assets Holder, and the Operating Company, must execute
    the NSA.

[^955]: Except as specified herein, current rules and remedies under the
    Commission's general rules regarding violation of license terms and
    conditions would continue to apply.

[^956]: Frontline *700 MHz Public Safety Ninth Notice* Comments at
    27-28.

[^957]: Frontline *700 MHz Further Notice* Comments at 46.

[^958]: For example, Frontline's original proposal emphasized that its
    network service fees on the Public Safety Broadband Licensee for
    managing, operating, and upgrading the network "would be much lower
    than the public safety spectrum usage fee under the *700 MHz Public
    Safety Ninth Notice*'s proposal because, under \[Frontline's
    proposal,\] public safety would not be funding the up-front costs of
    constructing the nationwide infrastructure...." Frontline *700 MHz
    Public Safety Ninth Notice* Comments at 27.

[^959]: *See* NPSTC *700 MHz Further Notice* Reply Comments at 6 ("The E
    Block licensee should view its obligations to the public safety
    network as a trust responsibility that the Commission will oversee
    and enforce.").

[^960]: *700 MHz Report and Order*, 22 FCC Rcd at 8092-94 ¶¶ 73-77,
    8095-96 ¶¶ 82-84.

[^961]: *700 MHz Further Notice*, 22 FCC Rcd at 8162-63 ¶ 275.

[^962]: *See* Frontline Mar. 6 Comments in WT Docket No. 06-150 at 19.

[^963]: NENA *700 MHz Further Notice* Comments at 4.

[^964]: *Id.*

[^965]: Cyren Call *700 MHz Further Notice* Comments at 17 (citing *700
    MHz Report and Order*, 22 FCC Rcd at 8092-94 ¶¶ 73-79).

[^966]: *Id.*

[^967]: *Id.*

[^968]: *700 MHz Public Safety Ninth Notice*, 21 FCC Rcd at 14843 ¶ 17.

[^969]: *Id.*

[^970]: *Id.*, 21 FCC Rcd at 14844 ¶ 26.

[^971]: *See* Frontline *700 MHz Public Safety Ninth Notice* Comments at
    31 n.55.

[^972]: Frontline Mar. 26 *Ex Parte* in WT Docket No. 06-150 and 06-169
    and PS Docket No. 06-229, at 8.

[^973]: *See* *700 MHz Further Notice*, 22 FCC Rcd at 8165 ¶ 280.

[^974]: SIA Comments in WT Docket No. 06-169, PS Docket No. 06-229, WT
    Docket No. 96-86, at 2, 7, 13 (suggesting that by incorporating
    satellite services into the network infrastructure, public safety
    would have access to ubiquitous, advanced broadband communications
    capability, capable of providing a robust back-up system in case of
    terrestrial network failure); *see also* MSV *700 MHz Further
    Notice* Comments at 7 (advocating that the Commission "require all
    terminals on the 700 MHz public safety broadband network to have the
    capability of providing mobile service by satellite by 2010").

[^975]: *See, e.g.,* Fire Fighters Idaho *700 MHz Further Notice*
    Comments at 2; Fire Fighters Montana *700 MHz Further Notice*
    Comments at 2; Fire Fighters Oregon *700 MHz Further Notice*
    Comments at 2; Fire Fighters Mass. *700 MHz Further Notice* Comments
    at 2; Police Chiefs Mass. *700 MHz Further Notice* Comments, at 2
    (all stating that a satellite overlay is necessary); *but see*
    Verizon Wireless *700 MHz Further Notice* Comments at 33, n. 76
    (noting that satellite service already is present in 90 percent of
    all U.S. zip codes, citing High-Speed Services for Internet Access:
    Status as of June 30, 2006, Industry Analysis and Technology
    Division, Wireline Competition Bureau, at 2-3 (Jan. 2007) available
    at
    http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-270128A1.pdf)).

[^976]: MSV *700 MHz Further Notice* Comments at 7.

[^977]: APCO *700 MHz Further Notice* Reply Comments at 6.

[^978]: Letter from Gregg L. Elias, Counsel to Iridium, to Marlene H.
    Dortch, Secretary, FCC, WT Docket No. 06-150 (filed July 2, 2007)
    (Iridium *Ex Parte* Letter).

[^979]: Letter from Gregg L. Elias, Counsel to Iridium, to Marlene H.
    Dortch, Secretary, FCC, PS Docket No. 06-229, WT Docket No. 96-86
    (filed July 24, 2007) (Iridium July 24 *Ex Parte* Letter).

[^980]: *See*, *e.g.*, Missouri Highway Patrol *700 MHz Further Notice*
    Comments at 9, at 25, 35 (deployment can be less expensive by using
    COTS and existing network infrastructure where possible); *see also*
    NATOA *700 MHz Further Notice* Comments at 14 (when specifying the
    security and network interface requirements for equipment operating
    in an open access environment it will be important to consult public
    safety and to ensure that no particular manufacturer is
    inadvertently favored).

[^981]: Independent Panel Reviewing the Impact of Hurricane Katrina on
    Communications Networks, *Report and Recommendations to the Federal
    Communications Commission* at 10-11; *see also* *id*. at 24
    ("satellite infrastructure was generally unaffected by the storm and
    could have provided a viable back-up system.").

[^982]: *See* Iridium *Ex Parte* Letter at 13; MSV *700 MHz Further
    Notice* Comments at 5-6.

[^983]: *See* APCO *700 MHz Further Notice* Reply Comment at 6; SIA *700
    MHz Further Notice* Comments at 4-5.

[^984]: *See* MSV *700 MHz Further Notice* Comments at 6.

[^985]: *See* Verizon Wireless *700 MHz Public Safety Ninth Notice*
    Comments at 6-14 (finding that public safety will receive
    "significant benefits" from taking advantage of commercial
    off-the-shelf equipment, and also from sharing infrastructure with
    existing CMRS networks); *see also* High Tech DTV Coalition *700 MHz
    Public Safety Ninth Notice* Comments at 10-14.

[^986]: *See* Motorola *700 MHz Further Notice* Comments at 30 ("if the
    Commission adopts Frontline's plan, public safety should not be
    required to use Frontline's network. While Motorola believes that
    public safety would likely choose to use a purpose-build network,
    like the one proposed by Frontline, public safety should not be
    precluded from using devices on other carriers' networks, an option
    they already have today, if they so choose."); Cyren Call *700 MHz
    Further Notice* Reply Comments at 22 (supporting proposal that
    "\[n\]o public safety agency or entity will be *required* to operate
    on the network; participation is entirely voluntary based on
    decisions made by the same communications officials who decide today
    how local, statewide and regional communications requirements should
    be met").

[^987]: *See* Verizon Wireless *700 MHz Further Notice* Comments at 45
    (asserting that Commission must ensure that any rights granted to
    the D Block licensee do not foreclose opportunity for public safety
    entities to consider other commercial partnerships, and arguing that
    competition for emergency communications services will ensure that
    first responders get the best price, quality, and capabilities that
    commercial companies have to offer).

[^988]: *See* RCC *700 MHz Further Notice* Comments at 54-55, 66.

[^989]: APCO *700 MHz Further Notice* Comments at 20-22.

[^990]: We address the specific case of public safety entities that wish
    to build out networks with wideband operations, as opposed to
    broadband operations, elsewhere in this Second Report and Order.

[^991]: Parties are thus free to provide that the ownership of the
    network will remain with the constructing public safety entity, in
    which case, the D Block licensee will owe no compensation for the
    build-out costs to that entity, and the network will not be counted
    toward the D Block licensee's build-out requirements until the
    build-out date specified for that area in the Network Sharing
    Agreement.

[^992]: *See* Request by National Capital Region for Waiver of the
    Commission's Rules to Allow Establishment of a 700 MHz Interoperable
    Broadband Data Network, WT Docket No. 96-86, *Order*, 22 FCC Rcd
    1846 (PSHSB 2007)(NCR Waiver Order).

[^993]: *See* The National Capital Planning Act of 1952, 40 U.S.C. § 71.

[^994]: *NCR Waiver Order* at 1849 ¶ 8, quoting letter from Bill Butler,
    NCR Interoperability Program, OCTO-Wireless Programs Group, to
    Marlene H. Dortch, Secretary, FCC (Jan. 29, 2007) and attached
    e-mail from Robert L. LeGrande, II, NCR Interoperability Program,
    Deputy Chief Technology Officer, District of Columbia, to Dana
    Shaffer, Deputy Chief, Public Safety and Homeland Security Bureau,
    FCC (Jan. 28, 2007).

[^995]: Specific to NCR, we reject such argument as inconsistent with
    the explicit representations they made in obtaining a waiver and the
    very waiver conditions themselves.

[^996]: 47 C.F.R. § 1.9020.

[^997]: *See* 47 C.F.R. § 1.9010 (standard for retaining *de facto*
    control under a spectrum leasing arrangement).

[^998]: *See* 47 C.F.R. §§ 1.9010-1.9030 (distinguishing between the
    licensee's responsibilities with regard to its spectrum lessee
    depending on whether they have entered into a spectrum manager
    leasing arrangement or, instead, a *de facto* transfer spectrum
    leasing arrangement).

[^999]: The public safety entity may seek extended implementation
    authority from the Commission pursuant to the requirements of
    Section 90.629. 47 C.F.R. § 90.629.

[^1000]: 47 C.F.R. § 1.9020(h)(3) (permitting licensee to terminate the
    spectrum leasing arrangement).

[^1001]: 47 C.F.R. § 1.9020(e).

[^1002]: 47 U.S.C. § 310.

[^1003]: *700 MHz Further Notice*, 22 FCC Rcd at 8156 ¶ 253 & n.521. At
    the same time, we also stated we would work with public safety
    entities to extend previous grants of Special Temporary Authority
    (STA), to the extent such public safety entity has constructed,
    deployed, and is currently operating a wideband system pursuant to
    STA. *Id*. at ¶ 250 n.512.

[^1004]: For example, Region 40 states that one size does not fit all
    when it comes to communications solutions. Region 40 (Texas North)
    *700 MHz Further Notice* Comments at 2.

[^1005]: L-3 *700 MHz Further Notice* Comments at 4.

[^1006]: APCO, for example, states that even "the most ambitious public
    safety broadband proposals will leave some portions of the country
    unserved for many years, and perhaps indefinitely." APCO *700 MHz
    Further Notice* Comments at 6; *see also* Fort Lauderdale *700 MHz
    Further Notice* Comments at 3; Hawaii *700 MHz Further Notice*
    Comments at 2; Region 16 (Kansas) *700 MHz Further Notice* Comments
    at 3.

[^1007]: *See*, *e.g.*, Region 9 (Florida) *700 MHz Further Notice*
    Comments at 2; Tacoma, WA *700 MHz Further Notice* Comments at 2.

[^1008]: *See*, *e.g*., Tacoma, WA *700 MHz Further Notice* Comments at
    2; Motorola *700 MHz Further Notice* Comments at 4-5; Region 16
    (Kansas) *700 MHz Further Notice* Comments at 2.

[^1009]: Hampton Roads Interop *700 MHz Further Notice* Comments at 1;
    *see also* Region 40 (Texas North) *700 MHz Further Notice* Comments
    at 2.

[^1010]: Region 33 (Ohio) *700 MHz Further Notice* Comments at 3.

[^1011]: NATOA *700 MHz Further Notice* Comments at 6-7; *see also*
    California *700 MHz Further Notice* Comments at 8, Region 16
    (Kansas) *700 MHz Further Notice* Comments at 1-3; Region 9
    (Florida) *700 MHz Further Notice* Comments at 2.

[^1012]: Under this approach, the lower 3.75 megahertz of the broadband
    segment would be reserved for broadband only.

[^1013]: *See* NPSTC *700 MHz Further Notice* Comments at 20; *see also*
    APCO *700 MHz Further Notice* Comments at 6-7; Region 40 (Texas
    North) *700 MHz Further Notice* Comments at 2-3; San Diego County
    *700 MHz Further Notice* Comments at 8-9.

[^1014]: NPSTC *700 MHz Further Notice* Comments at 20-21.

[^1015]: *Id*. at 21.

[^1016]: See, *e.g.*, Alcatel-Lucent *700 MHz Further Notice* Comments
    at 13-15; Northrop Grumman *700 MHz Further Notice* Comments at 2-3;
    Qualcomm *700 MHz Further Notice* Comments at 17-31; Alcatel-Lucent
    *700 MHz Further Notice* Reply Comments at 3-6.

[^1017]: Qualcomm *700 MHz Further Notice* Comments at 31.

[^1018]: Alcatel-Lucent *700 MHz Further Notice* Comments at i-ii.

[^1019]: Frontline *700 MHz Further Notice* Comments at 55.

[^1020]: Cyren Call *700 MHz Further Notice* Comments at 24.

[^1021]: *700 MHz Further Notice*, 22 FCC Rcd at 8156 ¶ 253.

[^1022]: *Id*.

[^1023]: We direct the PSHSB to grant a public safety entity that has
    constructed, deployed, and is currently operating a wideband system
    pursuant to STA to grant requests to extend the STA grant up until,
    but not later than, six months following the selection of the Public
    Safety Broadband Licensee (such operations to be referred hereafter
    as Grandfathered Wideband STA Operations). In this manner, public
    safety entities operating wideband systems under such circumstances
    will be afforded time to plan their spectrum usage to be able to
    conform to the requirements we adopt herein. We otherwise direct the
    PSHSB to deny any pending STA request to commence new wideband
    operations. Such applicants may submit new requests for authority to
    operate wideband systems only in conformance with the requirements
    we adopt herein.

[^1024]: *See* 47 C.F.R. § 1.925; *WAIT Radio v. FCC*, 418 F.2d 1153,
    1158-59 (D.C. Cir. 1969), *aff'd*, 459 F.2d 1203 (D.C. Cir. 1972).

[^1025]: For example, wideband operations, even if occurring outside the
    broadband allocation, may conflict with the broadband deployment,
    whether due to interference concerns caused by the presence of
    wideband operations within the public safety band, or because the
    Public Safety Broadband Licensee determines that because of the
    broadband deployment, either the guard band must be cleared of any
    wideband operations, or the narrowband channels need to be used
    solely to satisfy narrowband needs.

[^1026]: Motorola *700 MHz Further Notice* Comments at 20-21.

[^1027]: *See* *700 MHz Further Notice*, 22 FCC Rcd at 8165 ¶ 282.

[^1028]: *See id.*

[^1029]: *See id.*

[^1030]: *See id.*, 22 FCC Rcd at 8165 ¶ 283.

[^1031]: *See* NPSTC *700 MHz Further Notice* Comments at 12.

[^1032]: *See* Cyren Call *700 MHz Further Notice* Comments at 15
    (Commission should "engage in an ongoing review process as the
    \[NSA\] is being developed by the parties and \[\] require status
    reports on a regular basis . . . .").

[^1033]: *See* APCO *700 MHz Further Notice* Comments at 15; Cyren Call
    *700 MHz Further Notice* Comments at 14-15; Fire Fighters Virginia
    *700 MHz Further Notice* Comments at 2; Fire Fighters Oregon *700
    MHz Further Notice* Comments at 1; NPSTC *700 MHz Further Notice*
    Comments at 10.

[^1034]: *See* APCO *700 MHz Further Notice* Comments at 15.

[^1035]: *See* Cyren Call *700 MHz Further Notice* Comments at 10-12, 17
    (recommending that, "\[a\]t a minimum, the rules should require an
    annual report from the parties, one that provides status updates on
    key Network Sharing Agreement elements and, more generally, keeps
    the FCC apprised of the 'State of the Network.'"); NPSTC *700 MHz
    Further Notice* Comments at 12.

[^1036]: *See* Frontline *700 MHz Further Notice* Comments at 44.

[^1037]: *See* APCO *700 MHz Further Notice* Comments at 16; NPSTC *700
    MHz Further Notice* Comments at 10-11 (opposing third-party
    arbitration); Cyren Call *700 MHz Further Notice* Reply Comments at
    15; *but see* NPSTC *700 MHz Further Notice* Comments at 11-12
    ("While still problematic, submitting disputes to the Commission . .
    . may be a viable option . . . .").

[^1038]: *See* APCO *700 MHz Further Notice* Comments at 16 ("We
    strongly oppose \[binding arbitration\] as it would also take
    control of the \[public safety\] spectrum out of the hands of the
    public safety licensee . . . . While \[resolution by the Commission
    is\] preferable to binding arbitration by a third party, this
    approach could still force public safety into a long term
    partnership with an entity that fails to understand public safety
    needs and obtained its license merely by being the highest
    bidder."); NPSTC *700 MHz Further Notice* Comments at 10-11. *See
    also* California *700 MHz Further Notice* Comments at 5-6
    (supporting Frontline proposal if it is established by a "mutually
    agreeable" NSA).

[^1039]: *See* APCO *700 MHz Further Notice* Comments at 17
    (re-auctioning "avoids the problem of a forced partnership. . . .
    The key to success is to ensure that public safety, not a commercial
    auction, decides the fate of public safety spectrum."); Cyren Call
    *700 MHz Further Notice* Comments at 15 (national public safety
    licensee should "not be forced to accept as its long-term partner .
    . . an entity determined exclusively by the size of its entity's
    auction bid" and if there are intractable disputes, "the National
    Licensee should be permitted to terminate the negotiation process
    and, at its discretion, consider partnership arrangements with other
    commercial 700 MHz licensees with authority to permit them secondary
    access to Public Safety's broadband spectrum."); NPSTC *700 MHz
    Further Notice* Comments at 11 ("The only appropriate solution . . .
    is to re-auction the spectrum, . . . the only remedy that preserves
    public safety control over public safety spectrum.").

[^1040]: *See* APCO *700 MHz Further Notice* Comments at 15-16; Cyren
    Call *700 MHz Further Notice* Reply Comments at 14 (also suggesting
    requiring a showing of financial *bona fides* before using a
    license). In one of its more recent filings, Frontline opposes this
    measure, arguing that it would be "an open invitation for losing
    bidders, incumbents and other competitors to poison the negotiations
    and even the dispute resolution process, in an effort to force an
    impasse . . . ." Frontline July 24, 2007 *Ex Parte* at 1*.* Given
    that such parties will not be participating in the negotiations,
    however, we think that the risk that they could "poison" the
    negotiations is minimal. Further, we note that Frontline itself, in
    its original comments, supports this very condition when combined
    with binding dispute resolution, arguing that it "incentivizes the E
    Block licensee to reach a mutually beneficial agreement with the
    NPSL in a timely manner." Frontline *700 MHz Further Notice*
    Comments at 44. As stated elsewhere, the Commission will retain the
    option of engaging in binding dispute resolution in the event
    negotiations are unsuccessful.

[^1041]: 47 C.F.R. § 22.143.

[^1042]: *See* 47 C.F.R. §§ 1.2107-1.2109.

[^1043]: 47 U.S.C. § 155(c)(1).

[^1044]: *See* 47 C.F.R. § 1.2104(g).

[^1045]: *See*, *e.g.*, 47 C.F.R. § 1.2109.

[^1046]: APCO *700 MHz Further Notice* Comments at 17; Cyren Call *700
    MHz Further Notice* Comments at 15; NPSTC *700 MHz Further Notice*
    Comments at 11.

[^1047]: *See*, *e.g.*, NPSTC *700 MHz Further Notice* Comments at
    11-12.

[^1048]: *See*, *e.g.,* Frontline *700 MHz Further Notice* Reply
    Comments at 13.

[^1049]: *See*, *e.g.,* 47 C.F.R. §§ 1.2104 *et seq.*

[^1050]: *See* 47 C.F.R. § 1.2109.

[^1051]: Frontline *700 MHz Further Notice* Comments at 9.

[^1052]: Frontline *700 MHz Further Notice* Comments at 9.

[^1053]: *See* *700 MHz Further Notice*, 22 FCC Rcd at 8167 ¶ 289.

[^1054]: *Id.*

[^1055]: APCO *700 MHz Further Notice* Comments at 20; Frontline *700
    MHz Further Notice* Comments at 47 (the rules should protect against
    any disruption of public safety use of the network); Cyren Call *700
    MHz Further Notice* Comments at 18; GEOCommand *700 MHz Further
    Notice* Comments at 13; MetroPCS *700 MHz Further Notice* Comments
    at 65; California *700 MHz Further Notice* Reply Comments at 6. *See
    also* Arcadian *700 MHz Further Notice* Comments at 5. Similarly,
    public safety users would be stranded if the E Block licensee failed
    to meet its construction benchmarks."); CTIA *700 MHz Further
    Notice* Comments at 22 (asserting that failure of the enterprise
    would result in significant lost opportunity costs and uncertainty
    for the deployment and operations of the public safety broadband
    network).

[^1056]: *See* APCO *700 MHz Further Notice* Comments at 20; Frontline
    *700 MHz Further Notice* Comments at 47; NPSTC *700 MHz Further
    Notice* Comments at 14; Cyren Call *700 MHz Further Notice* Reply
    Comments at 20.

[^1057]: *See* Verizon Wireless *700 MHz Further Notice* Comments at 27.

[^1058]: *See* APCO *700 MHz Further Notice* Comments at 20; Cyren Call
    *700 MHz Further Notice* Comments at 18-20; NPSTC *700 MHz Further
    Notice* Comments at 15.

[^1059]: *See* Cyren Call *700 MHz Further Notice* Comments at 17.

[^1060]: *See* GEOCommand *700 MHz Further Notice* Comments at 13.

[^1061]: *See* GEOCommand *700 MHz Further Notice* Comments at 12-13
    (public safety entities should have a special ability to challenge
    the commercial licensee to ensure compliance on a fast track).

[^1062]: We decline to require the D Block licensee to post a financial
    security to ensure performance of its obligations. We are concerned
    that the burden of obtaining such a security could deter qualified
    entities from bidding on the D Block license and believe that a D
    Block licensee's financial resources are better used for actual
    construction and operation costs. *Cf.* Cyren Call *700 MHz Further
    Notice* Comments at 19 & n.20 (finding that "\[m\]easures such as
    obtaining performance bond arrangements are likely not to be
    available at a reasonable cost . . . .").

[^1063]: A "special purpose entity" is a legal entity created for a
    special limited purpose, in this context primarily to hold the D
    Block license or the network assets, or to conduct the operation.

[^1064]: A special purpose entity is "bankruptcy remote" if that entity
    is unlikely to become insolvent as a result of its own activities,
    is adequately insulated from the consequences of a related party's
    insolvency, and contains certain characteristics which enhance the
    likelihood that it will not become the subject of an insolvency
    proceeding.

[^1065]: We note that if we cancel the D Block license this spectrum
    lease arrangement will also be terminated.

[^1066]: The opinion letter must contain detailed legal analysis of the
    basis of counsel's opinion. A draft opinion letter must be submitted
    for review and approval by the Commission's Office of General
    Counsel prior to issuance of the opinion. Bankruptcy counsel and, if
    applicable, counsel's firm, must have a Martindale-Hubbell rating of
    "A/V" and must satisfy the Commission in all other respects.

[^1067]: GEOCommand recommends that we address the threat of
    discontinuance by establishing a right to place the network assets
    in a government trust in the event of financial difficulty or
    non-compliance. *See* GEOCommand *700 MHz Further Notice* Comments
    at 13. We decline to establish such a rule, however, because we have
    serious concerns regarding both the legal validity of such a rule,
    its effectiveness in the event of bankruptcy filing (and the
    possible incentives created by such a rule for the D Block licensee
    to seek protection in bankruptcy), and its impact on the investment
    incentives that will be necessary to generate the capital to build
    the network. We find that the measures we have adopted, and the
    active oversight of the Commission, should be sufficient to ensure
    that public safety services will not be discontinued.

[^1068]: Under established standards, an STA is appropriate when the
    proposed action will serve the public interest, convenience and
    necessity. *See* Accounting Safeguards Under the Telecommunications
    Act of 1996, *Order*, 16 FCC Rcd 17969, 17970, ¶ 3 (2001);
    Application of GTE Corporation and Bell Atlantic Corporation for
    Consent to Transfer Control of Domestic and International Sections
    214 and 310 Authorizations and Application to Transfer Control of a
    Submarine Cable Landing License, Order, 16 FCC Rcd 15957, 15958, ¶ 3
    (2001) (addressing standard for granting STAs); *see also* 47 U.S.C.
    §§ 154(i), 214(a), 303(r), 308(a).

[^1069]: As with the original license, a new license shall not be
    granted until an NSA is approved and executed by the parties. We
    authorize the Bureaus to adopt a process for establishing an NSA
    that differs from the process applicable to the establishment of the
    original NSA, to the extent that such difference will serve the
    goals of the Public/Private Partnership. For example, the Bureaus
    may require that the new licensee must accept the terms of the
    original NSA for its remaining term.

[^1070]: NPSTC *700 MHz Further Notice* Comments at 13 (submitting
    disputes regarding performance to the Commission appropriate because
    of the obligation in the Act to promote safety of life and
    property).

[^1071]: This is consistent with our requirement that the NSA must be
    approved by the Commission and the terms of the NSA are part of the
    license conditions.

[^1072]: *See* 47 C.F.R. § 1.2109(c). The Commission may reassign the
    license through competitive bidding to a new applicant.

[^1073]: 47 C.F.R. § 1.115.

[^1074]: As part of these quarterly reports, the Commission may require
    financial information from the ultimate parent entity of the
    individual parties to the NSA.

[^1075]: By providing the number of public safety entities that have
    chosen to receive service from the network, the reports will provide
    the Commission with an important indicator of the network's success
    in meeting public safety needs. *See* NPSTC *700 MHz Further Notice*
    Reply Comments at 5-6. *See also* Cyren Call *700 MHz Further
    Notice* Comments at 17-18 ("In the end, success must be measured by
    the network's ability to attract Public Safety users . . . . .");
    AT&T *700 MHz Further Notice* Reply Comments at 25 (recommending
    that the Commission require the D Block licensee to meet certain
    public safety participation benchmarks by a certain date); *see
    also* NPSTC *700 MHz Further Notice* Comments at 5-6 (D Block
    licensee should be judged on an ongoing basis by the quality of
    service it provides and the number of agencies that have chosen to
    participate in the network).

[^1076]: TIA *700 MHz Further Notice* Comments at 5 (recommending that
    the Commission impose regular reporting requirements to ensure
    performance).

[^1077]: *700 MHz Further Notice*, 22 FCC Rcd at 8160 ¶ 268.

[^1078]: *700 MHz Further Notice*, 22 FCC Rcd at 8166 ¶ 286. We did not
    specifically seek comment on Frontline's previous proposal, in
    response to the *700 MHz Public Safety Ninth Notice*, that the
    Commission should develop bidding credits for bidders making
    commitments to exceed required coverage benchmarks, modeled on the
    Commission's tribal lands bidding credits program. *See* Frontline
    *700 MHz Public Safety Ninth Notice* Comments at 32. Moreover,
    Frontline did not continue to advocate such a credit in its response
    to the *700 MHz Further Notice. See generally* Frontline *700 MHz
    Further Notice* Comments; Frontline *700 MHz Further Notice* Reply
    Comments.

[^1079]: As explained in the *700 MHz Further Notice*, this was true for
    services with extremely high capital costs such as direct broadcast
    satellite service and the digital audio radio service. *700 MHz*
    *Further Notice*, 22 FCC Rcd at 8166 ¶ 285. *See generally*,
    Revision of Rules and Policies for the Direct Broadcast Satellite
    Service, IB Docket No. 95-168, PP Docket No. 93-253, *Report and
    Order*, 11 FCC Rcd 9712 (1995) (*DBS Auction Order*); Establishment
    of Rules and Policies for the Digital Audio Radio Satellite Service
    in the 2310-2360 MHz Band, IB Docket No. 95-91, *Report and Order,
    Memorandum Opinion and Order and Further Notice of Proposed
    Rulemaking*, 12 FCC Rcd 5754 (1997) (*DARS Auction Order*)*.*

[^1080]: *700 MHz Further Notice*, 22 FCC Rcd at 8166 ¶ 287.

[^1081]: 47 C.F.R. § 1.2110(b)(iv)(A).

[^1082]: *700 MHz Further Notice*, 22 FCC Rcd at 8167 ¶ 287. As the
    Commission explained in the *700 MHz Further Notice*, "\[i\]n the
    event that we offered bidding preferences with respect to such an 'E
    Block' license, the existing rule plainly would preclude any
    licensee that is required to operate only as a wholesale provider
    from receiving designated entity benefits." *Id.*

[^1083]: In connection with Frontline's material relationship arguments,
    we note the Office of Advocacy of the Small Business
    Administration's comments urging the Commission to stay the effect
    of revisions made in 2006 to the Commission's designated entity
    rules for the 700 MHz auction. SBA *700 MHz Further Notice* Comments
    at 2. We find nothing persuasive in the Office of Advocacy's
    pleading as to why the Commission's current rules should not apply
    to the auction of 700 MHz licenses.

[^1084]: Frontline *700 MHz Further Notice* Comments at 58-67.

[^1085]: *Id.* at 62.

[^1086]: *Id.* at 60-61.

[^1087]: Frontline June 28 *Ex Parte*, Attach. at 16.

[^1088]: McBride Spectrum Partners, LLC *700 MHz Further Notice*
    Comments at 4-8; Blooston *700 MHz Further Notice* Comments at 7;
    Council Tree *700 MHz Further Notice* Reply Comments at 5-7.

[^1089]: MetroPCS *700 MHz Further Notice* Comments at 60.

[^1090]: *Id.* at 60-61. It should be noted that MetroPCS expresses
    disagreement "with the Commission's contention that wholesale
    arrangements are inconsistent with the statutory scheme for DEs."
    However, it acknowledges that "the holding to this effect, although
    being challenged, still remains in effect." *Id.* at 61 n. 148; *see
    also id.* at 63 n.155.

[^1091]: *Id.* at 61-63. MetroPCS further argues that a grant of
    Frontline's request should require the Commission to reexamine the
    future applicability of its designated entity rules to wholesale
    arrangements in general. *Id.* at 61 n.150.

[^1092]: USCC *700 MHz Further Notice* Comments at 19-20.

[^1093]: *See Upper 700 MHz First Report and Order*, 15 FCC Rcd at
    529-530 (establishing bidding credits for frequencies covered by the
    D Block).

[^1094]: *See* 47 C.F.R. § 1.2110.

[^1095]: Amendment of Part 1 of the Commission's Rules -- Competitive
    Bidding Procedures, WT Docket No. 97-82, *Third Report and Order and
    Second Further Notice of Proposed Rule Making*, 13 FCC Rcd 374, 388
    ¶ 18 (1997) ("*Part 1 Third Report and Order*"); 47 C.F.R. § 1.2110
    (c)(1).

[^1096]: *See* "Announcing the High Bidders in the Auction of Ten
    Nationwide Narrowband PCS Licenses," *Public Notice*, PNWL 94-4
    (rel. Aug. 2, 1994). In the nationwide narrowband PCS auction
    (Auction No. 1), bidding credits on ten nationwide licenses were
    offered to women- and minority-owned businesses. *See also*
    "1670-1675 MHz Band Auction Closes, Winning Bidder Announced,"
    *Public Notice*, 18 FCC Rcd 9089 (2003). In the 1670-1675 MHz Band
    auction (Auction No. 46), the Commission offered a bidding credit on
    a nationwide license in the 1670-1675 MHz band to small businesses
    with average annual revenues not exceeding \$40 million and very
    small businesses with average annual revenues not exceeding \$15
    million.

[^1097]: 47 C.F.R. § 27.502.

[^1098]: We note that use of these special small business size standards
    does not require coordination with the Small Business
    Administration.

[^1099]: 47 C.F.R. § 27.15.

[^1100]: Frontline Mar. 26 *Ex Parte* in WT Docket Nos. 06-150 and
    06-169 and PS Docket No. 06-229 at 4, Attached Proposed Rules. Under
    this proposal, in partitioning, each D Block licensee should meet
    the build-out requirements independently within its own license
    area. After spectrum disaggregation, however, licensees would share
    the responsibility for the build-out. If either licensee fails, both
    licensees would be subject to forfeiture.

[^1101]: *700 MHz Further Notice*, 22 FCC Rcd at 8164 ¶ 277.

[^1102]: NPSTC *700 MHz Further Notice* Comments at 13.

[^1103]: NPSTC *700 MHz Further Notice* Comments at 13.

[^1104]: CMRS Partitioning and Disaggregation Order, 11 FCC Rcd 21831,
    21864 ¶ 61 (1996).

[^1105]: *700 MHz Further Notice*, 22 FCC Rcd at 8165 ¶ 282.

[^1106]: *See generally Secondary Markets Second Report and Order*, 19
    FCC Rcd 17503.

[^1107]: Because any such application is subject to Commission review
    and prior approval, however, it is precluded from overnight
    processing.

[^1108]: *700 MHz Further Notice*, 22 FCC Rcd at 8163-64 ¶ 276, 8167-68
    ¶ 290; *See* Frontline *700 MHz Public Safety Ninth Notice* Comments
    at 29-31; Frontline Mar. 6 Comments in WT Docket No. 06-150 at
    16-19. *See also* Frontline Mar. 26 *Ex Parte* in WT Docket Nos.
    06-150- and 06-169 and PS Docket No. 06-229, Attach. (Frontline's
    proposed 47 C.F.R. §§ 27.16, 27.51).

[^1109]: Frontline *700 MHz Public Safety Ninth Notice* Comments at 29.

[^1110]: *See* *700 MHz Further Notice*, 22 FCC Rcd at 8168 ¶ 290. This
    proposal relates to one specific block of 700 MHz Band spectrum, and
    is separate from PISC's proposal for open access provisions
    applicable to CMRS spectrum generally in the 700 MHz Band, as
    discussed elsewhere in this Second Report and Order. *See also*
    Frontline *700 MHz Public Safety Ninth Notice* Comments at 30;
    Frontline Mar. 6 Comments in WT Docket No. 06-150 at 16-17;
    Frontline *700 MHz Further Notice Comments* at 4-5; CCIA *700 MHz
    Further Notice Comments* at 6.

[^1111]: Frontline *700 MHz Further Notice* Comments at 19-20.

[^1112]: *See, e.g.,* CCIA *700 MHz Further Notice* Comments at 6;
    Frontine *700 MHz Further Notice* Comments at 16-23; PISC *700 MHz
    Further Notice* Comments at 12-29.

[^1113]: *See, e.g.*, CTIA *700 MHz Further Notice* Comments at 17-19;
    Qualcomm *700 MHz Further Notice* Comments at 11-12; Verizon
    Wireless *700 MHz Further Notice* Comments at 45-49, 51; AT&T *700
    MHz Further Notice* Reply Comments at 16-17; CTIA *700 MHz Further
    Notice* Reply Comments at 11, 12; MetroPCS *700 MHz Further Notice*
    Reply Comments at 37 n.113, 40; USD Cellular *700 MHz Further
    Notice* Comments at 23-24.

[^1114]: WFCI *Ex Parte*, WT Docket No. 06-150 (filed June 7, 2007) at
    2-5.

[^1115]: RCC *700 MHz Further Notice* Reply Comments at 47.

[^1116]: Arcadian *700 MHz Further Notice* Reply Comments at 5.

[^1117]: NPSTC *700 MHz Further Notice* Reply Comments at 9.

[^1118]: *See* Cyren Call *700 MHz Further Notice* Comment*s* at 24-29;
    CTIA *700 MHz Further Notice* Comments at 18, 23; Alltel *700 MHz
    Further Notice* Comments at 6; MetroPCS *700 MHz Further Notice*
    Comments at 52-55; AT&T *700 MHz Further Notice* Reply Comments at
    16-17; CTIA *700 MHz Further Notice* Reply Comments at 12; MetroPCS
    *700 MHz Further Notice* Reply Comments at 33-34; Stelera *700 MHz
    Further Notice* Reply Comments at 6.

[^1119]: Cyren Call *700 MHz Further Notice* Comments at 26; *see also
    id.* at 29 (Commission should not tie the partnership to a business
    model with an "uncertain commercial reception and unknown level of
    acceptance").

[^1120]: Google *700 MHz Further Notice* Comments at 8-9.

[^1121]: *See*, *e.g.*, NPSTC July 6, 2007 *Ex Parte* at 2; APCO *700
    MHz Further Notice* Reply Comments at 5.

[^1122]: NPSTC July 6, 2007 *Ex Parte* at 2.

[^1123]: NPSTC *700 MHz Further Notice* Reply Comments at 8-9. Cyren
    Call expresses similar concerns, and states that there are a number
    of "compelling reasons for rejecting the requirement the 'open
    access' 'wholesale' model." Cyren Call *700 MHz Further Notice*
    Comments at 28 (stating that a shared network will have multiple
    levels of priority access, encryption, and other forms of secured
    communications requirements, which raise significant unanswered
    questions vis-à-vis an open access requirement).

[^1124]: *700 MHz Further Notice*, 22 FCC Rcd at 8162 ¶ 274; Frontline
    *700 MHz Public Safety Ninth Notice* Comments at 32-33; Frontline
    Mar. 6 Comments in WT Docket No. 06-150 at 21.

[^1125]: *See* Frontline *700 MHz Further Notice* Comments at 24-25
    (roaming requirement "will promote and protect competition by
    enabling mid-sized and rural carriers to remain viable wireless
    competitors in a concentrated market.").

[^1126]: *See* Frontline *700 MHz Public Safety Ninth Notice* Comments
    at 32-33; Frontline Mar. 6 Comments in WT Docket No. 06-150 at 21;
    CCIA *700 MHz Further Notice Comments* at 7; Cellular South *700 MHz
    Further Notice Comments* at 19-20; Frontline *700 MHz Further Notice
    Comments* at 4-5, 14-21; Google *700 MHz Further Notice Comments* at
    8-9; CCIA *700 MHz Further Notice Reply Comments* at 6-7; Cellular
    South *700 MHz Further Notice Reply Comments* at 19-20.

[^1127]: *See* CTIA *700 MHz Further Notice Comments* at 18; Cyren Call
    *700 MHz Further Notice Comments* at 24-29; MetroPCS *700 MHz
    Further Notice Comments* at 52, 54; NENA *700 MHz Further Notice
    Comments* at 8; CTIA *700 MHz Further Notice Reply Comments* at 18;
    Cyren Call *700 MHz Further Notice Reply Comments* at 24-29;
    MetroPCS *700 MHz Further Notice Reply Comments* at 52, 54; NENA
    *700 MHz Further Notice Reply Comments* at 8.

[^1128]: Cyren Call *700 MHz Further Notice* Comments at 26.

[^1129]: *See* Reexamination of Roaming Obligations of Commercial Mobile
    Radio Service Providers, Automatic and Manual Roaming Obligations
    Pertaining to Commercial Mobile Radio Services, WT Docket No.
    05-265, *Memorandum Opinion & Order and Notice of Proposed
    Rulemaking*, 20 FCC Rcd 15047, 15048 ¶ 2 (2005) ("*Roaming
    Reexamination NPRM*").

[^1130]: *See* Frontline *700 MHz Further Notice* Comments at 24-25
    (roaming requirement "will promote and protect competition by
    enabling mid-sized and rural carriers to remain viable wireless
    competitors in a concentrated market.").

[^1131]: *See* Frontline Mar. 26 *Ex Parte* in WT Docket No. 06-150 and
    06-169 and PS Docket No. 06-229 at 8. *See also* 47 C.F.R. § 20.18
    (establishing E911 requirements for CMRS providers); 5 U.S.C. § 603
    (CALEA); 47 C.F.R. Part 1, Subpart Z (establishing requirements
    under CALEA).

[^1132]: *See* Frontline Mar. 26 *Ex Parte* in WT Docket No. 06-150 and
    06-169 and PS Docket No. 06-229 at 8.

[^1133]: USCC *700 MHz Further Notice* Comments at 21.

[^1134]: *Section 68.4(a) of the Commission's Rules Governing Hearing
    Aid-Compatible Telephones*, Report and

    Order, 18 FCC Rcd 16753, 16764-66 (2003).

[^1135]: *See 700 MHz Commercial Services Notice*, 22 FCC Rcd at 9388-90
    ¶¶ 99-103.

[^1136]: *See, e.g.*, CTIA *700 MHz Commercial Services Notice* Comments
    at 21 ("With respect to wireless services, such an approach is
    dictated by the public safety and public interest determinations
    underlying the Commission's E911 and HAC rules, as well as
    fundamental principles of regulatory parity."); *see also* NENA *700
    MHz Commercial Service Notice* Comments at 6 (Commission should make
    the E911 requirements of Section 20.18 of the Commission's rules
    applicable to all services operating in the 700 MHz Band that meet
    the functional criteria set forth in Section 20.18(a) of the rules).

[^1137]: NENA *700 MHz Commercial Services Notice* Comments at 6.

[^1138]: *Id*.

[^1139]: Frontline July 3, 2007 *Ex Parte* at 1-2.

[^1140]: *See* *700 MHz Report and Order*, 22 FCC Rcd at 8108-21 ¶¶
    120-150. We note that while the Commission concluded that providers
    of digital CMRS in the 700 MHz Commercial Services Band, among
    others, should be subject to hearing aid-compatibility requirements,
    it declined to impose such requirements until an appropriate
    technical standard for compatibility is established, and it
    established a 24-month period to provide time for the development of
    such a standard. *See id.* at 8108-21 ¶¶ 142-150.

[^1141]: We also note that we are not mandating wholesale services in
    this band.

[^1142]: We therefore express no opinion as to the applicability of any
    particular regulatory obligation to providers of wholesale broadband
    network capacity.

[^1143]: *See*, *e.g.*, *Upper 700 MHz Report and Order*, 15 FCC Rcd
    476, 509-513 ¶¶ 81-92 (2000).

[^1144]: 47 C.F.R. Part 20.

[^1145]: *See* 5 U.S.C. § 604.

[^1146]: In particular, this exemption extends to the requirements
    imposed by Chapter 6 of Title 5, United States Code, Section 3 of
    the Small Business Act (15 U.S.C. 632) and Sections 3507 and 3512 of
    Title 44, United States Code. Consolidated Appropriations Act 2000,
    Pub. L. No. 106-113, 113 Stat. 2502, Appendix E, Sec.
    213(a)(4)(A)-(B); *see* 145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47
    U.S.C.A. 337 note at Sec. 213(a)(4)(A)-(B).

[^1147]: *Id*.

[^1148]: Each licensee has waived its right to contest such license
    modifications under Section 316 of the Act. *See* Access
    Spectrum/Pegasus July 6, 2007 *Ex Parte;* Access Spectrum/Pegasus
    July 13, 2007 *Ex Parte*; Access Spectrum/Pegasus July 26, 2007 *Ex
    Parte*.

[^1149]: Each licensee has agreed to surrender its 700 MHz Guard Band B
    Block licenses to the Commission. *See* Access Spectrum/Pegasus July
    13, 2007 *Ex Parte*; Access Spectrum/Pegasus July 26, 2007 *Ex
    Parte*.

[^1150]: *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).

[^1151]: *See* Service Rules for the 698-746, 747-762 and 777-792 MHz
    Bands, WT Docket No. 06-150, Revision of the Commission's Rules to
    Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC
    Docket No. 94-102, Section 68.4(a) of the Commission's Rules
    Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309,
    Biennial Regulatory Review -- Amendment of Parts 1, 22, 24, 27, and
    90 to Streamline and Harmonize Various Rules Affecting Wireless
    Radio Services, WT Docket 03-264, Former Nextel Communications, Inc.
    Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the
    Commission's Rules, WT Docket No. 06-169, Implementing a Nationwide,
    Broadband, Interoperable Public Safety Network in the 700 MHz Band,
    PS Docket No. 06-229, Development of Operational, Technical and
    Spectrum Requirements for Meeting Federal, State and Local Public
    Safety Communications Requirements Through the Year 2010, WT Docket
    No. 96-86, *Report and Order and Further Notice of Proposed
    Rulemaking*, 22 FCC Rcd 8064 (2007) (*700 MHz Report and Order* and
    *700 MHz Further Notice*, respectively).

[^1152]: *See* Service Rules for the 698-749746, 747-762 and 777-792 MHz
    Bands, WT Docket No. 06-150, Revision of the Commission's Rules to
    Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC
    Docket No. 94-102, and Section 68.4(a) of the Commission's Rules
    Governing Hearing Aid-Compatible Telephones, WT Docket No. 01-309,
    *Notice of Proposed Rule Making, Fourth Further Notice of Proposed
    Rule Making, and Second Further Notice of Proposed Rule Making*, 21
    FCC Rcd 9345, 9394 (2006) ("*700 MHz Commercial Services Notice");*
    Former Nextel Communications, Inc. 01-309, Biennial Regulatory
    Review -- Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and
    Harmonize Various Rules Affecting Wireless Radio Services, WT Docket
    03-264, Former Nextel Communications, Inc. Upper 700 MHz Guard Band
    Licenses and Revisions to Part 27 of the Commission's Rules,
    Development of Operational, Technical and Spectrum Requirements for
    Meeting Federal, State and Local Public Safety Communications
    Requirements Through the Year 2010, WT Docket Nos. 06-169 and 96-86,
    *Notice of Proposed Rule Making*, 21 FCC Rcd 10413, 10440 (2006)
    ("*700 MHz Guard Bands Notice*");");, Implementing a Nationwide,
    Broadband, Interoperable Public Safety Network in the 700 MHz Band,
    PS Docket No. 06-229, Development of Operational, Technical and
    Spectrum Requirements for Meeting Federal, State and Local Public
    Safety Communications Requirements Through the Year 2010, WT Docket
    No. 96-86, *Ninth Report and Order and Further Notice of Proposed
    Rule Making*, 2121*Rulemaking*, 22 FCC Rcd 14837, 14853 (2006)
    ("8064 (2007) (*700 MHz Public Safety Ninth Report and Order* and
    *700 MHz Further Notice""*, respectively*)*.

[^1153]: *See* 5 U.S.C. § 604.

[^1154]: In particular, this exemption extends to the requirements
    imposed by Chapter 6 of Title 5, United States Code, Section 3 of
    the Small Business Act (15 U.S.C. 632) and Sections 3507 and 3512 of
    Title 44, United States Code. Consolidated Appropriations Act 2000,
    Pub. L. No. 106-113, 113 Stat. 2502, Appendix E, Sec.
    213(a)(4)(A)-(B); *see* 145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47
    U.S.C.A. 337 note at Sec. 213(a)(4)(A)-(B).

[^1155]: 5 U.S.C. § 604(a)(3).

[^1156]: 5 U.S.C. § 601(6).

[^1157]: 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."

[^1158]: 15 U.S.C. § 632.

[^1159]: *See* SBA, Programs and Services, SBA Pamphlet No. CO-0028, at
    page 40 (July 2002).

[^1160]: Independent Sector, The New Nonprofit Almanac & Desk Reference
    (2002).

[^1161]: 5 U.S.C. § 601(5).

[^1162]: U.S. Census Bureau, Statistical Abstract of the United States:
    2006, Section 8, pages 272-273, Tables 415 and 417.

[^1163]: 13 C.F.R. § 121.201, NAICS code 517211.

[^1164]: 13 C.F.R. § 121.201, NAICS code 517212.

[^1165]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 5, NAICS code 517211 (issued Nov. 2005).

[^1166]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^1167]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 5, NAICS code 517212 (issued Nov. 2005).

[^1168]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^1169]: *See* Service Rules for the 746-764 MHz Bands, and Revisions to
    Part 27 of the Commission's Rules, *Second Report and Order*, 15 FCC
    Rcd 5299 (2000).

[^1170]: *Id*. at 5343 ¶ 108.

[^1171]: *Id*.

[^1172]: *Id*. At 5343 ¶ 108 n.246 (for the 746-764 MHz and 776-704 MHz
    bands, the Commission is exempt from 15 U.S.C. § 632, which requires
    Federal agencies to obtain Small Business Administration approval
    before adopting small business size standards).

[^1173]: *See* "700 MHz Guard Bands Auction Closes: Winning Bidders
    Announced," *Public Notice*, 15 FCC Rcd 18026 (2000).

[^1174]: *See* "700 MHz Guard Bands Auctions Closes: Winning Bidders
    Announced," *Public Notice*, 16 FCC Rcd 4590 (WTB 2001).

[^1175]: Service Rules for the 746-764 and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission's Rules, *Second Memorandum
    Opinion and Order*, 16 FCC Rcd 1239 (2001).

[^1176]: *See* "Auction of Licenses for 747-762 and 777-792 MHz Bands
    (Auction No. 31) Is Rescheduled," *Public Notice*, 16 FCC Rcd 13079
    (WTB 2003).

[^1177]: *See* Reallocation and Service Rules for the 698-746 MHz
    Spectrum Band (Television Channels 52-59), *Report and Order*, 17
    FCC Rcd 1022 (2002).

[^1178]: *Id.* at 1087-88 ¶ 172.

[^1179]: *Id.*

[^1180]: *Id.* at 1088 ¶ 173.

[^1181]: *See* Letter to Thomas Sugrue, Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission, from
    Aida Alvarez, Administrator, Small Business Administration, dated
    August 10, 1999.

[^1182]: *See* "Lower 700 MHz Band Auction Closes," *Public Notice*, 17
    FCC Rcd 17272 (WTB 2002).

[^1183]: *See* "Lower 700 MHz Band Auction Closes," *Public Notice*, 18
    FCC Rcd 11873 (WTB 2003).

[^1184]: *Id*.

[^1185]: *See* subparts A and B of Part 90 of the Commission's Rules, 47
    C.F.R. §§ 90.1-90.22. Police licensees include 26,608 licensees that
    serve state, county, and municipal enforcement through telephony
    (voice), telegraphy (code), and teletype and facsimile (printed
    material). Fire licensees include 22,677 licensees comprised of
    private volunteer or professional fire companies, as well as units
    under governmental control. Public Safety Radio Pool licensees also
    include 40,512 licensees that are state, county, or municipal
    entities that use radio for official purposes. There are also 7,325
    forestry service licensees comprised of licensees from state
    departments of conservation and private forest organizations that
    set up communications networks among fire lookout towers and ground
    crews. The 9,480 state and local governments are highway maintenance
    licensees that provide emergency and routine communications to aid
    other public safety services to keep main roads safe for vehicular
    traffic. Emergency medical licensees (1,460) use these channels for
    emergency medical service communications related to the delivery of
    emergency medical treatment. Another 19,478 licensees include
    medical services, rescue organizations, veterinarians, persons with
    disabilities, disaster relief organizations, school buses, beach
    patrols, establishments in isolated areas, communications standby
    facilities, and emergency repair of public communications
    facilities.

[^1186]: *See* 13 C.F.R. § 121.201 (NAICS code 517212); U.S. Census
    Bureau, 2002 Economic Census, Subject Series: Information,
    "Employment Size of Establishments for the United States: 2002,"
    Table 2, NAICS code 517212.

[^1187]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Employment Size of Establishments for the United
    States: 2002," Table 2, NAICS code 517212.

[^1188]: *Id.*

[^1189]: U.S. Census Bureau, 2002 NAICS Definitions, "334220 Radio and
    Television Broadcasting and Wireless Communications Equipment
    Manufacturing";
    <http://www.census.gov/epcd/naics02/def/NDEF334.HTM#N3342>.

[^1190]: 13 C.F.R. § 121.201, NAICS code 334220.

[^1191]: U.S. Census Bureau, American FactFinder, 2002 Economic Census,
    Industry Series, Industry Statistics by Employment Size, NAICS code
    334220 (released May 26, 2005);
    [http://factfinder.census.gov](http://factfinder.census.gov/). The
    number of "establishments" is a less helpful indicator of small
    business prevalence in this context than would be the number of
    "firms" or "companies," because the latter take into account the
    concept of common ownership or control. Any single physical location
    for an entity is an establishment, even though that location may be
    owned by a different establishment. Thus, the numbers given may
    reflect inflated numbers of businesses in this category, including
    the numbers of small businesses. In this category, the Census
    breaks-out data for firms or companies only to give the total number
    of such entities for 2002, which was 929.

[^1192]: *Id*. An additional 18 establishments had employment of 1,000
    or more.

[^1193]: *See* U.S. Census Bureau, "2002 NAICS Definitions: 511210
    Software Publishers";
    <http://www.census.gov/epcd/naics02/def/NDEF511.HTM>.

[^1194]: 13 C.F.R. § 121.201, NAICS code 511210.

[^1195]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization)," Table 4, NAICS code 511210 (issued Nov. 2005).

[^1196]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Professional, Scientific, and Technical Services, "Establishment and
    Firm Size (Including Legal Form of Organization)," Table 4, NAICS
    code 541511 (issued Nov. 2005).

[^1197]: 5 U.S.C. § 603(c).

[^1198]: *See* McBride *700 MHz Further Notice* Comments at 11.

[^1199]: *See, e.g.,* Google *700 MHz Further Notice* Comments at 7-8.

[^1200]: *See Aloha 700 MHz Further Notice Comments at 7-8; Blooston 700
    MHz Further Notice Comments at 10; Cellular South 700 MHz Further
    Notice Comments at 16; Leap 700 MHz Further Notice Comments at 9;
    MetroPCS 700 MHz Further Notice Comments at 22; RCA 700 MHz Further
    Notice Comments at 18; RTG 700 MHz Further Notice Comments at 16.*

[^1201]: Frontline *700 MHz Further Notice* Comments, Exhibit 1 at
    22-23.

[^1202]: *See, e.g.*, McBride Spectrum Partners, LLC *700 MHz Further
    Notice* Comments at 4-8; Blooston Rural Carriers *700 MHz Further
    Notice* Comments at 7; Council Tree Communications, Inc. *700 MHz
    Further Notice* Reply Comments at 5-7.

[^1203]: *See* 5 U.S.C. § 801(a)(1)(A).

[^1204]: *See* 5 U.S.C. § 604(b).

[^1205]: *See* Report to Congress on the Study to Assess Short-Term and
    Long-Term Needs for Allocations of Additional Portions of the
    Electromagnetic Spectrum for Federal, State and Local Emergency
    Providers, Federal Communications Commission ¶ 5 (rel. Dec. 21,
    2005).

[^1206]: Implementation of Section 6002(b) of the Omnibus Budget
    Reconciliation Act of 1993; Annual Report and Analysis of
    Competitive Market Conditions with Respect to Commercial Mobile
    Services, WT Docket No. 06-17, *Eleventh Report*, 21 FCC Rcd 10, 947
    ¶ 2 (2006).

[^1207]: *Id*. at 10,964 ¶ 41 (2006).

[^1208]: *Id.* at 11,008 ¶ 154.

[^1209]: *Id.*

[^1210]: Federal Trade Commission, Internet Access Task Force, Broadband
    Connectivity Competition Policy FTC Staff Report (rel. June 27,
    2007).

[^1211]: *Id*. at 9.

[^1212]: *Id*. at 157.

[^1213]: *Id*. at 155.

[^1214]: *Id*.

[^1215]: *See* Skype Communications S.A.R.L.; Petition to Confirm A
    Consumer's Right to Use Internet Communications Software and Attach
    Devices to Wireless Networks, RM-11361 (filed Feb. 20, 2007).

[^1216]: *See* Implementation of Sections 3(N) and 332 of the
    Communications Act Regulatory Treatment of Mobile Services, *Second
    Report and Order*, 9 FCC Rcd 1411, 1418 ¶15 (1994).

[^1217]: *See, e.g.*, *Skype Petition*.

[^1218]: As of Dec. 2005, the market power of Cingular Wireless (now
    AT&T) is 26.8 percent and that for Verizon Wireless is 25.4 percent.
    *See 2006 Wireless Competition Report* at Table 4. *See also*
    Interconnection and Resale Obligations Pertaining to Commercial
    Mobile Radio Services, *Fourth Report & Order*, 15 FCC Rcd 13523,
    13528 ¶ 12 (2000) (explaining that "*Carterfone* involved AT&T, the
    dominant provider of telecommunications at that time .... \[t\]hus,
    the Commission has not applied principles established there to
    interconnection to carriers without significant market power, such
    as CMRS providers").

[^1219]: *See* [Robert W. Hahn *et al*., The Economics of "Wireless Net
    Neutrality]{.smallcaps}" (AEI-Brookings Joint Center for Regulatory
    Studies 2007).

[^1220]: *See 2006 Wireless Competition Report*, 21 FCC Rcd at 10,967 ¶
    50.

[^1221]: *Id*.

[^1222]: *Id.* at 10,967 ¶ 51.

[^1223]: *Id*.