Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | ) | WT Docket No. 96-86          |
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| The Development of Operational,  | ) |                              |
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| Technical and Spectrum           | ) |                              |
| Requirements                     |   |                              |
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| for Meeting Federal, State and   |   |                              |
| Local                            | ) |                              |
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| Public Safety Agency             | ) |                              |
| Communication Requirements       |   |                              |
| Through the Year 2010            | ) |                              |
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**FIFTH REPORT AND ORDER**

**Adopted: July 16, 2002** **Released: August 2, 2002**

By the Commission:

Table of Contents

Heading Paragraph

I. INTRODUCTION and executive summary 1

II\. Background 3

III\. Discussion 7

A. Migration Timing 7

1\. Migration Path to a 6.25 kHz Voice Efficiency Requirement 7

2\. Fixed or Contingent Benchmarks 10

3\. Implementation 13

a\. Establishing Specific Migration Dates 13

b\. Effect of Implementation 16

B. Rural and Urban Markets 20

C. Migration for General Use and State License Channels 25

D. Section 90.533 -- Transmitting sites near the U.S./Canada or
U.S./Mexico border 29

IV\. Procedural matters 30

A. Regulatory Flexibility Act 30

B. Paperwork Reduction Act 31

V. ordering clauses 34

Appendices:

Appendix A -- List of Commenters

Appendix B -- Final Regulatory Flexibility Analysis

Appendix C -- Final Rules

# INTRODUCTION and executive summary

1.  In this *Fifth Report and Order*, we adopt a migration path to a
    6.25 kHz voice efficiency requirement for the 764-776 MHz and
    794-806 MHz band General Use and State License channels.[^1] The
    actions we take today are based on the record developed in response
    to the *Fifth Notice of Proposed Rule Making* in the above-captioned
    proceeding. In addition to the adoption of a specific migration path
    for the General Use and State License channels, we clarify the rule
    relating to cross-border interference with Canada to comport with
    current international agreements.

2.  In keeping with the Commission's safe harbor guidelines to
    facilitate use of the 764-776 MHz and 794-806 MHz band, we are
    mindful that the migration path we adopt today must not hinder the
    development and deployment of public safety equipment.[^2]
    Additionally, we believe the migration path must not result in a
    delay in the planning and construction of pubic safety systems in
    this band.[^3] Accordingly, we adopt the following measures to
    ensure efficient, effective and maximized use of the narrowband
    General Use and State License channels of the 700 MHz public safety
    band:

-   Allow the marketing, manufacture and importation of 12.5 kHz
    equipment until December 31, 2006.[^4]

-   Accept applications for filing to use 12.5 kHz equipment that are
    filed on or before December 31, 2006.

-   Accept applications for filing for *new* systems to use 6.25 kHz
    equipment that are filed after December 31, 2006.

-   Permit legacy licensees to continue using 12.5 kHz based systems
    until December 31, 2016.

-   Permit legacy licensees to purchase dual mode equipment (operates in
    12.5 or 6.25 kHz mode) for system expansion or maintenance and
    operate it in the 12.5 kHz mode until December 31, 2016.

-   Ban the marketing, manufacture and importation of equipment that is
    exclusively 12.5 kHz effective after December 31, 2006.

-   Cease type certifying equipment that is exclusively 12.5 kHz after
    December 31, 2006.

-   Require use of 6.25 kHz equipment exclusively effective after
    December 31, 2016.

# Background 

3.  Previously, the Commission allocated twenty-four megahertz of
    spectrum at 764-776 MHz and 794-806 MHz (hereinafter \"the 700 MHz
    public safety band\") for public safety use.[^5] The Commission
    designated the spectrum for use as follows: 12.5 megahertz for
    General Use, 2.6 megahertz for Interoperability, 2.4 megahertz for
    State License, 0.3 megahertz for Low Power, 0.2 megahertz for
    Secondary Trunking, and 6.0 megahertz for Reserve.[^6] The
    Commission also divided the twenty-four megahertz of spectrum into
    narrowband (6.25 kHz channel) and wideband (50 kHz channel)
    segments. The Commission mandated that in order to receive FCC
    certification, all transmitters in the 700 MHz band must use digital
    modulation and that transmitters designed to operate in the
    narrowband segment must maintain a minimum data rate of 4.8 kbps per
    6.25 kHz of bandwidth.[^7]

4.  In the *Fourth Notice of Proposed Rulemaking* in this proceeding,
    the Commission sought comment solely on the issue of migration to
    6.25 kHz efficiency only for the 700 MHz band Interoperability
    channels.[^8] In responding to the *Fourth Notice* issue, however,
    several commenters opined not only on migration path issues
    regarding the Interoperability channels, but also the General Use
    channels. We received no comments, however, on a migration path for
    the State License channels.

5.  When the Commission issued the *Fourth R&*O, on January 11, 2001,
    the Commission did not believe it could adopt a rule requiring
    equipment operating on the General Use channels to meet a spectrum
    efficiency requirement of one voice channel per 6.25 kHz given that
    it did not seek specific comment on the issue raised by those
    commenters to the *Fourth Notice*.[^9] Accordingly, the Commission
    sought to address these concerns by seeking comment, in the
    concurrently released *Fifth NPRM*, on the best manner to implement
    a one voice channel per 6.25 kHz of bandwidth requirement for the
    General Use channels.[^10]

6.  The Commission recognized, however, that the outstanding migration
    issues, raised in the *Fifth Notice*, might inhibit immediate use of
    the 700 MHz public safety band where it is available.[^11] To
    facilitate use of the spectrum where it is available, the Commission
    adopted a "safe harbor" policy to encourage the expeditious
    development and deployment of 700 MHz band equipment on the General
    Use channels.[^12] This policy allows any systems constructed and
    placed in operation prior to December 31, 2005, to employ 12.5 kHz
    channel width and to continue to purchase and deploy 12.5 kHz
    equipment for system expansion and maintenance.[^13] The Commission
    further concluded that the earliest it would require new systems to
    utilize 6.25 kHz channel technology would be December 31, 2005.[^14]
    Finally, the Commission decided that it would not require these
    systems to cease operations and convert to 6.25 kHz channel width
    until December 31, 2015.[^15] This *Fifth Report and Order* sets
    forth the migration path to a 6.25 kHz requirement for the General
    Use and State License channels.

# Discussion

## Migration Timing

### Migration Path to a 6.25 kHz Voice Efficiency Requirement 

7.  *Background*. In light of the Commission's commitment to ultimately
    require equipment operating on the General Use channels to meet a
    spectrum efficiency requirement of one voice channel per 6.25 kHz,
    the Commission sought comment on the most expeditious and effective
    manner to achieve this result.[^16] In the *Fifth Notice*, the
    Commission noted that Com-Net Ericsson Critical Radio Systems Inc.
    (Com-Net Ericsson), Nokia, Inc. (Nokia) and North American TETRA
    Forum (NATF) advocate immediate adoption of a one voice path per
    6.25 kHz of channel bandwidth requirement, for voice operations on
    the General Use channels,[^17] while the Association of
    Public-Safety Communications Officials, International ("APCO") and
    the International Association of Chiefs of Police ("IACP") advocate
    a five-step, twenty-one year migration plan.[^18] As indicated in
    the *Fifth Notice,* step one of the APCO/IACP plan requires the
    immediate adoption of Project 25 Phase I as the Interoperability
    requirement.[^19] Step two requires that all newly type-accepted
    radios for use in the band have the capability to provide one voice
    channel per 6.25 kHz and still meet the Project 25 Phase I standard
    for the Interoperability channels.[^20] Specifically, step two would
    occur as of the later of two dates: December 31, 2006 or within six
    months following Commission notice that at least fifteen of the top
    twenty metropolitan areas have been cleared of relevant television
    stations.[^21] Step three requires that within ten years after the
    date established above, all General Use operations must utilize 6.25
    kHz channel width in the top fifty metropolitan areas.[^22] Step
    four requires that all General Use operations must utilize 6.25 kHz
    channel width within fifteen years after the date established in
    Step two.[^23] Finally, as of the date established in Step two, the
    Commission must re-examine technological and marketplace
    developments and determine whether it is possible to develop a
    migration path for the subsequent transition to a 6.25 kHz
    interoperability standard.[^24]

8.  *Discussion.* We believe a phased implementation of the 6.25 kHz
    channel efficiency strikes the appropriate balance between providing
    the public safety community with rapid access to the 700 MHz public
    safety band and ensuring efficient spectrum use. This approach
    comports with the Commission's "safe harbor" provisions in the
    *Fourth R&O,*[^25] and provides public safety entities sufficient
    time for long-range strategic and financial planning. The majority
    of commenters favor the phased implementation of 6.25 kHz channel
    efficiency envisioned in the APCO/IACP plan.[^26] Consequently, APCO
    also states that its plan would allow installation of both 12.5 kHz
    and 6.25 kHz equipment for General Use operation in the near term,
    "but would require that 700 MHz public safety band equipment
    \[certificated\] after a specific date to have 6.25 kHz capability
    (but still maintain Project 25 Phase I for Interoperability
    channels)."[^27]

9.  However, support for the general framework of the APCO/IACP plan is
    not unanimous. Nokia contends that "the Commission should not
    seriously contemplate a decades long migration to 6.25 kHz
    efficiency for the General Use channels,"[^28] asserting that once
    an embedded base of 12.5 kHz infrastructure deployed in the 700 MHz
    band exists, "any migration to 6.25 will be exceedingly difficult
    and expensive."[^29] APCO objects to the Commission characterization
    of the APCO/IACP plan "as too long of a migration path when
    considering the demand for public safety spectrum."[^30] APCO notes
    that its plan "fits well within the 'safe harbor' established in the
    *Fourth R&*O."[^31] Specifically, APCO clarified that the
    implementation dates of its plan coincide with the digital
    television (DTV) conversion. We agree with Nokia that it will be
    difficult to transition to 6.25 kHz efficiency once a public safety
    entity has become "embedded" in the 700 MHz public safety band using
    12.5 kHz equipment, however, the rules we adopt today are designed
    to prevent such an occurrence. By allowing for the continued use of
    12.5 kHz equipment through the normal life-span of the equipment as
    well as providing for interoperability with 6.25 kHz systems, we
    expect that the migration will be efficient and orderly. Our concern
    that mandating the use of 6.25 kHz technology would only serve to
    delay the use of the 700 MHz public safety band spectrum where it is
    presently available, has not abated;[^32] but based on our review of
    the comments, we note that the public safety community supports a
    migration to 6.25 kHz voice efficiency on a reasonable timetable
    that promotes both maximum spectrum efficiency and use of the 700
    MHz public safety band where available.

### Fixed or Contingent Benchmarks

10. *Background*. In the *Fifth Notice,* the Commission indicated that
    there were several factors that could impact the length of the
    migration.[^33] Accordingly, the Commission requested the commenters
    to identify such factors and the potential impact that they would
    have on the duration of a migration period.[^34] Under the APCO/
    IACP plan, the adoption of a 6.25 kHz voice efficiency requirement
    for the General Use channels is linked to the DTV transition.
    Specifically, the APCO/IACP plan requires that all newly
    type-accepted radios for use in the 700 MHz public safety band must
    have the 6.25 kHz technology by the later of December 31, 2006 or
    within six months of Commission notice that at least fifteen of the
    top twenty metropolitan areas have been cleared of relevant
    television stations.[^35]

11. *Discussion.* We are persuaded by the view of the majority if
    commenters against linking the implementation of 6.25 kHz technology
    to the DTV transition.[^36] We agree with California that the
    transition to 6.25 kHz efficiency will be driven by equipment
    availability, as opposed to the implementation of DTV.[^37] In this
    connection, we note that several equipment manufacturers have
    indicated their ability to manufacture 6.25 kHz equipment (that
    meets the Interoperability capability requirement) before December
    31, 2006.[^38] Moreover, we believe that establishing a fixed date
    provides notice and certainty to all interested parties in a manner
    that facilitates future planning. In this connection, we find
    persuasive Com-Net Ericsson's contention that requiring migration by
    a date certain will require all affected public safety agencies to
    adequately consider migration issues in the initial procurement
    process, whether through the initial equipment decision or through
    incorporating migration requirements in any procurement
    contract.[^39] We also agree with Com-Net Ericsson that setting a
    date certain eliminates the potentially troublesome scenario in
    which equipment manufacturers and public safety agencies would have
    only six months, after the Commission issues notice that an
    appropriate level of DTV transition has occurred, to prepare and
    implement a migration plan.[^40] Moreover, as Com-Net Ericsson notes
    citing the experience of the *Refarming* proceeding, absent specific
    dates there is little motivation for users of land mobile radio
    spectrum to utilize newer more spectrally efficient
    technologies.[^41] Thus, we conclude that certainty in knowing a
    definite date for migration will ensure an effective and efficient
    migration to a 6.25 kHz requirement.

12. Although we conclude that the migration dates need not be linked to
    the DTV transition, we acknowledge APCO\'s point that the pace of
    the DTV transition could impact equipment availability. 
    Accordingly, the Commission will monitor - through our equipment
    certification process - whether 6.25 kHz equipment is likely to be
    commercially available relative to the deadline; if future
    circumstances warrant, the Commission reserves the right to take
    appropriate actions (including altering the implementation schedule)
    as necessary.  

### Implementation

#### Establishing Specific Migration Dates

13. *Background.* As previously noted, in adopting the safe harbor
    provisions of the *Fourth R&O*, the Commission announced December
    31, 2005 as the earliest date new systems would have to employ 6.25
    kHz technology.[^42] Additionally, "any 12.5 kHz-based systems
    constructed and placed in operation prior to December 31, 2005, may
    continue to purchase and deploy 12.5 kHz equipment for system
    expansion or maintenance, and will not be required to cease
    operations and convert to 6.25 kHz technology" earlier than December
    31, 2015.[^43]

14. *Discussion.* Commenters are less concerned about which date we
    ultimately choose, and more concerned that we actually choose a date
    certain. Com-Net Ericsson suggests the adoption of December 31,
    2005, as the date by which "new" systems must have 6.25 kHz or
    equivalent voice efficiency. Com-Net Ericsson believes that this
    date allows early access to the spectrum while promoting efficient
    use of the spectrum.[^44] The APCO/IACP plan puts forth December 31,
    2006, as the earliest date by which all newly certificated radios
    must have the capability to provide one voice channel per 6.25 kHz
    and must still meet the Project 25 Phase I standard for the
    Interoperability channels.[^45] APCO also suggests December 31,
    2016, as the earliest date all General Use operations must be
    operating at 6.25 kHz efficiency in the major urban areas of the
    United States.[^46] IMSA/IAFC urges the Commission to adopt the
    December 31, 2005 and December 31, 2015 dates as firm compliance
    dates regarding permissive use of 12.5 kHz bandwidth equipment on
    the General Use channels.[^47]

15. Based on the record before us, we believe that the dates offered in
    the APCO/IACP plan (*i.e.*, December 31, 2006, and December
    31, 2016) are appropriate benchmark dates exclusive of any
    conditioning clauses. We note that commenters in favor of a phased
    migration to 6.25 kHz efficiency requirement generally agree that
    these dates will give radio equipment manufacturers sufficient time
    to research, develop and manufacture compliant equipment, while
    providing public safety entities that purchase 12.5 kHz equipment
    prior to December 31, 2006, a reasonable equipment life of ten
    years.[^48] We also note that radio manufacturers have indicated
    their ability to comply with these dates.[^49] We believe that
    establishing dates certain now will commence and promote competition
    among public safety radio equipment manufacturers. It also
    establishes certain parameters so that manufacturers who have not
    previously developed public safety equipment can accurately gauge
    the task before them. We believe that providing an additional year
    beyond the date announced in the safe harbor policy will allow both
    manufacturers and public safety entities to engage in strategic
    long-range planning. Finally, we note that the record does not
    contain convincing evidence for extending these dates beyond 2006
    and 2016. Accordingly, for the reasons discussed above, we are not
    adopting the APCO/IACP proposal to link these dates to the DTV
    transition.[^50]

#### Effect of Implementation

16. We now define the practical implications of our selection of these
    dates. As a preliminary matter we stress that these dates apply with
    equal force to both State Licensees and licensees of General Use
    channels. Applications for new systems filed after December 31,
    2006, will be granted only to use 6.25 kHz equipment. "Legacy
    licensees," *i.e*., licensees of 12.5 kHz-based systems authorized
    based on an application filed on or before December 31, 2006
    ("legacy systems"), may continue to use 12.5 kHz equipment marketed
    before December 31, 2006 (legacy equipment), until December
    31, 2016. Additionally, after December 31, 2006, legacy licensees
    may purchase dual mode equipment (*i.e.*, equipment that operates
    utilizing 6.25 kHz channels, but is backward compatible with 12.5
    kHz bandwidth equipment) for legacy system expansion or maintenance
    and operate it in the 12.5 kHz mode until December 31, 2016.[^51] We
    note that some legacy licensees may not complete construction of its
    entire system before December 31, 2006. Thus, we clarify that only
    legacy licensees will have the option of using 12.5 kHz equipment
    after December 31, 2006. However, applicants/licensees who apply to
    operate new systems after December 31, 2006, will not be able to
    operate 12.5 kHz equipment in their systems.[^52] In making this
    decision, we recognize APCO's contention that requiring legacy
    licensees to purchase dual mode equipment could impose substantial
    additional costs on agencies and tax payers.[^53] In this
    connection, we consider that a uniform nationwide, predictable
    migration to 6.25 kHz offers economies of scale and other incentives
    that promote a competitive equipment market by encouraging new
    entrants. Moreover, we believe that APCO's proposal is misplaced
    because requiring dual mode equipment, for legacy system expansion
    or maintenance, provides legacy licensees with a fiscally prudent
    method of achieving spectral efficiency. Specifically, dual mode
    equipment will have backward compatibility with legacy systems,
    *e.g.*, for accessing a legacy system\'s repeater or for
    mobile-to-mobile direct communication. Moreover, as legacy systems
    add dual mode units for expansion or maintenance, these systems
    become increasingly forward compatible with new systems operating in
    the 6.25 kHz mode. By allowing legacy licensees the ability to
    gradually bring their systems to 6.25 kHz efficiency through the use
    of dual mode equipment we are providing agencies and taxpayers the
    opportunity to finance this conversion over an extended period of
    time. By contrast, allowing legacy licensees to continue purchasing
    12.5 kHz equipment until the date it becomes illegal to use such
    equipment would ensure confusion and deprive licensees of a minimum
    10-year life cycle for 'pure' 12.5 kHz radios. . . .[^54] Moreover,
    these licensees would have to replace their entire systems, a
    substantially greater financial burden than a gradual transition.

17. Finally, we emphasize that all systems licensed on the General Use
    and State License channels of the 700 MHz public safety band must
    cease 12.5 kHz operations on these channels, and use 6.25 kHz
    equipment exclusively by December 31, 2016. In taking this position
    we reject APCO's and California's proposed plans to allow certain
    licensees to operate 12.5 kHz operations indefinitely on a secondary
    basis.[^55] While we are cognizant that requiring public safety
    entities to migrate to more spectrally-efficient systems is not a
    cost-free requirement, we believe that failing to take this step
    would engender indefinite reliance on 12.5 kHz equipment, defeating
    the Commission's goal of expeditious development and deployment of
    spectrum efficient public safety equipment in the 700 MHz band.[^56]
    The public safety community has opined in various dockets that it
    does not have sufficient spectrum to accomplish its important
    objectives.[^57] Requiring exclusive use of 6.25 kHz equipment will
    effectively double the amount of spectrum available to public safety
    entities on the General Use and State License channels. This
    doubling will not be contingent upon the Commission's procurement
    and allocation of additional spectrum for public safety entities,
    but through the Commission's requirement that these entities use
    more efficient equipment. We believe such expansion of the spectrum
    for public safety use is in the public interest. Accordingly, we
    will prohibit the use of 12.5 kHz equipment, including the 12.5 kHz
    component of dual mode equipment, on the General Use and State
    License channels after December 31, 2016.

18. We therefore conclude that after December 31, 2006, we will ban the
    marketing, manufacture and importation of equipment that is
    exclusively 12.5 kHz, will no longer certify equipment that is
    exclusively 12.5 kHz, or that lacks 6.25 kHz efficiency and only
    certify equipment that is dual mode. We further conclude that after
    December 31, 2016, all systems must cease 12.5 kHz operations for
    the General Use and State License channels, and use 6.25
    kHz-compatible equipment exclusively. To ensure compliance with our
    December 31, 2006 migration deadline, we will require the Wireless
    Telecommunications Bureau to release a public notice listing all
    systems on the General Use and State License channels that are
    authorized to utilize 12.5 kHz equipment.[^58] The Wireless
    Telecommunications Bureau will release this public notice no later
    than by January 31, 2007 (January 2007 PN). Any system that is not
    listed on this public notice may not use 12.5 kHz compatible
    equipment after December 31, 2006.[^59]

19. To ensure compliance with our December 31, 2016 deadline, each
    licensee of a system listed on the January 2007 PN must declare to
    the Commission that its system(s) are using 6.25 kHz equipment
    exclusively.[^60] Although the declaration may be filed as soon as
    the licensee converts its system exclusively to 6.25 kHz equipment,
    each licensee must file this declaration no later than January
    31, 2017. Licensees must submit this filing electronically through
    the Commission's Universal Licensing System. The Commission intends
    to assist the pertinent licensees with this declaration by sending a
    reminder notice to the licensees in June of 2016 and again in
    December of 2016.[^61]

## Rural and Urban Markets

20. *Background.* In the *Fifth Notice*, the Commission noted that it
    may be appropriate to establish multiple migration paths for
    different types of entities. Specifically, the Commission requested
    comment on whether different migration paths would be appropriate
    for public safety entities in rural and urban areas given their
    different needs.[^62]

21. *Discussion.* We believe the benefits of adopting a nationwide
    migration path outweigh the benefits that could be achieved from
    adopting separate migration paths for rural and urban areas. We are
    concerned that separate migration paths for urban and rural areas
    may increase interference concerns and complicate frequency
    coordination. Additionally, we believe a single, nationwide
    migration path could lead to economies of scale. Because we are
    mindful of the administrative burden that separate migration paths
    could present to equipment manufacturers, public safety entities,
    and the Commission, and noting that no compelling rationale has been
    presented in support of differentiating between urban and rural
    users, we decline to adopt a separate migration path for rural
    users. Accordingly, we conclude that there will be a single,
    nationwide migration path to 6.25 kHz voice efficiency for all
    General Use and State License operations nationwide.

22. APCO contends that the Commission should afford rural area (which it
    defines as areas outside a seventy mile radius of the top fifty
    metropolitan areas)[^63] a longer migration path because they will
    be among the last entities to implement 700 MHz systems, or because
    of issues of cost effectiveness.[^64] California, PSWN and FLEWUG
    support APCO's ten-year urban/fifteen-year rural migration
    path,[^65] although both PSWN and FLEWUG describe APCO's timeframes
    as speculative[^66] and PSWN opposes different migration paths for
    urban and rural markets, contending that a single migration path for
    the whole country is most appropriate.

23. APCO and other supporters of different migration paths do not
    address several matters regarding this approach including how to
    differentiate rural areas from urban areas across the nation.
    Although APCO offers a definition it provides no basis for it and
    the record is silent as to its suitability. We are also concerned
    that adopting different migration paths would introduce frequency
    coordination issues between such areas, as well as the effect such
    an approach would have on the long term goal of efficiency in the
    700 MHz band, and compatibility within state-wide systems. Com-Net
    Ericsson expresses concern that different sets of migration rules
    based solely on demographics will result in uncertainty.[^67]
    Com-Net Ericsson also notes that, because 700 MHz systems will
    likely be large, wide area, shared systems, different sets of rules
    may result in less than optimum utilization of 6.25 kHz
    equipment.[^68] IAFC/IMSA opposes multiple migration paths because
    it believes spectrum needs are driven by the needs of urban areas
    and that integration with these urban 700 MHz systems would spur use
    of the 700 MHz public safety band in rural areas.[^69]

24. We agree that the benefits of implementing one migration path for
    the General Use and State License channels provide certainty for
    both applicants/licensees and equipment manufacturers. Furthermore,
    since rural areas are less encumbered with TV stations than urban
    areas, rural areas may be among the first entities to implement 700
    MHz systems. Allowing such systems to operate with 12.5 kHz
    equipment on a longer migration path than urban areas would sustain
    a viable market for 12.5 kHz equipment at a time when the Commission
    is seeking a transition to the more efficient 6.25 kHz equipment.
    Accordingly, we will implement one migration path for these
    channels. In making this decision we note that the Chairman's
    Spectrum Policy Task Force, as part of its inquiry on promoting
    spectral efficiency, will be examining whether to take the
    differences in geographic areas into account when developing rules,
    standards or guidelines regarding spectral efficiency.[^70]
    Dependent upon the results of this global inquiry, we may revisit
    this issue at a later time.

## Migration for General Use and State License Channels

25. *Background.* Although the Commission declined to adopt final rules
    regarding implementation of 6.25 kHz technology on the General Use
    channels, the Commission repeated its commitment to ultimately
    require migration to such an efficiency requirement.[^71]
    Additionally, the Commission invited comment to obtain additional
    information concerning the most expeditious and effective manner to
    achieve this result.[^72] Throughout this proceeding, the Commission
    has sought to develop a flexible, regulatory framework to meet vital
    current and public safety communications needs.[^73]

26. *Discussion*. In response to the Commission's *Fifth Notice*,
    Com-Net Ericsson maintains that requiring 6.25 kHz technology on the
    non-interoperability channels in the 700 MHz public safety band is
    essential for public safety agencies to plan and budget for new
    communications systems.[^74] We agree with regards to the General
    Use and State License channels. We believe that in order to
    expeditiously and effectively implement the 6.25 kHz efficiency
    requirement on the 700 MHz public safety band, we must establish a
    migration path for not only the General Use channels, but for the
    State License channels as well.

27. Although we note that the *Fifth Notice* did not specifically
    request comment on a migration path for the State License channels,
    we believe consideration of this issue at this time is appropriate
    because commenters have raised concerns that the State License
    channels should follow the same migration schedule as the General
    Use channels.[^75] There are several reasons why migration of the
    General Use and State License channels on the same timetable is in
    the public interest.[^76] First, in order to allow the development
    of equipment that would use both State License and General Use
    channels, these channels should have the same migration timetable.
    Second, State Licensees that seek to incorporate General Use
    channels into their state systems will need to use the same
    technology to combine the General Use and State License channels.
    Finally, the migration is in the public interest because State
    License channels recovered under the provisions of Section 90.529 of
    the Commission's Rules will revert to General Use and be
    administered by the pertinent Regional Planning Committee.[^77] We
    note that since the Commission recently granted State Licenses to
    all states, no channels have reverted to General Use. However, those
    State License channels that states have not constructed by the end
    of the construction period will revert to General Use channels.
    Although Com-Net Ericsson advocates implementation of a migration
    path for all non-interoperability channels, we do not believe the
    same factors that favor such a course for the State License channels
    exist with regards to the Low Power channels,[^78] Secondary
    Trunking channels[^79] and Reserve channels.[^80]

28. Implementing the same migration path for General Use and State
    License channels will enhance the ability of public safety agencies
    to perform both long range and short term planning to include
    coordination with adjacent agencies regarding their respective
    communications needs. Such planning and coordination between the
    public safety agencies is critical to the successful deployment of
    communications systems in this band. Accordingly, in order to have
    effective, efficient and maximized use of the 700 MHz band spectrum,
    we must implement a migration plan that takes a coordinated approach
    regarding the operation of the General Use and State License
    channels. Consequently, we will apply the migration path to both
    General Use and State License channels.

## Section 90.533 -- Transmitting sites near the U.S./Canada or U.S./Mexico border

29. In the *First Report and Order* in this docket, the Commission
    addressed issues involving applications for 700 MHz public safety
    spectrum along the United States/Canada and United States/Mexico
    borders.[^81] On our own motion, we are revising Section 90.533,
    which incorrectly implies that Canadian television signals are
    entitled to interference protection within the United States.[^82]
    Under the existing Agreement,[^83] transmitters located in the
    United States are required to protect *within Canadian territory*
    the signals of Canadian digital television stations, based on
    specified signal and interference contours.[^84] Thus, we are
    revising Section 90.533(a) to ensure that it comports with the
    existing Agreement.

# Procedural matters 

## Regulatory Flexibility Act

30. Appendix B contains a Final Regulatory Flexibility Analysis (FRFA)
    with respect to the *Fifth Report and Order*. As required by the
    Regulatory Flexibility Act,[^85] the Commission has prepared the
    analysis of the possible impact on small entities of the rules and
    proposed rules set forth in this document. The Commission\'s
    Consumer Information Bureau, Reference Information Center, will send
    a copy of this *Fifth Report and Order*, including the FRFA, to the
    Chief Counsel for Advocacy of the Small Business Administration in
    accordance with the Regulatory Flexibility Act.

## Paperwork Reduction Act

31. This Report and Order contains either a proposed or modified
    information collection. As part of its continuing effort to reduce
    paperwork burdens, we invite the general public and the Office of
    Management and Budget (OMB) to take this opportunity to comment on
    the information collections contained in this *Report and Order,* as
    required by the Paperwork Reduction Act of 1995, Pub. L. No. 104-13.
    Public and agency comments are due at the same time as other
    comments on this *Report and Order*; OMB comments are due 60 days
    from date of publication of this *Report and Order* in the Federal
    Register. Comments should address: (a) whether the proposed
    collection of information is necessary for the proper performance of
    the functions of the Commission, including whether the information
    shall have practical utility; (b) the accuracy of the Commission\'s
    burden estimates; (c) ways to enhance the quality, utility, and
    clarity of the information collected; and (d) ways to minimize the
    burden of the collection of information on the respondents,
    including the use of automated collection techniques or other forms
    of information technology. Written comments by the public on the
    proposed and/or modified information collections are due within 60
    days. Written comments must be submitted by the Office of Management
    and Budget (OMB) on the proposed and/or modified information
    collections on or before 60 days after date of publication in the
    *Federal Register*. In addition to filing comments with the
    Secretary,[^86] a copy of any comments on the information
    collections contained herein should be submitted to Judy Boley,
    Federal Communications Commission, Room 1-C804, 445 Twelfth Street,
    S.W., Washington, DC 20554,[^87] or via the Internet to
    jboley@fcc.gov and to Edward Springer, OMB Desk Officer, 10236 NEOB,
    725 - 17th Street, N.W., Washington, D.C. 20503[^88] or via the
    Internet to <Edward.Springer@omb.eop.gov>.

32. Alternative formats (computer diskette, large print, audio cassette
    and Braille) are available to persons with disabilities by
    contacting Brian Millin, phone 418-7426, TTY 418-7365,
    [bmillin@fcc.gov]{.underline}. This *Fifth Report and Order* can
    also be downloaded at http://
    [www.fcc.gov/wtb/orders/fccxxxx.doc](http://www.fcc.gov/wtb/orders/fccxxxx.doc).

33. For further information concerning this proceeding, contact Roberto
    Mussenden, Esq., 202/418-0680, rmussend@fcc.gov, Wireless
    Telecommunications Bureau.

# ordering clauses

34. Authority for the issuance of this *Fifth Report and Order* is
    contained in Sections 4(i), 4(j), 7(a), 302, 303(b), 303(f), 303(g),
    303(r), 307(e), 332(a), and 332(c) of the Communications Act of
    1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 157(a), 302, 303(b),
    303(f), 303(g), 303(r), 307(e), 332(a), 332(c).

35. Accordingly, IT IS ORDERED that Part 90 of the Commission\'s Rules,
    47 C.F.R. Part 90 IS AMENDED as specified in Appendix C.

36. IT IS FURTHER ORDERED that this *Fifth Report and Order* will be
    effective thirty days after publication in the Federal Register.

37. IT IS FURTHER ORDERED that the Commission\'s Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of this *Fifth Report and Order*, including the Final
    Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy
    of the Small Business Administration.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX A**

**Parties Submitting Comments and Reply Comments in WT Docket 96-86**

The following list contains the names of parties filing comments and
reply comments to the *Fifth Notice*:

**Comments**

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

Com-Net Ericsson Critical Radio Systems, Inc. (Com-Net Ericsson)

Federal Law Enforcement Wireless Users Group (FLEWUG)

International Association of Fire Chiefs, Inc. (IAFC)

International Municipal Signal Association (IMSA)

Motorola, Inc. (Motorola)

Nokia, Inc. (Nokia)

Public Safety Wireless Network (PSWN)

State of California

**Reply Comments**

APCO

FLEWUG

PSWN

**APPENDIX B**

**FINAL REGULATORY FLEXIBILITY ANALYSIS**

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^89] An Initial Regulatory Flexibility Analysis (IRFA) was
    incorporated into the *Fourth Report and Order and Fifth Notice of
    Proposed Rule Making (Fifth NPRM)*[^90] of this proceeding. The
    Commission sought written public comment on the proposals in the
    *Fifth NPRM*, including comment on the IRFA.[^91] The present Final
    Regulatory Flexibility Analysis (FRFA) conforms to the RFA.[^92]

**A. Need for, and Objectives of, the *Fifth Report and Order*:**

38. The need is to resolve outstanding migration issues regarding a
    migration path for the General Use and State License channels
    located within the public safety spectrum at frequencies 764-776 MHz
    and 794-806 MHz (the 700 MHz band). Resolution entails requiring a
    6.25 kHz requirement for the General Use and State License channels.
    Our objective is to promote the efficient, effective, and maximum
    use of 700 MHz public safety spectrum and not hinder development and
    deployment of public safety equipment. Specifically, the rules
    adopted herein will: require licensees in the narrowband General Use
    and State License channels, whose applications are filed after
    December 31, 2006, to operate only in voice mode using a voice
    efficiency standard of at least one voice path per 6.25 kHz of
    spectrum bandwidth; allow licensees in the narrowband General Use
    and State License channels, whose applications are filed on or
    before December 31, 2006 ("legacy licensees"), to operate in voice
    mode using a voice efficiency standard of at least one voice path
    per 12.5 kHz of spectrum bandwidth until December 31, 2016; allow
    legacy licensees to buy dual mode equipment (*i.e.*, equipment that
    operates in 12.5 kHz or 6.25 kHz mode) for system expansion or
    maintenance; ban the manufacture, importation, and marketing of
    equipment that only operates on a voice efficiency standard of at
    least one voice channel per 12.5 kHz of spectrum bandwidth after
    December 31, 2006; and prevent acceptance of applications for
    certification of equipment that operates exclusively on a voice
    efficiency standard of at least one voice channel per 12.5 kHz of
    spectrum bandwidth or that lacks the ability to operate on a voice
    efficiency standard of one voice channel per 6.25 kHz of spectrum
    bandwidth after December 31, 2006.

**B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA:**

39. No comments were submitted in response to the IRFA. Comments were
    submitted in response to the *Fifth NPRM* regarding whether
    different migration paths would be appropriate for public safety
    entities in rural urban areas based on their different needs.[^93]

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

C.  

```{=html}
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```
40. The RFA directs agencies to provide a description of and, where
    feasible, an estimate of, the number of small entities that may be
    affected by the proposed rules, if adopted.[^94] The RFA generally
    defines "small entity" as having the same meaning as the terms
    "small business," "small organization," and "small governmental
    jurisdiction."[^95] In addition, the term "small business" has the
    same meaning as "small business concern" under the Small Business
    Act.[^96] A small business concern is one which: (1) is
    independently owned and operated; (2) is not dominant in its field
    of operations; and (3) satisfies any additional criteria established
    by the Small Business Administration (SBA).[^97]

41. A small organization is generally "any not-for-profit enterprise
    which is independently owned and operated and is not dominant in its
    field.[^98] Nationwide, as of 1992, there were approximately 275,801
    small organizations.[^99] \"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.\"[^100] As of 1992, there were approximately
    85,006 such jurisdictions in the United States.[^101] This number
    includes 38,978 counties, cities, and towns; of these, 37,566, or
    ninety-six percent, have populations of fewer than 50,000.[^102] 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 (ninety-one percent) are small
    entities.

42. *Public Safety Radio Pool Licensees.* As a general matter, Public
    Safety Radio Pool licensees include police, fire, local government,
    forestry conservation, highway maintenance, and emergency medical
    services that draw from a common pool of spectrum.[^103] Spectrum in
    the 700 MHz band for public safety services is governed by 47 U.S.C.
    § 337. Non-Federal governmental entities as well as private
    businesses are licensees for these services. All governmental
    entities with populations of less than 50,000 fall within the
    definition of a small entity.[^104]

43. *Radio and Television Equipment Manufacturers*. We anticipate that
    at least six radio equipment manufacturers will be affected by our
    decisions in this proceeding. According to the SBA\'s regulations, a
    radio and television broadcasting and communications equipment
    manufacturer must have 750 or fewer employees in order to qualify as
    a small business concern.[^105] Census Bureau data indicate that
    there are 858 U.S. firms that manufacture radio and television
    broadcasting and communications equipment, and that 778 of these
    firms have fewer than 750 employees and would therefore be
    classified as small entities.[^106] We do not have information that
    indicates how many of the six radio equipment manufacturers
    associated with this proceeding are among these 778 firms. However,
    Motorola and Ericsson, two of the six manufacturers, are major,
    nationwide radio equipment manufacturers, and, thus, we conclude
    that these manufacturers would *not* qualify as small businesses
    because, in all likelihood, they have more than 750 employees.

44. *Television Stations*. This proceeding will affect full service TV
    station licensees (Channels 60-69), TV translator facilities, and
    low power TV (LPTV) stations. The SBA defines a TV broadcasting
    station that has no more than \$12 million in annual receipts as a
    small business.[^107] TV broadcasting stations consist of
    establishments primarily engaged in broadcasting visual programs by
    TV to the public, except cable and other pay TV services.[^108]
    Included in this industry are commercial, religious, educational,
    and other TV stations.[^109] Establishments primarily engaged in TV
    broadcasting and which produce taped TV program materials are also
    included in this industry.[^110] Separate establishments primarily
    engaged in producing taped TV program materials are classified under
    another NAICS Code,[^111] and are defined as small if annual
    receipts do not exceed \$6 million.[^112]

45. There were 1,509 TV stations operating in the nation in 1992.[^113]
    That number has remained fairly constant as indicated by the
    approximately 1,551 operating TV broadcasting stations in the nation
    as of February 28, 1997.[^114] For 1992[^115] the number of TV
    stations that produced less than \$10.0 million in revenue was 1,155
    establishments, or approximately 77 percent of the 1,509
    establishments.[^116] There are currently 95 full service analog TV
    stations, either operating or with approved construction permits on
    channels 60‑69.[^117] In the *DTV Proceeding*, we adopted a DTV
    Table that provides only 15 allotments for DTV stations on
    channels 60‑69 in the continental United States.[^118] There are
    seven DTV allotments in channels 60‑69 outside the continental
    United States.[^119] Thus, the rules will affect approximately 117
    TV stations; approximately 90 of those stations may be considered
    small businesses.[^120] These estimates may overstate the number of
    small entities since the revenue figures on which they are based do
    not include or aggregate revenues from non-TV affiliated companies.
    We recognize that the rules may also impact minority-owned and
    women-owned stations, some of which may be small entities. In 2000,
    minorities owned and controlled 23 (1.9 percent) of 1,288 full power
    commercial TV stations in the United States.[^121] According to the
    U.S. Bureau of the Census, in 1987 women owned and controlled 27
    (1.9 percent) of 1,342 commercial and non-commercial TV stations in
    the United States.[^122]

46. There are currently 4,977 TV translator stations and 1,952 LPTV
    stations.[^123] Approximately 1,309 low power TV and TV translator
    stations are on channels 60‑69[^124] which could be affected by
    policies in this proceeding. The Commission does not collect
    financial information of any broadcast facility and the Department
    of Commerce does not collect financial information on these
    broadcast facilities. We will assume for present purposes, however,
    that most of these broadcast facilities, including LPTV stations,
    could be classified as small businesses. As indicated earlier,
    approximately 77 percent of TV stations are designated under this
    analysis as potentially small businesses. Given this, LPTV and TV
    translator stations would not likely have revenues that exceed the
    SBA maximum to be designated as small businesses.

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

47. The *Fifth Report and Order* does not adopt rules that entail
    recordkeeping, and/or third-party consultation. However, it does
    adopt rules that entail certain reporting and compliance
    requirements. The rules allow legacy licensees (as described in the
    *Fifth Report and Order*) to operate their systems at a 12.5 kHz
    voice efficiency standard until December 31, 2016, when these
    systems must convert to a 6.25 kHz voice efficiency standard on the
    General Use and State License channels. These legacy licensees must
    file, through ULS, no later than January 31, 2017, a declaration
    that they have completed the requisite conversion.[^125]

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

48. The RFA requires an agency to describe any significant alternatives
    that it has considered in reaching its proposed approach, which may
    include the following four alternatives (among others): (1) the
    establishment of differing compliance or reporting requirements or
    timetables that take into account the resources available to small
    entities; (2) the clarification, consolidation, or simplification of
    compliance or reporting requirements under the rule for small
    entities; (3) the use of performance, rather than design, standards;
    and (4) an exemption from coverage of the rule, or any part thereof,
    for small entities.[^126]

49. The rules adopted in the *Fifth Report and Order* are essentially
    designed to achieve standardization of technology at points in time
    in the distant future. Therefore, we do not believe that the impact
    of these rules will be different for smaller entities in the long
    run. In formulating the rules in the *Fifth Report and Order*, we
    reduced economic burdens wherever possible for all entities, large
    and small. The regulatory burdens that we have adopted are necessary
    to ensure that the public receives the public safety benefits of
    innovative new services in a prompt and efficient manner. For
    example, we have adopted technical and operational rules that will
    promote competition in the equipment market. We believe that the
    rules must be as competitively and technologically neutral as
    possible, in order to allow for competing equipment designs and to
    avoid hindering future innovative technological developments.

50. We note that tighter technical specifications generally allow more
    intense spectrum use, but may result in higher equipment costs.
    Conversely, although wider tolerances may allow manufacturers to use
    less costly component parts in transmitting equipment, they also may
    result in less efficient spectrum use. Because the Commission is
    statutorily required to consider the safety of life and property in
    its consideration of spectrum management issues, we believe that the
    technical regulations we adopt herein provide a reasonably balanced
    approach in meeting the Commission's mandate.

51. As for radio equipment for use on the 700 MHz public safety band, we
    believe that the rules we adopt today will foster competition in the
    market for radio equipment for use in the 700 MHz public safety
    band, and thereby increase the opportunity for small entities to
    enter this market. As for smaller public safety entities, the rules
    we adopt today are designed to allow them (and all public safety
    entities) a full 10-year life cycle for equipment they may purchase
    between now and December 31, 2006. We do not believe there are
    feasible alternatives to these rules, in that they are the narrowly
    tailored to allow both early access to the 700 MHz public safety
    spectrum, and give early entrants into that spectrum a full life
    span for the equipment they use. Although we considered whether to
    permit smaller entities, specifically those operating in rural
    areas, to operate indefinitely using a 12.5 kHz voice efficiency
    standard, we rejected this approach because we wanted to ensure
    certainty and consistency of operations by all licensees as
    described in the *Fifth Report and* *Order* and to avoid sustaining
    a viable market for spectrally inefficient equipment.

**[Report to Congress]{.underline}**: The Commission will send a copy of
the *Fifth Report and Order*, including this FRFA, in a report to be
sent to Congress pursuant to the Congressional Review Act, *see* 5
U.S.C. § 801(a)(1)(A). Also, the Commission will send a copy of the
*Fifth Report and Order* to the Chief Counsel for Advocacy of the Small
Business Administration. In addition, the *Fifth Report and Order* and
FRFA (or summaries thereof) will be published in the Federal Register.
*See* 5 U.S.C. § 604(b).

**APPENDIX C**

**FINAL RULES**

Part 90 of Title 47 of the Code of Federal Regulations is amended as
follows:

1.  The authority citation for part 90 continues to read as follows:

AUTHORITY: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g),
303(r), 332(c)(7).

2.  Section 90.201 is amended to read as follows.

**§ 90.201 Scope.**

This subpart sets forth the general technical requirements for use of
frequencies and equipment in the radio services governed by this part.
Such requirements include standards for acceptability of equipment,
frequency tolerance, modulation, emissions, power, and bandwidths.
Special additional technical standards applicable to certain frequency
bands and certain specialized uses are set forth in subparts J, K, N,
and R.

3.  Section 90.203 is amended by adding paragraphs (m-n) to read as
    follows.

**§ 90.203 Certification required.**

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

\(m\) Applications for part 90 certification received after December 31,
2006 will not be granted to transmitters designed to operate in the
voice mode on channels designated in §§ 90.531(b)(5) or 90.531(b)(6)
that do not provide at least one voice path per 6.25 kHz of spectrum
bandwidth.

\(n\) Transmitters designed to operate in the voice mode on channels
designated in §§ 90.531(b)(5) or 90.531(b)(6) that do not provide at
least one voice path per 6.25 kHz of spectrum bandwidth shall not be
manufactured in, or imported into the United States after December 31,
2006. Marketing of these transmitters shall not be permitted after
December 31, 2006.

4.  Section 90.531 is amended by amending paragraphs (b)(5-6) and
    paragraph (d)(1) to read as follows.

**§ 90.531 Band Plan.**

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

\(b\) \*\*\*

\(5\) *Narrowband state channels.* The following narrowband channels are
designated for direct licensing to each state (including U.S.
territories, districts, and possessions): 25-36, 65-76, 105-116,
145-156, 185-196, 225-236, 265-276, 305-316, 645-656, 685-696, 725-736,
765-776, 805-816, 845-856, 885-896, 925-936, 985-996, 1025-1036,
1065-1076, 1105-1116, 1145-1156, 1185-1196, 1225-1236, 1265-1276,
1605-1616, 1645-1656, 1685-1696, 1725-1736, 1765-1776, 1805-1816,
1845-1856, 1885-1896. Voice operations on these channels are subject to
compliance with the spectrum usage efficiency requirements set forth in
§ 90.535(d).

\(6\) *Narrowband general use channels.* All narrowband channels
established in paragraph (b) of this section, other than those listed in
paragraphs (b)(1), (b)(2), (b)(4) and (b)(5) of this section are
designated to public safety eligibles subject to Commission approved
regional planning committee regional plans. Voice operations on these
channels are subject to compliance with the spectrum usage efficiency
requirements set forth in § 90.535(d).

\*\*\*\*\*

\(d\) \*\*\*

\(1\) *Narrowband.* Subject to compliance with the spectrum usage
efficiency requirements set forth in § 90.535, two or four contiguous
narrowband (6.25 kHz) channels may be used in combination as 12.5 kHz or
25 kHz channels, respectively. The lower (in frequency) channel for two
channel combinations must be an odd (*i.e.*, 1, 3, 5 \...) numbered
channel. The lowest (in frequency) channel for four channel combinations
must be a channel whose number is equal to 1+(4xn), where n = any
integer between 0 and 479, inclusive (*e.g.*, channel number 1, 5,
\... 1917). Channel combinations are designated by the lowest and
highest channel numbers separated by a hyphen, *e.g.*, \"1‑2\" for a two
channel combination and \"1‑4\" for a four channel combination.

\*\*\*\*\*

5.  Section 90.533 is amended by revising paragraphs (a-c) to read as
    follows:

**§ 90.533 Transmitting sites near the U.S./Canada or U.S./Mexico
border**

\*\*\*\*\*

\(a\) Public safety transmitters operating in the 764-776 MHz and
794-806 MHz bands must conform to the limitations on interference to
Canadian television stations contained in agreement(s) between the
United States and Canada for use of television channels in the border
area.

(b)  Public safety facilities must accept any interference that may be
caused by operations of UHF television broadcast transmitters in Canada
and Mexico.

(c)  Conditions may be added during the term of the license, if required
by the terms of international agreements between the government of the
United States and the government of Canada or the government of the
United States and the government of Mexico, as applicable, regarding
non-broadcast use of the 764‑776 MHz and 794‑806 MHz bands.

6.  Section 90.535 is amended by revising paragraphs (b-c) and by adding
    paragraph (d) to read as follows.

**§ 90.535 Modulation and spectrum usage efficiency requirements.**

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

\(b\) Transmitters designed to operate in the narrowband segment using
digital modulation must be capable of maintaining a minimum data
(non-voice) rate of 4.8 kbps per 6.25 kHz of bandwidth.

\(c\) Transmitters designed to operate in the wideband segment using
digital modulation must be capable of maintaining a minimum data
(non-voice) rate of 384 kbps per 150 kHz of bandwidth.

\(d\) The following provisions apply to licensees operating in the
channels designated in §§ 90.531(b)(5) or 90.531(b)(6).

\(1\) With the exception of licensees designated in subparagraph (2),
after December 31, 2006, licensees may only operate in voice mode in
these channels at a voice efficiency of at least one voice path per 6.25
kHz of spectrum bandwidth.

\(2\) Licensees authorized to operate systems in the voice mode on these
channels from applications filed on or before December 31, 2006, may
continue operating in the voice mode on these channels (including
modification applications of such licensees granted after December 31,
2006, for expansion or maintenance of such systems) at a voice
efficiency of at least one voice path per 12.5 kHz of spectrum bandwidth
until December 31, 2016.

\(3\) The licensees designated in subparagraph (2) must, no later than
January 31, 2017, file a declaration through the Universal Licensing
System that they are operating these channels at a voice efficiency of
at least one voice path per 6.25 kHz of spectrum bandwidth.

[^1]: The 764-776 MHz and 794-806 MHz bands are comprised of former
    television channels 63, 64, 68 and 69. *See* Reallocation of
    Television Channels 60-69, the 746-806 MHz Band, ET
    Docket No. 97-157, *Report and Order*, 12 FCC Rcd 22953 (1997)
    (*Reallocation Report and Order*). The 764-776 MHz and 794-806 MHz
    bands are also collectively referred to as the 700 MHz public safety
    band.

[^2]: The Development of Operational, Technical and Spectrum
    Requirements for Meeting Federal, State and Local Public Safety
    Agency Communication Requirements Through the Year 2010, WT Docket
    No. 96-86, *Fourth Report and Order and Fifth Notice of Proposed
    Rulemaking*, 16 FCC Rcd 2020, 2049 ¶ 81 (2001) ("*Fourth R&O*" and
    "*Fifth Notice,*" as applicable).

[^3]: *Id*.

[^4]: For convenience, we refer to systems or equipment that provide
    only one voice path per 12.5 kHz of spectrum bandwidth as "12.5 kHz
    systems" or "equipment operating in the 12.5 kHz mode" and we refer
    to licensees of these systems as "12.5 kHz licensees" or "legacy
    licensees." Similarly, we refer to systems or equipment that provide
    at least one voice path per 6.25 kHz of spectrum bandwidth as "6.25
    kHz systems" or "equipment operating in the "6.25 kHz mode" and we
    refer to licensees of these systems as "6.25 kHz licensees" or "dual
    mode" licensees. These references relate to voice efficiency; thus,
    references to "12.5 kHz equipment" do not encompass equipment that
    provides two voice paths using 12.5 kHz of spectrum bandwidth
    whereas references to "6.25 kHz equipment" do encompass equipment
    that provides at least four voice paths using 25 kHz of spectrum
    bandwidth.

[^5]: Reallocation Report and Order, 12 FCC Rcd 22953 ¶1.

[^6]: *See, e.g.,* 47 C.F.R. § 90.531 (Band plan).

[^7]: *See* 47 C.F.R. § 90.535 (Modulation and spectrum usage efficiency
    requirements). Mobiles and portables that only operate on designated
    low power channels are exempt from these requirements and mobile and
    portable transmitters may have analog modulation capability as a
    secondary mode. *Id*. § 90.535(a). We note that these standards are
    not unique. The Commission mandated the same standards for new
    transmitters transmitting data in the 150-174 MHz and/or the 450-512
    MHz bands. *See* 47 C.F.R. § 90.203(j) (specifies separate voice and
    data efficiency requirements).

[^8]: The Development of Operational, Technical and Spectrum
    Requirements for Meeting Federal, State and Local Public Safety
    Agency Communication Requirements Through the Year 2010, WT Docket
    No. 96-86, *Fourth Notice of Proposed Rulemaking*, 15 FCC Rcd 16899,
    16917 ¶ 46 (2000) (*Fourth Notice*).

[^9]: *Fourth R&O*, 16 FCC Rcd 2048 ¶ 79.

[^10]: *Id.* at 2048-49 ¶ 79.

[^11]: Television broadcasting in many areas of the country prevents
    public safety use of this spectrum until incumbent broadcasters
    vacate it as part of the transition to digital television (DTV).
    *See Reallocation Report and Order*, 12 FCC Rcd 22953, 22964-65 ¶
    24. *See also* Statement by FCC Chairman Michael K. Powell, DTV Plan
    Update -- Progress for Consumers, *FCC News*, released July 11,
    2002.

[^12]: *Fifth Notice*, 16 FCC Rcd 2049 ¶ 81.

[^13]: *Id*.

[^14]: *Id*.

[^15]: *Id*.

[^16]: *Fourth R&O,* 16 FCC Rcd 2048 ¶ 79.

[^17]: *Fifth Notice*, 16 FCC Rcd 2054 ¶ 96, *citing* Com-Net Ericsson
    Comments to the *Fourth Notice* at 17-18, Nokia Comments to the
    *Fourth Notice* at 4-5, NATF Comments to the *Fourth Notice* at 5.

[^18]: *Fifth Notice,* 16 FCC Rcd 2053-544 ¶ 95. Referred to
    collectively as the "APCO/IACP Plan."

[^19]: *Fifth Notice,* 16 FCC Rcd 2054 ¶ 97. Project 25 Phase I was
    adopted on January 11, 2001. *See Fourth Report and Order*, 16 FCC
    Rcd 2022 ¶ 2.

[^20]: *Fifth Notice,* 16 FCC Rcd 2054 ¶ 97.

[^21]: *Id*.

[^22]: *Id*.

[^23]: *Id*.

[^24]: *Id*.

[^25]: *Fourth R&O,* 16 FCC Rcd 2049 ¶ 81.

[^26]: California Comments at 2 (The State of California notes that
    agencies entering the 700 MHz public safety band early in the
    implementation cycle (presumably, with 12.5 kHz equipment) must be
    able to realize a reasonable useful life from their investment.);
    Motorola Comments at 4; Com-Net Ericsson Comments at 6 (no longer
    urges immediate adoption of a 6.25 kHz efficiency requirement for
    700 MHz public safety equipment).

[^27]: APCO Comments at 2-3.

[^28]: Nokia Comments at 3 (footnote omitted). Nokia also urges that the
    Commission grant NATF's reconsideration petition to the *Fourth
    Report and Order*, regarding the Commission's mandate that all
    narrowband public safety radios deployed in the 700 MHz band include
    Project 25 Phase I functionality. Nokia Comments at 2, 6. Nokia
    states that requiring such functionality, without a reasonable
    transition period and well before the time such functionality will
    be a practical necessity, will cause a "needlessly protracted
    migration path to 6.25 kHz technology for the 700 MHz General Use
    channels, . . ." *Id*. at 2. We note that this issue is now moot
    because the Commission has ruled on NATF's petition for
    reconsideration. *See* The Development of Operational, Technical and
    Spectrum Requirements for Meeting Federal, State and Local Public
    Safety Agency Communication Requirements Through the Year 2010, WT
    Docket No. 96-86, *Fourth Memorandum Opinion and Order*, 17 FCC Rcd
    4736, 4746-49 ¶¶ 24‑29 (2002) as corrected by *Erratum*, DA-02-902
    (rel. Apr. 19, 2002).

[^29]: Nokia Comments at 3.

[^30]: APCO Comments at 4 *citing Fifth Notice*, 16 FCC Rcd 2055 ¶ 98.

[^31]: APCO Comments at 2; *see also Fourth R&O*, 16 FCC Rcd at 2049 ¶
    81.

[^32]: *Fifth Notice*, 16 FCC Rcd at 2055 ¶ 98. Nokia further argues
    that under the policies adopted in the *Fourth Report and Order* any
    12.5 kHz system deployed before 2005 will not be required to convert
    to 6.25 kHz efficiency until 2015 at the earliest." Nokia Comments
    at 5. As noted above, objections to the Commission's decisions in
    the *Fourth Report and Order* are now moot. *See* note Error:
    Reference source not found, *supra*.

[^33]: *Fifth Notice,* 16 FCC Rcd 2055 ¶ 98. Specifically, the
    Commission mentioned that the duration of the broadcasters'
    transition from analog to DTV may impact the length of the
    migration.

[^34]: *Id*.

[^35]: *See Fifth Notice* 16 FCC Rcd 2054 ¶ 97, *citing* APCO Comments
    to *Fourth NPRM* at 7-10, IACP Comments to *Fourth NPRM* at 3-5.

[^36]: *See e.g.* IMSA/IAFC Comments at 3; California Comments at 3-4;
    Com-Net Ericsson Comments at 9. *But see* PSWN Reply Comments at 5;
    APCO Comments at 3.

[^37]: California Comments at 3.

[^38]: *See, e.g.*, Motorola Comments at 4 (supports "the specifics" of
    the APCO/IACP, with implication that it can supply equipment);
    Com-Net Ericsson Comments at 5 (acknowledges that 6.25 kHz voice
    equipment is fully developed and widely available throughout the
    word); Nokia Comments, Exhibit A (timeline indicates Nokia's ability
    to produce compliant radios by 2006).

[^39]: Com-Net Ericsson Comments at 10.

[^40]: *Id.*

[^41]: *Id*. at 7-8 *citing* Replacement of Part 90 by Part 88 to Revise
    the Private Land Mobile Radio Services and Modify the Policies
    Governing Them, And, Examination of Exclusivity and Frequent
    Assignment Policies of the Private Land Mobile Service, PR Docket
    92-235 ("Refarming Proceeding.") We further note that because
    equipment purchase is a major expense, public safety organizations,
    which often face severe budgetary constraints, may not employ
    spectrally efficient equipment unless required to do so. *See Third
    MO&O and Third R&O*, 15 FCC Rcd at 19853-54 ¶ 22 citing The
    Development of Operational, Technical and Spectrum Requirements for
    Meeting Federal, State and Local Public Safety Agency Communication
    Requirements Through the Year 2010, WT Docket No. 96-86, *First
    Report and Order and Third Notice of Proposed Rulemaking*, 14 FCC
    Rcd 152, 172 ¶ 37 (1998) ("*First R&O*" or "*Third NPRM*" as
    applicable).

[^42]: *Fourth R&0,* 16 FCC Rcd at 2049 ¶ 81.

[^43]: *Id*.

[^44]: Com-Net Ericsson Comments at 8-9. Additionally, Com-Net Ericsson
    notes that "\[t\]he Refarming proceeding requires 6.25 kHz or
    equivalent voice spectrum efficiency for all newly type-accepted
    equipment in the Refarmed bands as of January 1, 2005," *id*. at 8,
    suggesting 6.25 kHz equipment will be ready even earlier than the
    safe harbor dates. We note, however, that because the Refarming
    Proceeding does not concern the 700 MHz band, conclusions regarding
    the effect of the Refarming Proceeding upon equipment availability
    may not be germane to this proceeding.

[^45]: APCO Comments at 3. Under the APCO/ IACP plan, the adoption of a
    6.25 kHz voice efficiency requirement for the General Use channels
    is linked to the DTV transition. *See* para. 10, *supra*.

[^46]: *Id*. at 3-4.

[^47]: IMSA/IAFC Comments at 3-4; *see also*, State of California
    Comments at 3 (recommending adoption of the end of the 'safe harbor
    period,' December 31, 2005, as the date by which newly type-accepted
    equipment must include a 6.25 kHz-efficient mode of operation).

[^48]: *See, e.g.*, Com-Net Ericsson Comments at 10, "Establishing a
    date, today, that is approximately 15 years out into the future
    enables public safety agencies a reasonable period of time to recoup
    their communications investments should they initially choose to
    utilize \[12.5 kHz equipment\]." *See also* APCO Comments to the
    *Fourth Notice* at 9, (the dates the Commission selects should
    "provide a minimum 10-year life cycle for 'pure' 12.5 kHz radios . .
    . . Ten years is currently the generally accepted life span for many
    elements of a radio system, . . . . "

[^49]: *See* note Error: Reference source not found, *supra*.

[^50]: *See* paras. 10-Error: Reference source not found, *supra*.

[^51]: Thus, we will permit manufacture of 12.5 kHz bandwidth equipment,
    provided that such equipment is also 6.25 kHz (*i.e.*, dual mode).
    Both APCO and Nokia acknowledge, all new radios for use on the 700
    MHz public safety spectrum will be dual mode as of our first
    implementation date. *See* APCO Comments at 2-3; Nokia Comments
    at 4. We will revisit this issue should these predictions fail to
    come to fruition.

[^52]: We envision that licensees using 6.25 kHz equipment will be able
    to communicate with legacy licensees on the interoperability
    channels.

[^53]: APCO Comments at 6.

[^54]: "Ten years is currently the generally accepted life span for many
    elements of a radio system, . . . . " *See* APCO Comments to the
    *Fourth Notice* at 9.

[^55]: APCO proposes allowing rural licensees to operate 12.5 kHz
    equipment on a secondary basis while California would extend this
    provision to all licensees. *See* APCO Comments at 4 and California
    Comments at 5.

[^56]: *Fourth R&O,* 16 FCC Rcd at 2022 ¶ 2.

[^57]: *See* 4.9 GHz Band Transferred from Government Use, WT Docket No.
    00-32, *Second Report and Order and Further Notice of Proposed
    Rulemaking*, FCC 02-47 (rel. Feb. 27, 2002) (National public safety
    organizations and local police, fire, and rescue organizations filed
    numerous comments seeking designation of 50 MHz of spectrum for
    exclusive public safety use.) *See also* Final Report of Public
    Safety Wireless Advisory Committee to the Federal Communications
    Commission*,* September 11, 1999, at 3 (Public safety community is
    in great need of additional spectrum to utilize emerging state of
    the art technologies, to meet their critical operational needs.)

[^58]: Public Safety entities will have 30 days to notify the Wireless
    Telecommunications Bureau of any errors in the public notice.

[^59]: Violators of these provisions may be in violation of 47 U.S.C. §§
    301 and 302 and subject to the penalties described in 47 U.S.C. §
    501-510.

[^60]: Violators of these provisions may be subject to enforcement
    action by the Commission. For example, to the extent information
    comes to the Commission\'s attention that a licensee on the January
    2007 PN intentionally, incorrectly certified that it is using 6.25
    kHz equipment exclusively, the Commission could impose a forfeiture
    for violation of section 1.17 of the rules or potentially revoke the
    license for misrepresentation. (*See, e.g.*, 47 C.F.R. § 1.17
    (prohibiting intentional misrepresentation); *see also* U.S.C. 47 §
    503(b)).

[^61]: The Commission views the sending of reminder notifications as a
    convenience to the licensee and not a requirement of the Commission.
    Each licensee bears the responsibility of knowing the parameters and
    requirements of its license. We delegate to the Wireless
    Telecommunications Bureau authority to undertake additional outreach
    measures to assist licensees with complying with the certification
    requirements.

[^62]: *Fifth Notice,* 16 FCC Rcd at 2055 ¶ 99.

[^63]: APCO Comments at 4.

[^64]: *Id.*

[^65]: PSWN Comments at 4; FLWEUG Comments at 3; California Comments at
    3-4.

[^66]: PSWN Comments at 6; FLEWUG Comments at 4.

[^67]: Com-Net Comments at 11.

[^68]: *Id*. at 12. *See also* IAFC/IMSA Comments at 4-5 ("the migration
    plans for urban systems will serve to dictate the migration plans
    for the suburban and rural systems"). IAFC/IMSA and Com-Net Ericsson
    both urge that, should a rural system find itself unable or
    unwilling to comply with the Commission's migration path rules, then
    it should proceed under the waiver process.

[^69]: IAFC/IMSA Comments at 5.

[^70]: *See* Spectrum Policy Task Force Seeks Public Comment on Issues
    Related to Commission's Spectrum Policies, ET Docket 02-135, *Public
    Notice*, DA 02-1311, (rel. Jun 6, 2002). *See also* Spectrum Policy
    Task Force Announces Public Workshops on Issues Related to
    Commission's Spectrum Policies, ET Docket 02-135, *Public Notice*,
    DA 02-1643, (rel. Jul 10, 2002).

[^71]: *Fourth Report and Order*, 16 FCC Rcd at 2048 ¶ 79.

[^72]: *Id*. (The Commission made this determination as a result of
    commenters' requests that the Commission adopt a 6.25 kHz
    requirement for the General Use channels.)

[^73]: *See* The Development of Operational, Technical and Spectrum
    Requirements for Meeting Federal, State and Local Public Safety
    Agency Communication Requirements Through the Year 2010, WT Docket
    No. 96-86, *Third Memorandum Opinion and Order and Third Report and
    Order*, 15 FCC Rcd 19844, 19847 ¶ 3 (2000) (*Third MO&O and Third
    R&O*).

[^74]: *See* Com-Net Ericsson Comments at 5-6.

[^75]: *See, e.g., id*. *See also* WT Docket No. 96-86, Letters from
    Robert M. Gurss, Counsel for APCO, to Secretary, FCC, dated October
    31, 2000, and November 1, 2000 (describing migration issue for
    "General Use (and State) Channels" interchangeably).

[^76]: *Id*. It is a matter of longstanding judicial interpretation that
    an agency must be able to respond to the comments it is compelled to
    solicit under the APA and to adopt those comments that it finds
    persuasive without re-noticing the rule prior to its adoption. *See
    South Terminal Corp. v. EPA*, 504 F2d 646 (1^st^ Cir. 1974).

[^77]: *See* 47 C.F.R. § 90.529(a)(2), (e); Development Of Operational,
    Technical And Spectrum Requirements For Meeting Federal, State And
    Local Public Safety Agency Communication Requirements Through The
    Year 2010, Third Memorandum Opinion and Order and Third Report and
    Order, 15 FCC Rcd 19,844, 19,871-72 ¶ 63 (2000). We note that all
    the States applied for and received State Licenses. Thus, reversion
    to the General Use and administration by the RPC would only occur if
    the State Licensee turned the spectrum in or failed to meet the
    construction requirements.

[^78]: The use of Low Power channels is limited by their very nature
    because their maximum effective radiated power on these channels is
    limited to 2 watts. *Id*. at 19,860 ¶ 39. Moreover, transmitters
    operating exclusively on the Low Power channels are exempt from the
    digital modulation requirement. *See* 47 C.F.R. § 90.535(a).
    Accordingly, the Low Power channels would not be used in the same
    manner as General Use and State License channels.

[^79]: The Secondary Trunking channels are narrowband interoperability
    channels. The Commission will revisit the issue of a 6.25 kHz voice
    efficiency requirement on the interoperability channels no earlier
    than 2005. Development Of Operational, Technical And Spectrum
    Requirements For Meeting Federal, State and Local Public Safety
    Agency Communication Requirements Through The Year 2010, *Fourth
    Report and Order and Fifth Notice of Proposed Rule Making*, 16 FCC
    Rcd 2020, 2047-48 ¶ 77.

[^80]: This spectrum is reserved for future developments in broadband
    technologies. *Public Safety Third MO&O and Third R&O,* 15 FCC Rcd
    at 19,848 ¶ 6.

[^81]: *First R&O*, 14 FCC Rcd at 227-28 ¶¶ 165-67. *See also* 47 C.F.R.
    § 90.533, codifying the conditions precedent to the grant of a
    license. Section 90.533 refers to the TV/DTV interference protection
    criteria set forth at 47 C.F.R. § 90.545.

[^82]: 47 C.F.R. § 90.533. Section 90.533(a) refers to the TV/DTV
    interference protection criteria set forth at 47 C.F.R. § 90.545.

[^83]: *See* Agreement Between the Government of the United States of
    America and the Government of Canada Relating to the TV Broadcast
    Service, Nov. 3, 1993 -- Jan. 5, 1994; Letter of Understanding
    between the Federal Communications Commission of the United States
    of American and Industry Canada Related to the Use of the 54-72 MHz,
    76-88 MHz, 174-216 MHz, and 470-806 MHz Bands for the Digital
    Television Broadcasting Service Along the Common Border ("Letter").
    The full text of the Letter is available at:
    \>http://www.fcc.gov/ib/pnd/agree/dtvlou092200.pdf\<.

[^84]: The action we take today reflects the \"foreign affairs
    exception\" to the notice and comment rulemaking requirement. *See*
    5 U.S.C. § 553(a)(1) (APA rule making section \"applies, according
    to the provisions thereof, except to the extent that there is
    involved - a military or foreign affairs function of the United
    States.\"). *See, e.g.,* *WBEN v. United States/Federal
    Communications Commission*, 396 F.2d 601 (9th Cir. 1968) (the court
    held that the Commission was \"on firm ground\" when it did not
    engage in formal rulemaking prior to adopting new rules under a
    Canada/United States agreement limiting the times and power of
    transmission. The court did indicate that adopting such rules
    pursuant to an internal agreement obviated the APA rule making
    requirements). *See also, International Brotherhood of Teamsters v.
    Pena*, 17 F.3d 1478 (D.C. Cir. 1994), where the court, citing
    *WBEN*, explicitly rejected the argument that the APA\'s notice and
    comment requirements (5 U.S.C. Section 553 (b) and (c)) applied to
    rules that the Department of Transportation (DOT) adopted pursuant
    to the North American Free Trade Agreement (NAFTA). In ruling that
    the foreign function exception applied, the court stated \"\[t\]he
    rule at issue here, . . . , did no more than implement an agreement
    between the United States and Mexico. . . . . \[T\]he United States
    would have been reneging on international obligations if the \[DOT\]
    had not issued the rule.\" 17 F.3d 1478, 1486. In citing *WBEN*, the
    court noted, \"\[h\]ere as there the rule does no more than carry
    out obligations to a foreign nation undertaken for purposes of
    resolving a problem requiring coordination . . . . We believe it
    therefore involves a \'foreign affairs function\' within the meaning
    of 553(a)\" *Id*.

[^85]: *See* 5 U.S.C. § 601, *et seq.*

[^86]: Commenters should be aware of the new filing procedures and
    locations for paper documents noted in a recent *Public Notice*, DA
    01-2919 (released December 14, 2001):

    **If you are sending this type of document or using this delivery
    method...It should be addressed for delivery to...**Hand-delivered
    or messenger-delivered paper filings for the Commission's
    Secretary236 Massachusetts Avenue, NE, Suite 110, Washington, DC
    20002 (8:00 a.m. to 7:00 p.m.)Other messenger-delivered documents,
    including documents sent by overnight mail (other than United States
    Postal Service Express Mail and Priority Mail)9300 East Hampton
    Drive, Capitol Heights, MD 20743 (8:00 a.m. to 5:30 p.m.)United
    States Postal Service first-class mail, Express Mail, and Priority
    Mail445 12^th^ Street, SW, Washington, DC 20554

[^87]: *Id*.

[^88]: *Id*.

[^89]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 *et seq.*,
    has been amended by the Small Business Regulatory Enforcement
    Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110
    Stat. 857 (1996).

[^90]: 16 FCC Rcd 2020, 2060 (2001).

[^91]: *Id*.

[^92]: *See* 5 U.S.C. § 604.

[^93]: Comments addressing this issue are summarized in the *Fifth
    Report and Order* at paras. 22-24.

[^94]: 5 U.S.C. § 603(b)(3).

[^95]: 5 U.S.C. § 601(6).

[^96]: 5 U.S.C. § 601(3) (incorporating by reference the definition
    "small business concern" in 15 U.S.C. § 632). Pursuant to the RFA,
    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 terms which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register." 5 U.S.C. § 601(3).

[^97]: Small Business Act, 15 U.S.C. § 632 (1996).

[^98]: 5 U.S.C. § 601(4).

[^99]: 1992 Economic Census, U.S. Bureau of the Census, Table 6 (special
    tabulation of data under contract to Office of Advocacy of the SBA).

[^100]: 5 U.S.C. § 601(5).

[^101]: U.S. Dept. of Commerce, Bureau of the Census, \"1992 Census of
    Governments.\"

[^102]: *Id*.

[^103]: *See* Subparts A and B of Part 90 of the Commission\'s Rules, 47
    C.F.R. §§ 90.1 ‑ 90.22. Police licensees include 26,608 licensees
    that serve state, county, and municipal enforcement through
    telephony (voice), telegraphy (code) and teletype and facsimile
    (printed material). Fire licensees include 22,677 licensees
    comprised of private volunteer or professional fire companies as
    well as units under governmental control. Public Safety Radio Pool
    licensees also include 40,512 licensees that are state, county, or
    municipal entities that use radio for official purposes. There are
    also 7,325 forestry service licensees comprised of licensees from
    state departments of conservation and private forest organizations
    who set up communications networks among fire lookout towers and
    ground crews. The 9,480 state and local governments are highway
    maintenance licensees that provide emergency and routine
    communications to aid other public safety services to keep main
    roads safe for vehicular traffic. Emergency medical licensees
    (1,460) use these channels for emergency medical service
    communications related to the delivery of emergency medical
    treatment. Another 19,478 licensees include medical services, rescue
    organizations, veterinarians, handicapped persons, disaster relief
    organizations, school buses, beach patrols, establishments in
    isolated areas, communications standby facilities, and emergency
    repair of public communications facilities.

[^104]: 5 U.S.C. § 601(5).

[^105]: 13 C.F.R. § 121.201, North American Industry Classification
    System (NAICS) Code 334220.

[^106]: NAICS Code 334220.

[^107]: 13 C.F.R. § 121.201, NAICS Code 513120.

[^108]: Economics and Statistics Administration, Bureau of Census, U.S.
    Department of Commerce, 1992 Census of Transportation,
    Communications and Utilities, Establishment and Firm Size, Series
    UC92-S-1, Appendix A-9 (1995) (ESA 1992 Census).

[^109]: *See*, for broadcast television stations, U.S. Small Business
    Administration Table of Small Business Size Standards, NAICS Code
    513120, 13 C.F.R. § 121.201.

[^110]: ESA 1992 Census at Appendix A-9.

[^111]: ESA 1992 Census at Appendix A-9; NAICS Code 512110 (Motion
    Picture and Video Tape Production); NAICS Codes 512290, 532490,
    561310, 711110, 711120, 711320, 711410, 711510, 5613910 (Theatrical
    Producers and Miscellaneous Theatrical Services (producers of live
    radio and TV programs)).

[^112]: 13 C.F.R. § 121.201.

[^113]: *Allocation Report and Order*, 12 FCC Rcd at 22953 (1998), at
    Appendix C; ESA 1992 Census at Appendix A-9.

[^114]: *Allocation Report and Order*, 12 FCC Rcd 22953 (1998) at
    Appendix C.

[^115]: A census for communications establishments is performed every
    five years ending with a \"2\" or \"7.\" *See* ESA 1992 Census at
    III.

[^116]: 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
    \$12 million existed. Thus, the number is as accurate as is possible
    to calculate with the available information.

[^117]: *See Allocation Notice*, 12 FCC Rcd at 14142.

[^118]: See DTV Proceeding, 12 FCC Rcd 14588.

[^119]: *See Allocation Notice* 12 FCC Rcd 14142, n.5.

[^120]: We use the 77 percent figure of TV stations operating at less
    than \$10 million for 1992 and apply it to the 117 TV stations to
    arrive at 90 stations categorized as small businesses.

[^121]: *Minority Commercial Broadcast Ownership in the United States*,
    U.S. Dep\'t of Commerce, National Telecommunications and Information
    Administration, The Minority Telecommunications Development Program
    (\"MTDP\") (Dec. 2000). MTDP considers minority ownership as
    ownership of more than 50 percent of a broadcast corporation\'s
    stock, voting control in a broadcast partnership, or ownership of a
    broadcasting property as an individual proprietor. The minority
    groups included in this report are Black, Hispanic, Asian, and
    Native American.

[^122]: *See* Comments of American Women in Radio and TV, Inc. in MM
    Docket No. 94-149 and MM Docket No. 91-140 at 4 n.4 (filed May 17,
    1995) (citing 1987 Economic Censuses, *Women-Owned Business*,
    WB87-1, U.S. Dep\'t of Commerce, Bureau of the Census, August 1990
    (based on 1987 Census)). After the 1987 Census report, the Census
    Bureau did not provide data by particular communications services
    (four-digit SIC Code), but rather by the general two-digit SIC Code
    for communications (#48). Consequently, since 1987, the Census
    Bureau has not updated data on ownership of broadcast facilities by
    women, nor does the Commission collect such data. However, we sought
    comment on whether the Annual Ownership Report Form 323 should be
    amended to include information on the gender and race of broadcast
    license owners. Policies and Rules Regarding Minority and Female
    Ownership of Mass Media Facilities, *Notice of Proposed Rule
    Making*, 10 FCC Rcd 2788, 2797 (1995).

[^123]: *See Allocation Report and Order*, 12 FCC Rcd 22986 at Appendix
    C.

[^124]: *See Allocation Notice* at 12 FCC Rcd 14142, n.3.

[^125]: A detailed discussion of these requirements can be found at
    paras. 16, 18, 19 of the *Fifth Report and Order*.

[^126]: 5 U.S.C. § 603.