Before the

**Federal Communications Commission**

**Washington, DC 20554**

+--------------------------------+---+--------------------------------+
| In the matter of               | ) | WT Docket No. 99-168           |
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| Service Rules for the 746-764  | ) | CS Docket No. 98-120           |
| and 776-794 MHz Bands, and     | \ |                                |
| Revisions to Part 27 of the    | ) | MM Docket No. 00-83            |
| Commission's Rules             | \ |                                |
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| Carriage of the Transmissions  | \ |                                |
| of Digital Television          | ) |                                |
| Broadcast Stations             | \ |                                |
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| Review of the Commission's     | \ |                                |
| Rules and                      | ) |                                |
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| Policies Affecting the         | ) |                                |
| Conversion to Digital          | \ |                                |
| Television                     | ) |                                |
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+--------------------------------+---+--------------------------------+

**MEMORANDUM OPINION AND ORDER**

**AND FURTHER NOTICE OF PROPOSED RULEMAKING**

**Adopted: June 22, 2000 Released: June 30, 2000**

**Comment Date: August 16, 2000**

**Reply Comment Date: September 15, 2000**

By the Commission: Commissioner Ness issuing a statement; Commissioners
Furchtgott-Roth and Tristani approving in part, dissenting in part, and
issuing separate statements.

I. INTRODUCTION AND EXECUTIVE SUMMARY
[2](#introduction-and-executive-summary)

II\. BACKGROUND [4](#background)

III\. MEMORANDUM OPINION AND ORDER [5](#memorandum-opinion-and-order)

A. TECHNICAL ISSUES [5](#technical-issues)

1\. TDD Technologies [5](#tdd-technologies)

2\. Out-of-band and Spurious Emission Limits
[9](#out-of-band-and-spurious-emission-limits)

3\. Special Considerations for Use of Channels 65, 66, and 67
[12](#special-considerations-for-use-of-channels-65-66-and-67)

4\. Desired-to-Undesired Signal Ratio
[13](#desired-to-undesired-signal-ratio)

5\. Other Technical Issues [14](#other-technical-issues)

B. CONVENTIONAL TELEVISION BROADCAST ISSUES
[15](#conventional-television-broadcast-issues)

1\. Inter-Service Flexibility: Preclusion of Conventional Broadcast
Services
[15](#inter-service-flexibility-preclusion-of-conventional-broadcast-services)

2\. Transition to DTV and Voluntary Relocation of Incumbent Broadcast
Licensees
[16](#transition-to-dtv-and-voluntary-relocation-of-incumbent-broadcast-licensees)

3\. Regulatory Parity with New Broadcast-Type Services
[29](#regulatory-parity-with-new-broadcast-type-services)

C. GUARD BANDS [29](#guard-bands)

D. LICENSING RULES [30](#licensing-rules)

1\. Spectrum Cap [30](#spectrum-cap)

2\. Geographic Area Licensing [31](#geographic-area-licensing)

E. COMPETITIVE BIDDING [32](#competitive-bidding)

1\. Auction Procedures [32](#auction-procedures)

2\. Exclusion of Small Businesses [33](#exclusion-of-small-businesses)

IV\. FURTHER NOTICE OF PROPOSED RULEMAKING
[34](#further-notice-of-proposed-rulemaking)

Cost-Sharing Rules [35](#cost-sharing-rules)

B. ADDITIONAL BAND CLEARING PROPOSALS
[36](#additional-band-clearing-proposals)

1\. Three-Way Voluntary Transition Agreements.
[36](#three-way-voluntary-transition-agreements.)

2\. Secondary Auctions [38](#secondary-auctions)

3\. Additional Proposals to Accelerate the Digital Television
Transition.
[41](#additional-proposals-to-accelerate-the-digital-television-transition.)

4\. Band Clearing Relating to the Auction of Channels 52-59.
[41](#band-clearing-relating-to-the-auction-of-channels-52-59.)

V. Procedural Matters AND ORDERING CLAUSES
[42](#procedural-matters-and-ordering-clauses)

**APPENDIX A: PETITIONS FOR RECONSIDERATION**

**APPENDIX B: FINAL RULES**

**APPENDIX C: INITIAL REGULATORY FLEXIBILITY ANALYSIS**

# INTRODUCTION AND EXECUTIVE SUMMARY

1.  In the *700 MHz First Report and Order,* on reconsideration here, we
    adopted service rules for the commercial use of the 747-762 MHz and
    777-792 MHz bands that enable the broadest possible use of this
    spectrum, consistent with sound spectrum management. In developing
    these rules, we were guided by our conclusion in our *Spectrum
    Reallocation Policy Statement*[^1] that a flexible, market-based
    approach is the most appropriate method for establishing service
    rules for this band. In this *Memorandum Opinion and Order* and
    accompanying *Further Notice of Proposed Rulemaking*, we generally
    affirm the service rules we adopted in the *700 MHz First Report and
    Order*, provide additional guidance on the factors we will consider
    when reviewing applications for approval of voluntary agreements
    accelerating the transition of incumbent analog television licensees
    and opening these bands for new 700 MHz licensee use, and seek
    comment on several aspects of the spectrum clearing process.

2.  The *Memorandum Opinion and Order* addresses thirteen petitions for
    reconsideration[^2] seeking changes in service rules and auction
    procedures adopted in the *700 MHz First Report and Order* in this
    proceeding.[^3] Consistent with the spectrum management policies
    described in our *Spectrum Reallocation Policy Statement*,[^4] and
    applied in the *700 MHz First Report and Order*, we affirm the
    paired spectrum band plan and out-of-band emission limits but revise
    certain of our technical rules to help establish a neutral
    regulatory scheme in which competing wireless technologies may
    contend. We anticipate that these revisions will expand
    participation in the auction, and increase the potential for new
    technologies and new service providers to use this spectrum
    intensively and efficiently to offer innovative wireless services.
    Specifically, we take the following actions:

-   We remove the restriction on the operation of base stations in the
    lower band, and mobile, portable and control stations in the upper
    band. We also revise our power limits for fixed and base stations to
    better enable Time Division Duplex (TDD) technologies to operate on
    these bands. In light of these changes, we see no need to revise our
    original, mandatory pairing of lower-band and upper-band spectrum
    blocks.

-   We affirm our decision in the *700 MHz First Report and Order* that
    this band's service rules should be oriented to intensive and
    efficient commercial wireless use, and also enable broadcast-type
    services that can satisfy the technical rules necessary for
    efficient overall use of spectrum. We also affirm our authority to
    consider and grant regulatory requests necessary to implement
    voluntarily negotiated agreements that would expedite the transition
    of incumbent analog television licensees from these frequencies. We
    find that voluntary clearing agreements between 700 MHz licensees
    and TV incumbents would generally advance the public interest and
    further the statutory scheme. We also provide guidance regarding our
    treatment of specific regulatory requests necessary to implement
    such voluntary arrangements. This additional guidance includes,
    *inter alia*, a presumption in favor of approving such regulatory
    requests in certain circumstances, and a recognition of the
    must-carry obligation of cable systems with regard to broadcasts of
    digital television programming. This guidance should provide greater
    certainty to potential bidders and incumbent broadcasters, which
    reflects our interest in facilitating the early clearance of
    incumbent broadcast stations on channels 59-69 through voluntary
    means. Voluntary agreements have the potential of facilitating both
    the provision of next-generation and Internet wireless services and
    the transition to DTV by these incumbent broadcast stations.

-   In the *Further Notice of Proposed Rulemaking*, we seek comment on
    three aspects of the spectrum clearance process. First, we ask
    whether cost-sharing rules would assist in achieving the goals of
    clearing the 700 MHz band for new services and accelerating the
    transition to DTV or whether, as we tentatively conclude,
    cost-sharing arrangements should be left to negotiations among
    successful bidders. As a general matter, cost-sharing rules would
    require that, when a 700 MHz licensee reaches a voluntary agreement
    with a TV incumbent to clear its channel, other 700 MHz licensees
    benefiting from the agreement share in paying at least some portion
    of the compensation to the incumbent. Second, we seek comment on
    possible three-way voluntary relocation agreements involving new 700
    MHz licensees, incumbent broadcasters in channels 59-69, and
    broadcasters with operations on lower channels, particularly those
    in the core spectrum (channels 2-51). Under such agreements, a
    broadcaster with an allotment on a lower channel would free up one
    of its channels for relocation by a broadcaster operating in
    channels 59-69. Finally, we seek comment on "secondary auctions."
    These auctions would allow incumbent television broadcasters to
    offer "options" for sale to new 700 MHz licensees, which would help
    incumbent broadcasters and 700 MHz licensees to reach mutually
    beneficial arrangements to help clear the spectrum and facilitate
    the transition to DTV.

3.  By taking these steps, we seek to promote the broadest possible use
    of this spectrum, consistent with sound spectrum management and the
    Congressional mandate to auction this spectrum quickly.[^5]

# BACKGROUND

4.  The *700 MHz First Report and Order* adopted a band plan and
    associated service rules for the assignment of licenses in 30
    megahertz of the 700 MHz band (747-762 and 777-792 MHz).[^6] We
    determined in the *700 MHz First Report and Order* that traditional
    television broadcasting and lower-powered wireless services could
    not effectively share these bands. We concluded that combining these
    technically disparate services on the same band would both constrain
    the effective use of the band, and create additional uncertainty and
    complexity for potential bidders' efforts to assess the usefulness
    of the band for specific service configurations. We did, however,
    permit other forms of broadcasting service on these 30 megahertz,
    provided they comply with the technical rules governing the 700 MHz
    band. We determined in the band plan to configure the 30 megahertz
    of spectrum in two paired bands: a 10 MHz band, designated Block C
    (747-752 and 777-782 MHz); and a 20 MHz band, designated Block D
    (752-762 MHz and 782-792 MHz).[^7] Each paired band constitutes a
    spectrum block on which auction bids will be based, on a Economic
    Area Grouping (EAG) basis, as specified in the *700 MHz First Report
    and Order*. Power limits and out-of-band emission (OOBE) standards,
    as they affect operations by different wireless technologies within
    these bands, have been established by reference to the C and D
    blocks. Distinct, more stringent OOBE standards have been
    established to protect operations of adjacent public safety
    entities. In the *700 MHz First Report and Order*, we initially
    considered whether expansive inter-service flexibility,
    accommodating both conventional television broadcasting and wireless
    services, was practicable or would seriously compromise the
    intensity and efficiency of spectrum use. Based on our view of the
    constraints such sharing would impose on overall use of the band, we
    determined against such an approach. In subsequent sections of that
    Order we addressed several, more specific issues. Both the broad
    decision against sharing the band with television service, and the
    decisions intended to enable sharing of the band by divergent
    wireless technologies, are challenged by petitioners.[^8]

# MEMORANDUM OPINION AND ORDER 

## TECHNICAL ISSUES

### TDD Technologies 

5.  Adaptive, ArrayComm, TRW, and US WEST ask that we revise our
    technical and service rules set forth in the *700 MHz First Report
    and Order* to better enable the use of TDD technologies.[^9]

#### Power Limits

6.  **[Background]{.underline}**. Adaptive, TRW, and US WEST contend
    that the power limits established in the *700 MHz First Report and
    Order*, which were specified for the upper and lower band segments
    rather than by reference to specific types of equipment (*i.e.*,
    fixed, mobile, and portable transmitters),[^10] effectively preclude
    the deployment of base stations using TDD or other single-channel
    technologies in the upper of the two bands.[^11] Motorola opposes
    application of the same power limits in both bands, asserting that
    doing so would increase the number of potential interference
    scenarios with respect to public safety operations and would also
    introduce additional interference scenarios between Frequency
    Division Duplex (FDD) and TDD-based systems.[^12] BellSouth argues
    that under our current rules, interference could be caused to mobile
    receivers from high power transmissions from TV stations operating
    on Channels 59-56.[^13] It indicates, however, that if base station
    receivers, which are capable of better filtering than mobile
    receivers and are therefore much better able to resist such
    interference, were permitted to receive on the 747-762 MHz
    bands,[^14] there would be significantly less interference to
    commercial operations from adjacent-band TV stations. BellSouth
    therefore recommends 'flipping' the 700 MHz base/mobile allocations
    to require base transmit and mobile receive operations to be in the
    777-792 MHz band, and mobile transmit and base receive operations to
    be in the 747-762 MHz band.

7.  **[Discussion]{.underline}**. With regard to the service rules'
    effect on TDD-based services and technologies, we are persuaded that
    our current rules on power limits would inadvertently and
    unnecessarily limit the potential for new and innovative service
    offerings on these bands. As discussed below, we therefore revise
    the power limits applicable to base station operations.

8.  The *700 MHz First Report and Order* adopted power limits that
    established the 30 watt ERP constraint on mobile, fixed, and control
    stations in the upper, 777-792 MHz band, while base and fixed
    stations in the lower band were allowed to utilize up to 1000 watts
    ERP. On reconsideration, we allow base, fixed, portable, mobile, and
    control stations on both the upper and lower bands, subject to the
    consistent application of the power limits already adopted for the
    various types of stations. As Adaptive correctly notes, we did not
    intend to restrict deployment of TDD or other single-channel
    technologies in these bands, as evidenced by the discussion in the
    *700 MHz First Report and Order* of such technologies.[^15] We also
    agree with Adaptive and TRW that our service rules will be more
    technologically neutral if we establish power limits appropriate to
    each type of operation (fixed, mobile, and control stations), as we
    did in the rules for broadband PCS,[^16] rather than designate the
    upper and lower bands for particular types of operations.[^17] To
    the extent that interested parties seek to develop or expand
    TDD-based services into these bands, our power limits should not,
    however unintentionally, burden such innovative technology or
    services.

9.  We find that such a change should not cause additional interference
    for public safety operations. While Motorola correctly notes that
    allowing either commercial base or mobile stations to operate on
    either band would result in an increase in the *number* of potential
    interference scenarios, Motorola has not provided any analysis
    indicating that, in fact, such an increase would cause greater
    overall interference to public safety operations. With regard to
    interference from mobile stations operating in the lower band, we
    conclude that our originally adopted OOBE standard is responsive to
    the potential "mobile-to-mobile" interference scenario[^18] that
    already exists as a result of mobiles operating in the upper band,
    and will similarly protect public safety operations from harmful
    interference from lower band mobile transmissions. Likewise,
    although permitting base station operations in the upper band also
    raises the possibility of "base-to-mobile" interference into the
    764-776 MHz public safety band, this interference condition should
    be addressed by the uniform 76 + 10 log P OOBE limit that is applied
    to fixed stations operating in the upper band.[^19] Finally,
    although the revisions we make in our technical rules create various
    base-to-base and mobile-to-mobile interference scenarios between FDD
    and TDD licensees that would not arise if TDD were restricted, we
    note that Motorola has not argued that the 43 + 10 log P internal
    OOBE standard will not satisfactorily address these cases; nor have
    any potential 700 MHz licensees intending to operate FDD systems
    indicated any concern in this respect.

10. Accordingly, on reconsideration we revise Section 27.50 of our Rules
    to allow 1000 watt ERP base and fixed stations in both the lower and
    upper bands, and to allow 30 watt ERP mobile and control stations,
    as well as 3 watt ERP portables, in both the upper and lower 700 MHz
    bands.[^20] These revisions will enable TDD-based technologies to
    use either the upper or lower bands, or both, as circumstances
    warrant. These revisions will also address the concerns raised by
    BellSouth with regard to potential interference to mobile receivers
    from TV stations operating on Channels 56-59 by allowing commercial
    licensees to use the upper band for "mobile receive" operations. We
    believe the altered rule will broaden the range of technologies and
    potential services represented in the auction process, and better
    enable the market to evaluate the asserted benefits of those
    technologies and services, without causing additional interference
    to public safety operations.

#### Paired Spectrum Bands

11. **[Background]{.underline}**. ArrayComm raises a second issue: the
    mandatory pairing of spectrum bands.[^21] The pairing of spectrum,
    ArrayComm contends, requires a bidder seeking to use TDD technology
    to purchase twice the spectrum its technology needs, and to incur
    the additional risk and uncertainty of reselling the unused spectrum
    block in the post-auction market.[^22] ArrayComm asserts that, while
    the pairing of bands had a defensible "technical predicate" in the
    early stages of two-way wireless mobile services, because paired
    bands were essential to avoid self-interference in the duplex mode,
    to continue a mandatorily paired service structure when more
    efficient single-channel technologies have been developed is
    "counterproductive to technological advancement."[^23] US WEST
    contends, however, that modifying the power limits is a more
    appropriate and measured means of enabling TDD-based services than
    eliminating the frequency pairings.[^24]

12. **[Discussion]{.underline}**. We have decided not to alter our
    determination to establish spectrum blocks and assign licenses
    consisting of paired bands. The upper and lower band spectrum blocks
    were initially established in the *Reallocation Report and* Order*.*
    The Commission's subsequent adoption in the *700 MHz First Report
    and Order*,[^25] of a band plan and mandatory pairing of spectrum
    blocks for the assignment process, reflected an assessment that the
    most commonly-used transmission procedure for PCS, cellular, and
    other established mobile and fixed wireless applications, requires
    paired spectrum. Furthermore, we agree with US WEST's contention
    that modifying the power limits would be a better means for enabling
    TDD operations than eliminating frequency pairing. Additionally, as
    the *700 MHz First Report and Order* noted, the majority of comments
    in the record favored the pairing of these bands.[^26]

#### OOBE Standards

13. **[Background]{.underline}**. The third issue, raised by ArrayComm,
    is whether the OOBE standards adopted to govern interference between
    adjacent commercial licensees operating within the 30 megahertz
    channels, sometimes referred to as "internal" OOBE standards, are
    sufficient to protect potential TDD-based applications on these
    bands.[^27] ArrayComm argues that the internal OOBE standards
    adopted by the *700 MHz First Report and Order* implicitly accept
    the prospect of interference, because they are set at much lower
    levels than the external OOBE standards adopted to protect
    operations on adjacent public safety bands.[^28] According to
    ArrayComm, the *700 MHz First Report and Order* fails to recognize
    that single-channel technologies are especially vulnerable to OOBE,
    and merit more stringent OOBE standards.[^29]

14. **[Discussion]{.underline}**. We affirm the internal OOBE limits we
    established in the *700 MHz First Report and Order.* On the record
    before us, we conclude that a modification of the internal, 43 + 10
    log P out-of-band emission limit adopted in the *700 MHz First
    Report and Order* to protect commercial service operators from one
    another is not demonstrated to be necessary to protect TDD-based
    technologies.[^30]

15. ArrayComm asks that we tighten this standard, and TRW and Adaptive
    similarly assert that the Commission should establish OOBE limits at
    levels now set for the public safety bands.[^31] ArrayComm argues
    that the adoption of the more stringent 76 + 10 log P standard to
    protect public safety is an "implicit admission" that other,
    non-public safety users are likely to receive interference from the
    43 + 10 log P emission mask, and adds that such interference will be
    more harmful where it involves dissimilar technologies.[^32]
    ArrayComm argues that TDD technologies will be more vulnerable to
    FDD emissions than vice versa, because the TDD uplink and downlink
    share a single frequency block.[^33] TDD advocates also assert that
    expanding the application of the OOBE standards adopted to protect
    public safety operations to provide greater protection of different
    commercial technologies will not significantly burden FDD-based
    services.[^34]

16. We decline to make the changes recommended by petitioners. As an
    initial matter, petitioners have not provided any technical analysis
    demonstrating why the current 43 + 10 log P limit would not be
    sufficient to protect commercial TDD systems.[^35] Furthermore, we
    note that the limits advocated by petitioners, those that we adopted
    to minimize interference to public safety bands, were adopted in
    direct response to a statutory mandate that public safety entities
    be particularly protected. While all licensees are entitled to
    protection from interference, we must take extra care with public
    safety licensees, as the statute *requires* such protection and any
    interference could potentially jeopardize the life-saving services
    facilitated by public safety operations in the 700 MHz band. Parties
    commenting on the matter of OOBE limits in the *700 MHz First Report
    and Order* proceeding expressed concern that establishing stringent
    OOBE limits to protect public safety would adversely affect
    commercial licensees' ability to utilize the 700 MHz spectrum,
    specifically indicating that a strict limit could prevent the
    deployment of wideband CDMA technologies.[^36] In response to these
    concerns, we adopted limits aimed at protecting public safety
    without compromising the commercial viability of the 747-762 MHz and
    777-792 MHz bands.[^37]

17. We therefore conclude that to revise our technical standards in the
    manner sought by the TDD advocates would effectively limit technical
    systems that could operate in this band. Specifically, we find that
    the internal OOBE limits proposed by the TDD petitioners would
    seriously jeopardize the usefulness of the spectrum for other
    potential licensees operating on the 747-762 MHz and 777-792 MHz
    bands. Without a greater demonstration of the need for additional
    protection between TDD and other commercial licensees in this
    spectrum, we decline to revise our internal OOBE standards.[^38]
    However, we do believe that users of TDD technology are entitled to
    protection from interference from adjoining bands. Thus, in the
    event that sufficient, valid evidence is presented supporting
    instances of interference, we would take action in an effort to
    minimize such interference.

### Out-of-band and Spurious Emission Limits

18. **[Background]{.underline}.** The *700 MHz First Report and Order*
    established several distinct out-of-band emission (OOBE) standards
    tailored to address specific interference management concerns.
    Certain of those limits are challenged by petitioners. We previously
    considered the assertion by TDD advocates that the 43 + 10 log P
    standard for OOBE within the commercial bands is not sufficiently
    stringent to enable effective sharing of the band between TDD and
    FDD technologies. Here, we consider contentions by APCO and FLEWUG
    that we should further strengthen the substantially more stringent
    OOBE limits originally adopted in the *700 MHz First Report and
    Order* to protect adjacent public safety operations, and US WEST's
    countervailing assertion that these limits should be substantially
    eased.

19. Specifically, APCO asserts the 76 + 10 log P standard for base
    stations is too low, and should be increased to the 87 + 10 log P
    level. APCO indicates that this change would significantly reduce
    the size of typical "coverage holes" created for public safety
    operations by commercial base station transmitters.[^39] FLEWUG, for
    its part, states that a more stringent OOBE is necessary to protect
    adjacent public safety receivers.[^40] It suggests that we adopt an
    OOBE limit of 80 + 10 log P for emissions into the 764-776 and
    794-806 MHz bands from commercial base and fixed transmitters
    operating in the 747-762 MHz band, and a minimum bandwidth limit, on
    the order of 200 kHz, for such base and fixed stations.[^41] FLEWUG
    believes that the OOBE limit adopted for commercial mobile
    transmitters (*i.e.*, the OOBE limit of 65 + 10log P) will
    adequately protect public safety mobile receivers in the 764-776 MHz
    band, provided a minimum limit on transmitter bandwidth is also
    adopted. It also contends that a slightly more stringent OOBE limit
    of 70 + 10 log P for emissions into the 794-806 MHz band from
    commercial mobile transmitters is needed to protect public safety
    base receivers, and should be accompanied by a minimum allowable
    bandwidth on the order of 200 kHz.[^42]

20. In contrast, US WEST asserts our more stringent OOBE standards were
    adopted without meaningful opportunity to determine if they are
    genuinely necessary to protect public safety and despite the present
    absence of public safety use of the spectrum and of commercially
    available equipment for such use.[^43] US WEST states that the
    limited discussion of the standards' impact on deployment of next
    generation wireless services and "efficient and intensive use" of
    spectrum is compounded by the limited discussion of the means by
    which public safety licensees can minimize OOBE concerns.[^44] US
    WEST argues that the Commission also should require public safety
    licensees to cooperate with commercial licensees in resolving
    adjacent channel interference, and allow licensees to negotiate
    alternative OOBE limits, using 43 + 10 log P as a minimum
    requirement.[^45] In addition, US WEST suggests that we adopt a 65
    +10 log P limit, rather than our 76 + 10 log P limit, for base
    stations operating below 30 feet HAAT.

21. **[Discussion]{.underline}.** We are not persuaded that the OOBE
    standards adopted to protect public safety operations should either
    be relaxed or be made more stringent. Our adopted OOBE limits were
    based on the views of NTIA, FLEWUG, and Motorola, as well as other
    parties, but did not accept any specific analysis as determinative.
    Rather, they reflect a carefully considered effort to protect public
    safety, while enabling the viability of the commercial 700 MHz band,
    which Congress also directed us to establish.[^46]

22. We first reaffirm our adoption of our 76 + 10 log P limit to protect
    public safety operations from 30 megahertz base stations and fixed
    stations -- a limit that is substantially more stringent than the
    43 + 10 log P limit we adopted to protect non-public safety
    operations in this band. While APCO is correct that a more stringent
    limit (*e.g*., 87 + 10 log P) would even further reduce the size of
    coverage holes surrounding commercial base stations, we find that
    the areas of interference that might exist as a result of our
    adopted OOBE limit would be sufficiently small. In adopting our 76 +
    10 log P OOBE limit for base and fixed stations, we attempted to
    provide significant protection to public safety operations, and we
    remain confident that this standard will achieve our goal. APCO
    states that the aggregate interference from multiple sites could be
    a concern, and that we should therefore adopt more conservative OOBE
    limits as a way of addressing this issue. However, APCO does not
    provide any supporting information that would quantify this effect.
    Accordingly, we do not believe there is a basis for our
    reconsideration of our OOBE limits based on the present size of
    coverage holes surrounding commercial base stations.

23. FLEWUG has proposed that we adopt more stringent OOBE standards than
    the 76 + 10 log P limit we adopted for base and fixed stations, and
    the 65 + 10 log P limit we adopted for mobiles and portables.[^47]
    We appreciate FLEWUG's input in this proceeding and its efforts to
    provide us with its best recommendations for protecting public
    safety systems from interference. However, the limits proposed by
    FLEWUG (*i.e.*, 80 + 10 log P for base and fixed stations and 70 +
    10 log P for mobiles and portables) are only incrementally greater
    than those we have already adopted. We do not believe that such an
    increase is necessary in order to achieve an adequate level of
    interference protection for public safety. We must balance the
    additional protection to public safety caused by such an increase
    against the impact of such an increase on commercial providers. We
    believe the original rules strike an appropriate balance on this
    issue.

24. FLEWUG also proposes that, in conjunction with its recommended OOBE
    limits, we require a minimum allowable bandwidth for commercial
    systems of 200 kHz as a further means of providing protection to
    public safety. We do not believe that such a restriction is
    necessary to protect public safety operations. While this
    restriction would, according to FLEWUG, reduce required distance
    separations between commercial transmitters and public safety
    receivers to preclude interference, we do not believe that, given
    the strict OOBE limit we have adopted (which we believe adequately
    protects public safety), it is necessary to increase this protection
    further by adopting this additional restriction. Furthermore,
    adopting stricter limits adds a significant cost: we expect that
    this proposed additional restriction is likely to preclude or
    constrain various technologies that licensees may otherwise
    reasonably seek to employ in the 700 MHz band. For these reasons, we
    decline to adopt this proposal.

25. US WEST, in arguing for less stringent OOBE limits to protect public
    safety, asserts that, rather than applying our 76 + 10log P limit
    uniformly for all base stations, we should apply an OOBE limit of
    65 + 10 log P for base stations with antennas below 30 feet HAAT.
    However, US WEST provides no analysis to demonstrate how that limit
    would provide adequate protection to public safety receivers.[^48]
    FLEWUG disagrees with US WEST's proposal, and provides an analysis
    of the interference that would result from base stations operating
    below 30 ft HAAT. Based on this analysis, FLEWUG concludes that our
    decision to adopt more stringent limits on OOBE for 700 MHz
    commercial transmitters is correct. We agree with FLEWUG that we
    should not adopt a separate, lesser OOBE standard for base stations
    operating below 30 feet HAAT.

26. US WEST also asserts that less stringent OOBE standards will provide
    sufficient protection to public safety bands, and therefore urges us
    to allow for negotiations between commercial and public safety
    entities on alternative limits, with 43 + 10 log P as a minimum or
    "fallback" standard. FLEWUG disagrees with this approach, arguing
    that our decision to enforce our OOBE requirements through the type
    acceptance process is correct, and "is necessary for the successful
    development of interoperable systems for law enforcement." As a
    threshold matter, US WEST has not provided information to support
    the reduction in protection that the 43 + 10 log P standard
    represents.[^49] Equally fundamentally, we do not believe that this
    approach will result in appropriate protection for public safety
    systems, as required by statute. That is, even if a commercial
    entity successfully negotiates a lower OOBE limit with one or more
    public safety licensees operating within a particular geographic
    area, additional public safety systems could be licensed to operate
    in that area in the future; we would be concerned that once the
    commercial entity commences operation, all such future public safety
    systems would be subject to the previously arranged interference
    protection criteria. We conclude that only the adoption of a strict
    OOBE limit for commercial equipment will ensure the degree of
    interference protection we seek for all public safety systems. We
    therefore reject this proposal.

27. With regard to US WEST's claim that we adopted stringent OOBE
    standards to protect public safety in the absence of commercially
    available public safety equipment,[^50] we note that we have
    properly adopted OOBE standards for other wireless services (*e.g*.,
    Broadband and Narrowband PCS, *etc*.) prior to the development and
    manufacture of equipment designed to operate in those services. We
    also agree with FLEWUG's conclusion that the OOBE limits necessary
    to protect public safety receivers could be established without
    knowledge of the specific technologies deployed by public safety
    agencies.[^51] We therefore conclude that it is entirely appropriate
    for us to have adopted OOBE limits to protect public safety
    equipment.

### Special Considerations for Use of Channels 65, 66, and 67

28. **[Background]{.underline}.** The second harmonic transmissions of
    services that will be operating on TV channels 65-67 fall within a
    band used for radionavigation in the Global Navigation Satellite
    System (GNSS), which includes the Global Positioning System (GPS),
    the United States component of the GNSS, at 1563.42-1587.42 MHz. GPS
    involves critical safety-of-life applications, particularly those
    systems that will use GPS for aeronautical radionavigation. Thus, in
    addition to balancing public safety and commercial interests, we
    were also required in the *700 MHz First Report and Order* to adopt
    a band plan and associated technical rules that would ensure that
    the GNSS is protected adequately against interference without
    adopting OOBE limits on equipment operating in the 777-792 MHz band
    that could effectively prohibit the use of this band by new 30
    megahertz licensees. Based on the evidence of record, including the
    recommendation of NTIA, we adopted the following OOBE limits for all
    spurious emissions, including harmonics, that fall within the
    1559-1610 frequency range, from equipment operating in the 747-762
    MHz and 777-792 MHz bands: (1) for wideband emissions, -70 dBW/MHz
    equivalent isotropically radiated power (EIRP); and (2) for discrete
    emissions of less than 700 Hz bandwidth, an absolute EIRP limit of
    --80 dBW.[^52] On reconsideration, USGPS contends that the limits we
    have adopted will not prevent harmful interference to GPS, and that,
    if we adopt a default standard, absent case-by-case studies, it
    should be an OOBE limit of -100 dBW/MHz for wideband
    operations.[^53]

29. **[Discussion]{.underline}.** We continue to disagree with USGPS's
    arguments that our adopted emission limits are insufficient to
    protect GPS operations. USGPS has made these and similar arguments
    in this proceeding and in other contexts, which we have
    rejected.[^54] As we stated in the *700 MHz First Report and Order*,
    we are concerned that operations in the 700 MHz bands not adversely
    affect critical safety-of-life applications of GPS, particularly
    those systems that will use GPS for aeronautical
    radionavigation.[^55] We continue to believe, however, that an OOBE
    limit of -70 dBW/MHz EIRP for wideband emissions and an absolute
    EIRP limit of --80 dBW for discrete emissions of less than 700 Hz
    bandwidth, suggested by NTIA and adopted in the *700 MHz First
    Report and Order,* will sufficiently protect aeronautical
    radionavigation operations and will "ensure that fixed and mobile
    equipment will not cause radio frequency interference to the GNSS
    when those systems are used for precision approach and
    landing."[^56] USGPS has presented no new information on
    reconsideration to support its assertions to the contrary, so we
    here reaffirm the OOBE limits adopted in the *700 MHz First Report
    and Order.* [^57]

### Desired-to-Undesired Signal Ratio

30. **[Background]{.underline}.** Section 27.60 of our rules provides
    technical criteria for the protection of DTV stations from
    co-channel and adjacent channel commercial 700 MHz stations that may
    operate in the 700 MHz band. In developing Section 27.60, we
    incorporated signal-to-noise ratios that were initially designed to
    provide protection to TV stations from public safety transmitters,
    which are narrowband in nature (*e.g*., operating with bandwidths of
    no more than 50 kHz).[^58] MSTV requests that we modify Section
    27.60 to provide more appropriate protection to DTV stations from
    the wideband systems that are likely to be employed in the 30
    megahertz spectrum.[^59]

31. **[Discussion]{.underline}**. We affirm the technical criteria
    adopted in the *700 MHz First Report and Order* for the protection
    of DTV stations from commercial stations that will operate in the
    700 MHz band. MSTV has not submitted any specific proposal or
    analysis that would provide a basis for developing protection
    criteria that differs from the criteria we have adopted. In the
    absence of such a filing, we decline to adopt rules that could
    result in excessive protection to DTV stations, to the detriment of
    future licensees that may operate on the 700 MHz band. It is
    possible that signals emitted by broadband applications may create
    greater potential for interference than envisioned in the original
    rules, which were based on narrowband emissions. However, we believe
    that any interference resulting from such broadband operations
    problems could be resolved through the use of directional receive
    antennas that would provide for the increased rejection of undesired
    signals.

32. We do, however, clarify a statement made in the section of *700 MHz
    First Report and Order* entitled "Canadian and Mexican Border
    Regions." In that section we indicated that licenses issued for the
    700 MHz bands within 120 km of the borders of Canada and Mexico
    would be subject to whatever future agreements the United States
    develops with those two countries. Because, under Section 27.60 of
    our Rules, which describes the required distance separations between
    new 700 MHz licensees and existing Channel 59-68 television
    stations, a new 700 MHz licensee could be required to provide
    protection to TV facilities located more than 120 km from the
    licensee's stations, and because we could adopt this same separation
    criteria with respect to TV stations in Canada and Mexico, the 120
    km distance identified in the *700 MHz First Report and Order* will
    not be applied at this time. Rather, we clarify, simply, that all
    700 MHz licensees will be subject to any future agreements the
    United States develops with Canada and Mexico.

### Other Technical Issues

33. **[Background]{.underline}.** TRW seeks certain reconsiderations or
    clarifications of the *700 MHz First Report and Order*.
    Specifically, it asks that we clarify that the power levels and
    out-of-band emission limits we established should be measured over a
    period of three microseconds. TRW contends that, depending on how
    Section 27.50(a)(4) of our Rules is interpreted, there could be an
    effective constraint on the peak power of a wireless system, which
    could make certain transmissions, such as those of TRW's Spitfire
    system, impracticable in the 776-794 MHz band. It concludes that
    clarifying that power levels be measured over a 3 microsecond time
    period will serve to enable different types of transmissions in the
    700 MHz spectrum. TRW also requests that we clarify Sections
    27.53(c)(4) and 27.53(d)(5) of our Rules to indicate whether the
    references to the 6.25 kHz bandwidth in those rules are intended to
    apply to the resolution bandwidth only, or whether they are intended
    also to reflect the bandwidth to which the measurement must be
    adjusted. Finally, TRW, in conjunction with its request that we
    extend the same OOBE limits applicable to emissions into the public
    safety bands as a general constraint on in-band OOBEs, seeks certain
    additional technical modifications to Section 27.53(c)(3) of our
    Rules to allow for a gradual reduction of the OOBE limit in the
    bands immediately outside and adjacent to the 30 megahertz blocks.
    There were no comments in support of or in opposition to TRW's
    requests.

34. **[Discussion]{.underline}.** With regard to TRW's first request,
    TRW does not provide support for its assertion that Section
    27.50(a)(4) of our Rules could be an effective constraint on the
    peak power of a wireless system. This rule does not limit peak power
    and is waveform- and modulation-independent. We therefore decline to
    adopt TRW's proposal in this regard. As to TRW's request for
    clarification with respect to Sections 27.53(c)(4) and 27.53(d)(5)
    of our Rules, we clarify that our reference to a "resolution
    bandwidth" of 6.25 kHz in those rules practically means that a
    spectrum analyzer must be set so that it measures the energy in a
    6.25 kHz bandwidth. Because spectrum analyzers normally do not have
    a 6.25 kHz resolution bandwidth setting, a 10 kHz or 3 kHz setting
    can be used, with the appropriate -2.04 dB or + 3.18 dB adjustments
    made for the 10 kHz and 3 kHz settings, respectively. Finally,
    because we have declined to modify our adopted in-band OOBE limits
    (*see* discussion above), TRW's request for additional technical
    modifications to Section 27.53 of our Rules is moot, and we thus
    deny its request for such modifications.

## CONVENTIONAL TELEVISION BROADCAST ISSUES

### Inter-Service Flexibility: Preclusion of Conventional Broadcast Services

35. **[Background]{.underline}.** In the *700 MHz First Report and
    Order* we found that the interference and efficiency problems
    generated by spectrum sharing between conventional television
    broadcast services and wireless services effectively precluded the
    provision of both sets of services on this band. Given the
    Congressional intent that this spectrum be recovered from
    conventional broadcast use for the provision of commercial wireless
    services, and the predominant interest in the record in developing
    this spectrum for fixed and mobile wireless use, we adopted
    technical and service rules that effectively preclude conventional
    television broadcast services. [^60]

36. On reconsideration, MSTV argues that excluding high-power
    point-to-multipoint television broadcast services from the 700 MHz
    band contravenes our spectrum allocation for this band, violates our
    flexible use policy, and contradicts Congress's intent that maximum
    flexibility be provided for the use of this band so that the market
    can determine its most efficient use.[^61] MSTV asserts that sharing
    has been successful in the 470-512 MHz band.[^62]

37. APCO opposes MSTV with regard to new conventional television
    operations, asserting that guard bands would not be sufficient to
    protect adjacent public safety operations from a "high power, high
    HAAT broadcast station" over a wide geographic area.[^63] APCO also
    rebuts MSTV's reference to sharing in the 470-512 MHz band; APCO
    asserts that the 90-mile separation requirement works in that band
    "only because land mobile use of the band is limited to specific
    television channels in just eleven metropolitan areas."[^64]
    Motorola similarly states that the 470-512 MHz sharing rules protect
    broadcast services at the expense of land mobile services, even on
    adjacent channels. Motorola argues that the Commission is well
    within its authority to decide against more broadly flexible service
    rules.[^65]

38. **[Discussion]{.underline}.** We reaffirm our decision in the *700
    MHz First Report and Order* regarding conventional television
    broadcast services in these bands. As we stated in the *700 MHz
    First Report and Order,* the interference problem between commercial
    television broadcast services and wireless services arises from the
    fundamental and substantial disparity between the two services'
    characteristic power levels, and the corresponding disparity between
    their transmitter tower heights. These disparities, in conjunction
    with the characteristic limits of receivers' ability to distinguish
    between desired and extraneous signals, inherently create
    disproportionate interference difficulties for the lower-power
    service.[^66] Our determination not to permit sharing between such
    disparate services was not based on an assumption that conventional
    television service has unique interference characteristics, as MSTV
    would have it,[^67] but on our basic understanding, supported by
    experience in the 470-512 MHz context and by Motorola's opposition,
    of the inherent interference effects that such technically disparate
    services have on one another, and the heightened potential for
    interference that naturally arises the greater the underlying
    disparities.

### Transition to DTV and Voluntary Relocation of Incumbent Broadcast Licensees

39. **[Background]{.underline}.** In addition to addressing certain
    technical aspects of the service rules, some petitioners also
    address issues relating to the transition to DTV. The statutory
    mandate that we recover and license the 700 MHz spectrum for
    commercial and public safety uses several years before the target
    for completion of the DTV transition presents additional issues for
    the new uses of this spectrum band.

40. NAB challenges two aspects of our rules for the 700 MHz band, both
    keyed to our treatment of the transition to DTV. First, NAB objects
    to our use of the target date for the completion of the DTV
    transition \-- December 31, 2006 \-- as the basis for setting
    certain regulatory dates for the new commercial licenses. For
    example, in the *700 MHz First Report and Order,* we decided that
    both the license term[^68] and the substantial performance
    deadline[^69] for new commercial licensees should be set at eight
    years after the 2006 target date, or January 1, 2015. NAB contends
    that this approach fails to acknowledge that the 2006 target date
    for completion of the DTV transition may be extended in many
    markets.[^70] NAB asks us to revise the text of the Order and Rules
    to identify "completion of DTV transition"[^71] as the triggering
    event for commencement of the eight-year license term and
    substantial performance period.

41. Second, NAB objects to certain guidance we provided on how we would
    treat voluntary agreements between incumbent broadcasters and new
    700 MHz licensees that could result in some broadcasters moving out
    of the band prior to the conclusion of the DTV transition period. In
    the *700 MHz Notice of Proposed Rulemaking*, we had proposed to
    consider agreements between new licensees in this spectrum and
    licensees of protected, incumbent television stations that would
    compensate incumbents for: (1) converting to DTV-only transmission
    before the end of the statutory transition period; (2) accepting
    higher levels of interference than allowed by the protection
    standards; or (3) otherwise accommodating new licensees.[^72] In the
    *700 MHz First Report and Order,*[^73] noting that Congress had
    directed us to auction 36 MHz for commercial use several years
    before the DTV transition would be completed, we indicated that we
    would consider specific regulatory requests needed to implement
    voluntary agreements between incumbent licensees and new licensees
    for clearing these bands. We articulated the general criteria we
    would apply in reviewing and acting on those requests.[^74]

42. In its petition for reconsideration, NAB contends that accelerated
    clearance of incumbents appears "contrary to Congress' clear intent
    to insure that viewers do not lose their existing analog television
    service during the DTV transition," and argues that the Commission
    does not have discretion to consider whether the public interest
    would be served by approving such specific requests. [^75] In
    support, NAB cites the requirement in Section 337(d)(2) of the
    Communications Act, as amended, that full-service television be
    protected from interference during the transition; Section
    309(j)(14)(B)'s provision for extensions of the 2006 transition
    deadline; and a statement in the Conference Report relating to
    Section 309(j)(14)(B), which explains that the possibility of
    extensions of the transition beyond 2006 is designed "to ensure that
    a significant number of consumers in any given market are not left
    without broadcast television service as of January 1, 2007."[^76]
    NAB also argues that granting regulatory requests to accommodate the
    use of the 700 MHz band by new wireless licensees conflicts with the
    long-standing policy of preserving free broadcast television,
    evidenced in 1992 Cable Act, which requires cable systems to
    dedicate a portion of their channels to local broadcast
    stations.[^77]

43. Motorola, APCO, SEG, and US WEST, on the other hand, agree that the
    Commission has the authority to approve, and should approve,
    voluntary agreements to clear the 700 MHz band of incumbent
    broadcasters on an accelerated basis.[^78] For example, Motorola
    vigorously supports the need for additional Commission involvement
    in promoting the voluntary removal of the incumbent
    broadcasters.[^79] Motorola asserts that use of spectrum for public
    safety deserves "at least equal consideration" with continued
    over-the-air broadcast service.[^80]

44. **[Discussion]{.underline}.** While we understand the concerns
    raised by NAB, we conclude that its arguments do not require us to
    modify our approach here. First, we do not agree with NAB that we
    have improperly defined the license term and substantial performance
    deadline for new 700 MHz licensees. To the contrary, our order and
    the accompanying Rules expressly recognize that the DTV transition
    deadline of December 31, 2006 is a "soft" target that may be
    extended in individual markets if the provisions of Section
    309(j)(14) are met. Second, we disagree with NAB's view that we lack
    authority to facilitate the early relocation of incumbent broadcast
    licensees, pursuant to voluntary agreements between the parties. We
    find instead that the pertinent provisions of the Balanced Budget
    Act of 1997, as well as the overall statutory scheme, support our
    authority to consider regulatory requests necessary to implement
    such voluntary agreements. In our view, both the transition to DTV
    and clearance of this spectrum will generally be furthered, not
    frustrated by such voluntary agreements.

45. In response to NAB's first point, we note that Section 27.13(b) of
    our Rules, as amended, states, in pertinent part, that "initial
    authorizations for the 746-764 MHz and 776-794 MHz bands will extend
    until January 1, 2015."[^81] Both the "substantial performance" and
    TV protection requirements are referenced to this date. When we
    established the 14-year license term in the *700 MHz First Report
    and Order,* we noted that the 2006 DTV transition deadline "may be
    extended under particular circumstances set forth in 47 U.S.C. §
    309(j)(14)(B), including for those markets where 15 percent or more
    households do not have access to either DTV-equipped receivers or
    multi-channel video."[^82] We explained that we were setting a
    definite license term, rather than one dependent on the actual date
    on which incumbent broadcasters complete their digital television
    transition, in view of the fact that each geographic licensing area
    will have a number of incumbent broadcasters. In this environment,
    it made sense to us to use the common target date for completion of
    the DTV transition as the basis for setting the license term and
    performance deadlines. The alternative would be to have an
    unspecified reference date, and, by implication, an indefinite
    license term. We note that, even from the very beginning of the new
    license terms, much of the licensed spectrum will be available in
    many parts of each geographic area, so it is not the case that the
    band will have no value to the new licensee until completion of the
    DTV transition. Moreover, it is our hope that before the end of 2006
    additional parts of the band will be cleared as the result of
    voluntary agreements between broadcasters and licensees.[^83] Thus,
    we find that the revisions NAB suggests to the *700 MHz First Report
    and Order* and the accompanying Rules are unnecessary.

46. With respect to NAB's second point, which addresses the possibility
    of voluntary agreements being reached by incumbent broadcasters and
    new 700 MHz licensees, we affirm our statutory authority to review
    and approve regulatory requests necessary to implement such
    agreements. NAB does not identify any specific aspect of our
    well-settled statutory authority to make spectrum allocation
    decisions by rulemaking,[^84] to review licensees' requests for
    modification of license, [^85] or even subsequently to adjust
    allocations and the terms and conditions governing individual
    licenses,[^86] as having been altered---either by the legislative
    enactments that authorize development of advanced television
    service, or by the later enactments directing recovery of the 700
    MHz band for commercial and public safety uses. Indeed, we find that
    Sections 309(j)(14) and 337(d)(2), and the accompanying legislative
    history cited by NAB, support our authority to facilitate the early
    relocation of incumbent broadcasters. Section 309(j)(14) contains an
    outside limit to continued analog operations (until December 31,
    2006), subject to the possibility of an extension upon request of a
    station, and satisfaction of the stated requirements for such an
    extension. While this Section thus entitles a broadcaster to request
    and receive an extension of the 2006 transition deadline if it is
    operating in a market with a defined low DTV penetration rate,
    nothing in Section 309(j)(14) requires the broadcaster to request
    (or the Commission to impose *sua sponte*) an extension of the
    deadline, and nothing in this Section requires the broadcaster to
    continue operating in both analog and digital modes prior to this
    deadline. In managing the transition to DTV, we have, as a general
    matter, prohibited broadcasters from terminating their analog
    service early,[^87] but we have modified that general approach in
    this proceeding to accommodate voluntary agreements that will,
    without an undue adverse effect on the public's overall receipt of
    broadcasting service, expedite the full commercial and public safety
    use of the 700 MHz spectrum specified in Section 337.

47. To infer, as does NAB, that the provisions of Section 309(j)(14)
    have stripped the Commission of its discretion to consider the
    public interest benefits of these voluntary agreements and to
    approve them under appropriate circumstances, would reduce the
    Commission's authority over broadcast licensing matters, including
    the transition from analog to digital television licensing. Under
    accepted rules of statutory construction, such a change in an
    agency's existing statutory authority should be stated expressly and
    not implied.[^88]

48. As demonstrated above, however, the statutory language contains no
    express, or even implied, restriction on the Commission's
    jurisdiction to consider the voluntary agreements at issue. Indeed,
    even the inferences that NAB draws from the legislative history are
    misplaced. Specifically, the cited statement in the Conference
    Report -- which explains why the legislators were providing the
    broadcasters with the option under certain circumstances of seeking
    an extension of the 2006 transition deadline -- avers that this
    extension option is designed to "ensure that a significant number of
    consumers in any given market are not left without broadcast
    television service as of January 1, 2007,"[^89] not to ensure that
    every station remains on the air or that every individual receives
    the exact same service he or she was receiving prior to the
    transition. Accordingly, the standards we intend to follow in
    considering a request for approval of a voluntary agreement to make
    an early transition to digital operations are designed to ensure
    that such an agreement does not deprive a substantial number of
    viewers of their overall broadcast television service.

49. We are similarly unpersuaded by NAB's contention that Section
    337(d)(2) demonstrates Congress' intent to ensure that viewers did
    not lose their existing analog television service, whether through
    early relocation or by interference from new 700 MHz licensees. With
    regard to interference from new 700 MHz licensees, the Part 27
    service rules do not permit new licensees to infringe on the
    continued protection afforded incumbent television licensees, and
    NAB does not assert the contrary. Rather, the service rules, in
    conjunction with the Commission's broad authority to deal with
    interference issues and review requests to modify licenses,[^90]
    permit incumbents to voluntarily negotiate reductions in their
    protection from interference. We do not construe Section 337(d)(2)
    to preclude such voluntary arrangements by incumbents, and will
    review such proposals under the guidelines described below.

50. We also find misplaced NAB's reliance on the "must carry" provisions
    of the 1992 Cable Act, which require cable system operators to
    dedicate a portion of their channels to local broadcast signals. We
    remain committed to maintaining the established, close relationship
    between "must carry" provisions and free, over-the-air
    broadcasting.[^91] In this context, the record in the DTV proceeding
    indicates that incumbent licensees operating on UHF channels 52-69
    are significantly burdened by the expense of constructing and/or
    operating a second channel, whether analog or digital, in spectrum
    that will eventually be foreclosed to conventional
    broadcasting.[^92] Assistance from incoming 700 MHz licensees that
    negotiate clearance agreements with incumbent broadcasters will ease
    these burdens. In some instances these agreements may provide
    sufficient funds to enable incumbents, whether commercial or
    noncommercial, to achieve a smooth DTV transition that otherwise
    would have been problematic. We expect that incumbents will enter
    into such agreements only when they determine that the long term
    viability of their service will be improved thereby. The overall
    effect of voluntary agreements that result in an infusion of capital
    to incumbent broadcasters, should, in our view, be a strengthening
    of the free, over-the-air DTV service ultimately provided by channel
    59-69 incumbents.

51. We further affirm that we possess authority to review and approve
    regulatory requests made in connection with voluntary agreements as
    part of our authority, under the statutory scheme as a whole, to
    take steps to manage the electromagnetic spectrum in the manner that
    most effectively facilitates the transition of this spectrum from
    conventional broadcast to commercial and public safety use. We have
    general authority over spectrum management issues,[^93] that allows
    us to take steps necessary and appropriate to ensure the efficient
    use of spectrum, including spectrum to be assigned via competitive
    bidding. Section 309(j) of the Act confers authority on the
    Commission to assign licenses by competitive bidding and requires
    that the Commission "reclaim and organize the electromagnetic
    spectrum" in a manner consistent with the broad objectives of the
    grant of competitive bidding authority.[^94] Those objectives
    include "development and rapid deployment of new technologies,
    products, and services for the benefit of the public, including
    those residing in rural areas,"[^95] and "efficient and intensive
    use of the electromagnetic spectrum."[^96] Certainly where such
    voluntary agreements contemplate the modification of an incumbent
    broadcaster's license to permit an accelerated transition to DTV, we
    have authority under Section 307(b), when considering "applications
    for licenses, and modifications and renewals," to make "such
    distribution of licenses, frequencies, hours of operation, and of
    power among the several States and communities as to provide a fair,
    efficient, and equitable distribution of radio service to each of
    the same."[^97] Our authority under Section 4(i), in conjunction
    with Sections 303, 307(b), 308, 309(j), and 316, authorizes us to
    "perform any and all acts" necessary in the execution of the
    Commission's functions, also supports our authority to review
    voluntary agreements between incumbent broadcast licensees and new
    700 MHz licensees to accelerate the transition to DTV.[^98]

52. We conclude that Congressional enactments addressing the DTV
    transition and the transition of this spectrum to commercial
    wireless services support our finding of authority to review and
    approve regulatory requests necessary to implement such voluntary
    agreements. Both Section 337, which first directed the reallocation
    and assignment of 60 megahertz of the 700 MHz band to public safety
    and commercial use, and the subsequent Consolidated Appropriations
    Act,[^99] which further accelerated the schedule for auctioning the
    commercial band segments, enable the Commission to facilitate
    initiation of commercial wireless service several years prior to
    conclusion of the DTV transition. We conclude that facilitating
    voluntary agreements to transition to DTV allocations---which will
    lead to the expeditious recovery of the 700 MHz television spectrum
    for use in providing other services---is consistent with Congress'
    instruction to the Commission that the original or additional
    television license be surrendered pursuant to Commission
    regulation,[^100] and with the statutory framework of licensing this
    spectrum for commercial use prior to the end of the DTV transition.

53. We thus conclude that we have the authority to review regulatory
    requests necessary for parties to implement the voluntary agreements
    described above, and that voluntary agreements between incumbent
    broadcast licensees and new 700 MHz licensees, if properly
    structured, will further the broad public interest in intensive and
    efficient use of the radio spectrum.[^101] Such agreements should
    facilitate the provision of new wireless services to all
    Americans,[^102] should help make available to the public safety
    community needed new spectrum that Congress has mandated be
    allocated for public safety use,[^103] and should help expedite a
    transition to DTV for broadcasters who might need assistance to
    implement such a transition. Such voluntary agreements are
    consistent with the legislative purposes of achieving an orderly DTV
    transition and expeditiously recovering this spectrum.[^104]

54. The importance of clearing the spectrum was stressed by a number of
    commenters, including AirTouch, BellSouth, Motorola, and APCO, who
    urge us to take additional steps to "encourage more rapid clearing"
    of this spectrum."[^105] BellSouth, for instance, asks us to
    promulgate rules that will enable new 700 MHz licensees to negotiate
    with incumbents.[^106] Similarly, Motorola supports additional
    Commission involvement in promoting the voluntary release of their
    700 MHz channels by incumbent broadcasters.[^107] As we noted in the
    *700 MHz First Report and Order*, the rapidly expanding demand for
    wireless voice and data services and the increased spectrum
    necessary to support wideband applications to be implemented with
    next generation technologies confirm that these bands should be
    structured to enable their efficient and intensive use for wireless
    services and technologies.

55. Also as stated in the *700 MHz First Report and Order*, in reviewing
    voluntary agreements, we must weigh as well the benefits associated
    with recovery of the spectrum for new wireless uses against loss of
    service to the broadcast community of license. Loss of broadcasting
    service has been a long-recognized detriment to the public interest.
    The fundamental importance of over-the-air broadcast service is
    recognized by legislative and judicial determinations, and our own
    practice in reviewing specific instances of loss of service.[^108]
    Where a licensee seeks to reduce service in ways that do not enable
    a new operator to use the spectrum, we have regarded the loss of
    broadcast service, even for a transitional period, as a particularly
    serious issue in a public interest balance.[^109] In the past, the
    Commission has required that stations withdrawing or downgrading
    existing service justify that action by establishing offsetting
    considerations that demonstrate the public generally will be
    benefited.[^110]

56. We have carefully considered the weight to be accorded such losses
    that arise as part of the 700 MHz band licensing process, both from
    a broad policy perspective and in the review of specific regulatory
    requests. From the broader perspective, we have determined, as
    described above, that the several statutory purposes involved here
    are best furthered by enabling voluntary agreements that result in
    the expeditious and efficient recovery of these frequencies for the
    legislatively specified commercial and public safety purposes. In
    relying on the voluntary judgment of incumbent broadcast licensees
    with a direct interest in strengthening their transition to DTV, we
    believe our policy serves the longer-term public interest in
    sustaining over-the-air television, notwithstanding the limited and
    temporary losses of service that may result. We also note that the
    over-the-air service involved here is scheduled to terminate as part
    of the DTV transition, and Congress has directed us to auction and
    license these frequencies on an expedited schedule well in advance
    of December 31, 2006. Thus, we find that limited and temporary
    loss-of-service issues here \-- especially when the loss results in
    supplemental resources that can be expected to expedite the arrival
    of advanced services and strengthen the individual licensee's
    longer-term viability as a DTV provider -- do not raise concerns
    that prevent us from entertaining regulatory requests in connection
    with voluntary agreements. We reach these conclusions based on both
    of two alternative legal rationales -- that recent statutory
    enactments and our policy judgments regarding the transition of 700
    MHz spectrum distinguish our review of regulatory requests in
    connection with voluntary agreements from our historical
    loss-of-service cases, and that our overall policy goals here
    constitute offsetting considerations demonstrating that the public
    generally will be benefited.

57. *Review of Specific Regulatory Requests Necessary for Parties to
    Implement Voluntary Agreements.* We implement these policy judgments
    by providing guidance on the review of regulatory requests arising
    from band clearance agreements between new licensees of this
    spectrum and incumbent broadcast licensees on channels 59-69.[^111]
    For example, Spectrum Exchange asks the Commission to establish a
    "strong presumption" in favor of regulatory requests that would
    clear spectrum in connection with an accelerated transition to
    DTV.[^112] Paxson Communications also supports the adoption of an
    FCC policy for moving DTV allocations from this band.[^113]

58. In implementing our policy of facilitating the clearance of these
    bands to the extent that incumbent broadcasters and new 700 MHz
    licensees voluntarily negotiate agreements toward that end, we make
    two initial observations. First, we believe that private parties
    generally are the best evaluators of their own economic
    circumstances and alternatives and we will not look to second guess
    their business decisions. Our underlying policy premise is that
    voluntary agreements can provide supplemental resources to
    broadcasters that will both expedite their transition to DTV and
    strengthen their economic viability, as well as enable earlier
    delivery of new wireless services, but the private parties should
    determine for themselves, in light of specific circumstances, when
    the economic case is made. When the private parties are satisfied,
    therefore, we will be inclined to grant regulatory requests arising
    from such private commercial arrangements, provided the requests do
    not, on balance, have adverse public policy consequences. Second, we
    note that our role will be limited to weighing the effect on the
    public interest of regulatory requests in connection with such
    agreements. We will not be reviewing the wisdom of the underlying
    private agreements, or, in the normal course, the negotiation
    processes leading to them.[^114]

59. We also implement our policy by establishing a process and specific
    guidance for parties potentially interested in negotiating voluntary
    agreements. To ensure that all public interest issues are readily
    identified, we will require broadcasters that enter into voluntary
    band clearance agreements, when they submit regulatory requests
    arising from those agreements, to provide the public in the
    principal area served by the licensee with the notice required by
    Part 73 of the Commission's Rules for the filing of applications
    involving major modifications.[^115] In addition, we will issue
    public notice of the filing of all regulatory requests requiring our
    approval. Further, we clarify that our review of such requests
    generally will fall within Section 316 of the Act, which grants us
    authority to modify existing licenses in order to "promote the
    public interest, convenience and necessity."[^116] We also note that
    we will consider showings of actual loss of service, rather than
    theoretical loss, resulting from a voluntary agreement.[^117]

60. *Presumption Favoring Grant of Regulatory Requests In Certain
    Circumstances.* Consistent with our overall goals described above,
    we establish a rebuttable presumption that, in certain
    circumstances, substantial public interest benefits will arise from
    a voluntary agreement between a 700 MHz licensee and an incumbent
    broadcast licensee on channels 59-69 that clears the 700 MHz band of
    incumbent television licensees(s).[^118] Our threshold premise is
    that such agreements, by providing supplemental resources to
    incumbent broadcast licensees facing the costs of transition to DTV
    operations, will strengthen the viability of those licensees and
    their ability to provide over-the-air service in the long run, as
    well as enable expeditious delivery of new wireless services, and
    that some temporary loss of over-the-air service is permissible in
    order to realize those benefits. This presumption also reflects our
    preference, as described above, for relying on voluntarily
    negotiated private transactions.

61. Specifically, we will initially presume that the public interest is
    substantially furthered when an applicant demonstrates that the
    grant of its request will both result in certain specific benefits
    and avoid specific detriments. We would recognize such a presumption
    favoring grant of any requests that: (1) would make new or expanded
    wireless service, such as '2.5' or '3G' services, available to
    consumers; [^119](2) would clear commercial frequencies that enable
    provision of public safety services;[^120] or (3) would result in
    the provision of wireless service to rural or other underserved
    communities.[^121] The applicant would also need to show that grant
    of the request would not result in any one of the following: (1) the
    loss of any of the four stations in the designated market area (DMA)
    with the largest audience share;[^122] (2) the loss of the sole
    service licensed to the local community; or (3) the loss of a
    community's sole service on a channel reserved for noncommercial
    educational broadcast service.[^123] We conclude that the
    presumption we establish is consistent with Congress' objectives for
    this spectrum, should generally increase the attractiveness of the
    spectrum to potential 700 MHz licensees, and will facilitate the
    expeditious transition to DTV without undue loss of broadcast
    service.

62. This presumption is not conclusive or dispositive, however. In
    specific cases where the presumption applies, for instance, we would
    consider whether special or unique factors raised by the resulting
    loss of broadcast service would be sufficient to rebut the
    presumption. Also, for regulatory requests to which the presumption
    does not apply, we would consider all the relevant public interest
    factors regarding provision of wireless services, acceleration of
    the DTV transition, and the loss of broadcast service in deciding
    whether or not to approve the request.

63. *Review of Regulatory Requests Not Subject to Presumption.* When the
    presumption described above is not established, or is rebutted, we
    will review regulatory requests by weighing the loss of broadcast
    service and the advent of new wireless service on a case-by-case
    basis.[^124] If, for example, the community temporarily losing its
    only local service is part of a larger market that has a plethora of
    local television signals, and if the service areas of those other
    local signals correspond closely with the service area of the
    station to be temporarily lost, then we would be confident that the
    community would continue to receive substantial over-the-air
    service. Similarly, we would be less concerned regarding the
    community's loss of sole service on a reserved noncommercial
    educational channel if the community receives service from a station
    licensed to another community on a channel that is reserved for
    noncommercial educational service.

64. In reviewing specific requests not subject to the favorable
    presumption, we also would consider as a relevant factor in our
    public interest determination the extent to which the station's
    signal will remain available, after implementation of the agreement,
    to a significant number of its viewers in the licensee's service
    area. For instance, we would find it significant if that signal is
    effectively available to a significant number of current viewers
    through various existing distribution channels, and implementation
    of the voluntary agreement would not create additional TV white or
    gray area.[^125] As part of our review of the continued availability
    of a station's signal we also would consider the extent to which the
    station has made additional arrangements to make its signal
    available to the community.[^126] The availability of alternative
    distribution channels, such as cable and DBS (and, increasingly,
    over-the-air DTV service), can serve a useful role in helping to
    facilitate the transition to DTV, consistent with Congress' intent.
    The availability of a station's signal over these alternative
    technologies, and the extent to which viewers within the incumbent
    broadcasting licensee's Grade B contour receive the station's signal
    over these alternative technologies, will both mitigate and help us
    determine any actual loss of service.

65. We recognize that cable carriage can play an important role as an
    alternative distribution channel during this transition period by
    providing continued service to viewers who would otherwise be
    deprived of broadcast service. Although we will be considering in a
    separate order the scope and manner of cable carriage of digital
    broadcast signals during the transition,[^127] we find that it would
    be helpful to address two limited issues here, in the context of our
    discussion of voluntary band clearing agreements. First, we wish to
    clarify that cable systems are ultimately obligated to accord "must
    carry" rights to local broadcasters' digital signals.[^128] Existing
    analog stations that return their analog spectrum allocation and
    convert to digital are entitled to mandatory carriage for their
    digital signals consistent with applicable statutory and regulatory
    provisions. Second, to facilitate the continuing availability during
    the transition of the analog signal of a broadcaster who is party to
    a voluntary band clearing agreement with new 700 MHz licensees, such
    a broadcaster could, in this context and at its own expense, provide
    its broadcast digital signal in an analog format for carriage on
    cable systems. In these circumstances, nothing prohibits the cable
    system from providing such signals in analog format to subscribers,
    in addition to or in place of the broadcast digital signal, pursuant
    to an agreement with the broadcaster. We will consider the status
    and appropriate duration of these special arrangements and provide
    opportunity for comment, as we review the progress of the digital
    transition in the periodic reviews after 2003.[^129] We will discuss
    the details of the manner of carriage appropriate for digital
    broadcast signals, as well as other technical issues, in a
    forthcoming digital must carry order.

66. We believe that the presumptions and factors we have described in
    the preceding paragraphs will assist parties as they negotiate
    voluntary agreements. Our overarching, long-term goal is to ensure
    the availability of this spectrum for wireless uses, and an
    expeditious transition to digital television that reflects the
    business judgment of individual licensees to the maximum practicable
    extent, consistent with the public interest. The presumptions,
    standards and procedures we establish here should help us, our
    licensees, and the affected public in advancing those goals.

### Regulatory Parity with New Broadcast-Type Services

67. **[Background]{.underline}.** In the *700 MHz First Report and
    Order*, we determined that sharing this band between conventional
    television broadcasting and lower-power wireless services posed
    serious technical difficulties, but permitted other, unspecified
    broadcast-type services to be provided consistent with the Part 27
    rules applicable to these bands.[^130] We did not establish a
    regulatory structure for such offerings, noting that such services
    could differ significantly from existing, conventional broadcasting
    services.[^131] ALTV argues on reconsideration that the Commission
    "must adopt an equivalent regulatory regime" for new services on
    these bands that are similar to broadcast television, and contends
    that to the extent the Commission applies a less regulated structure
    to new broadcast services on these channels, it should accord
    similarly relaxed treatment to stations operating on channels 2-59.

68. **[Discussion]{.underline}**. We decline to develop an "equivalent
    regulatory regime" for broadcast-type services on these bands, as
    suggested by ALTV. ALTV's argument rests on the assumption that
    broadcast-type services that may arise on this band will
    sufficiently resemble conventional television broadcasting to
    justify comparable regulatory treatment of such new services. To the
    extent that new 700 MHz licensees provide services that qualify as
    broadcasting under the Communications Act, they will be subject to
    the statutory provisions of the Act governing broadcast service.
    Other 700 MHz broadcast-type services, however, may differ in
    significant respects from conventional television broadcasting, and
    it would be premature to determine at this juncture the application
    of Commission requirements and policies that are not specifically
    mandated by statute. As discussed above, the power limits originally
    adopted, and as revised herein, effectively preclude services that
    would be comparable, in either technical or operational terms, to
    existing conventional television broadcast services.[^132] The
    geographic regions adopted for assigning licenses in this proceeding
    also differ significantly in scope from the "community of license"
    approach traditionally applied to broadcast licensees. Moreover, the
    record does not indicate what specific, "broadcast-type" services
    are actively contemplated, or the form they might take. Such
    services could include configurations ranging from
    subscription-based data services provided directly by wireless
    entities to, potentially, partnered arrangements involving incumbent
    broadcasters and new Part 27 licensees. As a result, we will not
    attempt at this juncture to anticipate the form or forms that the
    next generation of "broadcast-type" services on these bands may
    take, or to configure a regulatory structure on the basis of
    speculation, but will, as stated in the *700 MHz First Report and
    Order*, determine the applicable regulatory framework in the context
    of the offering of specific, actual services.

## GUARD BANDS

69. **[Background]{.underline}.** In the *700 MHz First Report and
    Order*, we established Guard Bands to protect the immediately
    adjoining public safety licensees on Channels 63, 64, 68, and 69
    from harmful interference from operations on the 30 megahertz
    segment.[^133] These Guard Bands consist of two paired 1 megahertz
    sub-bands at 746 MHz and 776 MHz and two paired 2 megahertz
    sub-bands at 762 and 792 MHz.[^134] In its Petition for
    Reconsideration, MSTV asserts that the Commission has not explained
    why guard bands advance its stated policy of protecting public
    safety licensees. MSTV contends that Guard Bands are inherently
    inimical to the highest-value use of spectrum, and that the
    Commission should protect public safety by enforcing emissions
    limits instead.[^135]

70. **[Discussion]{.underline}.** We continue to believe, as we stated
    in the *700 MHz First Report and Order,* that Guard Bands will
    enable us to protect adjacent public safety bands from harmful
    interference, while allowing for effective commercial use of the
    entire 36 megahertz of spectrum, consistent with sound spectrum
    management.[^136] APCO, TRW, and others concur.[^137] MSTV has
    provided inadequate technical support for its argument that Guard
    Bands will not protect the public safety bands and that the use of
    emission limits alone would afford the degree and certainty of
    protection required for public safety uses in adjacent bands.
    Moreover, we do not find the prior Commission orders cited by MSTV
    to be apposite. For instance, in the *5 GHz Allocation Fourth Report
    and Order*, we refused to consider the creation of guard bands as
    inconsistent with our earlier allocation decision for that
    band.[^138] Here, by contrast, the creation of guard bands furthers
    our earlier allocation decision by enabling the effective and
    efficient use of the spectrum, consistent with the need to protect
    public safety operations in adjacent bands.

## LICENSING RULES

### Spectrum Cap

71. **[Background]{.underline}.** In the *700 MHz First Report and
    Order,* we determined that the 747-762 MHz and 777-792 MHz bands
    should not count against the 45/55 megahertz spectrum cap if used to
    provide CMRS based on our perception that subjecting the existing
    180 megahertz of CMRS spectrum to the CMRS spectrum cap provides a
    sufficient safeguard against consolidation of spectrum. We rejected
    the alternative of including this spectrum in the cap and then
    adjusting the cap upward. In our view, such an approach would
    facilitate reconsolidation within the present CMRS bands and prompt
    concern about reductions in competition and attendant increases in
    prices and diminution in the quality of services provided.

72. On reconsideration, Northcoast asks that we not exempt the 700 MHz
    spectrum from the spectrum cap, because exempting new 700 MHz
    licensees from the cap will put smaller operators at a disadvantage
    in bidding for 700 MHz spectrum against larger operators with a
    substantial competitive position in the CMRS market. [^139]
    Northcoast asserts the CMRS market has not changed so substantially
    in the intervening several months since we decided in the *Spectrum
    Cap Report and Order* to retain the spectrum cap,[^140] to warrant
    the dramatic change adopted for the 700 MHz spectrum.[^141]

73. **[Discussion]{.underline}.** For the reasons set forth in the *700
    MHz First Report and Order*,[^142] we decline to adopt Northcoast's
    suggestion that we extend the CMRS spectrum cap to include 700 MHz
    spectrum. In that Order, we stated that the presence of the CMRS
    spectrum cap for the existing 180 megahertz of CMRS spectrum appears
    to provide a sufficient safeguard against consolidation of spectrum,
    and that next generation applications would benefit from those
    economies of scale provided by licensing on a national or large
    regional basis. In addition, we observed that it was unclear whether
    this spectrum will be used primarily or even substantially for CMRS
    services or for services that are competitive with CMRS, and that,
    in any event, the present level of encumbrance and the extended
    transition period provided for incumbent television broadcasters to
    move out of the band weighed against counting this spectrum against
    the current cap. Contrary to Northcoast's argument, this decision
    was not a dramatic change from our decision in the *Spectrum Cap
    Report and Order* but, rather, was specifically contemplated as a
    possible outcome in that *Order*.[^143]

### Geographic Area Licensing 

74. **[Background and Discussion]{.underline}.** In the *700 MHz First
    Report and Order* we determined to license both the 20 megahertz and
    the 10 megahertz licenses in the 700 MHz band based on the six
    EAGs.[^144] On reconsideration, Rand McNally alleged that this
    constitutes an infringement of their copyright interest in
    Metropolitan Trading Area and Basic Trading Area listings.[^145]
    Rand McNally subsequently made a filing to withdraw its Petition as
    moot,[^146] which we grant in this Order.[^147]

## COMPETITIVE BIDDING

### Auction Procedures 

75. **[Background]{.underline}.** In the *700 MHz First Report and
    Order*, we concluded that we would not implement a combinatorial
    bidding procedure in this auction.[^148] We decided that although
    combinatorial bidding procedures could have significant benefits for
    the auction of licenses in this band, we declined to employ this
    type of auction because of the complexities of design and
    implementation of such bidding procedures, especially in light of
    the statutory auction deadline. We instead directed the Wireless
    Telecommunications Bureau to adopt a nationwide bid withdrawal
    procedure to limit the exposure of bidders seeking a 30 megahertz
    nationwide aggregation at auction, if operationally feasible.[^149]
    On reconsideration, US WEST argues that our nationwide bid
    withdrawal provisions are not sufficiently flexible to accommodate
    the needs of bidders not attempting to acquire a 30 megahertz
    nationwide license.[^150]

76. **[Discussion]{.underline}.** The modified bid withdrawal procedure
    we outlined in the *700 MHz First Report and Order*, was intended to
    accommodate bidders facing the greatest exposure under the standard
    bid withdrawal rule, *i.e.*, those seeking a 30 megahertz nationwide
    license through aggregation. Modifying our procedures to accommodate
    bidders attempting to acquire a combination of licenses other than a
    30 megahertz nationwide combination, as US WEST advocates, would
    present issues of both auction policy and our implementation
    capabilities. We note, however, that there has been significant
    progress in the design and testing of a combinatorial bidding system
    since our adoption of the *700 MHz First Report and Order*. The
    Wireless Telecommunications Bureau recently issued a Public Notice
    seeking comment on a specific combinatorial bidding design for the
    auction of licenses in the 747-762 and 777-792 MHz bands.[^151] With
    the delay of the auction and the continued progress in the design
    and testing of a combinatorial bidding system, we now believe,
    contrary to our conclusion in the *700 MHz First Report and Order*,
    that sufficient time may exist to implement combinatorial bidding.
    We, therefore, no longer wish to rule out the use of a combinatorial
    bidding design for that auction. Accordingly, the Wireless
    Telecommunications Bureau may implement such a design under its
    existing delegated authority if, after review of the comments, it
    finds combinatorial bidding to be appropriate and feasible.[^152]

77. In light of these new developments, we decline to decide at this
    time the issues raised by US WEST regarding the nationwide bid
    withdrawal procedure. Instead, after the Bureau has reviewed the
    record developed in response to the Public Notice and determined
    whether or not to implement a combinatorial bidding design in this
    auction, we will revisit the issues generally raised by US WEST in a
    further reconsideration order to be adopted prior to the due date
    for the filing of short forms and adopt any necessary rule
    changes.[^153]

### Exclusion of Small Businesses

78. **[Background]{.underline}.** In the *700 MHz First* Report *and
    Order*, we adopted for the 746-764 MHz and 776-794 MHz bands a
    definition of a small business as any entity with average annual
    gross revenues for the three preceding years not in excess of \$40
    million, and a definition of a very small business as an entity with
    average annual gross revenues for the three preceding years not in
    excess of \$15 million.[^154] To facilitate these entities'
    participation in the auction, we accorded small businesses a 15
    percent bidding credit and very small businesses a 25 percent
    bidding credit.[^155] We noted that small busineses could
    participate in the auction as part of a consortium of service
    providers, and that our partitioning and disaggregation rules offer
    licensees sufficient flexibility to assign unused spectrum to
    others, including small businesses.[^156] On reconsideration, Nelson
    Repeater Services contends that the large service territories and
    spectrum blocks, coupled with the spectrum's propagation
    characteristics and flexible usage requirements, will attract the
    larger competitors and constitute a *de facto* exclusion of small
    businesses from the 700 MHz licensing process.[^157] Nelson asserts
    that, even with a 25 percent discount, a \$150 million EAG will cost
    ten times the annual revenue cap for a very small business, that
    consortia formation involves significant transaction costs and
    risks, and that the Commission should redraw the geographic
    territories, reduce the size of the spectrum blocks, and/or set
    aside a portion of the 700 MHz spectrum for exclusive bidding by
    smaller businesses.[^158]

79. **[Discussion]{.underline}.** We decline to modify the auction rules
    as Nelson suggests. The definitions we have adopted for small and
    very small businesses parallel those previously applied to broadband
    PCS, 2.3 GHz, and 39 GHz applicants.[^159] The provision of bidding
    credits to promote opportunities for small business participation in
    spectrum auctions has been upheld in *Fresno*,[^160] and the 15 and
    25 percent tiered bidding credits are consistent with the levels
    adopted in the Part 1 proceeding.[^161] Although we solicited
    comment on the capital costs associated with operating in the 700
    MHz bands, we received no responses, and Nelson's petition provides
    no material evidence that our structure of the auction, in terms of
    spectrum block and geographic area size or the size standards and
    bidding credits adopted, effectively precludes all small business
    participation in the 700 MHz auction, including as possible members
    of consortia.

# FURTHER NOTICE OF PROPOSED RULEMAKING

80. As noted in the *Memorandum Opinion and Order*, the 700 MHz band
    potentially can be used for fixed broadband services and a variety
    of third generation mobile services. While higher frequency bands
    might also be used for these purposes, the 700 MHz band provides
    superior propagation characteristics (reduced signal loss through
    buildings, vegetation and other obstructions) and allows use of
    lower cost technology than higher bands. These advantages may be
    vitally important to the viability of wireless as a competitor with
    DSL and cable modem services. These considerations have led us to
    implement policies in the *First Report and Order* and the
    *Memorandum Opinion and Order* that will facilitate voluntary
    band-clearing agreements between 700 MHz licensees and TV
    incumbents.[^162]

81. In addition to encouraging individual band-clearing agreements,
    there may be additional steps we can take to facilitate the
    band-clearing process. In this *Further NPRM*, therefore, we seek
    comment on the following potential mechanisms to further the goals
    of transitioning the 700 MHz band to wireless services. First, we
    seek comment on whether or not we need to adopt cost-sharing rules
    that would spread the cost of band clearing among 700 MHz licensees
    that benefit from the process. Second, we seek comment on additional
    voluntary band clearing mechanisms that would provide alternatives
    to individually negotiated agreements between 700 MHz licensees and
    incumbent broadcasters in the 700 MHz band. One such alternative
    would be "three-way" agreements that would provide for TV incumbents
    in the 700 MHz band to relocate to lower band TV channels that would
    be voluntarily cleared by the lower band TV incumbent. Another
    alternative would be to allow use of "secondary auctions" in which
    700 MHz bidders would bid for the right to enter into band clearing
    arrangements with TV incumbents that wished to clear their channels.
    We seek comment on the viability of these and other alternatives for
    facilitating the voluntary clearing of TV Channels 59-69 in
    connection with the upcoming auction of licenses for this portion of
    the spectrum. In addition, we seek comment on whether any or all of
    these mechanisms could be used to facilitate band clearing of
    Channels 52-58 in connection with our future licensing of this lower
    portion of the spectrum for wireless services.

## Cost-Sharing Rules

82. We seek comment on whether cost-sharing rules would expedite
    clearing the 700 MHz band for use by the new licensees and the
    transition to DTV by incumbent broadcasters, or whether, as we
    tentatively conclude, cost-sharing arrangements should be left to
    negotiations among successful auction bidders. When a 700 MHz
    licensee reaches a voluntary agreement with a TV incumbent to clear
    its channel ("clearing agreement"), other 700 MHz licensees may
    benefit from the agreement as well.[^163] We have at times relied on
    cost-sharing rules to assist in clearing other bands, enabling
    faster deployment of new services.[^164] We tentatively conclude
    that it would not be necessary or appropriate to adopt cost-sharing
    rules in this proceeding, but seek comment on the following issues:
    Would cost-sharing rules be useful or necessary to assist in
    clearing the 700 MHz band? If we do adopt cost-sharing rules, how
    should we calculate the costs that benefiting 700 MHz licensees
    would be required to pay?

83. We note initially our belief that the new 700 MHz licensees may very
    well enter into cost-sharing agreements without Commission rules.
    First, because the 700 MHz band has been allocated based on large
    spectrum blocks and regional licenses, the number of licensees that
    benefit significantly from any particular clearing agreement will be
    small.[^165] Thus, the licensees may be easily able to bargain among
    themselves to reach cost-sharing agreements. Second, because the
    license areas (EAGs) are large, there may be many TV incumbents that
    will need to be relocated in order for each 700 MHz licensee to
    commence operations. This factor may provide a large incentive among
    700 MHz licensees to reach comprehensive cost-sharing agreements
    that provide for the clearing of multiple TV incumbents. For this
    and other reasons, licensees may see the free-rider issue as
    more-or-less symmetrical, making it more likely that they will reach
    cost-sharing agreements. Third, licensees will acquire their
    licenses at the same time. Thus, in contrast to PCS, where different
    bands were licensed sequentially, 700 MHz licensees will know with
    whom they need to bargain to reach cost-sharing agreements. Finally,
    again in contrast to the 2 GHz licensees, 700 MHz licensees are more
    likely to be ready to deploy their services at the same time. Thus,
    the incentives to reach a clearing agreement with a TV incumbent are
    more likely to be similar among the licensees, therefore providing
    additional incentives to reach cost-sharing agreements. In light of
    these factors, we tentatively conclude that we should rely on market
    forces to produce any desirable cost-sharing relationships, but seek
    comment on whether cost-sharing rules are necessary or would be
    useful to assist licensees in reaching clearing agreements with TV
    incumbents.

84. If commenters recommend the adoption of cost-sharing rules, they
    should comment on how we should calculate the costs that benefiting
    700 MHz licensees would be required to pay. In particular, such
    issues would include: which 700 MHz licensees should be required to
    pay a share of the clearing costs; how to calculate each licensee's
    share of the clearing costs;[^166] and how to calculate the overall
    costs we would require licensees to share. Such commenters should
    also comment on whether all licensees that operate within the Grade
    B contour on either the cleared channel or the two adjacent channels
    of a TV incumbent should be required to pay a pro rata share of any
    clearing costs paid to that incumbent. Also, should guard band
    licensees be required to pay a share of the clearing costs, and, if
    so, should their share should be adjusted for the fact that their
    use of the spectrum is more limited than that of the other
    commercial licensees? Parties should also discuss whether we should
    place a cap on the amount of shared costs and, if so, what that cap
    should be.[^167] Finally, commenters recommending adopting
    cost-sharing rules should comment on whether we should consider
    waivers of any cost-sharing requirements for new service providers
    that employ technology that is capable of sharing the 700 MHz band
    without interfering with broadcast transmissions.

85. We also tentatively conclude, however, that under any cost-sharing
    mechanism we might adopt, licensees of the 700 MHz public safety
    spectrum would not be required to pay a share of the clearing costs.
    We believe that it would be inconsistent with the public interest to
    impose such a mandatory burden on public safety licensees, and that
    that public safety licensees are unlikely to have the financial
    ability to pay a share of the clearing costs. Also, we believe that
    imposing large additional costs on public safety licensees could
    harm their ability to protect the public safety. We seek comment on
    this tentative conclusion.

## ADDITIONAL BAND CLEARING PROPOSALS

86. We seek comment on whether there are other mechanisms we could
    implement to facilitate voluntary band clearing. In particular, we
    seek comment on whether there are market-oriented mechanisms that
    might be more efficient to facilitate voluntary band clearing than
    the negotiation of individual band clearing agreements by each 700
    MHz licensee and each TV incumbent.

### Three-Way Voluntary Transition Agreements.

87. We first seek comment on whether, and under what conditions, we
    should consider requests to approve three-way clearing agreements
    that would provide for TV incumbents on television Channels 59-69 to
    relocate to lower band TV channels that, in turn, would be
    voluntarily cleared by the lower band TV incumbents. Pursuant to
    such agreements, the lower band broadcasters would give up one of
    their two channel allotments (either analog or digital), to which
    the Channel 59-69 incumbents would then move their operations. Such
    three-way voluntary relocation agreements could facilitate clearing
    in the 700 MHz band by providing a replacement ("relocation")
    channel for incumbent broadcasters on Channels 59‑69.[^168]

88. In considering three-way transactions, we note that different
    considerations arise depending on whether the relocation channel is
    analog or digital. Where the relocation channel is analog, the lower
    band broadcaster who provides that channel would make an early
    transition to DTV operations, thus freeing up its analog channel to
    be used to relocate either an analog or digital incumbent from
    television Channels 59-69. Where the relocation channel is digital,
    the broadcaster who provides that channel would retain its analog
    allotment, and the Channel 59-69 TV incumbent would begin operations
    on the digital channel that the first operator will no longer
    utilize. The Commission could then permit the lower band broadcaster
    to switch to digital transmission on its analog channel on a date
    certain. In both cases, the new 700 MHz licensee would voluntarily
    negotiate with and, we assume, compensate both the broadcaster who
    provides the relocation channel and the Channel 59-69 TV incumbent
    who moves to the relocation channel.

89. In general, we are seeking comment on voluntary three-way agreements
    that would involve an incumbent in the Channel 59-69 band relocating
    to a "core" channel between Channels 2 and 51, which is not subject
    to future licensing for wireless services. We also seek comment,
    however, on whether we should permit three-way agreements where the
    relocation channel is in the Channel 52-58 band, which will be
    subject to such future licensing. If we permitted such relocations,
    they would obviously be interim in nature, because the incumbent
    relocating to the Channel 52-58 band would ultimately have to clear
    that channel. We recognize that requiring an incumbent to relocate
    twice could result in duplicative costs, additional disruption to
    viewers, and other inefficiencies. On the other hand, this
    alternative could provide more options for clearing incumbents on
    Channels 59-69, and it would not add to the number of incumbent
    stations that would ultimately have to be cleared from Channels 52
    to 58 (because the incumbent clearing the 52-58 channel as part of
    the three-way agreement would otherwise have to be cleared
    eventually). We seek comment on whether potential benefits of
    allowing interim relocation to Channels 52 to 58 are sufficient to
    outweigh the potential costs.

90. We also seek comment on how we should evaluate possible loss of
    service in reviewing specific requests for voluntary relocations. To
    the extent that the Channel 59-69 incumbent's programming continues
    to be provided on a relocation channel after such a voluntary
    agreement, the loss of service analysis discussed in the *Memorandum
    Opinion and Order* would presumably need to be applied not only to
    individuals within the service area of the Channel 59-69 incumbent,
    but also -- separately -- to individuals within the service area of
    the relocation channel.

91. People within the service area of the Channel 59-69 incumbent may in
    some cases lose service because the incumbent chooses to move to the
    relocation channel's facilities, or because the grade B contour of
    the incumbent changes when operating on a different channel from its
    own facilities. In this case, the loss of service analysis would be
    similar to that for two-way clearing agreements. Separately, for
    people within the service area of the relocation channel (including
    people who initially received the signals of both the relocation
    channel and incumbent channel), the analysis would apply to loss of
    programming that was previously provided by the lower band
    relocation channel. This loss of service analysis would also be
    similar to that for two-way clearing agreements, except that it
    would be applied to the individuals located within the service area
    of the relocation channel (as opposed to those individuals within
    the service area of the Channel 59-69 incumbent channel). In
    addition, in some cases, the loss of service analysis may need to be
    supplemented to account for the substitution of the incumbent's
    programming for the programming that was previously available on the
    relocation channel.[^169] We seek comment on this analysis.

92. Assuming that we agree to consider requests to permit voluntary
    three-way clearing agreements to facilitate clearing in the 700 MHz
    band, we seek comment on whether any cost-sharing rules that might
    be established pursuant to the first section of this *Further NPRM*
    should apply to those agreements as well. Also, some commenters have
    suggested that we consider steps other than the review of voluntary
    agreements.[^170] We will entertain comment on whether reliance on
    voluntary agreements will be adequate.

### Secondary Auctions

93. To assist our effort to clear the 700 MHz band for new services and
    accelerate the transition to DTV, we also seek comment on whether,
    in conjunction with this or future auctions in the band (*e.g.*, our
    auction of the Channel 52-59 MHz spectrum), some form of "secondary
    auction" could be used to facilitate band clearing agreements.[^171]
    In a secondary auction, competitive bidding would be used to
    determine the price that would be paid by 700 MHz licensees to TV
    incumbents who agree to clear their channels in the 700 MHz band.
    Such an auction could be organized and conducted on a private basis,
    as proposed by Spectrum Exchange, or could be conducted by the
    Commission. We discuss each of these alternatives below.

94. In its comments in this proceeding and in its recently filed
    petition for rulemaking, Spectrum Exchange argues in favor of
    conducting a private voluntary auction for clearing the
    spectrum.[^172] Under Spectrum Exchange's proposal, the private
    auction would occur in advance of the auction of 700 MHz licenses,
    and would be arranged by agreement among prospective 700 MHz bidders
    and TV broadcasters (both incumbents in the 700 MHz band and
    broadcasters with "comparable" UHF stations below channel 59). The
    700 MHz bidders that participated in the private auction would agree
    to pay for band-clearing of participating TV incumbents at the price
    determined by the auction, plus an "incentive" payment to the 700
    MHz incumbents for their commitment to relocate. A "descending
    clock" auction would be used, *i.e.*, the price would start at a
    high level, and the broadcasters with comparable coverage areas
    would then bid against one another to determine who would be willing
    to accept the lowest price to clear. The auction would end when the
    number of comparable UHF stations remaining in the auction was equal
    to the number of UHF channels that needed to be cleared in the 700
    MHz band, thus identifying the lowest price at which the required
    number of incumbents would be willing to clear the band. The winning
    bidders would then enter into the necessary two-way or three-way
    clearing agreements to carry out clearing of the band in accordance
    with the auction results.

95. Spectrum Exchange contends that this form of private secondary
    auction would facilitate band-clearing because it would use
    competitive market forces to determine band-clearing costs and would
    provide 700 MHz bidders with certainty regarding those costs in
    advance of the auction of 700 MHz licenses.[^173] We seek comment on
    Spectrum Exchange's proposal, and particularly on how it would work
    in conjunction with the band-clearing procedures we have adopted in
    the *Memorandum Opinion and Order* and the additional band-clearing
    proposals discussed in this *Further NPRM.*

96. As an alternative to Spectrum Exchange's proposal, we seek comment
    on another form of secondary auction that could be conducted by the
    Commission. Under this alternative, any TV incumbent in the 700 MHz
    band that wished to enter into a band clearing agreement would offer
    an "option" obligating it to clear the band if the option is
    purchased by a winning 700 MHz bidder. The option would, at a
    minimum, include a promise to clear the band within a specified time
    after the option was exercised (*e.g.*, one year) in exchange for a
    set payment. The secondary auction would take place simultaneously
    with the auction of 700 MHz licenses. Bidders in the 700 MHz auction
    would bid in the secondary auction for the right to exercise these
    options and enter into band clearing agreements with participating
    incumbents at some time in the future.[^174] The secondary auction
    winner would not be required to exercise the options it won at
    auction, but whether or not it did so, participating TV incumbent
    would retain the proceeds from the winning bids.

97. We believe that either type of secondary auction discussed above
    could produce significant benefits. A secondary auction could reduce
    the financial risk to 700 MHz bidders by allowing them to determine
    up front the cost of clearing the band early (at least in those
    markets where the TV incumbent decided to participate). Secondary
    auctions could also significantly reduce the parties' transaction
    costs of entering into band clearing agreements, because the cost of
    an auction involving multiple parties would be relatively small
    compared to the cost of individual 700 MHz bidders or licensees
    separately negotiating agreements (either before, during, or after
    the auction) with each incumbent.

98. Finally, secondary auctions could increase the likelihood that the
    parties will actually reach a band clearing agreement, to the mutual
    benefit of all involved. As a general matter, in those portions of
    an EAG where there are multiple TV incumbents who must clear the
    spectrum before the new 700 MHz licensee is able to offer service,
    the new 700 MHz licensee might be reluctant to enter into a band
    clearing agreement with any one of the TV incumbents without some
    assurance that it will be able to reach band clearing agreements
    with most (or all) of the other incumbents. If Channel 59-69 TV
    incumbents participated in the secondary auction, 700 MHz bidders
    would have certainty with respect to their ability to clear the band
    (or a portion of the band). Moreover, the secondary auction would
    enhance a bidder's ability to enter into clearing agreements with
    *all* incumbents that precluded its use of a portion of a spectrum
    block, which could be collectively more valuable than individual
    agreements with some but not all incumbents. A secondary auction
    should thus both increase the price a TV incumbent receives to clear
    the band and increase the likelihood that the band will actually be
    cleared.

99. We do not propose requiring TV incumbents to participate in such
    auctions, whether run privately or by the Commission. Rather, the
    auctions would merely make available another, and less costly,
    mechanism for TV incumbents to reach voluntary band-clearing
    agreements with new 700 MHz licensees. Moreover, as stated in the
    *First Report And Order*, we will consider regulatory requests
    necessary to implement voluntary band-clearing agreements on a
    case-by-case basis. We intend to apply this case-by-case analysis
    regardless of whether such agreements are the product of individual
    negotiation or a secondary auction. Thus, if we adopt some form of
    secondary auctions, we would still make an independent determination
    with respect to each agreement resulting from the auction whether
    granting the regulatory request necessary to implement the agreement
    was in the public interest.

100. As an initial matter, we seek comment whether we have the legal
     authority to conduct secondary auctions. We note that the secondary
     auction proposals discussed above would involve bidding on
     contractual options, not spectrum licenses, and that the proceeds
     of the secondary auction would go to TV incumbents rather than to
     the U.S. government. We therefore seek comment on whether Section
     309(j) of the Act, which specifies that we have authority to
     auction "initial" licenses, extends to a Commission-sponsored
     auction of band clearing options that would be associated with the
     award of 700 MHz licenses. We also seek comment on whether other
     provisions of the Act, *e.g.*, Section 4(i), confer authority on
     the Commission in this regard.

101. Assuming that we have legal authority to conduct secondary
     auctions, we seek comment on how such auctions should be
     administered. We envision that while we would generally adopt our
     Part 1 auction rules to govern secondary auctions, we would need to
     make some changes to accommodate their distinctive nature. We seek
     comment on what changes to our auction rules and procedures might
     be necessary. For example, unless a party wins a related 700 MHz
     license (one encumbered by the broadcaster selling the option),
     having an option to clear a TV incumbent would be of no direct
     value.[^175] Therefore, we envision that winning an option in the
     secondary auction would be contingent on winning a related 700 MHz
     license. If a winning 700 MHz bidder did not also win the secondary
     auction, the option would be sold to no one. Thus, contingent
     bidding would allow bidders to bid without fear that they might be
     required to pay a large bid withdrawal payment in the secondary
     auction in the event they did not also win a related license in the
     700 MHz auction. We also believe that the fear of no one acquiring
     a clearing option would create incentives for 700 MHz bidders to
     bid vigorously for the options. Finally, to minimize the risk to
     incumbents that 700 MHz bidders would tacitly collude to obtain the
     option at an artificially low price, we believe that incumbents
     should be allowed to bid on their own options. We seek comment on
     these proposals.

102. It is also important for us to ensure that parties not participate
     in the secondary auction for improper purposes. Therefore, we
     believe that parties who are not active in the auction (have a
     standing high bid or an accepted new bid) on a related 700 MHz
     license should not be allowed to participate in the secondary
     auction. Otherwise, parties might drive up the price of the option
     only for the purpose of harming their competitors. This rule would
     apply to each individual round of the auction; if a party dropped
     out of the bidding for a new 700 MHz license, it would no longer be
     permitted to bid in the related secondary auction. While our bid
     withdrawal procedures usually provide an appropriate safeguard
     against such behavior, as just discussed, participants in the
     secondary auction would not face the risk of any withdrawal
     penalties because their bids would be contingent on winning a
     related 700 MHz license. Similarly, we expect that we would
     prohibit jump bidding in the secondary auction. This would prevent
     a participant who expects to lose in the 700 MHz auction from
     acting to drive up or deny the option to the winning 700 MHz
     bidder, again with no financial risk to itself.

103. We seek comment on the above proposals. We note that even if we
     implement secondary auctions as described above, we envision that
     700 MHz bidders and licensees and the TV incumbents would always be
     free to reach band clearing agreements outside of the auction. We
     seek comment on the advantages and disadvantages of a
     Commission-run secondary auction for band clearing purposes in
     comparison to a private band-clearing auction held prior to the
     primary auction of 700 MHz licenses, *e.g.*, the Spectrum Exchange
     proposal discussed above.[^176] We also seek comment on how we
     should address the situation where we do not approve the regulatory
     requests necessary to implement a voluntary band-clearing agreement
     that results from an auction. For example, should the winning
     bidder still be required to pay the TV incumbent? In addition to
     addressing these issues, parties should address whether the price
     paid by the winning bidder should be covered by any cost-sharing
     rules we might adopt, as discussed above.

### Additional Proposals to Accelerate the Digital Television Transition.

104. We also seek comment on whether additional proposals should be
     considered to accelerate the digital television transition. For
     instance, should the Commission allow incumbent broadcasters on
     television Channels 59-69 and 700 MHz new service providers to
     share spectrum in time and/or bits? This proposal would preserve
     broadcast service while also providing opportunity for new service
     providers to commence service. In addition, sharing arrangements
     may assist broadcasters in rapidly transitioning to digital
     service. Similarly, we request comment on whether the FCC should
     allow broadcasters to share DTV facilities and spectrum during the
     transition. This proposal would help facilitate clearing in-core
     channels for relocation of television operations on out-of-core
     channels.

### Band Clearing Relating to the Auction of Channels 52-59.

105. Some commenters have suggested that the Commission adopt
     regulations to facilitate band clearing and the DTV transition in
     conjunction with the auction of spectrum currently used by Channels
     52-59. We therefore seek comment on how we should apply the
     standards we have adopted today in the *Memorandum Opinion and
     Order* and whether and how we should adapt to that auction the
     various proposals relating to the Channel 60-69 auction on which we
     are seeking today in this FNPRM. For instance, we seek comment on
     whether any of the enhanced band clearing proposals discussed in
     this Further Notice for incumbents on Channels 59-69 should also
     apply to incumbents on Channels 58 or lower.

# Procedural Matters AND ORDERING CLAUSES[^177]

106. An Initial Regulatory Flexibility Analysis with respect to the
     *Further Notice of Proposed Rule Making* has been prepared and is
     included in Appendix C.

107. [Alternative Formats]{.underline}. Alternative formats (computer
     diskette, large print, audio cassette and Braille) are available to
     persons with disabilities by contacting Martha Contee at (202)
     418-0260, TTY (202) 418-2555, or at mcontee@fcc.gov. This *Report
     and Order and Further Notice of Proposed Rulemaking* can also be
     downloaded at http://www.fcc.gov/cib/dro/.

108. [Pleading Dates]{.underline}. Pursuant to Sections 1.415 and 1.419
     of the Commission\'s Rules, 47 C.F.R. §§ 1.415, 1.419, interested
     parties may file comments on before August 16, 2000, and reply
     comments on or before September 15, 2000. Comments may be filed
     using the Commission\'s Electronic Comment Filing System (ECFS) or
     by filing paper copies. *See Electronic Filing of Documents in
     Rulemaking Proceedings*, 63 Fed. Reg. 24,121 (1998).

109. Comments filed through the ECFS can be sent as an electronic file
     via the Internet to \<http://www.fcc.gov/e-file/ecfs.html\>.
     Generally, only one copy of an electronic submission must be filed.
     If multiple docket or rulemaking numbers appear in the caption of
     this proceeding, however, commenters must transmit one electronic
     copy of the comments to each docket or rulemaking number referenced
     in the caption. In completing the transmittal screen, commenters
     should include their full name, Postal Service mailing address, and
     the applicable docket or rulemaking number. Parties may also submit
     an electronic comment by Internet e-mail. To get filing
     instructions for e-mail comments, commenters should send an e-mail
     to ecfs@fcc.gov, and should include the following words in the body
     of the message, \"get form \<your e-mail address.\" A sample form
     and directions will be sent in reply.

110. Parties who choose to file by paper must file an original and four
     copies of each filing. If more than one docket or rulemaking number
     appear in the caption of this proceeding, commenters must submit
     two additional copies for each additional docket or rulemaking
     number. All filings must be sent to the Commission\'s Secretary,
     Magalie Roman Salas, Office of the Secretary, Federal
     Communications Commission, 445 Twelfth Street, S.W., TW-A325,
     Washington, D.C. 20554.

111. [Authority]{.underline}. This action is taken pursuant to Sections
     1, 4(i), 7, 10, 201, 202, 208, 214, 301, 303, 307, 308, 309(j),
     309(k), 310, 311, 315, 316, 317, 319, 324, 331, 332, 336, 337 and
     614 of the Communications Act of 1934, as amended, 47 U.S.C. §§
     151, 154(i), 157, 160, 201, 202, 208, 214, 301, 303, 307, 308,
     309(j), 309(k), 310, 311, 315, 316, 317, 319, 324, 331, 332, 336,
     337, and 534, and the Consolidated Appropriations Act, 2000, Pub.
     Law 106-113, 113 Stat. 1501, Section 213.

112. Accordingly, IT IS ORDERED that Part 27 of the Commission's Rules
     IS REVISED ON RECONSIDERATION to modify service rules for the
     747-762 MHz and 777-792 MHz bands, as set forth in Appendix B, and
     that, in accordance with Section 213 of the Consolidated
     Appropriations Act, 2000, Pub. Law 106-113, 113 Stat. 1501 (1999),
     these Rules shall be effective immediately upon publication in the
     Federal Register.

113. IT IS FURTHER ORDERED that the Petitions for Reconsideration filed
     by ArrayComm, Inc., the Association of Local Television Stations,
     Inc., the Association for Maximum Service Television, Inc., the
     Association of Public- Safety Communications
     Officials-International, Inc., the Federal Law Enforcement Wireless
     Users Group, the National Association of Broadcasters, Nelson
     Repeater Services, Inc., Northcoast Communications, LLC, and the
     U.S. GPS Industry Council ARE DENIED; that the Petitions for
     Reconsideration filed by Adaptive Broadband Corporation, TRW, Inc.,
     and US WEST Wireless, LLC ARE GRANTED, to the extent indicated
     above, and ARE OTHERWISE DENIED; and that the request by Rand
     McNally & Company to withdraw its Petition for Reconsideration IS
     GRANTED.

114. IT IS FURTHER ORDERED that NOTICE IS HEREBY GIVEN of the proposed
     regulations described in the *Further Notice or Proposed
     Rulemaking,* and that comment is sought on these proposals.

115. IT IS FURTHER ORDERED that the Commission\'s Consumer Information
     Bureau, Reference Information Center, SHALL SEND a copy of this
     Memorandum Opinion and Order and Further Notice of Proposed
     Rulemaking, including the Initial Regulatory Flexibility Analysis,
     to the Chief Counsel for Advocacy of the Small Business
     Administration in accordance with Section 603(a) of the Regulatory
     Flexibility Act of 1980, Pub. L. No. 96-354, 94 Stat. 1164, 5
     U.S.C. §§ 601-612 (1980).

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

APPENDIX A

PETITIONS FOR RECONSIDERATION

Adaptive Broadband Corporation (Adaptive)

ArrayComm, Inc. (ArrayComm)

Association of Local Television Stations, Inc. (ALTV)

Association for Maximum Service Television, Inc. (MSTV)

Association of Public- safety Communications Oficials-International,
Inc. (APCO)

Federal Law Enforcement Wireless Users Group (FLEWUG)

National Association of Broadcasters (NAB)

Nelson Repeater Services, Inc. (Nelson)

Northcoast Communications, LLC (Northcoast)

Rand McNally & Company (Rand McNally)

TRW, Inc. (TRW)

U.S. GPS Industry Council (USGPS)

US WEST Wireless, LLC (US WEST)

**Oppositions/Comments**

ArrayComm

APCO

Bell Atlantic Mobile, Inc. (BAM)

FLEWUG

Motorola

Spectrum Exchange Group, LLC (SEG)

TRW

US WEST

**Reply Comments**

Adaptive

AirTouch Communications, Inc. (AirTouch)

MSTV

APCO

BellSouth Corporation (BellSouth)

GTE Service Corporation (GTE)

Motorola

NAB

TRW

USGPS

***Ex Parte* Filings**

Adaptive

ALTV

AMTA

ArrayComm

APCO

BellSouth

ITA

NAB

National Cable Television Association (NCTA)

Paxson Communications Corporation (Paxson)

Public Safety Wireles Network (PSWN)

SEG

Verizon Wireless (Verizon)

APPENDIX B

FINAL RULES

For those reasons discussed in the accompanying Order, Part 27 of Title
47 of the Code of Federal Regulations is amended as follows:

PART 27 -- WIRELESS COMMUNICATIONS SERVICE

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

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

2.  Section 27.50 is amended by revising paragraph (b), and the heading
    of Table 1, which follows paragraph (c), to read as follows:

**§ 27.50 Power and antenna height limits.**

\* \* \* \* \*

\(b\) The following power and antenna height limits apply to
transmitters operating in the 746-764 MHz and 776-794 MHz bands:

\(1\) Fixed and base stations transmitting in the 746-764 MHz band and
the 777-792 MHz band 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;

\(2\) Control stations and mobile stations transmitting in the 747-762
MHz band and the 776-794 MHz band are limited to 30 watts ERP;

\(3\) Portable stations (hand-held devices) transmitting in the 747-762
MHz band and the 776-794 MHz band are limited to 3 watts ERP;

\(4\) 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.

\* \* \* \* \*

Table 1 -- Permissible Power and Antenna Heights for Base and Fixed

> Stations in the 746-764 MHz and 777-792 MHz Bands

\* \* \* \* \*

3.  Section 27.53 is amended by revising paragraph (c) to read as
    follows, removing paragraph (d), and redesignating paragraph (e) as
    paragraph (d), redesignating paragraph (f) as paragraph (e),
    redesignating paragraph (g) as paragraph (f):

**§ 27.53 Emission limits.**

\* \* \* \* \*

\(c\) For operations in the 747 to 762 MHz band and the 777 to 792 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 747 to 762 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;

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(2) On any frequency outside the 777 to 792 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 764 to 776 MHz and 794 to 806 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 764 to 776 MHz and 794 to 806 MHz, by a
    factor not less than 65 + 10 log (P) dB in a 6.25 kHz band segment,
    for mobile and portable stations;

(5) Compliance with the provisions of paragraphs (c)(1) and (c)(2) 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;

(6) Compliance with the provisions of paragraphs (c)(3) and (c)(4) 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.

\* \* \* \* \*

4.  Section 27.60 is amended in paragraph (b)(2)(i) by removing the
    phrase "746-764 MHz band" and adding the phrase "746-764 MHz and
    777-792 MHz bands" in its place, and in paragraph (b)(2)(ii) by
    removing the phrase "776-794 MHz band" and adding the phrase
    "776-777 MHz and 792-794 MHz bands and control and mobile stations
    (including portables) that operate in the 747-762 MHz and 777-792
    MHz bands" in its place.

**APPENDIX C**

**INITIAL REGULATORY FLEXIBILITY ANALYSIS**

1.  As required by the Regulatory Flexibility Act (RFA),[^178] the
    Commission has prepared this Initial Regulatory Flexibility Analysis
    (IRFA) of the possible significant economic impact on small entities
    by policies and rules proposed in the *Further Notice of Proposed
    Rule Making* (*Further Notice*) that relate to assignments of
    frequencies in the 698-746 MHz band (currently used for television
    broadcasts on Channels 52-59). Pursuant to the Consolidated
    Appropriations Act, 2000, the requirements of the RFA do not apply
    to the rules and competitive bidding procedures governing
    assignments to commercial entities of frequencies in the 746 MHz to
    806 MHz band (currently used for television broadcasts on Channels
    60-69).[^179] Accordingly, we need not discuss any economic impacts
    that might result from such rules and procedures. Written public
    comments are requested on this IRFA. Comments must be identified as
    responses to the IRFA and must be filed by the deadlines for
    comments on the *Further Notice* provided above in paragraph 108.
    The Commission will send a copy of the *Further Notice*, including
    this IRFA, to the Chief Counsel for Advocacy of the Small Business
    Administration.[^180] In addition, the *Further Notice* and IRFA (or
    summaries thereof) will be published in the Federal Register.[^181]

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

116. The Congressional plan set forth in Sections 336 and 337 of the Act
     and in the 1997 Budget Act is to transition the 700 MHz band from
     its current use for broadcast services to commercial use and public
     safety services. One of the spectrum management challenges in
     expeditiously achieving efficient and intensive commercial use of
     the 700 MHz band is minimizing the operational difficulties
     presented by incumbent TV licensees to new wireless services,
     consistent with maintaining broadcast services through their
     transition to DTV.[^182] These considerations have led us to
     implement policies in the *First Report and Order* that will
     facilitate voluntary band-clearing agreements between 700 MHz
     licensees and TV incumbents.[^183] In this rule making proceeding,
     we seek comment on whether additional mechanisms might further
     facilitate the voluntary clearing of TV incumbents from the band.
     These mechanisms include cost-sharing rules, three-way voluntary
     transition agreements, secondary auctions, and spectrum sharing
     proposals. Specifically, the *Further Notice* asks whether
     cost-sharing rules would expedite clearing the 700 MHz band for use
     by the new licensees and the transition to DTV by incumbent
     broadcasters, or whether, as the *Further Notice* tentatively
     concludes, cost-sharing arrangements should be left to negotiations
     among successful auction bidders. As a general matter, cost-sharing
     rules would require that, when a 700 MHz licensee reaches a
     voluntary agreement with a TV incumbent to clear its channel, other
     700 MHz licensees benefiting from the agreement share in paying at
     least some portion of the compensation to the incumbent. The
     *Further Notice* tentatively concludes, however, that under any
     cost-sharing mechanism the Commission might adopt, that licensees
     of the 700 MHz public safety spectrum should not be required to pay
     a share of the clearing costs. Second, the *Further Notice* seeks
     comment on possible three-way voluntary relocation agreements
     involving new 700 MHz licensees, incumbent broadcasters in channels
     52-58 and 59-69, and broadcasters with operations on lower channels
     (channels 2-51). Under such agreements, a broadcaster with an
     allotment on a lower channel would free up one of its channels for
     relocation by a broadcaster operating in channels 52-58 or 59-69.
     Third, the *Further Notice* seeks comment on "secondary auctions."
     In a secondary auction, which could be run either by a private
     organization or the Commission, TV incumbents essentially would
     agree to clear the band in exchange for an amount of compensation
     that would be determined by the auction. Finally, the *Further
     Notice* seeks comment on whether broadcasters should be permitted
     to share spectrum with the new 700 MHz licensees in either time or
     bits.

**B. Legal Basis:**

117. This action is authorized under Sections 1, 4(i), 7, 10, 301, 303,
     307, 308, 309(j), 309(k), 316, 331, 332, 336, 337 and 614 of the
     Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i),
     157, 160, 301, 303, 307, 308, 309(j), 309(k), 316, 331, 332, 336,
     337, and 534, and the Consolidated Appropriations Act, 2000, Pub.
     Law 106-113, 113 Stat. 1501, Section 213.

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

118. The RFA directs agencies to provide a description of and, where
     feasible, an estimate of the number of small entities that will be
     affected by the proposed rules, if adopted.[^184] The RFA generally
     defines the term \"small entity\" as having the same meaning as the
     terms \"small business,\" \"small organization,\" and \"small
     governmental jurisdiction.\"[^185] In addition, the term \"small
     business\" has the same meaning as the term \"small business
     concern\" under the Small Business Act.[^186] Under the Small
     Business Act, a \"small business concern\" is one which: (1) is
     independently owned and operated; (2) is not dominant in its field
     of operation; and (3) meets any additional criteria established by
     the Small Business Administration (SBA).[^187] According to SBA
     reporting data, there were approximately 4.44 million small
     business firms nationwide in 1992.[^188] A small organization is
     generally \"any not‑for‑profit enterprise which is independently
     owned and operated and is not dominant in its field.\"[^189]
     Nationwide, as of 1992, there were approximately 275,801 small
     organizations.[^190] \"Small governmental jurisdiction\" generally
     means \"governments of cities, counties, towns, townships,
     villages, school districts, or special districts, with a population
     of less than 50,000.\"[^191] As of 1992, there were approximately
     85,006 local governments in the United States.[^192] This number
     includes 38,978 counties, cities, and towns; of these, 37,566, or
     96 percent, have populations of fewer than 50,000.[^193] The Census
     Bureau estimates that this ratio is approximately accurate for all
     governmental entities. Thus, of the 85,006 governmental entities,
     we estimate that 81,600 (91 percent) are small entities.

119. The policies and rules proposed in the *Further Notice* discussed
     in this IRFA would affect all small entities that seek to acquire
     licenses in wireless services in the 698-746 MHz band ("lower 700
     MHz band") currently used for television broadcasts on Channels
     52-59, or are incumbent television broadcasters.[^194] The
     Commission has not yet developed a definition of small entities
     applicable to the lower 700 MHz band. Therefore, the applicable
     definition is the one under the Small Business Administration rules
     applicable to Communications Services, Not Elsewhere Classified.
     This definition provides that a small entity is one with \$11.0
     million or less in annual receipts.[^195] However, no
     channelization plan or licensing plan has been proposed or adopted
     for the lower 700 MHz band. Therefore, the number of small entities
     that may apply to acquire licenses in the lower 700 MHz band is
     unknown.

120. The SBA defines a television broadcasting station that is
     independently owned and operated, is not dominant in its field of
     operation, and has no more than \$10.5 million in annual receipts
     as a small business.[^196] Television broadcasting stations consist
     of establishments primarily engaged in broadcasting visual programs
     by television to the public, except cable and other pay television
     services.[^197] Included in this industry are commercial,
     religious, educational, and other television stations.[^198] Also
     included are establishments primarily engaged in television
     broadcasting and which produce taped television program
     materials.[^199] There were 1,509 television stations operating in
     the nation in 1992, of which 1,155 produced less than \$10.0
     million in revenue (76.5 percent).[^200] As of May 31, 1998,
     official Commission records indicate that 1,579 full power
     television stations, 2,089 low power television stations, and 4,924
     television translator stations were licensed.[^201] Using the
     percentage of television broadcasting licensees that were small
     entities in 1992 (76.5 percent), we conclude that there are
     approximately 1,208 full power television stations that are small
     entities.

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

121. At this time, the Commission does not anticipate the imposition of
     new reporting, recordkeeping, or other compliance requirements as a
     result of this *Further Notice*. If we later determine that we will
     need to impose new reporting, recordkeeping or other compliance
     requirements as a result of deciding to adopt any of the proposals
     described above, *i.e.*, cost-sharing, three-way voluntary
     transition agreements, secondary auctions, and spectrum sharing, we
     will seek comment at that time. We seek comment on this tentative
     conclusion.

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

122. The RFA requires an agency to describe any significant alternatives
     that it has considered in reaching its proposed approach, which may
     include the following four alternatives: (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
     and reporting requirements under the rule for such small entities;
     (3) the use of performance rather than design standards; and (4)
     any exemption from coverage of the rule, or any part thereof, for
     such small entities.

123. We seek comment on the economic impact that the proposals described
     in the Further Notice might have on small entities. With the
     exception of the cost-sharing rules, the proposals on which the
     Further Notice seeks comment are based on the voluntary
     participation of both new 700 MHz licensees and incumbent
     television broadcasters. Cost-sharing rules, if adopted, would
     require those new 700 MHz licensees that benefit from a clearing
     agreement with a TV incumbent to share the costs of that agreement.
     Insofar as small entities could not afford to enter into clearing
     agreements without the costs being shared by other 700 MHz
     licensees, the cost-sharing rules would provide a positive economic
     benefit to small entities. To the extent that other licensees would
     enter into clearing agreements without the costs being shared by
     small entities, thereby giving the small entities a "free ride,"
     cost-sharing rules would produce a significant economic impact on
     small entities. Finally, to the extent that small entities would
     prefer not to enter into clearing agreements but to wait until the
     incumbent TV licensee was required to clear the band by
     statute,[^202] and cost-sharing rules would small entities to share
     costs, such rules would also produce a significant economic impact
     on small entities. As a general matter, cost-sharing rules must
     apply to all licensees in order for them to operate as intended.
     Moreover, without a channelization plan for the lower 700 MHz band,
     it is not possible at this time to determine whether we could
     exempt some or all small entities from any cost-sharing rules we
     might adopt, or otherwise minimize the impact on small entities.
     One significant alternative we are considering is not to adopt any
     cost-sharing rules and, indeed, the Further Notice tentatively
     concludes that cost-sharing arrangements should be left to
     negotiations between successful auction bidders.

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

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124. None.

SEPARATE STATEMENT OF COMMISSIONER SUSAN NESS

Re: 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.

I supported our action in January of this year unleashing this prime
spectrum for a variety of new wireless services, including fixed and
mobile Internet access. Our decision balanced competing needs for
spectrum, while protecting new public safety operations in spectrum
allocated for that use. I am pleased that we generally uphold the
approach we took in our initial order, providing for even greater
flexibility.

In this Order, we provide additional certainty for both incumbents and
prospective licensees for transitioning this spectrum from its existing
broadcast use to new wireless service. We seek to promote \-- through
reliance on market forces \-- an efficient transition to both a new age
of services operating in the 746-806 MHz frequencies and a new era of
digital television. In particular, our approach to this transition
should foster more expeditious delivery of new wireless services, access
of public safety organizations to new spectrum, and a more rapid
transition to digital transmission for some television stations
operating on channels 60 to 69 that might not otherwise be possible.

I believe that this transition is best left to the marketplace, with
regulatory intervention only where essential to remove any barriers. I
am skeptical that government-mandated agreements between private parties
on transition issues will be appropriate or helpful. For this reason, I
support the "voluntary" approach we have taken to agreements between
licensees, including our decision not to impose mandatory relocation of
broadcast operations, as well as our conclusion not to propose the
adoption of cost-sharing rules for new licensees seeking to use this
spectrum. We should intervene in these processes only if it is essential
to eliminate a regulatory barrier, to fulfill our licensing
responsibility, or to respond to failures in the marketplace that are
manifest and supported by record evidence.

On this last note, our Order today unavoidably addresses issues related
to the overall transition of analog broadcasting to the digital age.
While we dabble in some of the crucial aspects of the transition to
digital television, we are at the same time, in other contexts, holding
back from addressing the critical issues that relate to this transition.
This proceeding is certainly not the appropriate venue for formulating a
comprehensive approach to digital conversion. I hope that we will soon
address holistically the crucial issues surrounding the transition of
analog stations to the digital age. If we can successfully address these
issues, our actions will lead not only to a robust market for new
wireless services and enhanced public safety operation in the 746-806
MHz band, but to a vibrant era of new digital television services for
all consumers.

SEPARATE STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT-ROTH, Approving in
Part, Dissenting in Part

Re: 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 (rel. June
22, 2000)*

I support efforts to provide additional regulatory certainty to new
wireless entrants and existing broadcasters in the 700 MHz spectrum. I
am all too aware of the uncertainty that often surrounds license
transfers and modifications before this agency. To the extent today's
item lends some predictability and transparency to that process, it is a
step in the right direction. However, I want to be clear that our
efforts should only be aimed at clearing away regulatory barriers to
privately negotiated agreements, not at creating new regulatory
structures that force one licensee's deals upon unwilling parties. In my
view, it may or may not be efficient for new entrants and incumbents to
negotiate an early transition to digital. Therefore, it is for the
marketplace, not the Commission, to determine when and how these
transactions occur.

As set forth above, I believe this item should only focus on removing
regulatory barriers to private transactions. However, in many areas, the
Commission seems intent on creating a potential host of new rules to
intervene in the marketplace. First, the Commission seeks comment on its
proposal to run an FCC auction of options to relocate incumbent
broadcasters. As a threshold matter, I have serious doubts about our
statutory authority to run such an auction.[^203] We are not Sotheby's,
available for hire to auction any communications-related items. Indeed,
even with statutory authority, the rationale for FCC intervention is
unclear in light of private parties' plans to conduct such auctions. The
notion of government usurping a function currently performed by private
parties should be an anathema to the Commission. Second, the notice also
discusses cost sharing policies for new entrants seeking to benefit from
the early clearing of spectrum. Once again, nothing in our rules forms a
barrier to these agreements, therefore I see no basis for the Commission
even to contemplate cost sharing here. In addition, such a mandatory
cost sharing approach seems particularly unnecessary where there is a
discrete number of parties involved in the underlying transactions.
Unless and until there is reliable evidence of a market failure or some
regulatory gaming, I believe the FCC should allow the market to function
unfettered by regulatory intrusions.[^204]

Ironically, at a time when the majority is seeking comment on the above
new regulatory initiatives, the Commission continues to leave unresolved
significant regulatory issues regarding signal degradation, the digital
television transition, and the scope of must carry obligations.[^205]
Rather than the incremental tinkering adopted for the purposes of this
Order, I believe we have a duty to develop a comprehensive resolution of
these important matters as soon as possible. Delay, coupled with
incremental declarations aimed at advancing other policy goals, is no
way to address the core legal issues inherent in the digital television
transition.

Finally, I wish to emphasize that nothing in this Order should form the
basis for a delay in the 700 MHz auction. As I have previously made
clear, the Commission has no authority to exceed the statutory September
30,2000 deadline set by Congress.[^206] Unresolved issues in this
proceeding cannot and should not form a pretext to further delay this
auction under any circumstances.

For the foregoing reasons, I respectfully dissent in part.

**SEPARATE STATEMENT OF COMMISSIONER GLORIA TRISTANI**

**Dissenting in Part**

*Re: Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions
of Part 27 of the Commission's Rules, WT Docket No. 99-168*

I respectfully dissent from the decision to adopt a strong presumption
in favor of granting requests to clear existing broadcasters from the
700 MHz band. In its eagerness to make way for new wireless services in
this band, the majority dismisses this agency's long-held commitment to
the Ameri can public's continued access to free, over-the-air broadcast
services. I would have preferred to reaffirm our policy to review such
requests on a case-by-case basis.

As I have noted in the past, the 700 MHz spectrum offers unlimited
potential for exciting, next generation mobile services and fixed
high-speed Internet access that can be deployed ubiquitously[^207] ^1^
Moreover, this band offers vital new spectrum dedicated to public safety
needs. At the same time, however, I am firmly committed to the
fundamental policy of continued access to free, over-the-air broadcast
services. Today, about 30 percent of all Americans continue to obtain
television programming via free, over-the-air broadcast services. These
services provide intrinsic value by ensuring that all members of the
community have access to a multiplicity of broadcast outlets.

Recognizing these two interests, I supported the decision in the *First
Report and Order* to review on a case-by-case basis voluntary requests
that would clear incumbent broadcasters from the 700 MHz band and allow
new wireless licensees to deploy service[^208] ^2^ In reviewing loss of
broadcast service cases, the Commission has long held that "once in
operation, a station assumes an obligation to maintain service to its
viewing audience, and the withdrawal or downgrading of existing service
is justifiable only if offsetting factors are shown which establish that
the public generally will be benefited.[^209] ^3^ The D.C. Circuit has
sustained this policy on review, finding that losses in broadcast
service are *prima facie* inconsistent with the public interest, and
that the grant of requests resulting in such losses must be supported by
a strong showing of countervailing factors[^210] ^4^ In the *First
Report and Order*, we committed to examine the recover y of spectrum for
new wireless uses in light of the loss of broadcast service to the
community.

Today's Order, however, stands Commission policy and judicial precedent
on its head. The majority concludes that, where private parties agree,
deployment of new wireless services should supplant free, over-the-air
broadcast service in most -- if not all -- instances. The majority
adopts a presumption that, absent limited circumstances, favors the
grant of requests to turn off existing analog stations. This broad-based
approach does not adequately consider the impact of the loss of service
on the incumbent licensee's broadcast community.

To justify this reversal, the majority asserts that this approach
furthers the statutory scheme, facilitates the DTV transition, and
results in only limited and temporary loss of service. I am not
persuaded.

*The Statutory Scheme.* While the DTV provisions do not prohibit our
review of voluntary agreements to clear a broadcaster's analog spectrum,
I do not believe that Congress endorsed a legislative purpose of
"expeditiously recovering this spectrum,[^211] ^5^ as the majority
contends. Nor do I believe that Congress envisioned a Commission policy
to facilitate early recovery of the broadcasters' spectrum and the
resulting loss in free, over-the-air service on channels 59-69.

In fact, Congress did not speak at all about early recovery of this
spectrum. To the contrary, it provided that licensees may make a showing
to continue their analog broadcasting well beyond December 31,
2006[^212] ^6^ In the accompanying Conference Report, Congress noted it
did so "to ensure that a significant number of consumers in any given
market are not left behind without broadcast television service as of
January 1, 2007.[^213] ^7^ Moreover, although Congress directed the
assignment of the 700 MHz band prior to the return of the spectrum and
then further accelerated our auction process, there is no basis to
conclude that these actions reflected a desire for the Commission to
recover the spectrum quickly[^214] ^8^

*DTV Transition.* Although the majority suggests that these voluntary
agreements will facilitate the DTV transition, the Order does not
require a licensee to have its digital signal in operation in exchange
for turning off its analog channel. It merely "expects" that
broadcasters will use the revenue derived from voluntary agreements to
construct and operate digital television stations[^215] ^9^ As a result,
a licensee may return its analog channel and not broadcast *at all*
until its digital construction requirements are triggered in May
2002[^216] ^10^ Alternatively, a broadcaster may strike a deal to turn
in its analog channel in exchange for DTV station costs as the majority
suggests, but then decide to go dark.

*Temporary Loss of Service.* The Order makes the broad finding that
"some temporary loss of over-the-air service" is permissible to provide
broadcasters with the resources to transition to DTV operations and to
enable new wireless services[^217] ^11^ The majority, however, does not
define "temporary," and I fear that today's viewers will lose access to
this programming for a very long time. The loss of a licensee's analog
service, moreover, is not temporary. For today's viewers, it is the only
free, over-the-air broadcast service they access and its loss is a
permanent one.

I am also concerned that the majority appears content to defer to
private parties those judgments that should fall under our spectrum
management obligations. The majority notes that "we will be inclined to
grant regulatory requests arising from such private commercial
arrangements, provided the requests do not, on balance, have adverse
public policy consequences.[^218] ^12^ The Order relies on the views of
incumbent broadcasters "with a direct interest in strengthening their
transition to DTV," dismissing the impact on viewers today -- and for
years to come -- as "limited and temporary losses in service."[^219]*13*
Given our long-held precedent regarding the value to the public of free,
over-the-air broadcast services, I believe that we should more seriously
consider the loss of service to today's viewers.

As a result, I cannot support the majority's decision to alter the
analysis of broadcaster requests to turn in their analog spectrum that
we established in the *700 MHz First Report and Order*.

In addition, I have serious misgivings regarding the *Further Notice*.
The three-way relocation and secondary auction band clearing proposals
raise further issues about how the newly adopted presumption policy
would apply in a multi-relocation context[^220] ^14^ Further, I strongly
oppose any possibility of mandatory relocation of an incumbent
broadcaster[^221] ^15^

Finally, in this age of ever-growing demand for spectrum, I fear that
the majority's decision signals a diminishing regard for the public
value of free, over-the-air broadcast services. While I fully support
the promise of new wireless services, I would have preferred to review
requests on a case-by-case basis. I have little doubt that the
majority's presumption and the proposals in the *Further Notice* will
lead to clearing channels 52-58 next. As we look to the future, my
deepest concern is that today's action augurs a fundamental shift away
from our commitment to the value that broadcasting serves for all
Americans.

[^1]: Principles for Reallocation of Spectrum to Encourage the
    Development of Telecommunications Technologies for the New
    Millennium, *Policy Statement*, 14 FCC Rcd 19868 (1999) (*Spectrum
    Reallocation Policy Statement*).

[^2]: Petitions for Reconsideration were filed by Adaptive, APCO,
    ArrayComm, ALTV, FLEWUG, MSTV, NAB, Nelson Repeater Services,
    Northcoast Communications, Rand McNally, TRW, GPS Industry Council,
    and US WEST. The full names of petitioners and a list of parties
    filing oppositions and replies are listed in Appendix A. The
    late-filed petition for reconsideration submitted by FLEWUG is
    considered as an informal comment pursuant to Section 1.41 of the
    Commission's Rules.

[^3]: 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) (*700 MHz First Report and
    Order*).

[^4]: *Spectrum Reallocation Policy Statement*, 14 FCC Rcd at 19870
    (para. 7).

[^5]: *See* Pub. Law 106-113, 113 Stat. 1501, Appendix E, Section 213.
    *See also* 145 Cong. Rec. at H12494-94, H12501 (Nov. 17, 1999),
    "Making consolidated appropriations for the fiscal year ending
    September 30, 2000, and for other purposes." (*Consolidated
    Appropriations).*

[^6]: The Commission recently established service rules governing the
    other 6 megahertz of this allocation, the "guard bands." 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*, FCC 00-90 (rel. Mar. 9, 2000) (*700 MHz Second Report
    and Order*).

[^7]: See 47 C.F.R. § 27.5.

[^8]: Petitioners who advocate continued use of the band for television
    service contend that allowing television service would enable more
    flexible use of spectrum, rather than precluding uses possibly
    desired by the public, and comports with the Commission's
    reallocation decision and Congressional instructions. These
    petitioners also assert that sharing between wireless and television
    services is technically achievable. *See, e.g.*, MSTV Petition at
    5-10. Petitioners who challenge the technical rules intended to
    enable divergent wireless technologies assert that certain of the
    service rules would actually preclude, or seriously burden, their
    single-channel technologies. *See, e.g.* ArrayComm Petition at
    4-14*.*

[^9]: Rather than designate separate radio channels for directional
    transmission ("to" and "from" an individual user or base station),
    Time Division Duplex (TDD) transmission technology instead divides a
    single radio channel into many time slots. Any specific time slot
    may be used to transmit information either "to" or "from" the
    individual user or base station. A TDD system thus has the
    capability to modify, on a continuing, almost instantaneous basis,
    the allocation of such timeslots in order to reflect individual
    subscribers' usage patterns. Petitioners contend that because an
    entire channel is not dedicated to transmission in a specific
    direction, the TDD method uses spectrum more flexibly and
    efficiently. Adaptive Petition at 2-3; ArrayComm Petition at 7-8.

[^10]: *See* *700 MHz First Report and Order*, Appendix B, § 27.50, 15
    FCC Rcd at 547-48.

[^11]: Adaptive Petition at 4; TRW Petition at 5-9; US WEST Petition at
    3-4.

[^12]: Motorola Opposition at 12. *But see* TRW Reply at 3.

[^13]: BellSouth Reply at 3. Currently, our rules specify that mobile
    stations transmit on spectrum in the 777-792 MHz band and receive on
    spectrum in the 747-762 MHz band.

[^14]: Currently, our rules specify that base stations transmit on
    spectrum in the 747-762 MHz band and receive on spectrum in the
    777-792 MHz band.

[^15]: *700 MHz First Report and Order,* 15 FCC Rcd at 494 (para. 42).

[^16]: TRW Petition at 7-8. *See also* Adaptive Reply at 2-4.

[^17]: TRW states that we have not justified the "imposition of
    differing power limits in the two 700 MHz sub-bands on fixed service
    operations that will be essentially the same in both sub-bands." TRW
    Petition at 6.

[^18]: The "mobile-to-mobile" interference scenario would exist if
    commercial mobile transmissions cause interference to public safety
    mobiles attempting to receive on spectrum in the 764-776 MHz band.

[^19]: Fixed, control, and mobile stations are permitted to operate in
    the upper band, and at a maximum power level of 30 w ERP.

[^20]: In addition, we modify Sections 27.53 and 27.60 of our Rules
    appropriately to reflect these revisions.

[^21]: *700 MHz First Report and Order,* 15 FCC Rcd at 491-94 (paras.
    35-42);Appendix B, § 27.5(b), at 543.

[^22]: ArrayComm Petition at 5-14.

[^23]: ArrayComm Petition at 6-7.

[^24]: US WEST Opposition at 9.

[^25]: *700 MHz First Report and Order,* 15 FCC Rcd at 494 (para. 42).

[^26]: *700 MHz First Report and Order,* 15 FCC Rcd at 494 (para. 42).

[^27]: Adaptive also discussed this OOBE issue in *ex parte* meetings
    with Commission staff. Adaptive *Ex Parte* filings of April 4 and
    11, 2000.

[^28]: ArrayComm Petition at 14.

[^29]: ArrayComm Petition at 14-15.

[^30]: ArrayComm Petition at 14-15.

[^31]: TRW Opposition at 7-8.

[^32]: ArrayComm Petition at 15-16.

[^33]: ArrayComm Petition at 15-16.

[^34]: ArrayComm Petition at 15-16 .

[^35]: TRW provides an analysis that is intended to show the extent to
    which interference might be reduced if the stricter public safety
    OOBE limits were adopted. Specifically, TRW's analysis, which is
    based on various technical assumptions, indicates that if our 43 +
    10 log P standard is employed, a typical broadband station operating
    on one of the commercial bands would require line-of-site separation
    of approximately 4.8 km from a broadband station operating on
    another commercial band in order to avoid interference; but that if
    the public safety OOBE limits were employed (*i.e*., 76 + 10 log P)
    this separation distance would be reduced to about 430 meters. TRW
    Consolidated Comments/Opposition at 7-8. While we agree that
    required separation distances between stations could be reduced if
    we adopt more strict OOBE limits, we have no evidence in the record
    to suggest that any particular maximum separation distance between
    commercial stations is necessary to enable viable commercial
    operations. We therefore cannot agree with TRW's conclusion that
    adoption herein of the more stringent public safety OOBE limits are
    required.

[^36]: *See, e.g.,* US WEST and others, n.243 and n.250.

[^37]: *700 MHz First Report and Order,* 15 FCC Rcd at 519-20 (paras.
    105-106).

[^38]: Elsewhere in this decision, we reiterate our commitment to
    encouraging new and innovative technologies and services. Thus, for
    example, we have revised our power limits to better enable TDD
    technologies to operate in the 700 MHz bands.

[^39]: APCO Petition at 3.

[^40]: FLEWUG Petition at 4, Attachment A.

[^41]: FLEWUG Petition at 4. FLEWUG provides an analysis indicating that
    as the bandwidth of a commercial transmission is decreased, the
    required separation between a commercial base station and a public
    safety base or mobile receiver to preclude interference is
    increased. FLEWUG therefore proposes a minimum bandwidth of 200 kHz
    in order to minimize, to the extent possible, this separation
    distance. FLEWUG believes that adopting such a minimum bandwidth
    limit would not affect the third generation wireless technologies
    envisioned for the 700 MHz band.

[^42]: FLEWUG Petition at 5-6.

[^43]: US WEST Petition at 6-7.

[^44]: US WEST Petition at 8.

[^45]: US WEST Petition at 8.

[^46]: TRW notes that our adopted OOBE limits represent a "difficult,
    but achievable goal," and that tightening those limits would be
    inconsistent with our goal of "striking a balance between protecting
    public safety and maintaining the commercial viability of the band."
    TRW Comments at 6.

[^47]: FLEWUG provides an analysis describing the severity of
    interference resulting from commercial systems operating with
    various bandwidths and complying with various OOBE limits.

[^48]: FLEWUG Opposition at 4-5, Attachment B.

[^49]: FLEWUG's analysis concludes that interference resulting from
    commercial systems operating with a 43 + 10 log P limit would in
    fact "disrupt the reception of public safety communications over
    much of its coverage area." FLEWUG Opposition at 3-4.

[^50]: US WEST Petition at 6-7.

[^51]: FLEWUG Comments at 6.

[^52]: *700 MHz First Report and Order,* 15 FCC Rcd at 524 (para. 115).

[^53]: USGPS Petition at 5-8. *But see* Motorola Comments at 9-10
    (opposing USGPS's arguments); *see also* USGPS Reply at 3.

[^54]: *See* USGPS Comments to *700 MHz NPRM* at 3, USGPS Reply in *700
    MHz NPRM* proceeding, incorporating by reference and attaching
    thereto its comments in the GMPCS proceeding.

[^55]: *700 MHz First Report and Order,* 15 FCC Rcd at 524 (para. 116).

[^56]: *Id*.

[^57]: *See 700 MHz First Report and Order*, 15 FCC Rcd at 524 (para.
    117), and discussion therein of AirTouch Satellite Services, Inc.
    Application For Blanket Authority To Construct And Operate Up To
    50,000 Mobile Satellite Earth Terminals Through The GLOBALSTAR
    Mobile Satellite System, *Order and Authorization,* PA 99-2010,
    October 4, 1999, paras. 10-13.

[^58]: *See* Section 90.545 of our Rules. 47 C.F.R. § 90.545.

[^59]: MSTV Petition at 12. No oppositions/comments or replies were
    received on this issue.

[^60]: *700 MHz First Report and Order,* 15 FCC Rcd at 483-86 (paras.
    15-19).

[^61]: MSTV Petition at 9.

[^62]: MSTV Petition at 2-3.

[^63]: APCO Opposition at 2-3.

[^64]: APCO Opposition at 2-3.

[^65]: Motorola Opposition at 2-5.

[^66]: See 700 MHz First Report and Order, 15 FCC Rcd 483-485 (paras.
    15-18). In contrast, much less serious interference problems, and
    substantially mitigated spectrum efficiency losses, are generated
    when multiple services that operate at comparable power levels share
    spectrum. We noted in the *700 MHz First Report and Order* that
    these effects are recognized in Commission Rules establishing
    minimum distance separation requirements between conventional
    television facilities using the same channel, and between facilities
    using adjacent channels. *See* 47 C.F.R. § 73.610.

[^67]: "The notion that a particular service is prone to 'inherent'
    interference is nonsensical as a matter of physics. Interference is
    a function of proximity and signal level and can occur regardless of
    the type of service involved." MSTV Petition at 6.

[^68]: *700 MHz First Report and Order,* 15 FCC Rcd at 504 (para. 67).

[^69]: *700 MHz First Report and Order,* 15 FCC Rcd at 505 (para. 70).

[^70]: NAB Petition at 1-2, 6-7. No oppositions, comments or replies
    were received on this issue.

[^71]: NAB Petition at 7-8.

[^72]: *700 MHz NPRM,* 11 FCC Rcd at 11056 (para. 99).

[^73]: Sections 336 and 337 of the Communications Act and the
    Consolidated Appropriations Act direct us to auction the 36 MHz
    spectrum for commercial use six years before the statutory
    relocation target for incumbent broadcasters. *See* 47 U.S.C. §§
    336-337. *See also Consolidated Appropriations*, Appendix E, Sec.
    213. *See also* 145 Cong. Rec. at H12493-94 (Nov. 17, 1999).

[^74]: We indicated we would consider such public interest criteria as
    the benefits to consumers of such new wireless services as Internet
    fixed access services, whether such agreements would help clear
    spectrum for public safety use or for new wireless service in rural
    or other relatively underserved communities, and the impact of the
    loss of service on the licensee's broadcast community. We indicated
    that, in evaluating loss of service, we would consider the
    availability of the licensee's former analog signal within the
    service area, through simulcast of that signal on the licensee's DTV
    channel or distribution of the signal on cable or DBS, as well as
    the availability of similar broadcast services within the service
    area, (*e.g.*, whether the lost service is the only network service,
    the only source for local service, or the only source for an
    otherwise unique broadcast service). *700 MHz First Report and
    Order,* 15 FCC Rcd at 534 (para. 145).

[^75]: NAB Petition at 4.

[^76]: *Id*. at 2-3, *citing* H.R. Rep. No. 217, 105^th^ Cong., 1^st^
    Sess. 576-77 (1997).

[^77]: *Id*. at 5, *citing* Turner Broadcasting System, Inc. v. FCC, 512
    U.S. 622, 646 (1994) (*Turner I), reaffirmed* 520 U.S. 180, 193
    (1997) (*Turner II*) (upholding "must carry" requirements).

[^78]: *See* Motorola Comments at 8; APCO Opposition at 4; SEG
    Opposition at 2-5; US WEST Opposition/Comments at 5-7. *See also*
    APCO Reply at 3; AirTouch Reply at 2; BellSouth Reply at 5; Motorola
    Reply at 2. ALTV opposes Commission action that would require the
    involuntary termination of operations on these channels, but
    clarifies that it is neutral on the issue of whether a broadcaster
    can voluntarily sell its facility to a third party and thereby
    terminate free, over-the-air service on that channel. ALTV *ex
    parte* filing, May 18, 2000.

[^79]: Motorola Reply at 2.

[^80]: Motorola Comments at 7-8.

[^81]: *See* Section 27.14(a) of the Commission's Rules, which addresses
    performance standards, and incorporates this deadline by referencing
    §27.13. 47 C.F.R. §§ 27.13(b) and 27.14(a).

[^82]: *700 MHz First Report and Order,* 15 FCC Rcd at 504 (n.161).

[^83]: *See* discussion at paras. 53-56.

[^84]: *See, e.g.*, Amendment of Parts 2, 89, 91, and 93; Geographic
    Reallocation of UHF-TV Channels 14 through 20 to the Land Mobile
    Radio Services for Use within the 25 Largest Urbanized Areas of the
    United States, Docket No. 18261, *First Report and Order*, 23 F.C.C.
    2d 325 (1970).

[^85]: *See* 47 U.S.C. §§ 303, 307, 308 and 309.

[^86]: *See* 47 U.S.C. §§ 303, 316 (authorizing the Commission to modify
    licenses to promote the public interest, convenience and necessity);
    *see also* Modification of FM or Television Licenses Pursuant to
    Section 316 of the Communications Act, *Order*, 2 FCC Rcd 3327
    (1987); Transcontinent Television Corporation v. FCC, 308 F.2d 339
    (D.C. Cir. 1962) (relationship between allocation of spectrum by
    rulemaking and licensee's right to hearing under Section 316).

[^87]: *See* Advanced Television Systems and Their Impact upon the
    Existing Television Broadcast Service, *Fifth Report and Order*, 12
    FCC Rcd 12809, 12832-12833 (paras. 55-56) (1997); *Memorandum
    Opinion and Order on Reconsideration*, 13 FCC Rcd 6860, 6886-6887
    (paras. 77-78) (1998).

[^88]: *See, e.g.*, *Administrator, Federal Aviation Administration v.
    Robertson*, 422 U.S. 255 (1975) (holding that passage of initial
    version of FOIA Exemption 3, which authorized non-disclosure of
    material if specifically exempted from disclosure by statute, could
    not be used to imply repeal of FAA's broadly stated statutory
    discretion to withhold disclosure of information under Section 1104
    of the Federal Aviation Act of 1958); *Scripps-Howard Radio, Inc. v.
    FCC*, 316 U.S. 4, 11 (1942) (noting that, absent a specific repeal
    of jurisdictional authority, "\[t\]he search for significance in the
    silence of Congress is too often the pursuit of a mirage"); *U.S. v.
    Hsia*, 176 F.3d 517, 525-26 (D.C. Cir. 1999) (citing the
    "presumption against repeal by implication," and stating that it
    "will not find repeal absent 'clear and manifest' evidence that it
    was intended \[by Congress\]," in holding that the Federal Election
    Campaign Act did not effect *pro tanto* repeal of general criminal
    statutes proscribing making of false statements to federal agency),
    *cert. denied*, 120 S.Ct. 978 (2000); 82 C.J.S. Statutes § 288
    (1953) (stating that repeal of statutes by implication is not
    favored, and courts will not make such a finding of repeal if they
    can avoid doing so consistently, or on any reasonable hypothesis, or
    if they can arrive at another result by any construction that is
    fair and reasonable).

[^89]: 143 Cong. Rec. H6174 (July 29, 1997).

[^90]: *See, e.g.*, 47 U.S.C. §§ 303(f), 307(b), 308(a) and (b), 309(a).

[^91]: *See, e.g.*, *Turner I*, *supra* n. 77.

[^92]: *See Reconsideration of DTV Fifth Report and Order*, 13 FCC Rcd
    at 6885-6886 (paras. 74-75).

[^93]: *See, e.g.*, 47 U.S.C. §§ 301 and 303.

[^94]: 47 U.S.C. § 309(j)(14)(C).

[^95]: 47 U.S.C. § 309(j)(3)(A).

[^96]: 47 U.S.C. § 309(j)(3)(D); *see also* Section 706 of the
    Communications Act, 47 U.S.C. § 157 (directing the Commission to
    encourage the reasonable and timely deployment of advanced
    telecommunications capability to all Americans).

[^97]: 47 U.S.C. § 307(b). The Commission's authority to modify licenses
    is established by 47 U.S.C. § 316.

[^98]: 47 U.S.C. § 154(i) reads:

    > 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.

    *See also* 47 U.S.C. § 157 (establishing a policy of the United
    States to encourage the provision of new technologies and services
    to the public).

[^99]: *See* Pub. Law 106-113, 113 Stat. 1501, Appendix E, Section 213.
    *See also* 145 Cong. Rec. at H12494-94, H12501 (Nov. 17, 1999),
    "Making consolidated appropriations for the fiscal year ending
    September 30, 2000, and for other purposes."

[^100]: *See, e.g.*, 47 U.S.C. § 309(j)(14)(C); 47 U.S.C. § 336(c).

[^101]: *See* 47 U.S.C. § 309(j)(3)(D).

[^102]: *See* 47 U.S.C. §§ 151, 307(b), 309(j)(3)(A), 309(j)(4)(B).

[^103]: *See* 47 U.S.C. §§ 337(a)(1), 337(c), 337(d)(3), 337(d)(4).

[^104]: *See* 47 U.S.C. §§ 336(b), 336(c), 336(f).

[^105]: *See* APCO Reply at 3.

[^106]: BellSouth Reply at 5-6. BellSouth also urges us to take steps to
    require 60-69 incumbents to relocate. In this order, we address only
    the prospect of voluntarily negotiated agreements between 700 MHz
    licensees and incumbent broadcasters.

[^107]: Motorola Reply at 2.

[^108]: *See, e.g., West Michigan Telecasters, Inc. v. FCC*, 460 F.2d
    883 (D. C. Cir. 1972) (*West Michigan Telecasters*) (losses in
    service are *prima facie* inconsistent with the public interest, and
    must be supported by a strong showing of countervailing factors).

[^109]: *See, e.g.,* Public Interest Obligations of TV Broadcast
    Licensees, MM Docket No. 99-360, *Notice of Inquiry*, 14 FCC Rcd
    21633 (1999).

[^110]: *See, e.g.,* *West Michigan Telecasters.*

[^111]: Our rules specifically require new licensees to provide adjacent
    channel protection to broadcasters on Channel 59, as well as
    protection to Channels 60-69. *See 700 MHz First Report and Order,*
    15 FCC Rcd at 532-33 (para. 141). Thus, we would apply the standards
    to voluntary agreements for an accelerated DTV transition for
    stations on Channel 59. *See* Reallocation of Television Channels
    60-69, the 746-806 MHz Band, ET Docket No. 97-157, *Report and
    Order*, 12 FCC Rcd 22953 at 22955 (para. 4) (1998), *citing* PSWAC,
    Final Report of the Public Safety Wireless Advisory Committee to the
    Federal Communications Commission, Reed E. Hundt, Chairman, and the
    National Telecommunications and Information Administration, Larry
    Irving, Assistant Secretary of Commerce for Communications and
    Information (Final Report)(1996).

[^112]: Specifically, Spectrum Exchange contends that we should
    establish a strong presumption when the affected television market
    has 60 percent or better cable penetration and the individual
    station certifies that it will establish DTV-only transmissions for
    at least 80 percent of the hours per week that it broadcast by
    analog signal in 1999. Spectrum Exchange *ex parte* filing, May 3,
    2000.

[^113]: Paxson states that its amenability to relocation is contingent
    on: (1) having an "acceptable" DTV must carry rule in place; (2)
    having an established FCC policy for moving DTV allocations from the
    700 MHz band; and (3) receiving "reasonable compensation" from
    auction bidders for terminating analog operations. Paxson
    Communications *ex parte* filing, May 3, 2000.

[^114]: *But see* 47 C.F.R. § 1.2105(c) (anti-collusion rule).

[^115]: 47 C.F.R. §§ 73.3580(d), 73.3572(a). Because analog and DTV
    broadcasting authority is conjoined in a single, unitary license,
    discontinuance of the analog over-the-air signal is a modification
    of license rather than a complete discontinuance of service.

[^116]: *See* 47 U.S.C. § 316.

[^117]: For example, we can envision voluntary agreements that would
    result in a particular incumbent station in the 700 MHz band, as a
    practical matter, being unable to deliver a viewable signal
    throughout its entire Grade B contour. However, where implementation
    of a voluntary agreement would result in a theoretical loss of
    service, we will permit the parties to demonstrate that no actual
    loss of service to viewers will occur, based upon the procedures set
    forth in OET Bulletin No. 69.

[^118]: The presumption, as well as the case-by-case analysis described
    in paras. 63-65, is applicable to Channel 59 as well because new 700
    MHz licensees are required to protect broadcasters on that channel.
    *See* note 111, *supra*.

[^119]: These are important and valuable services. *See 700 MHz First
    Report and Order*, 15 FCC Rcd at 492 (para. 38) (potential use of
    wider, 10 megahertz segments for broadband services, including
    higher speed Internet access); 15 FCC Rcd at 497-498 (para. 52)
    (facilitating use of bands for next generation applications that
    would benefit from economies of scale provided by licensing on
    national or large regional basis). *See also* Deployment of Advanced
    Telecommunications Capability to All Americans in a Reasonable and
    Timely Fashion, and Possible Steps to Accelerate Such Deployment
    Pursuant to Section 706 of the Telecommunications Act of 1996, CC
    Docket No. 98-146, *Report*, 14 FCC Rcd 2398, 2400-2403 (paras. 1-8)
    (1999) (*Section 706 Report*).

[^120]: Because conventional broadcast signals require protection from
    transmissions on both their own channel and adjacent channels, the
    relocation or termination of a broadcast service increases the
    usability of spectrum beyond the immediate channel vacated. Thus, an
    agreement between a commercial service provider and a broadcaster to
    clear a specific channel will inherently mitigate interference to
    users on adjacent channels, and these users may include public
    safety entities.

[^121]: *See* Extending Wireless Telecommunications Services to Tribal
    Lands, WT Docket No. 99-266, *Notice of Proposed Rulemaking*, 14 FCC
    Rcd 13679 (1999), *Report and Order and Further Notice of Proposed
    Rulemaking*, FCC 00-209, adopted June 8, 2000; Statement of Policy
    on Establishing a Government-to-Government Relationship with Indian
    Tribes, FCC 00-207, adopted June 8, 2000; Federal-State Joint Board
    on Universal Service: Promoting Deployment and Subscribership in
    Unserved and Underserved Areas, Including Tribal and Insular Areas,
    CC Docket No. 96-45, *Further Notice of Proposed Rulemaking*, 14 FCC
    Rcd 21177 (1999), *Twelfth Report and Order, Memorandum Opinion and
    Order, and Further Notice of Proposed Rulemaking*, FCC 00-208,
    adopted June 8, 2000. *See also Section 706 Report*, 14 FCC Rcd at
    2432-2442 (paras. 63-84) (service to rural areas and elementary and
    secondary schools).

[^122]: To make this showing, an applicant would have to demonstrate
    that the entire loss area would continue to receive Grade B service
    or protected Class A service from these four stations, based on the
    stations' market share for the most recent rating period prior to
    the filing of the application. Determination of the four stations
    with largest market shares in a DMA will be consistent with our
    existing regulations and practice in other broadcast regulation
    contexts. *See* Review of the Commission's Regulations Governing
    Television Broadcasting, Television Satellite Stations Review of
    Policy and Rules, *Report and Order*, MM Docket Nos. 91-221, 87-8,
    14 FCC Rcd 12903 (1999).

[^123]: 47 C.F.R. § 73.606(a).

[^124]: The Commission recently weighed multiple public interest factors
    in considering several applications for modification of licensed
    television facilities in the Los Angeles market. KRCA License Corp.,
    15 FCC Rcd 1794 (1999).

[^125]: TV white area is an area not served by any Grade B television
    signal. TV gray area is an area served by only one Grade B
    television signal.

[^126]: See paragraph 65 below.

[^127]: Carriage of the Transmissions of Digital Television Broadcast
    Stations, CS Docket No. 98-120, *Notice of Proposed Rulemaking*, 13
    FCC Rcd. 15092 (1998). We first sought and received comments
    addressing digital broadcast television carriage issues in 1995 in
    another docket. *See* Advanced Television Systems and Their Impact
    Upon the Existing Television Broadcast Service, *Fourth Further
    Notice of Proposed Rulemaking and Third Notice of Inquiry*, 10 FCC
    Rcd. 10540 (1995).

[^128]: We note that most cable industry comments filed in the DTV Must
    Carry proceeding (CS Dkt. No. 98-120) objected to mandatory carriage
    of digital broadcast signals in addition to the existing mandatory
    carriage of analog signals during the transition. These comments did
    not object to carriage of digital only signals after the transition
    to DTV is completed and broadcasters' analog spectrum is returned.
    *See, e.g.,* Armstrong Holdings Inc. and Inter Mountain Cable
    Comments at 36 ("A broadcaster should only be able to convert must
    carry rights to its digital channel when it actually returns the
    analog channel to the Commission. . ."); *cf.* Paxson Communications
    *ex parte* filing, April 7, 2000 (Broadcast group owner's discussion
    paper on must carry requirement during digital transition). *See
    also,* NCTA Comments at 4 (focussing on objections to
    "[double]{.underline} carriage obligations" (emphasis in original)),
    and Time Warner Cable Comments at 3 (drawing a distinction between
    mandatory carriage of digital signals during the transition, as
    opposed to digital carriage after a broadcaster has surrendered its
    analog spectrum). Nothing in Section 614 of the Communications Act,
    the "must carry" provision, limits that obligation to analog
    commercial television. *See* 47 U.S.C. § 534. *See also* NCTA *ex
    parte* filing, June 6, 2000, in WT Dkt. No. 99-168 ("may not be
    objectionable" for cable operator to continue to carry DTV
    programming, in analog format, on the same channel previously used
    for the analog signal, if provided an analog feed at the system
    headend).

[^129]: *DTV Fifth Report and Order,* 12 FCC Rcd 12809, 12856 (1997).

[^130]: *700 MHz First Report and Order,* 15 FCC Rcd at 483, 485-86
    (paras. 15, 19).

[^131]: *700 MHz First Report and Order,* 15 FCC Rcd at 483-84 (para. 15
    n.37).

[^132]: ALTV's petition addresses the regulation of conventional
    television and counterpart services on the 700 MHz band. It does not
    consider, and we do not here address, any issues that might arise
    when determining the regulatory status of broadcast-type, non-video
    services.

[^133]: *700 MHz First Report and Order,* 15 FCC Rcd at 490-91 (paras.
    33-34).

[^134]: In the *700 MHz Second Report and Order*, we adopted more
    stringent interference protection standards for these Guard Bands
    than we had adopted in the *700 MHz First Report and Order* for the
    10 and 20 megahertz segments that do not directly abut public safety
    spectrum. *See 700 MHz Second Report and Order,* 15 FCC Rcd at
    483-87, 515-17 (paras. 14-24, 98-101).

[^135]: MSTV Petition at 10-11.

[^136]: *700 MHz First Report and Order* 15 FCC Rcd at 491 (para. 34).

[^137]: *See, e.g.*, APCO Opposition at 3; TRW Consolidated
    Comments/Opposition at 8-9.

[^138]: We determined that the creation of guard bands would
    "effectively preclude . . . operations from spectrum that was
    allocated for such purposes," and would require additional notice
    and comment at the service rules stage of the proceeding. *5 GHz
    Allocation Fourth Report and Order*, 11 FCC Rcd at 13369-70 (para.
    35).

[^139]: Northcoast Petition at 3. No oppositions, comments or replies
    were filed on this issue.

[^140]: *See* 1998 Biennial Regulatory Review\--Spectrum Aggregation
    Limits for Wireless Telecommunications Carriers, WT Docket No.
    98-205, Cellular Telecommunications Industry Association\'s Petition
    for Forbearance from the 45 MHz CMRS Spectrum cap, Amendment of
    Parts 20 and 24 of the Commission\'s Rules\--Broadband PCS
    Competitive Bidding and the Commercial Mobile Radio Service Spectrum
    Cap, WT Docket No. 96-59, Implementation of Sections 3(n) and 332 of
    the Communications Act, GN Docket No. 93-252, *Report and Order*,
    FCC 99-244 (rel. Sept. 22, 1999) 1999 WL 734848, at paras. 20-27,
    66-67 (*Spectrum Cap Report and Order*).

[^141]: Northcoast Petition at 2.

[^142]: *See 700 MHz First Report and Order,* 15 FCC Rcd at 497-98
    (para. 52).

[^143]: In our 1998 biennial review of the CMRS spectrum cap, we
    declined to increase the cap, except in those rural areas in which
    we determined that an increase was necessary to facilitate the
    deployment of CMRS. *See Spectrum Cap Report and Order* at paras.
    20-27, 66-67.

[^144]: *700 MHz First Report and Order,* 15 FCC Rcd at 500 (para. 56).

[^145]: Rand McNally Petition at 1. The Commission received no
    oppositions, comments or replies on this issue.

[^146]: *See* Rand McNally filing of April 18, 2000.

[^147]: *See* Amendment of Parts 0, 1, 13, 22, 24, 26, 27, 80, 87,90,
    95, 97 and 101 of the Commission's Rules to Facilitate the
    Development and Use of the Universal Licensing System in the
    Wireless Telecommunications Services, WT Docket No. 98-20, WT Docket
    No. 96-188, RM-8677, *Report and Order*, 13 FCC Rcd 21027 (1998)
    (*ULS Report and Order*).

[^148]: *See 700 MHz First Report and Order,* 15 FCC Rcd at 527
    (para.124).

[^149]: *See 700 MHz First Report and Order,* 15 FCC Rcd at 527
    (para.126).

[^150]: US WEST Petition at 4.

[^151]: Auction of Licenses in the 747-762 and 777-792 MHz Bands
    Scheduled for September 6, 2000, Comment Sought On Modifying the
    Simultaneous Multiple Round Auction Design to Allow Combinatorial
    (Package) Bidding, *Public Notice*, DA 00-1075, released May 18,
    2000 ("*Package Bidding Comment PN*").

[^152]: Amendment of Part 1 of the Commission's Rules -- Competitive
    Bidding Proceeding, WT Docket No. 97-82, *Order, Memorandum Opinion
    and Order and Notice of Proposed Rule Making*, 12 FCC Rcd 5686,
    5697-98 (para. 16) (1997).

[^153]: For instance, we note that in the *Package Bidding Comment PN*,
    the Bureau sought comment on modifications to the general
    competitive bidding default payment rule, 47 C.F.R. § 1.2104(g)(2).

[^154]: *See 700 MHz First Report and Order,* 15 FCC Rcd at 529-30
    (para. 133).

[^155]: *See* 47 C.F.R. § 1.2110(e)(2)(iii) and § 1.2110(e)(2)(ii),
    respectively.

[^156]: We noted that the consortium must observe the Commission's
    Rules, including Section 1.2105(a), which requires that consortium
    applicants identify all consortium members and any agreements
    relating to the post-auction market structure, and the
    anti-collusion provisions of Section 1.2105(c). *See* 47 C.F.R. §
    1.2105(a)(2)(viii); 47 C.F.R. § 1.2105(c).

[^157]: Nelson Petition at 1-2. Nelson provides SMR services in Phoenix
    and characterizes itself as a "very small business."

[^158]: *Id.* at 4-5.

[^159]: *See* 47 C.F.R. § 24.720(b); 47 C.F.R. § 27.210(b); 47 C.F.R. §
    101.1209(b).

[^160]: Fresno Mobile Radio, Inc. v FCC *et al*., 165 F.3d 965 (D.C.
    Cir. 1999) (*Fresno*).

[^161]: *See Part 1 Third Report and Order*, 13 FCC Rcd at 403-04,
    paras. 47-48.

[^162]: *First Report and Order* at para. 145.

[^163]: For example, reaching a clearing agreement with one incumbent
    licensee may benefit other 700 MHz licensees using the TV
    incumbents' operating channel and licensees using the adjacent
    channels. A review of the 700 MHz band plan shows, for example, that
    clearing Channel 60, 61, 65 or 66 will benefit both of the major
    commercial licensees within an EAG (as well as possibly benefiting
    the guard band and public safety licensees). Further, the Grade B
    contour of a cleared station might lie within two EAGs and clearing
    the station will therefore benefit the licensees in both EAGs.

[^164]: *See* Amendment to the Commission's Rules Regarding A Plan for
    Sharing the Costs of Microwave Relocation, WT Dkt. No. 95-157,
    *First Report and Order and Further Notice of Proposed Rule Making*,
    11 FCC Rcd 8825 (1996) (*Cost Sharing First Report and Order and
    Further NPRM*), *Second Report and Order*, 12 FCC Rcd 2705 (1997);
    Amendment of Part 90 of the Commission's Rules to Facilitate Future
    Development of SMR Systems in the 800 MHz Frequency Band, *Second
    Report and Order*, 12 FCC Rcd 19079, 19114-26 (paras. 96-132)
    (1997).

[^165]: Because we tentatively conclude not to require public safety
    licensees to pay a share of the clearing costs, *see infra* para.
    85, in most cases there will be only one or two other licensees who
    will share in the costs.

[^166]: For example, each licensee's share could be proportionate to the
    amount of spectrum authorized to the licensee. Alternatively, each
    share could be proportionate to, or adjusted for, the geographic
    area in which the licensee would be enabled to provide service by
    the clearing agreement, or by the population of such area.

[^167]: In this regard, we note that because TV incumbents are not
    required to cease operations until, at the earliest, December 31,
    2006, the significant costs to the TV incumbents of clearing the
    band before they are required to do so likely will not be the "hard"
    costs of changing equipment or advertising their new channel but the
    "soft" costs of lost profits.

[^168]: We note that in the event that, in a three-way voluntary
    agreement, a Channel 59-69 incumbent employs a lower band
    incumbent's exact facilities (*i.e.*, same location, same power,
    same antenna height), no interference issues would arise. However,
    if a Channel 59-69 incumbent seeks to operate either at a different
    location or with different technical parameters than a lower band
    incumbent, there could be a possibility for interference to other TV
    stations. We would therefore require all such requested station
    assignments to be in full compliance with prescribed interference
    criteria (*i.e*., minimum required distance separations with respect
    to other TV stations), and would address each such proposed
    assignment on a case-by-case basis.

[^169]: *See* *supra* *MO&O*, paras. 60-65.

[^170]: *See* Spectrum Exchange Group, L.L.C., Petition for Rule Making
    at 11-16 (filed Apr. 24, 2000) ("Spectrum Exchange Petition"); *see
    also* Paxson *ex parte* filing of May 3, 2000 at 1-2 and Attachment;
    Paxson *ex parte* filing of May 26, 2000 at 1-2.

[^171]: Because secondary auction options discussed here would have to
    occur prior to or simultaneously with the auction of 700 MHz
    licenses, and because of the imminence of the 700 MHz auction for
    spectrum previously allocated to TV channels 60-69, we ask for
    comment on whether it is feasible to implement these proposals for
    that auction. We note that the Commission plans to hold a future
    auction for additional spectrum in the 700 MHz band previously
    allocated to TV channels 52-59, and therefore seek comment on
    secondary auctions in that context as well.

[^172]: Spectrum Exchange Opposition at 4.

[^173]: Spectrum Exchange Petition at 9-11.

[^174]: The new 700 MHz licensee would be able to exercise the option at
    any time within a specified time frame (*e.g.*, until the DTV
    transition period terminates), although the TV incumbent would not
    be required to actually clear the band until the date specified in
    the option.

[^175]: It is true that the option might have some value to the party if
    it was able to then sell it. However, all possible users of the
    option (the holders of the related new 700 MHz licenses) were free
    to have bid in the secondary auction and chose not to outbid the
    winner. Therefore, we believe that either the winner would not be
    able to sell the option except at a loss, or it bid on the option
    for the purpose of denying it to the 700 MHz license winners in an
    effort to increase their costs of clearing the band. Since the
    latter possibility is not one that we wish to encourage, we believe
    that the better course is to limit bidding on a clearing option to
    parties who are active on a related 700 MHz license.

[^176]: *See supra* paras. 94-95*.*

[^177]: With respect to the Memorandum Opinion and Order portion of this
    document, pursuant to Pub. Law 106-113, 113 Stat. 1501, Appendix E,
    Section 213, 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, shall not apply to this proceeding.

[^178]: *See* 5 U.S.C. § 603. The RFA, 5 U.S.C. 601 *et seq.*, has been
    amended by the Contract With America Advancement Act of 1996, Pub.
    L. No. 104‑121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA
    is the Small Business Regulatory Enforcement Fairness Act of 1996
    (SBREFA).

[^179]: Public Law No. 106-113, 113 Stat. 1501, Appendix E, Section 213.

[^180]: *See* 5 U.S.C. § 603(a).

[^181]: *See id.*

[^182]: *First Report and Order* at para. 143.

[^183]: *First Report and Order* at para. 145.

[^184]: 5 U.S.C. § 603(b)(3).

[^185]: 5 U.S.C. § 601(6).

[^186]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    \"small business concern\" in 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.

[^187]: 15 U.S.C. § 632.

[^188]: 1992 Economic Census, U.S. Bureau of the Census, Table 6
    (special tabulation of data under contract to Office of Advocacy of
    the U.S. Small Business Administration).

[^189]: 5 U.S.C. § 601(4).

[^190]: 1992 Economic Census, U.S. Bureau of the Census, Table 6
    (special tabulation of data under contract to Office of Advocacy of
    the U.S. Small Business Administration).

[^191]: 5 U.S.C. § 601(5).

[^192]: U.S. Dept. of Commerce, Bureau of the Census, \"1992 Census of
    Governments.\"

[^193]: *Id.*

[^194]: *See* text accompanying note 2.

[^195]: 13 C.F.R. § 121.201, Standard Industrial Classification (SIC)
    Code 4899.

[^196]: 13 C.F.R. § 121.201, SIC 4833.

[^197]: Economics and Statistics Administration, Bureau of Census, U.S.
    Dep\'t of Commerce, 1992 Census of Transportation, Communications
    and Utilities, Establishment and Firm Size, Series UC92-S-1,
    Appendix A-9 (1995).

[^198]: *Id.*

[^199]: *Id.*

[^200]: FCC News Release No. 31327, Jan. 13, 1993; Economics and
    Statistics Administration, Bureau of Census, U.S. Dep\'t of
    Commerce, *supra*, Appendix A-9.The amount of \$10 million was used
    to estimate the number of small business establishments because the
    relevant Census categories stopped at \$9,999,999 and began at
    \$10,000,000. No category for \$10.5 million existed. Thus, the
    number is as accurate as it is possible to calculate with the
    available information.

[^201]: FCC News Release, June 19, 1998.

[^202]: *See* 47 U.S.C. § 309(j)(14).

[^203]: 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, at ¶108; see also 47 U.S.C. § 309.

[^204]: In this regard, like my colleagues Commissioners Ness and
    Tristani, I strongly oppose any mandatory relocation of incumbent
    broadcasters.

[^205]: See e.g. Pending *Digital Must Carry* Rulemaking, CS Docket No.
    98-120.

[^206]: See *Separate Statement of Commissioner Harold Furchtgott-Roth
    in* Auction of Licenses for the 747-762 And 777-792 MHz Bands
    Postponed Until September 6, 2000 -- Report No. AUC-00-31-F (Auction
    No. 31) and Auction Of Licenses For The MHz Guard Bands Postponed
    Until September 6, 2000 -- Report No. AUC-00-33-D (Auction No. 33)
    (Released May 2, 2000).

[^207]: ^.^1 *See* Separate Statement of Commissioner Gloria Tristani,
    *Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions
    to Part 27 of the Commission's Rules*, Second Report and Order, FCC
    00-90 (rel. Mar. 9, 2000).

[^208]: ^.^2 *See Service Rules for the 746-764 and 776-794 MHz Bands,
    and Revisions to Part 27 of the Commission's Rules*, First Report
    and Order, 15 FCC Rcd 476, 534 at para. 145 (2000).

[^209]: ^"^3 *Triangle Publications, Inc*., 37 FCC 307, 313 (1964),
    *citing Hall v. FCC*, 237 F.2d 567 (D.C. Cir. 1954).

[^210]: ^.^4 *See* *West Michigan Telecasters, Inc. v. FCC*, 460 F.2d
    883 (D.C. Cir. 1972).

[^211]: ^"^5 *Service Rules for the 746-764 and 776-794 MHz Bands, and
    Revisions to Part 27 of the Commission's Rules*, Memorandum Opinion
    and Order and Further Notice of Proposed Rulemaking, WT Docket No.
    99-168 (*700 MHz MO&O*) at para. 53; *see also id.* at para. 55 (".
    . . several statutory purposes involved here are best furthered by
    enabling voluntary agreements that result in the expeditious and
    efficient recovery of these frequencies for the legislatively
    specified commercial and public safety purposes.").

[^212]: ^.^6 47 U.S.C. § 309(j)(14)(B).

[^213]: ^"^7 H.R. Conf. Rep. No. 105-2015 (1997).

[^214]: ^.^8 *See, e.g,,* Letter from Pete V. Domenici, Chairman,
    Committee on the Budget, U.S. Senate, to William E. Kennard,
    Chairman, FCC (dated May 5, 2000) ("The purpose of this acceleration
    was to provide an 'offset' so that fiscal year 2000 appropriations
    would not exceed the spending limits established in the law. . . .
    My motivation was purely budgetary.").

[^215]: ^.^9 *See, e.g., 700 MHz MO&O* at para. 50 ("We expect that
    incumbents will enter into such agreements only when they determine
    that the long term viability of their service will be improved
    thereby.").

[^216]: ^.^10 *See* *Advanced Television Systems and Their Impact upon
    the Existing Television Broadcast Service*, Fifth Report and Order,
    12 FCC Rcd 12809, 12841 at para. 76 (1997) (requiring those
    commercial broadcasters that have not yet constructed DTV facilities
    to do so by May 1, 2002).

[^217]: ^.^11 *700 MHz MO&O* at para. 60.

[^218]: ^"^12 *Id.* at para. 58.

[^219]: 13 *Id.* at para. 56.

[^220]: ^.^14 *See id.* at paras. 90-91.

[^221]: ^.^15 *See id.* at para. 92 (seeking comment on industry
    proposals).