**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | WT Docket 02-55              |
|                                  | * |                              |
| Improving Public Safety          | ) | ET Docket No. 00-258         |
| Communications in the 800 MHz    | * |                              |
| Band                             | * | RM-9498                      |
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| Consolidating the 800 and 900    | * | RM-10024                     |
| MHz Industrial/Land              | * |                              |
| Transportation and Business Pool | ) | ET Docket No. 95-18          |
| Channels                         | * |                              |
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| Amendment of Part 2 of the       |   |                              |
| Commission's Rules to Allocate   | * |                              |
| Spectrum Below 3 GHz for Mobile  | * |                              |
| and Fixed Services to Support    | ) |                              |
| the Introduction of New Advanced | * |                              |
| Wireless Services, including     | * |                              |
| Third Generation Wireless        |   |                              |
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| Petition for Rule Making of the  | ) |                              |
| Wireless Information Networks    | * |                              |
| Forum Concerning the Unlicensed  | * |                              |
| Personal Communications Service  |   |                              |
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| Petition for Rule Making of UT   | * |                              |
| Starcom, Inc., Concerning the    | ) |                              |
| Unlicensed Personal              | * |                              |
| Communications Service           | * |                              |
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| Amendment of Section 2.106 of    | * |                              |
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+----------------------------------+---+------------------------------+

**REPORT AND ORDER, FIFTH REPORT AND ORDER, FOURTH MEMORANDUM OPINION
AND ORDER, AND ORDER**

**Adopted: July 8, 2004 Released: August 6, 2004**

**By the Commission: Chairman Powell, Commissioners Abernathy, Copps,
and Adelstein issuing separate statements.**

Table of Contents

Heading Paragraph \#

I. Introduction 1

II\. Executive Summary 8

III\. major findings and decisions 13

A. The 800 MHz Interference Problem and Solutions 13

B. Entitlement to Interference Protection 19

C. 800 MHz Band Reconfiguration 21

D. Band Reconfiguration Process 26

E. Guarantee of Sufficient Funds for Band Reconfiguration 29

F. Equitable Compensation for Band Reconfiguration 31

IV\. Regulatory Background 36

A. 800 MHz Band 36

B. 700 MHz Band 40

C. 900 MHz Band 42

D. 1.9 GHz Band 47

1\. 1910-1915 MHz Band 50

2\. 1990-1995 MHz Band 55

3\. Band Pairing 59

V. Record overview of the 800 mhz public safety interference proceeding
61

VI\. Discussion 62

A. The Commission's Spectrum Management and Legal Authority 62

B. Interference Abatement 88

1\. Types of Interference 89

2\. Entitlement to Interference Protection 92

a\. Introduction 93

b\. Interference Protection Standard 96

\(i\) Signal Strength Threshold for Interference Protection 105

\(ii\) Signal Measurement Techniques 108

c\. Minimum Receiver Performance Criteria 109

3\. Overall Approach to Interference Abatement 115

a\. Role of Enhanced Best Practices 115

b\. Interference Abatement Rules and Procedures 124

\(i\) Mutual Notification Requirements Applicable to 800 MHz Licensees
124

\(ii\) Responsibility for Mitigation Pre- and Post- Band Reconfiguration
128

\(iii\) Interference Resolution Procedures 132

C. Band Reconfiguration 142

1\. Technical Issues Addressed by Band Reconfiguration 143

2\. New 800 MHz Band Plan 149

a\. Band Plan Overview 149

b\. Expansion Band 154

c\. Guard Band 157

d\. Relocating ESMR Operations in 800 MHz Band 159

\(i\) Relocation Options 162

\(ii\) Expanded ESMR Spectrum 164

e\. Permitting Additional Non-ESMR Cellular Architecture Systems in the
800 MHz Band 170

3\. Border Regions 175

4\. Cost Responsibility 177

a\. Relocation Costs and Remuneration 179

b\. Continued Availability of Funds 180

5\. Logistics of Band Reconfiguration 188

a\. Transition Administrator 190

b\. Scheduling and Implementation 201

c\. Freeze on the Acceptance of 800 MHz Applications 204

d\. Tolling of 800 MHz Site-Based Construction Requirements 205

6\. Disposition of Nextel's 900 MHz SMR and 700 MHz Guard Band Block B
Spectrum 207

D. Appropriate Compensation for Band Reconfiguration 210

1\. Public Interest Considerations for Granting Spectrum Rights to
Nextel 213

2\. Choice of 1.9 GHz Replacement Spectrum 217

3\. Assignment of Spectrum Rights at 1.9 GHz to Nextel 223

a\. Redesignation of the 1910-1915 MHz Band 224

b\. Pairing the 1910-1915 MHz and 1990-1995 MHz Bands 236

c\. Relocation and Cost Sharing Obligations in the 1910-1915 MHz Band
239

d\. Relocation and Cost Sharing Obligations in the 1990-1995 MHz Band
250

\(i\) Nextel-BAS Plan 251

\(ii\) MSS-BAS Plan 264

4\. Method for Determining Equitable Compensation 277

a\. Valuation of 1.9 GHz Spectrum 279

b\. Offsets 298

\(i\) Relocation and Band-Clearing Costs 299

\(ii\) 800 MHz Spectrum Relinquished to Public Safety and Other 800 MHz
Incumbents 307

\(iii\) 700 MHz Guard Band Spectrum 324

5\. Financial Aspects of Band Reconfiguration 325

6\. Financial Reconciliation Process 329

VII\. Service Pool Consolidation -- the PCIA Petition 333

VIII\. Operational Flexibility in the 900 MHz Band 335

IX\. CONclusion 338

X. ORdering clauses 340

XI\. PRocedural matters 365

A. Regulatory Flexibility Act 365

B. Paperwork Reduction Act 366

APPENDIX A: FINAL REGULATORY FLEXIBILITY ANALYSIS 168

APPENDIX B: PAPERWORK REDUCTION ANALYSIS 181

Appendix C: Final Rules 25

APPENDIX D: ENHANCED BEST PRACTICES 234

Appendix E: illustrative form of letter of credit 238

Appendix f: NPSPAC Regions 250

Appendix G: SouthEast ESMR Band Plan 252

# Introduction

1.  The Homeland Security obligations of the Nation's public safety
    agencies make it imperative that their communications systems are
    robust and highly reliable.[^1] Accordingly, in this *Report and
    Order*, we adopt technical and procedural measures designed to
    address the ongoing and growing problem of interference to public
    safety communications in the 800 MHz band.[^2] In reaching our
    decisions herein, we are fulfilling the Commission's obligation to
    "promote safety of life and property through the use of wire and
    radio communication."[^3] We also reiterate our continuing
    commitment to "ensuring that essential public health and safety
    personnel have effective communications services available to them
    in emergency situations."[^4]

2.  With many of our Nation's first responders using the 800 MHz band
    for critical public safety communications (*e.g.*, to communicate
    with their respective dispatchers and each other at the scene of an
    incident), this band has become a linchpin in their ability to
    communicate effectively. In recent years, however, public safety
    systems in this band have encountered increasing amounts of
    interference from commercial mobile radio service (CMRS) providers.
    The interference problem in the 800 MHz band is caused by a
    fundamentally incompatible mix of two types of communications
    systems: cellular-architecture multi-cell systems---used by ESMR and
    cellular telephone licensees[^5]---and high-site non-cellular
    systems---used by public safety, private wireless, and some SMR
    licensees and stems primarily from the operations of Nextel
    Communications, Inc. (Nextel), an "Enhanced" Specialized Mobile
    Radio (ESMR) provider in the 800 MHz band,[^6] as well as the
    operations of cellular telephone providers in the Cellular A and B
    bands.[^7] Throughout this proceeding, we have sought a solution to
    the interference problem that achieves the following paramount
    goals:

-   a solution that abates "unacceptable interference" caused by ESMR
    and cellular systems to 800 MHz public safety systems; [^8]

-   a solution that is both equitable and imposes minimum disruption to
    the activities of all 800 MHz band users, including public safety,
    non-cellular[^9] SMR, and Business, Industrial and Land
    Transportation (B/ILT) systems;[^10]

-   a solution that results in responsible spectrum management; and

-   a solution that provides additional 800 MHz spectrum that can be
    quickly accessed by public safety agencies and rapidly integrated
    into their existing systems.

3.  Based on the extensive record of this proceeding and the goals we
    seek to accomplish, we conclude that the most effective solution to
    the public safety interference problem in the 800 MHz band is a
    Commission-derived plan, which is comprised of both long-term and
    short-term components. As the short-term vehicle by which we ensure
    a more effective response to the ongoing interference problem, we
    implement technical standards defining unacceptable interference in
    the 800 MHz band as well as procedures detailing who bears
    responsibility for abating this interference and what steps
    responsible parties must take. For the long-term, we reconfigure the
    800 MHz band to address the identified root cause of the
    interference by separating generally incompatible technologies.

4.  To achieve this new 800 MHz band plan, we establish a transition
    mechanism by which (1) there is minimal disruption to the operations
    of all affected 800 MHz incumbents during the transition period; (2)
    the associated reconfiguration costs are funded; and (3) the public
    safety community and, later, critical infrastructure industries
    (CII),[^11] obtain access to an average additional 4.5 megahertz of
    800 MHz band spectrum. We believe that the totality of these
    measures will both eliminate unacceptable interference currently
    encountered by 800 MHz public safety and CII systems[^12] and
    reflect sound spectrum management principles. Our plan incorporates
    essential elements of a proposal developed by Nextel, the major
    public safety organizations, and various private wireless
    organizations (the so-called "Consensus Parties").[^13]

5.  In recognition of the public interest benefit derived from robust
    and reliable public safety communications coupled with the spectrum
    rights Nextel will surrender as well as financial commitments that
    Nextel will incur in connection with band reconfiguration, upon
    acceptance of Nextel of the conditions and obligations that we place
    on it in this R&O, we will modify certain Nextel licenses to provide
    it with rights to operate on ten megahertz of spectrum in the 1.9
    GHz band, conditioned on fulfillment of the obligations we place on
    it in this *Report and Order.*[^14] As a necessary predicate for the
    license modifications, we also take action by this Order in ET
    Docket No. 00-258 and ET Docket No. 95-18 to redesignate the
    spectrum for the provision of licensed Fixed and Mobile services to
    be used for Advanced Wireless Services (AWS).[^15] To ensure that by
    these actions Nextel, other licensees and the public are treated
    equitably, and that Nextel does not realize any windfall gain, we
    confer these 1.9 GHz spectrum rights on a "value for value" basis.
    Under this approach, we credit Nextel for (1) the net value of
    spectrum rights that Nextel is relinquishing to public safety, CII,
    and other 800 MHz band licensees; (2) the actual cost of 800 MHz
    band reconfiguration (including both Nextel's costs to support
    relocation by other licensees and Nextel's own relocation costs);
    and (3) costs incurred by Nextel to clear the 1.9 GHz band, less any
    reimbursed expenses. If these combined offsets ultimately total less
    than the value determined by this *Report and Order* for the 1.9 GHz
    spectrum rights, we require Nextel to make a payment to the U.S.
    Treasury at the conclusion of the transition process equal to the
    difference.[^16]

6.  In complying with the obligations we place upon it in this *Report
    and Order,* we recognize that Nextel may have to shift some of its
    operations from the 800 MHz band to 900 MHz band frequencies in
    order to provide the "green space" necessary to effect
    reconfiguration of the 800 MHz band. Moreover, in some areas, Nextel
    may have to share spectrum in the 817-824 MHz/862-869 MHz segment of
    the reconfigured band with other ESMR licensees.[^17] To the extent
    that such sharing may reduce the amount of 800 MHz spectrum
    available to Nextel, we believe we should provide the regulatory
    flexibility necessary for Nextel to make up the shortfall by using
    900 MHz band channels. We therefore amend our rules to allow 900 MHz
    band licensees to initiate CMRS operations on their currently
    authorized spectrum or to assign their authorizations to others for
    CMRS use.[^18]

7.  The totality of the actions we take today are based on unique and
    compelling public interest considerations in the record before us
    regarding the serious and continuing public safety interference
    problems in the 800 MHz band. These considerations require that we
    take the most effective actions, in the short-term and long-term, to
    promote robust and reliable public safety communications in the 800
    MHz band to ensure the safety of life and property. While we are
    mindful of our statutory obligations under Section 309(j) of the Act
    regarding the use of competitive bidding procedures for the
    assignment of spectrum, we nonetheless believe the license
    modifications we approve today are consistent with Section 309(j) of
    the Act and our other spectrum management obligations. This action
    does not signal any change in the Commission's policy of using
    competitive bidding as a licensing tool in other contexts,
    consistent with statutory requirements.

# Executive Summary

8.  In this *Report and Order,* we adopt a two-prong solution to the
    public safety interference problem in the 800 MHz band, with each
    prong having several components. First, to more adequately respond
    to individual interference events immediately, we establish an
    objective standard for defining "unacceptable interference" to 800
    MHz non-cellular systems, establish rules and procedures for the
    expeditious implementation and enforcement of this standard, and
    endorse a variety of technical solutions and mechanisms, defined as
    "Enhanced Best Practices," to address interference abatement in the
    short- term. Second, to provide a better spectrum environment for
    public safety in the long-term, we adopt a plan for reconfiguration
    of the 800 MHz band and provide for a thirty-six-month transition by
    incumbent licensees from their current frequency assignments to new
    frequency assignments in the band.

9.  Based on the extensive and comprehensive record of the proceeding,
    we are convinced that neither band reconfiguration alone, nor
    application of "technical fixes" on a case-by-case basis would
    adequately address the interference to 800 MHz public safety
    communications systems. Thus, we have adopted a Commission-derived
    solution which, in addition to decisions we have reached
    independently, incorporates both recommendations made by the
    proponents of case-by-case "technical fixes" and the proponents of
    band reconfiguration. In reaching this solution, we were aided by
    technical and economic studies, research data and legal analyses
    contained in the record. [^19] We believe that the approach we adopt
    is technically and legally sound, logistically achievable, and
    representative of the collective expertise of all of the various
    interests which have addressed this significant issue.

10. In the first prong of this *Report and Order*, we take a number of
    steps to provide for immediate abatement of interference to 800 MHz
    band public safety and other non-cellular systems:

-   We adopt a new, objective definition of "unacceptable interference,"
    for purposes of this proceeding only, to determine when public
    safety and other non-cellular 800 MHz band licensees are entitled to
    interference protection.[^20]

-   We assign strict responsibility for eliminating unacceptable
    interference to the ESMR or cellular telephone operator(s)
    implicated in the interference occurrence, and assign joint
    responsibility to all involved commercial operators if unacceptable
    interference results from a combination of signals from multiple
    systems.[^21]

-   We require ESMR and cellular telephone licensees, on request, to
    notify public safety and CII licensees prior to activating new or
    modified cells, and require public safety and CII licensees
    receiving such information to notify ESMR and cellular telephone
    licensees of changes in system parameters.[^22]

11. Under the second prong of the *Report and Order*, we take steps to
    reconfigure the 800 MHz band to separate public safety, CII, and
    other non-cellular systems on the one hand, and ESMR systems, such
    as Nextel's, on the other:

-   We designate fourteen megahertz in the upper portion of the 800 MHz
    band (817-824 MHz/862-869 MHz) for ESMR systems, while designating
    eighteen megahertz in the lower portion of the 800 MHz band (806-815
    MHz/851-860 MHz) for use by public safety, CII, and other
    non-cellular systems.[^23] Between the upper and lower band
    segments, we establish an Expansion Band and a Guard Band to
    separate ESMR operations from public safety and CII operations and
    protect the latter from interference.

-   As part of band reconfiguration, we require Nextel to relinquish all
    of its 800 MHz band spectrum holdings below 817 MHz/862 MHz.[^24]
    This will result in an additional average of 4.5 megahertz of 800
    MHz band spectrum becoming available to the public safety community,
    particularly in the major markets where the shortage of public
    safety spectrum is most acute.

-   We require band reconfiguration to be completed through a phased
    transition process within thirty-six months of release of a Public
    Notice announcing the start date of reconfiguration in the first
    NPSPAC region.[^25] We provide for an independent Transition
    Administrator to oversee the band reconfiguration process.[^26]

-   We assign financial responsibility to Nextel for the full cost of
    relocation of all 800 MHz band public safety systems and other 800
    MHz band incumbents to their new spectrum assignments with
    comparable facilities, *i.e.*, systems with comparable technological
    and operational capability.[^27] We adopt financial, licensing, and
    administrative safeguards to ensure completion of band
    reconfiguration regardless of Nextel's financial condition.[^28]

12. In connection with the reconfiguration of the 800 MHz band, as
    described above, we take the following additional spectrum-related
    actions:

-   We accept Nextel's relinquishment of its current spectrum rights in
    the 700 MHz Guard Band and contemplate a future *Further Notice of
    Proposed Rulemaking* to determine the disposition of this
    spectrum.[^29]

-   In exchange for the spectrum rights Nextel is surrendering, coupled
    with the obligations it is incurring to accomplish 800 MHz band
    reconfiguration, we will modify certain Nextel licenses to provide
    Nextel with nationwide authority to operate in ten megahertz of
    spectrum at 1910-1915 MHz/1990-1995 MHz.[^30] We require Nextel to
    reimburse UTAM Inc. (UTAM) for the cost of clearing the 1910-1915
    MHz band, and to clear the 1990-2025 MHz band of BAS incumbents
    within thirty months of the effective date of this *Report and
    Order.*[^31]

-   To ensure that Nextel is treated equitably but does not realize an
    undue windfall, we condition the grant of 1.9 GHz band spectrum
    rights to Nextel on its meeting the obligations imposed by this
    *Report and Order*, and on its payment to the U.S. Treasury of any
    difference between the value of the 1.9 GHz band spectrum rights,
    the value of spectrum rights relinquished by Nextel, and Nextel's
    costs incurred in reconfiguring the 800 MHz band and clearing the
    1.9 GHz band.[^32]

-   We reject Nextel's proposed relinquishment of 900 MHz spectrum as
    part of the Consensus Parties' proposal,[^33] but allow 900 MHz band
    Private Land Mobile Radio (PLMR) service licensees to initiate CMRS
    operations on their currently authorized spectrum or to assign their
    authorizations to others for CMRS use.[^34]

# major findings and decisions

## The 800 MHz Interference Problem and Solutions 

13. In the *NPRM*, the Commission documented the increasing incidence of
    interference to 800 MHz band public safety systems from high density
    ESMR and cellular telephone systems.[^35] We tentatively concluded
    that interference to public safety represented "a sufficiently
    serious problem that a solution must be found."[^36] We find that
    the record in this proceeding supports the following findings:

-   The public safety interference problem described in the *NPRM* is
    serious and will only increase in severity as private, public safety
    and commercial use of the 800 MHz band intensifies.

-   Public safety agencies are becoming increasingly dependent on the
    800 MHz band to meet their communications needs as spectrum used by
    public safety in lower bands has become congested, particularly in
    urban areas.[^37]

-   Although many ESMR and cellular telephone licensees have been
    commendably cooperative in bearing the responsibility for
    identifying and promptly curing interference at their own expense,
    their ability to continue to do so effectively will become
    problematic as more intense use is made of 800 MHz band and cellular
    telephone spectrum.

-   Despite the claims by some that licensees in the cellular telephone
    bands cause little interference to 800 MHz band public safety
    systems,[^38] strong evidence exists to the contrary.[^39]

-   We must take the actions necessary to ensure that first
    responders---both public safety and CII personnel---have
    communications channels free of unacceptable interference and
    thereby suitable for mission-critical operations including rapid
    response to major incidents that threaten Homeland Security.

14. Until now, the Commission's approach to interference resolution in
    the 800 MHz band has been to urge the involved parties to make
    voluntary technical changes to prevent or reduce interference at
    particular sites.[^40] This is consistent with the policy reflected
    in current rules that require affected licensees to resolve
    interference through mutually satisfactory arrangements.[^41] While
    these measures have helped to alleviate interference in some
    instances, the record leads us to conclude that the interference
    problem will only intensify as cellular-architecture licensees make
    more intensive use of their spectrum and that voluntary measures
    alone will not stem the growth of unacceptable interference. We thus
    are convinced that unacceptable interference will be stemmed in an
    efficient and effective manner, only by the actions we take today to
    establish mandatory interference-abatement rules.

15. In this proceeding, parties have presented us with two long-term
    alternatives for addressing the 800 MHz interference problem:

-   The Consensus Parties have proposed a band reconfiguration plan that
    would move ESMR systems---most notably Nextel---to the upper portion
    of the 800 MHz band, move all public safety and "high site"
    operators to the lower portion of the band, and make additional
    spectrum in the band available for public safety use.[^42]

-   Other parties, including cellular telephone licensees and their
    representatives, utilities and even some public safety agencies,
    have questioned the need for band reconfiguration, and aver that
    technical changes accompanied by certain mandatory procedural
    requirements, such as prior coordination of cell sites, would
    suffice to solve the interference problem without the need to
    reconfigure the 800 MHz band. One group of entities, the 800 MHz
    User Coalition, refers to this alternative as the "Balanced
    Approach."[^43]

16. We agree, in part, with the suggestion by proponents of the Balanced
    Approach and other parties that we should augment the technical and
    procedural changes contained in the *Best Practices Guide* and apply
    certain of them on a mandatory basis. While we do not adopt all of
    the suggested technical restrictions, we have carefully considered
    various technical measures suggested by the parties and supplemented
    them with certain procedural rules. Hereinafter, we refer to this
    Commission-derived set of practices and procedures as Enhanced Best
    Practices.

17. On this record, however, we disagree with those parties that contend
    that exclusive reliance on Enhanced Best Practices on a case-by-case
    basis is the best long-term solution to the interference
    problem.[^44] Although case-by-case treatment of potential and
    actual interference under an Enhanced Best Practices regime provides
    clear benefits over the current voluntary regime, we conclude that
    that approach, by itself, does not provide the best long-term answer
    to the problem of interference to public safety and other
    non-cellular operations in the 800 MHz band. Our finding in that
    regard rests on the following facts:

-   Addressing interference on a case-by-case basis is both
    labor-intensive and expensive.[^45]

-   The transactional costs of applying Enhanced Best Practices as an
    exclusive remedy would increase as new public safety and other
    non-cellular systems were implemented and ESMR and cellular
    licensees increased the capacity of their systems by adding more
    cells.

-   The increased costs and labor burden disproportionately affects
    public safety agencies, many of which operate with very limited
    human, technical, and financial resources.

-   Some interference situations respond poorly, if at all, to the use
    of the techniques contained in the Enhanced Best Practices.

-   ESMR and cellular systems will continue to expand. This will
    increase congestion in the 800 MHz band as well as the attendant
    interference to public safety systems operating in the band. We
    would disserve the public interest if we allowed unacceptable
    interference to become ubiquitous before addressing the fundamental
    causes of this interference.

18. In contrast, band reconfiguration confers the following greater
    benefits over the long-term:

-   Band reconfiguration addresses interference comprehensively and
    proactively by eliminating the current interleaving of public safety
    and commercial channels in the 800 MHz band and separating
    cellularized multi-cell and non-cellularized high-site systems
    within the band.

-   Although there are significant short-term costs associated with band
    reconfiguration, it is the solution most likely to yield maximum
    interference protection benefits for the least cost over the long
    run.[^46]

-   Once implemented, a reconfigured band will reduce both the upfront
    amount of coordinated engineering work necessary to prevent
    interference and the burden of troubleshooting interference
    incidents on a case-by-case basis.

-   Eliminating interleaving of public safety and commercial channels
    will reduce the number of "band edges" between spectrum utilized by
    the two different network architectures thus significantly reducing
    the risk of interference to public safety systems.

-   With adoption of band reconfiguration, public safety entities will
    have access, on average, to 4.5 megahertz of additional 800 MHz
    spectrum, which they can readily incorporate into existing systems
    to enhance their ability to protect the safety of life and property.
    Moreover, public safety entities that wish to do so will have the
    option of using spectrum in the Expansion Band or the Guard Band,
    subject to the technical and operational limitations on those bands.

-   The relocation of the current NPSPAC channels from their current
    position to the lowest segment of the 800 MHz band will result in a
    greater potential for interoperability with public safety systems in
    the spectrally adjacent 700 MHz public safety band.

-   The adoption of a reconfigured 800 MHz band plan will provide
    certainty to licensees planning to implement new 800 MHz systems or
    modify existing systems.

## Entitlement to Interference Protection 

19. We are adopting a new objective technical standard for determining
    whether a public safety or other non-cellular 800 MHz band licensee
    is entitled to interference protection. We adopt this standard to
    more finely adapt our rules to the technologies being deployed in
    the 800 MHz band. Specifically:

-   "Unacceptable interference" is defined, for the limited purpose of
    this proceeding, as a function of threshold median received power
    levels of desired signals. Specifically, "unacceptable interference"
    occurs when the signals from a cellular architecture station or
    stations, cause the carrier-to-noise plus interference ratio of a
    radio meeting TIA-equivalent Class A standards to degrade below 20
    dB in an area in which the median measured received signal power of
    the desired signal is equal to or greater than -104 dBm for mobile
    units or -101 dBm for portable units.[^47] In the case of data
    radios, unacceptable interference occurs when the received signal
    power criteria, above, are met and the bit error rate of the radio
    exceeds the value specified by the radio's manufacturer for reliable
    operations.[^48]

-   Under the rules adopted in this Order, desired signals from systems
    operating in the 806-816 MHz/851-861 MHz band segment that equal or
    exceed the threshold are entitled to protection from unacceptable
    interference as defined above. Non-cellular systems operating from
    816-817 MHz/861-862 MHz in the Guard Band are also provided
    interference protection, but to a lesser degree.[^49]

-   In recognition of the role that receiver characteristics play in the
    interference calculus, we are affording full protection against
    unacceptable interference only to systems whose mobile or portable
    receivers are capable of satisfactory operation at the threshold
    signal power in the absence of interference.[^50] Other systems will
    receive lesser protection as a function of the degree to which their
    receivers exhibit inferior performance.

20. The method of interference abatement we adopt herein leaves to the
    involved parties---and not the Commission---the choice of how best
    to ensure that their systems do not cause unacceptable interference.
    Thus, a given party may choose from a variety of methods encompassed
    in the Enhanced Best Practices in each area where interference
    occurs, including, but not limited to, modification of the cell that
    is the source of interference or technical improvements to the
    affected public safety system or other non-cellular 800 MHz systems
    (at the commercial operator's expense).[^51] In addition, to the
    extent that interference results from the combination of signals
    from multiple transmitters, and potentially multiple licensees, we
    place joint and several responsibility on such CMRS licensees to
    eliminate unacceptable interference using the remedies of their
    choice. In not imposing new, across-the-board emission limitations
    that would necessitate highly expensive technical changes to most,
    if not all, ESMR and cellular systems nationwide, we have heeded the
    filings of those parties who have decried the expense of such
    technical micromanagement and urged that the same goal can be
    achieved otherwise, for example, by the less intrusive means we
    adopt today.[^52]

## 800 MHz Band Reconfiguration

21. The 800 MHz band is currently configured as follows:

    ![](media/image1.wmf){width="4.901388888888889in"
    height="3.6819444444444445in"}

22. Our plan for reconfiguration of the 800 MHz band is designed to
    spectrally segregate public safety systems from ESMR and cellular
    telephone systems. In reaching this spectrum management decision, we
    are guided by the principle that we can minimize unacceptable
    interference in the 800 MHz band by placing similar system
    architectures in like spectrum and isolating dissimilar
    architectures from one another.[^53] Under the new band plan adopted
    in this *Report and Order*, the 800 MHz band will be configured as
    follows:

    ![](media/image2.wmf){width="4.901388888888889in"
    height="3.6819444444444445in"}

23. The new band plan will have the following impact on existing
    licensees in the band:

-   Systems in the current NPSPAC band will be relocated to
    806-809/851-854 MHz in the current General Category band.[^54] To
    accommodate NPSPAC relocation, Nextel will relinquish its General
    Category licenses and other existing General Category systems will
    be relocated elsewhere in the 800 MHz band.[^55]

-   Existing public safety systems and non-cellular B/ILT and SMR
    systems operating on interleaved channels between 809.75-816
    MHz/854.75-861 MHz will continue to operate on those channels.

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-   Nextel will relocate to the 817-824 MHz/862-869 MHz band, and will
    vacate all channels it now uses in the 806-817 MHz/851-862 MHz band
    segment. Public safety, and later CII agencies will have exclusive
    access to all channels vacated by Nextel in the interleaved portion
    of the band below 815 MHz/860 MHz for a limited-year period of
    time.[^56]

-   No public safety licensee will be required to operate in the 815-816
    MHz/860-861 MHz Expansion Band. Any public safety system currently
    located in the Expansion Band will be relocated to spectrum below
    the Expansion Band unless it exercises its option to remain in the
    Expansion Band.[^57]

-   No public safety or CII licensee will be required to operate in the
    816-817 MHz/861-862 MHz Guard Band. Only licensees who voluntarily
    choose to relocate to the Guard Band will occupy this portion of the
    band.[^58]

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-   Unless the subject of mutual agreement among affected parties,
    non-Nextel ESMR operations below 816/861 MHz may stay where they
    are, subject to a stringent non-interference obligation.[^59]

24. Providing public safety with additional spectrum rights in the 800
    MHz band, instead of elsewhere as others have proposed,[^60] has
    significant advantages. First, spectrum rights in the 800 MHz band
    are currently more valuable to public safety licensees than spectrum
    rights in the 700 MHz public safety band which can be subject to
    interference from incumbent television stations. This interference
    may foreclose extensive use of the 700 MHz public safety band in
    certain markets for several years. Second, 800 MHz band spectrum
    rights are of particular value to public safety licensees because
    new channels can be integrated into their existing infrastructure at
    little additional cost: the additional channels can be added to
    existing base station sites with, typically, only minor hardware
    changes; and most existing public safety mobile and portable radios
    can be adapted to receive the additional channels with only minor
    modification or reprogramming. In sum, providing public safety with
    access to additional spectrum in the 800 MHz band can provide a
    virtually instant capacity increase for public safety systems and
    will facilitate interoperability with other agencies---an important
    capability for Homeland Security operations. To the extent that band
    reconfiguration may require extensive replacement of existing 800
    MHz band public safety equipment, manufacturers likely will achieve
    economies of scale in the process. We urge manufacturers to pass on
    such savings to public safety agencies.

25. In crafting the band plan adopted herein, we examined all proposals
    submitted in the course of this proceeding. While we did not adopt
    any proposal in its entirety, we did extract elements from several
    proposals and adopted a modified version of the only band plan that
    with an effective, comprehensive approach for resolving the
    interference problems that jeopardized public safety.[^61] We
    nonetheless recognize that the band plan we adopt is in some
    respects inconsistent with current international agreements. As a
    result, implementing the band plan in areas of the United States
    bordering Mexico and Canada will require modifications to
    international agreements for use of the 800 MHz band in the border
    areas. Since we value highly our agreements with these countries we
    intend to promptly pursue those modifications during our bilateral
    discussions with those countries' relevant regulatory bodies.[^62]
    During the pendency of such modifications, all 800 MHz band
    operations (both cellular and non-cellular alike) must continue to
    be consistent with current international agreements. Consequently,
    if a region containing a border area is reconfigured, all 800 MHz
    band operations within the border area must conform to all
    international agreements unless and until such international
    agreements are amended to reflect a reconfigured 800 MHz band. We
    envision and intend that interference-free cross-border mutual-aid
    capability remain paramount during this interim period preceding
    modification of the applicable international agreements.

## Band Reconfiguration Process 

26. We recognize that our decision to reconfigure the 800 MHz band
    raises significant transition issues, particularly with respect to
    the relocation of public safety and other non-cellular licensees
    from old to new frequency assignments. We are sensitive to the
    concerns raised about service and operational disruption and are
    committed to ensuring that the band reconfiguration process does not
    result in degradation of existing service or an adverse effect on
    public safety communications and operations. We therefore have
    adopted rules that ensure both continuity of service and that
    relocating licensees receive "comparable facilities" on their new
    frequency assignments, whether this requires retuning existing
    equipment or providing replacement equipment.[^63]

27. In an effort to further ensure a smooth transition to the new 800
    MHz band plan, the relocation process will be managed by an
    independent Transition Administrator.[^64] A committee of major 800
    MHz band stakeholders will select the Transition Administrator who
    will perform a variety of administrative functions and mediate, or
    refer to mediation, any disputes that may arise in connection with
    band reconfiguration. Should any such disputes not be resolved by
    mediation, the Transition Administrator will compile a record and
    transmit it to the Commission. The Commission then will review the
    disputed matter *de novo.*[^65]

28. We are committed to having band reconfiguration completed through a
    phased transition process within thirty-six months of release of a
    Public Notice announcing the start date of reconfiguration in the
    first NPSPAC region. To ensure timely completion, we require Nextel
    to meet both an interim benchmark and a final benchmark. As an
    interim benchmark, within eighteen months of release of a Public
    Notice announcing the start date of reconfiguration in the first
    NPSPAC region Nextel must complete, and the Transition Administrator
    must certify that Nextel has completed, the retuning of Channels
    1-120 for twenty NPSPAC Regions. If Nextel fails to meet this
    interim benchmark, for reasons that Nextel, with the exercise of due
    diligence, could reasonably have avoided, the Commission may
    consider and exercise any appropriate enforcement action within its
    authority, including assessment of monetary forfeitures or, if
    warranted, license revocation.[^66] At thirty-six months, Nextel
    must complete, and the Transition Administrator must certify, all
    relocation of 800 MHz incumbents required by this Report and Order.
    If Nextel fails to meet this benchmark, for reasons that Nextel
    could reasonably have avoided, the Commission will determine whether
    forfeitures should be imposed and/or whether Nextel licenses,
    including, but not limited to, its 1.9 GHz licenses, should be
    revoked.

## Guarantee of Sufficient Funds for Band Reconfiguration

29. Nextel has committed to pay up to \$850 million for retuning and
    replacement expenses associated with its own relocation and the
    related relocations discussed in this *Report and Order*, an amount
    it claims is sufficient to cover all such costs. We do not believe,
    however, that Nextel should be able to cap its obligation to pay
    relocation costs, because doing so could leave public safety and
    other relocating entities without the means to complete the
    relocation process in the event that Nextel's estimates prove low
    and relocation costs exceeded any such cap. Therefore, we decline to
    "cap" Nextel's obligations at \$850 million or any other amount but
    instead require Nextel to pay all costs of band reconfiguration, as
    defined in this *Report and Order.*

30. In addition, to protect against possible changes to Nextel's
    financial condition, we require Nextel to secure its commitment by
    means of an irrevocable letter of credit in the amount of \$2.5
    billion, within sixty days of the date this *Report and Order* is
    published in the Federal Register.[^67] We believe this letter of
    credit strikes the appropriate balance between Nextel's estimate
    that band reconfiguration would cost \$850 million and others'
    contention that Nextel's estimates were unrealistically low. We
    further note that Nextel may be required to obtain additional
    letters of credit if ongoing experience with band reconfiguration
    show the initial letter of credit to be inadequate.

## Equitable Compensation for Band Reconfiguration 

31. Nextel proposes that, as compensation for its relinquishment of some
    of its spectrum rights in the 700, 800 and 900 MHz bands and its
    commitment to pay 800 MHz band incumbent relocation costs, it should
    receive a nationwide license for ten megahertz of spectrum in the
    1.9 GHz band.[^68] We conclude that it is in the public interest to
    compensate Nextel for the surrendered spectrum rights and costs it
    incurs as a result of band reconfiguration. By facilitating band
    reconfiguration, giving up spectrum rights, and bearing the
    financial burden of the relocation process for all affected
    incumbents, Nextel will play a critical role in solving the 800 MHz
    band public safety interference problem.[^69]

32. However, we agree with the parties who have urged us to reject
    modifying Nextel's licenses on a "megahertz-for-megahertz" basis
    whereby Nextel would receive rights to ten megahertz of spectrum in
    the 1.9 GHz band region in exchange for the rights to approximately
    ten megahertz of combined spectrum it offers to surrender in the
    700, 800, and 900 MHz bands.[^70] We reject this approach, *inter
    alia,* because we perceive insufficient benefit to public
    safety,[^71] and do not find the spectrum rights offered to be
    comparable in value to the spectrum rights sought. Instead, to
    ensure that the public and our licensees including Nextel are
    treated equitably, and that Nextel does not gain undue advantage, we
    will compensate Nextel on a "value for value" basis.

33. Accordingly, by means of a *Fifth Report and Order* in ET Docket No.
    00-258 we designate two paired five megahertz blocks in the
    1910-1915 MHz and 1990-1995 MHz bands for the provision of new
    services, including AWS, which we make available to Nextel as part
    of the public safety rebanding approach described above. In
    addition, we adopt a *Fourth Memorandum Opinion and Order* in ET
    Docket No. 95-15 to provide for clearing of incumbents from this
    spectrum. More specifically:

-   We make the 1910-1915 MHz block available by redesignating the band
    from Unlicensed Personal Communications Services (UPCS) use to
    licensed fixed and mobile services to be used for AWS, and adopt a
    plan that provides reimbursement compensation to UTAM for relocation
    expenses it has incurred in relocating incumbents from the band and
    allows for the relocation of remaining incumbent licensees.

-   In the 1990-1995 MHz block, which has already been reallocated for
    fixed and mobile services, we make the band available to Nextel
    subject to the condition that it relocate incumbent BAS licensees in
    the 1990-2025 MHz band within thirty months.[^72] We also address
    several petitions for reconsideration and clarification regarding
    the existing relocation and reimbursement plan for incumbent BAS
    licensees in the 1990-2025 MHz band.

34. Nextel will receive rights to the 1.9 GHz band spectrum conditioned
    on its meeting the obligations imposed by this *Report and Order,*
    and on its payment to the U.S. Treasury of any difference between
    the value of 1.9 GHz band spectrum rights and Nextel's costs
    incurred in reconfiguring the 800 MHz band and clearing the 1.9 GHz
    band. Specifically, the amount due the U.S. Treasury will be the net
    of our estimate of the current value of the 1.9 GHz band spectrum
    rights, discounted by the actual cost of 800 MHz band
    reconfiguration (including Nextel's own relocation costs), clearing
    the 1.9 GHz band, and the value of the additional 800 MHz band and
    700 MHz band spectrum rights that Nextel will relinquish.

35. At the conclusion of the thirty-six month band reconfiguration
    process specified herein, but no later than six months thereafter,
    the following financial reconciliation will be made:

-   Nextel will be allotted a \$1.607 billion credit[^73] for
    relinquishing rights to an average of 4.5 megahertz of spectrum in
    the 800 MHz band.

-   Nextel will provide the Transition Administrator an accounting of
    the funds spent:

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-   to reconfigure its own systems in the 800 MHz band;[^74] and

-   to clear the 1.9 GHz band of incumbents and to reimburse UTAM.

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-   Nextel will also provide the Transition Administrator an accounting
    of the funds received as reimbursement for clearing the 1.9 GHz
    band.

-   The Transition Administrator shall provide an accounting of the
    funds spent to reconfigure the systems of incumbent operators in the
    800 MHz band, including its own salary and expenses.[^75]^4A^ This
    accounting shall include certifications from each relocated licensee
    that all necessary reconfiguration work has been completed and that
    Nextel and said licensee agree on the sum paid for such work.

-   Upon verification of these accountings, Nextel will be allotted an
    appropriate credit.

-   To the extent that those combined credits total less than the value
    of the 1.9 GHz band spectrum, Nextel shall be obligated to make a
    payment to the United States Treasury at the conclusion of the
    relocation process equal to the difference.

-   Within ten days of the calculation of the amount of this payment,
    the Wireless Telecommunications Bureau will issue a Public Notice
    specifying the amount that Nextel will pay the United States
    Treasury If Nextel does not make payment of any amount that it owes
    within thirty days of issuance of this Public Notice, the amount
    Nextel owes will be paid from the letter(s) of credit. If the
    letter(s) of credit do not secure sufficient funds, then the
    Commission will determine whether forfeitures should be imposed
    and/or whether Nextel licenses, included, but not limited to its 1.9
    GHz licenses, should be revoked.

# Regulatory Background

## 800 MHz Band

36. In the mid-1970's, the Commission reallocated spectrum in the
    806-947 MHz band for land mobile operations and designated portions
    of this spectrum for high capacity common carrier mobile
    communications (*i.e.* cellular systems) and PLMR; and reserve
    spectrum for future land mobile communications needs.[^76] The
    Commission allotted one-third of the spectrum for conventional
    operation and the remaining two-thirds for trunked operation.[^77]
    By the close of the 1970's, the Commission had released a portion of
    reserve 800 MHz spectrum to alleviate spectrum shortages confronting
    users of conventional channels.[^78] In the early 1980's, the
    Commission adopted rules for the release of the remaining reserve
    spectrum according to radio service categories and established the
    800 MHz Public Safety, B/ILT, and SMR service categories.[^79] The
    specific channel pairs allotted to the various services differ along
    the U.S. border areas with Mexico and Canada.[^80] The Commission
    did not make contiguous spectrum available to each radio service
    because technology limitations at that time did not readily
    accommodate the use of contiguous spectrum at a single base station
    site.[^81] Instead, the channel pairs made available to each radio
    service were "interleaved" between channels allotted to the other
    radio services.[^82] The Commission provided for inter-category
    sharing (*i.e.*, sharing between radio services) to permit licensees
    access to spectrum in instances in which the channels assigned to a
    licensee's particular radio service had been exhausted.[^83] At the
    time, the Commission contemplated that the radio service categories
    could be phased out in three years.[^84] However, the categories
    proved to have continuing utility and remain in use today. In 1986,
    based on experience with the radio service category structure in the
    800 MHz band, the Commission adopted a similar structure for the 900
    MHz band land mobile spectrum.[^85]

37. In 1986, the Commission designated six megahertz of spectrum at
    821-824 MHz/866-869 MHz for public safety use and established the
    NPSPAC to advise the Commission on rules for this spectrum.[^86]
    After the NPSPAC filed its Initial Report, the Commission issued
    rules for the new public safety spectrum, which became known as the
    "NPSPAC Band," including five channels devoted to mutual aid
    (interoperability) use.[^87] Thereafter, many jurisdictions began
    planning and implementing wide-area (often state-wide) 800 MHz band
    public safety systems that utilize NPSPAC and Public Safety Category
    channels.[^88]

38. In 1990, the Commission established the General Category Radio
    Service at 806-809.75 MHz/851-854.75 MHz for either conventional or
    trunked operation by any eligible 800 MHz licensee.[^89] A year
    later, the Commission waived its rule requiring SMR licensees to
    complete system construction in one year, to accommodate SMR
    licensees' interest in accumulating large numbers of 800 MHz
    channels and using advanced technology to increase spectrum reuse by
    employing cellular-type architecture to efficiently serve wide areas
    and large numbers of subscribers.[^90] Thereby, it afforded Fleet
    Call, the predecessor of Nextel, sufficient time to develop and
    implement an SMR system offering wide-area digital voice and data
    service.[^91]

39. In 1994, the Commission proposed a new licensing framework for SMR
    systems in the 800 MHz band.[^92] After release of the *Further
    Notice*, there was a significant increase in the number of requests
    for General Category channels made by SMR applicants and
    licensees.[^93] On October 4, 1995, the Wireless Telecommunications
    Bureau imposed a freeze on acceptance of new applications for the
    General Category channels to ensure that resolution of the spectrum
    allocation issues raised in the *Further Notice* would not be
    compromised.[^94] In December 1995, the Commission established
    geographic area licensing and new service rules for the "upper 200"
    800 MHz SMR channel pairs at 816-821 MHz/861-866 MHz where such
    wide-area digital voice and data services eventually
    proliferated.[^95] The Commission subsequently redesignated the
    General Category channels exclusively to the 800 MHz SMR service,
    whereby mutually exclusive initial applications would be subject to
    competitive bidding, and excluded PLMR licensees from eligibility
    for this spectrum.[^96] On reconsideration, however, the Commission
    reversed its decision concerning eligibility and reinstated the
    eligibility of PLMR applicants for General Category channels.[^97]
    The Commission also partially lifted the freeze on General Category
    channels to permit Economic Area (EA) applicants[^98] to relocate
    incumbents from the upper ten megahertz block of 800 MHz spectrum to
    the General Category channels.[^99] In all other respects, the
    Commission maintained the freeze so as not to frustrate its efforts
    regarding future licensing of General Category channels.[^100]

## 700 MHz Band

40. Prior to 1997, the 700 MHz band (TV Channels 60-69) was exclusively
    used by broadcasters. In the Balanced Budget Act of 1997, Congress
    directed the Commission to reallocate twenty-four megahertz of this
    spectrum for public safety use and to auction thirty-six megahertz
    of this spectrum for commercial use.[^101] Incumbent analog
    television stations on the 700 MHz band frequencies are allowed to
    remain in operation until December 31, 2006, and, under certain
    circumstances, well beyond that date.[^102] These stations render
    the 700 MHz band unusable for public safety systems in the majority
    of metropolitan areas at this time.

41. In January 2000, the Commission established two paired 700 MHz guard
    bands (the 700 MHz Guard Bands), one of four megahertz and one of
    two megahertz, in the commercial use spectrum immediately adjacent
    to the public safety spectrum to insulate public safety operations
    from unacceptable interference from 700 MHz commercial
    services.[^103] In the *Upper 700 MHz Second Report and Order*, the
    Commission adopted technical, operational, and licensing
    requirements for the 700 MHz Guard Bands,[^104] including a ban on
    cellular operations.[^105] The Commission's restriction on cellular
    operations stems from its experience in the 800 MHz land mobile band
    in which the incompatibility of "high-site" operations and cellular
    operations led to the instant rule making.[^106] The Commission
    determined that the 700 MHz Guard Bands would be licensed by
    competitive bidding to a new class of commercial user called a Guard
    Band Manager who would lease the spectrum for value to third parties
    on a for-profit basis.[^107] The Commission believed this process
    would allow third parties to more readily acquire spectrum for
    varied uses, enable these parties to take advantage of the
    efficiencies of site-by-site licensing, and streamline the
    Commission's spectrum management responsibilities.[^108] In
    September 2000, the Commission completed the auction of the 700 MHz
    Guard Band spectrum.[^109] However, in the Auction Reform Act of
    2002, Congress directed the Commission to postpone auctioning the
    remaining thirty megahertz of the upper 700 MHz spectrum (747-762
    MHz/777-792 MHz) until resolution of the 800 MHz public safety
    interference issues that are the subject of the instant rule making
    proceeding.[^110]

## 900 MHz Band

42. In 1986, based on experience with the pool structure in the 800 MHz
    band, the Commission adopted the same pool structure for the 900 MHz
    band land mobile spectrum and established the SMR, B/ILT
    Pools.[^111] Given that success of inter-category sharing in the 800
    MHz band, the Commission concluded that inter-category sharing
    should be implemented in the 900 MHz pool channels.[^112]

43. The 900 MHz SMR service[^113] was established in order to alleviate
    congestion in the 800 MHz SMR band.[^114] To expedite service in
    major markets where demand for SMR service was greatest, the
    Commission elected to use a two-phase licensing process. In Phase I,
    licenses were assigned in forty \"Designated Filing Areas\" (DFAs)
    comprised of the top fifty markets. Following Phase I, the
    Commission envisioned licensing facilities in areas outside these
    markets in Phase II. In the meantime, however, licensing outside the
    DFAs was frozen after 1986, when the Commission opened its filing
    window for the DFAs.[^115]

44. In 1993, the Commission adopted a *First Report & Order and Further
    Notice of Proposed Rulemaking* in PR Docket 89-553, modifying its
    Phase II proposal and seeking comment on whether to license the 900
    MHz SMR band to a combination of nationwide, regional, and local
    systems.[^116] Shortly after the *First Report & Order/Further
    Notice*, Congress amended the Communications Act to reclassify most
    SMR licensees as CMRS providers and establish the authority to use
    competitive bidding to select from among mutually exclusive
    applicants for certain licensed services.[^117] Accordingly, the
    Commission deferred further consideration of Phase II and
    incorporated the 900 MHz docket (as well as the companion docket
    relating to 800 MHz SMR),[^118] into its CMRS proceeding to ensure
    that the regulation of all SMRs would be consistent with the
    regulation of competing CMRS services such as cellular and PCS[^119]
    and to consider the impact of auction authority on the record of the
    pending 900 MHz proceeding.[^120]

45. In the *CMRS Third Report & Order*, the Commission further revised
    its Phase II proposals and established the broad outlines for the
    completion of licensing in the 900 MHz SMR band. The Commission
    concluded that (1) the 900 MHz SMR band would be licensed in twenty
    ten-channel blocks using MTAs as service areas; (2) licensing of
    mutually exclusive applicants for this spectrum would be based on
    competitive bidding; and (3) incumbent licensees in the band would
    retain the right to operate under their existing authorizations, but
    would be required to obtain the relevant MTA license (or obtain the
    consent of the MTA licensee) to be able to expand their
    systems.[^121] In 1996 the Commission completed its auction of 900
    MHz SMR licenses and announced the winning bidders to use 900 MHz
    SMR in major MTAs.[^122]

46. In the Balanced Budget Act proceeding, the Commission amended its
    rules to permit CMRS use of PLMRS frequencies in the 800 MHz land
    mobile band and allowed PLMRS licensees to transfer their licenses
    to CMRS entities.[^123] In the *BBA R&O and FNPRM*, the Commission
    asked comment on whether, in the interest of regulatory symmetry, it
    should extend the same rules to 900 MHz band land mobile
    spectrum.[^124] In the *NPRM* initiating this proceeding we sought
    comment on this issue in light of Nextel\'s proposal to accommodate
    800 MHz incumbents in the 900 MHz band.[^125]

## 1.9 GHz Band

47. The Commission identified a large number of potential bands to
    support the types of innovative mobile services that it has broadly
    described as AWS in the January 2001 *Notice of Proposed Rulemaking
    and Order*,[^126] and in the August 2001 *Memorandum Opinion and
    Order and Further Notice of Proposed Rule Making* in the ET Docket
    No. 00-258 proceeding.[^127] Collectively, in the *Notice* and the
    *Further Notice*, the Commission sought comment on the suitability
    for use by AWS of frequency bands that included the 1910-1930 MHz
    band (designated for UPCS), the 1990-2025 MHz band (allocated for
    Mobile-Satellite Service (MSS)) and other bands. Subsequent
    decisions have narrowed the spectrum bands under consideration. In
    the September 2001 *First Report and Order and Memorandum Opinion
    and Order*, the Commission modified the existing allocation in the
    2500-2690 MHz band to provide additional flexibility, but did not
    reallocate the band to AWS.[^128] In the November 2002 *Second
    Report and Order*, the Commission allocated ninety megahertz of
    spectrum for AWS, consisting of forty-five megahertz of Federal
    Government-use spectrum in the 1710-1755 MHz band and forty-five
    megahertz in the 2110-2155 MHz band.[^129]

48. Most recently, in its February 2003 *Third Report and Order, Third
    Notice of Proposed Rulemaking and Second Memorandum Opinion and
    Order*, the Commission considered use of spectrum in the 1910-1930
    MHz band, as well as spectrum allocated to the 2 GHz MSS service in
    the 1990-2025 MHz and 2165-2200 MHz bands.[^130] In the *Third R&O*,
    the Commission reallocated the 1990-2000 MHz, 2020-2025 MHz, and
    2165-2180 MHz bands for Fixed and Mobile services.[^131] In the
    *AWS* *Third NPRM*, the Commission identified a portion of the UPCS
    band at 1910-1920 MHz band as spectrum that could be made available
    for AWS or other purposes and sought comment with regard to using it
    for paired or unpaired operations---including entirely new AWS
    applications, expansion of existing Broadband PCS operations to
    support new and innovative mobile services, and as relocation
    spectrum for existing services. In a separate proceeding, ET Docket
    No. 95-18, the Commission had established the procedures by which 2
    GHz MSS licensees would relocate BAS and FS licensees from the
    1990-2025 MHz and 2165-2200 MHz bands, respectively. In light of the
    reallocation of a portion of this spectrum to support new fixed and
    mobile services, we issued a *Third Report and Order* in ET Docket
    No. 95-18 revising these relocation procedures to account for the
    new entrants into the band.[^132]

49. Although the decisions we have made in the larger AWS and related
    proceedings directly affect the decisions we make today, the instant
    action focuses exclusively on allocations we make in the 1910-1915
    MHz and 1990-1995 MHz bands. Accordingly, we address each of those
    bands individually, and then address the merits of creating a paired
    allocation consisting of the two bands.

### 1910-1915 MHz Band 

50. The 1910-1915 MHz band is a subset of a larger twenty megahertz band
    at 1910-1930 MHz that is allocated to the fixed and mobile services
    on a primary basis,[^133] and is designated for use by UPCS
    devices.[^134] Under the current rules, the 1910-1920 MHz portion of
    the band may be used for asynchronous (generally data) UPCS devices
    and the 1920-1930 MHz portion may be used for isochronous (generally
    voice) UPCS devices.[^135]

51. Before the 1910-1930 MHz band was made available for UPCS
    applications, this band was used by fixed point-to-point microwave
    links. To facilitate the introduction of UPCS systems, the
    Commission established policies in the *Emerging Technologies*
    proceeding for the relocation of incumbent microwave systems from
    this band and designated a single entity, UTAM, to coordinate and
    manage the transition.[^136] Unlike Broadband PCS, the record for
    UPCS deployment has been mixed. Currently, the most widespread
    application of the 1920-1930 MHz UPCS band is for wireless PBX
    systems.[^137] A search of our equipment authorization database
    reveals no UPCS equipment authorized for the 1910-1920 MHz band.

52. In the *AWS Third NPRM*, we revisited the issue of redesignating all
    or a portion of the 1910-1930 MHz band for fixed and mobile services
    with the intent of promoting AWS use, pairing this band with
    spectrum in the 1990-2000 MHz band, and establishing reimbursement
    procedures for UTAM's relocation of incumbent microwave links in the
    UPCS band. As an initial matter, we decided to retain the 1920-1930
    MHz band for isochronous UPCS use, given the existing voice
    applications that have been deployed in that band segment.[^138] In
    the *AWS Third NPRM*, we also sought comment on reallocation options
    for the 1910-1920 MHz band. Specifically, we noted that asynchronous
    UPCS applications had not been developed since the service was
    authorized in 1994, and concluded the public interest would not be
    served if the ten megahertz of spectrum designated for asynchronous
    use in the 1910-1920 MHz band remained fallow when there were many
    applications that could put it to good use.[^139]

53. In conjunction with its proposal to redesignate as much as ten
    megahertz in the 1910-1920 MHz band, the Commission recognized that
    new licensees in the band would reap the benefits of UTAM's band
    clearing efforts and concluded that UTAM should be adequately
    reimbursed for its efforts. Therefore, we sought comment on
    proposals for reimbursing UTAM. In particular, we proposed that UTAM
    be entitled to a percentage of the total reimbursement expenses
    incurred for the 1910-1930 MHz band as of the effective date of any
    final rules adopted in the AWS proceeding.[^140]

54. We also note that there are several outstanding petitions that
    relate to use of the 1910-1915 MHz band segment. There are four
    petitions for waiver filed by Lucent, UTStarcom & Drew University,
    Ascom, and Alaska Power;[^141] and two petitions for rulemaking
    filed by WINForum[^142] and UTStarcom,[^143] most of which request
    various unlicensed uses of the band. In the *AWS Further Notice*,
    the Commission sought comment on whether a portion of, or the
    entire, 1910-1930 MHz band should be redesignated for AWS or as
    relocation spectrum for incumbents in other frequency bands that are
    displaced by new AWS licensees.[^144]

### 1990-1995 MHz Band 

55. The 1990-2110 MHz band (2 GHz BAS band) is currently used
    extensively by the BAS for mobile TV pickup (TVPU) operations,
    including electronic newsgathering (ENG) operations to cover events
    of interest.[^145] The original 2 GHz BAS channel plan divided the
    band into seven channels, each consisting of between 16.5 and 18
    megahertz.[^146] In the *MSS Second R&O*, the Commission reallocated
    the 1990-2025 MHz segment to the MSS and established a relocation
    plan for incumbent BAS.[^147] The Commission adopted a two-phase
    relocation plan with a cutover schedule based on market size in
    which the BAS would eventually have access to seven 12 megahertz
    channels in the 2025-2110 MHz band at the end of the
    transition.[^148] The Commission also identified four broad
    categories of BAS markets---"LA" (Los Angeles television market),
    "Metro" (remaining top 30 television markets), "Light" (television
    markets 31-100), and "Rural" (television markets 101 and
    above).[^149] The Commission specified different relocation
    schedules for BAS facilities based on the size of the market.[^150]
    For example, BAS incumbents in markets 1-30 were to be relocated on
    an earlier schedule than incumbents in markets 31-100.

56. In the *MSS Third R&O,* the Commission modified the plan that 2 GHz
    MSS licensees were to follow when relocating incumbent BAS licensees
    to the 1990-2025 MHz band.[^151] The modified plan provides for the
    relocation of BAS licensees to the 2025-2110 MHz band in a single
    step, retains the distinction of BAS licensees by market size, and
    requires the relocation of those licensees within the time periods
    specified for their respective market categories.[^152] The
    Commission also noted that, subsequent to its establishment of the
    BAS relocation plan, it had reallocated fifteen megahertz of
    spectrum in the 1990-2025 MHz band for new AWS entrants.[^153] The
    Commission concluded that it was necessary to give these new AWS
    entrants a realistic opportunity to seek early use of the band in
    exchange for the relocation of incumbent users, while minimizing the
    disruption to BAS incumbents to the extent possible.[^154] The
    Commission found that given the need to provide for rapid
    introduction of AWS in the 2 GHz BAS band a two-phase relocation was
    no longer appropriate.[^155]

57. In order to provide early access to the 1990-2025 MHz spectrum for
    MSS licensees while maintaining the integrity of the BAS system, the
    Commission set up a negotiation structure that provided for a
    one-year mandatory negotiation period, consistent with those
    procedures established in the *Emerging Technologies*
    proceeding.[^156] Under this structure, incumbent BAS licensees in
    television markets 1-30 are required to negotiate in good faith with
    the new MSS entrant to facilitate relocation from the band.[^157]
    Upon expiration of the mandatory negotiation period, the new MSS
    entrant may involuntarily relocate incumbent BAS licensees to the
    seven narrower channels in the 2025-2110 MHz band that make up the
    revised BAS channel plan.[^158] Once BAS licensees in markets 1-30
    and all fixed BAS stations, regardless of market size, have been
    relocated, MSS licensees may begin their nationwide operations in
    the 2000-2020 MHz band. On the date the first MSS licensee begins
    operations, all BAS licensees in markets 31-210 must immediately
    cease operations on existing channels 1 and 2 (1990-2025 MHz), and
    BAS operations will no longer be permitted in that spectrum. Also on
    this date, a one-year mandatory negotiation period will begin
    between MSS licensees and BAS incumbents in markets 31-210. Although
    MSS licensees may involuntarily relocate BAS incumbents at any time
    after the expiration of the one-year mandatory negotiation period,
    BAS incumbents in markets 31-100 must be relocated to the seven
    narrower channels in the 2025-2110 MHz band that make up the revised
    BAS channel plan within three years of the date the first MSS
    licensee begins operations, and BAS incumbents in markets 101-210
    must be relocated within five years of this date.[^159]

58. Petitions for reconsideration or clarification of BAS relocation
    decisions made in the *MSS Third R&O* were filed by the Association
    for Maximum Service Television (MSTV), National Association of
    Broadcasters (NAB), Society of Broadcast Engineers (SBE) and Boeing
    Company (Boeing). The Radio-Television News Directors Association
    (RTNDA) filed comments in support of the petition filed by the other
    broadcast parties. MSTV/NAB and Boeing filed oppositions. ICO Global
    Communications Limited (ICO), NAB/MSTV/SBE and Boeing filed reply
    comments. We will address the BAS relocation issues raised in these
    petitions in this proceeding.[^160]

### Band Pairing

59. In the AWS *Third NPRM*, we noted that the 1910-1920 MHz band (or a
    portion thereof) and the 1990-2000 MHz band (or a portion thereof)
    were well suited to be part of a paired spectrum allocation, and
    tentatively concluded that it would serve the public interest to
    adopt a five + five megahertz or a ten + ten megahertz pairing
    within these bands.[^161] We noted that such a pairing would allow
    for a number of new uses, including an expansion of systems using
    the adjacent Broadband PCS bands. Moreover, both Nextel and parties
    representing MDS licensees in the 2150-2160 MHz band have expressed
    interest in obtaining this paired spectrum. In both instances, these
    parties proposed to make use of paired spectrum in the 1910-1920 MHz
    and 1990-2000 MHz band to offset spectrum they would no longer use,
    in order to address public safety interference concerns (in the case
    of Nextel) or would lose because the spectrum had been reallocated
    as part of the AWS proceeding (in the case of MDS licensees).

60. We noted that such an allocation might allow for quicker design and
    deployment of new equipment because existing Broadband PCS systems
    operate on adjacent bands, and that because the 1910-1920 MHz band
    lacks incumbent UPCS users, new licensees need only address
    relocation as it pertains to the relocation of incumbent
    point-to-point microwave systems in the band. We also noted that a
    five + five megahertz block pairing could accommodate the design
    specifications of both existing high-power mobile applications (such
    as Broadband PCS) and systems (such as WCDMA and CDMA‑2000) that
    have commonly been proposed for AWS deployment.[^162]

# Record overview of the 800 mhz public safety interference proceeding

61. Our decisions in this *Report and Order* stem from a record that
    extends well beyond the typical comment/reply comment cycle. The
    record of over 2200 filings depicts an evolving understanding among
    the parties of how interference occurs in the 800 MHz band and how
    best to attack it at its source. Parties to the proceeding have
    contributed engineering, economic, legal and policy analyses,
    enabling us to craft a solution that is technically sound,
    effective, and equitable to the parties, consistent with precedent
    and in all respects realizable. Although we carefully reviewed all
    submissions in this docket, we list some of the major milestones on
    the road to that solution below:

-   In April 2000, the Commission convened a meeting of representatives
    from APCO, Nextel, the CTIA, Motorola and the Public Safety Wireless
    Network (PSWN) to address the growing problem of interference to 800
    MHz public safety systems. As an outcome of the meeting, the parties
    published the *Best Practices Guide*, which contained technical
    modifications and procedures to reduce interference.[^163]

```{=html}
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```
-   On November 21, 2001, Nextel filed a White Paper proposing
    reconfiguration of the 800 MHz band to abate the interference being
    caused to 800 MHz public safety systems.[^164] The White Paper
    proposed moving all non-cellular SMR and B/ILT licensees to other
    bands.[^165] The 800 MHz spectrum available to public safety would
    double.[^166] Nextel was to pay up to \$500 million of the costs
    incurred by public safety entities in changing channels to
    facilitate band reconfiguration.[^167] Other 800 MHz licensees were
    to bear their own cost of relocation to other bands.[^168] Nextel
    also would relinquish its 700 MHz and 900 MHz band spectrum
    rights.[^169] In return, Nextel would receive a nationwide allotment
    of ten megahertz of spectrum in the 2.1 GHz band.[^170]

-   On December 21, 2001, the National Association of Manufacturers
    (NAM) and MRFAC, one of the Commission's certified frequency
    coordinators, made a joint filing wherein they advanced a band
    reconfiguration plan which they claimed could be implemented without
    the need to give Nextel the requested 2.1 GHz spectrum.[^171]

-   On March 15, 2002, the Commission issued the *NPRM* seeking comment
    on the two band reconfiguration proposals (Nextel and NAM/MRFAC) and
    on a variety of other issues, all related to abatement of
    interference to 800 MHz public safety systems.

-   The Commission received 139 comments in response to the *NPRM*
    during the comment period of April 5, 2002, to May 6, 2002; and
    seventeen reply comments during the thirty-day reply comment period
    which ended on June 4, 2002.[^172] In those comments, several
    parties advanced alternative band reconfiguration proposals. Other
    parties argued that technical measures short of band reconfiguration
    would remedy the interference problem. Some B/ILT and non-cellular
    SMR licensees objected to being required to relocate to other bands
    at their own expense.

-   Although most of the reply comments were rebuttals to the comments,
    the Consensus Parties filed an extensive new proposal that
    effectively superseded the White Paper*.*[^173] The new proposal
    included a band reconfiguration plan that would not displace B/ILT
    and non-cellular SMR licensees from the 800 MHz band. Nextel
    continued its commitment to pay up to \$500 million for relocation
    of 800 MHz public safety systems and proposed to relinquish certain
    of its 700 MHz, 800 MHz, and 900 MHz spectrum rights. Nextel argued
    that it should be "made whole" for doing so as part of a "spectrum
    swap" that would net it ten megahertz of spectrum rights at 1.9 GHz.

-   Because the reply comments contained new matters on which other
    parties had not had the opportunity to comment, a public notice
    establishing a September 23, 2002 deadline for the submission of
    comments addressing the new proposal was issued*.*[^174] We received
    sixty-five comments, including one late-filed comment, in response
    to the *September 6^th^ Public Notice*.

-   On December 24, 2002, the Consensus Parties filed a supplement to
    their proposal in which Nextel agreed to pay up to \$850 million of
    the costs of relocating any system---public safety, ESMR,
    non-cellular SMR or B/ILT---as necessary to implement the previously
    submitted band reconfiguration proposal.[^175] Non-cellular 800 MHz
    systems were to be afforded protection against ESMR and cellular
    telephone interference, provided the desired signal was adequate in
    the area in which interference was being encountered.[^176] The
    supplement also contained a proposed band plan for use in the
    Canadian and Mexican border areas.[^177]

-   Because the revisions to the proposal were so extensive, on January
    3, 2003, another pleading cycle was initiated, inviting comment on
    the Supplemental Comments of the Consensus Parties.[^178] Sixty-four
    comments and thirty-nine reply comments were filed in response to
    the *January 3^rd^ Public Notice*. Comments were received on
    February 3, 2003; reply comments on February 18, 2003, at which time
    the record was closed. However, as discussed below, we received an
    exceptionally large number of filings made pursuant to our rules
    allowing *ex parte* communications in a permit but disclose
    rulemaking proceeding such as this.[^179]

-   On April 18, 2003, the Chief of the Commission's Office of
    Engineering and Technology wrote to equipment manufacturers
    inquiring whether there were any recent developments in receiver
    technology that would aid in the reduction of interference to 800
    MHz public safety systems.[^180]

-   On May 6, 2003, Motorola filed a letter reporting that it had
    developed an improved receiver with enhanced capability for
    rejecting intermodulation interference using switchable
    attenuators;[^181] provided the receiver was presented with a
    sufficiently strong public safety signal.

-   On May 29, 2003, a new partythe 800 MHz Users
    Coalition[^182]**filed an *ex parte* document characterized as a
    "Balanced Approach" to interference abatement. The Balanced Approach
    was a set of specific procedures for identifying and eliminating
    interference to incumbent users and suggesting specific changes to
    the technical rules for the 806-824 MHz/851-869 MHz band to prevent
    future harmful interference to public safety and other licensees
    operating there. The 800 MHz Users Coalition claimed that the
    Balanced Approach would solve the interference problem completely
    and, therefore, that band reconfiguration was unnecessary.

-   On July 29, 2003, Anne Arundel County, Maryland filed an *ex parte*
    letter confirming that the County reached a "channel swap" agreement
    with Nextel.[^183] The County observes that the frequency exchange
    agreement will relocate the County from the "middle portion" of the
    interleaved spectrum to slightly lower in the 800 MHz band. While
    the County believes that the exchange will improve the County's
    spectrum access and coverage, the County states that it will still
    be "interleaved" and near Nextel and cellular carrier's operations.
    Accordingly, the County submits, the channel swap, alone, cannot
    sufficiently eliminate all intermodulation and out-of-band emission
    (OOBE) interference;[^184] and a permanent interference solution
    will require de-interleaving the channels used for noise-limited
    public safety systems from those allocated for high-capacity,
    multi-cell cellular systems.

-   On August 7, 2003, the Consensus Parties filed an *ex parte*
    document which contained a rebuttal to the 800 MHz Users Coalition
    May 29, 2003 *Ex Parte* and an analysis purporting to show that the
    improved Motorola receivers, discussed *supra*, would not themselves
    provide sufficient relief from unacceptable interference; but that
    they would be a valuable adjunct to band reconfiguration.[^185]

-   On October 27, 2003, Verizon Wireless filed an economic study
    purporting to show that adoption of the Consensus Plan, including
    the allocation of ten megahertz of 1.9 GHz spectrum to Nextel, would
    increase the value of Nextel's spectrum rights by \$7.2
    billion.[^186]

-   On October 29, 2003, the Commission received comments from Industry
    Canada on the Consensus Parties' Plan. These comments addressed what
    Industry Canada perceived as shortcomings in the proposal for
    reconfiguring the 800 MHz band in the border area.[^187]

-   On November 3, 2003, Motorola filed an *ex parte* description of the
    embedded base of Motorola products in the 800 MHz band indicating
    which Motorola radios could be supplied with, or converted to,
    switchable attenuator circuitry.[^188]

-   On November 6, 2003, the City of Denver filed a "channel swap"
    agreement it had reached with Nextel. Nextel and Denver entered into
    this agreement because implementation of the technical fixes
    identified in the *Best Practices Guide* had been ineffective in
    completely abating interference to Denver's 800 MHz public safety
    system.[^189]

-   On November 20, 2003, Nextel filed an *ex parte* economic evaluation
    of the Consensus Plan, the Motorola Plan, the July 9, 2003 CTIA
    economic estimates and the CTIA/UTC plan.[^190]

-   On December 24, 2003, the City and County of San Diego filed a
    "channel swap" agreement that the City and County reached with
    Nextel due to their belief that the Consensus Plan, as designed, in
    and of itself, will not work in San Diego.[^191] The City and County
    agreement incorporates certain aspects of the Consensus Plan (*i.e.*
    Appendix F, as amended August 2003) and some revisions to the
    Balanced Approach Plan[^192] in order to adequately address the City
    and County's concerns for reliable communications, mutual aid NSPAC
    channels, and interoperability.

-   On February 10, 2004, Verizon Wireless filed a study by Kane Reece
    Associates contesting the spectrum evaluation contained in the
    Nextel Sunfire *ex parte.*[^193]

-   On February 19, 2004, Verizon Wireless filed a document entitled
    "Determination of the Fair Market Value of the Spectrum Proposed for
    Realignment by Nextel Communications, Inc." which reiterated their
    claim that adoption of the Consensus Plan, including the allocation
    of ten megahertz of 1.9 GHz spectrum rights to Nextel, would
    increase the value of Nextel's spectrum rights by \$7.2
    billion.[^194] In addition, Verizon filed the following documents:

    -   Pro Forma Analysis of Cingular/AT&T Wireless Transaction as of
        February 17, 2004, by Kane Reece;

    -   Legg Mason, Spectrum Swap Looks Headed Nextel's Way, But With
        Wrinkle, January 22, 2004; and

    -   Goldman Sachs, NXTL (U/C) & FCC moving towards negotiated
        agreement on spectrum issues, October 5, 2003.

-   On March 18, 2004, Nextel filed an analysis of the Kane Reece
    Spectrum Valuation challenging that valuation's conclusion that
    adoption of the Consensus Plan would result in a windfall to
    Nextel.[^195]

-   On March 31, 2004, Verizon Wireless filed a petition requesting that
    the Commission auction spectrum rights in the 1910-1915 MHz and
    1990-1995 MHz bands.[^196] On April 8, 2004, Verizon Wireless
    informed the Wireless Telecommunications Bureau that it is prepared
    to submit an initial opening round bid of \$5 billion in such an
    auction.[^197]

-   On April 14, 2004, Verizon Wireless filed a letter indicating that
    Nextel had originally sought replacement spectrum in the 2.1 GHz
    band, instead of 1.9 GHz.[^198]

-   On April 22, 2004, Nextel filed a letter stating that it could not
    accept spectrum rights in the 2.1 GHz band in exchange for its
    commitment to fund the reconfiguration of the 800 MHz band.[^199]

-   On April 29, 2004, CTIA filed a proposal in which Nextel would
    establish a Public Safety Trust Fund with a minimum deposit of \$3
    billion. An independent trustee would administer this fund, which
    would fund band reconfiguration.[^200] In exchange, CTIA proposes
    the Commission grant Nextel spectrum rights to ten megahertz in the
    2.1 GHz band.

-   On May 3, 2004, Nextel submitted a plan for relocating BAS licensees
    out of the 1990-2025 MHz band. Under this plan, Nextel would commit
    to funding the entire cost of relocating all BAS incumbents
    nationwide from the 1990-2025 MHz band, subject to Nextel's being
    assigned replacement spectrum in the 1910-1915/1990-1995 MHz band
    and receiving full credit for its contributions to the BAS
    relocation costs, which MSTV, NAB and Nextel estimate at \$512
    million.[^201]

-   On May 7, 2004, CTIA filed an analysis of the band clearing costs,
    propagation characteristics, equipment costs and valuation of the
    2.1 GHz band.[^202]

-   On June 4, 2004, Nextel offered to surrender its rights to an
    additional two megahertz of 800 MHz spectrum as well as its rights
    to 700 MHz Guard Band Spectrum in forty markets, thus estimating
    that Nextel's spectrum and financial contributions would total \$5.1
    billion.[^203]

-   On June 16, 2004, Nextel modified its June 4 submission to include a
    sliding scale of interference protection in the 816-817 MHz/861-862
    MHz band segment.[^204]

-   On June 30, 2004, Verizon Wireless submitted a legal analysis
    claiming that awarding Nextel spectrum rights in the 1.9 GHZ band
    violated the Anti Deficiency Act (ADA)[^205] and the Miscellaneous
    Receipts Act (MRA).[^206]

-   On July 1, 2004, Verizon Wireless supplemented its June 30, 2004
    legal analysis to further contend that the Nextel/BAS relocation
    plan violates the ADA and MRA.[^207]

-   On July 1, 2004, Nextel submitted a legal analysis claiming that
    awarding Nextel spectrum rights in the 1.9 GHz band would not
    violate the ADA and MRA.[^208]

-   On July 27, 2004, Nextel filed confirmations of its earlier record
    estimates of the costs it will incur installing filters in order to
    limit emissions into the lower-adjacent band and its retuning costs
    in order to complete band reconfiguration. The filing also discussed
    the eighteen month milestone.[^209]

# Discussion

## The Commission's Spectrum Management and Legal Authority 

62. Section I of the Act charges the Commission with "promoting safety
    of life and property through the use of wire and radio
    communication."[^210] In the face of this mandate, we cannot fail to
    take effective action to address the untenable situation that has
    developed in the 800 MHz band---the fact that the safety of life and
    property is placed at risk daily when 800 MHz public safety radios
    fail due to interference from ESMR and cellular systems, thereby
    severing the communications link that public safety officers rely
    upon to summon help, coordinate actions with their fellow officers,
    request emergency medical services, and respond to incidents that
    threaten our Homeland Security. If unacceptable interference in the
    800 MHz band were to remain unabated, this Commission would fail to
    achieve one of its prime directives: to manage the spectrum in a
    manner that promotes safety of life and property.

63. We conclude that in order to abate the interference in the 800 MHz
    band, the Commission has the authority to modify licenses so as to
    locate licensees in other portions of the spectrum. Indeed, in the
    Auction Reform Act of 2002, Congress found that one \"option\"
    available to the Commission to resolve the interference problem that
    exists in the 800 MHz band would involve the use of spectrum outside
    of the 800 MHz band*.*[^211] Clearly Congress indicated its approval
    of our consideration of allocating spectrum in the Upper 700 MHz
    band, as well as other options, to resolve the interference problems
    in the 800 MHz band. As we discuss *infra,* over the course of this
    proceeding, we have considered several bands, including the Upper
    700 MHz band, to facilitate the restructuring of the band. While the
    Upper 700 MHz band has not proven to be a viable option because of
    the inherent fluidity of the transition to DTV, we have found that
    the 1.9 GHz band is an option, and, in fact, the most viable and
    best option, to facilitate the restructuring of the 800 MHz band as
    contemplated by Congress.

64. We find we have legal authority under the Communications Act to
    implement the spectrum management plan set forth in this *Report and
    Order* including the authority to (i) modify Nextel's licenses to
    permit operations in the 1.9 GHz band and (ii) include relocation
    and potential "anti-windfall" payments from Nextel within the
    rebanding plan. Pursuant to Sections 316, 303, 301, and 4(i) of the
    Act,[^212] we have broad authority to effectuate a spectrum
    management plan that includes license modifications to serve the
    public interest. Further, the courts have recognized and deferred to
    our policy responsibilities in assessing the public interest and
    exercising this authority.[^213]

65. The Commission has the authority to modify licenses pursuant to
    Section 316 to solve the interference problems in the 800 MHz band.
    Specifically, Section 316(a)(1), provides that "\[a\]ny station
    license . . . may be modified by the Commission . . . if in the
    judgment of the Commission such action will promote the public
    interest, convenience and necessity."[^214] As the D.C. Circuit
    recently explained in *California Metro Mobile Communications v.
    FCC* (*CMMC*), "Section 316 grants the Commission broad power to
    modify licenses; the Commission need only find that the proposed
    modification serves the public interest, convenience and
    necessity."[^215] The D.C. Circuit has held that such modifications
    do not have to be consensual[^216], that license holders may be
    moved on a service-wide basis, without license-by-license
    consideration,[^217] and that eliminating harmful interference is an
    accepted basis for ordering license modifications.[^218]

66. Furthermore, the D.C. Circuit has upheld the Commission's authority
    to allocate the relocation costs associated with license
    modifications among the affected licensees. In *Teledesic, LLC v.
    FCC*, 275 F.3d 75, n. Error: Reference source not found *supra*, the
    court upheld the Commission's rules requiring satellite owners to
    pay the relocation costs of terrestrial users that they chose to
    displace as part of a rebanding of shared spectrum. The court noted
    that the approach to allocating relocation costs was similar to
    approaches that the Commission had adopted in both the Emerging
    Technologies and 2 GHz MSS relocation proceedings.[^219]

67. The D.C. Circuit also has upheld license modifications that involve
    relocating existing licensees to new spectrum, outside of the
    auction process. Specifically, the court found that the Commission
    may approve spectrum swaps between existing licensees, without
    offering the swapped spectrum to alternative users.[^220] The
    Commission also has moved licensees to unassigned spectrum under its
    modification authority. In the *MSS Order* the Commission, citing
    *Rainbow Broadcasting*, exercised its authority under Section 316 to
    assign open spectrum in the upper and lower L-bands to Motient
    Services (Motient).[^221] The spectrum replaced spectrum that the
    Commission had assigned to Motient in the upper L-band that the
    United States had been unable to coordinate internationally for use
    by a U.S. licensee.[^222] The Commission found that it was in the
    public interest to ensure that the existing MSS licensee was
    afforded sufficient spectrum to provide a viable service to remote
    and sparsely populated areas expeditiously, before opening up this
    spectrum to additional applications.[^223] Similarly, in the *DEMS
    Relocation Order,*[^224] the Commission, pursuant to Section 316,
    modified licenses to relocate the operations of certain Digital
    Electronic Message Service (DEMS) licensees from the 18 GHz band to
    the 24 GHz band, in order to accommodate Department of Defense
    military systems.

68. Here, we have determined that the subject license modifications
    clearly serve the public interest, convenience and necessity, as
    required by Section 316, because---as the record in this proceeding
    establishes---these modifications are essential components of the
    most effective and equitable band restructuring plan required to
    resolve serious and heretofore intractable interference
    problems---problems that have impaired and continue to impair public
    safety operations in the 800 MHz band.[^225] As we stated at the
    outset of this *Report and Order*, to ensure that the Nation's
    public safety agencies can effectively carry out their Homeland
    Security obligations, we must remedy the problem of interference in
    the 800 MHz band and ensure that public safety agencies have access
    to sufficient spectrum. Relocating public safety users out of the
    800 MHz band is not a viable option, for the reasons discussed at ¶
    207, *infra.* Without the removal of all of Nextel's 800 MHz
    spectrum below 817 MHz and the relocation of other licensees in the
    band (including public safety licensees), the spectrum-based
    problems facing public safety agencies in the 800 MHz band cannot be
    satisfactorily resolved. For practical reasons, we cannot place the
    financial burden of relocation on the thousands of incumbent
    non-cellular 800 MHz licensees, including state and local public
    safety agencies with very limited resources, and expect that the
    interference problem would be resolved in either a timely or
    acceptable manner. And, we would be failing to carry out our
    statutory duties as spectrum manager if we were to allow the current
    interference crisis to languish. By modifying Nextel's licenses to
    authorize operations in the 1.9 GHz band, we have created a
    mechanism to enable the band restructuring to occur without despite
    the significant, spectral, operational, financial and other
    obstacles. As the record demonstrates, this is the best option
    available to us.[^226]

69. We also find that public safety rebanding does not trigger an
    auction requirement. We disagree with parties who argue that the
    *Ashbacker* doctrine and Section 309(j) of the Communications Act
    preclude us from granting the 1.9 GHz spectrum rights to Nextel
    pursuant to Section 316. In *Ashbacker*,[^227] the Supreme Court
    held that under Section 309(a) of the Act,[^228] in cases in which
    there are mutually exclusive applications for a license, the
    Commission must provide a hearing for each applicant. *Ashbacker*,
    however, did not preclude the Commission from adopting licensing
    mechanisms through its rulemaking process that foreclose competing
    applications. Subsequent to *Ashbacker*, Congress enacted Section
    309(j) of the Act, which generally requires the Commission to
    dispose of mutually exclusive applications by auction.[^229] Nothing
    in Section 309(j) requires the Commission to accept mutually
    exclusive applications in the first place. Moreover, Section 309(j)
    applies only to initial licenses. As noted above, the D.C. Circuit
    has found that reassignments to new spectrum are not fundamental
    changes to the original licenses that themselves trigger the
    requirements for license revocation and reissuance.[^230] Here, our
    order changing the frequency of licensees' facilities neither
    triggers a right to file competing applications under *Ashbacker*
    nor compels an auction pursuant to Section 309(j). As the court
    found in the *Rainbow* case,[^231] the Commission is not required to
    open all frequencies for competing applications, as long as it
    provides a reasoned explanation of its decision not to do so. These
    principles are consistent with other Commission decisions where we
    modified licenses pursuant to Section 316. For example, in the *MSS
    Order*, where the Commission exercised its authority under Section
    316 to assign to one licensee the rights for up to twenty megahertz
    of open spectrum, the Commission found that the proceeding "did not
    involve initial applicants and the hearing rights of eligible new
    applicants under Section 309."[^232]

70. We also disagree with parties who argue that the 1.9 GHz spectrum to
    be assigned to Nextel is so much more valuable than the spectrum it
    is currently authorized to operate that the difference elevates the
    modification process to a "grant of an initial license, which under
    Section 309(j) \[must\] be subject to auction procedures."[^233] To
    support this position, CTIA cites the Commission's *Competitive
    Bidding Second Report and Order* in which it adopted rules for
    competitive bidding pursuant to Section 309(j):

> Where a modification would be so major as to dwarf the licensee's
> currently authorized facilities and the application is mutually
> exclusive with other major modifications or initial applications, the
> Commission will consider whether these applications are in substance
> more akin to initial applications and treat them accordingly for
> purposes of competitive bidding.[^234]

71. As a preliminary matter, the modification of Nextel's licenses does
    not create a circumstance in which an "application is mutually
    exclusive with other major modifications or initial applications."
    The Commission has accepted no other applications for the 1.9 GHz
    spectrum.[^235] At least one commercial provider has stated its
    intention to participate in an "immediate auction of the 1.9 GHz
    spectrum."[^236] Nevertheless, we have not authorized the filing of
    applications for this spectrum, have never proposed to do so, and,
    for the reasons set forth herein relating to important public safety
    concerns, conclude that it is not in the public interest to open the
    spectrum for competitive applications.

72. The above-quoted language from the *Competitive Bidding Second
    Report and Order* also indicates that the Commission "will consider"
    the nature of the modification if it works a major change, and this
    is exactly what we have done here. The plan we adopt today places
    Nextel in a comparable position to that which it now occupies and
    contains a cash payment mechanism that would become effective if
    necessary to ensure that Nextel does not reap a windfall from
    savings in reconfiguration costs. As detailed elsewhere in this
    *Report and Order*, we have found that the license modifications
    that we are ordering in this proceeding clearly promote the public
    interest, convenience, and necessity, as required by Section 316,
    and that an alternative process that does not assign the 1.9 GHz
    band for use in connection with the public safety rebanding would,
    at best, provide fewer and less effective public interest
    benefits[^237]

73. Moreover, Section 309(j) supports our conclusion that we have the
    authority to avoid mutual exclusivity in this context when it is in
    the public interest to do so. Although 309(j) generally requires
    auctions whenever mutually exclusive applications for initial
    licenses are filed, Section 309(j)(6)(E) provides that "\[nothing in
    this subsection shall\] be construed to relieve the Commission of
    the *obligation in the public interest* to continue to use
    engineering solutions, negotiation, threshold qualifications,
    service regulations, and other means in order to avoid mutual
    exclusivity *in application and licensing proceedings.*"[^238] Thus,
    in Section 309(j)(6)(E), Congress recognized that the Commission can
    determine that its public interest obligation warrants action that
    avoids mutual exclusivity, and that this obligation extends to
    "application and licensing proceedings" (which include license
    modifications), not just initial licensing matters. Other provisions
    of the Act confirm our conclusion that the auction requirements of
    Section 309(j), with their statutory limitations and qualifications
    that recognize the existence of potentially higher public uses for
    spectrum, do not preclude our furtherance of the public interest by
    adopting a band restructuring approach that avoids mutual
    exclusivity, promotes public safety, and provides Nextel access to
    substitute spectrum with which it may continue the development of
    its services.[^239]

74. We also note that, as an alternative licensing approach toward the
    same end, we could have exercised our authority to grant rights to
    the ten megahertz of spectrum to Nextel as an initial license,
    without subjecting the spectrum to competitive bidding procedures.
    The auction requirement of Section 309(j)(1) applies only when the
    Commission has accepted mutually exclusive applications for an
    initial license. As with a license modification approach, under an
    initial licensing scenario, eligibility for the 1.9 GHz spectrum
    would have to be limited to Nextel for the restructuring plan to
    address satisfactorily the public interest imperatives that we have
    identified. That eligibility restriction would be justified in the
    initial licensing context on the same public interest grounds that
    we have discussed above in connection with our authority to modify
    licenses under Section 316.[^240]

75. Our authority to require a cash payment from Nextel in the future if
    needed to prevent a windfall that otherwise might flow from its new
    rights to use the 1.9 GHz spectrum derives from Sections 4(i) and
    303(r) of the Act.[^241] Consistent with the public interest and
    Nextel's own proposal, Nextel has agreed to assume financial
    responsibility for reconfiguring the 800 MHz band. As explained
    below, however, we cannot be certain what Nextel's ultimate costs of
    fulfilling that obligation will be.[^242] If those reconfiguration
    costs are unexpectedly high, then Nextel nevertheless will be
    obligated to incur them. The cash payment mechanism we adopt here
    addresses the converse possibility that reconfiguration costs will
    be relatively low. In that situation, the terms of the spectrum
    exchange with Nextel will reflect those savings, maintaining an
    equitable exchange. In this way, savings in reconfiguration expenses
    will be realized as a public benefit (*i.e.*, a payment to the U.S.
    Treasury), rather than providing Nextel an unwarranted windfall from
    the license modification.

76. The situation here is analogous in key regards to that addressed in
    the *Mtel* case,[^243] where the court upheld the Commission's
    authority under Section 4(i) to impose a payment requirement on a
    licensee holding a pioneer's preference license that the Commission
    had originally awarded without a payment requirement. Specifically,
    the court upheld the Commission's authority to require payment under
    Section 4(i) to "ensure the achievement of the Commission's
    statutory responsibility to grant a license only where the grant
    would serve the public interest, convenience and necessity
    \[pursuant to Section 309(a)\]."[^244] The court "accord\[ed\]
    substantial deference to the Commission's judgment regarding how the
    public interest is best served" and cited with approval specific
    public interest concerns that the Commission Order suggested that
    the payment requirement would satisfy, including elimination of the
    possibility of unjust enrichment and "predation by a deep-pocketed
    Mtel."[^245] Similar to the payment requirement that was upheld in
    *Mtel*, in this *Report and Order* we impose a payment requirement
    pursuant to Section 4(i) and Section 303(r) to ensure that we
    fulfill our statutory responsibility to modify a license only where
    the grant would promote the public interest, convenience and
    necessity. Here, the public interest rationale is at least as
    compelling as in *Mtel*. In this case, requiring a payment allows us
    to address the interference problems in the 800 MHz band and provide
    public safety agencies with additional spectrum rights in a way that
    places Nextel in a comparable position to that which it now
    occupies. While addressing public safety concerns is a priority of
    the highest order, it is in the public interest to do so in a way
    that does not result in a windfall for Nextel. The anti-windfall
    payment addresses uncertainty about the exact amount of relocation
    costs for the 800 MHz band and the 1.9 GHz band. The plan obliges
    Nextel to pay the costs in the 800 MHz band and its share of the
    costs in the 1.9 GHz band, no matter how low or high they are. For
    example, if the costs are at the low end of Nextel's
    estimates,[^246] we find that it is in the public interest that the
    savings benefit the public, rather than Nextel. And similar to the
    *Mtel* case, the windfall payment also addresses concerns that
    assigning Nextel spectrum rights in another band as part of this
    comprehensive solution is unfair because Nextel is receiving free
    spectrum while its competitors must bid for spectrum at
    auction.[^247] For the reasons discussed elsewhere in this *Report*
    *and* *Order*, reducing the amount of 1.9 GHz spectrum granted to
    Nextel is not a reasonable way of protecting against such a
    windfall.[^248] By contrast, the alternative approach of requiring a
    payment from Nextel to maintain an exchange commensurate with the
    value of the spectrum it is receiving furthers the public interest
    objectives of the Communications Act and is consistent with the
    policy Congress articulated in Section 309(j) of "recover\[ing\] for
    the public of a portion of the value of the public spectrum resource
    made available for commercial use and avoidance of unjust enrichment
    through the methods employed to award uses of that resource."[^249]

77. Some parties in this proceeding have addressed the intersection of
    the Commission's authority under the Communications Act and the
    Commission's responsibilities under other federal statutes. In
    particular, we received several *ex parte* presentations[^250]
    addressing the question of whether the spectrum management plan and
    license modifications that we approve above violate appropriations
    statutes including the Anti-Deficiency Act (ADA),[^251] the
    Miscellaneous Receipts Act (MRA)[^252] and 18 U.S.C. § 641.[^253] 
    The Comptroller General has agreed at the request of a U.S. Senator
    to review the appropriations issues that parties have raised.[^254]

78. In light of the substantial importance of these issues, we have
    carefully reviewed the arguments raised in the various presentations
    and conducted our own, independent analysis of the various legal
    constraints under which the Commission operates. After this
    deliberate consideration, we have determined that our statutory
    obligation to ensure the public safety through our administration of
    spectrum justifies this order even in the face of the opposition of
    certain participants in this proceeding. Having reviewed these
    parties' arguments, we conclude, as discussed below, that
    appropriations law does not bar the course we pursue in this order.
    Indeed, we conclude that we would be remiss in our obligations to
    the public safety community---and indeed to the public at large---if
    we did not adopt the plan in the form discussed below.[^255]

79. The ADA prohibits any "officer or employee of the United States
    Government or of the District of Columbia government" from
    "involv\[ing\] either government in a contract or obligation for the
    payment of money before an appropriation is made unless authorized
    by law."[^256] The object of this provision is to prevent executive
    officers from involving the government in expenditures or
    liabilities beyond those contemplated and authorized by the
    lawmaking power.[^257] The first government-wide ADA was passed in
    1870.[^258] The MRA provides that a government official "receiving
    money for the Government from any source shall deposit the money in
    the Treasury as soon as practicable without deduction for any charge
    or claim."[^259] Congress passed the statute in 1849 to address its
    concern that some executive branch officers, such as customs
    officers, were failing to deposit all the money they collected in
    the course of their duties into the treasury, making deductions for
    their expenses and salaries as they saw fit.[^260] Neither of these
    statutes has ever been found applicable to the exercise of the
    Commission's spectrum management responsibilities.

80. Opponents who have raised challenges under appropriations law have
    essentially claimed that we are selling spectrum to Nextel in a
    private sale and using the proceeds to address the public safety
    interference problems in the 800 MHz band. In fact, what the
    Commission is doing is proceeding, under its broad section 316
    license modification authority, to restructure the 800 MHz band in
    order to serve significant public interest concerns. In doing so, we
    set forth a spectrum management plan that provides additional
    spectrum for public safety and leaves Nextel and the other licensees
    in a comparable position to where they were before the band
    restructuring. Courts have repeatedly upheld our authority to
    implement a new spectrum management plan by modifying licenses when
    it is in the public interest to do so and to allocate the relocation
    costs associated with license modifications among the affected
    licenses.[^261] And, as noted at ¶ 69 *supra,* neither the
    *Ashbacker* doctrine nor Section 309(j) poses a barrier to the
    implementation of our public safety rebanding plan.

81. The appropriations laws do not limit the Commission's power to
    accomplish rebanding for public safety or to recognize and
    facilitate Nextel's role in that rebanding. Critically, radio
    spectrum is not appropriated by Congress and it cannot be obligated,
    expended, or deposited in the Treasury under those laws. Radio
    spectrum is a public resource of the United States that Congress has
    authorized and directed the Commission to manage in the public
    interest. Indeed, the Commission's most basic spectrum-management
    power is to assign spectrum to achieve public interest benefits
    *other* *than* monetary recovery. Until the enactment of Section
    309(j) in Omnibus Budget Reconciliation Act of 1993,[^262] the
    Commission never obtained cash payments for spectrum. Through
    spectrum allocation and license assignments, it accomplished public
    interest objectives such as encouraging the provision of particular
    types of service, fostering new technologies, or promoting services
    for underserved customers.[^263] Even after the Commission was given
    auction authority, section 309(j)(7) prohibits the Commission from
    basing the decision whether to auction spectrum on a desire for
    federal revenue.[^264] Even when the Commission does use the auction
    mechanism, moreover, monetary recovery is just one of several
    factors the Commission must consider in establishing bidding
    qualifications and license conditions.[^265]

82. Allocating spectrum to establish a long-term solution to the public
    safety interference problem and support the associated rebanding is
    a valid use of spectrum in the public interest. As already noted,
    the Commission is *required* under Sections 1 and 303 of the Act to
    use its spectrum assignment powers to promote public safety. And as
    discussed at ¶ 63 *supra,* the Auction Reform Act of 2002
    specifically identified the interference problem in the 800 MHz band
    as one that the Commission might resolve by allocating spectrum from
    outside the 800 MHz band.

83. We also conclude that the anti-windfall payment from Nextel directly
    to the United States Treasury does not raise appropriations laws
    issues. As discussed in ¶ 76 *supra,* the D.C. Circuit upheld in the
    *Mtel* case the Commission's authority to require payment under
    Section 4(i) to "ensure the achievement of the Commission's
    statutory authority to grant a license only where the grant would
    serve the public interest, convenience and necessity" (*citations
    omitted).* Here, the anti-windfall payment is a valid regulatory
    requirement that serves the public interest because it addresses
    uncertainty about the exact amount of relocation costs for the 800
    MHz and 1.9 GHz bands and obligates Nextel to pay the relocation
    costs in the 800 MHz band and its share of the costs in the 1.9 GHz
    band. If the relocation costs are at the low end of the projected
    range, the anti-windfall payment would ensure that the savings would
    benefit the public, rather than Nextel.

84. Thus, we conclude that the situation here differs from the facts in
    a 1963 Comptroller General decision on which Verizon heavily relies
    in opposing the plan we adopt today. In the 1963 decision, which was
    overruled in 1972, the Comptroller General reviewed an arrangement
    in which a non-profit organization raised funds to finance a teacher
    training program and zoo guidebook by installing a coin-operated
    audio tour system on government property; the Comptroller General
    concluded that the arrangement violated both the ADA and the
    MRA.[^266] Specifically, the Comptroller General found that
    Congressional authorization was needed for such an arrangement
    because the applicable public contracts statute provided that the
    use of government property by outside parties "shall be for money
    only."[^267] Thus, the Comptroller General concluded that the grant
    of the concession to the non-profit organization would be
    permissible "only for a solely monetary consideration; if, on the
    other hand, a monetary consideration were provided, the money would
    be required to be deposited in the Treasury and would not be
    available for the proposed uses \[for teacher training and a zoo
    guidebook\] unless appropriated therefore by the Congress."[^268]
    Here, the Commission's action does not involve a concession or
    privilege subject to the government contracts statute in the zoo
    case, nor does it involve a "contract or other obligation for the
    payment of money" pursuant to the ADA.[^269] Furthermore, even if
    the ADA were otherwise implicated, Sections 1, 4(i), 301, 303,
    309(j), and 316 of the Communications Act provide the Commission
    with the authority necessary to adopt the public safety rebanding
    plan. Accordingly, today's spectrum management plan is "authorized
    by law" under the ADA.[^270]

85. With respect to the MRA, the Communications Act does not require the
    Commission to auction the 1.9 GHz spectrum. Rather, as discussed
    *supra* at note Error: Reference source not found*,* section
    309(j)(6)(E) gives the Commission broad authority to create or avoid
    mutual exclusivity in licensing, based on the Commission's
    assessment of the public interest. The MRA does not nullify the
    discretion that Congress gave to the Commission and preserved in
    Section 309(j).[^271] Here, the principle that funds received for
    the government should be deposited in the Treasury is fully
    satisfied, because any cash payment that may be required to protect
    against a windfall in favor of Nextel will be made to the Treasury,
    and there are no other government receipts.

86. The Commission has determined that the public interest requires the
    dedication of new spectrum to addressing the 800 MHz interference
    problem, and the 1.9 GHz spectrum is uniquely suited to that
    purpose. Those are public interest judgments for the Commission to
    make, and they are not changed by the possibility of a greater
    dollar recovery for the government from auctioning the 1.9 GHz
    spectrum. Given the vital public safety interest served by this
    *Report* *and* *Order*, moreover, we believe that it is essential to
    act promptly in this matter. Nonetheless, we recognize that parties
    have raised novel issues regarding appropriations law and that the
    Comptroller General is reviewing those issues. Should the
    Comptroller General unambiguously conclude that our order violates
    the appropriations statutes, we will address---either on our own
    motion or on that of moving parties---whether it is appropriate to
    stay the effect of some aspects of today's order pending a final
    decision by the court of appeals on any application for review.

87. Furthermore, we will ensure that the public is protected against
    potential claims by Nextel relating to any 800 MHz reconfiguration
    costs that it chooses to incur. Specifically, as a condition
    precedent to commencing operations with the 1.9 GHz band pursuant to
    any of its licenses modified pursuant to this *Report and* Order,
    Nextel shall file with the Commission an acknowledgement acceptable
    to the Commission. The acknowledgement shall state that, by
    accepting the license modification under the terms of the Order,
    Nextel acknowledges that it has studied the law and the facts and
    has made its own estimate of the risks that implementation of the
    Order may be delayed by judicial review and the Order may, in fact,
    be declared invalid. Nextel shall further acknowledge that the
    Commission has not participated in its assessment and is not privy
    to it, and does not in any way warrant any of the premises upon
    which Nextel\'s assessment may be based. Nextel shall acknowledge
    that it has accepted the risk of delay and invalidity and that,
    therefore, it cannot recover its costs or any damages associated
    with implementation or non-implementation of the Order from the
    Commission or any governmental entity.

## Interference Abatement

88. Two basic approaches to interference abatement have emerged from the
    extensive record in this proceeding:

-   Application of a variety of technical techniques including those in
    the *Best Practices Guide* as well those contained in Motorola's
    *Technical Toolbox*[^272] and the 800 MHz User's Coalition Balanced
    Approach filing.[^273]

-   Reconfiguration of the 800 MHz band to segregate non-cellular
    systems from systems using cellular architecture, *i.e.* ESMR and
    cellular systems.

We do not find these two approaches mutually exclusive; indeed, our
ultimate conclusion is that achieving satisfactory interference
abatement will require both band reconfiguration and application of
Enhanced Best Practices. Moreover, we believe Enhanced Best Practices
will play a vital role in protecting the integrity of public safety
communications during the transition period to a new 800 MHz band plan
and after reconfiguration is complete. Our decisions today on how to
best abate unacceptable interference rest on the record as well as on
analyses of the nature of interference being encountered and the
conditions under which a non-cellular 800 MHz licensee should be able to
claim entitlement to interference protection.

### Types of Interference

89. The predominant types of interference encountered by public safety
    and other 800 MHz non-cellular systems are intermodulation
    interference and OOBE interference.[^274] Some parties claim that
    most of the interference is of the intermodulation type; others
    contend that the division between intermodulation interference and
    OOBE interference is approximately equal.[^275] This disparity in
    opinion may be due to the difficulty of identifying the exact
    interference mode under field conditions with limited measurement
    apparatus and the fact that interfering channels may or may not be
    simultaneously active at a given time.[^276]

90. *OOBE Interference.* No radio transmitter can confine its emissions
    to an assigned channel; some signals invariably "spill over" into
    adjacent spectrum, i.e., all transmitters create some degree of
    OOBE. The Commission's rules specify the maximum permissible OOBE of
    single ESMR and cellular transmitters. However, there is no
    Commission rule governing the maximum OOBE that a multiple-channel
    cell can radiate. Moreover, cell OOBE increases cumulatively as a
    function of the number of channels active in a given cell or in
    nearby cells, *e.g.,* a public safety receiver could receive
    cumulative OOBE from an ESMR cell and a nearby cellular cell.
    Filters on ESMR and cellular transmitters are effective in reducing
    OOBE. However, as with all such filters, they are less effective on
    frequencies close to the transmitter frequency; *e.g.,* a filter may
    not be as effective in significantly reducing OOBE interference to a
    public safety receiver attempting to receive a signal on a channel
    immediately adjacent to the channel being used by a nearby ESMR or
    cellular cell.

91. *Intermodulation Interference.* This kind of interference occurs in
    800 MHz receivers when signals in use at a given cell---or a nearby
    cell---have a given, readily calculable, mathematical
    relationship[^277] and are strong in an area in which a public
    safety mobile or portable unit is attempting to communicate.[^278]
    When strong signals with the appropriate mathematical relationship
    are presented to the public safety receiver, they cause the active
    elements in the first stages of the receiver to operate in a
    non-linear manner.[^279] The incoming undesired signals mix in the
    receiver and produce a third frequency---an intermodulation
    product---which can either correspond or fall near the frequency on
    which the user of the radio is attempting to communicate.[^280] If
    the resultant new signal generated in the first stages of the
    receiver is sufficiently strong, it can effectively block the
    incoming signal, rendering the radio unusable at that
    location.[^281] The concept of mixing occurring in non-linear
    devices is sometimes analogized to color mixture. Thus, if a
    receiver were presented with a strong "blue" ESMR signal and a
    strong "yellow" cellular signal, the two colors could mix in the
    first stage of the receiver and form an interfering "green" signal
    that fell on a public safety frequency. The "mixing" concept is
    important to the understanding of intermodulation interference
    because it explains how two or more signals, widely separated (in
    frequency) from a public safety channel can still generate
    interference. It is significant here, because locating public safety
    channels in the lower portion of the band---as far as possible from
    the ESMR and cellular channels---would provide significant relief
    from interference on the public safety channels. However, it still
    leaves open the possibility that ESMR and cellular channels,
    separated from public safety channels by as much as ten megahertz,
    could mix in the first stage of the public safety radio and form an
    intermodulation product---that could fall within the channel the
    public safety radio is tuned to. Under this scenario, if the two
    ESMR and cellular signals are strong enough, and the radio does not
    have good intermodulation rejection capability, interference could
    still result.

### Entitlement to Interference Protection 

92. In order to implement technical and procedural rules for
    interference abatement, we must first determine the criteria by
    which licensees will be entitled to interference protection. At the
    core of this determination is how to define exactly what constitutes
    "unacceptable interference" to public safety and other non-cellular
    800 MHz systems. With an objective standard for unacceptable
    interference established, all 800 MHz licensees would have certainty
    regarding their respective rights and obligations. As a result,
    licensees will be able to readily identify in what circumstances
    they can reasonably expect to operate free from unacceptable
    interference. We emphasize, however, that our determination on what
    constitutes "unacceptable interference" applies solely to this
    proceeding.

#### Introduction

93. Historically, the Commission has imposed limits on the area in which
    land mobile communications systems with given
    characteristics---effective radiated power (ERP), frequency, antenna
    height, geographical separation, *etc*.---can expect substantially
    interference-free operation from other systems. For instance, in
    some bands, our Rules define these areas geographically, *e.g.,* a
    public safety system in certain bands can expect interference
    protection because our Rules prohibit co-channel stations within
    seventy-miles of the protected station.[^282] In other bands, public
    safety has a "protected contour\" that defines the area in which
    interference protection from other co-channel or adjacent channel
    systems can be expected, *e.g.* a 37 dBµV/m contour (VHF) or a 39
    dBµV/m contour (UHF).[^283] Under either protection
    scheme---distance separation or protected contours---the signal
    level at which the public safety system no longer can expect
    interference protection is well above the typical receiver noise
    floor.[^284]

94. Consequently, when frequencies are assigned based on distance
    separations or protected contours, the area in which a licensee may
    operate is limited by the potential of interference from nearby
    systems, *e.g*. the potential for interference defines the area
    within which a public safety signal is intelligible, not merely by
    the strength of the public safety signal above the receiver noise
    floor. Given this fact, we believe that it would be inappropriate,
    as a matter of responsible spectrum management, to afford public
    safety systems the noise-limited coverage that some proponents have
    recommended.[^285] For example, were we to do so for a given public
    safety system in the 800 MHz band, it would not only restrict the
    availability of public safety spectrum in adjoining areas but also
    would make it virtually impossible for CMRS systems to use channels
    that contributed the slightest amount of noise to a public safety
    receiver in the far fringes of its noise-limited coverage area. Such
    an outcome would result in inefficient utilization of CMRS spectrum.
    Moreover, the substantial set of measures we are adopting here will
    provide public safety systems with strong protections against
    interference, rendering this particular measure unnecessary.

95. We also conclude we should adopt an interference protection standard
    in the 800 MHz band based on measured, rather than predicted signal
    strength. While one approach would be to define the coverage area of
    public safety system by a predicted signal contour, signal level
    prediction is an inexact science and 800 MHz radio signal
    propagation can be affected by multiple factors such as buildings
    and other obstructions, reflection of signals from nearby man-made
    surfaces, terrain, and foliage. Moreover, system designers
    frequently predict signal strengths in terms of statistical
    probability, *e.g.,* the charts and algorithms used for coverage
    determinations predict the distance from a transmitter at which a
    given level of signal will be equaled or exceeded at fifty percent
    of the locations fifty percent of the time.[^286] Thus, while signal
    strength predictions are useful for obtaining an overall picture of
    system coverage, we believe they are of limited utility in
    predicting the strength of an 800 MHz public safety signal in a
    localized and relatively small area, which is exactly the type of
    area in which interference may be encountered from an ESMR or
    cellular system. Consequently, we conclude that we need to use a
    basis other than distance separations or predicted signal contours
    in establishing the threshold determination of entitlement to
    interference protection.

#### Interference Protection Standard

96. In their August 7, 2003 *ex parte* filing, the Consensus Parties
    proposed a bright-line test for determining non-cellular 800 MHz
    licensees' entitlement to interference protection.[^287] The
    recommended test procedure relies on measured---rather then
    predicted---minimum median signal strength levels, which, if met or
    exceeded, would entitle a licensee to interference protection.[^288]
    Moreover, the proposal contemplated providing full interference
    protection only to non-cellular 800 MHz systems that use receivers
    meeting minimum performance standards.[^289]

97. The proposal defines interference in terms of a parameter known as
    the carrier[^290] to interference plus noise ratio \[C/(I+N)\] of a
    receiver. The proposal recommended 20 dB as the minimum acceptable
    C/(I+N) ratio for voice systems;[^291] and suggested that the
    equipment manufacturer supply the "information value" for non-voice
    public safety communications systems.[^292]

98. The Consensus Parties' proposal requires that a public safety or
    other non-cellular radio in the band segment be presented with a
    signal from the desired station that is greater than or equal to a
    specified minimum before the licensee of the desired station may
    claim entitlement to interference abatement.[^293] As proposed in
    their filing, the threshold desired signal power in the case of
    portable units in the 806-816 MHz/851-861 MHz band segment is --101
    dBm, or greater, as measured at the radio frequency (R.F.) input to
    the portable radio's receiver.[^294] The corresponding value for
    mobile units is --104 dBm or greater.[^295] A specific measurement
    technique was proposed for determination of the threshold signal
    powers.[^296]

99. The Consensus Parties proposed that full interference protection
    would be provided only for systems using receivers that satisfy TIA
    Class A specifications.[^297] Receivers not conforming to these
    specifications would be protected only to some higher desired signal
    threshold power level.[^298] Several parties supported the Consensus
    Parties in this regard;[^299] while others disagreed, pointing out
    that some of the TIA standard parameters, for example, operating
    temperature range of the radio are irrelevant to 800 MHz
    interference and therefore that the Commission should not require
    compliance with the entire standard but, instead, should simply
    adopt minimum intermodulation rejection ratios for receivers.[^300]

100. On June 16, 2004, Nextel filed a revised band plan for the 816-817
     MHz/861-862 MHz band segment proposing that this additional 2 MHz
     be designated for non-ESMR use rather than for ESMR, as had been
     proposed in the August 2003 *ex parte* filing. In that band plan,
     Nextel proposes that the minimum received signal power threshold
     necessary for interference protection in the 816-817 MHz/861-862
     MHz band segment increase as a function of increasing
     frequency.[^301]

101. As discussed in greater detail below, we conclude, based on the
     record in this proceeding, that a readily identifiable objective
     standard should be established to determine what constitutes
     unacceptable interference, and which systems are entitled to
     protection from such interference.[^302] We also believe that both
     unacceptable interference and the scope of protection afforded to
     eligible systems should be subject to objective measurement
     criteria. In this connection, we note that almost all participants
     in this proceeding agree that the *status quo*---addressing
     interference to public safety systems on an *ad hoc* basis and
     reactive fashion---is no longer workable in the 800 MHz band. We
     agree, and find that certain interference definition and
     measurement procedures contained in the record allow us to
     establish a reasonable standard for determining when public safety
     and other non-cellular systems can expect to operate free from
     unacceptable interference.[^303] Specifically, we believe that the
     operational parameters and system characteristics identified by the
     Consensus Parties are relevant factors in establishing such a
     standard. However, in determining the final values we drew not only
     from the Consensus Parties' proposal but also from proposals
     submitted by equipment manufacturers, industry associations, 800
     MHz licensees, as well as our own technical expertise. We further
     believe that adoption of the unacceptable interference definition
     and associated measurement procedures is in furtherance of our goal
     to employ sound spectrum management principles in resolving the 800
     MHz interference problem. In addition, we rely, in part, on the
     methodology derived by the Telecommunications Industries
     Association TR-8 Subcommittee.[^304] Based on this analysis, we
     believe that the measures we adopt here will meet our goal of
     ensuring that 800 MHz communications critical to the safety of life
     and property will not be impaired by unacceptable interference.

102. The Consensus Parties recommended that the proposed procedures for
     defining unacceptable interference and establishing licensees'
     entitlement to be protected against such interference should not be
     put into place until reconfiguration of the 800 MHz band had been
     completed. We disagree. Indeed, it appears to us that establishing
     an interference abatement entitlement standard must be the very
     first step in attacking the problem of unacceptable interference to
     public safety, CII and other non-cellular 800 MHz systems.[^305] In
     short, we cannot afford the luxury of awaiting completion of band
     reconfiguration---and putting critical public safety communications
     at continued significant risk in the interim---before we determine
     the conditions under which licensees are entitled to interference
     protection. Accordingly, our rules for interference protection
     entitlement and the assignment of responsibility for the abatement
     of unacceptable interference will become effective sixty days after
     publication of this *Report and Order* in the Federal Register.

103. We are persuaded by the record that our goals in this proceeding
     are best met by our bright-line test for interference protection
     entitlement, coupled with a standardized technical means of
     determining that entitlement and assigning the task of abating
     unacceptable interference to the parties best capable of doing so.
     This approach is, we believe, far preferable---for all
     concerned---to our attempting to micro manage the technology
     utilized by the ESMR and cellular industries. Thus, by eschewing
     imposition of across-the-board new technical standards on the
     industry, we avoid imposing that unnecessary expense and afford the
     ESMR and cellular licensees optimum flexibility to design and
     operate their systems in a manner that will optimize service to
     subscribers and avoid unacceptable interference to other users of
     the 800 MHz band. Thus, although we have discussed herein the
     technical means disclosed in the record to avoid unacceptable
     interference---especially those that come within the definition of
     Enhanced Best Practices---we reject as unnecessary, the
     recommendations of some parties for mandatory restrictions on all
     ESMR and cellular systems with respect to such parameters as
     maximum cell ERP,[^306] combiner technology,[^307] and specific
     antenna pattern characteristics.[^308]

104. We also decline to adopt the recommendation of the Consensus
     Parties that we establish more strict OOBE limits for base station
     transmitters in the 861-895 MHz band.[^309] Instead, we agree with
     parties such as the Rural Cellular Association, which point out
     that, in many instances, the additional filtering needed to achieve
     the Consensus Parties' proposed OOBE standards would add cost and
     complexity---but no benefit---to those cells in a system in which,
     because of their location, or otherwise, unacceptable OOBE
     interference would not occur.[^310] In short, although we recognize
     the efficacy of such technical changes, we are reticent to impose
     them on every cell of every system in the country; particularly if
     only a handful of cells in a system might require them. In the
     final analysis, it is the question of whether unacceptable
     interference exists or not that is controlling here; not the
     specific means by which licensees abate it. The technical filings
     made in this proceeding convince us that licensees are the best
     stewards of interference abatement technology and are best capable
     of determining when and to what degree that technology must be
     applied. However, we reserve the discretion to revisit this issue
     promptly and impose more specific technical requirements on
     carriers should our decisions to adopt an objective interference
     standard and place strict responsibility on carriers to fix any
     unacceptable interference prove inadequate.

##### Signal Strength Threshold for Interference Protection 

105. In the rules we adopt today, we specify that public safety, CII,
     and other non-cellular 800 MHz systems must receive at least a
     minimum measured input signal power of -101 dBm for portable
     (*i.e.,* hand-held) units and -104 dBm for vehicular mobile units
     in order to be eligible for protection from interference in the
     806-816.35 MHz/851-861.35 MHz band segment.[^311] As an initial
     matter, we note that these signal strengths are quite low. For
     instance, a signal strength of -98 dBm is the threshold average
     radiation sensitivity for a Class A "Project 25"[^312] portable
     receiver with an external antenna.[^313] A signal strength of -101
     dBm is about one-half that of a signal strength of -98 dBm, and a
     signal strength of -104 dBm is about one-quarter that of a signal
     strength of -98 dBm. Some non-cellular 800 MHz licensees contend
     that they have designed systems to work with a signal strength less
     then -98 dBm, and we wish, at the margin, to protect such systems
     providing they provide, at a minimum, a median -101/-104 dBm
     received signal power.[^314] However, we do not agree with parties
     who aver that their systems operate satisfactorily with signal
     strengths at or below -120 dBm and should be protected to that low
     level.[^315] In light of the fact that the reference sensitivity of
     800 MHz receivers is typically on the order of -116 to -119
     dBm.[^316] We find that mandatory protection of systems to a level
     below -104 dBm would impose an excessive burden on ESMR and
     cellular telephone carriers to protect an extremely weak signal. We
     note that such signal levels are so weak that normal statistical
     variation, especially at the periphery of service areas, would
     result in limited service reliability even in the absence of
     interference or high levels of ambient noise. Nevertheless, ESMR
     and cellular telephone licensees must respond to complaints of
     interference even at these low signal levels; and, when possible,
     voluntarily assist the affected licensee if to do so does not cause
     the ESMR or cellular telephone licensee undue cost or capacity
     limitations.

106. In sum, to provide clarity and transparency to all involved
     parties, we specify that the public safety or other 800 MHz
     non-cellular signal will be entitled to protection only if the
     median power of the received signal is greater than or equal to
     -101 dBm (portable) or -104 dBm (mobile),[^317] in the 806-816
     MHz/851-861 MHz band segment. In the band segment 816-817
     MHz/861-862 MHz, measured median signal powers for interference
     abatement increases as a function of frequency, as described in
     paragraphs 157-158 and Figure 1, *infra.*

107. In defining the term interference within the specific context of
     "unacceptable interference" as defined for purposes of this
     proceeding only and as used herein, we examined the filings in the
     record, standard technical publications and manufacturers'
     specification sheets. Our analysis closely tracks that of the
     Consensus Parties and we define unacceptable interference as any
     impairment to the desired signal that causes the C/(I+N) ratio of a
     voice radio receiver to drop below 20 dB. However, because the
     technical parameters necessary for acceptable performance by
     non-voice systems vary significantly by system, we will use the
     value(s) reasonably designated by the manufacturer of the
     equipment.[^318] We recognize that a manufacturer specification may
     vary from manufacturer to manufacturer and could well change over
     time as particular equipment evolves.[^319]

##### Signal Measurement Techniques

108. As an initial matter, all parties involved in a determination of
     unacceptable interference are free to agree among themselves on how
     interference protection threshold levels are to be measured. For
     example, in many cases, it may be possible to measure the desired
     signal directly because it is not masked by noise or interference
     to the degree that direct measurement is unreliable. In other
     instances, it may be possible to conduct a direct measurement
     reliably if nearby ESMR or cellular telephone transmitters are
     turned off briefly. However, whenever it is not possible to perform
     reliable measurements of desired signal received power directly; or
     in the event there are disputes between or among the parties
     involved in an interference complaint, the following protocol for
     indirect measurement of the desired signal power may be used. These
     measurement procedures are based on the recommendations of the
     Consensus Parties with a few minor changes.[^320] Consistent with
     existing practice, the Office of Engineering and Technology is
     hereby delegated authority to make changes to this protocol as
     needed.[^321]

> \(a\) *Area to be measured*. The area of measurement shall be no less
> than 91.44 meters x 91.44 meters (300 feet x 300 feet). Local
> obstructions may determine the size, as well as how large the reported
> affected area is. If the affected area is quite large, a location of
> reported problems shall be selected that is large enough to be
> consistent with coverage predictions and our dBu contour limitations.
>
> \(b\) *Data collection*. A measurement route shall be defined through
> the area to be measured that distributes data collection points
> relatively uniformly across the area being tested. A constant velocity
> along the route shall be maintained to prevent oversampling in any
> given location. The sampling rate shall be high enough to ensure
> multiple samples per wavelength.
>
> \(c\) *Use of filters*. A lowpass or bandpass filter shall be inserted
> between the test receiver and its antenna to allow differentiation
> between receiver-generated IM and OOBE noise by attenuating potential
> IM contributors from the CMRS portion of the band. The filter's loss
> on the desired frequency shall be included in all calibrations.
>
> \(d\) *First test procedure*. With all potentially-interfering
> channels and the desired signal transmitting constantly, gather
> "continuous" data over a route that covers the measurement area
> defined in (a) above, using the data-collection requirements in (b)
> above. Use this data to determine the median C+I+N. Modulate the
> desired channel with a test signal to verify whether or not the target
> receiver unmutes. For digital receivers this occurs at a C/(I+N) of
> approximately 5 dB. For analog radios adjust the manual squelch
> setting to cause the receiver to unmute at a C/(I+N) of 5 dB.
>
> \(e\) *First test threshold.* If the median C+I+N is greater than or
> equal to 2 dB above the median target value and the receiver was
> unmuted, then the first threshold test is passed and the public
> safety/CII system is eligible for interference mitigation. If the
> median C+I+N is not greater than or equal to 2 dB above the median
> target value, conduct the second test procedure below to establish
> eligibility for interference mitigation.
>
> \(f\) *Second eligibility test*. Repeat (d) with the desired signal
> not transmitting. At this point the test receiver is measuring only
> I+N. This test should be run as soon as possible to be sure conditions
> are similar to the initial test. If the test receiver has automatic
> frequency control, disable it so it remains on the test frequency and
> is not pulled toward one of the potential interference contributors.
> Use this data to determine the median I+N. Since the value of N should
> be a constant (the thermal noise of the receiver) all else will be
> interference (I). If OOBE noise is present it will be captured in this
> data as I.
>
> \(g\) *Second test threshold*. Determine the median C based on the
> median C+I+N and I+N. If the calculated median C is close to the
> target value, repeat (f) to ensure that I+N has not changed.

#### Minimum Receiver Performance Criteria

109. In order for non-cellular 800 MHz licensees to be entitled to full
     protection against unacceptable interference, they must use mobile
     and portable voice radios with performance that equals or exceeds
     the minimum performance standards described *infra:*

-   Voice units intended for mobile use: 75 dB intermodulation rejection
    ratio; 75 dB adjacent channel rejection ratio; -116 dBm reference
    sensitivity.

-   Voice units intended for portable use: 70 dB intermodulation
    rejection ratio; 70 dB adjacent channel rejection ratio; -116 dBm
    reference sensitivity.

110. We derived the foregoing values from manufacturers' technical
     filings contained in the record,[^322] standard reference works and
     manufacturers' specification sheets for voice equipment. The data
     appear to represent the state of the art in affordable public
     safety and CII radios.[^323] We also evaluated the Consensus
     Parties' recommendation that we require public safety licensees to
     use receivers which meet TIA Class A standards in order to receive
     full protection against unacceptable interference.[^324] We
     decline, however, to adopt the Class A standards on a wholesale
     basis because: (a) we wish to avoid incorporating technical
     specifications contained in these standards unless they relate
     directly to rejection of signals that interfere with 800 MHz public
     safety communications; and (b) the TIA-102 standard for digital
     transceivers applies to radios operating with 12.5 kHz bandwidth
     and thus is inapplicable to radios operating with 25 kHz bandwidth,
     as is common in the 800 MHz band. Thus, although we did rely, in
     part, on the TIA-102 standard, we did so only with those portions
     of the standard that affect intermodulation rejection, adjacent
     channel selectivity, and receiver sensitivity.[^325]

111. In setting our criteria for voice receiver performance*,* we were
     mindful of the comments of parties which observed that the TIA
     intermodulation interference testing protocols may not simulate
     real-world conditions.[^326] Thus, although the standards specify
     that intermodulation interference rejection should be tested with
     the desired signal at the reference sensitivity of the
     receiver,[^327] under actual operating conditions the desired
     signal is usually considerably above the reference sensitivity of
     the receiver. Therefore, we recommend, but do not require, that TIA
     and other standards-setting organizations revisit current testing
     procedures in light of the interference environment in which 800
     MHz receivers must currently operate.

112. We note that Motorola data show that approximately seventy-four
     percent of the receivers that it has shipped to public safety
     agencies over the past decade meet Class A intermodulation
     rejection specifications and that this percentage is even higher
     for receivers shipped in 2003.[^328] Accordingly, we believe that
     public safety agencies predominantly already employ receivers which
     satisfy the criteria above.[^329] However, we are not restricting
     entitlement to unacceptable interference protection only to radios
     that meet the standards described *supra.* We recognize that some
     users, particularly public safety agencies, may be using older
     radios that do not conform to the standards. Accordingly, we are
     specifying that 800 MHz licensees asserting an entitlement to
     interference protection, but which employ receivers that fail to
     satisfy the criteria above will be afforded interference protection
     only at higher power levels than -104 dBm (for mobiles), -101 dBm
     for portables.[^330] For example, if a radio meeting the above
     criteria provided a 20 dB C/(I+N) ratio when presented with a -104
     dBm signal, but a non-compliant radio delivered only a 15 dB
     C/(I+N) ratio when presented with a -104 dBm signal in the same
     environment, then the interference entitlement for the licensee
     using the non-compliant radio will be based on receipt of a -99 dBm
     measured signal power instead of -104 dBm. The net result would be
     that the licensee with the non-compliant radio would have less
     interference protection because, to claim entitlement to
     protection, the licensee would have to show that, in the area in
     which interference was encountered, the licensee's system would
     have to provide a 5 dB higher received power level, *i.e.* -104 dBm
     -- (-99 dBm) = 5 dB.

113. Finally, we note Motorola's announcement of prototype receivers
     with switchable attenuators.[^331] In brief, the Motorola prototype
     senses the signal strength of the incoming desired signal and
     determines when the signal is sufficiently strong that it can
     tolerate a given amount of attenuation, *e.g.* 10 dB, without
     compromising the intelligibility of the incoming
     communication.[^332] At that point, attenuation is automatically
     introduced between the radio's antenna and the first active device
     in the input chain (the "R.F. preamplifier" or "low noise
     amplifier") of the receiver.[^333] With the signal so attenuated, a
     significant improvement is realized in the effective
     intermodulation rejection ratio of the receiver.[^334] Although the
     information submitted to date is encouraging, it is inconclusive as
     to the degree of overall interference protection the use of such
     receivers would provide in a typical system. The attenuator
     circuitry does not address OOBE interference and is able to abate
     intermodulation interference only in areas in which the desired
     signal is strong enough to activate the attenuator.

114. Motorola stated that it could incorporate switchable attenuators in
     new products without a significant cost penalty; that it could
     retrofit switchable attenuators in certain of its earlier radios;
     and that the attenuation circuitry is not proprietary.[^335]
     However, it has not provided diagrams of the circuitry and no other
     manufacturer has come forward to endorse use of such radios, much
     less commit to producing them. Nonetheless, we believe that the
     potential for improved intermodulation interference rejection
     through use of switchable attenuators is sufficiently promising
     that we will continue to monitor manufacturers' development of
     radios with improved intermodulation rejection ratio---whether by
     use of switchable attenuators or otherwise---and, if the facts so
     indicate, will consider reviewing our rules governing
     intermodulation rejection standards for 800 MHz public safety
     receivers. We note the statement by Motorola that more interference
     resistant receivers can be produced at little or no additional
     cost.[^336] With respect to these receivers and other 800 MHz
     public safety equipment, we strongly encourage the industry as a
     whole not to seek excessive profits when offering suitable
     equipment to public safety agencies. In so doing, equipment
     manufacturers can make a significant contribution to providing
     first responders with the affordable communications equipment
     necessary to meet their Homeland Security obligations.

### Overall Approach to Interference Abatement

#### Role of Enhanced Best Practices

115. As an initial matter, we recognize that some unacceptable
     interference can originate from multiple sources, e.g., two or more
     cells, (ESMR, cellular telephone, or both) each contributing to
     OOBE or intermodulation interference. In such cases, all involved
     ESMR and/or cellular telephone licensees are jointly and severally
     responsible for abating the interference, no matter how small their
     contribution to the problem. In this regard, we believe that
     adopting rules and policies expressly imposing such
     responsibilities on such licensees operating in the 800 MHz
     spectrum is consistent with the mandate in Section 1 of the Act to
     enhance the safety of life and property.[^337] In addition, we
     emphasize that a reactive approach to interference abatement is per
     se undesirable because of the concomitant adverse impact on public
     safety, CII and other 800 MHz communications. Thus, we encourage
     all 800 MHz licensees, in designing new systems or modifying
     existing systems, to anticipate and avoid potential interference
     before it occurs. This encouragement extends to designers of
     non-cellular 800 MHz systems as well; inasmuch as providing a more
     robust desired signal contributes significantly to interference
     abatement. To facilitate system designs that take the relevant
     interference environment into account, we are adopting rules that
     require mutual prior notification, on request, of changes or
     additions to ESMR, cellular telephone, public safety and CII 800
     MHz systems; [^338] and are encouraging other voluntary and
     cooperative interference abatement solutions, such as "channel
     swaps."

116. As noted earlier, the majority of the comments in this proceeding
     support abating harmful interference to public safety systems
     operating in the 800 MHz band by one of two methods: relying
     exclusively on Best Practices[^339] or by reconfiguring the 800 MHz
     band. Following publication of the *Best Practices Guide* in 2000,
     and throughout this proceeding, the Commission has given careful
     thought to whether Enhanced Best Practices, alone, would suffice to
     reduce unacceptable interference to the extent necessary to provide
     reliable 800 MHz public safety communications. In particular, we
     have carefully analyzed the filings by the Balanced Approach
     parties which urge adoption of a rule that would essentially codify
     many of the *Best Practice Guide* remedies and which would contain
     additional requirements---primarily procedural---to be followed
     when interference is encountered.[^340]

117. We recognize that the development of the technical measures
     described in the *Best Practices Guide*, and subsequent related
     documents such as the Motorola *Technical Toolbox* represent an
     enormous amount of work and an almost unprecedented level of
     cooperation within the 800 MHz user community. We commend both the
     effort involved in developing these measures and the cooperative
     spirit they represent. We encourage continued research into
     interference abatement measures so that Enhanced Best Practices can
     become even more effective as a tool for remedying unacceptable
     interference. In so saying, however, we note that the voluntary use
     of Best Practices to date has abated many, but by no means all,
     instances of interference to public safety communications.

118. Voluntary Best Practices have often proven effective in abating
     interference on a case-by-case basis and will continue to be
     valuable---in the form of Enhanced Best Practices---even after band
     reconfiguration. Although there are several interference abatement
     strategies subsumed under the Enhanced Best Practices rubric, they
     fall into three basic categories: (1) changing the technical
     parameters of ESMR and/or cellular cell sites; (2) improving the
     equipment, including portable and mobile units, of the licensee
     encountering interference; and (3) establishing interference
     abatement procedures such as*,* prior notification of cell
     activation or modification. Details on these three categories of
     Enhanced Best Practices and the advantages and disadvantages
     thereof are contained in Appendix D *infra.* Enhanced Best
     Practices procedures formalize the cooperative efforts that some
     ESMR and cellular telephone licensees have undertaken to promptly
     identify and abate unacceptable interference. In furtherance of
     such efforts we are adopting rules today that require 800 MHz
     licensees to share technical data on request;[^341] and that set
     specific schedules for the identification, notification, assessment
     and abatement of unacceptable interference.[^342]

119. We note, however, that, as with almost any engineering solution,
     there are technical tradeoffs associated with most Enhanced Best
     Practices. For example, abating unacceptable interference using
     Enhanced Best Practices can sometimes be done only at the expense
     of affecting the coverage and subscriber capacity of ESMR and
     cellular systems, *e.g.,* Enhanced Best Practices that rely on
     restricting ESMR or cellular channel use or making significant
     reductions in cell ERP. Proposals advancing the use of Enhanced
     Best Practices---however defined---as the sole remedy for
     interference abatement have a significant drawback that makes them
     problematic as a long-term solution: they incur high transactional
     costs for all parties and would have to continuously be applied to
     an increasing number of interference incidents that are inevitable
     as use of the 800 MHz band intensifies.[^343] Several parties also
     note that most of the remedies described in the *Best Practices
     Guide* are fundamentally reactive because interference must first
     be encountered before abatement efforts commence.[^344] We regard
     this as another serious drawback. It would be scant consolation for
     a public safety officer subjected to a life-threatening
     communications failure to know that he or she could report the
     problem so that technical fixes could eventually be applied to fix
     it---or not.

120. The record supports our conclusions about the high transactional
     costs of employing case-by-case remedies alone to abate harmful
     interference to public safety systems in the 800 MHz band. Nextel,
     one of the few parties that submitted comments detailing the costs
     of implementing Best Practices techniques, asserts that it employs
     between ten to fifteen full-time employees devoted to coordinating
     the company's interference abatement measures nationwide and
     employs over twenty additional technicians to resolve each
     interference problem.[^345] Nextel further asserts that it spends
     at least \$10,000 investigating and temporarily mitigating
     interference at a single site and that this cost can increase by as
     much as \$25,000 if additional equipment is required.[^346]
     Moreover, according to Nextel, implementing these measures can take
     from six to ten weeks with no guarantee that the particular
     technique being implemented will cure the interference
     problem.[^347] We further note that the record shows that it is not
     only CMRS licensees that incur interference mitigation costs. For
     example, both Anne Arundel County and Denver state that they have
     spent significant amounts of money and employee time attempting to
     mitigate interference on a case-by-case basis.[^348]

121. Against this backdrop, we are concerned that the inevitable
     increase in the number of potential and actual interference
     situations that will arise, in the 800 MHz band, as currently
     configured, could strain the effectiveness of the mitigation
     techniques and increase their cost, possibly rendering interference
     abatement ineffective and unaffordable. Thus, while we do not
     question the short-term efficacy of Enhanced Best Practices, we
     conclude that licensees in the 800 MHz band would be better served
     by a long-term solution that minimizes this burden. Indeed, in the
     700 MHz Guard Band proceeding, the Commission recognized early on
     the necessity of spectrally separating incompatible technologies in
     order to avoid the incidence of interference to non-cellular public
     safety from cellular operations.[^349] In drafting up its 700 MHz
     band plan, the Commission essentially recognized the significance
     of grouping technically compatible public safety systems in close
     spectrum proximity and that spectrally separating incompatible
     systems such as through the use of guard bands required direct
     regulatory intervention. The Commission further adopted a package
     of technical rules and interference mitigation procedures to ensure
     that Guard Band operations would not cause interference to adjacent
     public safety operations. The Commission's experience in 700 MHz
     provides ample evidence that combining a forward looking band plan
     with a customized package of interference avoidance techniques can
     be successful. Further, the record in this proceeding supports that
     reconfiguration of the 800 MHz band, while expensive in the
     short-term, will, over time, minimize the transaction costs
     incurred by 800 MHz licensees by reducing reliance on Enhanced Best
     Practices.[^350] Thus, although Enhanced Best Practices must remain
     the remedy of first resort until band reconfiguration is
     complete---and will remain necessary for otherwise intransigent
     cases of unacceptable interference, their high transactional cost
     indicates that it would be unwise to rely on Enhanced Best
     Practices as the exclusive remedy for interference abatement over
     the long term.

122. Again we emphasize that Enhanced Best Practices remain powerful
     parts of the interference abatement arsenal. We agree with the
     Consensus Parties that all feasible remedies---including band
     reconfiguration and Enhanced Best Practices[^351]---must be applied
     to the problem if our goal is to be reached. Therefore, we expect
     800 MHz ESMR and cellular telephone licensees will continue to use
     Enhanced Best Practices to abate harmful interference until the
     completion of band reconfiguration. We do recognize that instances
     of residual harmful interference will crop up even after band
     reconfiguration but are confident that ESMR and cellular licensees
     can apply Enhanced Best Practices to resolve these cases. But, in
     our judgment, in the final analysis, the best long term solution
     requires a restructuring of the 800 MHz band to substantially
     reduce the need for case-by-case interference management.

123. In this connection, we recognize that some interference incidents
     may not be effectively addressed through use of Enhanced Best
     Practices. As a result some alternative redress may be needed prior
     to the completion of reconfiguration of the 800 MHz band. Given
     that channel swapping is essentially band reconfiguration on a
     micro scale, we anticipate looking favorably upon proposals
     mirroring the band plan set forth in this *Report and Order*.
     Conversely, we anticipate being less inclined to approve proposals
     that deviate from the band plan. We also delegate to the Chief of
     the Wireless Telecommunications Bureau the authority to grant
     whatever waivers are necessary to implement channel swap proposals.

#### Interference Abatement Rules and Procedures

##### Mutual Notification Requirements Applicable to 800 MHz Licensees

124. We are adopting rules requiring ESMR and cellular telephone
     licensees to furnish to those public safety and CII agencies who
     request it, prior notice of at least ten business days before new
     cells are constructed or existing cells are modified.[^352] Public
     safety and CII agencies which receive this information have the
     reciprocal obligation to inform ESMR and cellular telephone
     licensees whenever the public safety or CII licensee changes its
     system parameters. We take these steps in general agreement with
     those parties who believe that prior notice has a prophylactic
     effect on interference avoidance. Thus, if the characteristics of a
     proposed new cell are known in advance, it is possible to analyze
     the cell's potential for interference and make any necessary
     revisions to cell parameters before the cell is activated. For
     example, an ESMR or cellular telephone licensee could furnish the
     public safety or CII licensee or its representative, *e.g.* a
     frequency coordinator, the proposed parameters of a new cell
     sufficiently far in advance to allow these parties to analyze the
     cell's potential for interference and suggest any necessary changes
     that should be made before the cell is activated. This exchange of
     information can be performed in any manner agreeable to all parties
     involved. We decide to limit this notification entitlement to only
     public safety and CII licensees; and then only if they request ESMR
     and cellular telephone licensees to furnish them the information on
     a regular basis. We decline the alternative---requiring ESMR and
     cellular licensees to furnish the information whether requested or
     not---in the interest of avoiding the burden of producing and
     receiving unnecessary paperwork, and in fulfillment of our
     obligations under the Paperwork Reduction Act.[^353] We do not
     require notification of other non-cellular 800 MHz licensees in
     consideration of the fact that their communications are unlikely to
     be of a mission-critical nature and because of the burden that
     could be imposed on the ESMR and cellular telephone carriers were
     it necessary to furnish information to large numbers of licensees,
     especially in urban areas. However, we do endorse, but do not
     require, ESMR and cellular telephone licensees furnishing
     notification information to any 800 MHz licensee requesting it;
     *e.g.,* because of frequent instances of interference. Finally, we
     impose a reciprocal obligation on public safety and CII licensees
     to provide notification of their facilities, and any modifications
     thereto, to ESMR and cellular telephone licensees requesting same.

125. The 800 MHz Users Coalition argues we should require prior
     coordination---rather than just notification---using the standards
     contained in TIA TSB-88A; but they have not stated precisely how
     TSB-88A would be useful in effecting prior coordination of cell
     sites.[^354] We note that TSB-88A was the result of studies of the
     impact of spectrum refarming and digital modulation on the
     frequency coordination of land mobile radio systems and deals
     primarily with potential co-channel and adjacent channel
     interference.[^355] However, in the case of 800 MHz public safety
     systems, co-channel interference has not been identified as a
     significant problem. Although adjacent channel interference can be
     a factor---particularly in the interleaved 800 MHz channels---the
     interference mechanisms at work in most instances of 800 MHz public
     safety systems differ from those covered in TSB-88A. Moreover,
     although TSB-88A makes a passing reference to "noise generated by
     non-wireline cell sites"[^356] in its discussion of "Environmental
     RF Noise"[^357] the document is primarily directed to interference
     between high-site systems. Accordingly, although we believe that
     some parts of TSB-88A might be useful in 800 MHz interference
     analysis, *e.g.* the document's discussion of coverage
     reliability;[^358] we do not think it wholly applicable to the
     environment in which 800 MHz public safety systems operate. We are
     aware of no agreed-upon coordination standards that address the
     OOBE and intermodulation interference that occurs in the immediate
     vicinity of cell sites; and thus are not mandating prior
     coordination of cell sites. However, we believe that notification
     of cell site parameters will allow some inferences to be drawn, on
     a case by case basis, relative to the cell's potential for
     generating unacceptable interference.

126. The parameters most relevant to prior notification of a cell are
     its location, the effective radiated power, the antenna height, and
     the channels in use.[^359] Accordingly, we believe that
     non-cellular 800 MHz licensees should have such information
     available on request from ESMR and cellular telephone licensees and
     so require. We impose a similar requirement on public safety
     licensees (*i.e.*, to, upon request, provide their operating
     parameters to ESMR and cellular telephone licensees operating
     within the public safety systems' coverage areas.). We are aware
     that some ESMR and cellular telephone licensees regard their
     operating parameters as proprietary and encourage such licensees to
     use non-disclosure agreement whereby third parties will not be
     given access to such information. Failing that, the affected
     parties may seek a protective order from the Commission.[^360] We
     also encourage, but do not require, that the matter be submitted to
     arbitration, mediation, or other alternative dispute resolution
     mechanism.

127. We stress that the prior notification provided to the public safety
     licensee is for informational purposes only: we are not affording
     public safety or CII licensees the right to accept or reject the
     activation of a proposed cell or to unilaterally require changes in
     its operating parameters. The principal purposes of notification
     are to: (a) allow a public safety or CII licensee to advise the
     ESMR or cellular telephone licensee whether it believes a proposed
     cell will generate unacceptable interference; (b) permit ESMR or
     cellular telephone licensees to make voluntary changes in cell
     parameters when a public safety or CII licensee alerts them to
     possible interference; and (c) rapidly identify the source if
     interference is encountered when the cell is activated. Thus, at
     the very least, the knowledge that a new ESMR or cellular telephone
     cell was going to be activated on a given date would allow a public
     safety or CII representative to attribute interference to that cell
     if new interference were encountered where it had not existed
     before.

##### Responsibility for Mitigation Pre- and Post- Band Reconfiguration

128. The Consensus Parties envisioned that their unacceptable
     interference threshold provisions would go into effect only after
     band reconfiguration was complete. However, the severity of
     interference currently being encountered is such that we cannot
     responsibly let it go unaddressed in the interim. Given the
     demonstrated utility of Enhanced Best Practices, and the extensive
     other resources---technical, financial and otherwise---available to
     ESMR and cellular licensees, they currently are capable of
     eliminating unacceptable interference pending completion of band
     reconfiguration, albeit at the occasional expense of subscriber
     capacity limitations or the need to fund improvements to
     non-cellular systems. Although many ESMR and cellular licensees
     have been commendably cooperative in bearing the responsibility for
     identifying and promptly curing interference at their own expense;
     we believe it prudent to codify this previously voluntary effort
     into strict responsibility. Under that policy, any ESMR or cellular
     telephone licensee that causes, or contributes to, unacceptable
     interference to a non-cellular licensee is responsible for abating
     it promptly at its own expense. In so assigning responsibility, we
     place it on the party or parties best qualified and situated to
     take the actions necessary to ensure that first responders---both
     public safety and CII personnel---have communications channels free
     of unacceptable interference and which thus are suitable for
     mission-critical operations including rapid response to major
     attacks that threaten Homeland Security. Accordingly, as of the
     effective date of this *Report & Order*, ESMR and cellular carriers
     are strictly responsible for abating unacceptable interference as
     defined *supra.*[^361]

129. We carefully considered alternatives to strict responsibility,
     including those discussed in the *NPRM* but found them either
     insufficiently effective or overly burdensome on the ESMR and
     cellular telephone industries. For example, we considered the
     comments of parties which advocated across-the-board limits on such
     cell parameters as maximum power flux density in the immediate
     vicinity of the cell, reduced effective radiated power, antenna
     vertical pattern restrictions, limits on the cumulative OOBE from
     cell transmitters and the like.[^362] However, we recognized that
     such limits would impose heavy burdens on ESMR and cellular
     telephone licensees, and that the restrictions would require
     modifications of cells that had little, if any, potential for
     generating unacceptable interference. Therefore, in lieu of
     adopting what could be draconian rules, we are affording ESMR and
     cellular telephone licensees the discretion to make any necessary
     changes to their own systems---or changes to non-cellular systems
     affected by unacceptable interference---as may be necessary to
     eliminate unacceptable interference.[^363]

130. We assign strict responsibility for eliminating unacceptable
     interference when an ESMR or cellular telephone signal is solely
     implicated in an interference incident. In circumstances in which
     two or more ESMR or cellular telephone signals are implicated,
     strict responsibility must be reflected in the sources' joint and
     several responsibility for interference abatement. We say this in
     the knowledge that the interfering licensees are in the best
     position to determine their relative contributions to interference
     problems and to agree upon what specific measures must be
     undertaken by each licensee in order for interference abatement
     efforts to be effective. We wish it understood, however, that such
     responsibility does not attach merely because a licensee's cell is
     in the immediate vicinity of the locus of interference. Thus, we
     will not assign joint and several responsibility to ESMR and
     cellular telephone licensees that can demonstrate that their
     signals are not involved in a given interference case.[^364]
     However, in so saying, we emphasize that we have discounted claims,
     made earlier in this proceeding, categorically denying that
     licensees in the cellular telephone bands cause interference to 800
     MHz public safety systems.[^365] There is strong evidence to the
     contrary.[^366] We will, therefore, require all involved parties,
     ESMR and cellular telephone licensees alike---and each of them
     severally---to respond to every complaint of interference to a
     non-cellular 800 MHz system with full cooperation and utmost
     diligence to abate objectionable interference in the shortest
     practicable time.

131. In sum, rather than impose stringent, across-the-board emission
     limits at this time, we are adopting rules that require ESMR and
     cellular telephone licensees to act only when and where it is
     evident that unacceptable interference is or will be caused to
     non-cellular 800 MHz systems, thereby affording such licensees a
     high degree of technical flexibility and minimizing the cost of
     interference avoidance.[^367] However, we will not extend the same
     level of flexibility to the procedures, and associated time limits,
     necessary to ensure that ESMR and cellular telephone licensees
     respond to complaints of interference to public safety/CII systems.
     Although some ESMR and cellular telephone licensees have been
     commendably cooperative in abating interference; the record shows
     that this has not always been the case.[^368] Thus, we assign ESMR
     and cellular telephone licensees strict responsibility for
     effectively curing actual or potential unacceptable interference to
     800 MHz public safety/CII systems in the shortest practicable
     time.[^369] To a degree, this approach will test the wisdom of our
     forbearing system-wide stringent regulation of the technical
     aspects of ESMR and cellular telephone systems pending an
     assessment of whether licensees can successfully abate interference
     under the less stringent regulatory regime we establish today.

##### Interference Resolution Procedures 

132. We agree with those commenting parties that urged adoption of
     standardized procedures for reporting 800 MHz interference,
     identifying its source and implementing a solution.[^370] We
     believe the effectiveness of such procedures is optimized if they
     are associated with specific compliance deadlines and the
     industry's use of a common method of disseminating interference
     complaint information and related communications.

133. *Initial Notification.* We will require licensees operating
     cellular-architecture systems in or adjacent to the 800 MHz band
     (ESMR, Cellular A Band and Cellular B Band) to establish, within
     thirty days of the effective date of this *Report and Order*, a
     common electronic means of receiving initial notification of
     interference complaints from non-cellular 800 MHz licensees.
     Although we do not specify the means to be used, we do require that
     it be a single, common point (for example, a single, nationwide
     email address or web page) so that an affected entity need not
     provide multiple notices to different ESMR or cellular telephone
     licensees.[^371] We concur with the commenting parties who believe
     that, at a minimum, the initial interference complaint should
     include:

-   the specific geographical location where the interference occurs,
    and the time or times at which the interference occurred or is
    occurring;

-   a description of the scope and severity of the interference;

-   the source of the interference if known;

-   the relevant FCC licensing information of the party suffering the
    interference; and

-   a single point of contact for the party suffering the
    interference.[^372]

134. The notification system shall be established on a strict
     "need-to-know" basis: the general public will not be able to access
     the system; only parties to a given interference complaint will
     have access to information concerning that complaint; and parties
     using the system will be required to agree to non-disclosure
     provisions. The Commission's Enforcement Bureau, however, will have
     unrestricted access to all information in the system and will not
     be bound by any non-disclosure provisions.

135. The Consensus Parties, in their proposed "Policies and Procedures
     for Post-Realignment Interference Mitigation,"[^373] recommended
     that we require any ESMR or cellular telephone licensee within a
     5,000 foot radius of an interference site to respond to an
     interference complaint within a maximum of two days. Other parties
     recommended similar distances and response times.[^374] We believe
     the 5,000 foot radius is reasonable for purposes of identifying
     those parties that must respond to an interference complaint;[^375]
     but note that we will not absolve parties with cell sites outside
     that radius from the responsibility for eliminating unacceptable
     interference if it is demonstrated that they are the source
     thereof.

136. We are less sanguine about the recommendation that a response to an
     interference complaint could be delayed for up to two days.[^376]
     An unresolved incident of unacceptable interference impairs the
     ability of the affected public safety or CII licensee to respond to
     an emergency, large or small. Given the ease of communicating
     interference complaints electronically, and the fact that many, if
     not most, ESMR and cellular telephone licensees have technical
     staff available or on call on an around-the-clock basis in the
     normal course of business, we believe that a response must come in
     a matter of hours, not days. We thus conclude that it is not unduly
     burdensome to require a response to complaints from public safety
     or CII licensees with all possible speed, and under no
     circumstances, in more than twenty-four hours. In the case of other
     non-cellular 800 MHz licensees, (*i.e.,* B/ILT and non-cellular SMR
     licensees), the maximum response time shall be forty-eight hours,
     acknowledging that, for the most part, communications on these
     latter systems are not safety-related.

137. *Interference Analysis.* We will require licensees receiving an
     initial notification of interference to perform a timely analysis
     and identification of the interference, including, whenever
     necessary, an immediate on-site visit if they have cellular
     architecture equipment operating within 5,000 feet of the
     interference incident. Licensees must complete this analysis and
     initiate corrective action within forty-eight hours of the initial
     complaint if the licensee is a public safety or CII licensee. In
     the case of other non-cellular 800 MHz licensees, the time to
     complete the analysis and initiate corrective action shall be
     ninety-six hours. In both cases the time period may be extended if
     the affected licensee reasonably agrees, in writing (including
     e-mail or other electronic means which creates a record), to a
     longer period.

138. We disagree with those parties that suggest that the analysis or
     on-site visit could safely be delayed for up to five working days
     of the date of the original complaint.[^377] We assume that an ESMR
     or cellular telephone operator would not allow a failure in a
     critical element of its network to remain uncorrected for five
     working days, and thus believe that forty-eight hours (ninety-six
     hours in the case of other than public safety and CII systems) is a
     generous allowance for ESMR or cellular telephone carriers to
     determine (including making any necessary site visits), whether
     their operations are interfering with public safety, CII or other
     800 MHz communications. In focusing on the obligations of ESMR and
     cellular telephone licensees we do not mean to imply that similar
     obligations do not attach to public safety, CII and other
     non-cellular 800 MHz licensees. They are bound by the good-faith
     obligation to exhibit the utmost cooperation with the ESMR and
     cellular telephone representatives, including, without limitation,
     the obligation to timely meet appointments and provide whatever
     technical assistance is appropriate under the circumstances.

139. *Mitigation Steps.* Although we leave the means whereby
     interference is abated to the discretion of the involved ESMR and
     cellular telephone licensees, we couple this discretion with an
     obligation on such licensees to provide all test equipment (and
     technical personnel skilled in the operation of such equipment)
     necessary to determine the most appropriate means of timely
     eliminating the interference. The record contains considerable
     guidance concerning techniques that parties can apply to the
     problem, including those described in the *Best Practices Guide*,
     the separately issued Motorola *Technical Appendix* thereto,[^378]
     and the recently described measurement protocol for ascertaining
     the exact interference mechanisms involved in a given
     complaint.[^379] We expect parties to resolve interference in the
     shortest practicable time; however, should all short-term measures
     prove inadequate, we recognize that parties sometime cannot readily
     or rapidly implement other remedial measures---for example,
     "channel swaps" or the installation of new or modified base
     stations.[^380] In such cases, we believe a rule of reason should
     apply and that the licensee affected by interference, while not
     compromising safety, should make all necessary concessions to
     accepting the interference until the implementation of longer-term
     remedies.[^381] However, we will consider the failure to timely
     implement an interference abating remedy---whether it be near term
     or long term---as evidence of bad faith and will deal with it
     accordingly.

140. We also provide public safety licensees a "safety valve" for use
     when the continued presence of interference constitutes a clear and
     imminent danger to life or property.[^382] Under such
     circumstances, we will require the interference source(s) to
     immediately discontinue operation, pending the identification and
     application of corrective measures. The request for this
     action: (a) must be made by affidavit or statement under penalty of
     perjury,[^383] from an officer or executive of the affected public
     safety licensee; (b) shall completely describe the basis of the
     claim of clear and imminent danger; (c) must be stated to be on
     personal knowledge or on belief after due diligence; (d) may not be
     made by a contractor or other third party; and (e) will not be
     effective until approved by an official of the Commission's
     Wireless Telecommunications Bureau or other authorized Commission
     official. The public safety party must serve the statement on the
     ESMR and/or cellular telephone licensee by hand-delivery or
     receipted fax and transmit a copy by fastest available means to the
     Washington, D.C., office of the Wireless Telecommunications
     Bureau.[^384] If the Wireless Telecommunications Bureau determines
     that the claim of imminent and present danger is valid, it will
     immediately refer the matter to the Enforcement Bureau for
     appropriate action. Any party alleging intentional or negligent
     misrepresentation or omission in such an affidavit or statement
     made under penalty of perjury may submit documentation thereof to
     the Commission's Enforcement Bureau; whereupon the Enforcement
     Bureau may institute an enforcement action which could result in,
     without limitation, forfeitures and license revocation. Such
     Commission action would be in addition to, and not to the exclusion
     of, other remedies available under local, state or federal law.

141. Finally, we note that we will monitor interference complaint data
     on an ongoing basis to ensure the interference abatement objectives
     addressed in this proceeding will continue to be accomplished both
     before and after band reconfiguration. We emphasize that our
     responsibility to ensure that 800 MHz non-cellular licensees do not
     suffer from unacceptable interference from CMRS carriers will be
     complaint-driven, and we urge affected licensees to carefully
     monitor their systems and promptly report any incidents of
     unacceptable interference to the relevant CMRS carrier(s).[^385] To
     the extent that our experience reveals that the interference
     abatement procedures we adopt today require refinement to ensure
     high-quality 800 MHz public safety or CII service, we will do so as
     necessary.

## Band Reconfiguration

142. As noted in the Introduction to this *Report & Order,* the root of
     the instant problem lies in fundamentally incompatible mix of two
     types of communications systems in the 800 MHz band:
     cellular-architecture multi-cell systems---used by cellular
     telephone and ESMR licensees---and high site systems---used by
     public safety, private wireless and non-cellular SMR licensees. For
     the reasons discussed below,[^386] we believe reconfiguring the 800
     MHz band to separate these incompatible technologies, supplemented,
     when necessary with, Enhanced Best Practices provides the best
     long-term solution to the problem of interference in the 800 MHz
     band.[^387]

### Technical Issues Addressed by Band Reconfiguration

143. Segregating ESMR systems from non-cellular systems by placing them
     in opposite segments of the 800 MHz band will make it possible for
     ESMR and cellular telephone licensees to avoid some intermodulation
     interference. However, in some instances, consolidating ESMR
     channels into a single band segment may not---in and of
     itself---sufficiently reduce unacceptable intermodulation
     interference. The Radio Frequency (R.F.) carriers of systems in a
     consolidated ESMR band segment (and at least a portion of the R.F.
     carriers in cellular telephone systems), would still fall within
     the passband of all current public safety portable and mobile
     receivers. Thus, even in a reconfigured 800 MHz band, ESMR
     channels, or ESMR and cellular telephone channels could still, when
     combined in the receiver, generate intermodulation products.
     Therefore, as we discuss below, we believe that abatement of
     unacceptable intermodulation interference will require more than
     segregating cellular architecture systems from non-cellular
     systems.[^388] Thus, for example, ESMR licensees will have to make
     careful choice of channel selection such that two or more channels
     at a cell do not produce an intermodulation product falling on a
     public safety or CII channel.

144. Consolidating ESMR systems into one continuous segment in the upper
     portion of the 800 MHz band will provide ESMR licensees with
     greater flexibility in selecting channel pairs. The spacing between
     ESMR channels determines where intermodulation products will fall
     in the band. With closely spaced ESMR channels, the intermodulation
     products fall into---or just below---the upper portion of the ESMR
     segment of the reconfigured band. As the cell channel spacing
     increases, the intermodulation products become further removed from
     the ESMR band segment, extending further down into the non-cellular
     channels---including channels used by public safety systems. In the
     reconfigured band, a careful ESMR channel choice could reduce the
     potential for intermodulation interference generated between the
     ESMR channels in a given cell. Given careful coordination among
     licensees, it will also be possible, in some instances, to avoid
     intermodulation products formed by a combination of ESMR channels
     and cellular telephone channels. However, considerably more care is
     required when two licensees are involved. Close-spacing of channels
     is often not an option in that circumstance;[^389] however, it
     still may be possible to avoid channel combinations that result in
     intermodulation products falling on specific frequencies used by
     public safety/CII systems. This latter solution may be more
     difficult to implement when cellular telephone systems use dynamic
     channel allocation whereby the channels in a given cell can change
     frequently, *e.g*., on an hourly basis, in response to traffic
     loads. Moreover, some cellular telephone systems may make more use
     of technology, such as CDMA, in which wider bandwidth carriers
     produce IM products with a wider bandwidth thus potentially
     affecting more frequencies.

145. We believe that a reconfigured 800 MHz band will permit future
     public safety radios to be more interference resistant. Because
     there currently are public safety channels scattered throughout the
     800 MHz band, from the bottom of the General Category band segment
     at 806 MHz/851 MHz to the top of the NPSPAC channels at 824 MHz/869
     MHz, the device called, variously, the "preselector" or "input
     filter" of the public safety radio must be sufficiently wide to
     cover the complete 851-869 MHz range, including the current ESMR
     channels which fall at 861-866 MHz. Narrowing the range of Public
     Safety frequencies allows equipment manufacturers to utilize
     narrower filters that will attenuate potentially interfering
     signals higher in the band.[^390]

146. In sum, while band reconfiguration, in conjunction with careful
     engineering of cell sites, will reduce intermodulation interference
     between ESMR channels *inter sese*, it is apparent that particular
     care will have to be exercised when both ESMR and cellular
     telephone channels are implicated. In the long term, however, band
     reconfiguration will result in a net reduction in both unacceptable
     OOBE and intermodulation interference for the following reasons:

-   Nextel will completely relinquish rights to all of the interleaved
    channels, relieving OOBE interference to licensees operating
    non-cellular systems on the interleaved portion of the band.[^391]

-   Nextel will relocate its systems operating on General Category
    channels to the upper portion of the 800 MHz band, therefore
    relieving OOBE interference that these systems currently can cause
    to non-cellular systems operating on channels immediately above the
    General Category channels.[^392]

-   Reconfiguring the 800 MHz band to separate cellular systems from
    non-cellular systems will substantially reduce interference to
    public safety created by OOBE by allowing ESMR licensees to replace
    current base station transmitter duplexers with new duplexers that
    will "roll-off" RF energy immediately below 862 MHz.[^393]

-   Consolidation of Nextel channels in the upper portion of the band
    will give ESMR operators and cellular telephone licensees greater
    flexibility to make a judicious choice of channel selection and
    channel spacing, thereby either confining potential ESMR
    intermodulation interference to a smaller portion of the
    non-cellular segment of the band, or limiting intermodulation
    products that fall on given CII or public safety channels.[^394]

-   We anticipate that, after band reconfiguration, equipment
    manufacturers will design public safety radios to cover only the
    portion of the 800 MHz band below 817/862 MHz because no public
    safety system will be operating in the ESMR spectrum above 817
    MHz/862 MHz.[^395] Thus, with public safety radios no longer
    required to cover the entire 800 MHz band, the first R.F. amplifier
    ("preselector") of the public safety radio can be designed to
    attenuate the potentially interfering ESMR and cellular telephone
    signals originating from systems that operate above 817 MHz/862 MHz.

147. Although reconfiguration of the 800 MHz band will eliminate the
     interference-prone interleaving of ESMR and public safety systems
     in the 800 MHz band, it will require changing the operating
     frequencies of many 800 MHz public safety, CII and other
     non-cellular licensees. This will be done incrementally in the
     fifty-five Regional Planning areas in the United States. In
     general, more modern 800 MHz systems can be changed in frequency
     with only minor changes, most of which can be implemented in
     software.[^396] Older systems may require part changes, and, in
     some instances, replacement of entire transmitters and receivers.
     The overall band reconfiguration process will also require spectrum
     "green space;" for example, Nextel systems in the General Category
     band segment would be moved temporarily into Nextel spectrum at 900
     MHz, thereby "clearing" the General Category band segment. Next,
     the current NPSPAC channels would be moved into the cleared space
     at 806-809 MHz/851-854 MHz. Nextel has accomplished band
     reconfiguration before, albeit on a smaller scale, when it cleared
     the Upper 200 channels of incumbent users. Based on data derived
     from inspection of sixteen public safety systems of varying
     complexity, Nextel has estimated the total cost of band
     reconfiguration at \$850 million and has pledged to pay up to that
     amount. There is some disagreement over Nextel's estimates; but no
     real basis of choosing among competing band reconfiguration
     proposals on the basis of price: Nextel is the only party to this
     proceeding that has made a firm commitment to absorb the cost of
     band reconfiguration, including reconfiguration of its own systems,
     a factor not included in the \$850 million estimate.[^397]

148. We are sensitive to the concerns of those parties, including some
     public safety agencies whose systems do not now receive
     interference from ESMR and cellular telephone cells, who assert
     that reconfiguring the 800 MHz band could unnecessarily disrupt
     their communications while their operating frequencies are changed,
     or that their new channels would not be comparable to their
     original channels.[^398] We are committed to ensuring that band
     reconfiguration will not result in degradation of existing service.
     We believe the rules we adopt today will ensure both continuity of
     service and "comparable facilities." With respect to the latter, we
     note that the rules we adopt today track rules the Commission has
     successfully used to accomplish previous band
     reconfigurations.[^399]

### New 800 MHz Band Plan

#### Band Plan Overview 

149. In evaluating the various band reconfiguration plans submitted in
     this proceeding, we sought to identify, in each plan, five
     principal components that we deemed essential to the final
     "Commission Band Plan":

-   The extent to which a plan would abate unacceptable interference to
    non-cellular systems operating in the 800 MHz band.

-   The extent to which incumbents would be treated most fairly,
    including the degree of disruption associated with channel changes,
    the ability to provide relocated incumbents with truly comparable
    spectrum and minimum interruption of critical public safety and CII
    communications. These factors weighed heavily in our rejection of
    proposed band plans that contemplated using the Upper 700 MHz
    spectrum for public safety systems.[^400]

-   A configuration of 800 MHz cellular-architecture channels that would
    make intermodulation interference less likely---a factor that argued
    in favor of plans that placed ESMR spectrum in a contiguous
    block.[^401]

-   A configuration that would allow effective filters to attenuate
    signals that fell in the portion of the reconfigured band used by
    public safety and CII systems.[^402]

-   The amount of additional 800 MHz spectrum in which public safety
    would have a right to operate.[^403]

150. Although the thrust of our analysis was centered on the 800 MHz
     band, we also took into account the technical and economic fallout
     that a given 800 MHz band plan would have on other bands such as
     the Upper 700 MHz band, the 700 MHz Guard Band, the 700 MHz Public
     Safety Band, the 900 MHz band, and bands in the 1.5 GHz to 2.1 GHz
     region; all of which, in one fashion or another, came into play in
     the overall band reconfiguration proposals evaluated.

151. Of the various plans considered, the Consensus Plan offered
     benefits in each of the foregoing categories discussed in ¶ 149
     *supra* and pointed us to the development of a Commission Band Plan
     consistent with our goals in this proceeding:

-   abating harmful interference currently being encountered by 800 MHz
    public safety systems;

-   minimizing disruption to existing services;

-   responsibly managing the spectrum involved---constituting portions
    of the 700 MHz, 800 MHz, 900 MHz and 1.9 GHz bands[^404]; and

-   providing additional spectrum rights for public safety.

    Consequently, we are adopting the following plan for the 800 MHz
    band.

    **New 800 MHz Band Plan**[^405]

    ![](media/image3.wmf){width="4.902083333333334in"
    height="3.682638888888889in"}

> **[Non-Cellular Portion]{.underline} (806-817 MHz/851-862 MHz)**

-   [NPSPAC:]{.underline} Only NPSPAC systems will eligible to operate
    in the 806-809 MHz/851-854 MHz band segment (Channels 1-230, 25 kHz
    channels spaced every 12.5 kHz).

-   [Interleaved:]{.underline} The interleaved portion of the band at
    809-815 MHz/854-860 MHz (Channels 231-470 spaced every 25 kHz) will
    consist of public safety, B/ILT and SMR channels interleaved. Public
    safety and CII agencies will have exclusive access to the 809-809.75
    MHz/854-854.75 MHz band segment (Channels 231-260 spaced every 25
    kHz) and the channels vacated by Nextel below 815 MHz/860 MHz.[^406]

-   [Expansion Band:]{.underline} The Expansion Band at 815-816
    MHz/860-861 MHz (Channels 471-510 spaced every 25 kHz) will consist
    of B/ILT and SMR channels interleaved.[^407] The Expansion Band may
    also be used to house non-Nextel ESMR systems, as discussed
    *infra*.[^408] No public safety system will be required to remain in
    or relocate to the Expansion Band; although they may elect to do
    so.[^409]

-   [Guard Band:]{.underline} The Guard Band at 816-817 MHz/861-862 MHz
    (Channels 511-550 spaced every 25 kHz) will consist of forty
    channels available to any 800 MHz licensee. Any licensee operating
    below 817 MHz/862 MHz may elect to relocate to the Guard Band. The
    Guard Band may also be used to house non-Nextel ESMR systems, as
    discussed *infra.*[^410] No 800 MHz licensee may be involuntarily
    relocated into the Guard Band. Licensees in the Guard Band will
    receive less interference protection then licensees operating in
    lower portions of the non-cellular portion of the band as discussed
    *infra.*[^411]

> **[Cellular Portion]{.underline}**: **(ESMR systems at 817-824
> MHz/862-869 MHz)**

152. As we discuss *infra*, we decline to adopt those portions of the
     Consensus Plan that contemplate relinquishment of Nextel's 900 MHz
     spectrum rights.[^412] With regard to the "running average" of 2.5
     megahertz of spectrum rights that Nextel is surrendering in the
     interleaved segment of the 800 MHz band, we restrict eligibility
     for this spectrum to public safety licensees for three years from
     the effective date of this *Report and Order* and to public
     safety/CII licensees for an additional two years from that
     date.[^413] We make an identical provision for channels vacated by
     licensees that voluntarily relocate to the 816-817 MHz/861-862 MHz
     band segment. We believe providing these windows of limited
     eligibility meets our spectrum management goals by accommodating
     the generally slow budgetary process of public safety agencies and
     the express needs of CII licensees, before making the spectrum
     generally available to other 800 MHz non-cellular licensees, *i.e.*
     B/ILT and non-cellular SMR licensees.[^414]

153. Furthermore, in order to relocate NPSPAC systems to the bottom
     portion of the band, the Consensus Plan calls for clearing only the
     806-809 MHz/851-854 MHz portion of the General Category (Channels
     1-120 prior to band reconfiguration). We will require, however,
     that all non-public safety or non-CII licensees operating in the
     General Category (Channels 1-150 prior to band reconfiguration)
     relocate to the Guard Band, Expansion Band or interleaved portion
     of the band. The thirty remaining General Category channels
     available after the NPSPAC band is relocated will be available only
     to public safety licensees for three years from the effective date
     of this *Report and Order* and to public safety/CII licensees for
     an additional two years from that date.[^415]
     Therefore---regardless of how much spectrum Nextel occupies in any
     given region---public safety and then CII licensees will have
     nationwide access to thirty channels or 1.5 megahertz of spectrum
     immediately adjacent to the relocated NPSPAC band.

#### Expansion Band

154. We establish an "Expansion Band" in the 815-816 MHz/860-861 MHz
     segment of the 800 MHz band to provide public safety licensees
     spectral separation from the cellular portion of the band. Although
     occupants of the Expansion Band will receive full interference
     protection, we note the Consensus Parties comments indicating that
     those licensees who operate in the 2 x 2 MHz segment of the band
     immediately adjacent to the cellular portion of the band should
     employ "campus-type" or other interference-resistant type
     systems.[^416] Therefore, we believe it prudent to allow all public
     safety licensees the option to relocate from this portion of the
     band and no public safety licensee will be forced to relocate to
     this portion of the band. Nonetheless, any public safety licensee
     who willingly chooses to remain or relocate to the Expansion Band
     may do so.

155. The establishment of the Expansion Band required us to revise the
     chart in our rules that specifies channels for public safety use in
     the 800 MHz band.[^417] Specifically, twelve channels currently
     designated for public safety use are located within the newly
     created Expansion Band. Because we are allowing public safety
     licensees to relocate out of the Expansion Band, we needed to find
     a new "home" for these twelve public safety channels. Therefore, we
     "exchanged" these twelve public safety channels for twelve SMR
     channels located below the Expansion Band. As a result of this
     exchange, all public safety channels will now be located below the
     Expansion Band. In order to ensure that non-cellular SMR licensees
     lose no spectrum in this "exchange," licensees from this category
     will now have access to the former twelve public safety channels
     located in the Expansion Band.[^418]

156. The current chart designating public safety channels, lists the
     channel in groups with channels separated by one megahertz[^419] as
     a concession to the fact that the combiners used in a trunked
     system to combine the output of multiple transmitters into a single
     antenna can introduce excessive loss if used with channels that are
     too closely spaced.[^420] In modern systems, however, combiners
     suffer negligible loss even when the input channels are spaced as
     little as 250 kHz apart;[^421] thus in the revised table, we
     separate grouped public safety channels by 500 kHz.[^422] Since the
     new twelve public safety channels were pulled from the SMR pool,
     there will be non-cellular SMR licensees operating on these
     channels. Therefore, we hereby grandfather those non-cellular SMR
     licensees that are operating on the new public safety channels for
     an indefinite period, and we will permit the filing of modification
     applications by these grandfathered licensees.[^423] These
     grandfathered licensees will operate on a strict non-interference
     basis, subject to pre-coordination of any new of modified
     operations.[^424]

#### Guard Band

157. We establish a "Guard Band" in the 816-817 MHz/861-862 MHz segment
     of the 800 MHz band to guarantee public safety licensees an
     additional one megahertz spectral separation from the cellular
     portion of the band. Nextel will vacate the Guard Band. No
     licensee---including public safety and CII---will be involuntarily
     relocated to the Guard Band. We will grandfather all non-Nextel
     CMRS licensees who currently operate within the Guard Band. These
     grandfathered licensees will be permitted to continue operating on
     current frequencies, with currently authorized facilities, on a
     strict non-interference basis, subject to pre-coordination of any
     new of modified operations.[^425] However, we will not accept new
     non-public safety applications on any of the twelve new 800 MHz
     public safety frequencies.

158. Once Nextel has vacated the Guard Band any 800 MHz band licensee
     currently operating below 816 MHz/861 MHz may apply for channels
     there. Any channel below 816 MHz/861 MHz vacated by a licensee
     relocating to the Guard Band will be available only to public
     safety licensees for three years from the effective date of this
     *Report and Order* and to public safety/CII licensees for an
     additional two years from that date. Licensees who voluntarily
     relocate to the Guard Band after Nextel has vacated will be
     required to tolerate increasing levels of interference from
     cellular-architecture systems as a function of increasing
     frequency.[^426] The minimum median received power level required
     for interference protection (-104 dBm for mobile units or -101 dBm
     for portable units) will increase as shown in Figure 1, below. The
     channels these licensees vacate in the spectrum below 816 MHz/861
     MHz will be available to public safety licensees for five years and
     to CII licensees during years four and five of the five-year
     period.[^427]

     **FIGURE 1: Required Received Signal Levels for Interference
     Protection**

     ![](media/image4.wmf){width="6.081944444444445in"
     height="3.8041666666666667in"}

#### Relocating ESMR Operations in 800 MHz Band 

159.  We recognize that there are CMRS licensees other than Nextel using
     iDEN or iDEN-like ESMR technology in the 800 MHz band. For example,
     Southern LINC, a Nextel competitor, operates ESMR systems using
     Motorola iDEN technology in Georgia, Mississippi, Alabama and
     Florida.[^428] Airtell Wireless, LLC, and Nevada Wireless, LLC,
     operate an iDEN derivative, the Harmony system, on the interleaved
     channels in areas of Montana and Nevada, and represent that they
     will be constructing Harmony systems in other markets.[^429]
     Preferred Communications, Inc. holds spectrum rights in various
     areas of the continental United States and has extensive 800 MHz
     band spectrum rights in the Commonwealth of Puerto Rico and the
     U.S. Virgin Islands.[^430] Some of these parties operating
     cellular-architecture systems in the 800 MHz band note that their
     systems have already created interference to public safety
     systems.[^431]

160. The Consensus Parties did not discuss these other CMRS
     cellular-architecture systems, *supra,* but did propose that the
     Commission should grandfather Southern LINC's operations in the
     809-821 MHz/854-866 MHz block while relocating Southern LINC's
     systems that currently operate in the 806-809 MHz/851-854 MHz block
     to the upper portion of the non-cellular segment as close as
     possible to the ESMR segment.[^432] The Consensus Parties proposed
     allowing Southern LINC to operate its cellularized systems in the
     non-cellularized portion of the band without a waiver but with a
     requirement to notify all affected licensees before implementing
     low-site cells.[^433] Under the Consensus Plan, Southern LINC would
     be required to pre-coordinate such operations to prevent
     unacceptable interference to non-cellular licensees and would be
     responsible for eliminating any interference.[^434] The Consensus
     Parties did not discuss other ESMR licensees such as those
     mentioned *supra.* For its part, Southern LINC contends that it
     should be relocated to the ESMR segment, without loss of channels,
     where it would share spectrum with Nextel*.*[^435]

161. We find the Consensus Parties' proposal for relocation of Southern
     LINC's facilities[^436] too incomplete---to the extent it does not
     address other similarly situated licensees---and too limited. With
     respect to the proposal to grandfather Southern LINC's existing
     operations, we note that there is no evidence that these operations
     currently cause interference to other 800 MHz band licensees.[^437]
     However, we can foresee that Southern LINC, in order to meet
     increasing subscriber demands, may desire to deploy "low site"
     cells which could be a source of interference to public safety and
     other non-cellular licensees. The interference potential is
     heightened because many of Southern LINC's channels are immediately
     adjacent to channels used by non-cellular licensees in the
     interleaved portion of the band. As a general proposition, ESMR
     systems operating in the 817-824 MHz/862-869 MHz segment of the
     band are less likely to cause interference than ESMR systems
     operating in the interleaved portion of the band. We therefore
     believe that the overall interference environment at 800 MHz would
     improve were we to allow licensees such as Southern LINC to
     relocate their systems to the ESMR portion of the band where they
     have less potential for interference to public safety and other
     non-cellular 800 MHz band licensees. Confining licensees such as
     Southern LINC to operation below 817 MHz/862 MHz is not optimal
     from an interference protection standpoint and could adversely
     affect such licensees' ability to provide adequate service to its
     subscribers in the future.

##### Relocation Options 

162. In order to provide an incentive for ESMR licensees to relocate
     their systems, we are affording them the flexibility of three
     options:

-   Relocate all of their systems in a market into the ESMR portion of
    the band where they will share spectrum with Nextel; or

-   Relocate their systems as close as possible to the ESMR portion of
    the band but remain in the non-cellular portion of the band, *i.e.*
    in order of preference: (a) the 816-817 MHz/861-862 MHz Guard
    Band;[^438] (b) the 815-816 MHz/860-861 MHz Expansion Band;[^439]
    and (c) channels below 815 MHz/860 MHz if necessary. These licensees
    will operate on a strict non-interference basis, subject to
    pre-coordination of any new or modified operations;[^440] or

-   Remain on their current channels in the non-cellular portion of the
    band on a strict non-interference basis, subject to pre-coordination
    of any new or modified operations.[^441]

163. If non-Nextel ESMR licensees elect to relocate to the ESMR portion
     of the band, their EA licenses will transfer on a
     channel-by-channel basis, such that they have exclusive,
     incumbent-free, use of the new channels in the EA.[^442] We
     recognize, however, that many of these non-Nextel ESMR licensees
     employ a patchwork of EA-based and site-based licenses. Therefore,
     we will give these licensees the option to relocate their
     site-based licenses along with their EA-licenses to the ESMR
     portion of the band. In order to transfer a site-based channel into
     the ESMR segment, a licensee must: (a) currently hold an EA license
     in the relevant market; and (b) be using the site-based license as
     part of a cellular-architecture system in that market as of the
     date of publication of this *Report and Order* in the Federal
     Register. Furthermore, to create a more uniform licensing scheme,
     the transferred site-based license will be converted to an EA-wide,
     incumbent-free license in the ESMR portion of the band. If
     non-Nextel ESMR licensees elect not to relocate to the ESMR portion
     of the band, but volunteer to relocate to the Guard Band or must be
     relocated to the Expansion Band or to the spectrum immediately
     below, when necessary, they must be provided comparable facilities,
     in the case of their site-based licenses; and, in the case of EA
     licenses, exclusive use of their new channels in the EA.[^443]

##### Expanded ESMR Spectrum

164. We are aware that, in some markets, there may be insufficient
     spectrum in the 816-824 MHz/861-869 band segment to accommodate
     both incumbent ESMR licensees already operating there and new ESMR
     entrants migrating from the lower channels. This is particularly
     true of certain markets in which both Southern LINC and Nextel
     currently are offering service. In those markets, Southern LINC
     holds a large number of licenses in the interleaved portion of the
     band, and also holds licenses for some General Category channels.
     Consequently, there are an inadequate number of channels in the
     816-824 MHz/861-869 MHz band segment to replicate the existing
     channel capacity of both Southern LINC and Nextel. We note recent
     *ex parte* filings in which Southern LINC and Nextel recite a
     preliminary agreement in which they propose that the 816-824
     MHz/861-869 MHz ESMR segment be widened by five megahertz, such
     that the lower band edge would start at 813.5 MHz/858.5 MHz.[^444]
     With the ESMR portion of the band so widened, Southern LINC and
     Nextel would engage in a channel exchange that would result in the
     configuration of channels shown in Appendix G, which also includes
     a map of the area in which the ESMR portion of the band would be
     increased, and the list of counties within the area shown on the
     map.

165. We note from the *ex parte* filings that the Southern LINC and
     Nextel agreement is not final and that the parties have not been
     able to agree on a final apportionment of channels in the Atlanta,
     Georgia market. Because of the preliminary nature of the agreement,
     we need not address it further here, but encourage the parties to
     come to an agreement that is equitable for all licensees involved.

166. Although we do not rule on the acceptability of the provisions
     contained in the preliminary agreement, the filings inform us that
     the distribution of cellular-architecture and non-cellular systems
     in the area shown in Appendix G is atypical. Moreover, we believe
     that we should change the band plan for that region now, before
     band reconfiguration commences, so that the overall band
     reconfiguration process takes the revised band plan into account.
     Accordingly, on our own motion, we define the ESMR band in the area
     shown in Appendix G as the band segment 813.5 - 824 MHz/858.5-869
     MHz. The Expansion Band in this area shall extend from 812.5-813.5
     MHz/857.5-858.5 MHz. All licensees operating in the band segment
     806-813.5 MHz/851-858.5 MHz shall be afforded the same protection
     against unacceptable interference as specified in ¶¶ 96-141,
     *supra.*

167. Moreover, because Southern LINC's recent *ex parte* submission
     indicates that it intends to exercise the option of relocating into
     the ESMR portion of the band, we will give Nextel and Southern LINC
     the opportunity to finalize their agreement and recommend a channel
     distribution that equitably reflects the interests of all 800 MHz
     licensees in the area shown in Appendix G. That agreement shall be
     completed and submitted to the Commission for review no later than
     thirty days following the publication of this *Report and Order* in
     the Federal Register. The agreement must include mutual
     non-disclosure provisions and a clear delineation of the costs to
     be borne by each party. It shall also include a proposed band
     reconfiguration schedule consistent with the obligations we have
     imposed on Nextel in this *Report and Order.* The agreement also
     shall contain an engineering analysis demonstrating that the
     channel plan can be implemented consistent with public safety and
     B/ILT licensees retaining the spectrum necessary to accommodate
     them. We delegate to the Chief of the Wireless Telecommunications
     Bureau, the authority to review the agreement, and to resolve any
     disputed matters submitted to the Commission for *de novo* review.

168. In the event the parties fail to reach agreement by the date
     specified *supra*, they shall submit their differences to the
     Transition Administrator who will attempt to facilitate a final
     agreement. If the disputed matters are not resolved within thirty
     days, the Transition Administrator will submit the entire record to
     the Commission for *de novo* review. Parties are hereby put on
     notice that disputed matters concerning ESMR channels in any area
     of the country, including the area shown in Appendix G may be
     resolved by the Commission making a *pro rata* distribution of ESMR
     channels.[^445] In the case of the area shown in Appendix G, a *pro
     rata* apportionment could reduce the current number of channels
     available to Nextel. However, we observe that Nextel has additional
     spectrum at 900 MHz which can be used to offset the shortfall and
     is receiving spectrum at 1.9 GHz. With respect to Southern LINC, we
     observe that its relocation to the ESMR block would provide
     Southern LINC with clear, contiguous spectrum arguably of greater
     value and capacity than the spectrum it now occupies. This would
     occur because, in some instances, Southern LINC would receive clear
     spectrum, in exchange for site-based channels which cannot
     currently be used in the entire EA because of the need to protect
     incumbents.

169. Finally, because we are extending the ESMR band to 813.5 MHz/858.5
     MHz in the counties listed in Appendix G, some coordination between
     licensees will be necessary at the edge of these counties.
     Specifically, ESMR licensee operating within these counties will be
     required to maintain minimum co-channel spacing distances to
     incumbent non-cellular licensees operating just outside these
     counties.[^446] In addition, there may be instances where a
     non-cellular licensee operating just outside these counties may
     need to relocate above 813.5 MHz/858.5 MHz in order to complete
     band reconfiguration. In these instances, the EMSR licensees
     operating within the counties listed in Appendix G will make all
     necessary accommodations in order to provide the non-cellular
     licensee with the minimum required co-channel spacing on the new
     channel.[^447]

#### Permitting Additional Non-ESMR Cellular Architecture Systems in the 800 MHz Band

170. Some CII parties, such as utilities, contend that excluding
     cellular systems from the non-cellular portion of the 800 MHz band
     (806-817 MHz/851-862 MHz) will impose a hardship on CII licensees
     whose communications needs require a transition of their systems to
     cellular architecture.[^448] We wish to proceed cautiously in this
     area out of concern over replicating the unacceptable interference
     problem we are attacking through band reconfiguration; but we also
     wish to avoid unnecessarily constraining the use of innovative
     technology in the process. The record suggests that CII cellular
     systems, with well-designed network architecture, can operate
     without causing unacceptable interference so long as they avoid the
     high-density cell operations that have been a frequent source of
     interference to date. We reach this finding in part because we do
     not anticipate that such CII or public safety systems will require
     high density, high user-capacity systems such as those used by CMRS
     licensees. The "non-CMRS" nature of these systems would suggest
     that they would not grow to have such high user demand that
     extensive deployment of low site cells would be required.[^449]

171. In this regard, the Consensus Parties offer a definition for the
     type of "high-density cellular" system they believe should be
     prohibited from operating in the non-cellular portion of the 800
     MHz band.[^450] The Consensus Parties would define a "high-density
     cellular" system as any system with (1) five or more overlapping
     interactive sites featuring hand-off capability; (2) any one of
     such sites having an antenna height of less than 100 feet above
     ground level with an antenna height above average terrain (HAAT) of
     less than 500 feet; (3) and any one of such sites having more than
     twenty paired frequencies.[^451]

172. Several CII licensees, however, believe that the Consensus Parties
     definition is overly broad and would unduly limit the operation of
     many non-CMRS systems that pose little or no likelihood of harmful
     interference to other licensees in the 800 MHz band.[^452] For
     instance, these CII licensees contend that the Consensus Parties
     definition would prohibit systems where any of these
     characteristics are present even though no individual site exhibits
     all of these characteristics.[^453] Therefore, these CII licensees
     suggest applying the Consensus Parties definition on a site-by-site
     basis rather then on a system-wide basis.[^454] We agree. The
     Consensus Parties were unclear about whether their definition
     should be applied system-wide or on a site-by-site basis. We
     believe that only sites which exhibit [all]{.underline} of the
     characteristics described by the Consensus Parties would likely
     cause interference to other licensees in the 800 MHz band.
     Therefore, we will permit licensees to operate
     cellular-architecture systems in the non-cellular portion of the
     band without need for waiver so long as those systems are not
     high-density cellular systems under the following definition of
     "800 MHz cellular system": [^455]

-   a system having more than five overlapping interactive sites
    featuring hand-off capability; and

-   any one of such sites has an antenna height of less than 100 feet
    above ground level with an antenna height above average terrain
    (HAAT) of less than 500 feet and more than twenty paired
    frequencies.[^456]

173. If a licensee does wish to operate an 800 MHz cellular system, it
     will be required to obtain waivers for any and all sites that meet
     the second of our two criteria. In that case, a CII or public
     safety system licensee may avail itself of the Commission's waiver
     process pursuant to the waiver criteria set out in Section 1.925 of
     the Commission's Rules.[^457] Any such request shall contain both a
     persuasive showing of need and a demonstration of non-interference.
     Any waiver granted, will contain a continuing non-interference
     condition.[^458] As stated above, cellular-architecture systems
     that do not come within the foregoing "800 MHz cellular" definition
     may be operated without need for a rule waiver; nonetheless, they
     must not cause unacceptable interference to 800 MHz "high-site"
     non-cellular systems. Our reason for requiring waivers for sites in
     high-density cellular systems is, in one respect, a means to ensure
     that system designers "do their interference abatement homework"
     before seeking Commission authorization for a facility in the
     non-cellular portion of the band. Moreover, proceeding only
     pursuant to waiver will allow us to more carefully gauge the effect
     that such high-density cellular technology in the non-cellular
     portion of the 800 MHz band would have. We can then revisit the
     matter at a later date before serious harm is done if new systems
     proliferate and cause unacceptable interference. Most importantly,
     were we to decide, here, to allow unrestricted, high density
     cellular operation in the non-cellular portion of the band, we
     would undo four years of intensive study and terminate this
     proceeding by virtually issuing an invitation for a high-density,
     multi-cell operator to construct interference-generating systems in
     incompatible spectrum and potentially put our first responders at
     risk and threaten their ability to adequately address Homeland
     Security threats. We will monitor this cellular restriction
     carefully and revisit it if necessary. As with any of our rules,
     waivers are available to accommodate special circumstances.
     However, there would be a high burden to surmount for any party
     seeking a waiver for CMRS operation.

174. As stated above, our definition of "800 MHz cellular system" should
     not be interpreted to allow cellular-configuration systems that do
     not come within the cellular definition to cause unacceptable
     interference or to relieve them from the cost and other
     responsibility for promptly abating unacceptable interference in
     the 800 MHz band should it occur. Rather, our cellular definition
     in the 800 MHz band context serves only as a demarcation between
     systems that can operate in the non-cellular portion of the 800 MHz
     band without a waiver and those that require a waiver.

### Border Regions 

175. Several parties note, and we concur, that no feasible band plan
     suggested in this proceeding comports with the current arrangement
     the United States has with Canada or with the protocols it has with
     Mexico for use of the 800 MHz band in the border areas. The
     existing border band plans, contained in Section 90.619 of our
     rules have evolved from periodic negotiations with these countries
     and have been adjusted from time to time. The border band plans are
     not consistent along the border; there are different distributions
     of channels in given border regions, primarily because of
     demographic considerations. The Consensus Parties were the only
     party to file a band plan for the border area; and several
     commenting parties, including Industry Canada---pointed out that
     the border area plan proposed by the Consensus Parties' had
     multiple flaws, including:

-   *Mutual Aid Channels.* The border area plan fails to maintain
    channels designated by international agreements for mutual aid with
    Canada and Mexico.[^459] The Consensus Parties suggest relocating
    these channels to the lower portion of the 800 MHz band.[^460] The
    Consensus Parties, however, fail to explain how users in Mexico or
    Canada would be compensated for retuning or replacement of equipment
    needed to operate on the new mutual aid channels.

-   *Maintaining Spectrum for Various Pools.* The Consensus Parties'
    border area plan fails to maintain comparable spectrum for various
    800 MHz band pools (public safety, B/ILT, SMR).[^461] For
    instance---in certain regions---public safety loses channels after
    band reconfiguration while ESMR licensees gain channels after band
    reconfiguration.[^462]

-   *Public Safety Spectrum in Mexico Border Area.* Many of the channels
    in the Consensus Parties' border plan, designated for public safety
    use in the Mexico Border Region---after band reconfiguration---may
    be unusable because of short-spacings to co-channel incumbents
    outside of the border area.[^463] For instance---due to co-channel
    spacing requirements---incumbent non-border licensees may "block"
    numerous channels designated for public safety use in San Diego, CA
    and Tucson, AZ.[^464]

-   *U.S. Operations on Canada/Mexico Primary Channels.* The Consensus
    Parties' border area plan is silent on relocation of U.S NPSPAC
    systems currently operating on Canada or Mexico primary
    channels.[^465]

-   *Channel Spacing.* The Consensus Parties' border area plan would
    reduce the span of frequencies available to B/ILT and non-cellular
    SMR licensees thus greatly reducing the span of frequencies which
    can be combined into a trunked system.[^466]

-   *Exacerbating the "Double Border.*" Border area licensees currently
    need to coordinate both with licensees outside the U.S
    (Mexico/Canada) and U.S licensees in the non-border area. The
    Consensus Parties' reconfiguration plan exacerbates this problem due
    to the extensive channel relocations involved in band
    reconfiguration.[^467]

-   *Canada/Mexico NPSPAC Licensees.* The Consensus Parties make no
    mention of whether their reconfiguration proposal will negatively
    affect NPSPAC operations in Canada and Mexico.[^468] Under the
    Consensus Parties band plan, after band reconfiguration, ESMR
    operations on the U.S. side of the border would operate on the same
    channels as NPSPAC operations in Canada and Mexico.

-   *iDEN Arrangement.* The border area plan will affect a current
    agreement between the U.S. and Canada to reserve certain channels in
    the 800 MHz band for iDEN digital networks.[^469]

176. We note that our agreements with Mexico and Canada establish a
     distance beyond which U.S licensees need not consider border
     stations when selecting channels. The distance is 140 km (87 mi.)
     and 110 km (68.4 mi.) from the border for Canada and Mexico,
     respectively.[^470] Depending on how the border band plans develop,
     there is the possibility of a "double border." The second border
     would be created if the overall U.S. band plan differs from a band
     plan for the border regions. For example, the overall U.S. band
     plan may assign a given channel for public safety use, *e.g.*
     Channel 88 and the border band plan may assign the same channel for
     ESMR use. In this example, the strict responsibility regime we
     establish today requires the ESMR Channel 88 licensee to protect
     the non-cellular 800 MHz system against unacceptable interference.
     In instances in which a border band plan results in different uses
     of a given channel for non-cellular systems, *e.g.* a U.S. SMR
     system operating in the Mexican border area and a public safety
     channel operating beyond the 110 km line, *supra,* our current
     coordination procedures would come into play and the two users
     would be protected against mutual unacceptable interference by
     required distance spacings.[^471] The details of the border band
     plans will be determined in our ongoing discussions with the
     Mexican and Canadian governments. One principal goal of these
     discussions will be to ensure that the capability for cross-border
     mutual aid communications is maintained. Thereafter, we will
     address any "double border" issues. Until border agreements are
     reached, however, 800 MHz licenses in the border area will be
     conditioned on compliance with international agreements. We further
     note that Nextel will bear the financial responsibility for the
     completion of any system modifications necessitated by any future
     international agreements.[^472]

### Cost Responsibility

177. Band reconfiguration will be costly. We believe, however, that sole
     reliance on Enhanced Best Practices to abate unacceptable
     interference would entail a continuing expense that---over the long
     term---would eclipse the admittedly high initial cost of band
     reconfiguration.[^473] Under the Consensus Proposal, and the rules
     that we adopt today, the cost of band reconfiguration can be
     accommodated to successfully address the critical interference
     problems faced by public safety providers. Moreover, we are
     confident that Nextel is capable of fulfilling its central role in
     achieving this result, given its demonstrated ability to bear the
     upfront costs of band reconfiguration.[^474] The record does not
     reveal any effective alternative to the one we fashioned
     here---either by band reconfiguration or otherwise---to solve the
     instant problem. No other spectrum management approach provided the
     same assurances of success. Furthermore the plan we are adopting
     today will preserve the abilities that public safety licensees are
     likely to need in order to meet their increased Homeland Security
     obligations.

178. Under the band reconfiguration plan, the principle cost component
     will be borne by Nextel, which will pay for all channel changes
     necessary to implement the reconfiguration.[^475] Nextel is
     obligated to ensure that relocated licensees receive at least
     comparable facilities when they change channels.[^476] Moreover, a
     licensee electing to relocate to the ESMR block voluntarily, must
     receive clear, incumbent-free replacement spectrum. Thus, Nextel
     shall be responsible for the clearance of any incumbents affecting
     the replacement channel. If disputes arise concerning the cost
     allocation, the matter may be referred to the Transition
     Administrator for resolution; and, failing that, to the Chief of
     the Wireless Telecommunications Bureau for *de novo* review.[^477]

#### Relocation Costs and Remuneration

179. The Consensus Parties estimated the cost of reconfiguring the 800
     MHz band at \$850 million. Nextel committed to pay up to that
     amount conditioned on Commission approval of the Consensus Plan
     without material change.[^478] We conclude, however, that we cannot
     reasonably "cap" the amount required for band reconfiguration if
     completing the reconfiguration process requires more than \$850
     million.[^479] First, as discussed above*,* our band
     reconfiguration plan differs from that of the Consensus Parties,
     most particularly with respect to considerations affecting
     efficient use of the spectrum. In light of these changes, we place
     less reliance on the assumptions Nextel made when it estimated the
     cost of band reconfiguration. We did not undertake an *ab initio*
     analysis of the cost of band reconfiguration but instead carefully
     analyzed the data contained in the record. In that regard we have
     taken careful notice of certain sensitive assumptions in Nextel's
     analysis, which, if varied by only a few percent, greatly affect
     Nextel's cost estimate.[^480] The one certainty that we derive from
     our analysis is that it would be unwise in the extreme to proceed
     with band reconfiguration without making it clear that Nextel is
     obligated to cover the entire cost thereof, with no "cap."[^481]
     Thus, if we accepted any cap on Nextel's reconfiguration cost
     obligations and its estimates proved low---*i.e.,* if we capped
     costs at \$850 million and that amount was exhausted before the
     completion of nationwide band reconfiguration---a balkanized 800
     MHz band would likely result, in which public safety agencies in
     one section of the country would operate pursuant to a revised band
     plan and other agencies would operate pursuant to the current,
     interference-ridden, band plan. This could seriously diminish
     public safety interoperability between NPSPAC Regions, and could
     also impair the ability of non-NPSPAC public safety systems to
     develop interoperable networks. We also observe that the Consensus
     Parties themselves admit the possibility that \$850 million may
     prove inadequate.[^482] Thus, when discussing the assurance that
     the exhausted funds would not result in a half-reconfigured 800 MHz
     band, they state that: "no incumbent licensees will be required to
     relocate within a Region...unless funding is available for all
     licensee relocations required in that Region."[^483] While this
     addresses the possibility of the incomplete reconfiguration of a
     single Region, the Consensus Parties are silent on the greater
     hazard resulting from the funds evaporating before the
     reconfiguration of all Regions: *e.g.,* a negative effect on
     inter-region interoperability.

#### Continued Availability of Funds 

180. In the *NPRM*, the Commission sought comment on how to guarantee
     the availability of funding to complete the reconfiguration of the
     800 MHz band regardless of the financial status of the contributing
     party or parties.[^484] In response, parties suggested how to
     ensure the completion of band reconfiguration notwithstanding the
     inability of the funding entity to continue to furnish funds for
     reasons of bankruptcy or otherwise.[^485] The Consensus Parties,
     for example, initially proposed that Nextel could secure its
     ability to fund retuning costs by setting up a separate corporate
     entity to hold assets securing the Nextel funding obligation. The
     stock of the entity would be pledged to an escrow agent/trustee,
     with the power to sell the assets and hold the cash proceeds in
     escrow for the benefit of the Fund Administrator in the event
     Nextel failed to meet its payment obligations.[^486] However, this
     proposal was superseded on November 3, 2003, when Nextel committed
     to deposit \$100 million in cash into an escrow account created and
     designated for paying 800 MHz band reconfiguration costs pursuant
     to the Consensus Plan and securing up to an additional \$750
     million for this purpose through an irrevocable stand-by letter of
     credit.[^487] Nextel claims that this proposal would insulate band
     reconfiguration funds from any financial reversals that Nextel
     might encounter, including bankruptcy.[^488]

181. Nextel's escrow deposit and irrevocable stand-by letter of credit
     appear better capable of assuring continued relocation funding than
     the Consensus Parties' earlier proposal, although we prefer to rely
     solely on the Letter of Credit. However, we remain mindful of those
     parties who questioned the Consensus Plan cost estimates, both with
     respect to the number of systems that would have to be relocated
     and whether equipment in those systems could be retuned or would
     have to be replaced.[^489] We also recognize that even small errors
     in certain sensitive parameters could dramatically increase total
     relocation costs.[^490] We are therefore faced with the question of
     who should assume the risk if relocation cost projections prove to
     be inadequate: Nextel, which made the estimates, or the public,
     which would suffer the consequences of incomplete implementation of
     a nationwide 800 MHz band plan. In resolving that question, we note
     that Nextel has stated that it is "highly confident" in the
     accuracy of its estimates, which suggests that it perceives little
     risk in assuming the entire band reconfiguration obligation.
     However, we also believe it is important to protect against the
     risk of Nextel experiencing an unanticipated financial crisis or
     insolvency that would impair its ability to fully fund relocation.

182. Because the Commission Plan requires Nextel to shoulder a greater
     financial obligation than the financial obligation envisioned in
     the Consensus Plan, we will require Nextel to increase the amount
     of money irrevocably available to ensure completion of band
     reconfiguration. Specifically, we will require Nextel to provide an
     irrevocable letter of credit securing \$2.5 billion.[^491] This
     letter of credit will serve as the funding source for the costs
     involved in reconfiguring the 800 MHz systems for non-Nextel
     licensees and possibly as the source for any payment to the United
     States Treasury.[^492] Nextel must directly pay its own relocation
     costs as well as such obligations such as the reimbursement of
     UTAM, the relocation of BAS incumbents and the compensation of the
     Transition Administrator and the Letter of Credit Trustee. We have
     provided a model letter of credit at Appendix E, *infra,* and
     expect that the letter of credit will be issued in substantially
     the same form set forth therein*.*[^493] While we require that only
     one financial institution, acceptable to the Commission,[^494]
     issue the letter of credit, we have no objection to the indirect
     participation of other financial institutions, acceptable to the
     Commission, if necessary.[^495]

183. As described more fully at ¶¶ 198-200 *supra,* the Trustee will
     draw upon the letter of credit those funds necessary to accomplish
     band reconfiguration. As part of the process by which the
     Transition Administrator will certify that band reconfiguration in
     a particular NPSPAC region is complete---or at Nextel's reasonable
     request, the Transition Administrator will evaluate the sum
     remaining available under the initial letter of credit and any
     subsequent letter(s) of credit issued pursuant to this *Report and
     Order*. If, at any time, the Transition Administrator documents
     that the letter(s) of credit does not retain sufficient undrawn
     funds to ensure completion of band reconfiguration, Nextel will be
     required to open an additional letter of credit. If, however, the
     Transition Administrator documents that the letter(s) of credit
     secures funds in excess of those needed to ensure completion of
     band reconfiguration, Nextel will be allowed to reduce the amount
     of the letter(s) of credit. At no point, however, will the
     Transition Administrator allow Nextel to reduce the total aggregate
     secured by the letter(s) of credit below \$850 million. We believe
     that allowing reductions in the letter(s) of credit will relieve
     Nextel of an unnecessary financial burden and anticipate that
     Nextel may use the monies freed by the reduction to improve or
     expand its network, including its operations in the 1.9 GHz band.
     This would not only improve its service to the public, but the
     revenues derived from this improved service would strengthen its
     financial position and serve as an additional hedge against
     financial reversals that might affect band reconfiguration. At the
     conclusion of the true-up process, including securing the funds
     necessary to ensure reconfiguration of the band in border areas,
     Nextel's obligation to provide security for the cost of 800 MHz
     band reconfiguration shall terminate and the letter(s) of credit
     will terminate.[^496]

184. The letter(s) of credit shall specify a trustee, acceptable to the
     Commission, as the beneficiary, which shall administer the funds
     from the letter of credit and receive the funds from the letter of
     credit in the event of a Nextel default. Nextel and the Letter of
     Credit Trustee shall formalize the terms of their relationship with
     a written contract and/or a trust deed, drafts of which shall be
     submitted for Commission final review and approval.[^497] On the
     occasion of a material breach by Nextel of its obligations
     hereunder, as declared by the Commission, said trustee shall be
     entitled to draw on the letter of credit as specified in such
     instrument. The funds shall be devoted to reconfiguration of the
     800 MHz band and possibly payment to the United States
     Treasury.[^498] Neither the Transition Administrator nor the Letter
     of Credit Trustee will be compensated from funds available under
     the letter of credit, but will be compensated directly by Nextel.

185. If Nextel is unable or unwilling to fulfill its obligations
     pursuant to this *Report and Order,* the Commission can approve the
     use of letter of credit funds to compensate the Transition
     Administrator and the Letter of Credit Trustee for their services.
     The trustee shall stand as a fiduciary to the Commission. Letter of
     credit funds shall be applied first to band reconfiguration of
     non-Nextel licensees; and then to the relocation of Nextel's
     facilities as required to conform to the new 800 MHz band plan.
     Should the funds be insufficient to complete relocation of Nextel's
     facilities, the licenses of un-relocated Nextel facilities shall
     automatically revert to secondary status. Pursuant to such
     secondary status, such unfinished Nextel facilities must not
     interfere with, and must accept interference from, any other 800
     MHz licensee.

186. As described in paragraph 330 *infra*, the Wireless
     Telecommunications Bureau will issue a Public Notice specifying the
     amount that Nextel will pay the United States Treasury. If Nextel
     does not make payment of any amount that it owes within thirty days
     of issuance of this Public Notice, the amount Nextel owes will be
     paid from the letter(s) of credit. If the letter(s) of credit do
     not secure sufficient funds, then, in addition to debt collection
     remedies that the government may employ, the Commission will
     determine whether forfeitures should be imposed and/or whether
     Nextel licenses, included, but not limited to its 1.9 GHz licenses,
     should be revoked.

187. Because the Commission does not engage in deciding debtor-creditor
     matters, including those relating to bankruptcy, we, *inter alia,*
     will not permit Nextel to operate within the 1.9 GHz band without
     first providing the Commission with a legal opinion letter, at
     Nextel's cost, from bankruptcy counsel chosen by Nextel. This
     restriction is a condition of Nextel's modified license. In order
     to meet this condition, the opinion letter must clearly state,
     subject only to customary assumptions, limitations and
     qualifications, that in a proceeding under Title 11 of the United
     States Code, 11 U.S.C. Section 101 et seq. (the "Bankruptcy Code"),
     in which Nextel is the debtor, the bankruptcy court would not treat
     the Letter of Credit or proceeds of the Letter of Credit as
     property of Nextel's bankruptcy estate under Section 541 of the
     Bankruptcy Code. The scope of the opinion letter must also cover
     such other opinions as the Commission shall request. The opinion
     letter must contain detailed legal analysis of the basis of
     counsel's opinion. A draft opinion letter must be submitted for
     review and approval by the Commission's Office of General Counsel
     prior to issuance of the opinion. Bankruptcy counsel, and, if
     applicable, counsel's firm, must have a Martindale-Hubbell rating
     of "A/V" and must satisfy the Commission in all other respects.

### Logistics of Band Reconfiguration

188. In the *NPRM,* the Commission acknowledged that any band
     restructuring proposal would require incumbents to relocate.[^499]
     We therefore sought comment on how to implement reconfiguration of
     the 800 MHz band with minimum disruption to incumbent licensees. We
     did not endorse or propose any specific transition plan, but
     instead sought comment on several proposals that would help inform
     our decision regarding relocation and which reflected our
     underlying goal that relocation plans should appropriately balance
     the interests of all licensees.

189. In the *NPRM,* the Commission sought comment on the best mechanism
     to collect and administer funds and to resolve disputes with
     respect to the relocation of public safety systems.[^500] The
     Consensus Parties recommend creation of a five member Relocation
     Coordination Committee (RCC) to oversee the relocation
     process.[^501] For example, the RCC would first prioritize the
     NPSPAC regions for relocation according to population and greatest
     incidence of interference.[^502] They also proposed a Planning
     Committee---separate from the RCC---to review each new relocation
     channel assignment to ensure that the relocated licensee would not
     cause or receive unacceptable co-channel interference on the new
     channel(s).[^503] The RCC certification of a relocation plan would
     trigger a mandatory nine-month negotiation period between affected
     licensees and Nextel.[^504] If an agreement were not reached by the
     end of the nine-month period, the parties would submit to binding
     arbitration by an RCC-established arbitration panel.[^505] The RCC
     would be certified as a frequency coordinator by the Commission
     and---after selecting channels for a relocated system and obtaining
     approval of the relevant frequency coordinator---would file the
     applications with the Commission. They also proposed cancellation
     of the licenses of any licensee that failed to relocate within
     thirteen months, absent special circumstances.[^506]

#### Transition Administrator

190. In the *NPRM,* the Commission sought comment on the best mechanism
     to collect and administer funds and to resolve disputes with
     respect to the relocation of public safety systems.[^507] No other
     party filed a proposal giving details of how its band plan would be
     implemented; although several commenting parties criticized the
     Consensus Parties implementation plan as excessively Nextel-centric
     and unduly complex.[^508] We are in general agreement with the
     parties who raised those issues. Although we fully appreciate the
     significant effort that band reconfiguration will entail, we
     believe the administrative structure proposed by the Consensus
     Parties would delay, rather than facilitate, timely completion of
     band reconfiguration. Moreover, we are sensitive to the comments of
     those parties who expressed concern about the potential conflict of
     interest inherent in the proposed RCC and questioned whether the
     Commission could legally grant the RCC the powers envisioned by the
     Consensus Parties.[^509]

191. Accordingly, we believe that using an independent individual or
     company, who, or which, will serve as a Transition Administrator
     subject to oversight by the Commission is the best approach for
     ensuring that band reconfiguration proceeds on schedule. The
     Transition Administrator may also serve to mediate disputes that
     may arise in the course of band reconfiguration.[^510] As
     contemplated by the Consensus Parties in their proposal for a RCC,
     Nextel will pay for the services of the Transition Administrator
     and staff as one of the transactional costs borne by Nextel in
     connection with band reconfiguration. We will follow a selection
     process similar to that suggested by the Consensus Parties; *i.e.,*
     the Transition Administrator will be an independent party with no
     financial interest in any 800 MHz licensee; and will be selected by
     a committee representative of 800 MHz licensees. We direct the
     following organizations to designate a representative to serve on
     the search committee for the Transition Administrator:[^511]

-   Nextel Communications, Inc.;

-   The Association of Public Safety Communications
    Officials-International;

-   The Industrial Telecommunications Association;

-   Southern LINC; and

-   United Telecom Council;

192. Should any of the organizations, *supra,* decline to designate a
     representative; the Commission will designate a substitute
     organization. The Public Safety and Critical Infrastructure
     Division of the Wireless Telecommunications Bureau is hereby
     delegated the authority to choose such substitute organization. The
     search committee shall convene within fifteen days of the date this
     *Report and Order* is released, and shall select the Transition
     Administrator within forty-five days of the date this *Report and
     Order* is released. The search committee should proceed by
     consensus; however if a vote on selection of a Transition
     Administrator is required, it shall be by a supermajority of the
     representatives of four of the organizations, *supra.* The search
     committee shall notify the Commission of its choice for Transition
     Administrator. This notification shall: (a) fully disclose any
     perceived potential conflicts of interest or appearance of
     conflicts of interest of the Transition Administrator or his or her
     staff; and (b) set out in detail the salary and benefits associated
     with each position.[^512]^10A^

193. On receipt of this notice regarding selection of a Transition
     Administrator, the Commission will issue a public notice to that
     effect. The Chief of the Public Safety and Critical Infrastructure
     Division is hereby delegated the authority to issue said Public
     Notice. During the course of the Transition Administrator's tenure,
     the Commission will take such measures as are necessary to ensure
     timely compliance with this *Report and Order*, including, should
     it become necessary, convening another search committee to choose a
     replacement Transition Administrator.

194. The Transition Administrator will serve both a ministerial role and
     a function similar to a special master in a judicial
     proceeding.[^513] In the latter role, the Transition Administrator
     may mediate any disputes that may arise in the course of band
     reconfiguration; or refer the disputant parties to alternative
     dispute resolution fora. Any dispute submitted to the Transition
     Administrator, or other mediator, shall be decided within thirty
     days after the Transition Administrator has received a submission
     by one party and a response from the other party. Any party
     thereafter may seek expedited non-binding arbitration which must be
     completed within thirty days of the Transition Administrator\'s, or
     other mediator\'s recommended decision or advice. The parties will
     share the cost of this arbitration.[^514] Should issues still
     remain unresolved they may be referred to the Chief of the Public
     Safety and Critical Infrastructure Division of the Wireless
     Telecommunications Bureau within ten days of the Transition
     Administrator\'s, or other mediator\'s recommended decision or
     advice. When referring an unresolved matter to the Chief of the
     Public Safety and Critical Infrastructure Division, the Transition
     Administrator shall forward the entire record on any disputed
     issues, including such dispositions thereof that the Transition
     Administrator has considered. Upon receipt of such record and
     advice, the Commission will decide the disputed issues based on the
     record submitted. The authority to make such decisions is hereby
     delegated to the Chief of the Public Safety and Critical
     Infrastructure Division of the Wireless Telecommunications Bureau
     who may decide the disputed issue or designate it for an
     evidentiary hearing before an Administrative Law Judge. If the
     Chief of the Public Safety and Critical Infrastructure Division of
     the Wireless Telecommunications Bureau decides an issue, any party
     to the dispute wishing to appeal the decision may do so by filing
     with the Commission, within ten days of the effective date of the
     initial decision, a Petition for *de novo* review; whereupon the
     matter will be set for an evidentiary hearing before an
     Administrative Law Judge. Parties seeking *de novo* review of a
     decision by the Wireless Telecommunications Bureau are advised
     that, in the course of the evidentiary hearing, the Commission may
     require complete documentation relevant to any disputed matters;
     and, where necessary, and at the presiding judge's discretion,
     require expert engineering, economic or other reports or testimony.
     Parties may therefore wish to consider possibly less burdensome and
     expensive resolution of their disputes through means of alternative
     dispute resolution.

195. The duties of the Transition Administrator will include, but not be
     limited to:

-   Obtaining estimates from licensees regarding the cost of
    reconfiguring their systems and ensuring that estimates contain a
    firm work schedule and other matters set forth in Appendix E-Annex
    E, *infra.* The Transition Administrator will retain copies of all
    estimates and make them available to the Commission on request.

-   Resolving disputes between Nextel and licensee on cost estimates for
    reconfiguring a system.

-   Issuing the Draw Certificate to authorize and instruct the Letter of
    Credit Trustee to draw down on the Letter of Credit to pay
    relocation costs in connection with reconfiguring a licensee's
    system.[^515] *See* Appendix E--Annex B2.

-   Establishing a relocation schedule on a NPSPAC region-by-region
    basis, prioritizing the regions on the basis of population.[^516]
    However, should a given region be encountering unusually severe
    amounts of unacceptable interference, that region may be moved up in
    priority. Any party disputing such a change in priority may refer
    the matter to the Chief of the Public Safety and Critical
    Infrastructure Division, who hereby is delegated the authority to
    resolve such disputes. The Transition Administrator may direct that
    adjoining regions be reconfigured simultaneously when conditions so
    require.

-   The Transition Administrator will coordinate relocation of a NPSPAC
    Region's NPSPAC channels with the relevant Regional Planning
    Committee(s) prior to commencing band reconfiguration in a NPSPAC
    Region.

196. Once band reconfiguration commences in a given NPSPAC Region, the
     Transition Administrator will serve primarily an oversight function
     as necessary to implement band reconfiguration. For example the
     Transition Administrator will:

-   Monitor the retuning schedule and resolve any schedule delays or
    refer same to the Public Safety and Critical Infrastructure Division
    for resolution.

-   Coordinate with adjoining NPSPAC Regions to ensure that interference
    is not being caused to their existing facilities from relocated
    stations.

-   Provide quarterly progress reports to the Commission in such detail
    as the Commission may require and include, with such reports,
    certifications by Nextel and the relevant licensees that relocation
    has been completed and that both parties agree on the amount
    received from the Letter of Credit proceeds in connection with
    relocation of the licensees' facilities. The report shall include
    description of any disputes that have arisen and the manner in which
    they were resolved. These quarterly reports need not be audited.

-   Provide to the Public Safety and Critical Infrastructure Division,
    on each anniversary of the effective date of this Report and Order,
    an audited statement of relocation funds expended to date, including
    salaries and expenses of Transition Administrator.[^517]

-   Facilitate resolution of disputes by mediation; or referral of the
    parties to alternative dispute resolution services.

197. The Transition Administrator may not serve as the repository of
     funds used in band reconfiguration, excepting such sums as Nextel
     may pay for the Transition Administrator's services. Moreover, the
     Transition Administrator will not be certified by the Commission as
     a frequency coordinator.

198. We envision the relocation process in a particular region unfolding
     as follows:

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1)  Nextel shuts down its General Category channels and relocates all
    non-Nextel General Category licensees.[^518] It temporarily shifts
    many of its operations to "green space" at 900 MHz.

2)  NPSPAC licensees relocate to six megahertz of spectrum in the former
    General Category space at Nextel's expense.

3)  Nextel relocates its systems from the green space and from the
    interleaved portion of the band into the vacated NPSPAC channels;
    surrendering its rights to spectrum below 817 MHz/862 MHz spectrum
    in the process.

4)  Any remaining relocations necessary to effect complete
    reconfiguration of the band in that region are made at Nextel's
    expense, e.g. moving public safety systems out of the Expansion
    Band.[^519]

We envision system relocation involving the following steps:

1)  The Transition Administrator notifies a licensee that its system
    needs to be relocated in order to complete band reconfiguration. The
    Transition Administrator will specify a replacement channel for each
    channel in the licensee's system that needs to be changed to a new
    channel.[^520]^17A^

2)  The licensee obtains an estimate of the cost to reconfigure its
    system and provides that estimate to the Transition Administrator.
    The submission to the Transition Administrator shall contain the
    licensee's certification that the funds requested are the minimum
    necessary to provide facilities comparable to those presently in
    use.

3)  The Transition Administrator will review the estimate---including an
    analysis to ensure that the estimate does not exceed the cost of
    providing comparable facilities. If the review indicates the need
    for additional support, or is otherwise deficient, the licensee will
    be so informed and will be required to furnish a revised estimate.

4)  The Transition Administrator will submit the estimate to Nextel,
    which will have the opportunity to review the details of the
    estimate and, if appropriate, dispute the estimate.

5)  The Transition Administrator will facilitate resolution of any such
    disputes, acting as an intermediary between the licensee and Nextel.
    We envision that all licensees will exercise good faith and we
    strongly encourage licensees to cooperate in resolving disputes so
    as not to unreasonably frustrate band realignment.[^521]

6)  Once Nextel's concurrence, which shall not unreasonably be withheld,
    has been obtained, the Transition Administrator will issue a Draw
    Certificate to the Letter of Credit Trustee who will draw down funds
    as appropriate from the letter of credit and disburse them, in
    accordance with the Transition Administrator's instructions, to the
    entity(ies) contracted to reconfigure the system (for example, the
    licensee, a local contractor and an equipment manufacturer---Nextel
    personnel will not be involved in reconfiguring a licensee's
    system.[^522])

7)  At the conclusion of system configuration the Transition
    Administrator will audit the amount expended and either issue a
    second Draw Certificate to the Letter of Credit Trustee to cover any
    reasonable expenditures reasonably agreed to by Nextel and the
    licensee that were not covered by the first Draw Certificate or
    direct the Letter of Credit Trustee to obtain reimbursement for any
    excess funds (with any disputes as to final amounts to be resolved
    following the dispute resolution procedures set forth in ¶ 194.

8)  The licensee begins operating on the new channel(s).

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199. We expect that the Transition Administrator, the Trustee appointed
     to administer the Letter of Credit, and Nextel will formalize the
     matters set forth herein in a contract, a draft of which shall be
     submitted to the Commission for review and approval prior to
     execution. Attached hereto as Appendix E Annex D is a
     non-exhaustive outline of provisions that the Commission would
     expect to be contained in such a contract.

200. In sum, we believe that reliance on the expertise of our existing
     frequency coordinators, together with our use of the services of an
     independent Transition Administrator is preferable to the Consensus
     Parties' proposed RCC and multiple committees.[^523] Moreover,
     given the detailed guidelines under which the coordinators and
     Transition Administrator will operate, coupled with the procedures
     for ongoing Commission review described *infra*, we conclude that
     Commission use of such expertise and services is well within our
     authority.[^524]

#### Scheduling and Implementation

201. In assigning oversight of the logistics of band reconfiguration to
     a Transition Administrator, we allow all parties involved in the
     relocation process a degree of flexibility that would not be
     achievable if we set rigid rules for the relocation process.
     However, we do impose the following obligations on the parties:

-   All parties, including Nextel, are held to a high standard of utmost
    good faith in their transactions with Nextel, or its designee, the
    Transition Administrator, other licensees, and the Commission. In
    particular, and without limiting the generality of the foregoing
    obligation, representations made to the Transition Administrator
    will be held to the same standard of truth and candor as
    representations made to the Commission.

-   Within thirty days of the Commission approval of the Transition
    Administrator, the Transition Administrator will provide the
    Commission with a schedule detailing when band reconfiguration shall
    commence for each NPSPAC Region. The plan should also detail---by
    NPSPAC Region---which relocation option each non-Nextel ESMR
    licensees has chosen.[^525] The Chief of the Public Safety and
    Critical Infrastructure Division of the Wireless Telecommunications
    Bureau is hereby delegated the authority to finalize and approve
    such a plan. The schedule shall provide for completion of band
    reconfiguration in no more than thirty-six months following the
    release of a Public Notice announcing the start date of
    reconfiguration in the first NPSPAC region. In addition, as an
    interim benchmark, the schedule must provide for retuning of
    Channels 1-120 in twenty NPSPAC Regions within eighteen months.
    Relocation will commence according to the schedule set by the
    Transition Administrator but all systems must have commenced
    reconfiguration within thirty months of the release of a Public
    Notice announcing the start date of reconfiguration in the first
    NPSPAC region.

-   The schedule shall specify a start date for the reconfiguration of
    each Region. Thirty days before the start date, the Commission will
    issue a Public Notice initiating a three-month voluntary negotiation
    period between Nextel and all relocating incumbents. Nextel and
    relocating incumbents may agree to conduct face-to-face negotiations
    or either party may elect to communicate with the other party
    through the Transition Administrator. The Chief of the Public Safety
    and Critical Infrastructure Division of the Wireless
    Telecommunications Bureau is hereby delegated the authority to issue
    such Public Notices. The release of a Public Notice announcing the
    start date of reconfiguration in the first NPSPAC region starts the
    thirty-six month band reconfiguration period.

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-   If voluntary negotiations do not yield an agreement by the date
    specified in the Commission Public Notice, the parties are required
    to enter into three-month mandatory negotiation period and shall
    have obligations patterned after those specified in our *Upper 200
    SMR* and *Microwave Cost-Sharing* proceedings.[^526] Again, the
    parties may agree to conduct face-to-face negotiations or elect to
    communicate through the Transition Administrator. The Transition
    Administrator may schedule mandatory settlement negotiations and
    mediation sessions and the parties must conform to such schedules.

-   If, after the three-month mandatory negotiation period, the parties
    have not reached an agreement, disputed issues shall be identified
    in writing by both parties, and the matter referred to the
    Transition Administrator who shall mediate an agreement, or refer
    the parties to mediation. If disputed issues remain thirty days
    after the end of the mandatory negotiation period, the Transition
    Administrator shall forward the record to the Chief of the Public
    Safety and Critical Infrastructure Division, together with advice on
    how the matter(s) may be resolved. The Chief of the Public Safety
    and Critical Infrastructure Division is hereby delegated the
    authority to rule on disputed issues, *de novo*. Any party wishing
    to appeal the decision of the Chief of the Public Safety and
    Critical Infrastructure Division may avail themselves of an
    evidentiary hearing as discussed in ¶ 194 *supra.*

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-   In the alternative, parties who are unable for technical reasons or
    otherwise to relocate according to the schedule may petition the
    Commission for a waiver of the relocation obligation. Such a waiver
    would only be granted on a strict non-interference basis. Moreover,
    there would be a high burden to surmount for any party seeking a
    waiver of this obligation.

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-   All parties are charged with the obligation of utmost good faith in
    the negotiation process.[^527] If any licensee fails to negotiate in
    good faith, its facilities may be involuntarily relocated and its
    license modified accordingly by the Commission. We hereby delegate
    to the Wireless Telecommunications Bureau the authority, pursuant to
    Section 316 of the Act,[^528] to modify licenses under such
    circumstances.

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-   All relocating licensees shall be relocated to comparable
    facilities. Comparable facilities are those that will provide the
    same level of service as the incumbent's existing facilities, with
    transition to the new facilities as transparent as possible to the
    end user.[^529] Specifically, (1) equivalent channel
    capacity;[^530] (2) equivalent signaling capability,[^531] baud rate
    and access time; (3) coextensive geographic coverage;[^532] and (4)
    operating costs.[^533] If the reconfiguration of a licensee will
    entail a significant interruption of service during the relocation
    process, Nextel will fund the installation of a redundant
    system.[^534]

-   Absent agreement between parties, the Transition Administrator will
    be responsible for determining the information that relocating
    incumbents must supply in support of a relocation agreement.

202. In setting the above framework for implementing band
     reconfiguration, we have considered but rejected some of the
     Consensus Parties' detailed proposals, *e.g.* a rule incorporating
     the lengthy list of equipment that incumbents would be required to
     submit to Nextel within a time certain.[^535] We have done so with
     the knowledge that relocation of some systems will not require
     information to that degree of detail, and that some degree of
     flexibility will better serve the parties. The overriding
     requirement of our framework is the good faith requirement. While
     parties must first bring disputes over the utmost good faith
     requirement to the Transition Administrator, disputing parties may
     subsequently bring breaches of the good faith requirement to the
     Commission and similarly bring there, any instance in which a party
     frivolously or without substantiation, charges another party with
     failure to negotiate in good faith.[^536] As the Commission has
     noted previously there is no "one size fits all" rule that can be
     applied to the good faith issue, which is largely fact-dependent
     and likely to vary from case-to-case.[^537]

203. We also have heeded the concern of some commenting parties that
     information relative to band reconfiguration could be sensitive
     from a security standpoint. We encourage, but do not require, the
     parties and the Transition Administrator to exercise discretion in
     disclosing any security-sensitive information; but note that there
     is a balance between the public's need to know and the need to
     withhold sensitive information. Thus, for example, the Commission
     has struck the balance in favor of public disclosure in making its
     Universal Licensing System (ULS) data available on the Internet. A
     large amount of information on existing 800 MHz facilities is
     contained in the ULS and the ULS also will contain information on
     the license modifications necessary to implement band
     reconfiguration. Similarly, we are not persuaded by the argument
     that furnishing information necessary for band reconfiguration
     would somehow result in a competitor gaining access to information
     it could use to its advantage.[^538] We do not foresee any party
     having access to competitively-sensitive information such as the
     identity and other details of an incumbent's customers.

####  Freeze on the Acceptance of 800 MHz Applications

204. The Consensus Parties requested that we freeze the acceptance of
     applications for 800 MHz public safety, non-cellular SMR and
     Business and Industrial/Land Transportation authorizations pending
     band reconfiguration.[^539] We strongly agree with the parties who
     point out the adverse effects such a three-year freeze could have
     on their companies' business plans.[^540] Nonetheless, we see no
     alternative to a freeze if band reconfiguration is to be timely
     accomplished. There is a middle ground, given the incremental
     implementation of band reconfiguration Region by Region. Therefore
     we will freeze 800 MHz applications for a region when we issue the
     *Public Notice* announcing the date when voluntary negotiation of
     relocation agreements must be concluded*.* This freeze will last
     until thirty working days after the completion of mandatory
     negotiations for a given Region.[^541] However, such a freeze would
     not include the modification applications filed in order to
     implement band reconfiguration. Moreover, we will do everything
     possible to minimize the effect the incremental freezes may have on
     incumbent licensees and new applicants, and direct the Transition
     Administrator to make accommodations in the implementation plan
     that will avoid such adverse effects. Moreover, we will not freeze
     the acceptance of modification applications that do not change the
     frequency or expand the coverage area of existing systems. Finally,
     we remind potentially affected parties of the availability of the
     Commission's waiver process and Special Temporary Authorizations
     when needed in order to avoid prejudice to any applicant during the
     band reconfiguration process.

#### Tolling of 800 MHz Site-Based Construction Requirements

205. Since the 800 MHz band reconfiguration process will take place
     incrementally in fifty-one geographic regions, some site-based
     incumbent 800 MHz licensees may face construction deadlines prior
     to their being scheduled for relocation.[^542] To resolve this
     issue we will allow licensees which are ready to construct and
     waiting only for assignment of their new channel to submit a waiver
     request demonstrating that they have commenced construction, *e.g.*
     have on hand, or have placed a firm order for, non
     frequency-sensitive equipment, have erected a tower, obtained a
     commitment for tower space, etc. 

206. If the Transition Administrator has specified said licensee a new
     channel and the licensee can immediately use the channel without
     causing interference to other systems, it must construct within its
     currently applicable deadline.  Otherwise, the licensee may submit
     a waiver request for extension of the construction period
     until: (a) six months after the Transition Administrator has
     specified it a channel, if that channel can be used, in advance of
     band reconfiguration in the region, without causing interference;
     or (b) if its channel cannot be activated without interference to
     other systems, six months after the completion of band
     reconfiguration in its NPSPAC region.  The Commission's waiver
     rules[^543] will apply and the waiver requests will be evaluated on
     a good cause basis *e.g.* on a showing by the licensee that it
     would have constructed but for the fact that band reconfiguration
     would affect its proposed facilities. Licensees whose construction
     deadline passed before the release of this *Report and Order*, and
     which do not have an extension of time request already pending,
     will have a particularly high evidentiary standard to meet when
     they submit a waiver request. These provisions also apply to EA
     licensees facing construction deadlines pursuant to Section 90.685
     of the Commission's Rules.[^544]

### Disposition of Nextel's 900 MHz SMR and 700 MHz Guard Band Block B Spectrum

207. The Consensus Plan contemplated that, at the end of band
     reconfiguration, Nextel would relinquish its rights to 900 MHz SMR
     spectrum as an incentive for non-cellular SMR and B/ILT licensees
     to vacate 800 MHz band channels on a "two for one" basis, *i.e.*
     each 800 MHz licensee that relocated to 900 MHz spectrum would get
     rights to twice the spectrum it occupied in the 800 MHz band.[^545]
     We are not persuaded that Nextel's abandoning service to the public
     in the 900 MHz band in order to provide non-cellular SMR and B/ILT
     licensees with 900 MHz spectrum for which there is no demonstrated
     need is in the public interest. We are further dissuaded from
     accepting Nextel's proffer of relinquishment of its 900 MHz
     spectrum rights because Nextel likely will need to use this
     spectrum to accommodate subscriber demand during 800 MHz band
     reconfiguration; and, possibly thereafter.[^546] Even if the 900
     MHz spectrum went to public safety, there are no \"rebanding\"
     benefits to using this spectrum for public safety because it is
     isolated from the consolidated block of 800 and 700 MHz spectrum
     that will be available for public safety after rebanding. In this
     regard, 900 MHz can be distinguished from the 700 MHz Guard Band
     spectrum, which could be added to the consolidated block if we
     decided to make the 700 MHz Guard band spectrum available for
     public safety use. From an interference perspective, our decision
     to permit operational flexibility (*i.e.* cellular architecture) in
     the 900 MHz band effectively precludes use of 900 MHz by public
     safety at this time.[^547] While public safety would benefit from
     B/ILT and SMR licensees relocating to 900 MHz as it would provide
     "green-space" in the 800 MHz band, to the extent Nextel wants to
     offer 900 MHz spectrum to B/ILT on a 2-for-1 basis, as it has
     proposed, it can do so through private transactions without
     returning this spectrum to the Commission.

208. As noted at paragraph 61 *supra*, Nextel also has proposed to
     surrender certain 700 MHz guard band Block B spectrum, which it
     holds in 40 markets; and recommends that the Commission rededicate
     that spectrum to public safety use. We note that the 700 MHz Guard
     Band's use for public safety applications, as proposed, is
     problematic. The 700 MHz Guard Band spectrum was established
     specifically to buffer 700 MHz public safety systems from
     interference by commercial systems operating in the Upper 700 MHz
     band. It would be anomalous in our view, to place public safety
     systems in the very interference-prone spectrum that we established
     to protect public safety.

209. We nonetheless will accept Nextel's 700 MHz Guard Band spectrum,
     but decline to redesignate it to public safety use at this time.
     Instead, we will consider the ultimate disposition of this spectrum
     in a future rule making proceeding. In this connection, we note
     that there are several potential public safety and public interest
     benefits that may be realized by a redesignation or reassignment of
     the 700 MHz Guard Band spectrum that Nextel offers to relinquish.
     However, we do not believe that the ultimate decision on how best
     to use the surrendered 700 MHz spectrum should be resolved in the
     context of this *Report and Order*. Rather, any such decision
     should rest on a record developed in a subsequent rule making
     proceeding. There, we may consider such issues as whether there are
     public safety applications that could exist satisfactorily in such
     spectrum consistent with our statutory authority; whether there is
     a demand for additional B/ILT spectrum that would be satisfied by
     access to the 700 MHz Guard Band spectrum; whether providing B/ILT
     licensees access to such spectrum would create opportunities for
     public safety to get access to additional 800 MHz band frequencies;
     whether there are other, new uses that may arise; and whether the
     700 MHz Guard Band spectrum should be re-auctioned.

## Appropriate Compensation for Band Reconfiguration

210. In the *NPRM*, the Commission discussed the "replacement spectrum"
     construct advanced by Nextel in its White Paper, *i.e.,* that if
     Nextel were to pay the cost of band reconfiguration and vacate
     certain 700 MHz, 800 MHz and 900 MHz spectrum, it should be
     compensated on a "megahertz for megahertz" basis with spectrum
     nominally in the 2 GHz range. We sought comment on the relative
     value of the spectrum that Nextel proposed to surrender vs. the
     value of its desired replacement spectrum. In the Consensus Plan,
     Nextel proposed that, as compensation for its relinquishment of
     700, 800 and 900 MHz spectrum rights and its commitment to pay 800
     MHz incumbent relocation costs, it should receive a nationwide
     license for ten megahertz of spectrum in the 1.9 GHz band.[^548]
     Other parties contend that the value of the spectrum rights Nextel
     seeks substantially exceeds the value of spectrum rights it has
     offered to give up, and therefore would constitute an unwarranted
     windfall to Nextel.

211. We conclude that it is in the public interest to compensate Nextel
     for the surrendered spectrum rights and costs it will incur as a
     result of band reconfiguration. By facilitating band
     reconfiguration, giving up spectrum rights and bearing the
     financial burden of the relocation process for all affected
     incumbents, we believe that Nextel has provided the quickest, most
     comprehensive and most cost-effective means of solving the 800 MHz
     public safety interference problem of all the alternatives
     presented or available to the Commission. In light of these
     substantial public interest benefits, we conclude that it is
     appropriate for Nextel to receive equitable compensation in the
     form of spectrum rights to the 1910-1915 MHz and 1990-1995 MHz
     bands, conditioned on its meeting the obligations imposed by this
     *Report and Order*. We specifically reject the proposal by some
     parties to grant Nextel rights to spectrum in the 2.1 GHz band as
     opposed to the 1.9 GHz band.[^549] Accordingly, we take those steps
     necessary to designate the 1.9 GHz spectrum for Nextel's use, and
     to provide for relocation and reimbursement by Nextel of incumbent
     users of the band.

212. We are sensitive to the argument made by several parties that
     granting Nextel spectrum rights in the 1.9 GHz band could result in
     an undeserved "windfall" to Nextel. To ensure that Nextel is
     treated equitably but does not realize any windfall gain, we
     provide for compensation of Nextel on a "value for value" basis.
     Under this approach, we first make a determination of the market
     value of the 1.9 GHz spectrum, based on valuation data provided by
     the parties and on our own analysis. Second, we provide that as
     offsets against this value, Nextel will receive credit for (1) the
     net value of the spectrum rights that Nextel is relinquishing to
     public safety, CII, and other 800 MHz licensees, (2) the actual
     cost of 800 MHz band reconfiguration (including both Nextel's costs
     to support relocation by other licensees and Nextel's own
     relocation costs), and (3) costs incurred by Nextel to clear the
     1.9 GHz band, less any reimbursed expenses. Third, because we do
     not know at present what the costs of 800 MHz relocation and 1.9
     GHz band-clearing will ultimately be, we provide for an accounting
     at the end of the transition period to determine the amount of
     these offsets and balance them against the value of Nextel's 1.9
     GHz spectrum rights as determined by this *Report and Order.*[^550]

### Public Interest Considerations for Granting Spectrum Rights to Nextel

213. We recognize that the granting of valuable spectrum rights to
     Nextel---or to any party---without recourse to the competitive
     bidding process is highly unusual. However, given the extraordinary
     circumstances present in this proceeding, including issues
     involving the safety of life and property---and absent harm to
     other interests of the public---we are convinced that our decision
     in this regard is consistent with the public interest. In reaching
     this decision, we are mindful that Congress has expressed a strong
     statutory preference in the vast majority of circumstances for use
     of auctions to assign spectrum rights. However, Congress has also
     established a clear exception for public safety services that
     protect life and property, exempting them from the requirement that
     they obtain spectrum on the auction block. We believe the same
     rationale applies to our decision here, where we are reconfiguring
     spectrum for non-economic reasons to benefit public safety and the
     public as a whole.[^551] This is not to say that economic factors
     are irrelevant---we regard economic analysis as germane to the
     question of whether our action today could inadvertently impair the
     public's access to affordable wireless communications services. We
     believe the record conclusively demonstrates that there will be no
     such unintended consequences.

214. Nevertheless, we reject the claim that assigning Nextel spectrum
     rights in another band as part of this comprehensive solution is
     unfair because Nextel is receiving "free" spectrum while its
     competitors must bid for spectrum at auction. First, given the
     obligations we place on Nextel in this *Report and Order*, and the
     mechanism we have established to prevent an undue windfall, its
     access to other spectrum is hardly "free." Second, Nextel is taking
     the very substantial risk that it could end up incurring costs that
     are greater than the value of the spectrum rights it receives. This
     is because we have not merely rubber-stamped the Consensus Parties'
     proposal, but have imposed significant obligations beyond what the
     parties proposed to ensure that the public receives full benefit in
     exchange for making other spectrum available to Nextel. Under this
     restructured solution, we are requiring Nextel to assume the
     following substantial---and to a large degree
     unpredictable---risks:

-   Nextel must complete reconfiguration of the 800 MHz band regardless
    of the ultimate cost. Although Nextel estimated it will cost up to
    \$850 million to reconfigure the 800 MHz band, other parties contend
    that the actual cost will be far higher, *e.g.* CTIA claims that 800
    MHz band reconfiguration cost could exceed \$3 billion.[^552] Thus,
    we are requiring Nextel to assume the risk that the cost of 800 MHz
    band reconfiguration could exceed any value Nextel ultimately
    realizes from the other spectrum.

-   In order to ensure that the 800 MHz band will be reconfigured, we
    are requiring Nextel to obtain a \$2.5 billion letter of credit to
    both fund the reconfiguration and to serve as insurance against a
    Nextel default, including bankruptcy. The cost of such a letter of
    credit is substantial and was not factored into the Consensus
    Parties' estimates.

-   Should experience as band reconfiguration progresses show that the
    ultimate cost is likely to exceed even the \$2.5 billion sum,
    *supra,* Nextel may be required to obtain additional letters of
    credit.[^553] Again, the financial risk associated with such
    additional letters of credit would be borne by Nextel.

-   Nextel must meet the interim benchmark of the retuning Channels
    1-120 in twenty NPSPAC Regions.[^554] If Nextel fails to meet the
    interim benchmark, for reasons that Nextel, with the exercise of due
    diligence, could reasonably have avoided, the Commission may
    consider and exercise any appropriate enforcement action within its
    authority, including assessment of monetary forfeitures or, if
    warranted, license revocation.[^555]

-   Nextel must complete band reconfiguration within thirty-six months.
    If Nextel fails to meet this benchmark, for reasons that Nextel
    could reasonably have avoided, the Commission will determine whether
    forfeitures should be imposed and/or whether Nextel licenses,
    including, but not limited to, its 1.9 GHz licenses, should be
    revoked.

215. We also consider the assignment of spectrum rights to Nextel to be
     necessary to achieve our paramount goal of abating interference to
     800 MHz public safety systems. As discussed in ¶ 61 *supra*, after
     more than two years spent examining a record of over 2200 filings,
     many of them incorporating detailed technical and economic studies,
     we are convinced that 800 MHz band reconfiguration is the only
     reliable and affordable means of achieving this goal. Moreover,
     only the Consensus Parties have proposed a band reconfiguration
     mechanism that guarantees public safety and other 800 MHz licensees
     the funds necessary to relocate themselves out of their current
     inter-leaved operational environment. We do not believe that our
     solution---which is adapted from the Consensus Parties'
     proposal---can be legally or equitably imposed without a
     compensatory assignment of spectrum rights to Nextel. We also note
     that many of Nextel's cellular competitors conduct their operations
     on spectrum they acquired at no cost, and that some of these same
     parties will benefit---at no cost to themselves---from reduced
     interference mitigation costs as a result of the band configuration
     carried out at Nextel's expense.

216. In sum, although our determination may not reflect complete
     financial exactitude, it is firmly grounded in our statutory
     authority as well as our agency expertise. The public interest that
     we are required to uphold often rests on such unquantifiable
     imperatives as those recited in the preamble of our organic
     statute; that we exist to regulate communications "for the purpose
     of the national defense, for the purpose of promoting safety of
     life and property."[^556] Thus, we find utmost consistency between
     our statutory charge and the certain value of Nextel's unique
     ability to abate the unacceptable interference that hinders our
     Nation's first responders in their supremely difficult task of
     defending against terrorism and ensuring the safety of our life and
     property. We believe the balance we have struck here is fair and
     equitable.

### Choice of 1.9 GHz Replacement Spectrum

217. As discussed in the *NPRM*, we are applying two basic criteria in
     selecting replacement spectrum for Nextel, and in considering the
     proposal in the Consensus Plan that Nextel be granted spectrum
     rights at 1910-1915/1990-1995 MHz: (1) the segment selection would
     have to be consistent with the highest and best possible use of the
     spectrum; and (2) there would have to be an acceptable plan for
     relocating incumbent licensees or reimbursing other users, *e.g.*
     BAS, FS licensees and UPCS.[^557] In making our selection, we also
     must decide whether to redesignate 1910-1915 MHz to permit the
     provision of licensed fixed and mobile services, an issue noticed
     in ET Docket 00-258. Based on the record evidence, in WT Docket
     02-55 and in ET Docket 00-258, we are assigning the
     1910-1915/1990-1995 MHz band segment as paired replacement spectrum
     for Nextel for the provision of licensed Fixed and Mobile services
     on a primary basis. In so doing, we have carefully balanced the
     competing recommendations for use of this band segment.[^558] We
     have determined that the need to facilitate the rebanding to remedy
     interference to 800 MHz public safety and CII communications
     systems, now and in the future, and to restore spectrum capacity
     lost by Nextel in the course of band reconfiguration, far outweighs
     the benefits of other potential use of this 1.9 GHz spectrum.[^559]
     We find that providing replacement spectrum rights for Nextel is a
     *sine qua non* for elimination of unacceptable interference in the
     800 MHz band.[^560]

218. In several recent *ex parte* filings in this proceeding, CTIA
     argues that if the Commission is to award replacement spectrum
     rights to Nextel as part of this order, it should select spectrum
     in the 2.1 GHz band rather than the 1.9 GHz spectrum proposed by
     the Consensus Parties.[^561] CTIA points out that Nextel in its
     2002 White Paper originally identified 2.1 GHz spectrum as
     potential replacement spectrum. CTIA further contends that the 2.1
     GHz band is sufficiently comparable to the 1.9 GHz band that it
     would be suitable spectrum for Nextel's needs, although it may be
     slightly lower in value.[^562] In response, Nextel contends that
     2.1 GHz would not be suitable replacement spectrum because of
     technical and operational deficiencies in comparison to 1.9
     GHz.[^563]

219. We conclude that the record does not support substituting 2.1 GHz
     for 1.9 GHz as proposed by CTIA. We recognize that the Nextel White
     Paper identified 2.1 GHz as a potential replacement band, and that
     the Commission sought comment on this and other potential bands in
     the NPRM. However, when the Consensus Parties filed their initial
     proposal in August 2002, they specifically identified spectrum in
     the 1.9 GHz band as the proposed replacement spectrum for Nextel.
     During the comment and reply period, numerous commenters debated
     the Consensus Parties' proposal to use 1.9 GHz, but no commenter
     proposed further consideration of 2.1 GHz as an alternative or
     provided information regarding the characteristics or suitability
     of the band. CTIA's proposal to consider substituting 2.1 GHz for
     1.9 GHz was not made until more than two years after we initiated
     this proceeding. Although several additional *ex parte* submissions
     have been filed in response to the CTIA proposal since then, we
     find that they have primarily raised additional issues and
     questions that would require further development of the record to
     resolve.

220. For example, Nextel cites a number of differences between 2.1 GHz
     and 1.9 GHz that Nextel contends significantly reduce the former's
     comparative utility and value. Nextel contends that developing 2.1
     GHz subscriber equipment will be time-consuming and costly because
     it cannot readily be adapted from existing equipment designs,
     whereas existing PCS equipment can be adapted quickly with only
     minor changes to operate in adjacent 1.9 GHz spectrum.[^564] Nextel
     also points to different incumbency and band-clearing issues in the
     two bands, particularly the presence of fixed microwave incumbents
     in the 2.1 GHz band (some of them licensed to Nextel's
     competitors), which it contends will lead to greater cost and more
     uncertain time frames for clearing the band in comparison to
     1.9.[^565] CTIA contends that these differences do not have as
     significant an impact on the value of 2.1 GHz as Nextel contends,
     or that if they do lower the value of 2.1 GHz in comparison to 1.9
     GHz, this merely serves to reduce the risk that Nextel will receive
     a windfall.[^566] However, neither CTIA nor any other party has
     presented additional data or analysis to support these
     contentions.[^567]

221. We believe that Nextel has raised legitimate questions with respect
     to technical and operational differences between the 2.1 GHz band
     and the 1.9 GHz band.[^568] However, because of the late-developed
     and limited nature of the record regarding the 2.1 GHz band, we
     lack sufficient information from which to draw conclusions on how
     these differences might affect the relative suitability or value of
     the 2.1 GHz band. Therefore, further consideration of this option
     would require additional development of the record, which would
     significantly delay action in this proceeding. Given the already
     lengthy nature of this proceeding, and the urgency of the public
     safety interference problem we are addressing, such delay would not
     be in the public interest. In contrast to the limited record on 2.1
     GHz, the record regarding the 1.9 GHz band is well-developed, and
     we are satisfied based on this record that awarding 1.9 GHz
     spectrum rights to Nextel, subject to the conditions and safeguards
     of this order, is fully consistent with our public interest goals
     and obligations. Accordingly, we see no reason to delay our
     decision to gather additional information on an uncertain
     alternative.

222. We also do not believe that issuing Nextel a bidding credit or
     auction discount voucher for unspecified future spectrum is an
     acceptable alternative to awarding it 1.9 GHz spectrum
     rights.[^569]^ ^ We recognize that Nextel may need to apply
     revenues derived from 1.9 GHz service to meet its obligation to
     timely complete 800 MHz band reconfiguration.  It can do so only if
     it is afforded timely and certain access to 1.9 GHz spectrum rights
     in exchange for vacating certain 800 MHz spectrum and assuming the
     cost of 800 MHz band reconfiguration.  Reconfiguration of the 800
     MHz band is essential to our goal of timely abating unacceptable
     interference to public safety, CII and other 800 MHz systems. 
     Given the unique facts of this case, there is an inextricable
     connection between quick abatement of unacceptable 800 MHz
     interference and Nextel's quick access to additional spectrum. 
     Neither a bidding credit nor an auction discount voucher would
     assure timely and certain access to the needed additional spectrum
     or the associated revenue.

###  Assignment of Spectrum Rights at 1.9 GHz to Nextel

223. We here take the necessary actions to assign to Nextel a ten-year
     license to the 1910-1915 MHz and 1990-1995 MHz bands. For the
     reasons described in detail below, we take action in ET Docket No.
     00-258 to redesignate the 1910-1915 MHz band for licensed Fixed and
     Mobile services, to be used for AWS, and to pair that spectrum with
     the 1990-1995 MHz band. For the public interest reasons described
     above, we here also assign to Nextel a ten-year license by taking
     the necessary action in WT Docket No. 02-55. In light of this
     redesignation and assignment, we then adopt a UTAM reimbursement
     plan, and discuss how Nextel, as a new entrant, will participate in
     our existing relocation procedures for the 1990-2025 MHz band (in
     ET Docket No. 95-18).

#### Redesignation of the 1910-1915 MHz Band

224. We here redesignate the 1910-1915 MHz Band for licensed Fixed and
     Mobile services for AWS use on a primary basis, as opposed to
     continuing to dedicate this five megahertz band to unlicensed PCS
     or providing for an alternative licensed allocation. We also
     consider and deny various pending Petitions for Waiver and
     Petitions for Rulemaking that would instead have us waive or modify
     our current UPCS rules that apply to 1910-1915 MHz.

225. *Redesignation.* In the *AWS Third NPRM*, we sought comment as to
     whether we should redesignate all or a portion of the 1910-1930 MHz
     band, which is currently designated for UPCS, for licensed fixed
     and mobile services. Many commenting parties to the *AWS Third
     NPRM* endorse the introduction of higher power licensed services
     into all or a portion of the band. For example, Ericsson states
     that by allocating the spectrum at 1910-1915 MHz as part of a
     paired band the Commission can increase the value of this spectrum
     by putting it to a higher-value use. Ericsson predicts that such a
     redesignation, in conjunction with regulation pursuant to the Part
     24 rules we have used for Broadband PCS, are likely to promote
     industry investment in the band, promote competition, and foster
     technological innovations in the 1910-1915 MHz band.[^570]
     Commenting parties also assert that the 1910-1920 MHz band, or a
     portion thereof, would be best utilized for new and innovative
     services or as relocation spectrum for existing services. For
     example, Nextel states that it should be assigned rights to a
     portion of the spectrum (1910-1915 MHz) as replacement spectrum in
     conjunction with its Consensus Plan for the 800 MHz
     realignment.[^571] Nextel reiterated its contention that relocating
     to this band from the public safety band at 800 MHz will help
     resolve public safety interference in the private land mobile bands
     and can be implemented without causing harmful interference to
     adjacent Broadband PCS operations. As another option, commenting
     parties including CTIA and Verizon assert that rights to the
     1910-1915 MHz band should be allocated for PCS-like services, as
     part of a paired block.[^572] Proponents of this redesignation also
     state that it would provide efficient use of spectrum, improve
     global harmonization of spectrum, and achieve economies of scale.
     Finally, proponents of MDS state the 1910-1916 MHz band (as part of
     a pairing with the 1990-1996 MHz band) would provide suitable
     replacement spectrum rights for MDS operations in the 2.1 GHz
     band.[^573] We note that many of the commenting parties who endorse
     high-power use of the 1910-1915 MHz band also discuss the extent to
     which we could reduce the existing separation between the Broadband
     PCS bands at 1850-1910 MHz and 1930-1990 MHz without causing
     harmful interference to existing Broadband PCS operations or
     requiring the use of filters, power reduction, or other protective
     measures that would increase the cost of deploying new high-powered
     licensed systems within the 1910-1930 MHz band or otherwise limit
     its usefulness.[^574] Generally, the commenting parties supporting
     reallocating this five megahertz portion for high-power operations
     also state that it would be feasible to leave a fifteen megahertz
     separation between Broadband PCS bands without causing
     mobile-to-mobile and base-to-base interference.[^575]

226. Rather than redesignate the 1910-1920 MHz band for new licensed
     mobile services, some commenting parties state that isochronous
     UPCS should be redesignated for use throughout the whole UPCS band.
     For example, UTAM and Peñasco Valley Telephone Cooperative (PVT)
     state that the public interest supports retaining the entire
     1910-1930 MHz band for UPCS with technical modifications to enable
     isochronous devices to use the asynchronous band.[^576] Commenting
     parties state that retaining this ten megahertz of spectrum for
     unlicensed use would both maintain an adequate separation between
     the licensed PCS mobile and base transmit bands and meet the
     growing demands for UPCS devices.[^577] Specifically, ICO Global
     Communications (ICO) and Motorola indicate that the growing demand
     for UPCS devices and need for more isochronous UPCS spectrum
     supports the expansion of isochronous spectrum.[^578] JSM
     Electronics, Inc., and UTStarcom have proposed use of the 1910-1915
     MHz spectrum for the deployment of community wireless network
     systems.[^579] We also note that some commenting parties ask that
     we extend isochronous UPCS use to an additional five megahertz in
     the 1915-1930 MHz band, particularly in the event that we
     redesignate the 1910-1915 MHz band segment. Proponents of this
     option claim that isochronous UPCS should be extended because the
     current asynchronous designation has not resulted in service,
     continued low power (UPCS) use would reduce potential interference
     to high power adjacent band Broadband PCS licensees, and demand
     exists to expand unlicensed voice applications beyond the existing
     ten megahertz.[^580] Siemens, for example, suggests that by
     extending isochronous UPCS use to the 1915-1920 MHz band and
     implementing several technical changes to the Rules, the Commission
     could allow for the introduction of products using DECT technology
     into the United States.[^581]

227. Based on the record, we conclude that the public interest would be
     best served by re-designating five megahertz of spectrum in the
     1910-1915 MHz band for licensed Fixed and Mobile services on a
     primary basis to support the types of high-powered mobile
     applications associated with AWS, Broadband PCS expansion, and
     Nextel's mobile operations. We note that there is strong support
     for such a designation in the record, and we agree with those
     parties that assert that such a designation will promote efficient
     use of the spectrum, allow for the rapid introduction of high-value
     services, and otherwise serve the public interest.

228. We find that such a designation is preferable to continued
     unlicensed uses of the band. Even if the demand for isochronous
     devices is growing or similar unlicensed voice applications (such
     as those associated with community wireless networks) could be
     deployed in the band, we cannot conclude that such use would be
     preferable to the types of higher powered licensed applications
     that the band could support. The proven public demand for licensed
     mobile services and the need to provide additional spectrum to
     support their continued deployment leads us to conclude that
     designation of this spectrum to licensed Fixed and Mobile services
     will allow us to put this spectrum to a higher use than it can
     serve as unlicensed spectrum. Moreover, no commenter has suggested
     that asynchronous applications for the band will be developed or
     deployed in the near future and those parties that promote expanded
     voice applications in the band would only offer deployment in
     limited geographic areas or urban locations where the 1920-1930 MHz
     band is already put to high use. By contrast, the redesignation of
     this band to licensed use would promote the rapid and widespread
     introduction of services into spectrum that heretofore has lain
     fallow.

229. We note that by assigning these spectrum rights to Nextel we
     preclude other AWS-like use, on which we sought comment in the *AWS
     Third NPRM*, including expansion of the existing Broadband PCS
     bands and allocation of this spectrum to MDS as replacement
     spectrum. However, such use does not offer us the ability to
     resolve the critical public safety issues that we will be able to
     address by assigning the spectrum to Nextel.[^582] Also, we note
     that the proposal by MDS proponents to redesignate the 1910-1916
     MHz band paired with the 1990-1996 MHz band as replacement spectrum
     for MDS channels 1 and 2 has been rendered moot by our recent
     decision in which we established a relocation plan for those MDS
     channels in conjunction with the restructuring of the 2.5 GHz
     band.[^583]

230. Finally, we note that while we are re-designating the 1910-1915 MHz
     band segment for Fixed and Mobile services, we do not address the
     1915-1920 MHz band segment at this time. Commenting parties
     generally concur that Broadband PCS mobile and base transmit bands
     will be able to continue to operate with a duplexer gap of fifteen
     megahertz without causing interference to each other. Because we
     are not modifying the existing designation for the 1915-1920 MHz
     band, we need not consider at this time those comments that discuss
     whether or how we could preserve an adequate separation gap between
     the Broadband PCS bands if we were to redesignate spectrum above
     1915 MHz for high-power licensed services. Furthermore, we are
     retaining the option to, *inter alia*, use the 1915-1920 MHz band
     for AWS use or in conjunction with an expansion of our UPCS rules
     to allow for expanded voice-based applications, but will address
     these matters in a subsequent action.

231. Accordingly, we find ample support in the record for allowing
     high-powered use of the 1910-1915 MHz band segment and that such
     use can occur without causing interference to existing Broadband
     PCS operations. For the reasons stated above, we are re-designating
     the 1910-1915 MHz band for licensed Fixed and Mobile services and
     updating our Part 15 rules to remove the 1910-1915 MHz band from
     asynchronous UPCS use.

232. *Petitions for Rulemaking and Petitions for Waiver Regarding the
     1910-1930 MHz Band.* As mentioned, *supra,* the under-utilization
     by unlicensed devices of the 1910‑1920 MHz band has prompted the
     filing of four petitions for waiver from Lucent, UTStarcom & Drew
     University, Ascom, and Alaska Power; and two petitions for
     rulemaking from WINForum and UTStarcom, which all request certain
     rule changes to these bands.

233. In its petition for waiver, Lucent requests that it be allowed to
     use the 1910-1920 MHz band for its Definity PBX voice system within
     the confines of Cook County, Illinois. It claims that several of
     its customers need high-capacity indoor wireless communications and
     that the existing ten megahertz of spectrum reserved for voice in
     the 1920-1930 MHz band is insufficient to meet those needs. Also,
     UTStarcom & Drew University request permission to use the 1910-1920
     MHz band to install the UTStarcom Personal Access System (PAS) on
     the campus of Drew University in Madison, New Jersey, in order to
     provide wireless telephone service to the students and staff, as an
     extension of the university's wired telephone system. It states
     that the PAS system complies with Japan Personal Handy Phone System
     (PHS) Standard RCR-28 but does not meet Part 15 requirements for
     either isochronous or asynchronous devices and typically operates
     at higher power levels than mandated by Part 15. It further states
     that once Broadband PCS Block C licensees are selected in Auction
     #35 (for the 1895‑1910 MHz band paired with the 1975‑1990 MHz band)
     it would be possible to negotiate use of that spectrum on the Drew
     University campus with the winning licensee. In addition, Ascom
     requests that it be allowed to use the 1910-1920 MHz band for its
     Freeset DCT 1900 PBX voice system within the confines of Cook
     County, Illinois; New York City; and San Francisco County,
     California, because several of its customers, who are boards of
     trade or stock exchange entities, need high-capacity indoor
     wireless communications. Ascom submits that the ten megahertz of
     spectrum reserved for voice in the 1920‑1930 MHz band is, again,
     insufficient to meet such needs. Finally, Alaska Power requests a
     waiver of Part 15 asynchronous spectrum etiquette to operate a
     community wireless voice system over the 1910-1920 MHz (data) band,
     in order to serve small rural areas in Alaska that are currently
     unserved or underserved by wireless service providers.

234. In its petition for rulemaking, WINForum asks the Commission to
     allow isochronous UPCS devices to use the 1910‑1920 MHz band and to
     phase out asynchronous use in this band, thereby providing twenty
     megahertz of spectrum (1910‑1930 MHz) for isochronous devices, and
     also to modify certain technical requirements for UPCS devices in
     Part 15. WINForum further requests that the Commission modify the
     frequency stability requirements for asynchronous UPCS data
     devices.[^584] In its petition, UTStarcom requests that the
     1910-1920 MHz band be made available for licensing via competitive
     bidding to permit the establishment of community wireless network
     service, using its PAS which is based on Japan's RCR-28 Personal
     Handy Phone System (PHS) standard.[^585] Subsequently, UTStarcom
     modified its requests to seek changes to the Part 15 rules for
     coordinated unlicensed operation in the 1910-1920 MHz band for its
     PAS system, with coordination performed by UTAM, using the existing
     UTAM coordination infrastructure.[^586]

235. As a consequence of our decision to redesignate the 1910-1915 MHz
     band for licensed Fixed and Mobile services for AWS use, we deny in
     part the waiver petitions from Lucent, Ascom, Alaska Power, and
     UTStarcom and Drew University insofar as they request use of
     spectrum in the 1910-1915 MHz band. We also deny in part the
     petitions for rulemaking from WINForum and UTStarcom. Again, our
     decision to deny in part the rulemaking petitions is made only with
     respect to the 1910-1915 MHz band, and is based on the fact that
     re‑designation of this band precludes the petitioners' requests to
     use the entire 1910-1920 MHz band for expanded unlicensed
     applications. At this time we are not deciding the disposition of
     the 1915-1920 MHz band, and so we do not address the petitions for
     waivers and petitions for rulemaking with respect to this five
     megahertz band segment. To the extent that these parties can
     operate without use of spectrum in the 1910-1915 MHz band, we will
     further address their petitions when we consider the disposition of
     the 1915-1920 MHz band.

#### Pairing the 1910-1915 MHz and 1990-1995 MHz Bands

236. As part of our proposal in ET Docket 00-258 to redesignate the
     1910-1920 MHz band (or a portion thereof) in the *AWS Third NPRM*
     for Fixed and Mobile Services, we also proposed options for pairing
     the 1910-1920 MHz band with the 1990-2000 MHz band for the
     redesignation of AWS, expansion of Broadband PCS, or the relocation
     of existing services.[^587] Such a pairing was made possible
     because, in the *Report and Order* portion of that decision, we
     redesignated the 1990-1995 MHz band to the Fixed and Mobile
     Services as part of our restructuring of the 2 GHz MSS band.[^588]

237. Those parties that support use of the 1910-1915 MHz band for high
     power licensed services generally agree with our proposal to pair
     the band with an equal amount of spectrum from the 1990-1995 MHz
     band. For example, CTIA (which supports pairing 1915-1920 MHz with
     1990-1995 MHz for a PCS-like terrestrial wireless service), notes
     that such a pairing would benefit from the design of high-power PCS
     equipment in the adjacent Broadband PCS bands, which in turn would
     promote the rapid design and deployment of new systems and result
     in economies of scale.[^589] Proponents of the CTIA proposal also
     assert that this pairing would maximize the value of the spectrum
     by achieving greater spectrum efficiency. For example, Cingular
     states that a pairing of the 1910-1916 MHz and 1990-1996 MHz bands
     would provide flexibility for MDS licensees to provide fixed and
     mobile services.[^590]

238. We agree with Nextel, CTIA, and other parties that a pairing of the
     1910-1915 MHz with 1990-1995 MHz bands would allow for the rapid
     introduction of terrestrial wireless services.[^591] Many potential
     high-power licensed mobile service providersincluding Nextelare
     designed to operate on distinct base station transmit and mobile
     receive bands that incorporate adequate frequency separation
     between the bands. Thus, paired use of these two five megahertz
     blocks is consistent with many possible technologies, such as the
     IMT-2000 standards being considered for AWS and the request of
     Nextel and WCA for relocation spectrum. These paired bands are
     located immediately upper adjacent to the existing Broadband PCS
     bands and is therefore consistent with both the band location and
     frequency separation between bands that has allowed for the
     successful design and deployment of Broadband PCS systems. In
     addition, because the 1910-1915 MHz band lacks incumbent UPCS
     users, new licensees will only need to address relocation as it
     pertains to the relocation of incumbent point-to-point microwave
     systems in the band.[^592] For these reasons, we will license the
     1910-1915 MHz and 1990-1995 MHz bands as a pair to promote the most
     efficient use of this spectrum.[^593]

#### Relocation and Cost Sharing Obligations in the 1910-1915 MHz Band

239. Since we have assigned Nextel spectrum rights to the 1910-1915 MHz
     band, *supra*, we are imposing on Nextel an obligation to relocate
     remaining incumbent microwave links anywhere in the 1910-1930 MHz
     band operating on a primary basis wherever commencement of Nextel
     operations in the 1910-1915 MHz band would cause harmful
     interference to such links. We also consider, in more detail,
     Nextel's cost sharing obligations in the 1910-1915 MHz band.

240. The Commission's relocation policies with respect to PCS spectrum,
     including UPCS spectrum, has generally been to require new entrants
     to relocate, before commencing operations in a location, any
     existing incumbent microwave links that would otherwise experience
     harmful interference from those operations.[^594] In its comments
     Nextel has committed to fund its *pro rata* share of any additional
     band clearing if it were provided spectrum at 1910-1915 MHz.[^595]
     Therefore, we here impose an obligation on Nextel to relocate any
     such incumbent links operating on a primary basis.[^596]

241. With respect to cost sharing obligations, in the *AWS Third NPRM*,
     we proposed that if we were to redesignate all or a portion of the
     1910-1920 MHz band, we would implement a reimbursement plan that
     would repay UTAM a percentage of the expenses it incurred in
     clearing the UPCS band of microwave links.[^597] We sought comment
     on this proposal and the method by which UTAM should be repaid.
     Those parties that commented on this issue generally agree with our
     proposal, and support the adoption of a reimbursement plan that
     would compensate UTAM for its expenses.[^598]

242. UTAM, which supports retention of the entire 1910-1920 MHz band for
     UPCS, also states that in the event we redesignate spectrum in this
     band, we must ensure that new licensees fully and fairly compensate
     UTAM for the relocation of incumbent microwave users. In its
     comments, UTAM generally concurs that the reimbursement plan we
     proposed­which is based on the cost-sharing model we previously
     adopted for the relocation of microwave incumbents to allow for the
     introduction of licensed PCSwould provide such compensation.

243. In addition, UTAM raises several points as to how we should
     implement a reimbursement plan for redesignated UPCS spectrum.
     First, UTAM states that its compensation must be adjusted to
     include the base *pro rata* percentage of total costs it has
     incurred. To do this, UTAM notes that certain of its microwave
     relocation cost-sharing obligations are being paid in installments
     for links that have been moved by third parties, and asks that it
     be compensated for the pro-rata share of the present value of these
     future costs in one lump sum.[^599] Second, UTAM states that new
     licensees should be required to follow the same cost-sharing rules
     as existing licensees that are adjacent to the UPCS band. In other
     words, if UTAM relocates a microwave link that accrues to the
     benefit of a new licensee, UTAM believes that the new licensee
     should be responsible for paying the relocation costs proportionate
     to the number of licenses benefiting from the relocation. This same
     cost-sharing obligation would apply to UTAM paying for
     reimbursement if a licensee relocated a link that accrued to the
     benefit of UTAM's members.[^600] Also, UTAM states that a new
     licensee should, as a precondition to the grant of a license, be
     required to make its reimbursement payment to UTAM. This
     precondition, UTAM claims, would be similar to that of the payment
     of auction funds as a prerequisite to licensing. New licensees
     would therefore be able to factor the microwave relocation payment
     into a licensee's bidding strategy, in the event the spectrum is
     auctioned.[^601] Finally, UTAM suggests that we consider allocating
     reimbursement costs among multiple new licensees entering the band
     by POPs as an effective, simple, and manageable means of cost
     recovery.[^602]

244. Nextel also agrees with our proposal for reimbursing UTAM incurred
     relocation costs. Nextel states that if it were relocated to
     1910-1915 MHz, it will reimburse UTAM the band-clearing costs
     related to relocating incumbent microwave facilities from this five
     megahertz block of spectrum. Specifically, Nextel states that it
     agrees that UTAM should be entitled to receive a proportional share
     of the total expenses UTAM will have incurred to relocate microwave
     incumbents from the 1910-1930 MHz band as of the effective date of
     any final rules adopted in this proceeding.[^603] Nextel also
     states that it would fund a *pro rata* share of any additional band
     clearing costs that are incurred following assignment of the
     spectrum block.[^604] PCIA, which also supports our general
     relocation proposal, proposes that we establish a band-clearing
     cost-sharing clearinghouse to manage the relocation compensation in
     the allocation of UPCS bands to AWS.[^605] PCIA states that many
     AWS licensees would benefit from UTAM relocating incumbent
     microwave links from the UPCS bands, because AWS licensees licensed
     in different geographic service areas could cause interference to
     or receive interference from a single incumbent licensee. PCIA
     therefore submits that a band-clearing cost-sharing clearinghouse
     needs to be developed to fairly reimburse UTAM, similar to the
     cost-sharing procedures for PCS in Part 24 of the Commission's
     Rules.[^606]

245. In conjunction with our re-designation of the 1910-1915 MHz band
     for licensed Fixed and Mobile services, we find that UTAM must be
     fully and fairly reimbursed for relocating incumbent microwave
     users that operate on a primary basis in this band. We agree with
     commenting parties, such as Nextel, that UTAM should be made whole
     for the investments it has made in clearing the UPCS bands. We also
     find that in view of our assignment of this spectrum to Nextel, it
     is appropriate to require Nextel to reimburse UTAM twenty-five
     percent of UTAM's total relocation costs associated with relocation
     of incumbents from the 1910-1930 MHz band as of the date of
     assignment of the 1910-1915 MHz spectrum block to Nextel. We also
     agree with UTAM that we should apply the same cost-sharing
     obligations to Nextel that we have imposed on licensees on channels
     that are adjacent to the UPCS bands.[^607] Thus, we will allow
     Nextel or UTAM to seek reimbursement for the proportion of its
     relocation costs that benefits spectrum whose relocation
     obligations would otherwise be borne by the party that uses or is
     otherwise responsible for that spectrum band. For example, if in
     order to make spectrum in the 1910-1915 MHz band available for use,
     Nextel relocates microwave links in both the 1910-1915 MHz and the
     1915-1930 MHz bands, Nextel may seek reimbursement from UTAM for
     the actual costs associated with the relocation of the microwave
     links in the 1915-1930 MHz band.[^608]

246. Our decision to require Nextel to reimburse UTAM a *pro rata* share
     of costs, in addition to being consistent with the comments
     supporting a reimbursement mechanism for UTAM, offers a fair and
     easy procedure to implement. Because UTAM has already cleared most
     of the incumbent microwave links deployed across the entire
     1910-1930 MHz band, this reimbursement plan represents the most
     reasonable and easiest approach to address the relocation costs
     that UTAM has already incurred. We believe that such a course is
     superior to the difficult and complex prospect of making
     retroactive calculations for apportionment and represents an
     equitable and administratively efficient means of compensating
     UTAM. We note that no party has objected to this approach.

247. Our decision to assign the 1910-1915 MHz band to Nextel makes
     several portions of UTAM's comments and PCIA's clearinghouse
     proposal unnecessary to implement a reimbursement plan for the
     band. UTAM states in its comments that a new licensee should be
     required to make its reimbursement payment to UTAM as a
     precondition to the grant of its license. We are requiring Nextel
     to reimburse UTAM as condition precedent to commencing operations
     in the 1.9 GHz band. Our decision to provide Nextel a nationwide
     license for the 1910-1915 MHz block obviates our need to consider
     UTAM's suggestion to allocate reimbursement costs among multiple
     licensees entering the band by POPs. This decision also renders
     moot evaluation of PCIA's proposal to adopt a band-clearing
     cost-sharing clearinghouse for bands allocated for AWS with respect
     to the 1910-1915 MHz band because there will be no complex sharing
     issues among multiple new entrants or among entities operating in
     less-than-nationwide service areas.

248. We also do not believe that it is necessary for us to require
     Nextel to immediately pay UTAM a share of the present value of
     UTAM's future installment payment obligations made to third
     parties. Again, because Nextel will be the sole nationwide license
     in this band, UTAM and Nextel will be able to address such matters
     as part of the overall process of accounting for and funding
     relocation obligations.[^609] Finally, we note that the decisions
     made today only apply to the 1910-1915 MHz band. Therefore, we are
     not addressing how the proposals by UTAM and PCIA regarding
     reimbursement and cost-sharing would affect any future proceeding
     that considers redesignation of the 1915-1920 MHz band.

249. Accordingly, we adopt a reimbursement plan that entitles UTAM to
     twenty-five percent---on a *pro rata* basis---of its total costs
     incurred as of the date that Nextel gains access to the 1910-1915
     MHz spectrum band. Nextel must pay this amount before it begins
     operations in the band.[^610] Afterward we will allow Nextel and
     UTAM to seek reimbursement for the proportion of its relocation
     costs incurred in clearing incumbent fixed microwave systems that
     benefits spectrum whose relocation obligations would otherwise be
     borne by the party that uses or is otherwise responsible for that
     spectrum band. UTAM and Nextel shall reimburse those based on the
     actual costs associated with the relocation of these facilities.

#### Relocation and Cost Sharing Obligations in the 1990-1995 MHz Band

250. In this section, we address Nextel's obligations, as a new entrant,
     to relocate incumbent BAS systems in the 1990-1995 MHz band. As an
     initial matter, we are not altering the underlying relocation rules
     that we established for MSS entrants that undertake the relocation
     of BAS incumbents from the 1990-2025 MHz band and MSS licensees
     will continue to follow the procedures that the Commission adopted
     in the *MSS Third R&O* when relocating BAS incumbents.[^611] We
     are, however, modifying on reconsideration one aspect of the
     existing MSS plan to relocate BAS incumbents in order to allow
     Nextel to enter into the band and to address BAS relocation issues
     raised in the petitions for reconsideration of the *MSS Third R&O*.
     By retaining the existing MSS relocation rules but also overlaying
     procedures by which Nextel may relocate BAS incumbents, we will be
     able to ensure the continuity of BAS during the transition. It is
     essential that we do so, because BAS is a critical part of the
     broadcasting system by which emergency information and
     entertainment content is provided to the American public.
     Therefore, we expect that Nextel and MSS licensees will work
     together to minimize the disruption BAS licensees will experience
     in the transition.

##### Nextel-BAS Plan

251. *MSTV-NAB-Nextel BAS Relocation Plan.* On May 3, 2004, MSTV, NAB,
     and Nextel submitted a proposed BAS relocation plan, which offered
     a means to clear BAS licensees from the 1990-2025 MHz band.[^612]
     Under this proposal, Nextel would commit to funding the entire cost
     of relocating all BAS incumbents nationwide from the 1990-2025 MHz
     band.[^613] Specifically, Nextel proposes to complete the
     relocation of all BAS licensees in the 1990-2025 MHz band in all
     markets in two stages---stage one within eighteen months and stage
     two within thirty months after the effective date of a Commission
     order in this proceeding.[^614]

252. We will require Nextel, as a condition on Nextel's 1.9 GHz
     licenses, to follow a relocation procedure based on its proposed
     BAS relocation plan and relocate all BAS licensees in the 1990-2025
     MHz band within thirty months after the effective date of this
     *Report and Order*, as described below*.* We believe that the
     parties' proposed BAS relocation plan is sufficiently similar to
     the BAS relocation plan the FCC adopted for MSS entrants, which was
     modeled on the policies set forth in our earlier *Emerging
     Technologies* proceeding,[^615] and which requires MSS entrants to
     provide comparable facilities to BAS incumbents that are relocated
     prior to the sunset dates specified in the *MSS Third R&O*.[^616]
     Accordingly, we will also require Nextel to provide comparable
     facilities to BAS incumbents that are relocated.[^617] Further,
     Nextel and MSS licensees, each of which individually are authorized
     to operate on a fraction of the band, will mutually benefit from
     the clearance of all BAS licensees in the band.[^618] Nextel is
     therefore obligated to participate in the relocation of all BAS
     operations from 1990-2025 MHz, as discussed immediately below, even
     if it ultimately does not build its own facilities in some
     geographic areas. As we determined in the *MSS Third R&O,* a
     one-phase relocation plan avoids the possibility of BAS operations
     on three different band plans, and eliminates the potential
     disruption and down time to BAS associated with being relocated
     under two different phases in a short period of time.[^619] We also
     note that our decision to accommodate Nextel's entry into the band
     does not alter our need to minimize the disruption to incumbent BAS
     operations during the transition. Therefore, we believe that
     including Nextel as a participant in the relocation of all BAS
     operations from the 1990-2025 MHz band strikes an appropriate
     balance that is not unreasonably burdensome upon Nextel as an
     entrant in the band, while also fair to the incumbents and MSS
     entrants.

253. *Relocation Schedule.* Under the BAS relocation plan, MSTV, NAB,
     Nextel, SBE and other interested broadcast parties will develop a
     joint relocation schedule and implementation plan to be submitted
     to the Commission. The joint implementation plan would address the
     timing of individual market relocations within the two-stage plan
     that will be completed within thirty months, measures to minimize
     disruption to ENG services during the transition, and measures to
     facilitate an expeditious and efficient relocation process. The
     joint relocation schedule will be based on the following criteria:
     during stage one, Nextel will relocate all BAS incumbents in
     markets where it chooses to deploy immediately, as well as any
     adjacent markets that raise inter-market coordination and
     interference problems; and during stage two, Nextel will relocate
     all remaining markets. Throughout this process (including after the
     initiation of stage two), BAS licensees that have not been
     relocated would be permitted to continue operation on their
     existing seven channels until they are relocated to the new band
     plan at 2025-2110 MHz.[^620] According to the parties, this
     relocation proposal would therefore minimize disruption to
     incumbent BAS operations as well as serve the public interest by
     preserving the ability of broadcasters to provide the public with
     timely coverage of emergencies and other news events. The parties
     further contend that the thirty-month timeframe for relocating all
     BAS incumbents under the proposed Nextel-BAS relocation plan
     "should ensure that the 1990-2025 MHz band is cleared nationwide
     before MSS entrants are ready to begin service in the 2000-2025 MHz
     band."[^621]

254. We will require Nextel to file progress reports within twelve
     months and twenty-four months after the effective date of this
     *Report and Order* on the status of the transition, including
     identifying the markets that will be relocated during stage one and
     all remaining markets that will be relocated during stage two. This
     filing also should include the other information the parties stated
     they would provide as part of the joint implementation plan
     described in the Nextel-BAS relocation plan.[^622] Nextel also will
     be required to certify to the Commission that all BAS facilities
     have been relocated within thirty months after the effective date
     of this *Report and Order*. We note that Nextel's obligation to
     relocate BAS incumbents must not interfere with its obligation to
     relocate public safety users in the 800 MHz band.

255. Nextel, which uses a terrestrial network, has a different
     interference potential between its service and BAS than that of MSS
     and BAS. Unlike satellites, whose signals can blanket the whole
     country simultaneously, a terrestrial network is limited to
     discrete geographic areas served by multiple base stations. Thus,
     the terrestrial nature of Nextel's service allows for the gradual
     relocation of incumbents during a geographically-based build-out
     period. Consequently, we will allow Nextel to determine its own
     schedule for relocating incumbent BAS facilities in a TV market as
     follows: Nextel must relocate incumbent BAS licensees before
     beginning operation in a particular BAS market, but Nextel may
     determine the markets it wishes to serve. Thus, whereas we had
     established a relocation process based on specific markets (1-30,
     31-100, and 101-210) for MSS, Nextel's operations will only affect
     those markets where Nextel chooses to deploy its service. Unlike
     MSS, which may take up to five years to relocate BAS services in
     markets 31 and above, Nextel must relocate incumbent BAS operations
     in every BAS market it wishes to serve---including markets 31 and
     above---prior to beginning operations, and all BAS markets within
     the thirty-month timeframe proposed in the Nextel-BAS relocation
     plan. We conclude that the differences between the terrestrial
     nature of Nextel's service and the ubiquitous service that will be
     provided by MSS warrant these distinctions in the relocation
     procedures.

256. Further, the integrated nature of BAS operations also makes
     isolated, link-by-link relocation infeasible. Therefore, as a
     practical matter, we note that it may be necessary for Nextel to
     relocate more BAS facilities than an interference analysis might
     indicate as technically necessary in order to meet the comparable
     facility requirement for relocating BAS operations.[^623] Nextel
     has agreed to relocate BAS licensees across multiple TV markets to
     avoid inter-market coordination and interference problems.[^624] We
     also recognize that Nextel is likely to deploy its service in some
     locations in a manner that does not correspond to the geography of
     the BAS market areas, and note that Nextel will be obligated to
     relocate all incumbent BAS operations in all BAS markets, as
     proposed in the Nextel-BAS relocation plan, including those markets
     where Nextel provides partial, minimal, or no service.

257. Nextel, MSTV, and NAB argue that if one or more MSS entrant is
     prepared to launch service before the spectrum is cleared in all
     markets, a "key principle" of the Nextel plan should continue to
     apply---namely that Nextel will remain responsible for paying the
     upfront relocation costs.[^625] We disagree to the extent that this
     principle is intended to prevent MSS licensees from clearing BAS
     incumbents earlier. Under this *Report and Order*, MSS licensees
     will retain the option of accelerating the clearing of those
     markets so that they could begin operations before Nextel has
     completed nationwide clearing. We recognize that the parties will
     have to work cooperatively to ensure a smooth transition for BAS
     incumbents. To facilitate this process, we will require Nextel to
     file with the Commission and copy the MSS licensees, within thirty
     days after the effective date of this *Report and Order*, its plan
     for the relocation of BAS operations in the markets that will be
     relocated during stage one (*i.e.*, within eighteen months). MSS
     licensees will have thirty days to review the Nextel plan[^626] and
     identify to Nextel and the Commission which of the top thirty TV
     markets and fixed BAS operations, if any, they intend to invoke
     involuntary relocation.[^627] If MSS licensees choose not to
     trigger involuntary relocation, Nextel will proceed under its plan
     to relocate BAS incumbents.

258. *Negotiation Schedule.* The Nextel-BAS relocation plan proposes
     mandatory negotiation periods between Nextel and BAS licensees
     ending February 28, 2005 for stage-one relocations and December 31,
     2005 for stage-two relocations, thus providing nine months for
     negotiations for each stage.[^628] We note that these dates were
     contingent on the Commission releasing its decision in this
     proceeding on May 31, 2004*.* Because of the time that has passed
     between May 31^st^ and the release of this *Report and Order*, we
     will extend the negotiation periods to May 31, 2005 for stage-one
     relocations and March 31, 2006 for stage-two relocations. MSS
     licensees may voluntarily join in these negotiations in order to
     relocate BAS operations in markets 31 and above. We encourage MSS
     licensees to work cooperatively with Nextel in these negotiations
     because all parties will collectively benefit from the expeditious
     relocation of BAS incumbents to the new band plan. We also note
     that we will entertain requests filed by MSS licensees requesting
     that their voluntary participation in the negotiations between
     Nextel and BAS incumbents initiate their mandatory negotiation
     period.[^629]

259. *Cost sharing.* In the *MSS Third R&O*, we noted that with the
     redesignation of the 1990-2000 MHz and 2020-2025 MHz bands in the
     AWS proceeding, non-MSS licensees that may begin service later will
     benefit from the band clearing paid for by MSS licensees. We
     therefore stated that we will provide an equitable mechanism by
     which MSS licensees can recover some of the relocation costs
     incurred from other licensees who will benefit from the band
     clearing of incumbent BAS operations from the 1990-2025 MHz band.
     However, we deferred setting forth comprehensive procedures that
     new Fixed and Mobile service providers (including AWS entrants) in
     these bands must follow to reimburse MSS licensees that will have
     incurred relocation costs.[^630]

260. As noted above, under the Nextel-BAS relocation plan, Nextel offers
     to pay the upfront BAS relocation costs, which MSTV and NAB
     estimate will be \$512 million. Nextel also requests that the
     Commission require MSS licensees in the 1990-2025 MHz band to pay
     their *pro rata* share of the cost of clearing this spectrum.[^631]

261. We have decided to generally follow the cost-sharing principle that
     the licensees that ultimately benefit from the spectrum cleared by
     the first entrant shall bear the cost of reimbursing the first
     entrant for the accrual of that benefit, except as discussed below.
     Therefore, the first entrant may seek reimbursement from
     subsequently entering licensees for a proportional share of the
     first entrant's costs in clearing BAS spectrum, on a *pro rata*
     basis according to the amount of spectrum each licensee is
     assigned. Consequently, Nextel is entitled to seek *pro rata*
     reimbursement of eligible clearing costs incurred during the
     36-month reconfiguration period from MSS licensees that enter the
     band prior to the end of that period. Nextel will be required to
     inform the Commission and MSS licensees on whether it will or will
     not be seeking reimbursement from the MSS licensees 12 months after
     the effective date of this *Report and Order*.[^632] Under this
     plan, Nextel would pay all upfront costs and receive credit for BAS
     relocation in the 800 MHz true-up process, less any MSS-reimbursed
     expenses. Thus, Nextel would no longer be entitled to reimbursement
     from other entrants to the band after receiving credit for its
     relocation costs at the 800 MHz true-up. Further, Nextel\'s right
     to seek reimbursement from any MSS entrants entering before the end
     of the 36-month reconfiguration period will be limited to costs
     Nextel incurred for clearing the top thirty markets and relocating
     all fixed BAS facilities, regardless of market size, and to an MSS
     licensee\'s *pro rata* share of the 1990-2025 MHz spectrum. We
     believe that limiting the amount of Nextel's reimbursement in this
     manner strikes an appropriate balance that is not unreasonably
     burdensome on Nextel or MSS licensees.[^633]

262. Similarly, Nextel is also obligated to reimburse MSS licensees for
     Nextel's *pro rata* share of the MSS licensees' relocation
     expenses, should the MSS licensee trigger involuntary relocation or
     otherwise participate in the relocation process before Nextel has
     completed its nationwide clearing of the band. Any reimbursement by
     Nextel to MSS licensees must occur before the 800 MHz true-up
     period ends, so that these reimbursement expenses can be accounted
     for at the 800 MHz true-up. Both Nextel and MSS licensees under the
     MSS plan must clear the entire 1990-2025 band (a total of
     thirty-five megahertz of spectrum) while only operating in
     1990-1995 MHz (a total of five megahertz of spectrum) and in
     2000-2020 MHz (a total of twenty megahertz of spectrum),
     respectively. Therefore, Nextel's *pro rata* share represents the
     costs to relocate one-seventh of the spectrum.

263. *Interference Issues/Technical Standards.* In order to minimize
     interference from systems in the 1910-1915 MHz/1990-1995 MHz
     blocks, we are requiring Nextel to conform to the same technical
     standards applicable to licensed PCS systems.[^634] The Commission
     adopted TIA Bulletin TSB 10-F previously as the criteria for
     determining PCS to FS interference.[^635] Due to the technical
     similarity of Nextel's service to PCS, which operates in nearby
     bands and for which TSB 10-F is well-suited, we conclude that the
     criteria specified in TSB 10-F should be equally suitable to
     determine where sharing would be possible between BAS and Nextel
     operations in the 1990-2025 MHz band. However, procedures other
     than TSB 10-F that follow generally acceptable good engineering
     practices may also be acceptable.[^636] Our conclusion is
     consistent with the *MSS Second R&O* wherein the Commission
     determined that, in the case of new ancillary terrestrial component
     (ATC) service/FS interference in the 2165-2200 MHz band, TIA
     Bulletin 10-F would be the relevant standard.[^637] In the *MSS
     Third R&O,* we affirmed that TSB 10-F, or its successor standard,
     is an appropriate standard for purposes of triggering relocation
     obligations by new terrestrial (ATC or AWS) entrants in the 2 GHz
     band to relocate FS incumbents.[^638] For computing interference
     between satellite and fixed services, the Commission relies on the
     methodology and criteria in TIA Bulletin TSB-86.[^639]

##### MSS-BAS Plan

264. In this section, we address MSS licensee obligations to relocate
     incumbent BAS operations in the 1990-2025 MHz band and address
     petitions for reconsideration and clarification of the *MSS Third
     R&O*. We grant in part and deny in part the petitions for
     reconsideration and clarification filed by MSTV, NAB, SBE, and
     Boeing. We have discussed, above, the process by which Nextel may
     enter the band and relocate incumbent BAS licensees, and how that
     process relates to the existing relocation procedures that we
     adopted for MSS licensees. Now, we turn our attention to the
     existing relocation rules that have already been established for
     MSS. Except as discussed below, those rules will remain in effect.

265. Under the MSS plan, BAS facilities in the top-thirty TV markets and
     all fixed BAS operations, regardless of market size, will be
     cleared first and the remaining markets in two segments (markets
     31-100 within three years after commencement of MSS operations and
     markets 101-210 within five years). The Commission recognized that
     the services offered via the MSS satellites, once operational, will
     cover all of the United States simultaneously. Therefore, BAS
     facilities in the band would have to be relocated or cease
     operation in order to minimize interference between the two
     services.[^640] The Commission instituted this gradual approach to
     balance the needs of the incumbents and future MSS users of the
     band, notwithstanding the added challenges to BAS operations.[^641]

266. *Comments.* The broadcast parties contend that the Commission's
     decision to require MSS licensees to relocate BAS incumbents to the
     final channel plan in one step (rather than in two steps under the
     original plan), resulting in the temporary vacating of two BAS
     channels (rather than one channel under the original plan) until
     all BAS operations are relocated, will "significantly curtail" the
     ability of BAS incumbents in TV markets 31 and above to provide
     electronic news gathering (ENG) services to the public.[^642]
     According to the broadcast parties, the Commission's decision
     underestimates the harm to BAS operations, particularly in the
     local coverage of emergencies, news, and sporting events, outside
     the top 30 markets because these markets will lose two channels for
     up to five years before being relocated. The broadcast parties
     further contend that dual band plans during the transition will
     cause interference and inter-market coordination problems.[^643]
     MSTV and NAB also argue that the Commission's decision to modify
     the BAS relocation plan to immediately begin Phase II is contrary
     to precepts of administrative law and the public interest.[^644]
     The broadcast parties request, in part, that the Commission devise
     an alternative relocation plan that would not require BAS
     incumbents in markets 31 and above to cease operations on two
     channels without receiving compensation prior to vacating the
     spectrum and further that the Commission consider various means to
     ensure that MSS licensees pay their *pro rata* share of BAS
     relocation.

267. Alternatively, Boeing maintains that the Commission should
     reinstate the original two-phase plan, with the modifications it
     proposes to Phase I, and not trigger Phase II immediately.[^645]
     Boeing argues that the benefits to retaining the two-phase BAS
     relocation process are that it: 1) reduces the upfront costs for
     BAS relocation before MSS operators begin service; 2) is a more
     efficient use of spectrum; 3) provides the Commission with more
     time to resolve regulatory uncertainties about the types of new
     services and the procedures for the new entrants in the 1990-2025
     MHz band; and 4) gives BAS manufacturers more time for the design
     and development of digital BAS equipment.[^646]

268. In addition, the broadcast and MSS parties request that the
     Commission address unresolved questions regarding the relocation
     obligations (*e.g.*, the timing and scope of reimbursement) of new
     entrants to the 2 GHz band, as well as new services that are
     relocated from other spectrum bands (*e.g.,* Nextel).[^647]
     Specifically, the commenters propose that the Commission require
     reimbursement of BAS relocation expenses by later entrants, on a
     *pro rata* basis, before these new entrants begin operation in the
     2 GHz band.[^648] Finally, Nextel, MSTV and NAB argue that in the
     event an MSS entrant begins operations before all BAS incumbents
     have been relocated by Nextel, no BAS incumbent will be required to
     vacate any spectrum at 1990-2025 MHz until after it has been
     relocated to the new band plan at 2025-2110 MHz.[^649]

269. *Decision.* On reconsideration, we will no longer require BAS
     licensees in TV markets 31-210 to cease operations on channels 1
     and 2 until they have been relocated to their final channel plan at
     2025-2110 MHz, unless licensees in a BAS market indicate as part of
     the relocation negotiation process that they do not wish to be
     relocated, in which case they must immediately restrict their
     operations to the 2025-2110 MHz band. We are making this
     modification to the MSS plan to accommodate Nextel's entry into the
     band consistent with the Nextel-BAS relocation plan, as described
     herein, which does not require BAS incumbents in markets 31 and
     above to cease operations on two channels without receiving
     compensation prior to vacating the spectrum.

270. We find that as a result of our actions here the two relocation
     plans will complement each other and expedite BAS relocation in the
     band. Under the Nextel-BAS relocation plan, the relocation of all
     BAS incumbents will be completed by May 2007. Under the MSS plan,
     MSS licensees may begin operations once the top thirty BAS markets
     and all fixed BAS stations, regardless of market size, have been
     cleared[^650] and must certify that their systems are operational
     by no later than July 2007.[^651] Nextel will likely relocate most
     BAS licensees before MSS licensees begin operations under their
     milestone requirements. In addition, as described previously, MSS
     operators will have an opportunity to work with Nextel to relocate
     BAS licensees in some additional markets. If MSS licensees begin
     operations before all BAS incumbents are relocated, we expect that
     MSS and BAS licensees will work together to minimize interference;
     however, MSS licensees would have to accept interference from the
     remaining BAS users until they are relocated. Further, the
     Nextel-BAS relocation plan would substantially shorten the time
     period during which adjacent BAS markets would operate on different
     channel plans, thereby mitigating the broadcast parties' concerns
     regarding interference and inter-market coordination problems
     resulting from prolonged dual band plans. Finally, we believe that
     adoption of a relocation plan that is based on the proposed
     Nextel-BAS relocation plan, as described herein, provides certain
     benefits to MSS licensees. In particular, Nextel has agreed to
     clear BAS nationwide within thirty months and to pay the upfront
     costs for BAS relocation.

271. We deny Boeing's petition with respect to its request for the
     reinstatement of the original two-phase MSS plan for BAS
     relocation. As we discussed in the *MSS Third R&O*, we found that
     given the need to provide for rapid introduction of AWS in the 2
     GHz BAS band, a two-phase relocation was no longer
     appropriate.[^652] We affirm this finding. We note that our
     decision herein to allow Nextel to enter the band requires that BAS
     incumbents be relocated expeditiously to the final Phase II channel
     plan. We also find that adoption of the Boeing plan is not
     necessary to address its concerns (*e.g*., lower MSS upfront
     relocation costs) because these concerns will be satisfied by
     implementation of the Nextel-BAS relocation plan, as revised
     herein.

272. We now address the remaining arguments proffered by the parties. We
     find that our decision to adopt a relocation plan that is based on
     the Nextel-BAS relocation plan*,* as described herein, renders moot
     MSTV and NAB's procedural and public interest arguments.[^653]
     Further, our decision today addresses the relocation obligations of
     Nextel, a new entrant into the 1990-2025 MHz band. With respect to
     the broadcast and MSS parties' request to resolve the relocation
     obligations of other new entrants in the 2 GHz band, we defer
     resolution of these issues to the appropriate docket.[^654]

273. *Issues for Clarification.* Pointing to Paragraph 58 of the *MSS
     Third R&O*, SBE, MSTV and NAB request that the Commission clarify
     the relationship between BAS licensees operating on different
     channel plans to avoid causing coordination problems within and
     between TV markets.[^655] Paragraph 58 of the *MSS Third R&O*
     states in part that:

     \[b\]ecause the continued use of the existing channel plan could
     disrupt BAS licensees that have relocated to the Phase II channel
     plan and lead to the difficulties in coordination that SBE
     describes, we will permit continued use of the 'old' channel plan
     only if all BAS licensees in a market will agree to such
     operation.[^656] Moreover, BAS licensees in such markets must
     operate on a secondary basis to other BAS licensees using the Phase
     II channel plan and must be prepared for the potential disruption
     associated with secondary operation, such as the interference
     likely to be caused by a BAS licensee operating on the Phase II
     channels that enters the market to cover a sporting event or
     breaking news story.[^657]

274. According to SBE, there is a conflict between Section 74.24(c) and
     Paragraph 58 of the *MSS Third R&O*[^658]*.* Under Section
     74.24(c), a top-thirty market TV pickup station that has converted
     to digital and operating on the new band plan but is temporarily
     operating outside its licensed area to respond to a major news
     event would be secondary to the local TV pickup station where the
     major news event is occurring.[^659] SBE contends that, under
     Section 74.24(c), if the local TV pickup station is in a market
     that has not converted to digital and the new band plan, it would
     have primary status over any visiting TV pickup station. However,
     we stated in the *MSS Third R&O* that a visiting TV pickup station
     that had converted to the Phase II channel plan would have primary
     status over the local TV pickup station that had not converted.
     Thus, SBE seeks clarification on whether Section 74.24(c) trumps
     Paragraph 58 of the *MSS Third R&O* or vice versa. Further,
     MSTV/NAB claim that it is unclear whether this applies to all
     broadcasters operating on the old channel plan or only in markets
     that elect to remain on the old channel plan even after they are
     entitled to relocation compensation.[^660]

275. SBE also requests that the Commission clarify what it means by the
     "if all BAS licensees in a market will agree" language in Paragraph
     58 of the *MSS Third R&O* mentioned above.[^661] Specifically, SBE
     seeks clarification on whether: 1) a single station would be able
     to block or force the conversion to the new band plan of other
     stations in the market; or 2) the station that chooses not to
     convert becomes secondary to the stations that do convert.[^662]
     According to MSTV and NAB, it is also unclear whether the primary
     status of BAS licensees operating on the new channel plan would
     allow a single broadcaster in a small or medium market to
     essentially compel other broadcasters in the market to convert to
     the new channel plan before receiving compensation by
     self-relocating during the transition period.[^663]

276. We clarify that Paragraph 58 does not alter the operation of
     Section 74.24(c), *i.e*., that any local TV pickup station will
     have primary status over any visiting TV pickup station, even if
     the local market as a whole or the individual local TV pickup
     station itself has not converted to the Phase II channel plan. We
     believe this outcome is consistent with the overall purpose of the
     short-term use rule, which will continue to operate after the BAS
     relocation is completed. Further, although we believe it would be
     best if all stations in a market agree to use the same channel
     plan, an individual station that chooses to remain on the old
     channel plan will be secondary to other stations within the same
     market that convert to the Phase II plan and also to any TV pickup
     station that has converted to the Phase II plan and is visiting the
     local market. This should encourage parties to convert to the final
     channel plan expeditiously.

### Method for Determining Equitable Compensation

277. The record reflects considerable disagreement among the parties on
     whether the grant of 1.9 GHz spectrum rights to Nextel constitutes
     equitable compensation or an unwarranted windfall.[^664] Initially,
     the Consensus Parties proposed that Nextel would relinquish
     approximately ten megahertz of 700, 800 and 900 MHz spectrum, pay
     for band reconfiguration, and receive ten megahertz of 1.9 GHz
     spectrum.[^665] Other parties, however, argue that the Commission
     should determine whether the value of the spectrum being
     relinquished by Nextel, when added to the costs Nextel incurs in
     band reconfiguration, is equal to the fair market value of the 1.9
     GHz spectrum.[^666] Many of these parties further argue that the
     market value (FMV) of the 1.9 GHz spectrum far exceeds the value of
     relinquished spectrum and other costs that Nextel would incur under
     the Consensus Parties' proposal.[^667] Nextel responds that the 1.9
     GHz spectrum is equitable compensation even under a value-for-value
     approach.[^668]

278. We conclude that a "value for value" approach is the most
     appropriate for determining equitable compensation in this
     instance. We reject the approach proposed by the Consensus Parties
     because we do not regard the combined 700, 800, and 900 MHz
     spectrum that Nextel offered to relinquish as being equivalent to
     the 1.9 GHz spectrum. First, as discussed in ¶ 207 *supra*, we are
     excluding Nextel's 900 MHz spectrum from consideration in this
     order, so it does not help to "balance" the bandwidth exchange.
     Second, while we are accepting Nextel's offer to relinquish its 700
     MHz Guard Band spectrum, we regard the value of this spectrum as
     *de minimis* because it cannot be made available to public safety
     in the near term and any potential long-term benefit it might
     afford to public safety or any value it might have in the
     marketplace is purely speculative at this point. Having excluded
     700 MHz and 900 MHz from consideration, the remaining 800 MHz
     spectrum that Nextel is relinquishing---even as recently augmented
     to an average of 4.5 megahertz---does not equate on a
     megahertz-for-megahertz basis with ten megahertz of 1.9 GHz
     spectrum, absent some further balancing of the equities. We also
     reject the option of adjusting the megahertz-for-megahertz
     "balance" by providing Nextel with a smaller bandwidth increment,
     *e.g.*, 4.5 megahertz in the 1.9 GHz band. We believe this approach
     would segment the 1.9 GHz band in a fashion that does not make
     sense from a technical standpoint and would result in inefficient
     use of the spectrum. We believe that providing Nextel uniform
     nationwide access to ten megahertz in the 1.9 GHz band not only
     helps to ensure that Nextel receives comparable value for its loss
     of spectrum rights and expenses it will incur, but also will
     promote efficient use of the 1.9 GHz band. To account for these and
     other differences, therefore, we conclude that the comparative
     value of spectrum and other costs incurred by Nextel to support
     rebanding must be considered under a "value for value" approach.

#### Valuation of 1.9 GHz Spectrum

279. We begin with the value of the ten megahertz of spectrum at
     1910-1915 MHz/1990-1995 MHz. Three parties---Verizon, CTIA, and
     Nextel---have submitted valuation studies of the 1.9 GHz spectrum,
     using different analytical methods and yielding different
     conclusions:

280. *Verizon Wireless -- Kane Reece Study*. On October 27, 2003,
     Verizon Wireless submitted a valuation report prepared by Kane
     Reece Associates, a national appraisal firm.[^669] The Kane Reece
     study concludes that "\[i\]f the Consensus Plan were adopted, the
     value of Nextel's spectrum would increase by \$7.2 billion."[^670]
     The Kane Reece study avers that "\[a\] giveaway of the 1.9 GHz PSC
     band ... would result in a significant windfall to Nextel while
     denying the public the value of this public resource."[^671] The
     Kane Reece study further estimates that "\[t\]he FMV of 10 MHz at
     1.9 GHz is appraised at nearly \$ 5.3 billion,"[^672] which would
     equate to approximately \$1.82 per MHz per person (MHz-pop). This
     estimate is based primarily on an approach which estimates (using
     several different approaches) the enterprise value (EV) of mobile
     wireless operators and then subtracts the value of physical assets
     and identifiable intangible assets. The remaining residual is then
     interpreted as the value of the spectrum licenses.

281. *CTIA*. In a July 9, 2003, *ex parte* letter, CTIA proposed that
     the Commission use two private market transactions involving PCS
     licenses to estimate the value of the 1.9 GHz G block that would be
     assigned to Nextel as replacement spectrum under the Consensus
     Plan.[^673] In the first transaction, Verizon Wireless acquired PSC
     licenses and other assets from Northcoast Communications for \$750
     million.[^674] In the second transaction, Cingular seeks to acquire
     PCS licenses from NextWave Telecom for \$1.5 billion.[^675] Based
     on these transactions, CTIA estimates the value of the 1.9 GHz
     spectrum at between \$4.5 billion and \$5.3 billion.[^676]

282. *Nextel*. In a November 20, 2003 filing, Nextel, through the Sun
     Fire Group LLC, asserts that a reliable estimate of the value of a
     nationwide G block license would use a representative selection of
     large, medium, and small market transactions to better account for
     market size value variations in constructing a nationwide value
     estimate.[^677] The following transactions were used by Nextel to
     calculate an average national spectrum price:

-   Verizon-North Coast Transaction[^678]

-   Pittsburgh, PA BTA Transaction[^679]

-   Lebanon, NH Transaction[^680]

    Based on these three transactions, Nextel estimates that the value
    of ten megahertz of spectrum at 1.9 GHz is worth \$1.25 per MHz-pop,
    or approximately \$3.5 billion.[^681]

283. As an initial matter, we note that the valuing of spectrum is not
     an activity in which the Commission typically engages. We know from
     experience that the value of spectrum is seldom static and hinges
     on multiple variables, some of them intangible, which exist at the
     moment a willing buyer and willing seller agree to a transaction,
     or when an informed bidder places its bid an auction. When attempts
     are made to value a spectrum asset prospectively, the estimator
     must choose a model and employ underlying assumptions that serve as
     proxies for multiple variables. Given these approximations and
     limitations, any single figure derived cannot be exact; it
     necessarily has an associated uncertainty.

284. In our analysis of the three major valuations in the record, the
     models and assumptions differed and, in many instances, appeared
     tailored to reach a desired result. We believe that no strictly
     economic analysis can satisfactorily resolve the ultimate question
     of whether interference-free public safety communications---a
     largely unquantifiable benefit---has a dollar value commensurate
     with the fair market value of the 1.9 GHz spectrum Nextel will
     receive. However, we still believe such financial analyses are
     relevant to the extent that they provide a benchmark for
     determining whether the costs incurred and benefits received by
     Nextel reflect an equitable balance for the public and our
     licensees, or a windfall to Nextel. We further note that to the
     extent the possibility of a windfall may have existed under the
     Consensus Proposal, it is eliminated by the plan we adopt and the
     safeguards we impose today.

285. The studies all provide evidence relevant to determination of the
     FMV of the 1.9 GHz spectrum. The task of evaluating this evidence
     to reach a specific monetary value for the spectrum license asset,
     however, is complex, and any single figure derived is inherently
     uncertain. The standard approaches to valuation all have strengths
     and weaknesses, and appraisal experts often find that the best
     estimate of value is one that is a synthesis of several
     approaches.[^682]

286. Because they reasonably apply standard and valid asset appraisal
     techniques, we conclude that the Verizon Wireless and Nextel
     studies, taken together, define a reasonable range for the value of
     a ten megahertz nationwide spectrum license of \$1.25 to \$1.82 per
     MHz-pop. One estimate provided in the CTIA filing exceeds \$1.82
     per MHz-pop; however that estimate relies on information in a press
     account of a spectrum sale transaction that later proved to be
     inaccurate.[^683] Further, although Verizon Wireless presents
     several other figures as being consistent with its preferred
     estimate, all such figures are less than \$1.82 per MHz-pop. That
     is, Verizon Wireless applied a discounted cash flow analysis to a
     hypothetical firm by adding ten megahertz of spectrum to its
     ongoing business value; and, on that basis estimated the ten
     megahertz of spectrum at \$1.73 per MHz-pop.[^684] A market
     approach of looking at guidelines from publicly traded companies
     values the spectrum at \$1.61 per MHz-pop,[^685] and a comparable
     spectrum sales approach values the spectrum at \$1.51 per
     MHz-pop.[^686]

287. In order to identify an appropriate value amount that is attributed
     to Nextel for receipt of the 1.9 GHz spectrum rights, one must go
     beyond identifying a reasonable valuation range and place a
     specific value on the 1.9 GHz license. As further explained below,
     in reviewing the detailed application of the valuation methods used
     in the Kane Reece Study and Sun Fire Study, and also considering
     all the subsequent filings on valuation, we find that the \$1.82
     estimate likely overstates the true value of this spectrum, and the
     \$1.25 estimate likely understates the true value.[^687] Thus,
     neither end point in the reasonable value range likely represents
     the best point estimate for this value. We identify a best point
     estimate by focusing on several recent comparable secondary market
     transactions.

288. We believe the Verizon Wireless application of an EV-based
     calculation results in an uncertain and likely overestimated value
     of the spectrum license. A significant degree of uncertainty arises
     for several reasons. First, the EV approach inherently requires
     making a large number of assumptions. This is particularly true
     when, as is the case with the Kane Reece Study, enterprise value is
     estimated by a mix of "income" (or discounted cash flow) and
     "market" approaches. Thus, for example, under the market approach,
     the EV and license value estimates are very sensitive to the stock
     prices taken as starting points, and stock prices in this sector
     have fluctuated significantly over the recent past.[^688] In
     addition, the calculations rely upon a mix of market values (such
     as the current equity prices) and book values (such as the values
     placed on firm debt and many tangible assets). Combining market and
     book figures in this way might result in overstating or
     understating the residually determined value of spectrum, depending
     on exactly how the various book values differ from true market
     values. Further, under the income approach, the result is also
     dependent on a large number of assumptions such as forecasts of
     future streams of revenues and costs, the choice of the appropriate
     discount rate to employ, and the choice of long term, or
     "terminal," growth rate to employ in the analysis. The exact
     assumptions made can greatly influence the outcome of an
     analysis,[^689] and yet it can be difficult to determine the
     appropriate choices or justify choices made as most reasonable.
     Finally, as shown in a study submitted by Nextel, when the Kane
     Reece Study approach is applied to each wireless company
     individually, the result is a wide range of estimates of spectrum
     license values.[^690] These estimates vary from a low of \$0.41 per
     MHz-pop for T-Mobile to a high of \$3.74 for Verizon Wireless.
     Nextel argues "Across all companies in its report, the Kane Reece
     values for spectrum vary by a factor of nearly nine. These wide
     variations in spectrum values further demonstrate that Kane Reece's
     methodology is unreliable."[^691] Because the appropriateness and
     impact of the many detailed assumptions is unclear, and because of
     the great variation in resulting spectrum value estimates across
     companies, we believe there is considerable uncertainty about the
     resulting average license value estimate resulting from the EV
     based approach in this instance.

289. More significantly, we believe Verizon Wireless's application of
     the EV method introduces an upward bias to the valuation of the
     spectrum licenses. This occurs in two basic ways. In part, EV
     itself is overstated, and this overstatement flows through to
     overstate license value. And in part, too little value is
     subtracted from EV, so that again license value is overstated. One
     step in the analysis likely causes an overstatement in enterprise
     value. This occurs with the use of a \"control premium\" adjustment
     when computing the EV of the publicly traded firms in the group
     Verizon Wireless analyzes. That is, after determining the market
     capitalization of each of these firms (essentially the stock price
     times the number of outstanding shares), the Kane Reece Study
     increases the totals by thirty percent. This is said to produce the
     value that results from the ability to exert control of the assets
     and firm's operations.[^692] Applying a control premium is standard
     and appropriate when, for example, attempting to value an entire
     corporation in order to determine a reasonable acquisition price
     for the entire firm.[^693] The Sun Fire Study and the American
     Appraisal Report argue that it is inappropriate to employ a control
     premium when calculating the EV of an entire industry or when
     placing a value on an asset, the spectrum rights.[^694] We agree
     with Nextel that a control premium adjustment is inappropriate when
     valuing assets such as spectrum licenses. The valuation/appraisal
     literature associates the use of control premiums with firm
     ownership values, not asset values. [^695]

290. Even if the Verizon Wireless analysis has computed EV correctly, we
     believe it likely subtracts away too little of this value, and so
     attributes too much of the measured EV to the residual, the
     spectrum licenses. First, and most fundamentally, it is well
     recognized that the value of ongoing businesses may---and often
     does---exceed the sum of the values (or costs to replace) the
     capital stock.[^696] It has been estimated that market values for
     U.S. industries in general have significantly exceeded the
     replacement costs of their assets in recent years.[^697] Second,
     other intangible elements may have value and thus should also be
     subtracted from EV. The Kane Reece Study does not account for the
     fact that market values may exceed the sum of the asset values, and
     it makes an adjustment for only one other intangible asset, the
     value of the current customer base. In so doing, it does not
     address factors such as brand equity firms may possess or any
     unique assets firms may have that create value (such as a uniquely
     strong management team or an important patent). At least one study
     has found, however, that in the mobile wireless sector intangible
     assets arising from advertising expenditures and research and
     development expenditures are important and statistically
     significant in explaining firms' market values.[^698] Thus, the EV
     approach as applied by Verizon Wireless would be expected to leave
     as the residual not only the value of the spectrum licenses, but
     also the value of other important intangible contributors to firm
     value, as well as the synergies created by bringing all the assets
     together in an ongoing business. As a result, this approach
     attributes to the spectrum licenses value that is due to other
     critical factors and accordingly overstates the value of these
     licenses.

291. Turning to the Nextel's \$1.25 per MHz-pop estimate, we find this
     likely understates the true value of a ten megahertz spectrum
     license. Nextel argues that the two comparable secondary market
     transactions employed by CTIA---the Verizon Wireless acquisition of
     fifty Northcoast licenses and the Cingular acquisition of NextWave
     spectrum in thirty-four cities---overstate the average value of a
     nationwide license because both of those transactions principally
     involved large markets.[^699] Therefore, Nextel derives its figure
     using a "tiered pricing model" that relies on three comparable
     sales benchmarks: the Verizon Wireless/Northcoast acquisition and
     two other single-license transactions (Pittsburgh, PA and Lebanon,
     NH). This model, in effect and in intent, places a lower price per
     MHz-pop on spectrum in smaller cities. We find, first, however, as
     argued by Verizon Wireless, that this approach places undue
     reliance on the two single-license sales, and that this is
     particularly worrisome when those sales may not have been true
     arms-length transactions.[^700]

292. Second, while we agree with Nextel in principle that the average
     value derived from the comparables used by CTIA need not equal the
     value of a nationwide license, and that some geography-based value
     adjustment may be required, we find that in this instance the
     tiered pricing model likely results in an exaggerated downward
     adjustment. We have investigated the difference in value between
     the average of each of the comparable transactions and a true
     nationwide average by reviewing data from Auction No. 11, for the
     D, E, and F Block PCS licenses, which closed in January, 1997. This
     auction provides the most recent complete set of data on how PCS
     license prices vary across geographic areas.[^701] Specifically, we
     have compared the average price, in terms of dollars per MHz-pop,
     that the license areas encompassed in each comparable transaction
     sold for in Auction No. 11 to the overall average for all licenses
     in that auction. We find no support for a downward adjustment to
     \$1.25 per MHz-pop based on variations in value across geographic
     areas.[^702]

293. Having concluded that the \$1.82 estimate is higher than, and the
     \$1.25 estimate lower than, the best point estimate of the FMV of
     the G Block, we compute the best estimate as follows. Given the
     problems with application of the EV-based approach, we find that an
     approach based on comparable spectrum sales is most reliable. Two
     recent benchmark secondary market transactions---those identified
     by CTIA---provide strong evidence of the current FMV of the 1.9 GHz
     spectrum. These are:

-   the December 2002 purchase by Verizon Wireless of fifty Northcoast
    licenses at a price equating to approximately \$1.58 per MHz-pop;
    and

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-   the Fall 2003 agreement to purchase by Cingular Wireless of NextWave
    spectrum in thirty-four cities at a price equating to approximately
    \$1.66 per MHz-pop.[^703]

294. These two transactions are compelling benchmarks for several
     reasons. Both are relatively recent, and represent arms-length
     transactions. Both transactions essentially involve spectrum
     licenses alone, as opposed to spectrum bundled with other assets,
     thus obviating the need to estimate the proportion of the purchase
     price that represents the value of the spectrum. Finally, since
     both transactions involve a relatively large number of licenses
     spanning a representative range of small to large markets, they
     should reasonably reflect the value of a nationwide license.

295. More recently, Qwest Communications and Verizon Wireless agreed to
     another transaction involving a large number of licenses. Verizon
     Wireless will acquire from Qwest sixty-two spectrum licenses in
     fifty-seven areas in Qwest territory for \$418 million. While this
     transaction does not solely involve spectrum licenses, however it
     appears to place an average value on the licenses themselves of
     about \$1.36 per MHz-pop.[^704] While this is somewhat lower than
     our other two comparables, we believe it is consistent with them
     given the different mix of markets included in this transaction: a
     greater preponderance of small and mid-sized markets, and a lesser
     preponderance of very large metro areas. In general, licenses for
     large metropolitan areas are more highly valued per MHz-pop than
     licenses for the smaller cities and rural areas.

296. Secondary market transactions that involve only small numbers of
     licenses are more likely to reflect values that are specific to
     local conditions, and therefore may be inappropriate models for
     valuation of nationwide spectrum. Notwithstanding the limited data
     provided by such transactions, two other recently announced
     agreements also provide some relevant evidence of current value.
     First, in late May of this year, as part of a larger transaction
     between the two firms, it was announced that T-Mobile USA will
     acquire from Cingular Wireless ten megahertz of PCS spectrum in
     three BTAs, San Francisco-Oakland-San Jose, Sacramento, and Las
     Vegas. The agreed price is \$180 million,[^705] which corresponds
     to approximately \$1.67 per MHz-pop. Second, on July 8 NextWave
     Telecom, Inc. sold three PCS licenses for a total of \$973.5
     million.[^706] A ten megahertz license in the New York BTA was
     purchased by Verizon Wireless for \$4.74 per MHz-pop. And ten
     megahertz licenses in two Florida BTAs were purchased by MetroPCS:
     Sarasota-Bradenton for \$1.37 per MHz-pop and Tampa-St.
     Petersburg-Clearwater for \$1.33 per MHz-pop. While not yet
     consummated, both of these transactions appear to be firm,
     arms-length transactions between willing buyers and sellers.

297. We view all these more recently announced transactions as
     confirming our two primary comparables, which yield an average
     value of \$1.62 per MHz-pop. However, we believe that this value
     may understate the current FMV of a nationwide 1.9 GHz spectrum
     because a nationwide license---or a near-nationwide license that
     encompasses the great majority of areas where mobile telephony
     service coverage would be desired---may command a small value
     premium. We do not expect such a premium to be large, because today
     many likely buyers of spectrum already hold large spectrum
     footprints, and may be most interested in filling holes in those
     footprints or adding to capacity in local areas. Nonetheless, some
     firms would likely still see added value in having a nationwide
     license for a single set of frequencies, for example because such a
     license could enable less costly equipment development and
     deployment. Accordingly, we make a five percent upward adjustment
     in the average price of our primary comparable transactions. Our
     final point estimate of the value of the 1.9 GHz spectrum is \$1.70
     per MHz-pop, or approximately \$4.86 billion.[^707]

#### Offsets 

298. Having determined the value of the 1.9 GHz spectrum, we must
     balance it against the costs that will be incurred by Nextel
     pursuant to this *Report and Order*. We conclude that the following
     categories of costs to Nextel merit compensation, and therefore
     should be offset against the above-determined value of the 1.9 GHz
     spectrum: (1) Nextel's costs to relocate incumbents within the 800
     MHz band, including payments Nextel has made for the services of
     the Transition Administrator; (2) Nextel's own relocation
     costs; (3) Nextel's costs to clear the 1.9 GHz spectrum; and (4)
     the net value of the 800 MHz spectrum that Nextel will relinquish
     for public safety use.[^708] We also assign *de minimis* value to
     the 700 MHz Guard Band spectrum that Nextel will relinquish.

##### Relocation and Band-Clearing Costs 

299. *Cost to Relocate 800 MHz Incumbents*. In the Consensus Parties
     proposal, Nextel has estimated the cost of relocating public
     safety, CII, and other 800 MHz incumbents at \$850 million.[^709]
     Nextel asserts that these costs should be credited to Nextel
     because they are integral to accomplishing band reconfiguration
     without imposing a prohibitive cost burden on public safety.[^710]
     Verizon Wireless argues that Nextel should not receive credit for
     the cost of relocating other 800 MHz licensees on the grounds that
     these are "necessary costs of doing business" to remedy
     interference that has been caused by Nextel itself.[^711] Verizon
     also asserts that Nextel has not provided documentation to support
     its \$850 million relocation cost estimate.[^712]

300. We reject Verizon's argument that Nextel should not receive credit
     for these relocation costs. First, we disagree with Verizon's
     premise that Nextel is legally responsible as the sole "cause" of
     the interference problem being remedied, and therefore could be
     compelled to pay these costs without compensation. The record in
     this proceeding has documented that while Nextel has been
     implicated in great number of interference incidents, the
     interference problem has not been not "caused" by any single
     party---Nextel, cellular, or public safety---but rather has been
     caused collectively by the proximity of all of these parties to one
     another in the 800 MHz band, even though all parties are operating
     in compliance with Commission rules. Moreover, Nextel is not only
     bearing the entire cost of solving the problem, but is supporting
     the optimal solution to the problem---band reconfiguration---even
     though this is considerably more costly to Nextel than other, less
     optimal solutions, such as exclusive reliance on Enhanced Best
     Practices. Based on these considerations, crediting Nextel for the
     cost of relocating other incumbents is consistent with equitable
     principles and furthers the public interest goals of this
     proceeding in achieving a comprehensive long-term solution to the
     interference problem. Finally, we do not require documentation of
     Nextel's estimate, as Verizon contends, because the offset will be
     calculated based on actual relocation costs, not estimated costs,
     as verified by the Transition Administrator.

301. *Nextel's Own 800 MHz Relocation Costs*. Nextel identifies two
     categories of costs associated with relocation of its own
     operations in the reconfigured 800 MHz band. First, to protect
     non-cellular systems below 816/861 MHz from OOBE, Nextel will
     install improved filters for all of its 800 MHz base station
     transmitters to achieve a sharper OOBE roll-off.[^713] Nextel
     previously projected these filter costs at \$150 million, but in
     conjunction with the revised band plan under which Nextel will
     relinquish an additional two megahertz of spectrum at
     816-817/861-862 MHz, Nextel has revised its projected filter costs
     to \$407 million.[^714] Second, to implement band reconfiguration,
     Nextel will need to relocate its own operations to new channels. In
     some instances, this will require Nextel equipment to be retuned
     more than once in order to provide a seamless transition for other
     licensees.[^715] Nextel estimates the cost at \$400 million. Nextel
     seeks credit for both of these cost categories, while Verizon
     contends that Nextel should be required to bear these costs without
     credit or compensation.[^716]

302. Verizon's argument that Nextel should not receive credit for its
     own relocation costs also fails. The costs that Nextel is incurring
     to relocate its own system are just as integral to the optimized
     solution of band reconfiguration as are the costs of relocating
     other 800 MHz licensees. The installation of new filters in
     Nextel's system will provide needed interference protection to
     public safety, CII, and other 800 MHz licensees on the additional
     spectrum that is being provided to them by Nextel under the new
     band plan. With respect to retuning costs, Nextel is paying for
     multiple relocations of its own operations to ensure that other
     incumbents can operate seamlessly while band reconfiguration is
     taking place. Thus, giving credit to Nextel for these costs is not
     tantamount to paying a "polluter" to stop polluting, as Verizon
     contends.[^717] Instead, it is recognizing that Nextel---alone
     among the parties to this proceeding---is paying to support a
     comprehensive solution to a collective "pollution" problem even
     though this will require more expensive changes to its own system
     than would otherwise be required. We conclude that Nextel should be
     entitled to credit for these costs, as verified by the Transition
     Administrator. These costs will include payments Nextel has made
     for the services of the Transition Administrator.

303. *Cost of Clearing 1.9 GHz Spectrum*. As discussed in ¶¶ 239-263,
     *supra*, as a condition of receiving 1.9 GHz spectrum rights,
     Nextel is required (1) to pay UTAM for the cost of clearing the
     1910-1915 MHz band and (2) to clear BAS from the 1990-2025 MHz band
     within thirty months. Nextel seeks credit for these costs as an
     offset against the value of the 1.9 GHz spectrum.[^718] Verizon
     objects to this offset on the same grounds as the 800 MHz
     relocation cost offsets discussed above. In addition, Verizon
     argues that Nextel should not receive credit for clearing BAS from
     the entire 1990-2035 MHz band when clearing of the 1990-1995 MHz
     band is all that is required for Nextel's purposes.[^719]

304. We conclude that Nextel should receive credit for all BAS
     relocation costs, less any MSS-reimbursed expenses incurred prior
     to the end of the thirty-six month reconfiguration period, when the
     offsets will be calculated.[^720] First, the value we have
     determined for the 1.9 GHz spectrum is based on comparable
     transactions that involved unencumbered spectrum. Because the 1.9
     GHz is encumbered, however, it is appropriate to consider the costs
     of clearing the band as an offset against this value. Second, we
     disagree with Verizon's contention that Nextel should not receive
     credit for the full cost of clearing BAS from the 1990-2025 MHz
     band. Although Nextel will only have spectrum rights in the
     1990-1995 MHz portion of this band, as discussed in ¶¶ 251-263,
     *supra*, we are requiring Nextel to clear the entire band as a
     condition on those spectrum rights. We impose this requirement
     because it promotes responsible use by Nextel of the 1.9 GHz
     spectrum we are granting as part of our solution to the public
     safety interference problem, and because it provides a rapid and
     efficient band-clearing solution at 1.9 GHz that benefits all
     parties---Nextel, BAS, MSS, other prospective users of the band
     above 1995 MHz, and the public. Having required Nextel to incur
     these costs as an integral component of this order, we conclude
     that it is reasonable to allow Nextel to obtain credit for these
     same costs. Moreover, there is no risk in our decision of double
     recovery by Nextel because it cannot claim credit for any BAS
     relocation expenses for which it seeks or obtains reimbursement
     from MSS licensees.

305. We recognize that giving Nextel credit for the costs it incurs in
     clearing the 1.9 GHz band, differs from the Commission's usual
     practice of auctioning spectrum "as is," *i.e.*, a typical auction
     winner acquires spectrum rights subject to encumbrances such as
     incumbent users.  We decline to take the "as is" approach in the
     instant situation, however, because the comparable transactions
     used above to determine the value of the 1.9 GHz band involved
     unencumbered spectrum.  Thus, we believe it more accurate to grant
     Nextel credit for the verifiable costs of clearing the 1.9 GHz band
     instead of incorporating an estimate of these costs into our
     spectrum valuations.

306. *Combined Relocation and Band-Clearing Costs.* Nextel has estimated
     the cost of relocating 800 MHz incumbents at \$850 million, its own
     relocation costs (retuning and additional filters) at \$807
     million, and the cost of clearing or relocating 1.9 GHz incumbents
     (UTAM and BAS) at \$527 million.[^721] If these estimates prove to
     be accurate, Nextel will be credited with combined offsets for
     these costs totaling \$2.184 billion against the value of the 1.9
     GHz spectrum. However, it is unnecessary to rely on Nextel's
     estimate, because the final offsets will be based on actual
     relocation and band-clearing costs incurred by Nextel, as verified
     by the Transition Administrator at the conclusion of the thirty-six
     month transition period for 800 MHz band reconfiguration. Thus, if
     the combined relocation and band-clearing costs prove to be higher
     than Nextel's estimate, Nextel will receive a correspondingly
     larger offset; similarly, if its costs are lower than this
     estimate, the offset will be correspondingly lower.

##### 800 MHz Spectrum Relinquished to Public Safety and Other 800 MHz Incumbents

307. As noted above, Nextel is relinquishing all of its spectrum in the
     800 MHz General Category and interleaved bands, and two megahertz
     of spectrum at 816-817/861-862 MHz from the Upper 200 SMR channel
     block, for relocation and use by public safety and other non-ESMR
     incumbents. At the same time, once band reconfiguration and
     relocation are complete, Nextel will hold the rights to the six
     megahertz of contiguous spectrum in the current NPSPAC band
     (821-824/866-869 MHz). Nextel states that through its
     relinquishment of 800 MHz General Category and interleaved
     spectrum, it is giving up an average of 8.5 megahertz of bandwidth,
     resulting in an average net gain of 2.5 megahertz to public
     safety.[^722] Combined with the two megahertz of spectrum that
     Nextel is giving up from its spectrum holdings in the Upper 200
     block, the average net amount of spectrum being relinquished by
     Nextel is 4.5 megahertz.[^723]

308. Nextel's relinquishment of these spectrum rights to public safety
     accomplishes an important public interest objective of this
     proceeding by increasing the amount of 800 MHz spectrum available
     for public safety use. Parties to this proceeding differ, however,
     on whether it also imposes a cost on Nextel, because the General
     Category and interleaved spectrum that Nextel is relinquishing is
     non-contiguous, while the NPSPAC band is contiguous. Verizon
     contends that Nextel's gain of rights to contiguous 800 MHz
     spectrum exceeds the value of the rights to non-contiguous 800 MHz
     spectrum being relinquished by Nextel.[^724] Thus, Verizon contends
     that Nextel's exchange of spectrum rights in the 800 MHz band
     constitutes a windfall gain, notwithstanding the net loss of
     bandwidth. Nextel, on the other hand, contends that there is no
     difference in the per-megahertz value of the non-contiguous
     spectrum rights it is relinquishing and the contiguous spectrum
     rights it is gaining, so that the net loss of bandwidth imposes a
     substantial net cost on Nextel.[^725]

309. As discussed more fully below, we do not agree with Verizon's
     contention that Nextel will realize a windfall gain from the net
     loss of spectrum rights at 800 MHz. While we conclude that Nextel
     will realize some technical efficiency benefit from being able to
     operate its network on contiguous 800 MHz spectrum, that benefit is
     relatively small and does not translate into a windfall for Nextel.
     We further conclude that the gain that Nextel will realize from the
     exchange of non-contiguous for contiguous spectrum rights at 800
     MHz is more than offset by the total value of the 800 MHz spectrum
     rights being relinquished by Nextel, and the fact that Nextel will
     be unable to fully utilize the additional contiguous 800 MHz
     spectrum until the end of the transition. On balance, the result is
     a net cost to Nextel---though not as great a cost as Nextel
     contends---for which compensation is appropriate.

310. Verizon argues that the exchange of spectrum at 800 MHz is a
     windfall for Nextel based on the disparate valuations of contiguous
     and non-contiguous spectrum rights presented in the Kane Reece
     report. First, the Kane Reece report uses the same "enterprise
     valuation" method that Kane-Reece applied to the 1.9 GHz spectrum
     to value the rights to the contiguous six-megahertz NPSPAC band at
     \$1.82/MHz-pop, or about \$3.2 billion. Then, using an engineering
     analysis that compares non-contiguous spectrum used for mobile
     voice and data against contiguous spectrum in a CDMA 1xRTT use, the
     Kane-Reece report values the non-contiguous spectrum rights given
     up by Nextel at \$.45/MHz-pop, or about \$.9
     billion---approximately twenty-five percent of the value Kane-Reece
     claims for rights to contiguous spectrum.[^726] Combining these two
     figures, the Kane-Reece report asserts that Nextel will realize a
     \$2.3 billion net benefit from the exchange of spectrum rights at
     800 MHz.[^727]

311. We believe Verizon's analysis is unpersuasive in several respects.
     First, Verizon asserts that Nextel will derive significantly
     increased value from exchanging contiguous for non-contiguous
     spectrum at 800 MHz because contiguous spectrum affords flexibility
     to use wideband technologies, such as CDMA, that cannot be deployed
     on non-contiguous spectrum. In Nextel's case, however, such
     flexibility is more theoretical than real. The record indicates
     that, as a practical matter, Nextel is unlikely to abandon its iDEN
     network and switch to wideband technology as a result of this
     exchange of contiguous for non-contiguous spectrum.[^728] Given
     Nextel's existing investment in iDEN and its large customer base,
     it is more cost-effective for Nextel to extend its existing network
     into the additional six megahertz than to switch to an alternative
     technology such as CDMA, which would be very costly and
     time-consuming for Nextel and would impose significant burdens on
     its customers. In addition, to ensure continued service to its
     twelve million iDEN customers, Nextel will need to use the six
     megahertz for added spectrum capacity in its system to compensate
     for the lost capacity associated with spectrum rights being
     relinquished to public safety pursuant to rebanding. Thus, while we
     agree with Verizon that under most circumstances, contiguous
     spectrum offers more technical flexibility and is more highly
     valued by the marketplace, we believe the analysis here must focus
     on the practical effect of this specific exchange of spectrum
     rights on Nextel's existing network and service. In this context,
     the highest-value use that Nextel is likely to derive from the six
     megahertz it will acquire is to use it for iDEN expansion. This
     would not create a significant increase in value for Nextel because
     iDEN does not require contiguous spectrum.

312. For similar reasons, we find that Verizon's analysis understates
     the value of the non-contiguous spectrum rights being given up by
     Nextel. While the market value of non-contiguous spectrum
     is generally lower than that of contiguous spectrum, Verizon's
     analysis does not sufficiently account for Nextel's highly
     effective use of iDEN technology to maximize the capacity that it
     derives from non-contiguous spectrum. Using iDEN, Nextel can and
     does provide interconnected mobile voice and data at
     current-generation speeds on the spectrum it currently uses.[^729] 
     In fact, Nextel has been able to achieve capacity and throughput
     levels that are superior to many providers that operate on
     contiguous spectrum. Therefore, from a technology perspective,
     Nextel does not gain significant new capability to provide these
     services as a result of converting from non-contiguous spectrum to
     contiguous spectrum in the 800 MHz band.[^730]

313. While we conclude that Verizon has not taken Nextel's efficient use
     of non-contiguous spectrum into account, we do not agree with
     Nextel's contention that its use of iDEN means that non-contiguous
     and contiguous spectrum rights should be valued equally. Even in an
     iDEN configuration, Nextel will realize some increase in technical
     efficiency as a result of using contiguous spectrum. For example,
     moving to contiguous spectrum will give Nextel somewhat more
     flexibility to optimize frequency reuse in its iDEN network, and
     Nextel will have fewer constraints on spectrum use because once
     relocation is complete, the contiguous band will be cleared of
     non-Nextel incumbents. Because Nextel has not taken these variables
     into account in its valuation of the 800 MHz spectrum it is
     relinquishing, we have conducted our own analysis to determine the
     appropriate offset for contiguous and non-contiguous spectrum.  

314. *Contiguous Spectrum at 800 MHz.* We start by estimating the value
     to Nextel of the spectrum rights to the six megahertz of contiguous
     spectrum currently occupied by NPSPAC. We believe that Verizon's
     proposed market valuation of the six megahertz at \$1.82 MHz-pop,
     for a total of \$3.2 billion, is overstated. This valuation figure
     is derived using the same "enterprise valuation" method that
     Verizon uses to value the 1.9 GHz spectrum. As noted above, we find
     that this method results in an inflated value for the 1.9 GHz
     spectrum, and accordingly, it overstates the value of 800 MHz
     spectrum to at least an equal degree. 

315. We believe that our above-determined \$1.70/MHz-pop valuation of
     the 1.9 GHz spectrum represents a more appropriate baseline for
     determining the value of the contiguous 800 MHz spectrum being
     acquired by Nextel. Although Nextel asserts a higher value for 800
     MHz spectrum (both contiguous and non-contiguous) based on
     propagation characteristics, based on our analysis of comparable
     sales discussed above, we have not found that this factor adds
     appreciable value to 800 MHz spectrum in comparison to 1.9 GHz
     spectrum. Moreover, to the extent that it may add value, there are
     other factors that tend to cancel out any such difference as
     applied to the 800 MHz spectrum that Nextel will acquire. First, we
     assume that the market value of six megahertz of spectrum would not
     be proportional on a per-megahertz basis to the market value of ten
     megahertz of spectrum. Where we have established new bands for
     advanced wireless services, we have never established licensing
     blocks smaller than ten megahertz. In addition, a six megahertz
     block provides no more capacity than a five megahertz block for the
     typical CDMA configuration based on 1.25 MHz channels, *i.e.*, only
     four channels can be accommodated in either case.

316. We also find that an offset should be made against the six
     megahertz of contiguous 800 MHz spectrum that Nextel is gaining
     because it is also relinquishing two megahertz of contiguous
     spectrum at 816-817 MHz/861-862 MHz. This reduces Nextel's net gain
     of contiguous spectrum from six megahertz to four megahertz. We
     also make an adjustment for operational restrictions that Nextel is
     accepting under this order at the new lower edge of its contiguous
     800 MHz ESMR spectrum. As described by Nextel, these restrictions
     will effectively limit Nextel's use of half a megahertz of its ESMR
     spectrum after rebanding.[^731] Based on all of the above factors,
     we conclude that Nextel should be credited with the net gain of 3.5
     megahertz of contiguous 800 MHz spectrum as opposed to six
     megahertz. Applying our baseline of \$1.70/MHz-pop to this amount
     of spectrum on a nationwide basis yields an approximate value of
     \$1.739 billion. [^732]

317. *Non-Contiguous Spectrum at 800 MHz.* In addition to determining
     the value of contiguous spectrum at 800 MHz, we also must consider
     the value of the non-contiguous 800 MHz spectrum rights being
     relinquished by Nextel in the General Category and interleaved
     spectrum bands. Again, we are presented with a range of values by
     the parties. Verizon values Nextel's non-contiguous spectrum rights
     at \$.45/MHz-pop---one quarter the value it ascribes to contiguous
     spectrum---which we regard as too low.[^733] Nextel, on the other
     hand, argues for a valuation of \$2.02/MHz-pop, which we regard as
     thinly supported, since it is based on a single secondary market
     transaction.[^734] As in our discussion of contiguous spectrum
     above, we focus our analysis of non-contiguous spectrum on its
     specific use in Nextel's existing network and service, which we
     consider more relevant than its hypothetical market value to other
     parties. In particular, we focus on the differences in technical
     efficiency that affect iDEN operation on contiguous versus
     non-contiguous spectrum. While these differences are difficult to
     quantify with precision, we have identified variables that we
     believe provide a reasonable measure of the increase in efficiency
     that Nextel will realize as a result of obtaining rights to
     contiguous spectrum, and which can be used to provide an
     appropriate discount on the value of the non-contiguous spectrum
     rights it is relinquishing. We set forth this analysis below.

318. *Interleaved Channels.* In the 809.75-816/854.75-861 MHz band, 80
     SMR channel pairs totaling 4 megahertz of bandwidth are interleaved
     with public safety and B/ILT channels. The interleaved nature of
     the band plan puts twenty of these channels at band edges adjacent
     to non-SMR spectrum, including public safety spectrum. Using the
     OOBE limits applicable to EA licenses,[^735] we assume that if
     Nextel is operating on one of its band-edge channels in the
     vicinity of an adjacent-channel non-SMR licensee, Nextel must limit
     use of its band-edge channel to avoid interference. We estimate
     that this reduces the utility of the band edge channels by
     fifty-percent, because they can still be used in areas where the
     adjacent non-SMR licensee is operating on a non-band-edge channel.
     A fifty-percent impairment to one quarter of the eighty interleaved
     channels translates to a 12.5 percent reduction in
     capacity-----effectively one out of every eight channels that
     Nextel is unable to use on interleaved spectrum but could use if
     the same channels formed a single contiguous block. Thus, we
     believe a 12.5 percent discount is an appropriate benchmark for the
     technical efficiency loss in an iDEN configuration from the
     spectrum being non-contiguous.

319. Applying this analysis to the interleaved spectrum rights being
     given up by Nextel, we have reviewed Nextel's interleaved spectrum
     holdings in eleven top US markets.[^736] We believe that focusing
     on Nextel's spectrum holdings in top markets is appropriate because
     these are the markets where Nextel's gains and losses of spectrum
     are likely to have the most significant impact on efficiency. In
     less populated markets, efficiency gains from using contiguous as
     opposed to non-contiguous spectrum are less likely to translate
     into an economic benefit for Nextel, and the net loss of bandwidth
     is less likely to translate into an economic loss. In these
     markets, Nextel holds an average of 3.84 megahertz of interleaved
     SMR spectrum---in fact, in all but two of these markets, it holds
     all eighty available interleaved SMR channels.[^737] On average,
     non-Nextel incumbents occupy only 0.08 megahertz of spectrum in the
     interleaved EA blocks licensed to Nextel. Because these non-Nextel
     incumbents must be protected by Nextel, we attribute an average of
     3.76 megahertz of interleaved spectrum to Nextel.

320. To determine the value of this spectrum, we start with our
     \$1.70/MHz-pop baseline value for contiguous 800 MHz spectrum, and
     discount it by 12.5 percent, resulting in a MHz-pops value of
     \$1.49.[^738] In addition, because Nextel does not have full
     nationwide coverage on interleaved spectrum, we adjust the
     population coverage figure from 286 million to 234 million.[^739]
     This results an approximate valuation of \$1.309 billion for
     Nextel's interleaved spectrum rights.

321. *General Category.* The 806-809.75/851-854.75 MHz General Category
     band more closely resembles contiguous spectrum than the 800 MHz
     interleaved band, because it is not divided into interleaved band
     segments specifically assigned to SMR, public safety, and B/ILT.
     Instead, the General Category band is segmented into six contiguous
     twenty-five channel blocks licensed on an EA basis.[^740] The vast
     majority of these EA licenses are held by Nextel. The band is not
     fully contiguous, because EA licensees must protect grandfathered
     site-based licenses in the General Category band. Thus, in markets
     where there are non-Nextel incumbents, Nextel must maintain a
     seventy-mile spacing for co-channel interference protection,[^741]
     which will likely prevent Nextel from employing that channel in
     that same market. To account for this circumstance, we discount
     Nextel's spectrum rights in the General Category by the number of
     channels that it is prevented from using because of the need to
     protect co-channel incumbents. But in contrast to the interleaved
     band, we do not consider it necessary to discount Nextel's General
     Category spectrum rights holdings based on the presence of adjacent
     channel non-SMR incumbents. Most of the General Category incumbents
     are single-channel conventional systems rather than the
     five-channel trunked systems found in the interleaved block. In
     addition, over the past several years Nextel has purchased the
     spectrum rights of many of these incumbents in order to clear and
     consolidate its General Category spectrum rights. This affords
     Nextel more channels to choose from in the General Category band
     than it has in the interleaved band, even where incumbents in
     adjacent non-SMR bands that must be protected.

322. Using the same markets that we have reviewed to assess Nextel's
     interleaved spectrum rights, our licensing records indicate that
     Nextel holds an average of 6.9 megahertz of General Category
     spectrum in these markets (out of a total of 7.5 megahertz) through
     EA licenses. On average, non-Nextel incumbents occupy 1.78
     megahertz of spectrum in the EA blocks licensed to Nextel in these
     markets.[^742] Because these co-channel incumbents prevent Nextel
     from using all of its General Category channels in a particular
     market, Nextel is on average only able to use 5.12 megahertz of its
     total 6.9 megahertz of General Category spectrum. We therefore
     apply our \$1.70/MHz-pop baseline to 5.12 megahertz, and use the
     same adjusted population figure (234 million) applied to the
     interleaved spectrum, resulting in an approximate valuation of
     \$2.037 billion for Nextel's General Category spectrum rights.

323. *Combined 800 MHz Spectrum Offsets.* Offsetting the valuation
     amounts for Nextel's contiguous and non-contiguous spectrum rights
     as determined above results in an offset to Nextel of approximately
     \$1.622 billion for its net loss of 800 MHz spectrum. We note that
     our calculation is based on a spectrum amount that is slightly
     higher than the 4.5 megahertz identified by Nextel as the average
     amount of 800 MHz net bandwidth it is giving up in the
     exchange.[^743] However, we believe this amount also provides a
     reasonable basis for valuation if we were to use 4.5 megahertz as
     our benchmark. By relinquishing 4.5 megahertz of spectrum on a
     nationwide basis, Nextel is giving up forty-five percent of the
     bandwidth it is gaining at 1.9 GHz. But our \$1.607 billion
     valuation of Nextel's relinquished 800 MHz spectrum is
     approximately one third of the \$4.86 billion value we attribute to
     the 1.9 GHz spectrum. Thus, on a per-MHz basis, this spectrum has a
     value twenty-seven percent lower than the 1.9 GHz spectrum. We
     regard this as an appropriate discount to account for the
     non-contiguous nature of some of the spectrum and for the somewhat
     lower population coverage. Accordingly, in the financial
     reconciliation to be made by the Transition Administrator at the
     end of the band reconfiguration process, Nextel will receive a
     credit of \$1.607 billion for its relinquishment of 800 MHz
     spectrum rights.[^744]

##### 700 MHz Guard Band Spectrum 

324. Nextel submits that it paid \$350 million at auction for its 700
     MHz Guard Band spectrum and thus should be credited that amount as
     part of the Commission's determination of compensation that is
     equitable to Nextel. We disagree. Given the slow development of
     services in the 700 MHz Guard Band, and the presence of incumbent
     television stations that may remain there beyond the period
     contemplated in the 700 MHz Guard Band licensees' business plans,
     there is no assurance that the Guard Band spectrum is worth today
     what Nextel paid for it in 2001. Moreover, as noted, *supra,* this
     spectrum cannot be made available to public safety in the near term
     and any potential long-term benefit it might afford to public
     safety or any value it might have in the marketplace is purely
     speculative at this point.[^745] That said, however, we have no
     basis to conclude, absolutely, that the record in the future rule
     making proceeding will not inform us that the 700 MHz Guard Band
     spectrum may be used to benefit of public safety. The above factors
     considered, we have determined that Nextel's relinquishing its 700
     MHz Guard Band spectrum---although its present worth cannot
     legitimately be quantified in monetary terms---it does add *de
     minimis* value to the overall bundle of spectral and financial
     benefits that Nextel brings to the table to justify giving it
     access to the 1.9 GHz spectrum. Thus, Nextel's surrender of this
     spectrum has weighed, albeit not heavily, in the equities that
     undergird our determination that the balance we establish today is
     equitable to all concerned.

### Financial Aspects of Band Reconfiguration

325. The financial and other aspects of band reconfiguration will be
     conducted in a manner that provides optimum transparency and
     protection of affected licensees and the public. The first step in
     the process will be Nextel's delivery to the Commission the
     following set of documents. The items listed in the first three
     bullets below ensure that funds for band reconfiguration will
     remain available until the project is completed. The item in the
     fourth bullet governs companies related to Nextel such as Nextel
     Partners, which will be required to perform certain acts, *e.g.,*
     reconfiguration of their own facilities, in connection with band
     reconfiguration. Moreover, certain of such companies and, it is
     believed, Nextel, have operations in Canada and Mexico, which
     operations may have to be modified in order to derive suitable
     border band plans.[^746] The document referenced in the fourth
     bullet binds all such entities to the obligations assumed hereunder
     by Nextel to the extent necessary to implement 800 MHz band
     reconfiguration, nationwide. Specifically,

-   Within sixty days of the publication of this *Report and Order* in
    the Federal Register, Nextel shall comply with the following
    conditions precedent commencing any operations within the 1.9 GHz
    band:

-   Certify that it has obtained an irrevocable letter of credit, in all
    material respects identical to that contained in Appendix E hereto,
    which provides assurances that \$2.5 billion will be available for
    band reconfiguration, notwithstanding the financial condition of
    Nextel, or its successor(s).

-   Specify on the initial letter of credit and any subsequent letters
    of credit, a Trustee, acceptable to the Commission, which shall draw
    upon and disburse funds in accordance with the terms thereof and the
    Transition Administrator's instructions. Further, on the occasion of
    a material breach by Nextel of its obligations hereunder, as
    declared by the Commission, said trustee shall receive the remaining
    balance of the letter(s) of credit to hold in trust and disburse in
    accordance with the terms of this *Report and Order*. Said funds
    shall be devoted exclusively to reconfiguration of the 800 MHz band
    except as otherwise provided in this *Report and Order*.

-   Deliver an opinion letter from counsel clearly stating, subject only
    to customary assumptions, limitations and qualifications, that in a
    proceeding under Title 11 of the United States Code, 11 U.S.C.
    Section 101 et seq. (the "Bankruptcy Code"), in which Nextel is the
    debtor, the bankruptcy court would not treat the Letter of Credit or
    proceeds of the Letter of Credit as property of Nextel's bankruptcy
    estate under Section 541 of the Bankruptcy Code. The scope of the
    opinion letter must also cover such other opinions as the Commission
    shall request. The opinion letter must contain detailed legal
    analysis of the basis of counsel's opinion. A draft opinion letter
    must be submitted for review and approval by the Commission's Office
    of General Counsel prior to issuance of the letter. Bankruptcy
    counsel, and, if applicable, counsel's firm, must have a
    Martindale-Hubbell rating of "A/V" and must satisfy the Commission
    in all other respects.

-   Supply a letter or letters, in content satisfactory to the
    Commission, from any and all parties having a financial or equitable
    interest in any existing or proposed 800 MHz system, whether in the
    United States, Mexico or Canada, and connected in any way to Nextel
    by way of being a subsidiary, partner, or otherwise; to the effect
    that such parties are bound to perform the obligations imposed on
    Nextel herein to the extent such obligations are necessary or
    desirable in the completion of reconfiguration of the 800 MHz band.

326. With this *Report and Order*, the Commission is hereby modifying
     the licenses of certain 800 MHz band licensees, as specified
     herein. As indicated above, once the details of the band
     reconfiguration become clear (*e.g.*, the specific relocation
     channel and any other necessary operating parameters are
     identified), affected licensees will file applications for further
     modification with the Commission, which will be acted upon by the
     Wireless Telecommunications Bureau under its delegated authority.
     As conditions precedent to Nextel's commencement of any operations
     under its 1.9 GHz licenses, however, (a) Nextel shall provide the
     documents specified in the previous paragraph within the required
     sixty day timeframe, (b) the Commission must approve these
     documents,[^747] (c) Nextel must pay to UTAM the amount of required
     reimbursement specified in paragraph 249 *supra*; and (d) Nextel
     shall file such additional applications, notifications, *etc.* as
     the Commissions Rules may require. In addition, the 1.9 GHz
     licenses, which shall be for a ten-year term, are subject to the
     following license conditions:[^748]

-   Operations on the 1.9 GHz spectrum shall be discontinued in any EA
    region where Nextel fails to timely abate unacceptable interference
    to any 800 MHz public safety or CII system as described in ¶¶
    139-141, *supra*.

-   Nextel must reconfigure the 800 MHz band within thirty-six months as
    described herein. If Nextel fails to meet the final benchmark, for
    reasons that Nextel could reasonably have avoided, the Commission
    will determine whether forfeitures should be imposed and/or whether
    Nextel licenses, including, but not limited to, its 1.9 GHz
    licenses, should be revoked.

-   Nextel shall certify to the Commission that all BAS facilities have
    been relocated within 30 months after the effective date of this
    *Report and Order*. If Nextel fails to meet this benchmark, for
    reasons that Nextel could reasonably have avoided, the Commission
    will determine whether forfeitures should be imposed and/or whether
    Nextel licenses, including, but not limited to, its 1.9 GHz
    licenses, should be revoked.

-   The 1.9 GHz licenses shall not be assigned to any person or entity
    who or which has not demonstrated to the satisfaction of the
    Commission that it will, and has the capacity to, assume all of
    Nextel's obligations hereunder.

327. The Transition Administrator will provide to the Commission a
     quarterly report, in form and substance satisfactory to the
     Commission, describing the progress of band reconfiguration. This
     report shall include a disclosure of the Transition Administrator's
     expenses and salary. Salary of Transition Administrator and staff
     shall be reasonable and customary with salary of employee having
     analogous responsibilities.[^749]^45A^ Nextel shall pay the
     Transition Administrators salary and reasonable expenses within
     thirty days of the presentation of an invoice therefore and may not
     condition payment in any way nor may it delay or deny payment
     without prior Commission approval. "Reasonable expenses" will be
     determined according to standards provided by the Commission. Such
     standards shall be informed by expenses that are reasonable and
     customary with similar projects entailing similar responsibilities
     as those envisioned for the Transition Administrator.

328. Nextel shall keep accurate records of the labor and material
     reasonably expended or acquired in connection with clearance of the
     1.9 GHz band. An annual audit of these expenses shall be made, at
     Nextel's expense, by an auditing firm satisfactory to the
     Commission. All Nextel claims for labor and equipment shall be at
     Nextel's actual cost, without markup.

### Financial Reconciliation Process

329. As noted above, we seek to ensure that Nextel is treated equitably
     in facilitating 800 MHz band reconfiguration but does not realize
     an undue windfall.[^750] To this end, we condition the grant of 1.9
     GHz band spectrum rights to Nextel on its meeting the obligations
     imposed by this *Report and Order*, and on its payment to the U.S.
     Treasury of any difference between the value of the 1.9 GHz band
     spectrum rights and the net sum of: (a) the value of spectrum
     rights relinquished by Nextel, and (b) Nextel's costs incurred in
     reconfiguring the 800 MHz band and (c) Nextel's costs incurred in
     clearing the 1.9 GHz band.[^751] In this regard, we recognize the
     importance of setting forth a procedural framework to determine
     whether Nextel must make a payment to the Treasury to cover any
     difference between the value of its credits and the value of
     spectrum rights in the 1.9 GHz band and to ensure that such payment
     flows to the Treasury in a timely and orderly manner. In this
     connection, we fashion certain procedural steps to afford certainty
     to this "true-up" process, while still providing Nextel with
     flexibility in the manner in which it effects any required payment.
     We also provide measures to ensure that funding is available for
     800 MHz band reconfiguration throughout the nation, including the
     areas bordering Mexico and Canada. Overall we believe that the
     measures we detail below are reasonable and necessary to ensure
     that first responders and the public receive the full benefit of
     our realignment plan.

330. At the conclusion of the thirty-six month band reconfiguration
     process specified herein, but no later than six months
     thereafter---essentially no later than forty-two months after
     commencement of the band reconfiguration process---the following
     financial reconciliation will be made:

-   Nextel will be allotted a \$1.607 billion credit for relinquishing
    rights to an average of 4.5 megahertz of spectrum in the 800 MHz
    band.

-   Nextel will provide the Transition Administrator an accounting of
    the funds spent:

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-   to reconfigure its own systems in the 800 MHz band;[^752] and

-   to clear the 1.9 GHz band of incumbents and to reimburse UTAM.

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-   Nextel will also provide the Transition Administrator an accounting
    of funds, if any, Nextel receives as reimbursement for clearing the
    1.9 GHz band.

-   The Transition Administrator shall provide an accounting of the
    funds spent to reconfigure the systems of incumbent operators in the
    800 MHz band, including its own salary and expenses.[^753]^48A^ This
    accounting shall include certifications from each relocated licensee
    that all necessary reconfiguration work has been completed and that
    Nextel and said licensee agree on the sum paid for such work.

-   Upon compliance with the foregoing requirements, Nextel will be
    allotted appropriate credits.

-   To the extent that those combined credits total less than the value
    of the 1.9 GHz spectrum, Nextel shall make a payment equal to the
    difference to the United States Treasury at the conclusion of the
    relocation process.

-   Should a payment to the Treasury prove necessary, we direct the
    Wireless Telecommunications Bureau to release a *Public Notice*
    announcing the amount to be paid to the Treasury. Thirty days
    following release of such Public Notice, Nextel shall make such
    payment to the Treasury.

-   Nextel may use monies separate and apart from the letter of credit
    to make such payment. However, should a balance remain on any
    letter(s) of credit after band reconfiguration has been completed,
    Nextel may elect to apply such excess funds to the payment to the
    Treasury.

331. We remain vigilant to our central purpose in this
     proceeding---alleviating interference to public safety---and
     therefore take steps to ensure that the security for funding
     reconfiguration remains available until the conclusion on the
     relocation process. Thus, the letter of credit shall remain open
     until the true-up process has been completed. At no time during the
     life of the letter(s) of credit shall the balance fall below \$850
     million. Nextel may terminate the letter(s) of credit only after
     band reconfiguration is complete and after the financial
     reconciliation process is complete, including any payments to the
     Treasury.

332. In the event that reconfiguration of the 800 MHz border areas is
     not completed at the end of the thirty-six month reconfiguration
     process due to circumstances outside of Nextel's control, the
     Transition Administrator shall estimate how much completing the
     reconfiguration will cost. Within thirty days of the completion of
     this estimate Nextel shall elect to either extend the life of the
     letter(s) of credit or secure a separate letter of credit to cover
     the costs of border area reconfiguration. The estimated cost of
     reconfiguring the 800 MHz band in the border areas shall be
     included as a credit in the computations described in paragraph 330
     *supra.*

# Service Pool Consolidation -- the PCIA Petition

333. In the *NPRM*, the Commission sought comment on PCIA's petition for
     rulemaking to consolidate the B/ILT Pools in the 800 MHz and 900
     MHz band.[^754] The majority of comments received in response to
     PCIA's petition for service pool consolidation in the 800 MHz and
     900 MHz bands were from utilities and other CII entities[^755] most
     of which opposed consolidation.[^756] Some CII interests argued
     that consolidation would hinder their access to needed
     spectrum,[^757] because business radio users---with eligibility
     rules less stringent than those applicable to Industrial/Land
     Transportation users---would dominate a consolidated band.[^758]
     Cinergy, Entergy, and Scana also opposed, for the same reasons,
     lifting the freeze on intercategory sharing.[^759] Boeing averred
     that the current service pool division in the band and the freeze
     on intercategory sharing protects against the incursions of CMRS
     operations into Private Land Mobile Radio spectrum.[^760] However,
     a contrary view was expressed by parties who argued that allowing
     CMRS operations would be beneficial to the extent that it affords
     additional flexibility in spectrum use.[^761] Others support
     consolidation, *inter alia* because they believe it would promote
     spectrum-sharing.[^762] One commenting party urged that we prohibit
     cellularized operation in the consolidated 900 MHz band lest the
     interference problem currently encountered by 800 MHz systems be
     replicated at 900 MHz.[^763]

334. We are consolidating the 800 MHz and 900 MHz B/ILT Pools. Any
     eligible Business or Industrial/Land Transportation entity will be
     eligible to be licensed on the consolidated channels.[^764] We
     agree with the parties, *supra*, who note that our recent
     "refarming" efforts in consolidating the service pools in bands
     below 512 MHz have resulted in improved spectrum efficiency without
     undue burden on licensees.[^765] Thus, we are not persuaded by the
     arguments from some CII interests that today's action will impair
     their access to spectrum.[^766] Also, because consolidation makes
     intercategory sharing moot, licensees and the Commission will be
     spared the resource burdens associated with intercategory sharing
     requests.[^767] Finally, although we note the concern expressed
     about the effects of cellularized operation in a consolidated 900
     MHz band, we believe that proscribing cellularized operation in a
     band in which interference to public safety communications is not
     an issue could unnecessarily hinder realization of the efficiencies
     inherent in cellular-architecture and other advanced technologies.

# Operational Flexibility in the 900 MHz Band

335. In the Balanced Budget Act Proceeding[^768] the Commission amended
     its rules to permit CMRS use of PLMR frequencies in the 800 MHz
     land mobile band and allowed PLMRS licensees to transfer their
     licenses to CMRS entities.[^769] The Commission sought comment on
     whether, in the interest of regulatory symmetry, similar rules
     should apply in the 900 MHz land mobile spectrum.[^770] In the
     *NPRM* in this proceeding, the Commission sought further comment on
     this issue in light of Nextel's White Paper proposal to accommodate
     displaced 800 MHz B/ILT licensees in the 900 MHz land mobile
     band.[^771]

336. In general, parties supported the proposal to allow CMRS operations
     on 900 MHz PLMR spectrum.[^772] Although the proposal to relocate
     all 800 MHz B/ILT and SMR licensees to the 900 MHz band is no
     longer germane, we find that other factors merit our making the 800
     MHz and 900 MHz CMRS rules complementary. In particular, we note
     that Nextel will have to shift some of its operations from the 800
     MHz band to 900 MHz in order to provide the "green space" necessary
     to effect reconfiguration of the 800 MHz band. Moreover, as noted
     above,[^773] Nextel may have to share spectrum in the 816-824 MHz
     segment of the reconfigured band with other ESMR licensees. To the
     extent that such sharing may reduce the amount of 800 MHz spectrum
     available to Nextel, we believe we should provide the regulatory
     flexibility necessary for Nextel to make up the shortfall by using
     900 MHz channels. We have less concern about unacceptable
     interference resulting from such 900 MHz ESMR use because there are
     no public safety channels allocated in the 900 MHz band. Moreover,
     because there currently is no extensive ESMR use of the 900 MHz
     band, ESMR licensees designing systems "from the ground up" in the
     900 MHz band will be better able to take interference abatement
     into account when designing their systems. However, we will not
     hesitate to act should it appear that the interference environment
     in the 900 MHz band is becoming unfavorable.

337. We therefore will allow 900 MHz PLMR licensees to initiate CMRS
     operations on their currently authorized spectrum or to assign
     their authorizations to others for CMRS use. In the *BBA R&O and
     FNPRM*, the Commission inquired whether to impose a holding period
     requirement on all new 900 MHz applications, thereby to avoid
     trafficking in 900 MHz licenses.[^774] Although the Commission, in
     the *BBA Proceeding,* put parties on notice that it might impose a
     holding period in the future we decline to do so since we observed
     no speculative runs on 900 MHz PLMR spectrum after the release of
     the *BBA R&O and FNPRM*.[^775]

# CONclusion

338. There may be no matter within our jurisdiction more crucial to
     Homeland Security and the overall general safety of life and
     property than assuring that public safety communications systems
     are free from unacceptable interference and have adequate capacity.
     Indeed, one of the express purposes of this agency's creation was
     for the "purpose of promoting safety of life and property through
     the use of wire and radio communications,"[^776] and we thus would
     be derelict were we to ignore an opportunity---such as that
     represented by 800 MHz band reconfiguration---that allows us to
     increase the reliability and capacity of 800 MHz public safety
     communications systems.

339. We stress, however, that the actions we take today in response to a
     unique set of circumstances regarding interference to public safety
     communications in the 800 MHz band are consistent with our
     statutory obligations generally to use competitive bidding in the
     allocation of spectrum. Although our emphasis herein has been on
     public safety requirements, the far more favorable interference
     environment in the post-reconfiguration 800 MHz band will ensure
     other 800 MHz licensees will also benefit from the band
     reconfiguration plan and related policies that we have adopted.
     Underlying the policies we enunciate today is the tenet put forth
     by many of the commenting parties in this proceeding: parties must
     work together to abate interference and endure an occasional
     hardship as a necessary concession to the nation's overall Homeland
     Security obligations.

# ORdering clauses

340. IT IS ORDERED that, pursuant to the authority of Sections 1, 4(i),
     303(f) and (r), 309, 316, and 332 of the Communications Act of
     1934, as amended, 47 U.S.C. §§ 151, 154(i), 303(f) and (r), 309,
     316, and 332, the rule changes specified in Appendix C are adopted.

341. IT IS FURTHER ORDERED that the rule changes set forth in Appendix C
     WILL BECOME EFFECTIVE sixty days after publication in the Federal
     Register. This action is taken pursuant to Sections 1, 4(i), 303(f)
     and (r), 309, 316 and 332 of the Communications Act of 1934, as
     amended, 47 U.S.C. §§ 151, 154(i), 303(f) and (r), 309, 316, and
     332.

342. IT IS FURTHER ORDERED that, pursuant to Section 309 and 316 of the
     Communications Act of 1934, as amended, 47 U.S.C. §§ 309, and 316,
     the licenses of all 800 MHz band licensees (including, but not
     limited to, Nextel Communications, Inc.), are hereby modified as
     specified in this *Report and Order*; provided, however, that in
     the event Nextel rejects any of the conditions for modification
     required in this *Report and Order,* all the modifications of all
     the 800 MHz licenses specified in this *Report and Order* are
     suspended unless and until the Commission orders otherwise. Nextel
     will be deemed to have rejected such conditions (a) unless it files
     with the Commission a written acceptance of all such conditions
     within thirty days of the publication of this *Report and Order* in
     the Federal Register, or (b) if it files a judicial appeal of this
     *Report and Order* within thirty days of the publication of this
     *Report and Order* in the Federal Register. Pursuant to Section
     316(a)(1) of the Communications Act of 1934, as amended, 47 U.S.C.
     § 316(a)(1), publication of this *Report and Order* in the Federal
     Register shall constitute notification in writing of our Order
     modifying Nextel's 800 MHz licenses and those of all other 800 MHz
     licenses, and of the grounds and reasons therefore, and Nextel and
     these other 800 MHz licensees shall have thirty days from the date
     of such publication to protest such Order.

343. IT IS FURTHER ORDERED that, pursuant to Section 309 and 316 of the
     Communications Act of 1934, as amended, 47 U.S.C. §§ 309 and 316,
     the Wireless Telecommunications Bureau shall further modify such
     licenses as are necessary in order to implement band
     reconfiguration in the manner specified in this *Report and
     Order*.[^777]

344. IT IS FURTHER ORDERED that within sixty days of the publication of
     this *Report and Order* in the Federal Register, Nextel shall
     comply with the following conditions precedent to its operations on
     the 1.9 GHz band:

-   Nextel shall certify that it has obtained an irrevocable letter of
    credit, in all material respects identical to that contained in
    Appendix E hereto, which provides assurances that \$2.5 billion will
    be available for band reconfiguration, notwithstanding the financial
    condition of Nextel, or its successor(s).

-   Nextel shall specify on the initial letter of credit and any
    subsequent letters of credit, a Trustee, acceptable to the
    Commission, which shall draw upon and disburse funds in accordance
    with the terms thereof and the Transition Administrator's
    instructions. Further, on the occasion of a material breach by
    Nextel of its obligations hereunder, as declared by the Commission,
    said trustee shall receive the remaining balance of the letter(s) of
    credit to hold in trust and disburse in accordance with the terms of
    this *Report and Order*. Said funds shall be devoted exclusively to
    reconfiguration of the 800 MHz band except as otherwise provided in
    this *Report and Order*.

-   Nextel shall deliver an opinion letter from counsel clearly stating,
    subject only to customary assumptions, limitations and
    qualifications, that in a proceeding under Title 11 of the United
    States Code, 11 U.S.C. Section 101 et seq. (the "Bankruptcy Code"),
    in which Nextel is the debtor, the bankruptcy court would not treat
    the Letter of Credit or proceeds of the Letter of Credit as property
    of Nextel's bankruptcy estate under Section 541 of the Bankruptcy
    Code. The scope of the opinion letter must also cover such other
    opinions as the Commission shall request. The opinion letter must
    contain detailed legal analysis of the basis of counsel's opinion. A
    draft opinion letter must be submitted for review and approval by
    the Commission's Office of General Counsel prior to issuance of the
    letter. Bankruptcy counsel, and, if applicable, counsel's firm, must
    have a Martindale-Hubbell rating of "A/V" and must satisfy the
    Commission in all other respects.

-   Nextel shall provide a letter or letters, in content satisfactory to
    the Commission, from any and all parties having a financial or
    equitable interest in any existing or proposed 800 MHz system,
    whether in the United States, Mexico or Canada, and connected in any
    way to Nextel by way of being a subsidiary, partner, or otherwise;
    to the effect that such parties are bound to perform the obligations
    imposed on Nextel herein to the extent such obligations are
    necessary or desirable in the completion of reconfiguration of the
    800 MHz band.

-   Nextel shall obtain the Commission's approval of all documents it
    submits pursuant to this paragraph.

345. IT IS FURTHER ORDERED that Nextel's 1.9 GHz modified licenses do
     not authorize Nextel to begin operations in the band until Nextel
     files with the Commission an acknowledgement that meets the
     requirements of paragraph 87 *supra.*

346. IT IS FURTHER ORDERED that within thirty days of the publication of
     this *Report and Order* in the Federal Register, Nextel and
     Southern LINC shall deliver to the Commission an agreement for the
     channel distribution for all 800 MHz licensees in the areas shown
     in Appendix G.

347. IT IS FURTHER ORDERED that, in addition to the license conditions
     set forth above and below in this *Report and Order*, and also in
     addition to such other conditions as the Commission may, in its
     discretion, deem necessary to ensure reconfiguration of the 800 MHz
     band and timely clearance of the 1.9 GHz band, Nextel's modified
     licenses authorizing operations within the 1.9 GHz band are
     conditioned on the following:

     -   Nextel must complete, and the Transition Administrator must
         certify that Nextel has completed, the retuning of Channels
         1-120 in twenty NPSPAC Regions within eighteen months after the
         release of a Public Notice announcing the start date of
         reconfiguration in the first NPSPAC region. If Nextel fails to
         meet this benchmark, for reasons that Nextel, with the exercise
         of due diligence could reasonably have avoided, the Commission
         may consider and exercise any appropriate enforcement action
         within its authority, including assessment of monetary
         forfeitures or, if warranted, license revocation.

     -   The 1.9 GHz licenses shall not be assigned to any person or
         entity who or which has not demonstrated to the satisfaction of
         the Commission that it will, and has the capacity to, assume
         all of Nextel's obligations hereunder.

     -   Nextel shall certify to the Commission that all BAS facilities
         have been relocated within thirty months after the effective
         date of this *Report and Order*. If Nextel fails to meet this
         benchmark, for reasons that Nextel could reasonably have
         avoided, the Commission will determine whether forfeitures
         should be imposed and/or whether Nextel licenses, including,
         but not limited to, its 1.9 GHz licenses, should be revoked.

     -   If 800 MHz band reconfiguration is not complete, in accordance
         with the certification of the Transition Administrator,
         thirty-six months following release of a Public Notice
         announcing the start date of reconfiguration in the first
         NPSPAC region, for reasons that Nextel could reasonably have
         avoided, the Commission will determine whether forfeitures
         should be imposed and/or whether Nextel licenses, including,
         but not limited to, its 1.9 GHz licenses, should be revoked.

     -   The 1.9 GHz licenses shall be for a ten-year term, subject,
         however to the foregoing termination provisions; and renewal
         will be conditioned on Nextel supplying substantial
         service[^778] within the ten-year period.

348. IT IS FURTHER ORDERED that Nextel, the Association of Public Safety
     Communications Officials-International, the Industrial
     Telecommunications Association, Southern LINC and the United
     Telecom Council, shall form a Transition Administrator search
     committee within fifteen days of the date of the release of this
     *Report and Order*, and shall recommend a Transition Administrator
     to the Chief of the Public Safety and Critical Infrastructure
     Division of the Wireless Telecommunications Bureau no later than
     forty-five days after the release of this *Report and Order*.

349. IT IS FURTHER ORDERED that the Transition Administrator, within ten
     days of a request from Nextel, will request funds necessary for
     band reconfiguration of a given NPSPAC Region as the need therefore
     arises, from the Letter of Credit Trustee which shall disburse such
     funds within five business days of receipt there of from the
     issuing bank, or at such later time as the Transition Administrator
     shall specify in writing.

350. IT IS FURTHER ORDERED that the Transition Administrator will
     provide to the Commission a quarterly report, in form and substance
     satisfactory to the Commission, describing the progress of band
     reconfiguration. This report shall include a disclosure of the
     Transition Administrator's salary and reasonable
     expenses.[^779]^73A^

351. IT IS FURTHER ORDERED that Nextel shall keep accurate records of
     the labor and material reasonably expended or acquired in
     connection with clearance of the 1.9 GHz band. An annual audit of
     these expenses shall be made, at Nextel's expense, by an auditing
     firm satisfactory to the Commission. All Nextel claims for labor
     and equipment shall be at Nextel's actual cost, without markup.

352. IT IS FURTHER ORDERED that (a) as a condition of its 1.9 GHz
     modified licenses, Nextel shall reimburse UTAM twenty-five percent,
     on a *pro rata* basis, of UTAM's total relocation costs incurred as
     of the date that Nextel gains access to the band, (b) Nextel's 1.9
     GHz modified licenses do not authorize Nextel to begin operations
     in the band until it pays this amount to UTAM, and (c) Nextel shall
     be entitled to seek reimbursement from UTAM for the actual
     proportional cost associated with Nextel's relocation of any
     remaining microwave links in the band.

353. IT IS FURTHER ORDERED that, as a condition on Nextel's 1.9 GHz
     licenses, Nextel SHALL, as described herein, relocate all BAS
     licensees in the 1990-2025 MHz band within thirty months after the
     effective date of this *Report and Order*, and in this connection,
     comply with the following requirements:

-   Nextel shall file with the Commission and copy the MSS licensees
    within thirty days after the effective date of this *Report and
    Order* its plan for the relocation of BAS operations in the markets
    that will be relocated during stage one (*i.e.,* relocations made
    within eighteen months after the effective date of this *Report and
    Order*).

-   Nextel shall follow a negotiation period for stage one relocations
    that ends May 31, 2005 and that ends March 31, 2006 for stage two
    relocations (*i.e.,* relocations made within thirty months after the
    effective date of this Report and Order).

-   Nextel shall provide comparable facilities to BAS incumbents that
    are relocated.

-   Nextel shall file progress reports within twelve months and
    twenty-four months after the effective date of this *Report and
    Order* on the status of the transition, including identifying the
    markets that will be relocated during stage one, and all remaining
    markets that will be relocated during stage two.

-   Nextel shall certify to the Commission that all BAS facilities have
    been relocated within thirty months after the effective date of this
    *Report and Order*. If Nextel fails to meet this benchmark, for
    reasons that Nextel could reasonably have avoided, the Commission
    will determine whether forfeitures should be imposed and/or whether
    Nextel licenses, including, but not limited to, its 1.9 GHz
    licenses, should be revoked.

-   Nextel shall be entitled to seek reimbursement from MSS licensees
    that have entered the band for the MSS licensee's pro rata share of
    Nextel's costs to clear the top thirty markets and relocate all
    fixed BAS facilities, regardless of market size, incurred during the
    thirty-six month reconfiguration process. Nextel shall be required
    to inform the Commission and MSS licensees on whether it will or
    will not seek reimbursement from MSS licensees within twelve months
    after the effective date of this *Report and Order*.

-   Nextel shall have an obligation to reimburse MSS licensees for
    Nextel's pro rata share of the actual costs associated with the
    relocation of BAS incumbents in the band incurred by MSS licensees
    during the thirty-six month reconfiguration period.

-   Nextel shall conform to the technical criteria specified in TSB 10-F
    or generally acceptable good engineering practices for determining
    interference potential between BAS and Nextel operations.

354. IT IS FURTHER ORDERED that, at the conclusion of band
     reconfiguration, Nextel will provide to the Transition
     Administrator an accounting of the funds:

-   Spent to reconfigure its own systems in the 800 MHz band;

-   Spent to clear the 1.9 GHz band of incumbents and to reimburse UTAM;
    and

-   Received as reimbursement, if any, for clearing the 1.9 GHz band.

355. IT IS FURTHER ORDERED that, at the conclusion of band
     reconfiguration, the Transition Administrator shall provide an
     accounting of the funds spent to reconfigure the systems of
     incumbent operators in the 800 MHz band. This accounting shall
     include certifications from each relocated licensee that all
     necessary reconfiguration work has been completed and that Nextel
     and said licensee agree on the sum paid for such work.

356. IT IS FURTHER ORDERED that, as a condition of its 800 MHz and 1.9
     GHz modified licenses, Nextel shall, within thirty days of the
     completion of the thirty-six month band reconfiguration process, as
     certified by the Transition Administrator and if band
     reconfiguration has not been completed in the border areas, elect
     to extend the life of the letter of credit or elect to secure a
     separate letter of credit, in an amount sufficient to ensure the
     reconfiguration of the 800 MHz licensees operating in the border
     area, as detailed herein.

357. IT IS FURTHER ORDERED that, as a condition of its 800 MHz and 1.9
     GHz modified licenses, in the event that the computations described
     in paragraphs ¶ 329-332 *supra* disclose that the credits afforded
     Nextel thereunder are less than the value of the 1.9 GHz spectrum
     rights that Nextel is receiving hereunder, Nextel SHALL DEPOSIT the
     difference in the United States Treasury; and Nextel SHALL NOT
     discontinue the letter(s) of credit it is required to maintain
     hereunder until such deposit has been received and acknowledged.

358. IT IS FURTHER ORDERED that, within thirty days of Commission
     approval of the Transition Administrator, the Transition
     Administrator will provide the Commission with a schedule detailing
     when band reconfiguration shall commence for each NPSPAC-Region.
     The plan should also detail---by NPSPAC Region---which relocation
     option each non-Nextel ESMR licensees has chosen

359. IT IS FURTHER ORDERED that the Petition for Rulemakings filed by
     the Wireless Information Networks Forum and UTStarcom Inc., and the
     Petition for Waivers filed by Lucent Technologies Inc., Ascom
     Wireless Solutions Inc., Alaska Power & Telephone Company Inc., and
     UTStarcom Inc. and Drew University ARE DENIED IN PART.

360. IT IS Further ORDERED that the PCIA Petition for Rulemaking IS
     GRANTED to the extent stated herein and denied in all other
     respects. This action is taken pursuant to Sections 4(i), 303(f)
     and (r), and 332 of the Communications Act of 1934, as amended, 47
     U.S.C. §§ 154(i), 303(f) and (r), and 332.

361. IT IS FURTHER ORDERED that the Petitions for Reconsideration and
     Clarification filed by the Association for Maximum Service
     Television and the National Association of Broadcasters, and the
     Society of Broadcast Engineers ARE GRANTED to the extent described
     herein.

362. IT IS FURTHER ORDERED that the Petition for Reconsideration and
     Clarification filed by the Boeing Company IS DENIED to the extent
     described herein.

363. IT IS FURTHER ORDERED that the Final Regulatory Flexibility
     Analysis, required by Section 604 of the Regulatory Flexibility
     Act, 5 U.S.C. 604, and as set forth in Appendix B is ADOPTED.

364. IT IS FURTHER ORDERED that the Commission\'s Consumer Information
     and Governmental Affairs Bureau, Reference Information Center,
     SHALL SEND a copy of this 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

# PRocedural matters

## Regulatory Flexibility Act

365. As required by the Regulatory Flexibility Act (RFA), the Commission
     has prepared a Final Regulatory Flexibility Analysis (Supplemental
     FRFA) of the possible impact on small entities of the changes in
     its rules adopted in this Report and Order. The FRFA is set forth
     in Appendix B. The Office of Public Affairs will send a copy of the
     *Report and Order*, including the FRFA, to the Chief Counsel for
     Advocacy of the Small Business Administration, in accordance with
     the RFA.

## Paperwork Reduction Act

366. This *Report and Order* contains a new information collection,
     which has been submitted to the Office of Management and Budget
     (OMB) for approval. As part of our continuing effort to reduce
     paperwork burdens, we invite the general public to take this
     opportunity to comment on the information collection contained in
     this *Report and Order*, as required by the Paperwork Reduction Act
     of 1995, Pub. L. No. 104-13. Public comments should be submitted to
     OMB and the Commission, and are due thirty 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.

# APPENDIX A: FINAL REGULATORY FLEXIBILITY ANALYSIS {#appendix-a-final-regulatory-flexibility-analysis .unnumbered}

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^780] an Initial Regulatory Flexibility Analysis (IRFA) was
    incorporated in the *Notice of Proposed Rule Making* (*NPRM*).[^781]
    The Commission sought written public comment on the proposals in the
    *NPRM*, including comment on the IRFA.[^782] Three commenting
    parties specifically addressed the IRFA.[^783] We discuss those
    comments below. This present Final Regulatory Flexibility Analysis
    (FRFA) conforms to the RFA.[^784]

## Need for, and Objectives of, the *Report and Order*:

367. In this *Report and Order*, we have concluded that reconfiguration
     of the 800 MHz band is essential, over the long term, to assure
     that critical public safety communications may be accommodated
     without unacceptable interference, as that term is defined in the
     *Report and Order.* Because increasing instances of interference to
     800 MHz public safety communications systems made it imperative
     that we act to stem such interference without delay, we adopted
     rules that hold the involved ESMR and cellular telephone licensees
     strictly responsible for abating interference by application of a
     variety of technical remedies which have been subsumed in this
     proceeding under the rubric of *Enhanced Best Practices*.
     Specifically, the Commission took the following actions:

-   adopted a new 800 MHz band plan that, after a transition period,
    will separate high-density ESMR systems in the band, principally
    those operated by Nextel, from public safety and other non-cellular
    800 MHz operations.

-   require Nextel to relinquish all of its 800 MHz spectrum holdings
    below 817 MHz/862 MHz resulting in an additional average of 4.5
    megahertz of 800 MHz band spectrum becoming available to the public
    safety community, particularly in the major markets where the
    shortage of public safety spectrum is most acute;

-   established a transition mechanism for band reconfiguration with
    minimal disruption to the operations of all affected 800 MHz
    incumbents during the transition period;

-   required Nextel to pay all band reconfiguration costs of public
    safety and other 800 MHz incumbents that result from transition to
    the new band plan;

-   defined unacceptable interference as a function of threshold
    received power levels of desired signals;

-   placed strict responsibility for abatement of unacceptable
    interference on the licensees whose systems are the source of such
    interference;

-   required prior notification, upon request, of the activation or
    modification of ESMR and cellular telephone cells;

-   established firm rules---including response times of twenty-four
    hours and abatement initiation time of forty-eight---for procedures
    to be used to identify, report and remedy instances of unacceptable
    interference;

-   modified certain Nextel licenses to accommodate a nationwide
    allocation in the 1910-1915 MHz/1990-1995 MHz paired spectrum block,
    in exchange for Nextel's surrendering spectrum, and bearing the
    financial burden and risk of reconfiguring the 800 MHz band;

-   consolidated the Business and Industrial/Land Transportation Pools
    in the 800 MHz and 900 MHz bands, and

-   allowed 900 MHz Private Land Mobile Radio (PLMR) licensees to
    initiate CMRS operations on their currently authorized spectrum or
    to assign their authorizations to others for CMRS use.

368. The Commission has taken these actions to immediately stem
     increasing instances of interference to 800 MHz public safety
     communications systems. The Commission has long recognized that the
     nation's public safety community requires effective radio
     communications systems free of unacceptable interference if public
     safety agencies are to adequately protect the safety of lives and
     property. The actions taken by the Commission in this *Report and
     Order* create a suitable spectrum environment for public safety and
     Critical Infrastructure Industries systems operating in the 800 MHz
     band.

369. In the *Fourth Memorandum Opinion and Order*, we both grant and
     deny petitions for reconsideration and clarification of the *Third
     Report and Order and Third Memorandum Opinion and Order*. We grant
     petitions to the extent described herein and clarify several points
     relating to BAS operations by licensees operating on different
     channel plans during the transition to the new BAS channel plan at
     2025-2110 MHz. We otherwise deny the petitions relating to BAS
     relocation issues in the 1990-2025 MHz band. We also no longer
     require BAS licensees in TV markets 31-210 to cease operation on
     channels 1 and 2 (1990-2008 MHz and 2008-2025 MHz, respectively)
     until they have been relocated to their final channel plan in the
     2025-2110 MHz band, but otherwise retain our previously adopted
     relocation rules for MSS licensees. The changes we adopt are
     necessary to allow Nextel, as a new entrant in the 1990-2025 MHz
     band, to participate in the relocation process we had previously
     established for BAS incumbents.

## Summary of Significant Issues Raised by Public Comments in Response to the IRFA:

370. Three parties submitted comments specifically in response to the
     IRFA: Business Autophones, Inc. (Business Autophones), Small
     Business in Telecommunications (SBT), and Skitronics, LLC
     (Skitronics).[^785] Business Autophones opines that the Nextel
     Plan, which contemplated relocating B/ILT licensees from the 800
     MHz band to the 700 MHz and 900 MHz at their own expense, would be
     financially devastating to small business B/ILT licensees and urges
     the Commission to either abate interference on a case-by-case basis
     or adopt the plan proposed by NAM/MRFAC which reconfigured the band
     but did not relocate B/ILT licensees.[^786] For the reasons
     described *infra* we have adopted a band plan that does not
     relocate B/ILT licensees to the 700 MHz and 900 MHz band and
     requires Nextel to finance any necessary relocation of B/ILT
     licensees.

371. Skitronics posits on the impact of four separate alternatives set
     forth in the *NPRM* on small businesses.

-   Skitronics echoes Business Autophones concerns about the effect of
    the proposal to relocate B/ILT licensees from the 800 MHz band to
    the 700 MHz and 900 MHz at their own expense.[^787] As we discuss at
    ¶ 27 *infra*, we did not choose this alternative.

-   Skitronics argues that Nextel's alternative proposal, one that would
    allow incumbent 800 MHz operators to remain in the band on a
    secondary status, would deleteriously affect small business SMR
    operators by impacting these business' growth prospects as well as
    their ability to guarantee continuous service to their
    customers.[^788] We note that although Nextel offered this
    alternative in its original *White Paper* proposal, Nextel removed
    it as part of the plan it submitted as a member of the Consensus
    Parties. Therefore, we ceased to consider this alternative at that
    time and we have not chosen to enact that alternative as a rule.

-   Skitronics argues that the Commission's consideration of moving 800
    MHz incumbents to the 2.1 GHz imposes significant costs on small
    business SMR licensees since the propagation qualities of the 2.1
    GHz spectrum make it unsuitable for SMR use and there is a lack of
    available equipment suitable for SMR operations in this band.[^789]
    As in the case of the alternative of allowing SMR licensees to
    remain in the 800 MHz band on a secondary basis, this alternative
    was superseded by the alternative set forth by the Consensus Parties
    in the Consensus Plan and we have not chosen to move 800 MHz
    incumbents to the 2.1 GHz band.

-   Skitronics contends that the alternative mentioned in the *NPRM*
    that has the least impact on small business is enforcement of
    existing rules against those licensees responsible for causing
    interference to public safety on a case-by-case basis.[^790] For the
    reasons discussed at ¶ 29 *infra*, we declined to adopt this
    alternative.

372. Unlike the two other comments received in response to the IRFA, SBT
     focuses its comments on the adequacy of the IRFA in terms of its
     compliance with the RFA. Specifically, SBT makes the following
     arguments:

-   the IRFA does not describe the significant or potential economic
    impact of the *NPRM* on small entities as required by the RFA;[^791]

-   the IRFA omits any description of the problem to be rectified by the
    regulation to be promulgated or an objective for any proposed rule
    as required by the RFA;[^792]

-   the Commission either relied on outdated statistical sources in
    calculating the number of affected small licensees or failed to cite
    to the source(s) entirely;[^793]

-   SBT agrees with the IRFA's conclusion that the *NPRM* does not
    propose a rule that will entail additional reporting,
    record-keeping, and other compliance requirements because the *NPRM*
    does not, in fact, propose any rules.[^794] However, in Section D
    *infra* we add new reporting and other requirements.

-   SBT urges the Commission to amend the *NPRM*'s IRFA in any
    subsequent IRFA or FRFA if a substantive rule emerges from this
    proceeding.[^795]

-   SBT contends that the Commission should convert the *NPRM* to a
    Notice of Inquiry (NOI) and issue a second NPRM to propose specific
    rules.[^796]

373. With regard to SBT's comments, as an initial matter we believe that
     we do not need to issue a NOI in this proceeding because the IRFA's
     description of the problem of interference to public safety systems
     in the 800 MHz band is a sufficient description of the problem to
     be rectified in this proceeding.[^797] Moreover, we believe our
     description of the two plans under consideration in the *NPRM*
     adequately described the rules under consideration.[^798] We also
     note that the Consensus Parties filed a plan superseding one of the
     plans discussed in the *NPRM* on September 23, 2002 and the major
     revision of that new plan on December 24, 2002. Both of these
     plans, as well as the comments received in response to these plans,
     proposed substantive rules. Moreover, in the interest of ensuring a
     complete record, the Commission opened two additional notice and
     comment rounds to obtain public comment on these two plans. Our
     position, therefore, is that the Commission clearly stated its
     proposals either in the *NPRM* and IRFA or fully clarified them in
     the two subsequent notice and comment rounds that permitted full
     comment on subsequently proposed plans. Indeed, the Commission
     received the bulk of all comments in this proceeding subsequent to
     the comment period initiated in the *NPRM*. Finally, we note that
     in Section C, *infra,* we are using updated statistical sources to
     assess the impact of the rules we adopt today on small businesses.

## Description and Estimate of the Number of Small Entities To Which the Rules Will Apply:

374. 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.[^799] The RFA generally
     defines the term "small entity" as having the same meaning as the
     terms "small business," "small organization," and "small
     governmental jurisdiction."[^800] In addition, the term "small
     business" has the same meaning as the term "small business concern"
     under the Small Business Act.[^801] A "small business concern" is
     one that is: (1) is independently owned and operated; (2) is not
     dominant in its field of operation; and (3) satisfies any
     additional criteria established by the Small Business
     Administration (SBA).[^802] Below, we further describe and estimate
     the number of small entity licensees and regulatees that may be
     affected by the rule changes adopted herein.

375. A "small organization" is generally any not-for-profit enterprise
     which is independently owned and operated and is not dominant in
     its field.[^803] Nationwide, there are approximately 1.6 million
     small organizations.[^804] We note that, according to SBA data,
     there are approximately 22.4 million small businesses
     nationwide.[^805] We describe and estimate, below, the number of
     small entities---applicants, licensees, and radio equipment
     manufacturers---that may be affected by this *Report and Order*.

376. *Governmental Entities*. The term \"small governmental
     jurisdiction\" is defined as "governments of cities, towns,
     townships, villages, school districts, or special districts, with a
     population of less than fifty thousand."[^806] As of 1997, there
     were approximately 87,453 governmental jurisdictions in the United
     States.[^807] This number includes 39,044 county governments,
     municipalities, and townships, of which 37,546 (approximately
     96.2%) have populations of fewer than 50,000, and of which 1,498
     have populations of 50,000 or more. Thus, we estimate the number of
     small governmental jurisdictions overall to be 84,098 or fewer.

377. *Wireless Telecommunications.* The SBA has developed a small
     business size standard for wireless firms within the broad economic
     census category "Cellular and Other Wireless
     Telecommunications."[^808] Under this SBA category, a wireless
     business is small if it has 1,500 or fewer employees. For the
     census category Cellular and Other Wireless Telecommunications
     firms, Census Bureau data for 1997 show that there were 977 firms
     in this category, total, that operated for the entire year.[^809]
     Of this total, 965 firms had employment of 999 or fewer employees,
     and an additional 12 firms had employment of 1,000 employees or
     more.[^810] Thus, under this category and size standard, the
     majority of firms can be considered small.

378. *Public Safety Radio Licensees.* As a general matter, Public Safety
     Radio Pool licensees include police, fire, local government,
     forestry conservation, highway maintenance, and emergency medical
     services.[^811] The SBA rules contain a definition for cellular and
     other wireless telecommunications companies which encompasses
     business entities engaged in radiotelephone communications
     employing no more that 1,500 persons.[^812] There are a total of
     approximately 127,540 licensees within these services.[^813] With
     respect to local governments, in particular, since many
     governmental entities as well as private businesses comprise the
     licensees for these services, we include under public safety
     services the number of government entities affected.

379. *Business, Industrial and Land Transportation Licensees.* At
     present, there are 3239 Business and Industrial/Land Transportation
     (I/LT) licensees that may be affected by this Report and
     Order.[^814] The Commission does not require B/ILT licensees to
     disclose information about number of employees, so the Commission
     does not have information that could be used to determine how many
     B/ILT licensees constitute small entities under this definition.
     Moreover, we note that B/ILT licensees generally are not in the
     business of providing cellular or other wireless telecommunications
     services but instead use the licensed facilities in support of
     other business activities.

380. *Specialized Mobile Radio Licenses*. The Commission awards \"small
     entity\" and \"very small entity\" bidding credits in auctions for
     Specialized Mobile Radio (SMR) geographic area licenses in the 800
     MHz and 900 MHz bands to firms that had revenues of no more than
     \$15 million in each of the three previous calendar years, or that
     had revenues of no more than \$3 million in each of the previous
     calendar years, respectively.[^815] In the context of both the 800
     MHz and 900 MHz service, the SBA has approved the definitions of
     "small entity" and "very small entity."[^816] These bidding credits
     apply to SMR providers in the 800 MHz and 900 MHz bands that either
     hold geographic area licenses or have obtained extended
     implementation authorizations. The Commission does not know how
     many firms provide 800 MHz or 900 MHz geographic area SMR service
     pursuant to extended implementation authorizations, nor how many of
     these providers have annual revenues of no more than \$15 million.
     One firm has over \$15 million in revenues. The Commission assumes,
     for purposes here, that all of the remaining existing extended
     implementation authorizations are held by small entities, as that
     term is defined by the SBA. The Commission has held auctions for
     geographic area licenses in the 800 MHz SMR band. In the 800 MHz
     auction, 38 of the 524 licenses won were won by small and very
     small entities.

381. *Wireless Communications Equipment Manufacturers.* The SBA has
     established a small business size standard for radio and television
     broadcasting and wireless communications equipment manufacturing.
     Under the standard, firms are considered small if they have 1000 or
     fewer employees.[^817] Census Bureau data for 1997 indicates that,
     for that year, there were a total of 1,215 establishments[^818] in
     this category.[^819] Of those, there were 1,150 that had employment
     under 500, and an additional 37 that had employment of 500 to 999.
     The Commission estimates that the majority of wireless
     communications equipment manufacturers are small businesses.[^820]

382. *Broadcast Auxiliary Service (BAS).* BAS involves a variety of
     transmitters, generally used to relay broadcast programming to the
     public (through translator and booster stations) or within the
     program distribution chain (from a remote news gathering unit back
     to the stations). The Commission has not developed a definition of
     small entities specific to broadcast auxiliary licensees. The U.S.
     Small Business Administration (SBA) has developed small business
     size standards, as follows: 1) For TV BAS, we will use the size
     standard for Television Broadcasting, which consists of all such
     companies having annual receipts of no more than \$12.0
     million;[^821] 2) For Aural BAS, we will use the size standard for
     Radio Stations, which consists of all such companies having annual
     receipts of no more than \$6 million;[^822] 3) For Remote Pickup
     BAS we will use the small business size standard for Television
     Broadcasting when used by a TV station and that for Radio Stations
     when used by such a station.

383. According to Commission staff review of BIA Publications, Inc.
     Master Access Television Analyzer Database as of May 16, 2003,
     about 814 of the 1,220 commercial television stations in the United
     States had revenues of \$12 million or less. We note, however,
     that, in assessing whether a business concern qualifies as small
     under the above definition, business (control) affiliations[^823]
     must be included.[^824] Our estimate, therefore, likely overstates
     the number of small entities that might be affected by our action,
     because the revenue figure on which it is based does not include or
     aggregate revenues from affiliated companies. There are also 2,127
     low power television stations (LPTV).[^825] Given the nature of
     this service, we will presume that all LPTV licensees qualify as
     small entities under the SBA size standard. According to Commission
     staff review of BIA Publications, Inc., Master Access Radio
     Analyzer Database, as of May 16, 2003, about 10,427 of the 10,945
     commercial radio stations in the United States had revenue of \$6
     million or less. We note, however, that many radio stations are
     affiliated with much larger corporations with much higher revenue,
     and, that in assessing whether a business concern qualifies as
     small under the above definition, such business (control)
     affiliations[^826] are included.[^827] Our estimate, therefore,
     likely overstates the number of small businesses that might be
     affected by our action.

384. *Cable Antenna Relay Service (CARS)*. CARS includes transmitters
     generally used to relay cable programming within cable television
     system distribution systems. The SBA has developed a small business
     size standard for Cable and other Program Distribution, which
     consists of all such companies having annual receipts of no more
     than \$12.5 million. According to Census Bureau data for 1997,
     there were 1,311 firms within the industry category Cable and Other
     Program Distribution, total, that operated for the entire
     year.[^828] Of this total, 1,180 firms had annual receipts of under
     \$10 million, and an additional fifty-two firms had receipts of
     \$10 million to \$24,999,999.00.[^829] Thus, under this standard,
     the majority of firms can be considered small.

385. *Geostationary, Non-Geostationary Orbit, Fixed Satellite, or Mobile
     Satellite Service Operators (including 2 GHz MSS systems)*. The
     Commission has not developed a definition of small entities
     applicable to geostationary or non-geostationary orbit,
     fixed-satellite or mobile-satellite service operators. The SBA has
     developed a small business size standard for Satellite
     Telecommunications Carriers, which consists of all such companies
     having \$12.5 million or less in annual receipts.[^830] According
     to Census Bureau data for 1997, there were 324 firms that operated
     for the entire year.[^831] Of this total, 273 firms had annual
     receipts under \$10 million, and an additional twenty-four firms
     had annual receipts of \$10 million to \$24,999,990.[^832] Thus,
     under this size standard, the majority of firms can be considered
     small.

386. *Fixed Microwave Services*. Microwave services include common
     carrier,[^833] private-operational fixed,[^834] and broadcast
     auxiliary radio services.[^835] At present, there are approximately
     36,708 common carrier fixed licensees and 59,291 private
     operational-fixed licensees and broadcast auxiliary radio licensees
     in the microwave services. The Commission has not yet defined a
     small business with respect to microwave services. For purposes of
     the FRFA, we will use the SBA's definition applicable to wireless
     and other telecommunications companies---*i.e.*, an entity with no
     more than 1,500 persons.[^836] According to Census Bureau data for
     1997, there were 977 firms in this category, total, that operated
     for the entire year.[^837] Of this total, 965 firms had employment
     of 999 or fewer employees, and an additional twelve firms had
     employment of 1,000 employees or more.[^838] Thus, under this size
     standard, majority of firms can be considered small.

387. We note that the number of firms does not necessarily track the
     number of licensees. We estimate that all of the Fixed Microwave
     licensees (excluding broadcast auxiliary licensees) would qualify
     as small entities under the SBA definition. Of these licenses,
     approximately fourteen are issued for frequencies in the Emerging
     Technology bands affected by this proceeding. This, assuming that
     these entities also qualify as small businesses, as many as
     fourteen small business licensees could be affected by the rules we
     adopt. We note that these entities have been subject to relocation
     by UTAM under rules originally adopted in the Commission's
     *Emerging Technologies* proceeding. UTAM is the Commission's
     frequency coordinator for UPCS devices in the 1910-1930 MHz band.
     The *Fifth Report and Order* anticipates that these general
     relocation rules will continue to apply to FS microwave licensees
     and does not propose to modify the class of licensees that are
     subject to these relocation provisions.

## Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

388. We expect that, at most, the rules adopted herein will result in
     nominal new reporting, recordkeeping, or other compliance
     requirements imposed on entities affected in this proceeding, as
     discussed Appendix B and ¶¶ 355-356, *infra*. The rules we adopt
     herein require that any Cellular Radiotelephone and/or ESMR
     licensee that receives an interference complaint from a public
     safety/CII licensee shall promptly respond to such complaint.
     Cellular Radiotelephone licensees, in conjunction ESMR licensees,
     shall establish an electronic means of receiving the initial
     complaint and shall respond on an "as soon as possible" basis and
     no later than twenty-four hours after receipt of initial
     notification. The purpose of this notification rule is to provide
     public safety/CII licensees a means to communicate to Cellular
     Radio Telephone and/or ESMR licensees instances of interference and
     for Cellular Radiotelephone and/or ESMR licensees to immediately
     initiate corrective action.

389. Additionally, the rules we adopt today provide that, upon request
     by a public safety/CII licensee, Cellular Radiotelephone and/or
     ESMR licensees must provide to the public safety/CII licensee the
     following information before any new cell sites are constructed or
     any existing cells are modified: (1) location; (2) effective
     radiated power; (3) antenna height; and (4) channels in use. The
     purpose of this rule is for informational purposes only and does
     not entitle the public safety/CII licensee to approve or disapprove
     the activation of a proposed cell site or to demand changes to the
     proposed technical parameters. The principal purpose of this rule
     is to facilitate a dialogue between Cellular Radiotelephone
     licensees and public safety/CII licensees regarding potential
     interference, identification of interference, and voluntary
     corrective measures.

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

390. 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.[^839]

391. Our decision to reconfigure the 800 MHz band is generally
     size-neutral, but some aspects are beneficial to small entities for
     the following reasons:

-   Although there are significant short-term costs associated with band
    reconfiguration, it is the solution most likely to yield maximum
    interference protection benefits for the least cost over the long
    run. This cost savings are significant for small entities with
    limited resources.

-   Once implemented, a reconfigured band will reduce both the upfront
    amount of coordinated engineering work necessary to prevent
    interference and the burden of troubleshooting interference
    incidents on a case-by-case basis. This will allow small entities to
    utilize their scarce engineering resources more effectively.

392. We also considered proposals to reallocate (1) Nextel's 700 MHz
     Guard Band Block B spectrum, and the Upper 700 MHz band to public
     safety use; and (2) provide private radio licensees 2:1 access to
     900 MHz spectrum. Our decision to decline to adopt these proposals
     was generally size-neutral but has the following impact on small
     entities:

-   Since the Upper 700 MHz band is designated for auction, our decision
    not to utilize this band will allow small entities to bid on it in
    the future.

-   Because we contemplate a future rulemaking proceeding to determine
    the ultimate disposition of Nextel's 700 MHz Guard Band spectrum, we
    afford small businesses an opportunity to comment on the future use
    of this spectrum.

393. We have considered the costs of realignment and the limited
     resources of small entities, including public safety, in
     effectuating band realignment. We believe that our decision will
     not have a significant economic impact on small entities in this
     regard because the cost of 800 MHz realignment will be borne by
     Nextel (*i.e.*, Nextel will pay relocation costs). We reject the
     alternative of deferring final action on band reconfiguration,
     because deferral would increase the potential for increased
     interference to public safety systems because ESMR and Cellular
     telephone licensees would remain in close proximity to such systems
     while expanding their operations.

394. Although we have not codified the *Best Practices Guide*, we
     endorse the interference abatement strategies therein. However,
     when we considered the sole use of Enhanced Best Practices as an
     alternative to reconfiguring the 800 MHz band in its entirety, we
     found this alternative less effective and more costly over the long
     term than band reconfiguration, and therefore more likely to be
     harmful to smaller entities. Our finding in that regard rests on
     the following facts:

-   Addressing interference on a case-by-case basis is both
    labor-intensive and expensive, which puts smaller entities at risk
    due to their more limited resources.

-   The transactional cost of applying Enhanced Best Practices as an
    exclusive remedy would increase as new public safety and other
    non-cellular systems came on line and ESMR and cellular telephone
    licensees increased the capacity of their systems by adding more
    cells.

-   The increased cost and labor burden disproportionately affects
    public safety agencies, many of which are small entities operating
    with very limited human, technical and financial resources.

395. We have determined not to require public safety licensees to
     increase their signal strength. Such a requirement would impose a
     substantial burden on public safety licensees, including small
     entities, which would often continue to suffer from interference
     until the causes could be identified and until appropriate channels
     and sites for the construction of new base station facilities could
     be obtained.

396. Regarding our decision to permit negotiated agreements to swap or
     exchange channels as a means to resolve interference to public
     safety systems, we do not foresee any adverse impact on small
     entities. The channel swapping proposals to date have specified
     that Nextel will bear the costs thereof. To the extent that small
     entities bear channel swap expenses not assumed by Nextel, we
     believe, for the reasons discussed at ¶ 29 *supra*, the financial
     burden of these small-scale band reconfigurations should be less
     than the cost of reliance on Enhanced Best Practices for the long
     term abatement of unacceptable interference.

397. Regarding our decision to hold Cellular Radio Telephone and ESMR
     licensees strictly responsible for effectively abating actual or
     potential unacceptable interference to 800 MHz public safety
     systems in the shortest practicable time, we do not anticipate a
     significant burden on small entities. We recognize that our rule
     does not exempt small entities from its ambit. However, in
     eliminating the interference we afford licensees the flexibility to
     determine which system---ESMR, Cellular Telephone or CII/public
     safety---to modify and what particular technical parameters to
     change on these systems; and impose on the interfering licensee(s),
     the obligation to promptly implement such changes. Moreover, we
     note that small entities were generally not among the interfering
     parties in those instances of interference that were brought to our
     attention by parties in this proceeding. We considered the
     alternative of imposing system-wide, stringent technical
     limitations on ESMR and Cellular Telephone licensees; however, we
     found selection of that alternative unwarranted at this time. Such
     rules would have imposed a burden on all licensees, including small
     entities, which were not among those causing interference to 800
     MHz public safety systems. In particular, we have heeded the
     filings of rural cellular telephone carriers who opposed imposition
     of out-of-band emission standards that would require them to add
     expensive equipment to their cell sites.

398. Regarding our adoption of rules establishing general standards and
     procedures to govern the abatement of interference to public safety
     systems, we recognize that they will apply equally to all
     licensees, including small entities, which cause interference to
     800 MHz public safety systems. However, we do not anticipate any
     significant adverse impact on small entities. We adopted rules that
     were intentionally general in nature to confer considerable
     discretion on the parties involved in abating instances of
     interference to public safety systems. Moreover, as noted above,
     small entities were generally not among the interfering parties in
     those instances of interference that were brought to our attention
     by parties in this proceeding. To the extent that they can
     demonstrate that they are not contributing to the interference to
     the public safety systems, they will not be responsible for abating
     the interference. Therefore, the burden should be minimal for those
     small entities not contributing to the public safety interference
     problem in the 800 MHz band. The minimal burden imposed by these
     rules is necessary to ensure that critical public safety
     communications may be accommodated without unacceptable
     interference.

399. In this respect, we are mindful that a number of the public safety
     systems that are experiencing interference are small entities. We
     believe that the rules will impose a minimal burden on small public
     safety entities. First, because we will only require them to
     furnish certain necessary information to all licensees that may be
     responsible for causing the interference. Second, because this
     provision will assure them of timely responses to and analyses of
     their interference complaints. Ultimately, the burden of supplying
     this information will be significantly less than that associated
     with identifying each source of unacceptable interference and
     contacting such sources individually.

400. Regarding our decision to require notification of the activation of
     new or modified ESMR or cellular radiotelephone cells, we do not
     perceive any adverse impact on small entities. Indeed, the prior
     notification requirement will enable small entities, such as public
     safety/CII licensees, to take proactive, anticipatory steps to
     address potential interference. Without this requirement, public
     safety/CII licensees would first have to experience interference
     before taking recourse. Similarly, the requirement that Cellular
     Radiotelephone and/or ESMR licensees promptly initiate corrective
     actions after having been notified of interference by public
     safety/CII licensees minimizes the burden on small entities of
     having to endure prolonged periods of interference. Moreover, as
     noted above, small entities were generally not among the
     interfering parties in those instances of interference that were
     brought to our attention by parties in this proceeding.

401. Regarding our decision to consolidate the 800 MHz and 900 MHz
     Business and Industrial/Land Transportation Pools, we perceive no
     adverse impact on small entities. This decision will allow any
     eligible Business or Industrial/Land Transportation entity to be
     licensed on the consolidated channels. This consolidation will
     improve spectrum efficiency, promote the use of advanced
     technologies by affording licensees more contiguous spectrum, and
     reduce regulatory burdens on all licensees, including small
     entities. The alternative of retaining separate pools for each
     service would subject licensees to the unnecessary burden of
     seeking waivers to permit intercategory sharing, which may have
     been comparatively more onerous for smaller entities to prepare and
     file.

402. Regarding our decision to allow 900 MHz PLMR licensees to initiate
     CMRS operations on their currently authorized spectrum or to assign
     their authorizations to others for CMRS use, we perceive no adverse
     impact on small entities. This decision will improve spectrum
     efficiency, promote the use of advanced technologies by affording
     licensees access to addition spectrum.

403. Regarding our decision to allocate the 1910-1915 MHz/1990-1995 MHz
     paired spectrum blocks to Nextel, we perceive no adverse impact on
     small entities. Redesignating this spectrum for Nextel's use, for
     example, will facilitate 800 MHz realignment, by, among other
     things, introducing an additional entity that can participate in
     funding the relocation costs of public safety, critical
     infrastructure, and private wireless entities, including small
     entities. Alternatively, maintaining this spectrum without applying
     our relocation principles will expose such entities to continued
     interference without sufficient spectrum and funding to achieve
     realignment. Further, we are satisfied that our decision will not
     adversely impact BAS, UPCS, MSS, and microwave interests on account
     of expenditures in this spectrum. As noted in the *Report and
     Order*, Nextel has agreed to reimburse these interests or pay the
     upfront costs to relocate incumbents in the manner provided by our
     Rules, and we will hold Nextel to that agreement.

404. **[Report to Congress:]{.underline}** The Commission will send a
     copy of the *Report and Order, Fifth Report and Order, Memorandum
     Opinion and Order, and Order,* including this FRFA, in a report to
     be sent to Congress and the General Accounting Office pursuant to
     the Congressional Review Act.[^840] In addition, the Commission
     will send a copy of the *Report and Order*, including this FRFA, to
     the Chief Counsel for Advocacy of the SBA. A copy of the *Report
     and Order* and FRFA (or summaries thereof) will also be published
     in the Federal Register.[^841]

# APPENDIX B: PAPERWORK REDUCTION ANALYSIS {#appendix-b-paperwork-reduction-analysis .unnumbered}

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

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405. In this *Report and Order* we require that any Cellular
     Radiotelephone and/or ESMR licensee that receives an interference
     complaint from a public safety/CII licensee shall respond to such
     complaint. To facilitate receipt of complaints, Cellular
     Radiotelephone licensees, in conjunction with Part 90 ESMR
     licensees, must establish an electronic means of receiving the
     initial notification and shall respond to such notification on an
     "as soon as possible" basis and no later than 24 hours after
     receipt of initial notification. The purpose of this notification
     rule is to provide prompt notification to ESMR and Cellular
     Radiotelephone licensees that their transmissions are interfering
     with public safety/CII transmissions, some of which are crucial to
     protection of life and property. These requirements constitute new
     \"collections of information\" within the meaning of the Paperwork
     Reduction Act of 1995, 44 U.S.C. §§ 3501-3520. Implementation of
     this requirement is subject to approval by the Office of Management
     and Budget as prescribed by the Paperwork Reduction Act.

406. Additionally, the rules we adopt today provide that upon request by
     a public safety/CII licensee, Cellular Radiotelephone and/or ESMR
     licensees must provide to the public safety/CII licensee the
     following information before any new cell sites are constructed or
     any existing cells are modified: (1) location; (2) effective
     radiated power; (3) antenna height; (4) channels in use. The
     purpose of this rule is for informational purposes only and does
     not entitle the public safety/CII licensee to approve or disapprove
     the activation of a proposed cell site or to demand changes to the
     proposed technical parameters. The principal purpose of this rule
     is to forestall activation of facilities that have the potential to
     cause interference to communications, some of which may be crucial
     to the safety of life and property. These requirements constitute
     new \"collections of information\" within the meaning of the
     Paperwork Reduction Act of 1995, 44 U.S.C. §§ 3501-3520.
     Implementation of this requirement is subject to approval by the
     Office of Management and Budget as prescribed by the Paperwork
     Reduction Act.

407. In this present document, we have assessed the effects of the
     above-mentioned information collection requirements on small
     business concerns, and find that these information collection
     requirements will not adversely affect businesses with fewer than
     twenty-five employees.

# Appendix C: Final Rules {#appendix-c-final-rules .unnumbered}

> **PART 15 -- RADIO FREQUENCY DEVICES**

1.  The authority citation for Part 15 continues to read as follows:

    **Authority: 47 U.S.C. 154, 302, 303, 304, 307, 336, and 544A.**

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408. Section 15.301 is amended as follows:

     **§ 15.301 Scope.**

     This subpart sets out the regulations for unlicensed personal
     communications services (PCS) devices operating in the 1915-1930
     MHz and 2390-2400 MHz frequency bands.

409. Paragraph (g) of Section 15.303 is amended as follows:

     **§ 15.303 Definitions.**

\* \* \* \* \*

\(g\) *Personal Communications Services (PCS) Devices \[Unlicensed\]*.
Intentional radiators operating in the frequency bands 1915-1930 MHz and
2390-2400 MHz that provide a wide array of mobile and ancillary fixed
communication services to individuals and businesses.

\* \* \* \* \*

410. Section 15.311 is amended as follows:

     **§ 15.311 Labeling requirements.**

     In addition to the labeling requirements of §15.19(a)(3), all
     devices operating in the frequency band 1915-1930 MHz authorized
     under this subpart must bear a prominently located label with the
     following statement: \* \* \*

411. Paragraph (a) of Section 15.319 is amended as follows:

     **§ 15.319 General technical requirements.**

     \(a\) The 1915-1920 MHz and 2390-2400 MHz bands are limited to use
     by asynchronous devices under the requirements of § 15.321. \* \*
     \*

\* \* \* \* \*

412. Paragraphs (a) and (b) of Section 15.321 is amended as follows:

     **§ 15.321 Specific requirements for asynchronous devices operating
     in the 1915-1920 MHz and 2390-2400 MHz bands.**

     \(a\) Operation shall be contained within either or both of the
     1915-1920 MHz and 2390-2400 MHz bands. \* \* \*

     \(b\) All systems of less than 2.5 MHz emission bandwidth shall
     start searching for an available spectrum window within 3 MHz of
     the band edge at 1915, 1920, 2390, or 2400 MHz while systems of
     more than 2.5 MHz emission bandwidth will first occupy the center
     half of the band. \* \* \*

\* \* \* \* \*

Part 22 of title 47 of the Code of Federal Regulations is revised to
read as follows:

> **PART 22 -- PUBLIC MOBILE SERVICES**

413. The authority citation for Part 22 continues to read as follows:

     **AUTHORITY: 47 U.S.C. 154, 222, 303, 309 and 332.**

414. The following sections are added immediately after the text of
     Section 22.969:

     **§ 22.970 Unacceptable interference to Part 90 non-cellular 800
     MHz licensees from cellular radiotelephone or Part 90 ESMR
     systems.**

     \(a\) *Definition.* Except as provided in 47 C.F.R. §90.617(k),
     unacceptable interference to non-cellular Part 90 licensees in the
     800 MHz band will be deemed to occur when the below conditions are
     met:

     \(1\) A transceiver at a site at which interference is encountered:

     \(i\) Is in good repair and operating condition, and is receiving:

     \(A\) A median desired signal of -104 dBm or higher, as measured at
     the R.F. input of the receiver of a mobile unit; or

     \(B\) A median desired signal of -101 dBm or higher, as measured at
     the R.F. input of the receiver of a portable *i.e.* hand-held unit;
     and, either

     \(ii\) Is a voice transceiver:

     \(A\) with manufacturer published performance specifications for
     the receiver section of the transceiver equal to, or exceeding, the
     minimum standards set out in Section (b), below; and;

     \(B\) Receiving an undesired signal or signals which cause the
     measured Carrier to Noise plus Interference (C/(I+N)) ratio of the
     receiver section of said transceiver to be less than 20 dB, or,

     \(iii\) Is a non-voice transceiver receiving an undesired signal or
     signals which cause the measured bit error rate (BER) (or some
     comparable specification) of the receiver section of said
     transceiver to be more than the value reasonably designated by the
     manufacturer**.**

     \(2\) Provided, however, that if the receiver section of the mobile
     or portable voice transceiver does not conform to the standards set
     out in paragraph (b), below, then that transceiver shall be deemed
     subject to unacceptable interference only at sites where the median
     desired signal satisfies the applicable threshold measured signal
     power in paragraphs (a)(1)(i) after an upward adjustment to account
     for the difference in receiver section performance. The upward
     adjustment shall be equal to the increase in the desired signal
     required to restore the receiver section of the subject transceiver
     to the 20 dB C/(I+N) ratio of paragraph (a)(1)(iv)(a) above. The
     adjusted threshold levels shall then define the minimum measured
     signal power(s) in lieu of paragraphs (a) (1) (i) at which the
     licensee using such non-compliant transceiver is entitled to
     interference protection.

     \(b\) *Minimum Receiver Requirements*. Voice transceivers capable
     of operating in the 806-824 MHz portion of the 800 MHz band shall
     have the following minimum performance specifications in order for
     the system in which such transceivers are used to claim entitlement
     to full protection against unacceptable interference. (See
     paragraph (a) (2) above.)

> \(1\) Voice units intended for mobile use: 75 dB intermodulation
> rejection ratio; 75 dB adjacent channel rejection ratio; -116 dBm
> reference sensitivity.
>
> \(2\) Voice units intended for portable use: 70 dB intermodulation
> rejection ratio; 70 dB adjacent channel rejection ratio; -116 dBm
> reference sensitivity.

**§ 22.971 Obligation to abate unacceptable interference.**

\(a\) *Strict Responsibility*. Any licensee who, knowingly or
unknowingly, directly or indirectly, causes or contributes to causing
unacceptable interference to a non-cellular Part 90 licensee in the 800
MHz band, as defined in § 22.970 of this chapter, shall be strictly
accountable to abate the interference, with full cooperation and utmost
diligence, in the shortest time practicable. Interfering licensees shall
consider all feasible interference abatement measures, including, but
not limited to, the remedies specified in the interference resolution
procedures set forth in § 22.972 of this chapter. This strict
responsibility obligation applies to all forms of interference,
including out-of-band emissions and intermodulation.

\(b\) *Joint and Several Responsibility*. If two or more licensees
knowingly or unknowingly, directly or indirectly, cause or contribute to
causing unacceptable interference to a non-cellular Part 90 licensee in
the 800 MHz band, as defined in § 22.970 of this chapter, such licensees
shall be jointly and severally responsible for abating interference,
with full cooperation and utmost diligence, in the shortest practicable
time.

\(1\) This joint and several responsibility rule requires interfering
licensees to consider all feasible interference abatement measures,
including, but not limited to, the remedies specified in the
interference resolution procedures set forth in § 22.972(c) of this
chapter. This joint and several responsibility rule applies to all forms
of interference, including out-of-band emissions and intermodulation.

\(2\) Any licensee that can show that its signal does not directly or
indirectly, cause or contribute to causing unacceptable interference to
a non-cellular Part 90 licensee in the 800 MHz band, as defined in this
chapter, shall not be held responsible for resolving unacceptable
interference. Notwithstanding, any licensee that receives an
interference complaint from a public safety/CII licensee shall respond
to such complaint consistent with the interference resolution procedures
set forth in this chapter.

**§ 22.972 Interference resolution procedures.**

\(a\) *Initial Notification.* (1) Cellular Radiotelephone licensees may
receive initial notification of interference from non-cellular Part 90
licensees in the 800 MHz band pursuant to § 90.674(a) of this chapter.

\(2\) Cellular Radiotelephone licensees, in conjunction with Part 90
ESMR licensees, shall establish an electronic means of receiving the
initial notification described in § 90.674(a) of this chapter. The
electronic system must be designed so that all appropriate Cellular
Radiotelephone licensees and Part 90 ESMR licensees can be contacted
about the interference incident with a single notification. The
electronic system for receipt of initial notification of interference
complaints must be operating no later than **\[Thirty days from
effective date of *Report and Order*\]**.

\(3\) Cellular Radiotelephone licensees must respond to the initial
notification described in § 90.674(a) of this chapter, as soon as
possible and no later than 24 hours after receipt of notification from a
Part 90 public safety/CII licensee. This response time may be extended
to 48 hours after receipt from other Part 90 non-cellular licensees
provided affected communications on these systems are not safety
related.

\(b\) *Interference Analysis.* Cellular Radiotelephone licensees -- who
receive an initial notification described in § 90.674(a) of this chapter
-- shall perform a timely analysis of the interference to identify the
possible source. Immediate on-site visits may be conducted when
necessary to complete timely analysis. Interference analysis must be
completed and corrective action initiated within 48 hours of the initial
complaint from a Part 90 public safety/CII licensee. This response time
may be extended to 96 hours after the initial complaint from other Part
90 non-cellular licensees provided affected communications on these
systems are not safety related. Corrective action may be delayed if the
affected licensee agrees in writing (which may be, but is not required
to be, recorded via e-mail or other electronic means) to a longer
period.

\(c\) *Mitigation Steps.* (1) All Cellular Radiotelephone and Part 90
ESMR licensees who are responsible for causing unacceptable interference
shall take all affirmative measures to resolve such interference.
Cellular Radiotelephone licensees found to contribute to unacceptable
interference, as defined in § 22.970, shall resolve such interference in
the shortest time practicable. Cellular Radiotelephone licensees and
Part 90 ESMR licensees must provide all necessary test apparatus and
technical personnel skilled in the operation of such equipment as may be
necessary to determine the most appropriate means of timely eliminating
the interference. However, the means whereby interference is abated or
the cell parameters that may need to be adjusted is left to the
discretion of the Cellular Radiotelephone and/or Part 90 ESMR licensees,
whose affirmative measures may include, but not be limited to, the
following techniques:

> \(i\) increasing the desired power of the public safety/CII signal;
>
> \(ii\) decreasing the power of the Part 90 ESMR and/or Cellular
> Radiotelephone system signal;
>
> \(iii\) modifying the Part 90 ESMR and/or Cellular Radiotelephone
> system antenna height;
>
> \(iv\) modifying the Part 90 ESMR and/or Cellular Radiotelephone
> system antenna characteristics;
>
> \(v\) incorporating filters into Part 90 ESMR and/or Cellular
> Radiotelephone transmission equipment;
>
> \(vi\) permanently changing Part 90 ESMR and/or Cellular
> Radiotelephone frequencies; and
>
> \(vii\) supplying interference-resistant receivers to the affected
> public safety/CII licensee(s). If this technique is used, in all
> circumstances, Cellular Radiotelephone and/or Part 90 ESMR licensees
> shall be responsible for all costs thereof.

\(2\) Whenever short-term interference abatement measures prove
inadequate, the affected Part 90 non-cellular licensee shall, consistent
with but not compromising safety, make all necessary concessions to
accepting interference until a longer-term remedy can be implemented.

\(3\) *Discontinuing operations when clear imminent danger exists.* When
a Part 90 public safety licensee determines that a continuing presence
of interference constitutes a clear and imminent danger to life or
property, the licensee causing the interference must discontinue the
associated operation immediately, until a remedy can be identified and
applied. The determination that a continuing presence exists that
constitutes a clear and imminent danger to life or property, must be
made by written statement that:

> \(i\) is in the form of a declaration, notarized affidavit, or
> statement under penalty or perjury, from an officer or executive of
> the affected public safety licensee;
>
> \(ii\) thoroughly describes the basis of the claim of clear and
> imminent danger;
>
> \(iii\) was formulated on the basis of either personal knowledge or
> belief after due diligence;
>
> \(iv\) is not proffered by a contractor or other third party; and
>
> \(v\) has been approved by the Chief of the Wireless Telecommunication
> Bureau or other designated Commission official. Prior to the
> authorized official making a determination that a clear and imminent
> danger exists, the associated written statement must be served by
> hand-delivery or receipted fax on the applicable offending licensee,
> with a copy transmitted by the fastest available means to the
> Washington, D.C. office of the Commission's Wireless
> Telecommunications Bureau.

**§ 22.973 Information exchange.**

\(a\) *Prior Notification.* Public safety/CII licensees may notify a
Part 90 ESMR or cellular radiotelephone licensee that they wish to
receive prior notification of the activation or modification of Part 90
ESMR or cellular radiotelephone cell sites in their area. Thereafter,
the Part 90 ESMR or cellular radiotelephone licensee must provide the
following information to the public safety/CII licensee at least 10
business days before a new cell site is activated or an existing cell
site is modified:

> \(1\) location;
>
> \(2\) effective radiated power;

\(3\) antenna height;

\(4\) channels available for use.

\(b\) *Purpose of Prior Notification*. The prior coordination of cell
sites is for informational purposes only: public safety/CII licensees
are not afforded the right to accept or reject the activation of a
proposed cell or to unilaterally require changes in its operating
parameters. The principal purposes of notification are to: (a) allow a
public safety licensee to advise the Part 90 ESMR or Cellular
Radiotelephone licensee whether it believes a proposed cell will
generate unacceptable interference; (b) permit Cellular Radiotelephone
or Part 90 ESMR licensees to make voluntary changes in cell parameters
when a public safety licensee alerts them to possible interference; and
(c) rapidly identify the source if interference is encountered when the
cell is activated.

Part 24 of title 47 of the Code of Federal Regulation, is amended to
read as follows:

> **PART 24 -- PERSONAL COMMUNICATIONS SERVICES**

415. The authority citation for Part 24 continues to read as follows:

     **AUTHORITY: Sections 47 U.S.C. 154, 301, 302, 303, 309 and 332.**

416. Paragraph (b) of Section 24.203 is amended as follows and an new
     paragraph (d) is added:

     **§ 24.203 Construction requirements.**

     \* \* \* \* \*

     \(b\) Licensees of 10 MHz blocks except for the 1910-1915 MHz and
     1990-1995 MHz, including 10 MHz C block licenses reconfigured
     pursuant to Amendment of the Commission\'s Rules Regarding
     Installment Payment Financing for Personal Communications Services
     (PCS) Licensees, WT Docket No. 97--82, Sixth Report and Order, FCC
     00--313, and 15 MHz blocks resulting from the disaggregation option
     as provided in the Commission\'s Rules Regarding Installment
     payment Financing for Personal Communications Services (PCS)
     Licensees, Second Report and Order and Further Notice of Proposed
     Rule Making, WT Docket 97--82, 12 FCC Rcd 16436 (1997), as modified
     by Order on Reconsideration of the Second Report and Order, WT
     Docket 97--82, 13 FCC Rcd 8345 (1998), must serve with a signal
     level sufficient to provide adequate service to at least
     one-quarter of the population in their licensed area within five
     years of being licensed, or make a showing of substantial service
     in their licensed area within five years of being licensed.
     Population is defined as the 1990 population census. Licensees may
     elect to use the 2000 population census to determine the five-year
     construction requirement. Failure by any licensee to meet these
     requirements will result in forfeiture of the license and the
     licensee will be ineligible to regain it.

     \* \* \* \* \*

     \(d\) Licensees in the paired 1910-1915 MHz and 1990-1995 MHz bands
     must make a showing of "substantial service" in their license area
     within ten years of the date of initial issuance or renewal.
     "Substantial service" is defined as service which is sound,
     favorable, and substantially above a level of mediocre service
     which just might minimally warrant renewal. Failure by any licensee
     to meet this requirement will result in forfeiture of the license
     and the licensee will be ineligible to regain it.

     \* \* \* \* \*

417. A new paragraph (c) is added to Section 24.229 as follows:

     **§ 24.229 Frequencies.**

     \* \* \* \* \*

     \(c\) The paired frequency blocks 1910-1915 MHz and 1990-1995 MHz
     are available for assignment in the 175 Economic Areas defined in §
     90.7 of this chapter. The 1910-1915 MHz block shall be used for
     mobile/portable station transmissions while the 1990-1995 MHz block
     shall be used for base station transmissions.

     \* \* \* \* \*

418. A new paragraph (c) is added to Section 24.247 as follows:

     **§ 24.247 Triggering a reimbursement obligation.**

     \* \* \* \* \*

     \(c\) Any new entrants granted licenses for the 1910-1915 MHz band
     must reimburse UTAM a pro rata share of its total expenses incurred
     by UTAM as of the date that the new entrants gain access to the
     band. The percent required by new entrants to pay shall be
     calculated based upon the amount of spectrum granted to the new
     entrant as compared to the total amount of spectrum UTAM is
     responsible for clearing of incumbents (20 megahertz), and must be
     paid before a new entrant begins operations in the band. For
     example, if a new entrant obtains a license for 5 megahertz of
     spectrum in this band, it is required to reimburse UTAM one-quarter
     of UTAM's total costs to date on a pro rata shared basis. New
     entrants will be responsible for the actual costs associated with
     future relocation activities in their licensed spectrum, but will
     be entitled to seek reimbursement from UTAM for the proportion of
     those band clearing costs that benefit users of the 1915-1930 MHz
     band.

419. For the reasons discussed above, the Federal Communications
     Commission amends 47 CFR parts 74 and 78 as follows:

     **PART 74 -- EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCASTING
     AND OTHER PROGRAM DISTRIBUTIONAL SERVICES**

420. The authority citation for Part 74 continues to read as follows:

     AUTHORITY: 47 U.S.C. 154, 303, 307, 336(f), 336(h) and 554.

421. Part 74.602(a)(3)(iii) is amended to read as follows:

**§ 74.602  Frequency assignments**.

\(a\) \* \* \*

\(3\) \* \* \*

> (iii)  Broadcast Auxiliary Service, Cable Television Remote Pickup
> Service, and Local Television Transmission Service licensees will be
> required to use the Band A channel plan in paragraph (a)(3)(i) of this
> section after completion of relocation by an Emerging Technologies
> licensee in accordance with § 74.690 or § 78.40 of this chapter. 
> Licensees declining relocation may continue to use their existing
> channel plan but must discontinue use of the 1990-2025 MHz band when
> they indicate to an Emerging Technologies licensee, acting pursuant to
> § 74.690 or § 78.40 of this chapter, that they decline to be
> relocated.

422. Section 74.690 is amended to amend sections (a), (b), (c)(2),
     (c)(3), (d) and (e), and to remove and reserve section (e)(1)(ii)
     to read as follows:

     **§ 74.690 Transition of the 1990-2025 MHz band from the Broadcast
     Auxiliary Service to emerging technologies.**

     \(a\) New Entrants, collectively defined as those licensees
     proposing to use emerging technologies to implement Mobile
     Satellite Services in the 2000-2020 MHz band (MSS licensees),and
     those licensees authorized after July 1, 2004 to implement new
     fixed and mobile services in the 1990-1995 MHz band, may negotiate
     with Broadcast Auxiliary Service licensees operating on a primary
     basis and fixed service licensees operating on a primary basis in
     the 1990-2025 MHz band (Existing Licensees) for the purpose of
     agreeing to terms under which the Existing Licensees would relocate
     their operations to the 2025-2110 MHz band, to other authorized
     bands, or to other media; or, alternatively, would discontinue use
     of the 1990-2025 MHz band.

     \(b\) An Existing Licensee in the 1990-2025 MHz band allocated for
     licensed emerging technology services will maintain primary status
     in the band until the Existing Licensee's operations are relocated
     by a New Entrant, are discontinued under the terms of paragraph (a)
     of this section, or become secondary under the terms of paragraph
     (e)(6) of this section or the Existing Licensee indicates to a New
     Entrant that it declines to be relocated.

     \(c\) \* \* \*

\(2\) The New Entrant completes all activities necessary for
implementing the replacement facilities, including engineering and cost
analysis of the relocation procedure and, if radio facilities are used,
identifying and obtaining, on the incumbents' behalf, new microwave or
Local Television Transmission frequencies and frequency coordination.

\(3\) The New Entrant builds the replacement system and tests it for
comparability with the existing system.

\(d\) The Existing Licensee is not required to relocate until the
alternative facilities are available to it for a reasonable time to make
adjustments, determine comparability, and ensure a seamless handoff. If,
within one year after the relocation to new facilities the Existing
Licensee demonstrates that the new facilities are not comparable to the
former facilities, the New Entrant must remedy the defects.

\(e\) Subject to the terms of this paragraph (e), the relocation of
Existing Licensees will be carried out by MSS licensees in the following
manner:

\(1\) \* \* \*

\(ii\) \[removed and reserved\]

\* \* \* \* \*

423. **PART 78 -- CABLE TELEVISION RELAY SERVICE**

     1\. The authority citation for Part 78 continues to read as
     follows:

     AUTHORITY: Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat., as
     amended, 1064, 1065, 1066, 1081, 1082, 1083, 1084, 1085; 47 U.S.C.
     152, 153, 154, 301, 303, 307, 308, 309.

     2\. Section 78.40 is amended to amend sections (a), (b), (c)(2),
     (c)(3), (e) and (f), and to remove and reserve section (f)(1)(ii)
     to read as follows:

     **§ 78.40 Transition of the 1990-2025 MHz band from the Cable
     Television Relay Service to emerging technologies.**

\(a\) New Entrants, collectively defined as those licensees proposing to
use emerging technologies to implement Mobile Satellite Services in the
2000-2020 MHz band (MSS licensees) and those licensees authorized after
July 1, 2004 to implement new fixed and mobile services in the 1990-1995
MHz band, may negotiate with Cable Television Relay Service licensees
operating on a primary basis and fixed service licensees operating on a
primary basis in the 1990-2025 MHz band (Existing Licensees) for the
purpose of agreeing to terms under which the Existing Licensees would
relocate their operations to the 2025-2110 MHz band, to other authorized
bands, or to other media; or, alternatively, would accept a sharing
arrangement with the New Entrants that may result in an otherwise
impermissible level of interference to the Existing Licensee's
operations.

\(b\) Existing Licensees in the 1990-2025 MHz band allocated for
licensed emerging technology services will maintain primary status in
the band until a New Entrant completes relocation of the Existing
Licensee's operations or the Existing Licensee indicates to a New
Entrant that it declines to be relocated.

\(c\) \* \* \*

\(2\) The New Entrant completes all activities necessary for
implementing the replacement facilities, including engineering and cost
analysis of the relocation procedure and, if radio facilities are used,
identifying and obtaining, on the incumbents' behalf, new microwave or
Cable Television Relay Service frequencies and frequency coordination.

\(3\) The New Entrant builds the replacement system and tests it for
comparability with the existing system.

\(d\) \* \* \*

\(e\) If, within one year after the relocation to new facilities the
Existing Licensee demonstrates that the new facilities are not
comparable to the former facilities, the New Entrant must remedy the
defect.

\(f\) Subject to the terms of this paragraph (e), the relocation of
Existing Licensees will be carried out by MSS licensees in the following
manner:

\(1\) \* \* \*

\(ii\) \[removed and reserved\]

\* \* \* \* \*

Part 90 of title 47 of the Code of Federal Regulations, is amended to
read as follows:

> **PART 90 -- PRIVATE LAND MOBILE RADIO SERVICES**

424. The authority citation for Part 90 continues to read as follows:

     **AUTHORITY: Sections 4(i), 11, 303(g), 303(r), and 302(c)(7) of
     the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161,
     303(g), 303(r), 332(c)(7).**

425. The following definitions are added to the text of Section 90.7.

     **§ 90.7 Definitions.**

     *800 MHz Cellular System.* In the 806-817 MHz/ 851-862 MHz band, a
     cellular system is defined as high-density system which:

     \(1\) has more than five overlapping interactive sites featuring
     hand-off capability; and

     \(2\) any one of such sites has an antenna height of less than 30.4
     meters (100 feet) above ground level with an antenna height above
     average terrain (HAAT) of less than 152.4 meters (500 feet) and
     twenty or more paired frequencies.

     \* \* \* \* \*

     *Critical Infrastructure Industry (CII).* Private internal radio
     services operated by State, local governments and non-government
     entities, including utilities, railroads, metropolitan transit
     systems, pipelines, private ambulances, volunteer fire departments,
     and not-for-profit organizations that offer emergency road
     services, provided these private internal radio services (i) are
     used to protect safety of life, health, or property; and (ii) are
     not made commercially available to the public.

     \* \* \* \* \*

     *Enhanced Specialized Mobile Radio System (ESMR).* A specialized
     mobile radio (SMR) system operating in the 800 MHz band which
     employs an 800 MHz cellular system as defined in this section.

     \* \* \* \* \*

426. The text in Section 90.16 is revised to reflect the location of the
     NPSPAC spectrum after band reconfiguration.

     **§ 90.16. Public Safety National Plan.**

     The Commission has established a National Plan which specifies
     special policies and procedures governing the Public Safety Pool
     (formally Public Safety Radio Services and the Special Emergency
     Radio Service). The National Plan is contained in the Report and
     Order in General Docket No. 87--112. The principal spectrum
     resource for the National Plan is the 806--809 MHz and the 851--854
     MHz bands at locations farther then 110 km (68.4 miles) from the
     U.S./Mexico border and 140 km (87 miles) from the U.S./Canadian
     border ("border regions"). In the border regions, the principal
     spectrum for the National Plan may be different. The National plan
     establishes planning regions covering all parts of the United
     States, Puerto Rico, and the U.S. Virgin Islands. No assignments
     will be made in the spectrum designated for the National Plan until
     a regional plan for the area has been accepted by the Commission.

427. Section 90.20 is amended by revising the table in paragraph (c)(3)
     and by revising the text in paragraph (d)(69).

     **§ 90.20 Public Safety Pool.**

\* \* \* \* \*

\(c\) \* \* \*

\(3\) \* \* \*

PUBLIC SAFETY POOL FREQUENCY TABLE

+-----------------+-----------------+-----------------+-----------------+
| Frequency or    | Class of        | Limitations     | Coordinator     |
| band            | station(s)      |                 |                 |
+-----------------+-----------------+-----------------+-----------------+
| \* \* \* \* \*  | \* \* \* \* \*  | \* \* \* \* \*  | \* \* \* \* \*  |
|                 |                 |                 |                 |
| 806 to 817      | ....do......... | 69\.            | \* \* \* \* \*  |
|                 |                 |                 |                 |
| 851 to 862      | Base or mobile  | 69\.            |                 |
|                 |                 |                 |                 |
| \* \* \* \* \*  | \* \* \* \* \*  | \* \* \* \* \*  |                 |
+-----------------+-----------------+-----------------+-----------------+

\(d\) \* \* \* \* \*

\(69\) Subpart S of this part contains rules for assignment of
frequencies in the 806--816 MHz and 851--861 MHz bands.

428. Section 90.35 is amended by revising the table in paragraph (b)(3)
     and by revising the text in paragraph (c)(71).

     **§ 90.35 Industrial/Business Pool.**

\* \* \* \* \*

\(b\) \* \* \*

\(3\) \* \* \*

INDUSTRIAL/BUSINESS POOL FREQUENCY TABLE

+-----------------+-----------------+-----------------+-----------------+
| Frequency or    | Class of        | Limitations     | Coordinator     |
| band            | station(s)      |                 |                 |
+-----------------+-----------------+-----------------+-----------------+
| \* \* \* \* \*  | \* \* \* \* \*  | \* \* \* \* \*  | \* \* \* \* \*  |
|                 |                 |                 |                 |
| 809 to 824      | Mobile......... | 71\.            | \* \* \* \* \*  |
|                 |                 |                 |                 |
| 854 to 869      | Base or mobile  | 71\.            |                 |
|                 |                 |                 |                 |
| \* \* \* \* \*  | \* \* \* \* \*  | \* \* \* \* \*  |                 |
+-----------------+-----------------+-----------------+-----------------+

\(c\) \* \* \*

\(71\) Subpart S of this part contains rules for assignment of
frequencies in the 809--824/854--869 and 896--901/935--940 MHz bands.

**§ 90.209   Bandwidth limitations.**

\* \* \* \* \*

\(b\) \* \* \*

\(5\) \* \* \*

STANDARD CHANNEL SPACING/BANDWIDTH

+-----------------------+-----------------------+-----------------------+
| Frequency band (MHz)  | Channel spacing (kHz) | Authorized bandwidth  |
|                       |                       | (kHz)                 |
+-----------------------+-----------------------+-----------------------+
| \*\*\*\*\*            | \*\*\*\*\*            | \*\*\*\*\*            |
|                       |                       |                       |
| 806-809/851-854       | 12.5                  | 20                    |
| ..................    |                       |                       |
|                       | 25                    | 20                    |
| 809-824/854-8         |                       |                       |
| 69................... | \*\*\*\*\*            | \*\*\*\*\*            |
|                       |                       |                       |
| \*\*\*\*\*            |                       |                       |
+-----------------------+-----------------------+-----------------------+

\* \* \* \* \*

429. The table in Section 90.210 is amended to reflect the 800 MHz band
     after band reconfiguration.

     **§ 90.210   Emission masks.**

     \* \* \* \* \*

     APPLICABLE EMISSION MASKS

+-----------------------+-----------------------+-----------------------+
| Frequency band (MHz)  | Mask for equipment    | Mask for equipment    |
|                       | with Audio low pass   | without audio low     |
|                       | filter                | pass filter           |
+-----------------------+-----------------------+-----------------------+
| \*\*\*\*\*            | \*\*\*\*\*            | \*\*\*\*\*            |
|                       |                       |                       |
| 806-809/851-854       | B                     | H                     |
| ..................    |                       |                       |
|                       | B                     | G                     |
| 809-824/854-869       |                       |                       |
| ^3^.................. | \*\*\*\*\*            | \*\*\*\*\*            |
|                       |                       |                       |
| \*\*\*\*\*            |                       |                       |
+-----------------------+-----------------------+-----------------------+

^1^ Equipment using single sideband J3E emission must the requirements
of Emission Mask A. Equipment using other emissions must meet the
requirements of Emission Mask B or C, as applicable.

^2^ Equipment designed to operate with a 25 kHz channel bandwidth must
meet the requirements of Emission Mask B or C, as applicable. Equipment
designed to operate with a 12.5 kHz channel bandwidth must meet the
requirements of Emission Mask D, and equipment designed to operate with
a 6.25 kHz channel bandwidth Must meet the requirements of Emission Mask
E.

^3^ ESMR systems shall comply with the emission mask provisions of
§90.691.

\* \* \* \* \*

430. The table in Section 90.213 is updated to reflect the 800 MHz band
     after band reconfiguration.

     **§ 90.213 Frequency stability.**

\(a\) \* \* \*

> MINIMUM FREQUENCY STABILITY
>
> \[Parts per million (ppm)\]

+-----------------+-----------------+-----------------+----------------+
| Frequency range | Fixed and base  | Mobile stations |                |
| (MHz)           | stations        |                 |                |
+-----------------+-----------------+-----------------+----------------+
|                 |                 | Over 2 watts    | 2 watts or     |
|                 |                 | output power    | less output    |
|                 |                 |                 | power          |
+-----------------+-----------------+-----------------+----------------+
| \*\*\*\*\*      | \*\*\*\*\*      | \*\*\*\*\*      | \*\*\*\*\*     |
|                 |                 |                 |                |
| 806-809         | ^14^ 1.0        | 1.5             | 1.5            |
| ............... |                 |                 |                |
|                 | ^14^ 1.5        | 2.5             | 2.5            |
| 809-824.        |                 |                 |                |
| ............... | 1.0             | 1.5             | 1.5            |
|                 |                 |                 |                |
| 851-854.        | 1.5             | 2.5             | 2.5            |
| ............... |                 |                 |                |
|                 | \*\*\*\*\*      | \*\*\*\*\*      | \*\*\*\*\*     |
| 854-869.        |                 |                 |                |
| ............... |                 |                 |                |
|                 |                 |                 |                |
| \*\*\*\*\*      |                 |                 |                |
+-----------------+-----------------+-----------------+----------------+

\* \* \* \* \*

431. Paragraph (e) of Section 90.607 is amended to exempt applicants for
     ESMR frequencies from frequency coordination requirements:

     **§ 90.607 Supplemental information to be furnished by applicants
     for facilities under this subpart.**

\* \* \* \* \*

\(e\) All applicants for frequencies governed by this subpart are
subject to the frequency coordination requirements of § 90.175(b) except
applicants requesting frequencies for EA-based SMR operations in the
806-824 MHz /851-869 MHz band or 896-901 MHz /935-940 MHz band.

432. Paragraph (c) of Section 90.609 is amended to eliminate references
     to Spectrum Block D which will no longer exist after band
     reconfiguration:

     **§ 90.609 Special limitations on amendment of applications for
     assignment or transfer of authorizations for radio systems above
     800 MHz.**

\* \* \* \* \*

\(c\) Licensees of constructed systems in any category are permitted to
make partial assignments of an authorized grant to an applicant
proposing to create a new system or to an existing licensee that has
loaded its system to 70 mobiles per channel and is expanding that
system. An applicant authorized to expand an existing system or to
create a new system with frequencies from any category obtained through
partial assignment will receive the assignor\'s existing license
expiration date and loading deadline for the frequencies that are
assigned. A licensee that makes a partial assignment of a station\'s
frequencies will not be authorized to obtain additional frequencies for
that station for a period of one year from the date of the partial
assignment.

\* \* \* \* \*

433. Section 90.613 is amended to indicate the channel designations
     after band reconfiguration:

     **§ 90.613 Frequencies available.**

     The following tables indicate the channel designations of
     frequencies available for assignment to eligible applicants under
     this subpart. Frequencies shall be assigned in pairs, with mobile
     and control station transmitting frequencies taken from the
     806--824 MHz band with corresponding base station frequencies being
     45 MHz higher and taken from the 851--869 MHz band, or with mobile
     and control station frequencies taken from the 896--901 MHz band
     with corresponding base station frequencies being 39 MHz higher and
     taken from the 935--940 MHz band. Only the base station
     transmitting frequency of each pair is listed in the following
     tables.

Table of 806-824/851-869 MHz Channel Designations

+-------------------------------------------------------+--------------+
| Channel No.                                           | Base         |
|                                                       | Frequency    |
|                                                       | (MHz)        |
+-------------------------------------------------------+--------------+
| > 1                                                   | 851.0125     |
| > ........................                            |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 2                                                   | .0375        |
| > ........................                            |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 3                                                   | .0500        |
| > ........................                            |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 4                                                   | .0625        |
| > ........................                            |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 5                                                   | .0750        |
| > ........................                            |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 6                                                   | .0875        |
| > ........................                            |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 7                                                   | .1000        |
| > ........................                            |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 8                                                   | .1125        |
| > ........................                            |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 9                                                   | .1250        |
| > ........................                            |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 10                                                  | .1375        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 11                                                  | .1500        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 12                                                  | .1625        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 13                                                  | .1750        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 14                                                  | .1875        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 15                                                  | .2000        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 16                                                  | .2125        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 17                                                  | .2250        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 18                                                  | .2375        |
| > ...\....................                            |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 19                                                  | .2500        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 20                                                  | .2625        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 21                                                  | .2750        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 22......                                            | .2875        |
| > ................                                    |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 23                                                  | .3000        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 24                                                  | .3125        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 25                                                  | .3250        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 26                                                  | .3375        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 27                                                  | .3500        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 28                                                  | .3625        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 29                                                  | .3750        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 30                                                  | .3875        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 31                                                  | .4000        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 32                                                  | .4125        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 33                                                  | .4250        |
| > \.......................                            |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 34                                                  | .4375        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 35                                                  | .4500        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 36                                                  | .4625        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 37                                                  | .4750        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 38                                                  | .4875        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 39                                                  | .5125        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 40                                                  | .5375        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 41                                                  | .5500        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 42                                                  | .5625        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 43                                                  | .5750        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 44                                                  | .5875        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 45                                                  | .6000        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 46                                                  | .6125        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 47                                                  | .6250        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 48                                                  | .6375        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 49                                                  | .6500        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 50                                                  | .6625        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 51                                                  | .6750        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 52                                                  | .6875        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 53                                                  | .7000        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 54                                                  | .7125        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 55                                                  | .7250        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 56                                                  | .7375        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 57                                                  | .7500        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 58                                                  | .7625        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 59                                                  | .7750        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 60                                                  | .7875        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 61                                                  | .8000        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 62                                                  | .8125        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 63                                                  | .8250        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 64                                                  | .8375        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 65                                                  | .8500        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 66                                                  | .8625        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 67                                                  | .8750        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 68                                                  | .8875        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 69                                                  | .9000        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 70                                                  | .9125        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 71                                                  | .9250        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 72                                                  | .9375        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 73                                                  | .9500        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 74                                                  | .9625        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 75                                                  | .9750        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 76                                                  | .9875        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 77                                                  | 852.0125     |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 78                                                  | .0375        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 79                                                  | .0500        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 80                                                  | .0625        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 81                                                  | .0750        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 82                                                  | .0875        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 83                                                  | .1000        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 84                                                  | .1125        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 85                                                  | .1250        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 86                                                  | .1375        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 87                                                  | .1500        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 88                                                  | .1625        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 89                                                  | .1750        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 90                                                  | .1875        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 91                                                  | .2000        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 92                                                  | .2125        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 93                                                  | .2250        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 94                                                  | .2375        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 95                                                  | .2500        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 96                                                  | .2625        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 97                                                  | .2750        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 98                                                  | .2875        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 99                                                  | .3000        |
| > ......................                              |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 100                                                 | .3125        |
| > \......................                             |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 101                                                 | .3250        |
| > \......................                             |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 102                                                 | .3375        |
| > \......................                             |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 103                                                 | .3500        |
| > \......................                             |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 104                                                 | .3625        |
| > \......................                             |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 105                                                 | .3750        |
| > \......................                             |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 106                                                 | .3875        |
| > \......................                             |              |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 107......................                           | .4000        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 108......................                           | .4125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 109......................                           | .4250        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 110......................                           | .4375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 111......................                           | .4500        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 112......................                           | .4625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 113......................                           | .4750        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 114......................                           | .4875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 115......................                           | .5125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 116......................                           | .5375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 117......................                           | .5500        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| > 118......................                           | .5625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 119......................                             | .5750        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 120......................                             | .5875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 121......................                             | .6000        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 122......................                             | .6125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 123......................                             | .6250        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 124......................                             | .6375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 125......................                             | .6500        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 126......................                             | .6625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 127......................                             | .6750        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 128......................                             | .6875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 129......................                             | .7000        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 130......................                             | .7125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 131......................                             | .7250        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 132......................                             | .7375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 133......................                             | .7500        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 134......................                             | .7625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 135......................                             | .7750        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 136......................                             | .7875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 137......................                             | .8000        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 138......................                             | .8125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 139......................                             | .8250        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 140......................                             | .8375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 141......................                             | .8500        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 142......................                             | .8625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 143......................                             | .8750        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 144......................                             | .8875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 145......................                             | .9000        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 146......................                             | .9125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 147......................                             | .9250        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 148......................                             | .9375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 149......................                             | .9500        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 150......................                             | .9625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 151......................                             | .9750        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 152......................                             | .9875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 153......................                             | 853.0125     |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 154......................                             | .0375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 155......................                             | .0500        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 156......................                             | .0625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 157......................                             | .0750        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 158......................                             | .0875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 159......................                             | .1000        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 160......................                             | .1125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 161......................                             | .1250        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 162......................                             | .1375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 163......................                             | .1500        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 164......................                             | .1625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 165......................                             | .1750        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 166......................                             | .1875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 167......................                             | .2000        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 168......................                             | .2125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 169......................                             | .2250        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 170......................                             | .2375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 171......................                             | .2500        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 172......................                             | .2625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 173......................                             | .2750        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 174......................                             | .2875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 175......................                             | .3000        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 176......................                             | .3125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 177......................                             | .3250        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 178......................                             | .3375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 179......................                             | .3500        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 180......................                             | .3625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 181......................                             | .3750        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 182......................                             | .3875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 183......................                             | .4000        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 184......................                             | .4125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 185......................                             | .4250        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 186......................                             | .4375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 187......................                             | .4500        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 188......................                             | .4625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 189......................                             | .4750        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 190......................                             | .4875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 191......................                             | .5000        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 192......................                             | .5125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 193......................                             | .5250        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 194......................                             | .5375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 195......................                             | .5500        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 196......................                             | .5625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 197......................                             | .5750        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 198......................                             | .5875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 199......................                             | .6000        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 200......................                             | .6125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 201......................                             | .6250        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 202......................                             | .6375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 203......................                             | .6500        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 204......................                             | .6625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 205......................                             | .6750        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 206......................                             | .6875        |
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| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 730......................                             | .4875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 731......................                             | .5125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 732......................                             | .5375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 733......................                             | .5625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 734......................                             | .5875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 735......................                             | .6125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 736......................                             | .6375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 737......................                             | .6625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 738......................                             | .6875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 739......................                             | .7125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 740......................                             | .7375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 741......................                             | .7625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 742......................                             | .7875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 743......................                             | .8125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 744......................                             | .8375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 745......................                             | .8625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 746......................                             | .8875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 747......................                             | .9125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 748......................                             | .9375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 749......................                             | .9625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 750......................                             | .9875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 751......................                             | 867.0125     |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 752......................                             | .0375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 753......................                             | .0625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 754......................                             | .0875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 755......................                             | .1125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 756......................                             | .1375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 757......................                             | .1625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 758......................                             | .1875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 759......................                             | .2125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 760......................                             | .2375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 761......................                             | .2625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 762......................                             | .2875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 763......................                             | .3125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 764......................                             | .3375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 765......................                             | .3625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 766......................                             | .3875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 767......................                             | .4125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 768......................                             | .4375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 769......................                             | .4625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 770......................                             | .4875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 771......................                             | .5125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 772......................                             | .5375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 773......................                             | .5625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 774......................                             | .5875        |
| ..................................................... |              |
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| 775......................                             | .6125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 776......................                             | .6375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 777......................                             | .6625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 778......................                             | .6875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 779......................                             | .7125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 780......................                             | .7375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 781......................                             | .7625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 782......................                             | .7875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 783......................                             | .8125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 784......................                             | .8375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 785......................                             | .8625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 786......................                             | .8875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 787......................                             | .9125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 788......................                             | .9375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 789......................                             | .9625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 790......................                             | .9875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 791......................                             | 868.0125     |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 792......................                             | .0375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 793......................                             | .0625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 794......................                             | .0875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 795......................                             | .1125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 796......................                             | .1375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 797......................                             | .1625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 798......................                             | .1875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 799......................                             | .2125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 800......................                             | .2375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 801......................                             | .2625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 802......................                             | .2875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 803......................                             | .3125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 804......................                             | .3375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 805......................                             | .3625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 806......................                             | .3875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 807......................                             | .4125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 808......................                             | .4375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 809......................                             | .4625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 810......................                             | .4875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 811......................                             | .5125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 812......................                             | .5375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 813......................                             | .5625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 814......................                             | .5875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 815......................                             | .6125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 816......................                             | .6375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 817......................                             | .6625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 818......................                             | .6875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 819......................                             | .7125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 820......................                             | .7375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 821......................                             | .7625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 822......................                             | .7875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 823......................                             | .8125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 824......................                             | .8375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 825......................                             | .8625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 826......................                             | .8875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 827......................                             | .9125        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 828......................                             | .9375        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 829......................                             | .9625        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+
| 830......................                             | .9875        |
| ..................................................... |              |
+-------------------------------------------------------+--------------+

\* \* \* \* \*

434. A new section 90.614 is added immediately after the text of Section
     90.613 as follows:

     **§ 90.614 Cellular and non-cellular portions of 806-824/851-869
     MHz band for non-border areas.**

     The 806-824/851-869 MHz band ("800 MHz band") will be divided as
     follows at locations farther then 110 km (68.4 miles) from the
     U.S./Mexico border and 140 km (87 miles) from the U.S./Canadian
     border ("non-border areas")

     \(a\) 800 MHz cellular systems -- as defined in § 90.7 -- are
     prohibited from operating on channels 1-550 in non-border areas.

     \(b\) 800 MHz cellular systems -- as defined in § 90.7 -- are
     permitted to operate on channels 551-830 in non-border areas.

     \(c\) In the following counties and parishes, 800 MHz cellular
     systems -- as defined in § 90.7 -- are permitted to operate on
     channels 411-830:

[Alabama]{.underline}

Autauga, Baldwin, Barbour, Bibb, Blount, Bullock, Butler, Calhoun,
Chambers, Cherokee, Chilton, Choctaw, Clarke, Clay, Cleburne, Coffee,
Colbert, Conecuh, Coosa, Covington, Crenshaw, Cullman, Dale, Dallas,
DeKalb, Elmore, Escambia, Etowah, Fayette, Franklin, Geneva, Greene,
Hale, Henry, Houston, Jackson, Jefferson, Lamar, Lauderdale, Lawrence,
Lee, Limestone, Lowndes, Macon, Madison, Marengo, Marion, Marshall,
Mobile, Monroe, Montgomery, Morgan, Perry, Pickens, Pike, Randolph,
Russell, Shelby, St Clair, Sumter, Talladega, Tallapoosa, Tuscaloosa,
Walker, Washington, Wilcox, Winston

[Florida]{.underline}

Bay, Calhoun, Escambia, Franklin, Gadsden, Gulf, Holmes, Jackson,
Jefferson, Leon, Liberty, Madison, Nassau, Okaloosa, Santa Rosa, Taylor,
Wakulla, Walton, Washington

[Georgia]{.underline}

Appling, Atkinson, Bacon, Baker, Baldwin, Banks, Barrow, Bartow, Ben
Hill, Berrien, Bibb, Bleckley, Brantley, Brooks, Bryan, Bulloch, Burke,
Butts, Calhoun, Camden, Candler, Carroll, Catoosa, Charlton, Chatham,
Chattahoochee, Chattooga, Cherokee, Clarke, Clay, Clayton, Clinch, Cobb,
Coffee, Colquitt, Columbia, Cook, Coweta, Crawford, Crisp, Dade, Dawson,
Decatur, DeKalb, Dodge, Dooly, Dougherty, Douglas, Early, Echols,
Effingham, Elbert, Emanuel, Evans, Fannin, Fayette, Floyd, Forsyth,
Franklin, Fulton, Gilmer, Glascock, Glynn, Gordon, Grady, Greene,
Gwinnett, Habersham, Hall, Hancock, Haralson, Harris, Hart, Heard,
Henry, Houston, Irwin, Jackson, Jasper, Jeff Davis, Jefferson, Jenkins,
Johnson, Jones, Lamar, Lanier, Laurens, Lee, Liberty, Lincoln, Long,
Lowndes, Lumpkin, Macon, Madison, Marion, McDuffie, McIntosh,
Meriwether, Miller, Mitchell, Monroe, Montgomery, Morgan, Murray,
Muscogee, Newton, Oconee, Oglethorpe, Paulding, Peach, Pickens, Pierce,
Pike, Polk, Pulaski, Putnam, Quitman, Rabun, Randolph, Richmond,
Rockdale, Schley, Screven, Seminole, Spalding, Stephens, Stewart,
Sumter, Talbot, Taliaferro, Tattnall, Taylor, Telfair, Terrell, Thomas,
Tift, Toombs, Towns, Treutlen, Troup, Turner, Twiggs, Union, Upson,
Walker, Walton, Ware, Warren, Washington, Wayne, Webster, Wheeler,
White, Whitfield, Wilcox, Wilkes, Wilkinson, Worth

[Louisiana]{.underline}

Catahoula, Concordia, Madison, Tensas

[Mississippi]{.underline}

Adams, Alcorn, Amite, Attala, Calhoun, Carroll, Chickasaw, Choctaw,
Claiborne, Clarke, Clay, Copiah, Covington, Forrest, Franklin, George,
Greene, Grenada, Hancock, Harrison, Hinds, Holmes, Itawamba, Jackson,
Jasper, Jefferson, Jefferson Davis, Jones, Kemper, Lamar, Lauderdale,
Lawrence, Leake, Lee, Lincoln, Lowndes, Madison, Marion, Monroe,
Montgomery, Neshoba, Newton, Noxubee, Oktibbeha, Pearl River, Perry,
Pike, Pontotoc, Prentiss, Rankin, Scott, Simpson, Smith, Stone, Tippah,
Tishomingo, Union, Walthall, Warren, Wayne, Webster, Wilkinson, Winston,
Yazoo

[North Carolina]{.underline}

Cherokee, Clay, Graham, Jackson, Macon

[South Carolina]{.underline}

Abbeville, Aiken, Allendale, Anderson, Bamberg, Barnwell, Beaufort,
Edgefield, Greenwood, Hampton, Jasper, McCormick, Oconee

[Tennessee]{.underline}

Bledsoe, Bradley, Franklin, Giles, Hamilton, Hardin, Lawrence, Lincoln,
Marion, McMinn

435. Section 90.615 is amended to read as follows to reflect the General
     Category after band reconfiguration.

     **§ 90.615   Individual channels available in the General Category
     in 806-824/851-869 MHz band.**

     The General Category will consist of channels 231-260 at locations
     farther then 110 km (68.4 miles) from the U.S./Mexico border and
     140 km (87 miles) from the U.S./Canadian border.

     \(a\) Channels 231-260 will be available only to eligible
     applicants in the Public Safety Category until **\[Three years from
     effective date of *Report and Order*\].** These same channels will
     be available only to eligible applicants in the Public Safety or
     Critical Infrastructure Industry Categories from **\[Three years
     from effective date of *Report and Order*\]** until **\[Five years
     from effective date of *Report and Order*\].**

     \(b\) All entities will be eligible for licensing on Channels
     231-260 after **\[Five years from effective date of *Report and
     Order*\]**.

436. Section 90.617 is amended to read as follows to reflect the
     channels available after band reconfiguration.

     **§ 90.617 Frequencies in the 809.750-824/854.750-869 MHz, and
     896-901/935-940 MHz bands available for trunked, conventional or
     cellular system use in non-border areas.**

     Except for the counties and parishes listed in § 90.614(c), the
     following channels will be available at locations farther then 110
     km (68.4 miles) from the U.S./Mexico border and 140 km (87 miles)
     from the U.S./Canadian border ("non-border areas"). The channels in
     the counties and parishes listed in § 90.614(c) will be available
     in accordance with an agreement between Southern LINC and Nextel
     Communications, Inc. The agreement will be approved by the Chief of
     the Wireless Telecommunications Bureau.

     \(a\) The channels listed in Table 1 and paragraph (a)(1) of this
     section are available for non-cellular operations to eligible
     applicants in the Public Safety Category which consists of
     licensees eligible in the Public Safety Pool of subpart B of this
     part. 800 MHz cellular systems as defined in § 90.7 are prohibited
     on these channels. These frequencies are available in non-border
     areas. Specialized Mobile Radio Systems will not be authorized in
     this category. These channels are available for intercategory
     sharing as indicated in §90.621(e).

     Table 1 -- PUBLIC SAFETY pool 806-816/851-861 MHz Band Channels (70
     Channels)

+-----------------------------------+-----------------------------------+
| Group No.                         | Channel Nos.                      |
+-----------------------------------+-----------------------------------+
| 269                               | 269-289-311-399-439               |
+-----------------------------------+-----------------------------------+
| 270                               | 270-290-312-400-440               |
+-----------------------------------+-----------------------------------+
| 279                               | 279-299-319-339-359               |
+-----------------------------------+-----------------------------------+
| 280                               | 280-300-320-340-360               |
+-----------------------------------+-----------------------------------+
| 309                               | 309-329-349-369-389               |
+-----------------------------------+-----------------------------------+
| 310                               | 310-330-350-370-390               |
+-----------------------------------+-----------------------------------+
| 313                               | 313-353-393-441-461               |
+-----------------------------------+-----------------------------------+
| 314                               | 314-354-394-448-468               |
+-----------------------------------+-----------------------------------+
| 321                               | 321-341-361-381-419               |
+-----------------------------------+-----------------------------------+
| 328                               | 328-348-368-388-420               |
+-----------------------------------+-----------------------------------+
| 351                               | 351-379-409-429-449               |
+-----------------------------------+-----------------------------------+
| 332                               | 352-380-410-430-450               |
+-----------------------------------+-----------------------------------+
| Single Channels                   | 391, 392, 401, 408, 421,          |
|                                   |                                   |
|                                   | 428, 459, 460, 469, 470           |
+-----------------------------------+-----------------------------------+

\(1\) Channels numbers 1--230 are also available to eligible applicants
in the Public Safety Category in non-border areas. The assignment of
these channels will be done in accordance with the policies defined in
the Report and Order of Gen. Docket No. 87--112 (See §90.16).

\(b\) Unless otherwise specified, the channels listed in Table 2 are
available for non-cellular operations to applicants eligible in the
Industrial/Business Pool of subpart C of this part but exclude Special
Mobilized Radio Systems as defined in §90.603(c). 800 MHz cellular
systems as defined in § 90.7 are prohibited on these channels. These
frequencies are available in non-border areas. Specialized Mobile Radio
(SMR) systems will not be authorized on these frequencies. These
channels are available for inter-category sharing as indicated in §
90.621(e).

Table 2 -- Business/Industrial/Land Transportation Pool 806-816/851-861
MHz Band Channels (100 Channels)

+-----------------------------------+-----------------------------------+
| Group No.                         | Channel Nos.                      |
+-----------------------------------+-----------------------------------+
| 322                               | 322-362-402-442-482               |
+-----------------------------------+-----------------------------------+
| 323                               | 323-363-403-443-483               |
+-----------------------------------+-----------------------------------+
| 324                               | 324-364-404-444-484               |
+-----------------------------------+-----------------------------------+
| 325                               | 325-365-405-445-485               |
+-----------------------------------+-----------------------------------+
| 326                               | 326-366-406-446-486               |
+-----------------------------------+-----------------------------------+
| 327                               | 327-367-407-447-487               |
+-----------------------------------+-----------------------------------+
| 342                               | 342-382-422-462-502               |
+-----------------------------------+-----------------------------------+
| 343                               | 343-383-423-463-503               |
+-----------------------------------+-----------------------------------+
| 344                               | 344-384-424-464-504               |
+-----------------------------------+-----------------------------------+
| 345                               | 345-385-425-465-505               |
+-----------------------------------+-----------------------------------+
| 346                               | 346-386-426-466-506               |
+-----------------------------------+-----------------------------------+
| 347                               | 347-387-427-467-507               |
+-----------------------------------+-----------------------------------+
| Single Channels                   | 261, 271, 281, 291, 301,          |
|                                   |                                   |
|                                   | 262, 272, 282, 292, 302,          |
|                                   |                                   |
|                                   | 263, 273, 283, 293, 303,          |
|                                   |                                   |
|                                   | 264, 274, 284, 294, 304,          |
|                                   |                                   |
|                                   | 265, 275, 285, 295, 305,          |
|                                   |                                   |
|                                   | 266, 276, 286, 296, 306,          |
|                                   |                                   |
|                                   | 267, 277, 287, 297, 307,          |
|                                   |                                   |
|                                   | 268, 278, 288, 298, 308           |
+-----------------------------------+-----------------------------------+

\(c\) The channels listed in Table 3 are available to applicants
eligible in the Industrial/Business Pool of subpart C of this part but
exclude Special Mobilized Radio Systems as defined in §90.603(c). These
frequencies are available in non-border areas. Specialized Mobile Radio
(SMR) systems will not be authorized on these frequencies. These
channels are available for intercategory sharing as indicated in
§90.621(e).

Table 3 -- Business/Industrial/Land Transportation Pool 896-901/935-940
MHz Band Channels 199 Channels

For multi-channel systems, channels may be grouped vertically or
horizontally as they appear in the below table.

*Channel Nos.*

  -------------------------------------- --------------------------------
  11-12-13-14-15                         211-212-213-214-215

  16-17-18-19-20                         216-217-218-219-220

  31-32-33-34-35                         231-232-233-234-235

  36-37-38-39-40                         236-237-238-239-240

  51-52-53-54-55                         251-252-253-254-255

  56-57-58-59-60                         256-257-258-259-260

  71-72-73-74-75                         271-272-273-274-275

  76-77-78-79-80                         276-277-278-279-280

  91-92-93-94-95                         291-292-293-294-295

  96-97-98-99-100                        296-297-298-299-300

  111-112-113-114-115                    311-312-313-314-315

  116-117-118-119-120                    316-317-318-319-320

  131-132-133-134-135                    331-332-333-334-335

  136-137-138-139-140                    336-337-338-339-340

  151-152-153-154-155                    351-352-353-354-355

  156-157-158-159-160                    356-357-358-359-360

  171-172-173-174-175                    371-372-373-374-375

  176-177-178-179-180                    376-377-378-379-380

  191-192-193-194-195                    391-392-393-394-395

  196-197-198-199-200                    396-397-398-399
  -------------------------------------- --------------------------------

\(d\) Unless otherwise specified, the channels listed in Tables 4A and
4B are available for non-cellular operations only to eligibles in the
SMR category -- which consists of Specialized Mobile Radio (SMR)
stations and eligible end users. 800 MHz cellular systems as defined in
§ 90.7 are prohibited on these channels. These frequencies are available
in non-border areas. The spectrum blocks listed in Table 4A are
available for EA-based services (as defined by § 90.681 of this chapter)
prior to **\[Effective date of *Report and Order*\]**. No new EA-based
services will be authorized after **\[Effective date of *Report and
Order*\]**. EA-based licensees who operate non-cellular systems prior to
**\[Effective date of *Report and Order*\]** may choose to remain on
these channels in the non-cellular portion of the 800 MHz band (as
defined in § 90.614 of this chapter.) These licensees may continue to
operate non-cellular systems and will be grandfathered indefinitely. The
channels listed in Table 4B will be available for site-base licensing
after **\[Effective date of *Report and Order*\]** in any Economic Area
where no EA-based licensee is authorized for these channels.

Table 4A -- EA-Based SMR Category 806-816/851-861 MHz Band Channels For
Cellular Operations available prior to **\[Effective date of *Report and
Order*\]** (80 Channels.)

  ----------------------------------- -----------------------------------
  Spectrum Block                      Channel Nos.

  G                                   311-351-391-431-471

  H                                   312-352-392-432-472

  I                                   313-353-393-433-473

  J                                   314-354-394-434-474

  K                                   315-355-395-435-475

  L                                   316-356-396-436-476

  M                                   317-357-397-437-477

  N                                   318-358-398-438-478

  O                                   331-371-411-451-491

  P                                   332-372-412-452-492

  Q                                   333-373-413-453-493

  R                                   334-374-414-454-494

  S                                   335-375-415-455-495

  T                                   336-376-416-456-496

  U                                   337-377-417-457-497

  V                                   338-378-418-458-498
  ----------------------------------- -----------------------------------

Table 4B -- SMR Category 806-816/851-861 MHz Band Channels For Cellular
Operations available for site-baseD licensing after **\[Effective date
of *Report and Order*\]** (80 Channels.)

+-----------------------------------+-----------------------------------+
| Group No.                         | Channel Nos.                      |
+-----------------------------------+-----------------------------------+
| 315                               | 315-355-395-435-475               |
+-----------------------------------+-----------------------------------+
| 316                               | 316-356-396-436-476               |
+-----------------------------------+-----------------------------------+
| 317                               | 317-357-397-437-477               |
+-----------------------------------+-----------------------------------+
| 318                               | 318-358-398-438-478               |
+-----------------------------------+-----------------------------------+
| 331                               | 331-371-411-451-491               |
+-----------------------------------+-----------------------------------+
| 332                               | 332-372-412-452-492               |
+-----------------------------------+-----------------------------------+
| 333                               | 333-373-413-453-493               |
+-----------------------------------+-----------------------------------+
| 334                               | 334-374-414-454-494               |
+-----------------------------------+-----------------------------------+
| 335                               | 335-375-415-455-495               |
+-----------------------------------+-----------------------------------+
| 336                               | 336-376-416-456-496               |
+-----------------------------------+-----------------------------------+
| 337                               | 337-377-417-457-497               |
+-----------------------------------+-----------------------------------+
| 338                               | 338-378-418-458-498               |
+-----------------------------------+-----------------------------------+
| Single Channels                   | 431, 432, 433, 434, 471,          |
|                                   |                                   |
|                                   | 472, 473, 474, 479, 480,          |
|                                   |                                   |
|                                   | 481, 488, 489, 490, 499,          |
|                                   |                                   |
|                                   | 500, 501, 508, 509, 510           |
+-----------------------------------+-----------------------------------+

\(e\) The Channels listed in § 90.614(b) and (c) of this chapter are
available to eligibles in the SMR category -- which consists of
Specialized Mobile Radio (SMR) stations and eligible end users. ESMR
licensees which employ an 800 MHz cellular system as defined in § 90.7
are permitted to operate on these channels in non-border areas. ESMR
licensees authorized prior to **\[Effective date of *Report and
Order*\]** may continue to operate, if they so chose, on the channels
listed in Table 5. These licensees will be grandfathered indefinitely.

Table 5 -- ESMR Category 816-821/861-866 MHz Band Channels For Cellular
Operations in non-border areas AVAILABLE PRIOR TO **\[Effective date of
*Report and Order*\]**. (200 Channels)

  ----------------------------------- -----------------------------------
  Spectrum Block                      Channel Nos.

  A                                   511 through 530

  B                                   531 through 590

  C                                   591 through 710
  ----------------------------------- -----------------------------------

\(f\) The channels listed in Tables 6 are available for operations only
to eligibles in the SMR category -- which consists of Specialized Mobile
Radio (SMR) stations and eligible end users. These frequencies are
available in non-border areas. The spectrum blocks listed below are
available for EA-based services according to § 90.681.

Table 6 -- SMR Category 896-901/935-940 MHz Band Channels (200 Channels)

  --------------------- -------------------------------------------------
  Block                 Channel Nos.

  A                     1-2-3-4-5-6-7-8-9-10

  B                     21-22-23-24-25-26-27-28-29-30

  C                     41-42-43-44-45-46-47-48-49-50

  D                     61-62-63-64-65-66-67-68-69-70

  E                     81-82-83-84-85-86-87-88-89-90

  F                     101-102-103-104-105-106-107-108-109-110

  G                     121-122-123-124-125-126-127-128-129-130

  H                     141-142-143-144-145-146-147-148-149-150

  I                     161-162-163-164-165-166-167-168-169-170

  J                     181-182-183-184-185-186-187-188-189-190

  K                     201-202-203-204-205-206-207-208-209-210

  L                     221-222-223-224-225-226-227-228-229-230

  M                     241-242-243-244-245-246-247-248-249-250

  N                     261-262-263-264-265-266-267-268-269-270

  O                     281-282-283-284-285-286-287-288-289-290

  P                     301-302-303-304-305-306-307-308-309-310

  Q                     321-322-323-324-325-326-327-328-329-330

  R                     341-342-343-344-345-346-347-348-349-350

  S                     361-362-363-364-365-366-367-368-369-370

  T                     381-382-383-384-385-386-387-388-389-390
  --------------------- -------------------------------------------------

\(g\) Channels below 470 listed in Tables 2 and 4B which are vacated by
ESMR licensees after **\[Effective date of *Report and Order*\]** are
available only to eligible applicants in the Public Safety Category
until **\[Three years from effective date of *Report and Order*\].**
These same channels will be available only to eligible applicants in the
Public Safety or Critical Infrastructure Industry Categories from
**\[Three years from effective date of *Report and Order*\]** until
**\[Five years from effective date of *Report and Order*\].** After
**\[Five years from effective date of *Report and Order*\]** these
channels will revert back to their original pool categories.

\(h\) Channels below 470 listed in Tables 2 and 4B which are vacated by
licensees relocating to Channels 511-550 after **\[Effective date of
*Report and Order*\]** are available only to eligible applicants in the
Public Safety Category until **\[Three years from effective date of
*Report and Order*\].** These same channels will be available only to
eligible applicants in the Public Safety or Critical Infrastructure
Industry Categories from **\[Three years from effective date of *Report
and Order*\]** until **\[Five years from effective date of *Report and
Order*\].** After **\[Five years from effective date of *Report and
Order*\]** these channels will revert back to their original pool
categories.

\(i\) Special Mobilized Radio Systems licensees who operate non-cellular
systems on any of the public safety channels listed in Table 1 prior to
**\[Effective date of *Report and Order*\]** are grandfathered and may
continue to operate on these channels indefinitely. These grandfathered
licensees will be prohibited from operating 800 MHz cellular systems as
defined in § 90.7. Site-based licensees who are grandfathered on any of
the public safety channels listed in Table 1 may modify their license
only if they obtain concurrence from a certified public safety
coordinator in accordance with § 90.175(c). Grandfathered EA-based
licensees, however, are exempt from any of the frequency coordination
requirements of § 90.175 as long as their operations remain within the
Economic Area defined by their license in accordance with the
requirements of § 90.683(a).

\(j\) Licensees operating ESMR systems in the non-cellular portion of
the band (as defined in § 90.614) prior to **\[Effective date of *Report
and Order*\]** may elect to continue operating in the non-cellular
portion of the band. These licensees will be permitted to continue
operating 800 MHz cellular systems (as defined in § 90.7) in the
non-cellular portion of the band. These licensees will be grandfathered
indefinitely subject to the provisions of §§ 90.673, 90.674 and 90.675.

\(k\) Licensees may operate systems other than 800 MHz cellular systems
(as defined in § 90.7) on Channels 511-550 at any location vacated by an
EA-based SMR licensee. For operations on these channels, unacceptable
interference (as defined in §§ 22.970 & 90.672) will be deemed to occur
only at sites where the following median desired signals are received
(rather than those specified in §§ 22.970(a)(1)(i) & 90.672(a)(1)(i)).
The minimum required median desired signal, as measured at the R.F.
input of the receiver, will be as follows:

\(1\) Mobile units:

\(i\) For channels 511 to 524 -- the minimum median desired signal
levels specified in §§ 22.970(a)(1)(i) & 90.672(a)(1)(i) shall apply;

\(ii\) For channels 524 to 534 -- the minimum median desired signal
level shall increase linearly from the values specified in §§
22.970(a)(1)(i) & 90.672(a)(1)(i) to -70 dBm;

\(iii\) For channels 534 to 550 -- the minimum median desired signal
level shall increase linearly from -70 dBm to -65 dBm.

\(2\) Portable units:

\(i\) For channels 511 to 524 -- the minimum median desired signal
levels specified in §§ 22.970(a)(1)(i) & 90.672(a)(1)(i) shall apply;

\(ii\) For channels 524 to 530 -- the minimum median desired signal
level shall increase linearly from the values specified in §§
22.970(a)(1)(i) & 90.672(a)(1)(i) to -80 dBm;

\(iii\) For channels 530 to 534 -- the minimum median desired signal
level shall increase linearly from -80 dBm to -70 dBm;

\(iv\) For channels 534 to 550 -- the minimum median desired signal
level shall increase linearly from -70 dBm to -65 dBm.

437. Section 90.619 is amended to read as follows.

     **§ 90.619 Operations within the U.S./Mexico and U.S./Canada border
     areas.**

     \(a\) *Use of Frequencies in 800 MHz Band in Mexico Border Region.*
     All operations in the 806-824/851-869 MHz band within 110 km (68.4
     miles) of the U.S./Mexico border ("Mexico border region") shall be
     in accordance with international agreements between the U.S. and
     Mexico. Channels 231-710 are offset 12.5 kHz lower in frequency
     than those specified in the table in §90.613. Stations located on
     Mt. Lemmon, serving the Tucson, AZ area, will only be authorized
     offset frequencies.

     \(b\) *Use of Frequencies in 900 MHz Band in Mexico Border Region.*
     All operations in the 896-901/935-940 MHz band within the Mexico
     border region shall be in accordance with international agreements
     between the U.S. and Mexico.

     \(1\) The channels listed in Table 1 below are available to
     applicants eligible in the Industrial/Business Pool of subpart C of
     this part but exclude Special Mobilized Radio Systems as defined in
     §90.603(c). These frequencies are available within the Mexico
     border region. Specialized Mobile Radio (SMR) systems will not be
     authorized on these frequencies.

     Table 1 -- United States/Mexico Border Area,
     Business/Industrial/Land Transportation Pool 896-901/935-940 MHz
     Band (199 Channels)

     For multi-channel systems, channels may be grouped vertically or
     horizontally as they appear in the following table. Channels
     numbered above 200 may be used only subject to the power flux
     density limits stated in paragraph (a)(2) of this section:

Channels Nos.

  -------------------------------------- --------------------------------
  11-12-13-14-15                         131-132-133-134-135

  16-17-18-19-20                         136-137-138-139-140

  31-32-33-34-35                         231-232-233-234-235

  36-37-38-39-40                         236-237-238-239-240

  51-52-53-54-55                         171-172-173-174-175

  56-57-58-59-60                         176-177-178-179-180

  71-72-73-74-75                         271-272-273-274-275

  76-77-78-79-80                         276-277-278-279-280

  91-92-93-94-95                         211-212-213-214-215

  96-97-98-99-100                        216-217-218-219-220

  111-112-113-114-115                    311-312-313-314-315

  116-117-118-119-120                    316-317-318-319-320

  151-152-153-154-155                    351-352-353-354-355

  156-157-158-159-160                    356-357-358-359-360

  191-192-193-194-195                    391-392-393-394-395

  196-197-198-199-200                    396-397-398-399

  251-252-253-254-255                    331-332-333-334-335

  256-257-258-259-260                    336-337-338-339-340

  291-292-293-294-295                    371-372-373-374-375

  296-297-298-299-300                    376-377-378-379-380
  -------------------------------------- --------------------------------

\(2\) The channels listed in Table 2 below are available for operations
only to eligibles in the SMR category -- which consists of Specialized
Mobile Radio (SMR) stations and eligible end users. These frequencies
are available in the Mexico border region. The spectrum blocks listed
below are available for EA-based services according to § 90.681.

Table 2 -- United States-Mexico Border Area, SMR Category
896-901/935-940 MHZ Band (200 Channels)

  --------------------- -------------------------------------------------
  Block                 Channel Nos.

  Channels numbered     
  above 200 may only be 
  used subject to the   
  power flux density    
  limits at or beyond   
  the Mexico border as  
  stated in paragraph   
  (4) of this section.  

  A                     1-2-3-4-5-6-7-8-9-10

  B                     21-22-23-24-25-26-27-28-29-30

  C                     41-42-43-44-45-46-47-48-49-50

  D                     61-62-63-64-65-66-67-68-69-70

  E                     81-82-83-84-85-86-87-88-89-90

  F                     101-102-103-104-105-106-107-108-109-110

  G                     121-122-123-124-125-126-127-128-129-130

  H                     141-142-143-144-145-146-147-148-149-150

  I                     161-162-163-164-165-166-167-168-169-170

  J                     181-182-183-184-185-186-187-188-189-190

  K                     201-202-203-204-205-206-207-208-209-210

  L                     221-222-223-224-225-226-227-228-229-230

  M                     241-242-243-244-245-246-247-248-249-250

  N                     261-262-263-264-265-266-267-268-269-270

  O                     281-282-283-284-285-286-287-288-289-290

  P                     301-302-303-304-305-306-307-308-309-310

  Q                     321-322-323-324-325-326-327-328-329-330

  R                     341-342-343-344-345-346-347-348-349-350

  S                     361-362-363-364-365-366-367-368-369-370

  T                     381-382-383-384-385-386-387-388-389-390
  --------------------- -------------------------------------------------

\(3\) The specific channels that are available for licensing in the band
896--901/935--940 MHz within the Mexico border region are subject to
Effective Radiated Power (ERP) and Antenna Height limitations as
indicated in Table 3 below.

Table 3 -- Limits of Effective Radiated Power (ERP) Corresponding to
Antenna Heights of Base Stations in the 896-901/935-940 MHZ Bands within
110 kilometers (68.4 miles) of the Mexican Border

  ----------------------------------- -------------------------------- --------------------------
  Antenna height above mean sea level                                  ERP

  Meters                              Feet                             Watts (maximum)

  0-503..........................     0-1650.....................      500

  504-609..........................   1651-2000.....................   350

  610-762..........................   2001-2500.....................   200

  763-914..........................   2501-3000.....................   140

  915-1066........................    3001-3500.....................   100

  1067-1219.......................    3501-4000.....................   75

  1220-1371.......................    4001-4500.....................   70

  1372-1523.......................    4501-5000.....................   65

  Above 1523.....................     Above 5000....................   5
  ----------------------------------- -------------------------------- --------------------------

\(4\) All channels in the 896--901/935--940 MHz band are available for
assignment to U.S. stations within the Mexico border region if the
maximum power flux density (pfd) of the station\'s transmitted signal at
any point at or beyond the border does not exceed −107 dB(W/m^2^). The
spreading loss must be calculated using the free space formula taking
into account any antenna discrimination in the direction of the border.
Authorizations for stations using channels allotted to Mexico on a
primary basis will be secondary to Mexican operations and conditioned to
require that licensees take immediate action to eliminate any harmful
interference resulting from the station\'s transmitted signal exceeding
−107 dB(W/m^2^).

\(c\) *Use of 800 MHz Band in Canada Border Region.* All operations in
the 806-824/851-869 MHz band within 140 km (87 miles) of the U.S./Canada
border ("Canada border region") shall be in accordance with
international agreements between the U.S. and Canada.

\(d\) *Use of 900 MHz Band in Canada Border Region.* All operations in
the 896--901/935--940 MHz band within the Canada border region shall be
in accordance with international agreements between the U.S. and Canada.
The following criteria shall govern the assignment of frequency pairs
(channels) in the 896--901/935--940 MHz band for stations located in the
U.S./Canada border area. They are available for assignments for
conventional or trunked systems in accordance with applicable sections
of this subpart. \* \* \*

438. Paragraphs (a), (b), (c), (e), (f), (g) and (h) of Section 90.621
     are amended to reflect the combining of the Business and
     Industrial/Land Transportation categories into one pool; to allow
     CMRS operations on 900 MHz PLMR channels; to allow 900 MHz PLMR
     licensees to transfer their licenses to CMRS licensees; to reflect
     the new channel numbers after band reconfiguration and to remove
     all references to spectrum blocks D through F1 which will no longer
     exist after band reconfiguration.

     **§ 90.621 Selection and assignment of frequencies.**

     \(a\) Applicants for frequencies in the Public Safety and
     Business/Industrial/Land Transportation Categories must specify on
     the application the frequencies on which the proposed system will
     operate pursuant to a recommendation by the applicable frequency
     coordinator. Applicants for frequencies in the SMR Category must
     request specific frequencies by including in their applications the
     frequencies requested.

     \* \* \* \* \*

     \(b\) Stations authorized on frequencies listed in this subpart,
     except for those stations authorized pursuant to paragraph (g) of
     this section and EA-based and MTA-based SMR systems, will be
     assigned frequencies solely on the basis of fixed distance
     separation criteria. The separation between co-channel systems will
     be a minimum of 113 km (70 mi) with one exception. For incumbent
     licensees in Channel Blocks G through V, that have received the
     consent of all affected parties or a certified frequency
     coordinator to utilize an 18 dBμV/m signal strength interference
     contour (see §90.693), the separation between co-channel systems
     will be a minimum of 173 km (107 mi). The following exceptions to
     these separations shall apply:

     \(1\) Except as indicated in paragraph (b)(4) of this section, no
     station in Channel Blocks A through V shall be less than 169 km
     (105 mi) distant from a co-channel station that has been granted
     channel exclusivity and authorized 1 kW ERP on any of the following
     mountaintop sites: Santiago Peak, Sierra Peak, Mount Lukens, Mount
     Wilson (California). Except as indicated in paragraph (b)(4) of
     this section, no incumbent licensee in Channel Blocks G through V
     that has received the consent of all affected parties or a
     certified frequency coordinator to utilize an 18 dBμV/m signal
     strength interference contour shall be less than 229 km (142 mi)
     distant from a co-channel station that has been granted channel
     exclusivity and authorized 1 kW ERP on any of the following
     mountaintop sites: Santiago Peak, Sierra Peak, Mount Lukens, Mount
     Wilson (California).

     \* \* \* \* \*

     \(3\) Except as indicated in paragraph (b)(4) of this section,
     stations in Channel Blocks A through V that have been granted
     channel exclusivity and are located in the State of Washington at
     the locations listed below shall be separated from co-channel
     stations by a minimum of 169 km (105 mi). Except as indicated in
     paragraph (b)(4) of this section, incumbent licensees in Channel
     Blocks G through V that have received the consent of all affected
     parties or a certified frequency coordinator to utilize an 18
     dBμV/m signal strength interference contour, have been granted
     channel exclusivity and are located in the State of Washington at
     the locations listed below shall be separated from co-channel
     stations by a minimum of 229 km (142 mi). Locations within one mile
     of the geographical coordinates listed in the table below will be
     considered to be at that site.

Note:   Coordinates are referenced to North American Datum 1983 (NAD83).

  ---------------------------------------------- ------------------ ------------------
  Site Name                                      North Latitude     West Longitude

  Mount                                          48° 40' 47.4"      122° 50' 28.7"
  Constitution..............................                        

  Lyman                                          48° 35' 41.4"      122° 09' 39.6"
  Mountain.................................                         

  Cultus                                         48° 25' 30.4"      122° 08' 58.5"
  Mountain.................................                         

  Gunsite                                        48° 03' 22.4"      121° 51' 41.5"
  Ridge....................................                         

  Gold                                           47° 32' 51.3"      122° 46' 56.5"
  Mountain...................................                       

  Buck                                           47° 47' 05.3"      122° 59' 34.6"
  Mountain....................................                      

  Cougar                                         47° 32' 39.4"      122° 06' 34.4"
  Mountain.................................                         

  Squak                                          47° 30' 14.4"      122° 03' 34.4"
  Mountain..................................                        

  Tiger                                          47° 30' 13.4"      121° 58' 32.4"
  Mountain...................................                       

  Devils                                         48° 21' 52.4"      122° 16' 06.6"
  Mountain.................................                         

  McDonald Mountain............................  47° 20' 11.3"      122° 51' 30.5"

  Maynard                                        48° 00' 58.3"      122° 55' 35.6"
  Hill.....................................                         

  North                                          47° 19' 07.3"      123° 20' 48.6"
  Mountain.................................                         

  Green                                          47° 33' 40.3"      122° 48' 31.5"
  Mountain.................................                         

  Capitol                                        46° 58' 21.3"      123° 08' 21.5"
  Peak.......................................                       

  Rattlesnake                                    47° 28' 09.4"      121° 49' 17.4"
  Mountain...........................                               

  Three Sisters                                  47° 07' 19.4"      121° 53' 34.4"
  Mountain.........................                                 

  Grass                                          47° 12' 14.1"      121° 47' 42.4"
  Mountain..................................                        

  Spar Pole                                      47° 02' 51.4"      122° 08' 39.4"
  Hill....................................                          
  ---------------------------------------------- ------------------ ------------------

\* \* \* \* \*

\(c\) Conventional systems authorized on frequencies in the Public
Safety (except for those systems that have participated in a formal
regional planning process as described in §90.16) and
Business/Industrial/Land Transportation categories which have not met
the loading levels necessary for channel exclusivity will not be
afforded co-channel protection.

\* \* \* \* \*

\(e\) Frequencies in the 809--817/854--862 MHz bands listed as available
for eligibles in the Public Safety and Business/Industrial/Land
Transportation Categories are available for inter-category sharing under
the following conditions:

\(1\) Channels in the Public Safety and Business/Industrial/Land
Transportation categories will be available to eligible applicants in
those categories only if there are no frequencies in their own category
and no public safety systems are authorized on those channels under
consideration to be shared.

\(2\) Notwithstanding paragraph (e)(5) of this section, licensees of
channels in the Business/Industrial/Land Transportation category may
request a modification of the license, see §1.947 of this part, to
authorize use of the channels for commercial operation. The licensee may
also, at the same time or thereafter, seek authorization to transfer or
assign the license, see §1.948 of this part, to any person eligible for
licensing in the General or SMR categories. Applications submitted
pursuant to this paragraph must be filed in accordance with the rules
governing other applications for commercial channels, and will be
processed in accordance with those rules. Grant of requests submitted
pursuant to this paragraph is subject to the following conditions:

\(i\) A licensee that modifies its license to authorize commercial
operations will not be authorized to obtain additional 800 MHz
Business/Industrial/Land Transportation category channels for sites
located within 113 km (70 mi.) of the station for which the license was
modified, for a period of one year from the date the license is
modified. This provision applies to the licensee, its controlling
interests and their affiliates, as defined in §1.2110 of this chapter.

\(ii\) With respect to licenses the initial application for which was
filed on or after November 9, 2000, requests submitted pursuant to
paragraph (e)(2) of this section may not be filed until five years after
the date of the initial license grant. In the case of a license that is
modified on or after November 9, 2000 to add 800 MHz
Business/Industrial/Land Transportation frequencies or to add or
relocate base stations that expand the licensee\'s the interference
contour, requests submitted pursuant to paragraph (e)(2) of this section
for these frequencies or base stations may not be filed until five years
after such modification.

\* \* \* \* \*

\(f\) Licensees of channels in the Business/Industrial/Land
Transportation Categories in the 896--901/935-940 MHz bands may request
a modification of the license, *see* § 1.947 of this part, to authorize
use of the channels for commercial operation. The licensee may also, at
the same time, or thereafter, seek authorization to transfer or assign
the license, *see* § 1.948 of this part, to any person eligible for
licensing in the General or SMR categories. Applications submitted
pursuant to this paragraph must be filed in accordance with the rules
governing other applications for commercial channels, and will be
processed in accordance with those rules.

\(g\) Applications for Public Safety systems (both trunked and
conventional) in the 806--809/851--854 MHz bands will be assigned and
protected based on the criteria established in the appropriate regional
plan. See §90.16 and the Report and Order in General Docket 87--112.

\(h\) Channel numbers 511--520, 551--560, 591--600, 631--640, and
671--680 are allocated for Basic Exchange Telecommunications Radio
Service as described in § 22.757 of this chapter. NOTE: the FCC has
proposed to remove these channels from the rural radiotelephone service
in WT Docket No. 03-103 (FCC 03-95) released April 28, 2003 (68 FR 4403)
which is pending.

\* \* \* \* \*

439. The text in paragraph (d) of Section 90.629 is removed because the
     Business and Industrial/Transportation categories have been
     combined into one pool.

     **§ 90.629 Extended implementation period.**

     \* \* \* \* \*

     \(d\) \[Reserved\]

     \* \* \* \* \*

440. Paragraph (b) of Section 90.631 is amended to reflect the
     interleaved portion of the 800 MHz band after band reconfiguration
     and to remove references to Spectrum Block D which will no longer
     exist after band reconfiguration.

     **§ 90.631 Trunked systems loading, construction and authorization
     requirements.**

     \* \* \* \* \*

     \(b\) Each applicant for a non-SMR trunked system must certify that
     a minimum of seventy (70) mobiles for each channel authorized will
     be placed into operation within five (5) years of the initial
     license grant. Except for SMR systems licensed in the
     809--816/854--861 MHz band and as indicated in paragraph (i) of
     this section, if at the end of five (5) years a trunked system is
     not loaded to the prescribed levels and all channels in the
     licensee\'s category are assigned in the system\'s geographic area,
     authorizations for trunked channels not loaded to seventy (70)
     mobile stations cancels automatically at a rate that allows the
     licensee to retain one channel for every one hundred (100) mobiles
     loaded, plus one additional channel. If a trunked system has
     channels from more than one category, General Category channels are
     the first channels considered to cancel automatically. All non-SMR
     licensees initially authorized before June 1, 1993, that are within
     their original license term, or SMR licensees that are within the
     term of a two-year authorization granted in accordance with
     paragraph (i) of this section, are subject to this condition. A
     licensee that has authorized channels cancelled due to failure to
     meet the above loading requirements will not be authorized
     additional channels to expand that same system for a period of six
     months from the date of cancellation.

     \* \* \* \* \*

441. Paragraph (g) of Section 90.645 is amended to reflect the
     interleaved portion of the 800 MHz band after band reconfiguration.

     **§ 90.645 Permissible operations.**

     \* \* \* \* \*

     \(g\) Up to five (5) contiguous 809--816/854--861 band channels as
     listed in §§90.615, 90.617, and 90.619 may be authorized after
     justification for systems requiring more than the normal single
     channel bandwidth. If necessary, licensees may trade channels
     amongst themselves in order to obtain contiguous frequencies.
     Notification of such proposed exchanges shall be made to the
     appropriate frequency coordinator(s) and to the Commission by
     filing an application for license modification.

     \* \* \* \* \*

442. The following sections are added immediately after the text of
     Section 90.671:

     PROCEDURES AND PROCESS - UNACCEPTABLE INTERFERENCE

     **§ 90.672 Unacceptable interference to non-cellular 800 MHz
     licensees from ESMR or Part 22 Cellular Radiotelephone systems.**

     \(a\) *Definition.* Except as provided in 47 C.F.R. §90.617(k),
     unacceptable interference to non-cellular licensees in the 800 MHz
     band will be deemed to occur when the below conditions are met:

     \(1\) A transceiver at a site at which interference is encountered:

     \(i\) Is in good repair and operating condition, and is receiving:

     \(A\) A median desired signal of -104 dBm or higher, as measured at
     the R.F. input of the receiver of a mobile unit; or

     \(B\) A median desired signal of -101 dBm or higher, as measured at
     the R.F. input of the receiver of a portable *i.e.* hand-held unit;
     and, either

     \(ii\) Is a voice transceiver:

     \(A\) with manufacturer published performance specifications for
     the receiver section of the transceiver equal to, or exceeding, the
     minimum standards set out in Section (b), below; and;

     \(B\) Receiving an undesired signal or signals which cause the
     measured Carrier to Noise plus Interference (C/(I+N)) ratio of the
     receiver section of said transceiver to be less than 20 dB, or,

     \(iii\) Is a non-voice transceiver receiving an undesired signal or
     signals which cause the measured bit error rate (BER) (or some
     comparable specification) of the receiver section of said
     transceiver to be more than the value reasonably designated by the
     manufacturer**.**

     \(2\) Provided, however, that if the receiver section of the mobile
     or portable voice transceiver does not conform to the standards set
     out in paragraph (b), below, then that transceiver shall be deemed
     subject to unacceptable interference only at sites where the median
     desired signal satisfies the applicable threshold measured signal
     power in paragraphs (a)(1)(i) after an upward adjustment to account
     for the difference in receiver section performance. The upward
     adjustment shall be equal to the increase in the desired signal
     required to restore the receiver section of the subject transceiver
     to the 20 dB C/(I+N) ratio of paragraph (a)(1)(iv)(a) above. The
     adjusted threshold levels shall then define the minimum measured
     signal power(s) in lieu of paragraphs (a) (1) (i) at which the
     licensee using such non-compliant transceiver is entitled to
     interference protection.

     \(b\) *Minimum Receiver Requirements*. Voice transceivers capable
     of operating in the 806-824 MHz portion of the 800 MHz band shall
     have the following minimum performance specifications in order for
     the system in which such transceivers are used to claim entitlement
     to full protection against unacceptable interference. (See
     paragraph (a) (2) above.)

> \(1\) Voice units intended for mobile use: 75 dB intermodulation
> rejection ratio; 75 dB adjacent channel rejection ratio; -116 dBm
> reference sensitivity.

\(2\) Voice units intended for portable use: 70 dB intermodulation
rejection ratio; 70 dB adjacent channel rejection ratio; -116 dBm
reference sensitivity.

**§ 90.673 Obligation to abate unacceptable interference.**

\(a\) *Strict Responsibility*. Any licensee who, knowingly or
unknowingly, directly or indirectly, causes or contributes to causing
unacceptable interference to a non-cellular licensee in the 800 MHz
band, as defined in this chapter, shall be strictly accountable to abate
the interference, with full cooperation and utmost diligence, in the
shortest time practicable. Interfering licensees shall consider all
feasible interference abatement measures, including, but not limited to,
the remedies specified in the interference resolution procedures set
forth in this chapter. This strict responsibility obligation applies to
all forms of interference, including out-of-band emissions and
intermodulation

\(b\) *Joint and Several Responsibility*. If two or more licensees
knowingly or unknowingly, directly or indirectly, cause or contribute to
causing unacceptable interference to a non-cellular licensee in the 800
MHz band, as defined in this chapter, such licensees shall be jointly
and severally responsible for abating interference, with full
cooperation and utmost diligence, in the shortest practicable time. This
joint and several responsibility rule requires interfering licensees to
consider all feasible interference abatement measures, including, but
not limited to, the remedies specified in the interference resolution
procedures set forth in this chapter. This joint and several
responsibility rule applies to all forms of interference, including
out-of-band emissions and intermodulation

\(1\) This joint and several responsibility rule requires interfering
licensees to consider all feasible interference abatement measures,
including, but not limited to, the remedies specified in the
interference resolution procedures set forth in § 90.674(c) of this
chapter. This joint and several responsibility rule applies to all forms
of interference, including out-of-band emissions and intermodulation.

\(2\) Any licensee that can show that its signal does not directly or
indirectly, cause or contribute to causing unacceptable interference to
a non-cellular licensee in the 800 MHz band, as defined in this chapter,
shall not be held responsible for resolving unacceptable interference.
Notwithstanding, any licensee that receives an interference complaint
from a public safety/CII licensee shall respond to such complaint
consistent with the interference resolution procedures set forth in this
chapter.

**§ 90.674 Interference resolution procedures before, during and after
band reconfiguration.**

\(a\) *Initial Notification.* Any non-cellular licensee operating in the
806-824/851-869 MHz band who reasonably believes it is receiving harmful
interference, as described in § 90.672, shall provide an initial
notification of the interference incident. This initial notification of
an interference incident shall be sent to all Part 22 Cellular
Radiotelephone licensees and ESMR licensees who operate cellular base
stations ("cell sites") within 1,524 meters (5,000 feet) of the
interference incident.

\(1\) The initial notification of interference shall include the
following information on interference:

> \(i\) the specific geographical location where the interference
> occurs, and the time or times at which the interference occurred or is
> occurring;
>
> \(ii\) a description of its scope and severity, including its source,
> if known;
>
> \(iii\) the relevant Commission licensing information of the party
> suffering the interference; and

\(iv\) a single point of contact for the party suffering the
interference.

\(2\) ESMR licensees, in conjunction with Part 22 Cellular
Radiotelephone licensees, shall establish an electronic means of
receiving the initial notification described in subsection (a)(1) above.
The electronic system must be designed so that all appropriate 800 MHz
ESMR and Part 22 Cellular Radiotelephone licensees can be contacted
about the interference incident with a single notification. The
electronic system for receipt of initial notification of interference
complaints must be operating no later than **\[Thirty days after
effective date of *Report and Order*\]**.

\(3\) ESMR licensees must respond to the initial notification described
in paragraph (a)(1) of this section, as soon as possible and no later
than 24 hours of receipt of notification from a public safety/CII
licensee. This response time may be extended to 48 hours after receipt
from other non-cellular licensees provided affected communications on
these systems are not safety related.

\(b\) *Interference Analysis.* ESMR licensees -- who receive an initial
notification described in paragraph (a) above -- shall perform a timely
analysis of the interference to identify the possible source. Immediate
on-site visits may be conducted when necessary to complete timely
analysis. Interference analysis must be completed and corrective action
initiated within 48 hours of the initial complaint from a public
safety/CII licensee. This response time may be extended to 96 hours
after the initial complaint from other non-cellular licensees provided
affected communications on these systems are not safety related.
Corrective action may be delayed if the affected licensee agrees in
writing (which may be, but is not required to be, recorded via e-mail or
other electronic means) to a longer period.

\(c\) *Mitigation Steps.* (1) All ESMR and Part 22 Cellular
Radiotelephone licensees who are responsible for causing unacceptable
interference shall take all affirmative measures to resolve such
interference. ESMR licensees found to contribute to harmful
interference, as defined in § 90.672, shall resolve such interference in
the shortest time practicable. ESMR and Part 22 Cellular Radiotelephone
licensees must provide all necessary test apparatus and technical
personnel skilled in the operation of such equipment as may be necessary
to determine the most appropriate means of timely eliminating the
interference. However, the means whereby interference is abated or the
cell parameters that may need to be adjusted is left to the discretion
of involved ESMR and/or Part 22 Cellular Radiotelephone licensees, whose
affirmative measures may include, but not be limited to, the following
techniques:

> \(i\) increasing the desired power of the public safety signal;
>
> \(ii\) decreasing the power of the ESMR and/or Part 22 Cellular
> Radiotelephone signal;
>
> \(iii\) modifying the ESMR and/or Part 22 Cellular Radiotelephone
> systems antenna height;
>
> \(iv\) modifying the ESMR and/or Part 22 Cellular Radiotelephone
> system antenna characteristics;
>
> \(iv\) incorporating filters into ESMR and/or Part 22 Cellular
> Radiotelephone system transmission equipment;
>
> \(v\) permanently changing ESMR and/or Part 22 Cellular Radiotelephone
> system frequencies; and
>
> \(vi\) supplying interference-resistant receivers to the affected
> public safety licensee(s). If this technique is used, in all
> circumstances, the ESMR and/or Part 22 Cellular Radiotelephone
> licensees shall be responsible for all costs thereof.

\(2\) Whenever short-term interference abatement measures prove
inadequate, the affected licensee shall, consistent with but not
compromising safety, make all necessary concessions to accepting
interference until a longer-term remedy can be implemented.

\(3\) *Discontinuing operations when clear and imminent danger exists.*
When a public safety licensee determines that a continuing presence of
interference constitutes a clear and imminent danger to life or
property, the licensee causing the interference must discontinue the
associated operation immediately, until a remedy can be identified and
applied. The determination that a continuing presence exists that
constitutes a clear and imminent danger to life or property, must be
made by written statement that:

> \(i\) is in the form of a declaration, notarized affidavit, or
> statement under penalty or perjury, from an officer or executive of
> the affected public safety licensee;
>
> \(ii\) thoroughly describes the basis of the claim of clear and
> imminent danger;
>
> \(iii\) was formulated on the basis of either personal knowledge or
> belief after due diligence;
>
> \(iv\) is not proffered by a contractor or other third party; and
>
> \(v\) has been approved by the Chief of the Wireless Telecommunication
> Bureau or other designated Commission official. Prior to the
> authorized official making a determination that a clear and imminent
> danger exists, the associated written statement must be served by
> hand-delivery or receipted fax on the applicable offending licensee,
> with a copy transmitted by the fastest available means to the
> Washington, D.C. office of the Commission's Wireless
> Telecommunications Bureau.

**§ 90.675 Information exchange.**

\(a\) *Prior Coordination.* Public safety/CII licensees may notify an
ESMR or Part 22 Cellular Radiotelephone licensee that they wish to
receive prior notification of the activation or modification of ESMR or
Part 22 Cellular Radiotelephone cell sites in their area. Thereafter,
the ESMR or Part 22 Cellular Radiotelephone licensee must provide the
following information to the public safety/CII licensee at least 10
business days before a new cell site is activated or an existing cell
site is modified:

> \(1\) location;
>
> \(2\) effective radiated power;

\(3\) antenna height;

\(4\) channels available for use.

\(b\) *Purpose of Prior Coordination*. The coordination of cell sites is
for informational purposes only: public safety/CII licensees are not
afforded the right to accept or reject the activation of a proposed cell
or to unilaterally require changes in its operating parameters. The
principal purposes of notification are to: (a) allow a public safety/CII
licensee to advise the ESMR or Part 22 Cellular Radiotelephone licensee
whether it believes a proposed cell will generate unacceptable
interference; (b) permit ESMR or Part 22 Cellular Radiotelephone
licensees to make voluntary changes in cell parameters when a public
safety licensee alerts them to possible interference; and (c) rapidly
identify the source if interference is encountered when the cell is
activated.

\(c\) *Public Safety Information Exchange.* (1) Upon request by an ESMR
or Part 22 Cellular Radiotelephone licensee, public safety/CII licensees
who operate radio systems in the 806-824/851-869 MHz shall provide the
operating parameters of their radio system to the ESMR or Part 22
Cellular Radiotelephone licensee.

\(2\) Public safety licensees who perform the information exchange
described above must notify the appropriate ESMR and Part 22 Cellular
Radiotelephone licensees prior to any technical changes to their radio
system.

**§ 90.676 Transition administrator for reconfiguration of the
806-824/851-869 MHz band in order to separate cellular systems from
non-cellular systems.**

The Transition Administrator will be an independent party with no
financial interest in any 800 MHz licensee; and will be selected by a
committee representative of 800 MHz licensees. The Transition
Administrator will serve both a ministerial role and a function similar
to a special master in a judicial proceeding.

\(a\) The duties of the Transition Administrator will include, but not
be limited to:

1.  Obtaining estimates from licensees regarding the cost of
    reconfiguring their systems and ensuring that estimates contain a
    firm work schedule. The Transition Administrator will retain copies
    of all estimates and make them available to the Commission on
    request.

2.  Mediating disputes regarding cost estimates for reconfiguring a
    system.

3.  Issuing the Draw Certificate to authorize and instruct the Letter of
    Credit Trustee to draw down on the Letter of Credit to pay
    relocation costs in connection with reconfiguring a licensee's
    system.

4.  Establishing a relocation schedule on a NPSPAC region-by-region
    basis, prioritizing the regions on the basis of population. However,
    should a given region be encountering unusually severe amounts of
    unacceptable interference, that region may be moved up in priority.
    Any party disputing such a change in priority may refer the matter
    to the Chief of the Public Safety and Critical Infrastructure
    Division, who hereby is delegated the authority to resolve such
    disputes. The Transition Administrator may direct that adjoining
    regions be reconfigured simultaneously when conditions so require.

5.  The Transition Administrator will coordinate relocation of a NPSPAC
    Region's NPSPAC channels with the relevant Regional Planning
    Committee(s) prior to commencing band reconfiguration in a NPSPAC
    Region.

    \(b\) Once band reconfiguration commences in a given NPSPAC Region,
    the Transition Administrator will;

    \(1\) Monitor the retuning schedule and resolve any schedule delays
    or refer same to the Public Safety and Critical Infrastructure
    Division for resolution;

    \(2\) Coordinate with adjoining NPSPAC Regions to ensure that
    interference is not being caused to their existing facilities from
    relocated stations;

    \(3\) Provide quarterly progress reports to the Commission in such
    detail as the Commission may require and include, with such reports,
    certifications by Nextel and the relevant licensees that relocation
    has been completed and that both parties agree on the amount
    received from the letter of credit proceeds in connection with
    relocation of the licensees' facilities. The report shall include
    description of any disputes that have arisen and the manner in which
    they were resolved. These quarterly reports need not be audited;

    \(4\) Provide to the Public Safety and Critical Infrastructure
    Division, on the anniversary of **\[Effective date of *Report and
    Order*\]**, an audited statement of relocation funds expended to
    date, including salaries and expenses of Transition Administrator;

    \(5\) Facilitate resolution of disputes by mediation; or referral of
    the parties to alternative dispute resolution services;

    \(c\) The Transition Administrator may not serve as the repository
    of funds used in band reconfiguration, excepting such sums as Nextel
    may pay for the Transition Administrator's services. Moreover, the
    Transition Administrator will not be certified by the Commission as
    a frequency coordinator.

    **§ 90.677 Reconfiguration of the 806-824/851-869 MHz band in order
    to separate cellular systems from non-cellular systems.**

    In order to facilitate reconfiguration of the 806-824/851-869 MHz
    band ("800 MHz band") to separate cellular systems from non-cellular
    systems, Nextel Communications, Inc. (Nextel) may relocate
    incumbents within the 800 MHz band by providing "comparable
    facilities." For the limited purpose of band reconfiguration, the
    provisions of § 90.157 shall not apply and inter-category sharing
    will be permitted under all circumstances. Such relocation is
    subject to the following provisions:

    \(a\) Within thirty days of Commission approval of the Transition
    Administrator, the Transition Administrator described in § 90.676
    will provide the Commission with a schedule detailing when band
    reconfiguration shall commence for each NPSPAC Region. The plan
    should also detail -- by NPSPAC Region -- which relocation option
    each non-Nextel ESMR licensees has chosen. The Chief of the Public
    Safety and Critical Infrastructure Division of the Wireless
    Telecommunications Bureau will finalize and approve such a plan. The
    schedule shall provide for completion of band reconfiguration in no
    more than thirty-six months following release of a Public Notice
    announcing the start date of reconfiguration in the first NPSPAC
    region. Relocation will commence according to the schedule set by
    the Transition Administrator but all systems must have commenced
    reconfiguration within thirty months of release of a Public Notice
    announcing the start date of reconfiguration in the first NPSPAC
    region.

    \(b\) *Voluntary negotiations.* Thirty days before the start date
    for each NPSPAC region, the Chief of the Public Safety and Critical
    Infrastructure Division of the Wireless Telecommunications Bureau
    will issue a Public Notice initiating a three-month voluntary
    negotiation period. During this voluntary negotiation period, Nextel
    and all incumbents may negotiate any mutually agreeable relocation
    agreement. Nextel and relocating incumbents may agree to conduct
    face-to-face negotiations or either party may elect to communicate
    with the other party through the Transition Administrator.

    \(c\) *Mandatory negotiations.* If no agreement is reached by the
    end of the voluntary period, a three-month mandatory negotiation
    period will begin during which both Nextel and the incumbents must
    negotiate in "good faith." Nextel and relocating incumbents may
    agree to conduct face-to-face negotiations or either party may elect
    to communicate with the other party through the Transition
    Administrator. All parties are charged with the obligation of utmost
    "good faith" in the negotiation process. Among the factors relevant
    to a "good-faith" determination are: (i) whether the party
    responsible for paying the cost of band reconfiguration has made a
    *bona fide* offer to relocate the incumbent to comparable
    facilities; (ii) the steps the parties have taken to determine the
    actual cost of relocation to comparable facilities; and (iii)
    whether either party has unreasonably withheld information,
    essential to the accurate estimation of relocation costs and
    procedures, requested by the other party. The Transition
    Administrator may schedule mandatory settlement negotiations and
    mediation sessions and the parties must conform to such schedules.

    \(d\) *Transition Administrator.* If no agreement is reached during
    either the voluntary or mandatory negotiating periods, all disputed
    issues shall be referred to the Transition Administrator who shall
    mediate and attempt to resolve them within thirty working days. If
    disputed issues remain thirty days after the end of the mandatory
    negotiation period; the Transition Administrator shall forward the
    record to the Chief of the Public Safety and Critical Infrastructure
    Division, together with advice on how the matter(s) may be resolved.
    The Chief of the Public Safety and Critical Infrastructure Division
    is hereby delegated the authority to rule on disputed issues, *de
    novo*.

    \(e\) *Waiver Requests.* Incumbents who wish not to relocate
    according to the schedule may petition the Commission for a waiver
    of the relocation obligation. Such a waiver would only be granted on
    a strict non-interference basis.

    \(f\) *Comparable Facilities.* The replacement system provided to an
    incumbent must be at least equivalent to the existing 800 MHz system
    with respect to the four factors described in § 90.699(d).

    \(g\) *Information Exchange.* Absent agreement between parties, the
    Transition Administrator will be responsible for determining the
    information that relocating incumbents must supply in support of a
    relocation agreement.

    \(h\) The relevant Regional Planning Committee shall be informed of
    any proposed changes to any NPSPAC channel.

    \* \* \* \* \*

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443. The heading above Section 90.681 is amended to describe the portion
     of the band where EA-based SMR systems may occupy after band
     reconfiguration. The cross reference in Section 90.681 is updated
     as follows:

     Policies Governing the Licensing and Use of EA-Based SMR Systems in
     the 809--824/851--869 MHZ Band

     Source: 61 FR 6158, 6159, Feb. 16, 1996, unless otherwise noted.

     **§ 90.681 EA-based SMR service areas.**

     EA licenses in for channels 711 through 830 and Spectrum Blocks A
     through V listed in Tables 4 and 5 of §90.617 are available in 175
     Economic Areas (EAs) as defined in §90.7.

444. Paragraph (a) of Section 90.683 is amended to reflect the portion
     of the band where EA-based SMR systems may occupy after band
     reconfiguration.

     **§ 90.683 EA-based SMR system operations.**

     \(a\) EA-based licensees authorized in the 809--824/854--869 MHz
     band pursuant to §90.681 may construct and operate base stations
     using any of the base station frequencies identified in their
     spectrum block anywhere within their authorized EA, provided that:

     \* \* \* \* \*

445. Paragraphs (a) and (b) of Section 90.685 are amended to reflect the
     portion of the band where EA-based SMR systems may occupy after
     band reconfiguration. References to EA Block D are also removed
     since this block will no longer exist after band reconfiguration.

     **§ 90.685 Authorization, construction and implementation of EA
     licenses.**

     \(a\) EA licenses in the 809--824/854--869 MHz band will be issued
     for a term not to exceed ten years. Additionally, EA licensees
     generally will be afforded a renewal expectancy only for those
     stations put into service after August 10, 1996.

     \(b\) EA licensees in the 809--824/854--869 MHz band must, within
     three years of the grant of their initial license, construct and
     place into operation a sufficient number of base stations to
     provide coverage to at least one-third of the population of its
     EA-based service area. Further, each EA licensee must provide
     coverage to at least two-thirds of the population of the EA-based
     service area within five years of the grant of their initial
     license. Alternatively, EA licensees in Channel blocks G through V
     in the 809--824/854--869 MHz band must provide substantial service
     to their markets within five years of the grant of their initial
     license. Substantial service shall be defined as: "Service which is
     sound, favorable, and substantially above a level of mediocre
     service."

     \* \* \* \* \*

446. Section 90.687 is updated to reflect the portion of the band where
     incumbent SMR licensees may remain after band reconfiguration.
     Cross references are also updated.

     **§ 90.687 Special provisions regarding assignments and transfers
     of authorizations for incumbent SMR licensees in the
     809--824/854--869 MHz band.**

     An SMR license initially authorized on any of the channels listed
     in Table 4 and 5 of §90.617 of this part may transfer or assign its
     channel(s) to another entity subject to the provisions of §1.948 of
     this chapter and §90.609(b) of this part. If the proposed
     transferee or assignee is the EA licensee for the spectrum block to
     which the channel is allocated, such transfer or assignment
     presumptively will be deemed to be in the public interest. However,
     such presumption will be rebuttable.

     \* \* \* \* \*

447. Paragraphs (a), (c), and (d)(2) of Section 90.693 are updated to
     reflect the portion of the band where grandfathered licensees may
     remain after band reconfiguration. References to spectrum blocks
     which will no longer exist after band reconfiguration are also
     removed.

     **§ 90.693 Grandfathering provisions for incumbent licensees.**

     \(a\) *General provisions*. These provisions apply to "incumbent
     licensees," all 800 MHz licensees authorized in the
     809--821/854--866 MHz band who obtained licenses or filed
     applications on or before December 15, 1995.

     \* \* \* \* \*

     \(c\) *Special provisions for spectrum blocks G through V.*
     Incumbent licensees that have received the consent of all affected
     parties or a certified frequency coordinator to utilize an 18
     dBμV/m signal strength interference contour shall have their
     service area defined by their originally-licensed 36 dBμV/m field
     strength contour and their interference contour shall be defined as
     their originally-licensed 18 dBμV/m field strength contour. The
     "originally-licensed" contour shall be calculated using the maximum
     ERP and the actual HAAT along each radial. Incumbent licensees
     seeking to utilize an 18 dBμV/m signal strength interference
     contour shall first seek to obtain the consent of affected
     co-channel incumbents. When the consent of a co-channel licensee is
     withheld, an incumbent licensee may submit to any certified
     frequency coordinator an engineering study showing that
     interference will not occur, together with proof that the incumbent
     licensee has sought consent. Incumbent licensees are permitted to
     add, remove or modify transmitter sites within their original 18
     dBμV/m field strength contour without prior notification to the
     Commission so long as their original 18 dBμV/m field strength
     contour is not expanded and the station complies with the
     Commission\'s short-spacing criteria in §§90.621(b)(4) through
     90.621(b)(6). Incumbent licensee protection extends only to its 36
     dBμV/m signal strength contour. Pursuant to the minor modification
     notification procedure set forth in 1.947(b), the incumbent
     licensee must notify the Commission within 30 days of any changes
     in technical parameters or additional stations constructed that
     fall within the short-spacing criteria. See 47 CFR 90.621(b).

     \* \* \* \* \*

     \(d\) \* \* \*

     \(2\) *Special Provisions for Spectrum Blocks G through V.*
     Incumbent licensees that have received the consent of all affected
     parties or a certified frequency coordinator to utilize an 18
     dBμV/m signal strength interference contour operating at multiple
     sites may, after grant of EA licenses has been completed, exchange
     multiple site licenses for a single license. This single site
     license will authorize operations throughout the contiguous and
     overlapping 36 dBμV/m field strength contours of the multiple
     sites. Incumbents exercising this license exchange option must
     submit specific information on Form 601 for each of their external
     base sites after the close of the 800 SMR auction. The incumbent\'s
     geographic license area is defined by the contiguous and
     overlapping 18 dBμV/m contours of its constructed and operational
     external base stations and interior sites that are constructed
     within the construction period applicable to the incumbent. Once
     the geographic license is issued, facilities that are added within
     an incumbent\'s existing footprint and that are not subject to
     prior approval by the Commission will not be subject to
     construction requirements.

     \* \* \* \* \*

# APPENDIX D: ENHANCED BEST PRACTICES {#appendix-d-enhanced-best-practices .unnumbered}

## Introduction

1.  Enhanced Best Practices have been an effective tool in the voluntary
    interference abatement efforts undertaken to date. The term Enhanced
    Best Practices has no precise definition but can be understood to
    mean all effective means of abating unacceptable interference other
    than "channel swaps" or wholesale reconfiguration of the band. The
    effort to develop Enhanced Best Practices began in 2000 when a team
    of ESMR and Cellular Telephone licensees, public safety
    organizations, private radio organizations, equipment manufacturers
    and others produced the Best Practices Guide. Those best practices
    have been added to and enhanced in the intervening years, leading us
    to characterize them today as Enhanced Best Practices. We commend
    those parties that urge that a new Enhanced Best Practices Guide be
    prepared to update the original document. Below, we discuss the
    principal techniques comprehended by Enhanced Best Practices and
    discuss their relative advantages and disadvantages as reflected by
    our analysis of the record.

## Interference Abatement at the Cell Site

448. *Modification of Antenna Pattern, Height and Orientation**.
     ***Commenting parties have observed that the ESMR and Cellular
     Telephone licensees often employ cell antennas with significant
     minor lobes in their vertical patterns mounted at very low
     elevations---*e.g.,* twenty-five feet---and tilted down so that the
     main lobe of the antenna is directed "on the street," as opposed to
     the horizon.[^842] Use of such antennas results in a very strong,
     *e.g.,* -25 dBm, signal in the immediate vicinity and creates high
     levels of OOBE and intermodulation interference to nearby public
     safety receivers. ESMR and Cellular Telephone interests claim that
     this "low-site" cell configuration is necessary to prevent a cell
     from interfering with nearby cells operating on the same frequency,
     *i.e.,* that the ESMR or Cellular Telephone operator uses low-site
     cell configuration in order to avoid interference internal to its
     own system and to improve in-building coverage from the cell.[^843]
     However this low-site cell configuration also greatly increases the
     potential for the cell to cause interference to nearby public
     safety radios.[^844] REMEC, an antenna manufacturer, contends that
     ESMR and Cellular Telephone licensees could substantially reduce
     interference if the vertical patterns of their antennas distributed
     R.F. energy evenly on the ground as a function of the distance from
     the cell site.[^845] Use of such "smooth pattern" antennas is an
     Enhanced Best Practices that could contribute to abatement of
     unacceptable interference.

449. *Effective Radiated Power Limitation.* Several parties noted the
     correlation between the effective radiated power (ERP) of a cell
     and the level of interference that cell creates.[^846] These
     parties contend that reducing ERP, either system wide or on a
     case-by-case basis, to levels as low as ten watts would remedy
     intermodulation interference and, to a lesser extent, OOBE
     interference.[^847] However, ESMR interests contend that
     significantly reducing ERP at a cell would impair subscriber
     service and necessitate constructing additional cells in a system
     to compensate for the reduced coverage of the system's other cells.
     This, they aver, would only serve to create additional interference
     in the vicinity of the new cells.[^848]

450. ERP reduction can provide significant abatement of intermodulation
     interference because, for example, when third-order intermodulation
     interference occurs, a three dB reduction in intermodulation
     interference can be attained for every one dB reduction in the ERP
     of a contributing ESMR or Cellular Telephone channel.[^849] However
     an across-the-board reduction of the ERP of ESMR or Cellular
     Telephone systems to ten watts would have serious consequences in
     the form of impaired ESMR or Cellular Telephone service in areas in
     which interference to public safety systems is not being caused;
     and because it would result in coverage "holes" in existing
     systems, which holes would have to be filled using additional cells
     which themselves could be a source of intermodulation or OOBE
     interference. Accordingly, in our accompanying *Report and Order*
     we decline to impose ERP limits, recognizing, however, that ESMR or
     Cellular Telephone carriers may well elect to reduce ERP as an
     Enhanced Best Practices to abate unacceptable interference
     occurring at particular cells during band reconfiguration and
     thereafter.

## Limitation on Use of Low Sites

451. Low elevation of cell site antennas has been the reported cause of
     high on-the-street signal levels and several parties argue that
     licensees should increase antenna height to avoid unacceptable
     interference.[^850] However, it is not the differential path length
     between high and low sites that causes the problem. For example,
     the path attenuation difference between a 200 foot antenna height
     and a 20 foot antenna height is negligible.[^851] Instead, the
     low-site problem most frequently arises from two factors. First,
     all other things being equal, the vertical "main beam" of a
     low-site cell will fall closer to the cell than the main beam of a
     higher antenna,[^852] as will minor lobes in the vertical pattern
     of the antenna. Second, ESMR and cellular licensees make widespread
     use of mechanical or electrical beam tilt which causes the vertical
     main beam of the antenna to fall directly "on the street" in the
     immediate vicinity of the cell.[^853] This appears to be a design
     choice when localized building penetration is important or when the
     wide coverage characteristic of high-site cells with little or any
     beam tilt---is either not required or would impair system
     subscriber capacity by limiting frequency reuse in nearby
     cells.[^854] Thus, given this correlation between low-site cells,
     especially those with beam tilted antennas, and interference to
     public safety and other non-cellular radios in the vicinity of the
     cell it can be concluded that: (1) avoiding low-site cell
     configurations is an effective Enhanced Best Practice, albeit one
     that can limit subscriber capacity and building penetration;
     and (2) the low-site/high-site distinction is useful as one means
     of defining what constitutes a "cellular system" in the context of
     800 MHz technology.[^855]

## Filtering of Cumulative OOBE Interference 

452. Several parties have noted that a significant reduction in OOBE
     interference results when ESMR and Cellular Telephone licensees
     avoid the use of devices known as hybrid combiners. A combiner, as
     the name implies, feeds multiple transmitters into a single
     antenna. Hybrid combiners are not frequency-selective, and thus
     pass all frequencies fed into them. A cavity combiner, by
     comparison, uses frequency-selective resonant cavities which pass
     individual channels, but reject noise that falls outside those
     channels, *i.e.* OOBE.[^856] Hybrid combiners are less expensive
     than cavity combiners and may be suitable in cases where OOBE is
     not likely to be a problem, *e.g.* in high-site cells or cells in
     which external filtering equipment is installed. The use of cavity
     combiners, alone or in combination with outboard filters is another
     useful Enhanced Best Practice available to ESMR and Cellular
     Telephone licensees. Use of cavity combiners and outboard filters
     is an Enhanced Best Practice that can be made proactive, rather
     than reactive; *e.g.* by integrating the devices into system design
     before unacceptable interference develops.

## Cell Site Channel Selection*.*

453. Cells may be configured to avoid using channels that can cause
     intermodulation products to fall on specific public safety and
     other non-cellular 800 MHz channels. Changing channels was a remedy
     initially discussed in the *Best Practices Guide* and often has
     proven effective in addressing intermodulation interference to
     public safety systems.[^857] However, the utility of the technique
     must be viewed against the fact that restricting channel selection
     can impair the subscriber capacity of the ESMR or Cellular
     Telephone system.[^858] Moreover, since the channels used at cells
     change frequently, channel changes sometimes provide only a
     temporary solution to an interference problem, especially when the
     intermodulation product is produced by signals from both an ESMR
     cell and a Cellular Telephone cell. Moreover, as Cellular Telephone
     licensees convert from analog to digital technology---such as code
     division multiple access (CDMA)---it may no longer be possible to
     abate intermodulation interference by changing the channels in a
     cell or cells.[^859]

## Proper Operation of Cell Site Transmitters*.*

454. Motorola included proper operation of base stations as one of the
     interference mitigation techniques in its *Technical Toolbox*. ESMR
     and Cellular Telephone base station equipment can malfunction and
     cause increased interference, notably, excessive OOBE. Any attempt
     to abate interference through application of Enhanced Best
     Practices*,* or otherwise, should consider malfunction of base
     station transmitters as a possible interference culprit.

##  Increasing the strength of the affected non-cellular signal

455. Improving the signal strength of the desired signal is another
     Enhanced Best Practice that is frequently difficult to implement.
     It is clear that most public safety agencies lack the resources to
     make immediate coverage improvements to their systems. The funding
     cycle for public safety systems often is measured in multiples of
     years. It is likewise clear that where coverage improvements are
     needed most---in areas served by high density ESMR and cellular
     telephone systems---the requisite additional frequencies are less
     likely to be available. However, with the appropriate engineering
     design, otherwise intractable interference problems can sometimes
     be addressed by use of such technology as simulcasting and the use
     of signal boosters to provide "spot coverage" in areas affected by
     unacceptable interference.

456. Unacceptable interference is most frequently a function of the
     ratio of the desired (non-cellular) signal to the potentially
     interfering (ESMR or Cellular Telephone) signal. From a strictly
     technical standpoint, a licensee can achieve meaningful
     improvements in its signal strength by increasing the base station
     transmitter power, antenna gain or antenna elevation;[^860] or by
     constructing additional base stations.[^861] From a practical
     standpoint, however, there are several obstacles to improving
     signal strength; the most serious being cost and the availability
     of frequencies if base stations are added. A rule requiring
     licensees to place a minimum predicted service contour, *e.g.* 50
     dBμV/m, over their desired coverage area has been advanced as an
     effective interference abatement Enhanced Best Practice. Under such
     a scheme stations would be protected against interference within
     that contour.[^862] However, in many circumstances, this could
     require 800 MHz non-cellular licensees to increase power by a
     factor of ten or more; or to resort to constructing additional base
     stations. In the accompanying *Report and Order* substantially the
     same interference-protection goal has been reached by establishing
     the measured, rather than predicted, threshold signal level that a
     public safety signal must attain in areas in which unacceptable
     interference is encountered or predicted.

# Appendix E: illustrative form of letter of credit {#appendix-e-illustrative-form-of-letter-of-credit .unnumbered}

**\[Subject to Issuing Bank Requirements\]**

**No. \_\_\_\_\_\_\_\_\_\_**

> \[Date of Issuance\]
>
> \[Trustee\]
>
> \[Address\]
>
> Ladies and Gentlemen:

We hereby establish, at the request and for the account of Nextel
Communications, Inc., in your favor, as required under the \[Report and
Order and Fifth Report and Order and Fourth Memorandum Opinion and
Order, and Order dated as of \_\_\_\_\_\_\_\_\_\_, 2004\] issued by the
Federal Communications Commission ("FCC") in the matter of Improving
Public Safety Communications in the 800 MHz Band (the
"[Order]{.underline}"), our Irrevocable Letter of Credit No.
\_\_\_\_\_\_\_\_\_, in the amount of \$2,500,000,000 (Two Billion Five
Hundred Million United States Dollars), expiring at the close of banking
business at our office described in the following paragraph, on \[the
date which is five years from the date of issuance/ or the date which is
one year from the date of issuance, provided the Issuing Bank includes
an evergreen clause that provides for automatic renewal unless the
Issuing Bank gives notice of non-renewal to the Trustee, with a copy to
the FCC, at least sixty days but not more than ninety days prior to the
expiry thereof\], or such earlier date as the Letter of Credit is
terminated by the Trustee (the "[Expiration Date]{.underline}").
Capitalized terms used herein but not defined herein shall have the
meanings accorded such terms in the Order.

Funds under this Letter of Credit are available to you against your
draft in the form attached hereto as Annex A, drawn on our office
described below, and referring thereon to the number of this Letter of
Credit, accompanied by your written and completed certificate signed by
you substantially in the form of Annex B-1 attached hereto and, if
applicable, the Transition Administrator's written and completed
certificate signed by the Transition Administrator substantially in the
form of Annex B-2 attached hereto. Such draft and certificates shall be
dated the date of presentation or an earlier date, which presentation
shall be made at our office located at \[BANK ADDRESS\] and shall be
effected either by personal delivery or delivery by a nationally
recognized overnight delivery service. We hereby commit and agree to
accept such presentation at such office, and if such presentation of
documents appears on its face to comply with the terms and conditions of
this Letter of Credit, on or prior to the Expiration Date, we will honor
the same not later than the first banking day after presentation thereof
in accordance with your payment instructions. Payment under this Letter
of Credit shall be made by \[check/wire transfer of Federal Reserve Bank
of New York funds\] to the payee and for the account you designate, in
accordance with the instructions set forth in a draft presented in
connection with a draw under this Letter of Credit.

Partial drawings are permitted under this Letter of Credit, and the
amount of this Letter of Credit shall be reduced by each such partial
draw hereunder.

This Letter of Credit shall be subject to automatic amendment by a
decrease in the amount available hereunder to the amount specified in a
Transition Administrator's certificate purportedly signed by the
Transition administrator or, if not an individual, by two authorized
representatives of the Transition Administrator, and countersigned by an
authorized signatory of the FCC in the form attached as Annex C, which
amendment shall automatically become effective upon receipt of such
certificate.

This Letter of Credit shall be canceled and terminated upon receipt by
us of the Transition Administrator's certificate purportedly signed by
the Transition Administrator or, if not an individual, by two authorized
representatives of the Transition Administrator, and in either case
countersigned by an authorized signatory of the FCC in the form attached
as Annex D.

This Letter of Credit is not transferable or assignable in whole or in
part, except that this Letter of Credit may be assigned or transferred
to any successor trustee succeeding you upon **\[insert Issuing Bank's
standard practice language, such as language regarding requirements for
timely notification and supplemental documentation.\]**

This Letter of Credit sets forth in full the undertaking of the Issuer,
and such undertaking shall not in any way be modified, amended,
amplified or limited by reference to any document, instrument or
agreement referred to herein, except only the certificates and the
drafts referred to herein and the ISP (as defined below); and any such
reference shall not be deemed to incorporate herein by reference any
document, instrument or agreement except for such certificates and such
drafts and the ISP.

This Letter of Credit shall be subject to, governed by, and construed in
accordance with, the International Standby Practices 1998, International
Chamber of Commerce Publication No. 590 (the "[ISP]{.underline}"), which
is incorporated into the text of this Letter of Credit by this
reference, and, to the extent not inconsistent therewith, the laws of
the State of New York, including the Uniform Commercial Code as in
effect in the State of New York. Communications with respect to this
Letter of Credit shall be addressed to us at our address set forth
below, specifically referring to the number of this Letter of Credit.

\[NAME OF BANK\]

\[BANK SIGNATURE\]

[APPENDIX E--ANNEX A]{.underline}

[Form of Draft]{.underline}

> To: \[Issuing Bank\]
>
> DRAWN ON LETTER OF CREDIT No: \_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> AT SIGHT
>
> PAY TO THE ORDER OF
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\[insert
> name of Trustee\] BY \[CHECK/WIRE TRANSFER OF FEDERAL RESERVE BANK OF
> NEW YORK\]
>
> FUNDS TO: \_\_\_\_\_\_\_\_\_\_\_\_\_
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> Account (\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)
>
> AS 800 MHz RELOCATION and TRANSITION PAYMENTS
>
> \[AMOUNT IN WORDS\] DOLLARS AND NO/CENTS
>
> \$\[AMOUNT IN NUMBERS\]
>
> \[TRUSTEE\]
>
> By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

[APPENDIX E--ANNEX B-1]{.underline}

[Draw Certificate]{.underline}

The undersigned hereby certifies to \[Name of Bank\] (the "Bank"), with
reference to (a) Irrevocable Standby Letter of Credit No. \[Number\]
(the "Letter of Credit") issued by the Bank in favor of the \[Trustee\]
and (b) \[paragraph 332\] of the \[Report and Order and Fifth Report and
Order and Fourth Memorandum Opinion and Order, and Order\] dated as of
\_\_\_\_\_\_\_\_\_\_, 2004\] issued by the Federal Communications
Commission in the matter of Improving Public Safety Communications in
the 800 MHz Band (the "[Order]{.underline}"), pursuant to which Nextel
Communications, Inc. (the "LC Provider") has provided the Letter of
Credit (all capitalized terms used herein but not defined herein having
the meaning stated in the Order), that:

#### \[i. The Transition Administrator has certified to the Trustee that pursuant to the Order, a payment in the amount of \$\_\_\_\_\_ is appropriate to be made to the Trustee to hold in trust and disburse in payment of the expenses for \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, and further certifying that the Transition Administrator instructs the Trustee to make such payment via draw on Letter of Credit No. \_\_\_\_\_\_\_; and {#i.-the-transition-administrator-has-certified-to-the-trustee-that-pursuant-to-the-order-a-payment-in-the-amount-of-_____-is-appropriate-to-be-made-to-the-trustee-to-hold-in-trust-and-disburse-in-payment-of-the-expenses-for-________________-and-further-certifying-that-the-transition-administrator-instructs-the-trustee-to-make-such-payment-via-draw-on-letter-of-credit-no.-_______-and .unnumbered}

#### ii. A copy of the signed certification referred to in clause (i) above and in the form of Annex B-2 to Letter of Credit No. \_\_\_\_\_\_\_\_\_\_\_\_\_, purportedly signed by or on behalf of the Transition Administrator is attached hereto.\] {#ii.-a-copy-of-the-signed-certification-referred-to-in-clause-i-above-and-in-the-form-of-annex-b-2-to-letter-of-credit-no.-_____________-purportedly-signed-by-or-on-behalf-of-the-transition-administrator-is-attached-hereto. .unnumbered}

####  OR {#or .unnumbered}

**\[The FCC has certified to the Trustee that pursuant to the Order and
the Commission's finding that Nextel is in material breach of the terms
of the Order, the Trustee is entitled to receive payment of
\$\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ representing the remaining
undrawn amount of Letter of Credit No. \_\_\_\_\_\_\_\_\_\_\_\_, to hold
in trust and disburse in accordance with the terms of the Order.**

OR

**\[The FCC has certified to the Trustee that given notice of
non-renewal of Letter of Credit No. \_\_\_\_\_\_\_\_\_\_\_\_\_\_ and
failure of the account party to obtain a satisfactory replacement
thereof, pursuant to the Order, the Trustee is entitled to receive
payment of \$\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ representing the remaining
amount of Letter of Credit No. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, to hold
in trust and disburse pursuant to the Order.\]**

IN WITNESS WHEREOF, the undersigned has executed this certificate as of
\[specify time of day\] on the \_\_\_\_ day of
\_\_\_\_\_\_\_\_\_\_\_\_\_, 200\_\_.

\[TRUSTEE \]

By:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Name:

Title:

[APPENDIX E--ANNEX B-2]{.underline}

[Draw Certificate of Transition Administrator]{.underline}

The undersigned hereby certifies to the\[Trustee\] (the "Trustee"), with
reference to \[paragraph 332 of the \[Report and Order and Fifth Report
and Order and Fourth Memorandum Opinion and Order, and Order dated as of
\_\_\_\_\_\_\_\_\_\_, 2004\] issued by the Federal Communications
Commission in the matter of Improving Public Safety Communications in
the 800 MHz Band (the "[Order]{.underline}"), pursuant to which Nextel
Communications, Inc. (the "LC Provider") has provided the Letter of
Credit (all capitalized terms used herein but not defined herein having
the meaning stated in the Order), that:

#### i. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\[Name of licensee\] is an 800 MHz licensee that has obtained a quotation for \[estimated expenses/final expenses\] in the amount of \$ \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ in connection with transition from \_\_\_\_\_\_\_\_ \[specify spectrum\] to \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \[specify spectrum\] which are appropriately reimbursable under the Order, and such amount is appropriately payable for relocation expenses on behalf of \[Name of licensee\], and \[either (i) there has been no dispute regarding the amount of such payment, or (ii) any dispute regarding the amount of such payment has been resolved in accordance with the Order\], and {#i.-____________________________________________name-of-licensee-is-an-800-mhz-licensee-that-has-obtained-a-quotation-for-estimated-expensesfinal-expenses-in-the-amount-of-____________________-in-connection-with-transition-from-________-specify-spectrum-to-_______________-specify-spectrum-which-are-appropriately-reimbursable-under-the-order-and-such-amount-is-appropriately-payable-for-relocation-expenses-on-behalf-of-name-of-licensee-and-either-i-there-has-been-no-dispute-regarding-the-amount-of-such-payment-or-ii-any-dispute-regarding-the-amount-of-such-payment-has-been-resolved-in-accordance-with-the-order-and .unnumbered}

#### ii. The undersigned has established and will maintain for \[specify time period\] a file containing documents and records that demonstrate with reasonable specificity according to industry standards and \[financial standards for expense documentation / other standards or standards contained in the Order\] conclusions stated in its certification in clause (i) above, and such file shall be available during regular business hours for inspection or audit by \[who will audit (or specify auditors for) the Transition Administrator?\] {#ii.-the-undersigned-has-established-and-will-maintain-for-specify-time-period-a-file-containing-documents-and-records-that-demonstrate-with-reasonable-specificity-according-to-industry-standards-and-financial-standards-for-expense-documentation-other-standards-or-standards-contained-in-the-order-conclusions-stated-in-its-certification-in-clause-i-above-and-such-file-shall-be-available-during-regular-business-hours-for-inspection-or-audit-by-who-will-audit-or-specify-auditors-for-the-transition-administrator .unnumbered}

Based on the foregoing, the Transition Administrator hereby directs the
Trustee to draw on the Letter of Credit in the amount and for the
benefit of the party specified in clause (i) above, payable as follows:
\[Insert Payment Instruction/payment instructions to follow in separate
documentation\]

IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_, 200\_\_.

\[TRANSITION ADMINISTRATOR \]

> \[TWO SIGNATURES REQUIRED IF TRANSITION ADMINISTRATOR IS AN ENTITY;
> ONE SIGNATURE REQUIRED IF TRANSITION ADMINISTRATOR IS A NATURAL
> PERSON\]

By:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Name:

Title:

\[By:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\]

Name:

Title:

[APPENDIX E--ANNEX C]{.underline}

[Certificate Regarding Reduction of Letter of Credit]{.underline}

The undersigned hereby certifies to \[Name of Bank\] (the "Bank"), with
reference to (a) Irrevocable Standby Letter of Credit No. \[Number\]
(the "Letter of Credit") issued by the Bank in favor of the \[trustee\],
and (b) \[paragraph 332\] of the \[Report and Order and Fifth Report and
Order and Fourth Memorandum Opinion and Order, and Order\] dated as of
\_\_\_\_\_\_\_\_\_\_, 2004\] issued by the Federal Communications
Commission ("FCC") in the matter of Improving Public Safety
Communications in the 800 MHz Band (the "[Order]{.underline}"), (all
capitalized terms used herein but not defined herein having the meaning
stated or described in the Order), that:

\(1\) the undersigned Transition Administrator has documented, pursuant
to the Order, that the amount of the Letter of Credit (prior to
adjustment as set forth in clause (2) below) exceeds the amount needed
to ensure completion of band configuration; and

\(2\) the amount of the Letter of Credit shall be reduced to the amount
equal to \$\_\_\_\_\_\_\_\_\_\_\_\_
\[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_Dollars\].

IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_, 200\_.

\[TRANSITION ADMINISTRATOR \]

> \[TWO SIGNATURES REQUIRED IF TRANSITION ADMINISTRATOR IS AN ENTITY;
> ONE SIGNATURE REQUIRED IF TRANSITION ADMINISTRATOR IS A NATURAL
> PERSON\]

By:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Name:

Title:

\[By:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\]

Name:

Title:

COUNTERSIGNED:

Federal Communications Commission

By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Name:

Its Authorized Signatory

[APPENDIX E--ANNEX D]{.underline}

[Certificate Regarding Termination of Letter of Credit]{.underline}

The undersigned hereby certifies to \[Name of Bank\] (the "Bank"), with
reference to (a) Irrevocable Standby Letter of Credit No. \[Number\]
(the "Letter of Credit") issued by the Bank in favor of the \[trustee\],
and (b) \[paragraph 332\] of the \[Report and Order and Fifth Report and
Order and Fourth Memorandum Opinion and Order, and Order\] dated as of
\_\_\_\_\_\_\_\_\_\_, 2004\] issued by the Federal Communications
Commission ("FCC") in the matter of Improving Public Safety
Communications in the 800 MHz Band (the "[Order]{.underline}"), (all
capitalized terms used herein but not defined herein having the meaning
stated or described in the Order), that:

> \(1\) \[include one of the following clauses, as applicable\]

#### (a) The Order has been fulfilled in accordance with the provisions thereof; {#a-the-order-has-been-fulfilled-in-accordance-with-the-provisions-thereof .unnumbered}

#### (b) Nextel Communications, Inc. has paid to the appropriate parties all amounts it is required to pay pursuant to the terms of the Order; or {#b-nextel-communications-inc.-has-paid-to-the-appropriate-parties-all-amounts-it-is-required-to-pay-pursuant-to-the-terms-of-the-order-or .unnumbered}

\(c\) Nextel Communications, Inc. has provided a replacement letter of
credit satisfactory to the FCC.

\(2\) By reason of the event or circumstance described in paragraph (1)
of this certificate, and effective upon the receipt by the Bank of this
certificate (countersigned as set forth below), the Letter of Credit is
terminated.

IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_, 200\_.

\[TRANSITION ADMINISTRATOR \]

> \[TWO SIGNATURES REQUIRED IF TRANSITION ADMINISTRATOR IS AN ENTITY;
> ONE SIGNATURE REQUIRED IF TRANSITION ADMINISTRATOR IS A NATURAL
> PERSON\]
>
> By:
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Name:

Title:

> \[By:
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\]

Name:

Title:

COUNTERSIGNED:

Federal Communications Commission

By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Name:

Its Authorized Signatory

[APPENDIX E--ANNEX E]{.underline}

[Terms for Documents Establishing the 800 MHz Relocation Trust and the
Relationship between Nextel and the Letter of Credit Trustee (the
"Trustee")]{.underline}

**Basic Terms related to the Establishment of the 800 MHz Relocation
Trust.** The Letter of Credit trustee (the "Trustee") shall incorporate
language to fully effectuate the following summary terms into each item
of documentation establishing (i) the trust to receive proceeds of the
letter of credit contemplated by the Report and Order (the "800 MHz
Relocation Trust") and (ii) the relationship between Nextel and the
Trustee of said trust with respect thereto. Each such document shall be
subject to Commission review and approval prior to execution.

-   acknowledgment of purpose to effect the 800 MHz transition in
    support of public safety, and agreement to work in good faith with
    the other parties pursuant to the Report and Order

-   representation and warranty by the Trustee that such entity (not an
    individual) meets the qualifications set forth in the Report and
    Order (e.g., independence and absence of conflicts of interest)

-   designation of the Commission as an intended third-party
    beneficiary; no other party to be an intended third-party
    beneficiary

-   definition of completion of the reconfiguration

-   term---five years, or until the 800 MHz transition is complete,
    whichever is earlier

-   successor Trustee requires approval of the Commission

-   replacement of Trustee at Nextel's request---define "cause" and
    require showing of cause and 14 days advance notice to the parties
    and to the Commission

-   election by Trustee to withdraw from arrangement---requires 14 days
    advance notice to the parties and to the Commission; may require
    ongoing monetary obligation or duty of Trustee, as applicable (for
    example, to support transition)

-   change of control of Trustee---requires approval of Nextel (so long
    as Nextel is not then in Default under the Report and Order) and the
    Commission, which approval shall not be unreasonably withheld but
    which may be conditional

-   notice procedure - specifies which notices shall be copied to the
    Commission

**Terms Specific to the Establishment of the 800 MHz Relocation Trust.**
At the option of the Trustee, the following points may be covered in one
or more agreements (for example, there may be a separate fee letter).

-   corpus of trust to be proceeds of one or more LOCs issued for the
    account of Nextel pursuant to the Report and Order

-   Trustee agrees to hold money as fiduciary for 800 MHz licensees and
    for the Commission; fiduciary obligations fulfilled via handling of
    funds according to standards applied to corporate trustees, and via
    disbursement of funds pursuant to instructions issued by the
    Transition Administrator. The Trustee should be a fiduciary of the
    Transition Administrator

-   specifies record-keeping obligations pursuant to the Report and
    Order

-   specifies reporting obligations pursuant to the Report and Order

-   specifies audit and inspection rights of Nextel and the Commission,
    including allocation of costs thereof

-   specifies details concerning fees to be paid by Nextel to the
    Trustee

-   specifies that the trust agreement may not be amended, modified or
    rescinded without approval of the Commission

-   specifies that the corpus of the trust(s) shall be forfeit to the
    United States Treasury to the extent that Nextel fails to make any
    of the payments owed to the Treasury by the date specified in the
    Commission's Report and Order

-   specifies additional terms of a customary nature for agreements
    establishing a corporate trust

[Terms for Tri-Party Agreement among Nextel, the Transition
Administrator and the Letter of Credit Trustee (the
"Trustee")]{.underline}

**Basic Terms.** The Tri-Party Agreement among Nextel, the Transition
Administrator (sometimes referred to herein as the "TA") and the Trustee
shall incorporate language to fully effectuate the following summary
terms and shall be subject to Commission review and approval prior to
execution:

-   acknowledgment of purpose to effect the 800 MHz transition in
    support of public safety, and agreement to work in good faith with
    the other parties pursuant to the Report and Order

-   representation and warranty by each of the Transition Administrator
    and the Trustee that such person (individual or entity) meets the
    qualifications set forth in the Report and Order (e.g., independence
    and absence of conflicts of interest)

-   designation of the Commission as an intended third-party
    beneficiary; no other party to be an intended third-party
    beneficiary

-   definition of completion of the reconfiguration

-   term---five years, or until the 800 MHz transition is complete,
    whichever is earlier

-   successor Transition Administrator/Trustee requires approval of the
    Commission

-   replacement of Transition Administrator/Trustee at Nextel's
    request---define "cause" and require showing of cause and 14 days
    advance notice to the parties and to the Commission

-   election by Transition Administrator/Trustee to withdraw from
    arrangement---requires 14 days advance notice to the parties and to
    the Commission; may require ongoing monetary obligation or duty of
    Transition Administrator/Trustee, as applicable (for example, to
    support transition)

-   change of control of Transition Administrator/Trustee---requires
    approval of Nextel (so long as Nextel is not then in Default under
    the Report and Order) and the Commission, which approval shall not
    be unreasonably withheld but which may be conditional

-   replacement/successor Transition Administrator to be selected by the
    search committee pursuant to this *Report and Order*

-   notice procedure - specifies which notices shall be copied to the
    Commission

-   Note: language to be harmonized as appropriate if the Transition
    Administrator is a natural person rather than an entity

**Terms Specific to Tri-Party Agreement**

-   tasks the TA with working with the Trustee to set up the trust

-   tasks the TA with designing the payment system subject to reasonable
    approval of Nextel and the Trustee (up front payments vs. progress
    payments; timing and logistics of payments in conjunction with the
    LOC system \[for example, a draw would be made under the LOC for the
    estimated amount of a licensee's transition project; at the TA's
    direction, the Trustee would disburse those proceeds to the
    appropriate vendors, or to the licensee, according to payment
    criteria such as product delivery or project milestones\]; how to
    handle true-ups \[either a payment made in excess of an estimate, or
    a refund collected if the estimate exceeded actual cost\]; logistics
    for obtaining payment approvals, including the approval of Nextel,
    and for resolving disputes related to payment amounts)

-   states the Transition Administrator will not handle any project
    funds; specifies procedures for the TA to turn over funds it may
    receive in connection with the project to the Trustee

-   specifies how the Trustee will dispose of any refunds it may receive
    during or after the relocation process

-   specifies the Trustee will follow the details of the payment system
    devised by the TA pursuant to the Tri-Party Agreement

-   tasks the TA with developing a system to ensure vendors are not
    filing mechanics liens or equipment financing liens against the
    licensees in connection with the transition (or, in the alternative,
    tracking the release of liens in connection with payments to
    vendors)

-   tasks the TA, as the project manager, with creating a standardized
    bid package for use by the municipality licensees---including a
    standardized scope of project, and a standardized documentation
    package. NOTE: The standardized documentation package could contain
    the requirement that the vendor obtain a performance bond, which
    bond would be paid for via the LOC proceeds as part of the cost of
    the transition. The standardized bid package would be subject to
    Nextel's reasonable approval.

-   tasks the TA with developing standardized bidding procedures for the
    municipal licensees to follow

-   specifies that neither the Trustee nor the Transition Administrator
    bears the risk that a particular vendor fails to perform, and
    allocates such risk between Nextel and the licensees---since the
    municipality/licensees will have control over the award of the
    contract, it is reasonable they would bear the risk (and where
    appropriate, the risk could be managed via the performance bond
    mentioned above)

-   specifies additional terms of a customary nature in agreements for
    management of a project by a third party Project Administrator

-   specifies additional terms of a customary nature in agreements for
    management of payments by a third party Paying Agent (to the extent
    not covered in the documentation establishing the trust)

-   specifies details of dispute resolution mechanisms, including time
    frames and escalation procedures

-   specifies the rights of Nextel vis-à-vis the relocation process
    absent an event of default by Nextel under the Report and Order

-   during the continuance of an event of default by Nextel under the
    Report and Order, specifies the remedies of the TA and the Trustee
    (i.e., the consequences to Nextel, such as Nextel losing veto rights
    concerning a project's cost)

-   specifies record-keeping and reporting obligations of each party
    pursuant to the Report and Order

-   specifies audit and inspection rights of Nextel and the Commission,
    including allocation of costs thereof

-   specifies details concerning fees and expenses to be paid by Nextel
    to the TA and to the Trustee; fees and expenses of the Transition
    Administrator to conform to notification of Search Committee
    pursuant to the *Report and Order*

-   specifies how the TA and Trustee may be paid in the event of a
    default by Nextel in the payment of fees to the TA and/or the
    Trustee \-- including a mechanism whereby relief may be sought from
    the Commission authorizing the proceeds of the LOC be applied
    against such fees

-   specifies that the Tri-Party Agreement may not be amended, modified
    or rescinded without approval of the Commission

-   specifies an order of precedence---that the Tri-Party Agreement
    would govern in the event of a conflict between the terms of the
    Tri-Party Agreement and the terms of a bilateral agreement among two
    of the parties

-   specifies a procedure and criteria for Transition Administrator to
    certify that the 800 MHz relocation is complete, which certification
    shall allow TA, with Commission's concurrence to seek termination of
    the Letter(s) of Credit. Termination will also trigger early
    termination of the Trust and Tri-Party Agreement

-   specifies items for which the Transition Administrator may properly
    seek draws under the Letter of Credit, consistent with the *Report
    and Order*

-   specifies items for which the Transition Administrator may not seek
    draws under the LOC (such as reimbursement of UTAM, relocation of
    BAS incumbents) consistent with the *Report and Order*

-   specifies that the corpus of the trust(s) shall be forfeit to the
    U.S. Treasury in the event that Nextel fails to make any of the
    payments to the Treasury specified in the Commission's *Report and
    Order*

-   specifies responsibilities and guidelines for record-keeping,
    accounting and dispute resolution related to calculation of the
    offset described in the *Report and Order*.

-   specifies responsibilities and timeliness related to certification
    of project completion by the Transition Administrator and rendering
    of the final accounting required in the Report and Order.

# Appendix f: NPSPAC Regions {#appendix-f-npspac-regions .unnumbered}

+-----------------------------------------------------------------------+
|   --------------------------------- --------------------------------- |
|   Region 1: Alabama                 Region 2: Alaska                  |
|                                                                       |
|   Region 3: Arizona                 Region 4: Arkansas                |
|                                                                       |
|   Region 5: Southern California     Region 6: Northern California     |
|                                                                       |
|   Region 7: Colorado                Region 8: Metropolitan, NYC Area  |
|                                     (NY, NJ, & CT)                    |
|                                                                       |
|   Region 9: Florida                 Region 10: Georgia                |
|                                                                       |
|   Region 11: Hawaii                 Region 12: Idaho                  |
|                                                                       |
|   Region 13: Illinois (except       Region 14: Indiana (except        |
|   Southern Lake Michigan counties)  Southern Lake Michigan counties)  |
|                                                                       |
|   Region 15: Iowa                   Region 16: Kansas                 |
|                                                                       |
|   Region 17: Kentucky               Region 18: Louisiana              |
|                                                                       |
|   Region 19: New England            Region 20: District of Columbia,  |
|                                     Maryland, & Northern VA           |
|                                                                       |
|   Region 21: Michigan               Region 22: Minnesota              |
|                                                                       |
|   Region 23: Mississippi            Region 24: Missouri               |
|                                                                       |
|   Region 25: Montana                Region 26: Nebraska               |
|                                                                       |
|   Region 27: Nevada                 Region 28: Eastern Pennsylvania   |
|                                     (east of Harrisburg, southern NJ  |
|                                     & DE)                             |
|                                                                       |
|   Region 29: New Mexico             Region 30: Eastern Upstate New    |
|                                     York                              |
|                                                                       |
|   Region 31: North Carolina         Region 32: North Dakota           |
|                                                                       |
|   Region 33: Ohio                   Region 34: Oklahoma               |
|                                                                       |
|   Region 35: Oregon                 Region 36: Western Pennsylvania   |
|                                                                       |
|   Region 37: South Carolina         Region 38: South Dakota           |
|                                                                       |
|   Region 39: Tennessee              Region 40: Texas (Central &       |
|                                     Northeast)                        |
|                                                                       |
|   Region 41: Utah                   Region 42: Virginia               |
|                                                                       |
|   Region 43: Washington             Region 44: West Virginia          |
|                                                                       |
|   Region 45: Wisconsin (except      Region 46: Wyoming                |
|   Southern Lake Michigan counties)                                    |
|                                                                       |
|   Region 47: Puerto Rico            Region 48: US Virgin Islands      |
|                                                                       |
|   Region 49: Texas - Central        Region 50: Texas - West & Central |
|   (Austin Area)                     (Midland Area)                    |
|                                                                       |
|   Region 51: Texas - East (Houston  Region 52: Texas - Panhandle,     |
|   Area)                             High Plains & Northwest (Lubbock  |
|                                     Area)                             |
|                                                                       |
|   Region 53: Texas - Southern (San  Region 54: Southern Lake Michigan |
|   Antonio Area)                     (Great Lakes inc. WI, IL, & IN)   |
|                                                                       |
|   Region 55: Western Upstate New                                      |
|   York                                                                |
|   --------------------------------- --------------------------------- |
+-----------------------------------------------------------------------+

# Appendix G: SouthEast ESMR Band Plan {#appendix-g-southeast-esmr-band-plan .unnumbered}

The ESMR band in the following counties and parishes is the band segment
813.5 - 824 MHz / 858.5-869 MHz. The Expansion Band in these areas shall
extend from 812.5-813.5 MHz / 857.5-858.5 MHz. All licensees operating
in the band segment 806-813.5 MHz / 851-858.5 MHz shall be afforded the
same protection against unacceptable interference as specified in the
*Report and Order*.

[Alabama]{.underline}

Autauga, Baldwin, Barbour, Bibb, Blount, Bullock, Butler, Calhoun,
Chambers, Cherokee, Chilton, Choctaw, Clarke, Clay, Cleburne, Coffee,
Colbert, Conecuh, Coosa, Covington, Crenshaw, Cullman, Dale, Dallas,
DeKalb, Elmore, Escambia, Etowah, Fayette, Franklin, Geneva, Greene,
Hale, Henry, Houston, Jackson, Jefferson, Lamar, Lauderdale, Lawrence,
Lee, Limestone, Lowndes, Macon, Madison, Marengo, Marion, Marshall,
Mobile, Monroe, Montgomery, Morgan, Perry, Pickens, Pike, Randolph,
Russell, Shelby, St Clair, Sumter, Talladega, Tallapoosa, Tuscaloosa,
Walker, Washington, Wilcox, Winston

[Florida]{.underline}

Bay, Calhoun, Escambia, Franklin, Gadsden, Gulf, Holmes, Jackson,
Jefferson, Leon, Liberty, Madison, Nassau, Okaloosa, Santa Rosa, Taylor,
Wakulla, Walton, Washington

[Georgia]{.underline}

Appling, Atkinson, Bacon, Baker, Baldwin, Banks, Barrow, Bartow, Ben
Hill, Berrien, Bibb, Bleckley, Brantley, Brooks, Bryan, Bulloch, Burke,
Butts, Calhoun, Camden, Candler, Carroll, Catoosa, Charlton, Chatham,
Chattahoochee, Chattooga, Cherokee, Clarke, Clay, Clayton, Clinch, Cobb,
Coffee, Colquitt, Columbia, Cook, Coweta, Crawford, Crisp, Dade, Dawson,
Decatur, DeKalb, Dodge, Dooly, Dougherty, Douglas, Early, Echols,
Effingham, Elbert, Emanuel, Evans, Fannin, Fayette, Floyd, Forsyth,
Franklin, Fulton, Gilmer, Glascock, Glynn, Gordon, Grady, Greene,
Gwinnett, Habersham, Hall, Hancock, Haralson, Harris, Hart, Heard,
Henry, Houston, Irwin, Jackson, Jasper, Jeff Davis, Jefferson, Jenkins,
Johnson, Jones, Lamar, Lanier, Laurens, Lee, Liberty, Lincoln, Long,
Lowndes, Lumpkin, Macon, Madison, Marion, McDuffie, McIntosh,
Meriwether, Miller, Mitchell, Monroe, Montgomery, Morgan, Murray,
Muscogee, Newton, Oconee, Oglethorpe, Paulding, Peach, Pickens, Pierce,
Pike, Polk, Pulaski, Putnam, Quitman, Rabun, Randolph, Richmond,
Rockdale, Schley, Screven, Seminole, Spalding, Stephens, Stewart,
Sumter, Talbot, Taliaferro, Tattnall, Taylor, Telfair, Terrell, Thomas,
Tift, Toombs, Towns, Treutlen, Troup, Turner, Twiggs, Union, Upson,
Walker, Walton, Ware, Warren, Washington, Wayne, Webster, Wheeler,
White, Whitfield, Wilcox, Wilkes, Wilkinson, Worth

[Louisiana]{.underline}

Catahoula, Concordia, Madison, Tensas

[Mississippi]{.underline}

Adams, Alcorn, Amite, Attala, Calhoun, Carroll, Chickasaw, Choctaw,
Claiborne, Clarke, Clay, Copiah, Covington, Forrest, Franklin, George,
Greene, Grenada, Hancock, Harrison, Hinds, Holmes, Itawamba, Jackson,
Jasper, Jefferson, Jefferson Davis, Jones, Kemper, Lamar, Lauderdale,
Lawrence, Leake, Lee, Lincoln, Lowndes, Madison, Marion, Monroe,
Montgomery, Neshoba, Newton, Noxubee, Oktibbeha, Pearl River, Perry,
Pike, Pontotoc, Prentiss, Rankin, Scott, Simpson, Smith, Stone, Tippah,
Tishomingo, Union, Walthall, Warren, Wayne, Webster, Wilkinson, Winston,
Yazoo

[North Carolina]{.underline}

Cherokee, Clay, Graham, Jackson, Macon

[South Carolina]{.underline}

Abbeville, Aiken, Allendale, Anderson, Bamberg, Barnwell, Beaufort,
Edgefield, Greenwood, Hampton, Jasper, McCormick, Oconee

[Tennessee]{.underline}

Bledsoe, Bradley, Franklin, Giles, Hamilton, Hardin, Lawrence, Lincoln,
Marion, McMinn

**STATEMENT OF**

**CHAIRMAN MICHAEL K. POWELL**

*Re: Improving Public Safety Communications in the 800 MHz Band (WT
Docket No. 02-55), et al., Report and Order and Fourth Report and Order*

Congress has imposed many important obligations on the Commission. One
of the Commission's most important commitments is to promote safety of
life and property using wire and radio communications. Today, it is more
important than ever before that public safety agencies have access to
reliable, robust, interference-free communications systems. To protect
our communities, our citizens, and our Nation, we must take every action
at our disposal to achieve the seamless communications necessary for
emergency preparedness and response.

The 800 MHz band has become increasingly crucial to public safety
communications. Because of the interleaved nature of the band and the
close proximity of incompatible technologies, over the years, these
systems have encountered escalating amounts of interference from
commercial cellular systems. In response, the Commission released a
Notice of Proposed Rulemaking to reconfigure the 800 MHz band to abate
the interference caused to public safety systems. This proceeding's
extensive record of over 2,200 filings depicts the complexity of the
issue and difficulty in constructing a solution that is technically
sound, effective and equitable to all parties. Although today's Order
incorporates proposals and suggestions from various parties on record,
it is a Commission-derived solution that represents the most
comprehensive and effective means of solving the 800 MHz public safety
interference problem.

Our decision fulfills our mandate to promote public safety by
reconfiguring the 800 MHz public safety band to segregate systems
causing unacceptable levels of interference to public safety
communications. Without these measures, countless lives are at risk
because our Nation's first responders cannot rely on their radios in
emergencies. In the short term, the Order establishes technical rules
and procedures that define and alleviate "unacceptable interference" to
public safety systems. Longer term, the Order adopts a restructuring
plan that spectrally separates incompatible technologies to maximize
interference protection for present and future public safety systems and
provides a smooth transition to the new band with minimal disruption to
public safety systems and other affected parties.

The Commission-derived plan requires Nextel to relinquish spectrum and
reband 800 MHz and relocate incumbents in 800 MHz and 1.9 GHz. Nextel
must also complete the reconfiguration within three years and obtain a
letter of credit to guarantee its completion for public safety
licensees. It is important to emphasize that Nextel is responsible for
all costs of relocating public safety licensees.

This decision is by far one of the most complex matters to come before
the Commission; however, it is unquestionably one of the most important
decision affecting public safety and the American people. We will
carefully monitor the progress of public safety relocation and will take
all necessary steps to ensure full compliance of the plan we adopt
today.

**STATEMENT OF**

**COMMISSIONER KATHLEEN Q. ABERNATHY**

*Re: Improving Public Safety Communications in the 800 MHz band,*

*WT Docket No. 02-55*

For three years we have struggled to identify the best way to resolve
public safety interference problems in the 800 MHz band. After reviewing
the voluminous record it became clear to me that: 1) the adoption of
enhanced best practices alone would be inadequate to protect critical
public safety communications; and 2) any rebanding solution would be
costly, complex and controversial. I embrace today's decision because it
puts public safety's interests first. While I recognize that the
rebanding plan is costly, complex and, in some respects, controversial,
it is the only the solution that adequately addresses the needs of
public safety while realigning other uses of the 800 MHz band.

When we initiated this proceeding, I stated that there were four key
considerations which would likely guide my analysis. First, the plan
must aggressively attack the public safety interference issues. Second,
our approach should strive to minimize costs. Third, if possible, we
should attempt to minimize the disruption to other bands. And fourth, if
we were to consolidate public safety into a contiguous band and there is
a demonstrated need in the record, we should identify additional
interoperability channels for public safety. Today's order addresses
each of these considerations.

As an initial step we adopt mandatory best practices that will diminish,
but not eliminate, the potential for harmful interference to public
safety. Over the longer term, we are implementing a rebanding plan that
completely eliminates harmful interference and provides additional
spectrum for public safety. Rebanding will be paid for by Nextel, thus
ensuring that public safety does not incur any new costs, and the
processes we have adopted will minimize service disruptions.

Because of the importance of achieving a workable solution for public
safety and the American public, and the complex technical issues, this
has not been an easy proceeding to resolve. I believe, however, that the
plan we are adopting is the best mechanism available to us to solve the
public safety interference problem in the 800 MHz band and I appreciate
all of the time, effort and brain power devoted to this proceeding by
public safety, industry and the FCC staff.

STATEMENT OF

COMMISSIONER MICHAEL J. COPPS

*RE: Improving Public Safety Communications in the 800 MHz Band, WT
Docket No. 02-55.*

Today we take a giant leap forward to protect public safety. Title I of
our enabling statute charges the Federal Communications Commission to
promote the national defense and the safety of life and property through
the wise use of our country's communications systems. Indeed, a public
servant has no higher obligation than tending to the safety of the
people.

It took a long time and a lot of hard work to get us here today. Along
the way we discovered that no plan is perfect, no plan is supported by
all parties, and no plan is guaranteed to deliver everything that it
promises. Challenging technical questions were accompanied by equally
challenging questions of policy and of law. At the end of two years of
study, analysis and stakeholder input, we have now come to a decision
that can fix the problems it addresses, advance public safety and serve
the public interest.

Today we approve a reconfiguration of the 800 MHz band so that public
safety spectrum is insulated from interference from Nextel operations
and public safety is given access to additional spectrum to do its job.
We mandate that Nextel pay all relocation costs, even if they are above
the \$850 million figure that the company has discussed. We mandate that
Nextel secure an irrevocable letter of credit for \$2.5 billion so that
the public safety community knows that it will have the money it needs
to relocate. We establish a transition manager that will be independent
of any one interest, and that I hope will work to make the transition
serve the public interest of minimizing interference and getting public
safety operations to a stable place as soon as possible. We state that
upon receiving the Comptroller General's analysis of appropriations
statutes, we can stay relevant portions of the Order if appropriate. And
finally, we establish a mechanism to protect tax-payers against private
sector windfall.

It's a good day for public safety, a good day for America. I think the
citizens of our country now are looking to us---all of us---to get on
with the job of putting this plan into action. Time and delay are not
our friends here.

I want to express my thanks to my colleagues, particularly the Chairman,
to the Bureau and to our hard-working staffs for the extraordinary time,
skill and energy they put into this long-running proceeding. And I want
to express my deep thanks to the public safety community that worked so
hard, traveled so far and thought so creatively to bring us to where we
are today. The perseverance of all is certainly appreciated by this
Commissioner.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re: Improving Public Safety Communications in the 800 MHz Band; WT
Docket*

> *No. 02-55*

The interference situation in the 800 MHz band is one of the most
challenging wireless issues the Commission has ever faced. We are trying
to untangle years of actions that have created unacceptable and
dangerous interference problems for our nation's first responders. I am
pleased to support today's item because it puts in place the necessary
components to greatly minimize, and hopefully eliminate, the
interference currently experienced by our nation's first responders who
communicate on land mobile radio systems in the 800 MHz band,
particularly during times of emergency. This interference is an
unacceptable crisis that must be fixed. Today we give our licensees what
they asked for -- the regulatory tools to solve the problem both through
rebanding and enhanced best practices.

The urgent needs of the public safety community is one of the top
priorities of the Commission, and certainly this Commissioner. Public
safety officials put their lives on the line for all of us every day,
and their situation commands the highest level of attention and priority
at the Commission. The very first paragraph of the Communications Act
charges the Commission to promote "the safety of life and property
through the use of wire and radio communication."

Today we step up to that responsibility, and it is important that in
doing so we speak with one voice as a Commission. The stakes here are as
high as in any proceeding we consider. We simply have to get this right.
Throughout this proceeding, I have worked very hard with my colleagues
to explore all aspects of rebanding, including different mechanisms for
funding and a variety of spectrum configuration options. We worked
tirelessly through countless options to find the approach that met the
concerns of public safety while remaining within the bounds of the
authority granted to us by Congress.

I know that some may say that the Commission moved too slowly to take
this action. But I want to emphasize that the time has been very well
spent. Since early this year, my staff and I, in conjunction with some
of the other Commissioner offices, have worked extensively with the
Commission staff to ensure that this item provides the best blueprint
possible for 800 MHz rebanding. There simply is too much at stake to get
this wrong. It is especially important that we put in place an
appropriate mechanism to ensure that all necessary resources are
provided to meet the needs of public safety agencies, and that any
incentives to limit assistance are minimized. I also am pleased that the
item puts in place procedures to minimize as much as possible the impact
of our decision on 800 MHz licensees not directly implicated by the
interference problem.

Finally, while this proceeding likely impacted every Bureau and Office
in the Commission, I want to acknowledge the extraordinary efforts of
the staff of the Wireless Telecommunications Bureau in tackling this
once in a lifetime challenge. I want to specifically thank Michael
Wilhelm, who managed this project from the beginning, and the staff of
the Public Safety and Critical Infrastructure Division for their
outstanding work on this project -- it truly has been a fine performance
of government service.

This decision's primary goal is to protect the nation's police, fire and
emergency medical personnel who are on the front lines of our country's
public safety efforts. Our decision today puts that priority front and
center, right where it belongs.

[^1]: 47 U.S.C. § 337(f) defines \"public safety services\" as services:

    \(A\) the sole or principal purpose of which is to protect the
    safety of life, health, or property;

    \(B\) that are provided

    by State or local government entities; or

    by nongovernmental organizations that are authorized by a government
    entity whose primary mission is the provision of such services; and

    \(C\) that are not made commercially available to the public by the
    provider.

[^2]: For purposes of this proceeding, "800 MHz band" refers to spectrum
    from 806-824/851-869 MHz, which is licensed to public safety,
    commercial, and private wireless operators pursuant to Part 90 of
    the Commission's rules.

[^3]: 47 U.S.C. § 151.

[^4]: Federal Communications Commission Strategic Plan FY 2003-FY2008,
    p.5 (2002).

[^5]: For the purposes of this proceeding, the term "800 MHz cellular
    system" will refer to systems which employ a "high-density cellular"
    architecture. *See* ¶ 172 *infra* for a definition of "800 MHz
    cellular systems."

[^6]: Specialized Mobile Radio (SMR) systems provide land mobile
    communications services (other than radiolocation services) in the
    800 MHz and 900 MHz band on a commercial basis. *See* 47 C.F.R. §§
    90.7, 90.601 *et seq.* ESMR is a term coined by Nextel to describe
    SMR systems, such as Nextel's, that use cellular architecture,
    *i.e.,* systems that use multiple, interconnected, multi-channel
    transmit/receive cells and employ frequency reuse to serve a larger
    number of subscribers than is possible using non-cellular
    technology. The particular ESMR technology used by Nextelthe
    Motorola iDEN systemis capable of using cellular architecture in
    non-contiguous spectrum. A similar, derivative Motorola technology,
    known as "Harmony," is also in limited use. Although the term "ESMR"
    does not appear in the Commission's rules, it has appeared in the
    Commission's case law. *See* Request of Fleet Call, Inc. *Memorandum
    Opinion and Order*, FCC 91-56, 6 FCC Rcd 1533 ¶ 13(1991). More
    recently, the Wireless Telecommunications Bureau has defined ESMR as
    an alternative method to provide wireless service that is based on
    digital TDMA technology and operates with individual base stations.
    *See* "Wireless Telecommunications Bureau Seeks Comment on Qualcomm
    Inc.\'s Petition," *Public Notice*, 15 FCC Rcd 2580, 2619 (WTB
    2000).

[^7]: Cellular telephone providers are licensed in the Cellular
    Radiotelephone Service, pursuant to Part 22 of the Commission's
    rules, and operate cellular architecture systems in the Cellular A
    and B bands (824-849/864-894 MHz), which lie immediately above the
    800 MHz band. *See* 47 C.F.R. § 22.99. Hereinafter, for brevity's
    sake, we refer to these systems as "cellular telephone" or
    "cellular" systems. While cellular telephone systems are similar to
    ESMR systems, they operate in contiguous spectrum and employ
    somewhat different technology.

[^8]: "Unacceptable interference" is a term of art adopted for the
    limited purposes of this proceeding. *See ¶¶* 97-107 *supra*. It
    defines a bright-line test for interference protection that takes
    into account, among other factors, the strength of the desired
    signal and the characteristics of the receiver being employed. It is
    not intended to determine what level of interference is unacceptable
    for any other purpose or in any other band.

[^9]: "Non-cellular" systems are systems that provide service to their
    mobile users or subscribers from one or a small number of base
    stations, which are typically "high site" (*i.e.*, located at high
    elevations, on towers, mountains, hill tops, or tall buildings)
    multiple, interconnected, multi-channel transmit/receive cells and
    employ frequency reuse to serve a larger number of subscribers. For
    the purposes of this proceeding, the term non-cellular will refer to
    systems which do not employ a "high-density cellular" architecture.
    *See* ¶¶ 170-174 *infra*.

[^10]: Business and Industrial/Land Transportation (B/ILT) licensees are
    licensed in the Private Land Mobile Radio Service pursuant to Part
    90 of the Commission's Rules and utilize their systems for private,
    internal needs in a variety of commercial applications (e.g.,
    factories, taxis. B/ILT typically use "high-site, high power"
    systems in the 800 MHz and 900 MHz. See 47 C.F.R. 90.35. *See also*
    n. Error: Reference source not found for a description of high site,
    high power systems.

[^11]: For purposes of this *Report and Order*, we define as CII
    licensees those entities, outside of the scope of the "public safety
    service" definition of 47 U.S.C. § 337(f), *see* n. Error: Reference
    source not found *supra*, but which operate "public safety" radio
    services within the scope of Section 309(j)(2) of the Act. 47 U.S.C.
    § 309(j)(2) defines "public safety radio services" as including
    private internal radio services used by State and local governments
    and non-government entities, and including emergency road services
    provided by not-for profit organizations, that: (i) are used to
    protect the safety of life, health, or property; and (ii) are not
    made commercially available to the public.

    Examples of CII licensees include 800 MHz systems that provide
    private internal radio services used by utilities, railroads,
    metropolitan transit systems, pipelines, private ambulances,
    volunteer fire departments, and not-for-profit organizations that
    offer emergency road services, such as the American Automobile
    Association (AAA).

    We recognize that the section 309(j)(2) definition is more
    encompassing than that proposed by Nextel in the "White Paper."
    *See* Promoting Public Safety Communications, Realigning the 800 MHz
    Land Mobile Radio Band to Rectify Commercial Mobile Radio - Public
    Safety Interference and Allocate Additional Spectrum to Meet
    Critical Public Safety Needs, Nextel Communications, Inc, submitted
    by Robert S. Foosaner, Nextel Communications, Inc., to Thomas J.
    Sugrue, Chief, Wireless Telecommunications Bureau, FCC (cover letter
    dated Nov. 12, 2001) (White Paper) at 46. In this regard, we observe
    that in the White Paper, Nextel cites a study undertaken by the
    Department of Commerce, National Telecommunications and Information
    Administration, which requested comment on a broader definition of
    CII, including pipelines and railroads. *See* White Paper at n. 60;
    Request for Comment on Energy, Water and Railroad Service Providers'
    Spectrum Use Study, 66 Fed Reg. 18447 (2001). Section 309(j)(2) also
    is broader than the definition proposed by the Critical
    Infrastructure Communications Council (CICC), which is composed of
    the following organizations: The American Gas Association, the
    American Petroleum Institute, the American Public Power Association,
    the American Water Works Association, the Association of American
    Railroads, the Edison Electric Institute, the Interstate Natural Gas
    Association of America, the National Association of Water Companies,
    the National Rural Electric Cooperative Association, and the United
    Telecom Council (UTC). *See* UTC Comments at n. 2. We nonetheless
    believe that this expanded definition is appropriate in this context
    because it recognizes that the very nature of the services provided
    by the included entities involves potential hazard to life and
    property and that CII entities often work hand in hand with public
    safety officials at the scene of an incident. Indeed, reliable CII
    radio communications have long proven essential in speeding recovery
    from natural or man-made disasters. Our decision to define CII is
    confined to this proceeding and does not represent a Commission
    decision that CII entities are public safety entities.

[^12]: Although we focus on the benefits to public safety and CII, we do
    not intend to imply that other 800 MHz radio systems will not be
    beneficiaries of the actions we take today. Except where
    specifically stated otherwise, the interference protections we
    afford today inure to the benefit of all 800 MHz non-cellular
    licensees. "Non-cellular 800 MHz licensees," as used herein, refers
    to public safety, CII, B/ILT and non-cellular SMR licensees.

[^13]: The proponents of this proposal have referred to themselves as
    the "Consensus Parties" and we use that term for reference purposes
    in this *Report and Order*. The Consensus Parties' members are the
    Association of Public Safety Communications Officials-International
    (APCO), International Association of Chiefs of Police (IACP),
    International Association of Fire Chiefs, Inc. (IAFC), International
    Municipal Signal Association (IMSA), Major Cities Chiefs Association
    (MCCA), Major County Sheriffs' Association (MCSA), National
    Sheriffs' Association (NSA), Aeronautical Radio, Inc. (ARINC),
    American Mobile Telecommunications Association (AMTA), American
    Petroleum Institute (API), Association of American Railroads (AAR),
    Forest Industries Telecommunications (FIT), Industrial
    Telecommunications Association (ITA), PCIA - The Wireless
    Infrastructure Association (PCIA), Taxicab, Limousine and
    Paratransit Association (TLPA), National Stone, Sand and Gravel
    Association (NSSGA), and Nextel. *See* Letter, dated October 29,
    2002, from Robert M. Gurss, Esq., Counsel for APCO to Marlene H.
    Dortch, Secretary, Federal Communications Commission. *See* n.
    Error: Reference source not found *infra*. However, while the
    Consensus Parties represent a broad coalition of commercial and
    public safety entities, we recognize that their position does not
    reflect a consensus of all of the various parties to this
    proceeding, including some public safety entities that object to the
    Consensus Parties' proposal or elements thereof. *See*, *e.g.*,
    Letter, dated March 24, 2004, from Chuck Canterbury, National
    President, Fraternal Order of Police (FOP) to George W. Bush,
    President, United States of America: Letter, dated March 25, 2004
    from Art Gordon, National Executive Vice President, Federal Law
    Enforcement Officers Association to George W. Bush, President,
    United States of America. With regard to the Fraternal Order of
    Police letter, we observe that on July 1, 2004, the FOP indicated
    that their concerns over the Consensus Plan have been addressed and
    that they now support the Consensus Plan. *See* Letter dated July 1,
    2004, from Chuck Canterbury, National President, Fraternal Order of
    Police, to Michael K. Powell, Chairman, Federal Communications
    Commission.

[^14]: We make these modifications under the authority granted us by
    Sections 4, 301, 303 and 316 of the Act, 47 U.S.C. §§ 316, 303, 301,
    and 154(i). We set forth a detailed description of our legal
    authority in ¶¶ 62-87 *infra.*

[^15]: *See* ¶¶ 223-276 *infra.* AWS is the collective term we use for
    new and innovative fixed and mobile terrestrial wireless
    applications using bandwidth that is sufficient for the provision of
    a variety of applications, including those using voice and data
    (such as Internet browsing, message services, and full-motion video)
    content. Although AWS is commonly associated with so-called third
    generation (3G) applications and has been predicted to build on the
    successes of such current-generation commercial wireless services as
    cellular and Broadband PCS, the services ultimately provided by AWS
    licensees are only limited by the fixed and mobile designation of
    the spectrum we allocate for AWS and the service rules we ultimately
    adopt for the bands.

[^16]: *See* ¶¶ 210-212 *infra.*

[^17]: *See* ¶¶ 159-163 *infra.*

[^18]: *See* 47 C.F.R. § 90.621(f) in Appendix C *infra.*

[^19]: A detailed overview of the record is set forth in ¶ 61 *infra.*
    For citation purposes, we refer to comments received to the *Notice
    of Proposed Rulemaking* in this proceeding using the following
    format: \[Party Name\] Comments/Reply Comments at \[Page or
    Paragraph Number\]. We refer to comments received in response to the
    Consensus Parties Reply Comments using the following format:
    Comments of \[Party Name\] to the Consensus Parties Reply Comments
    at \[Page or Paragraph Number\]; we refer to comments received in
    response to the Supplemental Comments of the Consensus Parties using
    the following format: Comments/Reply Comments of \[Party Name\] to
    Supplemental Comments of the Consensus Parties at \[Page or
    Paragraph Number\].

[^20]: *See* ¶ 107 *infra.*

[^21]: *See* ¶ 130 *infra.*

[^22]: *See* ¶¶ 124-127 *infra.*

[^23]: *See* ¶ 151 *infra.*

[^24]: *See* ¶ 198 *infra.*

[^25]: *See* ¶ 201 *infra.*

[^26]: *See* ¶¶ 190-200 *infra.*

[^27]: *See* ¶¶ 177-178 *infra.*

[^28]: *See* ¶¶ 180-187 *infra.*

[^29]: *See* ¶¶ 207-209 *infra.*

[^30]: *See* ¶¶ 217-222 *infra.*

[^31]: *See* ¶¶ 239-263 *infra.*

[^32]: *See* ¶ 212 *infra.*

[^33]: *See* ¶ 207 *infra.*

[^34]: *See* ¶¶ 335-337 *infra.*

[^35]: *See* Improving Public Safety Communications in the 800 MHz Band;
    Consolidating the 900 MHz Industrial/Land Transportation and
    Business Pool Channels, WT Docket No. 02-55, *Notice of Proposed
    Rulemaking*, 17 FCC Rcd 4873, 4482 ¶ 16 (2002), as modified in
    *Erratum*, 17 FCC Rcd 7169 (PSPWD 2002) (*NPRM*).

[^36]: *Id.* at 4882 ¶ 16.

[^37]: Although the Commission has designated spectrum for public safety
    use in the spectrally adjacent 700 MHz band (764-776 MHz and 794-806
    MHz), that band currently is not usable by public safety in most of
    the population centers of the United States because of the presence
    of high-power television station incumbents. *See* Section 337(a) of
    the Communications Act, 47 U.S.C. § 337(a), as amended by § 3004 of
    the Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat. 251
    (1997). *See also* Development of Operational, Technical and
    Spectrum Requirements for Meeting Federal, State and Local Public
    Safety Agency Communication Requirements Through the Year 2010, WT
    Docket 96-86. As a result, the potential for the public safety
    community to access the 700 MHz band in the near future is limited.

[^38]: *See, e.g.,* Verizon Comments at 3; Cingular and Alltel Comments
    at 2-3. Some parties argued that reports of interference were
    anecdotal in nature, and for that reason, did not represent a true
    evaluation of the problem. *See* Cinergy Comments at 7-9.

[^39]: *See, e.g., ex parte* comments, dated June 10, 2003, from City
    and County of Denver (Denver June 10 *Ex Parte*); *ex parte*
    comments, dated July 29, 2003, from Anne Arundel County (Anne
    Arundel July 29 *Ex Parte*).

[^40]: In 2000, public safety and CMRS entities incorporated many of
    these technical changes into a *Best Practices Guide*. *See*
    Avoiding Interference Between Public Safety Wireless Communications
    Systems and Commercial Wireless Communications Systems at 800 MHz, a
    Best Practices Guide, December 2000 at 5 (*Best Practices Guide*)*.*

[^41]: *C.f.* 47 C.F.R. § 90.173(b); *see also* 47 C.F.R. § 90.403(e).

[^42]: The designations "high-site" and "low-site" are often used to
    distinguish cellularized from non-cellularized systems. Thus, for
    example, the typical public safety 800 MHz system will employ one,
    or only a few, base stations with antennas located on high terrain,
    towers, buildings, etc. to provide wide-area coverage from the base
    station. Cellular-architecture systems, by comparison, make use of
    multiple, localized coverage, base stations whose antennas generally
    are mounted on low towers or other structures. We note, however,
    that the term "low-site" is often used to denominate cells *within*
    a cellularized system that have *very low* antenna elevations,
    *e.g.* thirty-feet and, accordingly, have a greater potential to
    cause interference than high-elevation cells in the system. *See ¶*¶
    170-174 *infra.*

[^43]: *See*
    http://www.fix800mhznow.com/documents/800_MHz_COALITION_10_29_03.pdf.
    The 800 MHz Users Coalition consists of: ALLTEL Communications,
    Ameren Corporation, American Electric Power (AEP), Applied
    Technology Group, Inc., AT&T Wireless Services, Inc., Cinergy
    Corporation, City of Baltimore, Maryland, City of Colorado Springs,
    Colorado, Consumers Energy Co., Edison Electric Institute (EEI),
    Fresno Mobile Radio, Inc., Holy Cross Electric Association, Mobile
    Relay Associates, National Rural Electrical Cooperative Association
    (NRECA), Palomar Communications, Preferred Communication Systems,
    Small Business in Telecommunications, Southern Company/Southern
    LINC, Supreme Radio Communications, Inc., U.S. Cellular Corp., UTC,
    and Western Wireless.

[^44]: *See, e.g.,* Letter, dated May 29, 2003, from Jill Lyon, Esq.,
    Vice President and General Counsel, UTC to Marlene H. Dortch,
    Secretary, Federal Communications Commission (800 MHz Users
    Coalition May 29, 2003 *ex parte*).

[^45]: We also note that the record reflects instances in which, despite
    diligent effort on the part of all concerned, technical changes have
    been unable to abate interference. *See e.g.,* Denver June 10 *Ex
    Parte* at 12 -13; Anne Arundel July 29 *Ex Parte*.

[^46]: We note that the interference abatement measures used prior to
    band reconfiguration will remain necessary even after band
    reconfiguration is completed. Thus, although we expect instances of
    interference to be far less frequent under the reconfigured band
    plan, the availability of Enhanced Best Practices will ensure the
    quick and effective abatement of any residual interference that may
    occur.

[^47]: *See* ¶¶ 105-107 *infra.*

[^48]: *Id.*

[^49]: *See* ¶ 158 and Figure 1 *supra.*

[^50]: In this *Report and Order,* we are relating entitlement to full
    interference protection to conformance with certain sensitivity,
    selectivity, and intermodulation-rejection performance standards
    typical of TIA "Class A" receivers. *See* ¶ 109 *infra.*

[^51]: We stress, however, that we expect parties to vigorously
    implement Enhanced Best Practices to abate interference even if this
    involves implementing a "channel swap\" prior to official rebanding.
    *See* ¶ 123 *infra.*

[^52]: *See* Public Safety Wireless Network Comments at 18. *See also*
    Reply Comments of Rural Telecommunications Group to Supplemental
    Comments of the Consensus Parties.

[^53]: *See* FCC Staff Report, Spectrum Policy Task Force Report in ET
    Docket No. 02-135, 4, 22 (released Nov. 22, 2002).

[^54]: *See* ¶ 37 *infra*.

[^55]: In some circumstances, public safety and CII systems operating in
    the 809-809.75 /854-854.75 MHz portion of the General Category band
    will not have to be relocated. Public safety will also have
    exclusive access to spectrum vacated by Nextel in this portion of
    the General Category Band for five years, and CII licensees will
    have access from year three to year five. 

[^56]: These channels will be restricted to public safety eligibles for
    three years from the effective date of this *Report and Order*.
    Thereafter, for an additional two-year period, only public safety
    and CII eligibles may apply for said channels. At the end of this
    five-year period, any eligible applicant may apply.

[^57]: Under the relocation provisions we adopt today, public safety
    licensees will generally be located outside of the Expansion Band,
    except when a public safety licensee currently operating in these
    bands either explicitly declines to relocate or requests a channel
    therein. Those public safety systems operating in the Expansion Band
    will receive the same interference protection as if they were
    located outside of this band. *See* ¶¶ 154-156 *infra.*

[^58]: The Guard Band is carved from current EMSR spectrum. Therefore,
    no public safety licensees currently occupy the Guard Band and no
    public safety licensees will need to be relocated from this portion
    of the band. Systems that choose to relocate to the Guard Band will
    be entitled to limited interference protection as described at ¶¶
    158 and Figure 1 *infra*.

[^59]: In some Southeastern markets where both Southern LINC and Nextel
    offer ESMR service, insufficient spectrum exists in the
    816-824/861-869 MHz band segment to accommodate existing ESMR
    systems and ESMR systems that may seek to exercise their option to
    relocate from the lower channels. In order not to unduly restrict
    ESMR operations in this region, we define the ESMR band in these
    markets as the band segment 813.5-824 MHz/858.5-869 MHz. The
    Expansion Band in this region will extend from 812.5-813.5
    MHz/857.5-858.5 MHz. All licensees operating below 813.5 MHz/858.5
    MHz in this region will be afforded full protection against
    unacceptable interference as specified in the *Report and Order*.
    *See* ¶¶ 164-169 *infra*.

[^60]: *See* Comments of Preferred Communications to Supplemental
    Comments of the Consensus Parties at 19-20.

[^61]: For example, only one proposal contained a feasible means of
    paying for band reconfiguration. *See* Supplemental Comments of the
    Consensus Parties at ii (Nextel commitment to provide up to \$850
    million for band reconfiguration). We note, also, that, later in
    this proceeding, the proponents of the Balanced Approach said that
    certain of their members were committed to pay the cost of
    implementing Best Practices applied on a case-by-case basis when
    their facilities were involved. We commend that commitment, which is
    consistent with the interference abatement responsibility policy we
    adopt herein. *See* ¶¶ 128-131 *infra.*

[^62]: Commission staff meet periodically, and whenever needed, with
    their regulatory counterparts from Mexico and Canada to discuss
    cross border issues and, when duly authorized, to derive recommended
    changes to existing international agreements. When formal amendments
    to agreements are needed, they are made through a process that
    requires the sanction of the government entity officially designated
    with the responsibility for international treaty consultations,
    which in the case of the United States is the Department of State.

[^63]: *See* ¶ 201 *infra.*

[^64]: *See* ¶¶ 190-200 *infra.*

[^65]: Such *de novo* Commission review is anticipated only after all
    other avenues have been exhausted, *e.g.,* mediation, arbitration or
    other alternative dispute resolution techniques based on the good
    faith effort of the parties.

[^66]: We note that the Commission has issued Notices of Apparent
    Liability for Forfeiture assessing substantial penalties on carriers
    that have failed to comply with Commission rules intended to enhance
    the safety of life and property. *See* In re T-Mobile USA, Inc.,
    *Notice of Apparent Liability for a Forfeiture*, 18 F.C.C.R. 3501
    (EB 2003); *see also* In re AT&T Wireless Services, Inc., *Notice of
    Apparent Liability for a Forfeiture,* 17 F.C.C.R. 9903 (EB 2002).

[^67]: *See* ¶ 182 *infra.*

[^68]: This modification of Nextel's original White Paper position was
    first put forth in December 2001 in an *ex parte* filing by the
    Consensus Parties. *See* n. Error: Reference source not found
    *infra.* We note that other parties contend that the value of the
    spectrum rights Nextel seeks substantially exceeds the value of
    spectrum rights it has offered to give up, and therefore would
    constitute an unwarranted windfall to Nextel. *See* n. Error:
    Reference source not found *infra.*

[^69]: We provide this compensation under the authority granted us by
    Sections 4, 301, 303 and 316 of the Act, 47 U.S.C. §§ 316, 303, 301,
    and 154(i). We set forth a detailed description of our legal
    authority in ¶¶ 62-87 *infra.*

[^70]: *See, e.g.,* Comments of Access Spectrum to Supplemental Comments
    of Consensus Parties at 11-12; Comments of Boeing to Supplemental
    Comments of Consensus Parties at 19; Comments of CTIA to
    Supplemental Comments of Consensus Parties at 15-16.

[^71]: We note that the Commission has previously designated twenty-four
    megahertz of spectrum to public safety in the 700 MHz band. *See* ¶
    40 *infra*. We note that a "megahertz for megahertz" comparison of
    the spectrum currently held by Nextel and the spectrum it seeks is
    unjustified, *inter alia¸* because the bands differ in spectral
    characteristics, operating parameters, the number and kind of
    incumbent licensees and the number of markets in which Nextel holds
    its spectrum*.* Moreover, under the band reconfiguration plan we
    adopt today, Nextel may require its 900 MHz band spectrum in order
    to make up for spectrum it may need to vacate in the 800 MHz band in
    order to accommodate other ESMR licensees in the ESMR segment of the
    800 MHz band. *See* ¶*¶* 159-163 *infra.*

[^72]: If Nextel fails to meet this benchmark, for reasons that Nextel
    could reasonably have avoided, the Commission will determine whether
    forfeitures should be imposed and/or whether Nextel licenses,
    including, but not limited to, its 1.9 GHz licenses, should be
    revoked.

[^73]: "Credit," as used in this context, means the amount that will be
    deducted from the sum that Nextel will be required to deposit with
    the U.S. Treasury after completion of band reconfiguration. The
    calculation of the credit is discussed at ¶ 323 *infra*.

[^74]: Nextel's credit for this category of expenditure shall be
    strictly limited to those costs absolutely essential to implement
    band reconfiguration and shall not include any costs for
    improvement, by way of equipment replacement or otherwise, of the
    capacity or features of Nextel's infrastructure or subscriber units.

[^75]: ^74A^ *See* n. 510A, *infra.*

[^76]: *See* Inquiry Relative to the Future Use of the Frequency Band
    806-960 MHz and Amendment of Parts 2, 18, 21, 73, 74, 89, 91, and 93
    of the Rules Relative to Operations in the Land Mobile Service
    Between 806 and 960 MHz, Docket No. 18262, *First Report and Order
    and Second Notice of Inquiry*, 19 Rad. Reg. 2d (P&F) 1663 (1970).
    *See also* Inquiry Relative to the Future Use of the Frequency Band
    806-960 MHz and Amendment of Parts 2, 18, 21, 73, 74, 89, 91, and 93
    of the Rules Relative to Operations in the Land Mobile Service
    Between 806 and 960 MHz, Docket No. 18262, *Second Report and
    Order*, 46 FCC 2d 752 (1974), *reconsidered, Memorandum Opinion and
    Order*, 51 FCC 2d 945 (1975).

[^77]: *Id*.

[^78]: *See* Inquiry Relative to the Future Use of the Frequency Band
    806-960 MHz and Amendment of Parts 2, 18, 21, 73, 74, 89, 91, and 93
    of the Rules Relative to Operations in the Land Mobile Service
    Between 806 and 960 MHz, Docket No. 18262, *Order* (on further
    reconsideration), FCC 78-854 (1978); *aff\'d sub nom*. *NARUC v.
    FCC*, 525 F.2d 630 (D.C. Cir. 1976), *cert. denied* 425 U.S. 992
    (1976).

[^79]: The initial allotment to public safety was fifty channels. *See*
    Amendment of Part 90 of The Commission\'s Rules to Designate
    Frequencies in the 806-821 and 851-866 MHz Bands for Slow-Growth
    Land Mobile Radio Systems of Utilities and Public Safety Agencies,
    PR Docket No. 79-191 *Report and Order*, 48 Rad. Reg. 2d (P&F) 837,
    FCC 80-663 (1980). This was later increased to seventy channels.
    *See* Amendment of Part 90 of the Commission\'s Rules to Release
    Spectrum in the 806-21/851-866 MHz Bands and to Adopt Rules and
    Regulations Which Govern Their Use; Amendment of Part 90 of the
    Commission\'s Rules to Facilitate Authorization of Wide-Area Mobile
    Radio Communications Systems; An Inquiry Concerning the Multiple
    Licensing of 800 MHz Radio Systems (community repeaters); Amendment
    of Section 90.385(c) of the Commission\'s Rules to Allow
    Transmission of Non-Voice Signals at 800 MHz, PR Docket No. 79-191,
    PR Docket No. 79-334, PR Docket No. 79-107, PR Docket No. 81-703,
    *Second Report and Order*, 90 FCC 2d 1281, 52 Rad. Reg. 2d (P&F) 11,
    FCC 82-338 (1982) (*Pool Order*). Subsequently, the Commission added
    225 25 kHz channels spaced 12.5 kHz apart and five 25 kHz channels
    spaced 25 kHz apart at 866-869 MHz---the so-called \"NPSPAC
    Channels." *See* ¶ 37 *infra.*

[^80]: *See, e.g.*, 47 C.F.R. §§ 90.617, 90.619.

[^81]: *See NPRM,* 17 FCC Rcd at 4877.

[^82]: *Id*.

[^83]: *Id*.

[^84]: *See Pool Order,* 90 FCC 2d 1303-1304 ¶ 66. In 1995, the
    Commission imposed a freeze on intercategory sharing, because, after
    the Commission elected to auction SMR licenses on a wide-area
    geographical basis, SMR applicants filed a disproportionate number
    of requests for intercategory sharing. *See* Amendment of Part 90 Of
    The Commission\'s Rules To Facilitate Future Development Of SMR
    Systems in the 800 MHz Frequency Band, PR Docket No. 93-144, *Second
    Report and Order*, 12 FCC Rcd 19079 (1997). This resulted in a
    shortage of channels for applicants in the other pools. *See* in the
    Matter Of Inter-Category Sharing Of Private Mobile Radio Frequencies
    in the 806-821/851-866 MHz Bands, *Order,* 10 FCC Rcd 7350 (WTB
    1995) (*Intercategory Freeze Order*). To date, the freeze on
    intercategory sharing in the 800 MHz band remains in effect.

[^85]: *See* Amendment of Parts 2 and 22 of the Commission\'s Rules
    Relative to Cellular Communications Systems Amendment of Parts 2,
    15, and 90 of the Commission\'s Rules and Regulations to Allocate
    Frequencies in the 900 MHz Reserve Band for Private Land Mobile Use
    Amendment of Parts 2, 22 and 25 of the Commission\'s Rules to
    Allocate Spectrum for, and to Establish Other Rules and Policies
    Pertaining to the Use of Radio Frequencies in a Land Mobile
    Satellite Service for the Provision of Various Common Carrier
    Services, GEN Docket No. 84-1231 RM-4812, GEN Docket No. 84-1233
    RM-4829, GEN Docket No. 84-1234, *Report and Order,* 2 FCC Rcd at
    1825 ¶ 46 (1986).

[^86]: *Id.* at 1837.

[^87]: *See* Development and Implementation of a Public Safety National
    Plan and Amendment of Part 90 to Establish Service Rules and
    Technical Standards for Use of the 821-824/866-869 MHz Bands by the
    Public Safety Services, GEN Docket No. 87-112, *Report and Order*, 3
    FCC Rcd 905 (1987).

[^88]: *See, e.g.*, State of Ohio, *Memorandum Opinion and Order*, 17
    FCC Rcd 439 (WTB, PS&PWD 2002); State of Florida, *Memorandum
    Opinion and Order*, 16 FCC Rcd 2174 (WTB 2001); Commonwealth of
    Pennsylvania and GPU Energy, *Order*, 14 FCC Rcd 14029 (WTB, PS&PWD
    1999); New Jersey Transit Authority, *Order*, 14 FCC Rcd 4334 (WTB
    1999); State of South Carolina and Scana Communications, Inc.,
    *Order*, 13 FCC Rcd 8787 (WTB 1997); State of Florida, *Order*, 12
    FCC Rcd 11567 (WTB 1997); Seminole County, Florida, *Order*, 11 FCC
    Rcd 4105 (WTB 1996).

[^89]: *See* Trunking in the Private Land Mobile Radio Services for More
    Effective and Efficient Use of the Spectrum, PR Docket No. 87-213,
    *Report and Order*, 5 FCC Rcd 4016 (1990).

[^90]: *See NPRM*, 17 FCC Rcd at 4878 ¶ 9.

[^91]: *See, e.g.*, Fleet Call, Inc, *Memorandum Opinion and Order*, 6
    FCC Rcd 1533, *recon. dismissed*, 6 FCC Rcd 6989 (1991).

[^92]: Amendment of Part 90 of the Commission's Rules to Facilitate
    Future Development of SMR Systems in the 800 MHz Frequency Band,
    *Further Notice of Proposed Rule Making*, PR Docket No. 93-144, PP
    Docket No. 93-253, 10 FCC Rcd 7970 (1994) (*Further Notice*).

[^93]: The General Category is comprised of 150 contiguous twenty-five
    megahertz channels in the 800 MHz band. *See* 47 C.F.R. § 90.615.

[^94]: Licensing of General Category Frequencies in the
    806-809.750/851-854.750 MHz Bands, *Order,* 10 FCC Rcd 13190 (WTB
    1995).

[^95]: *See* Amendment of Part 90 of the Commission\'s Rules to
    Facilitate Future Development of SMR Systems in the 800 MHz
    Frequency Band, PR Docket No. 93-144, *First Report and Order,
    Eighth Report and Order, and Second Further Notice of Proposed Rule
    Making*, 11 FCC Rcd 1463 (1995) (*800 MHz Report and Order*).
    Geographic licensing was also adopted for the General Category SMR
    channels.

[^96]: Amendment of Part 90 of the Commission's Rules to Facilitate
    Future Development of SMR Systems in the 800 MHz Frequency Band,
    *First Report and Order*, *Eighth Report and Order and Second
    Further Notice of Proposed Rulemaking*, PR Docket No. 93-144, GN
    Docket No. 93-252, PP Docket No. 93-253, 11 FCC Rcd 1463 (1995)
    (*800 MHz SMR Report and Order);* *Memorandum Opinion and Order on
    Reconsideration*, PR Docket No. 93-144, GN Docket No. 93-252, PP
    Docket No. 93-253, 12 FCC Rcd 9972 (1997) (*800 MHz SMR Memorandum
    Opinion and Order*).

[^97]: *800 MHz* *SMR Memorandum Opinion and Order*, 12 FCC Rcd at 9975
    ¶ 4.

[^98]: In the *800 MHz SMR Report and Order*, the Commission adopted
    geographic licensing based on EAs for the upper ten megahertz of the
    800 MHz SMR service. *See 800 MHz SMR Report and Order*, 11 FCC Rcd
    at 1484 ¶¶ 24-25. The U.S. Department of Commerce Bureau of Economic
    Analysis has established 172 EAs which cover the continental United
    States. *See* Final Redefinition of the BEA Economic Areas, 60 Fed.
    Reg. 31114 (Mar. 10, 1995).

[^99]: *See 800 MHz* *SMR Report and Order*, 11 FCC Rcd at 1508 ¶¶
    74-75.

[^100]: *Id.* at 1509 ¶ 76.

[^101]: *See* Section 337(a) of the Act, 47 U.S.C. § 337(a), as amended
    by § 3004 of the Balanced Budget Act of 1997, Pub. L. No. 105-33,
    111 Stat. 251 (1997). The Commission's Wireless Telecommunications
    Bureau subsequently set a June 19, 2002, date for this auction.
    *See* Auction of Licenses in the 747-762 and 777-792 MHz Bands
    (Auction Nos. 31 and 44) scheduled for June 19, 2002, DA 01-2394,
    *Public Notice*, 16 FCC Rcd 18510 (2001). The spectrum assigned for
    public safety use corresponds to Television Channels 63-64 and
    68-69.

[^102]: *See* 47 U.S.C. §§ 309(j)(14) and 337(e). *See also* Advanced
    Television Systems and Their Impact Upon Existing Television
    Broadcast Service, MM Docket No. 87-268, *Reconsideration of Fifth
    Report and Order*, 13 FCC Rcd 6860, 6887 (1998).

[^103]: The Guard Bands consist of paired one megahertz sub-bands at
    746-747 MHz and 776-777 MHz and two paired two megahertz sub-bands
    at 762-764 MHz and 792-794 MHz. *See* Service Rules for the 746-764
    and 776-794 MHz Bands, and Revisions to Part 27 of the Commission\'s
    Rules, WT Docket No. 99-168, *First Report and Order*, 15 FCC Rcd
    476, 489-91 ¶¶ 30-34 (2000) (*Upper 700 MHz First Report and
    Order*).

[^104]: *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, *Second Report and Order*, 15 FCC Rcd 5299 (2000) (*Upper
    700 MHz Second Report and Order*).

[^105]: *See* 47 C.F.R. §§ 27.2(b); 27.601(a).

[^106]: *See Upper 700 MHz Second Report and Order*, 15 FCC Rcd 5299.

[^107]: *Upper 700 MHz Second Report and Order*, 15 FCC Rcd at 5311-13
    ¶¶ 26-28. The Commission determined that this licensing scheme was
    consistent with the provisions of 47 U.S.C. § 337(a)(2) requiring
    that this spectrum be allotted for commercial use. *Upper 700 MHz
    Second Report and Order*, 15 FCC Rcd at 5316 ¶ 36; 47 U.S.C. §
    337(a)(2).

[^108]: *Upper 700 MHz Second Report and Order*, 15 FCC Rcd at 5312-13
    ¶¶ 27-28.

[^109]: *See* 700 MHz Guard Band Auction Closes; Winning Bidder
    Announced, *Public Notice*, 15 FCC Rcd 18026 (WTB 2000) (Auction No.
    33).

[^110]: The Auction Reform Act of 2002, Pub. L. No. 107-195, 116 Stat.
    715, § 2(4) (2002). Pub.L. 107-195 § 2(4) (Auction Reform Act of
    2002) provided that: "The Federal Communications Commission is also
    in the process of determining how to resolve the interference
    problems that exist in the 800 megahertz band, especially for public
    safety. One option being considered for the 800 megahertz band would
    involve the 700 megahertz band. The Commission should not hold the
    700 megahertz auction before the 800 megahertz interference issues
    are resolved or a tenable plan has been conceived." Previously,
    Section 309(j)(14) of the Communications Act required the Commission
    to assign spectrum recovered from broadcast television using
    competitive bidding and envisioned that the Commission would conduct
    an auction of this spectrum prior to September 30, 2002. *See* 47
    U.S.C. § 309(j)(14).

[^111]: *See* Amendment of Parts 2 and 22 of the Commission\'s Rules
    Relative to Cellular Communications Systems Amendment of Parts 2,
    15, and 90 of the Commission\'s Rules and Regulations to Allocate
    Frequencies in the 900 MHz Reserve Band for Private Land Mobile Use
    Amendment of Parts 2, 22 and 25 of the Commission\'s Rules to
    Allocate Spectrum for, and to Establish Other Rules and Policies
    Pertaining to the Use of Radio Frequencies in a Land Mobile
    Satellite Service for the Provision of Various Common Carrier
    Services, GEN Docket No. 84-1231 RM-4812, GEN Docket No. 84-1233
    RM-4829, GEN Docket No. 84-1234, *Report* *and* *Order*, 2 FCC Rcd
    1825 ¶ 46 (1986). We observe that the Commission suggested that the
    pool framework would only be for a limited time period. *Id*.

[^112]: *Id*. at ¶ 52.

[^113]: The "900 MHz" SMR band refers to spectrum allocated in the
    896-901 and 935-940 MHz bands. *See* 47 C.F.R. § 90.603.

[^114]: *Id*. at ¶ 46.

[^115]: *See* Private Land Mobile Application Procedures for Spectrum in
    the 896-901 MHz and 935-940 MHz Bands, Public Notice, 1 FCC Rcd 543
    (1986). In 1989, the Commission adopted a Notice of Proposed Rule
    Making in PR Docket 89-553, proposing to begin Phase II licensing of
    SMR facilities nationwide. The NPRM contained proposals intended to
    add flexibility to SMR systems. The Commission continued its freeze
    on licensing outside the DFAs while the rulemaking was pending, but
    some DFA licensees elected to become licensed for secondary sites
    (i.e., facilities that may not cause interference to primary
    licensees and must accept interference from primary licensees)
    outside their DFAs to accommodate system expansion. Amendment of
    Parts 2 and 90 of the Commission\'s rules to Provide for the Use of
    200 Channels Outside the Designated Filing Areas in the 896-901 MHz
    and 935-940 MHz Bands Allotted to the Specialized Mobile Radio Pool,
    *Notice of Proposed Rulemaking*, PR Docket No. 89-553, 4 FCC Rcd
    8673 (1989).

[^116]: *See* Amendment of Parts 2 and 90 of the Commission\'s Rules to
    Provide for the Use of 200 Channels Outside the Designated Filing
    Areas in the 896-901 MHz and 935-940 MHz Bands Allotted to the
    Specialized Mobile Radio Pool, *First Report and Order and Further
    Notice of Proposed Rulemaking*, PR Docket No. 89-553, 8 FCC Rcd 1469
    (1993) (*Phase II First Report & Order & Further Notice*).

[^117]: Omnibus Budget Reconciliation Act of 1993, Pub.L. No. 103-66
    (Budget Act), § 6002(b), 107 Stat. 312, 392 (1993) (codified at 47
    U.S.C. § 332).

[^118]: Amendment of Part 90 of the Commission\'s Rules to Facilitate
    Future Development of SMR Systems in the 800 MHz Frequency Band,
    *Further Notice of Proposed Rulemaking*, PR Docket No. 83-144, FCC
    94-271, 59 Fed.Reg. 60,111 (Nov. 22, 1994) (*800 MHz Further
    Notice*).

[^119]: *See* Implementation of Sections 3(n) and 332 of the
    Communications Act\-- Regulatory Treatment of Mobile Services,
    Second Report and Order, 9 FCC Rcd 1411 (1994) (*CMRS Second Report
    & Order*); *CMRS Third* *Report & Order*, 9 FCC Rcd 7988 (1994).

[^120]: *Id*.

[^121]: *CMRS Third Report & Order* at ¶ 119. The Commission noted that
    some licensees had been granted authorizations to construct
    facilities outside of the DFAs, so they could link facilities in
    different markets. With respect to those unprotected sites (i.e.,
    \"secondary sites\"), the Commission stated that those that were
    licensed on or before August 9, 1994, would be entitled to primary
    site protection. *Id*. The Commission also eliminated loading
    requirements for future MTA licensees, but retained them for
    incumbent 900 MHz SMR licensees that do not obtain MTA licenses.
    *Id*. at ¶ 194.

[^122]: In FCC Auction No. 7, the Commission auctioned 1,019 900 MHz SMR
    licenses in 51 MTAs. The FCC granted most of the licenses on August
    12, 1996. *See Public Notice*, \"FCC Announces Grant of 900 MHz
    Specialized Mobile Radio MTA Licenses,\" 12 FCC Rcd 13055 (1996).

[^123]: *See* Implementation of Sections 309(j) and 337 of the
    Communications Act of 1934 as Amended; Promotion of Spectrum
    Efficient Technologies on Certain Part 90 Frequencies; Establishment
    of Public Service Radio Pool in the Private Mobile Frequencies Below
    800 MHz; Petition for Rule Making of the American Mobile
    Telecommunications Association, Report and Order and Further Notice
    of Proposed Rule Making, WT Docket No. 99-87, RM-9332, RM-9405,
    RM-9705, 15 FCC Rcd 22709, 22760-22761 (1999) (*BBA R&O and FNPRM*).

[^124]: *Id*. at 22773-22774.

[^125]: *NPRM*, 17 FCC Rcd at 4918 ¶ 86.

[^126]: Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, Including Third
    Generation Wireless Systems, ET Docket No. 00-258, *Notice of
    Proposed Rulemaking and Order*, 16 FCC Rcd 596 (2001) (*AWS
    Notice*).

[^127]: Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, Including Third
    Generation Wireless Systems, ET Docket No. 00-258, ET Docket No.
    95-18, and IB Docket No. 99-81, *Memorandum Opinion and Order and
    Further Notice of Proposed Rule Making*, 16 FCC Rcd 16043 (2001)
    (*AWS Further Notice*).

[^128]: Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, Including Third
    Generation Wireless Systems, ET Docket No. 00-258, *First Report and
    Order and Memorandum Opinion and Order*, 16 FCC Rcd 17222 (2001)
    (*AWS First R&O and MO&O*).

[^129]: Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, Including Third
    Generation Wireless Systems, ET Docket No. 00-258, *Second Report
    and Order*, 17 FCC Rcd 23193 (2002) (*AWS Second R&O*).

[^130]: Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, including Third
    Generation Wireless Systems, ET Docket No. 00-258, IB Docket No.
    99-81, *Third Report and Order, Third Notice of Proposed Rulemaking
    and Second Memorandum Opinion and Order*, 18 FCC Rcd 2223 (2003)
    (*AWS* *Third R&O, Third NPRM, and Second MO&O*).

[^131]: *Id.* at 2238 ¶ 28. We note that there are pending petitions for
    reconsideration that request changes to decisions made in the *AWS
    Third R&O.* The thirty megahertz was reallocated as follows:
    fourteen megahertz of spectrum that was held in "reserve" from the 2
    GHz MSS licensees, and sixteen megahertz of spectrum that was
    "abandoned" as a result of 2GHz MSS licensees not meeting initial
    milestones. *Id.* at 2239 ¶ 32.

[^132]: *See* Amendment of Section 2.106 of the Commission's Rules to
    Allocate Spectrum at 2 GHz for use by the Mobile Satellite Service,
    ET Docket No. 95-18, *Third Report and Order and Third Memorandum
    Opinion and Order*, 18 FCC Rcd 23638 (2003) (*MSS Third R&O*).

[^133]: *See* 47 C.F.R. § 2.106.

[^134]: *See* 47 C.F.R. Part 15 -- Radio Frequency Devices. Subpart D of
    Part 15 is titled "Unlicensed Personal Communications Service
    Devices."

[^135]: Asynchronous devices are defined as those "that transmit RF
    energy at irregular time intervals, as typified by local area
    network data systems," and isochronous devices are defined as those
    "that transmit at a regular interval, typified by time-division
    voice systems." *See* 47 C.F.R. § 15.303(a)-(d). To minimize the
    potential of systems in each band interfering with other systems
    operating in the same band, the Commission adopted rules requiring
    UPCS devices to monitor the spectrum prior to transmitting. Specific
    requirements for the operation of asynchronous devices in the
    1910-1920 MHz band are codified at 47 C.F.R. § 15.321 and specific
    requirements for the operation of isochronous devices in the
    1920-1930 MHz band are codified at 47 C.F.R. § 15.323.

[^136]: *See* Amendment of the Commission's Rules to Establish New
    Personal Communications Services, GEN Docket No. 90-314, *Fourth
    Memorandum Opinion and Order*, 10 FCC Rcd 7955 (1995). UTAM is the
    Commission's frequency coordinator for UPCS devices in the 1910-1930
    MHz band. The UPCS band relocation policies are codified at 47
    C.F.R. §§ 101.69-101.81.

[^137]: *AWS Third NPRM*, 18 FCC Rcd 2223 ¶ 40.

[^138]: *Id.* at ¶ 46.

[^139]: In 1994, the Commission anticipated that the 1910-1920 MHz band
    would be used for data applications such as high-speed,
    high-capacity LANs. *See* Amendment of the Commission's Rules to
    Establish New Personal Communications Services, GEN Docket No.
    90-314, *Second Report and Order*, 8 FCC Rcd 7700 (1993).

[^140]: For example, the redesignation of five megahertz of the twenty
    megahertz band would entitle UTAM to twenty-five percent of its
    total.

[^141]: In its petition for waiver, Lucent requests that it be allowed
    to use the 1910-1920 MHz band for its Definity PBX voice system
    within the confines of Cook County, Illinois. Also, UTStarcom & Drew
    University request permission to use the 1910-1920 MHz band to
    install the UTStarcom Personal Access System (PAS) on the campus of
    Drew University in Madison, New Jersey, in order to provide wireless
    telephone service to the students and staff, as an extension of the
    university's wired telephone system. In addition, Ascom requests
    that it be allowed to use the 1910-1920 MHz band for its Freeset DCT
    1900 PBX voice system within the confines of Cook County, Illinois;
    New York City; and San Francisco County, California, because several
    of its customers, which are boards of trade or stock exchange
    entities, need high-capacity indoor wireless communications.
    Finally, Alaska Power requests a waiver of Part 15 asynchronous
    spectrum etiquette to operate a community wireless voice system over
    the 1910-1920 MHz (data) band, in order to serve small rural areas
    in Alaska that are currently unserved or underserved by wireless
    service providers.

[^142]: In its petition for rulemaking, WINForum asks the Commission to
    allow isochronous UPCS devices to use the 1910‑1920 MHz band and to
    phase out asynchronous use in this band, thereby providing twenty
    megahertz of spectrum (1910‑1930 MHz) for isochronous devices, and
    also to modify certain technical requirements for UPCS devices in
    Part 15.

[^143]: In its rulemaking petition, UTStarcom requests that the
    1910-1920 MHz band be made available for licensing via competitive
    bidding to permit the establishment of community wireless network
    service, using the UTStarcom PAS which is based on Japan's RCR-28
    Personal Handy Phone System (PHS) standard.

[^144]: *AWS Further Notice*, 16 FCC Rcd 16043 ¶ 9.

[^145]: A TVPU station is a land mobile station used for the
    transmission of TV program material and related communications from
    scenes of events back to the TV station or studio. *See* 47 C.F.R. §
    74.601(a) (listing classes of TV broadcast auxiliary stations). The
    band is also used by fixed BAS operations such as studio-transmitter
    link (STL) stations, TV relay stations, and TV translator relay
    stations, but the majority of those operations are in higher
    frequency bands allocated to the BAS. *See* 47 C.F.R. §74.601(b).
    *See generally* 47 C.F.R. §74.600 ("Eligibility for license"). In
    addition, BAS spectrum in the 2 GHz band is authorized for use by
    the Cable Television Relay Service (CARS) and the Local Television
    Transmission Service (LTTS). *See* 47 C.F.R. §§ 74.602, 78.18(a)(6)
    and 101.801. We will refer to these services collectively as "BAS,"
    and all decisions apply to CARS and LTTS operations in the band, as
    well as to BAS.

[^146]: The original 2 GHz BAS channel plan, which is still in use, is
    as follows: Channel 1 (1990-2008 MHz), Channel 2 (2008-2025 MHz),
    Channel 3 (2025-2042 MHz), Channel 4 (2042-2059 MHz), Channel 5
    (2059-2076 MHz), Channel 6 (2076-2093 MHz), and Channel 7 (2093-2110
    MHz).

[^147]: *See* Amendment of Section 2.106 of the Commission's Rules to
    Allocate Spectrum at 2 GHz for use by the Mobile-Satellite Service,
    ET Docket No. 95-18, *Second Report and Order and Second Memorandum
    Opinion and Order*, 15 FCC Rcd 12315 (2000) (*MSS Second R&O*).

[^148]: The Phase I channel plan---an interim channel plan using 102
    megahertz of spectrum at 2008-2110 MHz during the
    transition---consisted of seven channels (six 14.5-megahertz wide
    channels and one 15-megahertz wide channel). The Phase II channel
    plan consisted of seven channels (six 12.1-megahertz wide channels
    and one 12.4-megahertz wide channel) within the final 85 megahertz
    of spectrum at 2025-2110 MHz.

[^149]: *MSS Second R&O*, 15 FCC Rcd at 12323 ¶ 19.

[^150]: *Id.* at 12326-27 ¶¶ 29-32.

[^151]: *MSS Third R&O*, 18 FCC Rcd 23638. In the *MSS Third R&O,* the
    Commission also modified the plan for relocating incumbent FS
    microwave licensees in the 2180-2200 MHz band to specify appropriate
    interference standards and relocation guidelines that new fixed and
    mobile licensees should use when entering the band. Any 2 GHz MSS
    system that can share spectrum with BAS and/or FS incumbents is
    exempt from relocation obligations in the band it can share. *Id.*
    at 23669-70 ¶¶ 62-63, 23671 ¶ 68.

[^152]: The new BAS channel plan consists of seven twelve-megahertz
    channels and two 500-kilohertz data return link (DRL) channels.
    *Id.* at 23666 ¶ 55.

[^153]: Specifically, the fifteen megahertz of spectrum was reallocated
    from MSS in the 1990-2025 MHz band to support new fixed and mobile
    services---ten megahertz occupy the lower end (1990-2000 MHz) of the
    band and five megahertz are situated at the upper end (2020-2025
    MHz). *See AWS Third R&O, Third NPRM, and Second MO&O*, 18 FCC Rcd
    2223 ¶ 15.

[^154]: *MSS Third R&O*, 18 FCC Rcd at 23653-61 ¶¶ 29-44. The Commission
    noted that, although some time will be required to establish service
    rules and license new fixed and mobile entrants before they can
    secure entry into the band, the entry of these new AWS licensees may
    occur relatively quickly. Thus, the Commission expected the band to
    be used more fully and more quickly by the combination of the
    remaining MSS licensees and new AWS licensees than was anticipated
    in the *MSS Second R&O*, when the band was to be exclusively used by
    MSS licensees whose systems were expected to be deployed and to grow
    consistent with then distant milestones.

[^155]: The Commission determined that the initiation of the Phase I
    relocation and a subsequent quick transition to Phase II would
    undercut the principal rationale for a two-phase transition---that
    the potential to leave substantial amounts of spectrum unused for a
    long period of time would result in inefficient use of valuable 2
    GHz spectrum. *See MSS Second R&O,* 15 FCC Rcd at 12327 ¶ 34
    (stating that a phased approach will "assur\[e\] efficient use of
    the spectrum"). In addition, the Commission reasoned that, if Phase
    II of the transition was initiated during the time in which Phase I
    relocations are taking place, BAS operations could be on three
    different band plans, and some BAS licensees would face the
    disruption and down time associated with being twice relocated in a
    short period of time. *See MSS Third R&O,* 18 FCC Rcd at 23655 ¶ 33.

[^156]: *MSS Second R&O,* 15 FCC Rcd at 12328-31 ¶¶ 38-49. *See
    generally,* 47 C.F.R. § 101.73 (good faith negotiation requirement).

[^157]: For purposes of the relocation plan, BAS markets consist of
    Nielsen Designated Market Areas (DMAs) as they existed on June 27,
    2000. *MSS Second R&O*, 15 FCC Rcd at 12331 ¶ 42.

[^158]: *MSS Second R&O,* 15 FCC Rcd at 12331 ¶ 48. *See generally,* 47
    C.F.R. § 101.75. Under involuntary relocation, the new MSS entrant
    may, at its own expense, make necessary modifications to or replace
    the incumbent licensee's BAS equipment such that the BAS licensee
    receives comparable performance from the modifications or replaced
    equipment. The current mandatory negotiation periods adopted in the
    *MSS Third R&O* are as follows: MSS licensees and BAS incumbents in
    markets 1-30 and all BAS fixed stations, regardless of market size,
    begin a mandatory negotiation period that lasts for one year from
    December 8, 2003. *MSS Third R&O*, 18 FCC Rcd at 23659-60 ¶ 42. The
    Commission also provided for a sunset date, December 8, 2013, after
    which a new licensee's obligation to relocate an incumbent BAS
    operator in the 1990-2025 MHz band will end. At that time, BAS
    operations in the band (if any remain) will operate on a secondary
    basis. *See MSS Third R&O*, 18 FCC Rcd 23661-62 ¶¶ 45-47.

[^159]: *MSS Third R&O,* 18 FCC Rcd at 23657 ¶ 38.

[^160]: *See* ¶¶ 264-276 *infra.* We note that there is an additional
    pending petition for clarification and reconsideration of FS
    relocation decisions made in the *MSS Third R&O* filed jointly by
    the American Petroleum Institute and UTC, but we will address the FS
    issues raised in this petition at a later date.

[^161]: *AWS* *Third NPRM*, 18 FCC Rcd 2223 ¶ 48.

[^162]: *Id.* at ¶¶ 48-49.

[^163]: *See* n. Error: Reference source not found *supra.*

[^164]: *See generally* White Paper.

[^165]: *Id.* at 7-8.

[^166]: *Id.* at 25.

[^167]: *Id.* at 8.

[^168]: *Id*. at 41 n. 54.

[^169]: *Id*. at 28-30.

[^170]: *Id.* at 8.

[^171]: *See* Letter, dated Dec. 21, 2001, from Jerry Jasinowski,
    President National Association of Manufacturers and Clyde Morrow,
    Sr., President, MRFAC, Inc. to Michael Powell, Chairman, Federal
    Communications Commission (NAM/MRFAC Proposal).

[^172]: Two additional reply comments were filed on June 5, 2002.

[^173]: *See* ITA Reply Comments filed Aug. 7, 2002 (Consensus Party
    Reply Comments). Although ITA filed the comments, the comments
    represented the views of the Consensus Parties. *Id.* at iii.

[^174]: *See* Wireless Telecommunications Bureau Seeks Comment on
    "Consensus Plan" filed in the 800 MHz Public Safety Interference
    Proceeding, WT Docket 02-55, *Public Notice*, 17 FCC Rcd 16755
    (2002) (*September 6^th^ Public Notice*). Following the *September
    6^th^ Public Notice*, interested parties inquired whether comments
    could also be filed on the other band plans or proposals advanced in
    reply comments. On September 17, 2002, the Bureau released a *Public
    Notice* clarifying that all such comments were welcomed in the
    interest of developing a complete record. *See* Wireless
    Telecommunications Bureau Clarifies Scope of Comments Sought in 800
    MHz Public Safety Proceeding, WT Docket 02-55, *Public Notice*, 17
    FCC Rcd 17226 (2002) (*September 17^th^ Public Notice*).

[^175]: *See* Supplemental Comments of the Consensus Parties, *ex parte*
    filing dated Dec. 24, 2002 (Supplemental Comments of the Consensus
    Parties).

[^176]: *Id.* at 39-44.

[^177]: *Id.* at 35-39.

[^178]: *See* Wireless Telecommunications Bureau Seeks Comment on
    "Consensus Plan" filed in the 800 MHz Public Safety Interference
    Proceeding, WT Docket 02-55, *Public Notice*, 18 FCC Rcd 30 (2003)
    (*January 3rd Public Notice*) (comments and reply comments were due
    February 3, 2003, and February 18, 2003, respectively).

[^179]: 47 C.F.R. § 1.1200 *et. seq.*

[^180]: *See, e.g.,* Letter, dated Apr. 18, 2003, from Edmond J. Thomas,
    Chief, Office of Engineering and Technology, Federal Communications
    Commission, to Steve Sharkey, Director, Spectrum and Standards
    Strategy, Motorola, Inc.

[^181]: *See* Letter, dated May 6, 2003, from Steve B. Sharkey,
    Director, Spectrum and Standards Strategy, Motorola, Inc. to Marlene
    H. Dortch, Secretary, Federal Communications Commission (Motorola
    May 6 *Ex Parte).*

[^182]: *See* Letter, dated May 29, 2003, from Jill Lyon, Vice President
    and General Counsel, UTC to Marlene H. Dortch, Secretary, Federal
    Communications Commission (800 MHz Users Coalition May 29, 2003 *Ex
    Parte)*.

[^183]: *See* Anne Arundel *ex parte* letter dated July 29, 2003; *see
    also* Letter, dated May 21, 2003, from James R. Hobson, Esq.,
    Counsel for Anne Arundel County to Marlene H. Dortch, Secretary,
    Federal Communications Commission (describing frequency exchange
    discussions between the County and Nextel) (Anne Arundel *ex parte*
    letter dated May 21, 2003).

[^184]: *See* ¶¶ 90-91 *infra.*

[^185]: *See* Ex Parte Submission of the Consensus Parties, *ex parte*
    filing dated August 7, 2003 (Consensus Parties August 7 *Ex Parte*).

[^186]: *See* "Determination of the Fair Market Value of the Certain
    Portions of FCC Licensed Wireless Spectrum Proposed For Realignment
    by Nextel Communications, Inc. under FCC WT Docket No. 02-55 as of
    December 31, 2002," by Kane Reece Associates, Inc., attached to
    Letter, dated Oct. 27, 2003, from John T. Scott, III, Esq., Vice
    President and Deputy General Counsel, Verizon Wireless to Marlene H.
    Dortch, Secretary, Federal Communications Commission (Kane Reece
    Study). *See also* Letter, dated May 27, 2004, from John T. Scott,
    III, Vice President and Deputy General Counsel, to Marlene H.
    Dortch, Secretary, Federal Communications Commission (arguing that
    contiguous spectrum is more valuable than non-contiguous spectrum).

[^187]: The Industry Canada comments were dated March 26, 2003. Industry
    Canada did not include an identifying docket number when it filed
    the document with the Commission's Secretary. Consequently, the
    filing was not associated with the docket file until October 29,
    2003, when a Wireless Telecommunications Bureau attorney discovered
    a copy of the comments and directed that they be entered them into
    the record as an *ex parte* filing. *See* 47 C.F.R. § 1.1200 *et.
    seq.*

[^188]: *See* Letter, dated November 3, 2003, from Steve B. Sharkey,
    Director, Spectrum and Standards Strategy, Motorola, Inc. and Dr.
    Robert Kubik, Manager, Spectrum and Standards Policy, Motorola, Inc.
    to Edmond Thomas, Chief, Office of Engineering and Technology,
    Federal Communications Commission and John Muleta, Esq., Chief,
    Wireless Telecommunications Bureau, Federal Communications
    Commission (Motorola November 3 *Ex Parte).*

[^189]: *See* Letter, dated November 3, 2003, from Alan S. Tilles, Esq.,
    Counsel to the City and County of Denver to John Muleta, Esq.,
    Chief, Wireless Telecommunications Bureau, Federal Communications
    Commission. Because this filing contains a Statement of Work the
    parties refer to it as the Denver SOW.

[^190]: *See* Letter, dated November 20, 2003, from Lawrence R. Krevor,
    Esq., Vice President-Government Affairs, Nextel to Marlene H.
    Dortch, Secretary, Federal Communications Commission. Attached to
    one letter is an economic study authored by Dr. Gregory L. Rosston
    (Nextel Rosston *Ex Parte).* Attached to the second letter is "The
    Consensus Plan: Promoting the Public Interest," by Sun Fire Group,
    LLC, in which the value of the 1.9 GHz spectrum was inferred from
    the prices of recent secondary market transactions, asserted to be
    comparable spectrum licenses (Sun Fire Study*).*

[^191]: *See* *ex parte* comments, dated December 24, 2003, from City
    and County of San Diego (San Diego *Ex Parte*). The "San Diego
    Solution" described negotiations between the County, City, Nextel,
    APCO, UTC and representatives of the 800 MHz Users' Coalition.

[^192]: *See id*. at Attachment 1 (Balanced Approach -- San Diego City
    and County Revision).

[^193]: *See* Kane Reece Analysis of Sunfire Study, dated February 9,
    2004, attached to Letter, dated February 10, 2004, from John T.
    Scott III, Esq., Vice President and Deputy General Counsel --
    Regulatory Law, Verizon Wireless to Marlene Dortsch, Secretary,
    Federal Communications Commission (Kane Reece Study II).

[^194]: *See* Determination of the Fair Market Value of the Spectrum
    Proposed for Realignment by Nextel Communications, Inc., filed
    February 19, 2004.

[^195]: *See* Economic Analysis of the Kane Reece Spectrum Valuation by
    Dr. Gregory R. Rosston, dated March 18, 2004, attached to Letter,
    dated February 10, 2004, from Lawrence R. Krevor, Esq., Vice
    President-Government Affairs, Nextel to Marlene H. Dortch,
    Secretary, Federal Communications Commission. *See also* Analysis of
    the Kane Reece Spectrum Valuation by American Appraisal Associates,
    dated May 6, 2004 attached to Letter, dated May 6, 2004, from
    Lawrence R. Krevor, Esq., Vice President-Government Affairs, Nextel
    to Marlene H. Dortch, Secretary, Federal Communications Commission.
    *But see* Letter, dated April 8, 2004, from John T. Scott, III,
    Verizon Vice President and Deputy General Counsel to Marlene H.
    Dortch, Secretary, Federal Communications Commission (critique of
    Rosston Study); Letter, dated May 24 from Kane Reece Associates,
    Inc., to Donald C. Brittingham, Verizon, Director of Wireless
    Spectrum Policy attached to Letter, dated May 27, 2004, from John T.
    Scott, III, Verizon Vice President and Deputy General Counsel to
    Marlene H. Dortch, Secretary, Federal Communications Commission
    (critique of American Appraisal Associates analysis of Kane Reece
    Spectrum Valuation).

[^196]: Petition of Verizon Wireless for Expedited Action to License 1.9
    GHz Spectrum for Personal Communications Services through
    Competitive Bidding, filed March 31, 2004.

[^197]: *See* Letter, dated April 8, 2004, from Margaret P. Feldman,
    Vice President Business Development, Verizon Wireless to John B.
    Muleta, Chief, Wireless Telecommunications Bureau, Federal
    Communications Commission.

[^198]: *See* Letter, dated April, 14, 2004, from R. Michael Senkowski,
    to Marlene H. Dortch, Secretary, Federal Communications Commission.

[^199]: *See* Letter, dated April 22, 2004, from Robert S. Foosaner,
    Senior Vice President and Chief Regulatory Officer, Nextel to
    Marlene H. Dortch, Secretary, Federal Communications Commission.
    *See also* Letter, dated May 11, 2004, from Timothy M. Donahue,
    Chief Executive Officer and President, Nextel to Michael K. Powell,
    Chairman, Federal Communications Commission; Letter, dated May 14,
    2004, from Robert S. Foosaner, Senior Vice President and Chief
    Regulatory Officer, Nextel to Marlene H. Dortch, Secretary, Federal
    Communications Commission.

[^200]: *See* Letter, dated April 29, 2004, from Steve Largent,
    President and Chief Executive Officer, CTIA to Kevin J. Martin,
    Commissioner, Federal Communications Commission (CTIA April 29 *Ex
    Parte*).

[^201]: *See* Joint Proposed BAS Relocation Plan, dated May 3, 2004,
    from David Donovan, MSTV, Edward O. Fritts, President and CEO, NAB,
    and Roberts S. Foosaner, Senior Vice President and Chief Regulation
    Officer, Nextel. (MSTV/NAB/Nextel May 3, 2004 *Ex Parte*). *See
    also* Letter dated May 12, 2004, from Jack Goodman, Senior Vice
    President and Council, NAB to Marlene H. Dortch, Secretary, Federal
    Communications Commission (expressing support for Nextel/BAS
    relocation plan).

[^202]: *See* Letter, dated April 29, 2004, from Diane J. Cornell, Vice
    President, Regulatory Policy, CTIA to Marlene H. Dortch, Secretary,
    Federal Communications Commission. *See also* Letter, dated May 13,
    2004, from Diane J. Cornell, Vice President, Regulatory Policy, CTIA
    to Marlene H. Dortch, Secretary, Federal Communications Commission
    (arguing that CTIA compromise plan is superior than Consensus Plan).
    *See also* Letter, dated May 27, 2004, from Helgi Walker, Council to
    Verizon Wireless to Marlene H. Dortch, Secretary, Federal
    Communications Commission (concurring with CTIA proposal). *See
    also* Letter dated May 19, 2004 from Steve Largent, President and
    Chief Executive Office, CTIA, to Michael K. Powell, Chairman,
    Federal Communications Commission (responding to Nextel May 14
    letter).

[^203]: *See* Letter, dated June 4, 2004, from Robert S. Foosaner,
    Senior Vice President and Chief Regulatory Officer, Nextel to
    Marlene H. Dortch, Secretary, Federal Communications Commission
    (Nextel June 4, 2004 *Ex* *Parte*); Letter, dated June 21, 2004,
    from Regina Keeney, Counsel to Nextel to Marlene H. Dortch,
    Secretary, Federal Communications Commission (revising estimate to
    \$5.4 billion to reflect increased filter costs) (Nextel June 24,
    2004 *Ex Parte*). *See generally*, Letter dated June 14, 2004, from
    Vincent R. Stiles, APCO President, to Michael Powell, Chairman,
    Federal Communications Commission (supporting 4.5 MHz proposal).
    *But see* Letter, dated June 9, 2004, R. Michael Senkowski, Counsel
    to Verizon Wireless to Marlene H. Dortch, Secretary, Federal
    Communications Commission; Letter, dated June 16, 2004, R. Michael
    Senkowski, to Marlene H. Dortch, Secretary, Federal Communications
    Commission (criticizing 4.5 MHz proposal) (Nextel June 9, 2004 *Ex
    Parte*).

[^204]: *See* Letter, dated June 16, 2004, from Lawrence R. Krevor, Vice
    President-Government Affairs, Nextel to Marlene H. Dortch,
    Secretary, Federal Communications Commission. *See also* Letter,
    dated June 9, 2004, from Robert S. Foosaner, Senior Vice President
    and Chief Regulatory Officer, to Marlene H. Dortch, Secretary,
    Federal Communications Commission (describing technical details of
    4.5 MHz proposal).

[^205]: 31 U.S.C. § 1341.

[^206]: 31 U.S.C. § 3302. *See* Letter, dated June 28, 2004, from
    William Barr, Verizon to Michael Powell, Chairman, Federal
    Communications Commission; Letter dated June 30, 2004, from Walter
    Dellinger to Michael Powell, Chairman, Federal Communications
    Commission. *See also* Letter dated April 8, 2003, from Helgi C.
    Walker, Counsel to Verizon Wireless to Marlene H. Dortch, Secretary,
    Federal Communications Commission.

[^207]: *See* Letter, dated July 1, 2004, from Helgi Walker, Counsel to
    Verizon Wireless to Michael K. Powell, Chairman, Federal
    Communications Commission.

[^208]: *See* Letter, dated July 1, 2004, from Regina M. Keeney, Counsel
    to Nextel to Marlene H. Dortch, Secretary, Federal Communications
    Commission, accompanied by Letter, dated July 1, 2004, from Richard
    Thornburgh to Michael Powell, Chairman, Federal Communications
    Commission.

[^209]: *See* Letter, dated July 27, 2004, from Regina M. Keeney,
    Counsel to Nextel to Marlene H. Dortch, Secretary, Federal
    Communications Commission.

[^210]: 47 U.S.C § 151. *See also* 4.9 GHz Band Transferred from Federal
    Government Use, WT Docket No. 00-32, *Memorandum Opinion and Order
    and Third Report and Order*, 18 FCC Rcd 9152 (2003) (allocating
    spectrum for public safety in furtherance of Commission\'s Section 1
    obligation to promote safety of life and property); E911 Accuracy
    Standards Imposed on TIER III Carriers for Locating Wireless
    Subscribers Under Rule Section 20.18(H), WT Docket No. 02-377,
    Order, FCC 03-297, (2003) (denying a petition for forbearance from
    certain E911 requirements because of the strong connection between
    such requirements and the Commission\'s obligation to promote safety
    of life).

[^211]: The Auction Reform Act of 2002. *See* n. Error: Reference source
    not found *supra*

[^212]: 47 U.S.C. §§ 316, 303, 301, and 154(i).

[^213]: *See, e.g., Teledesic LLC v. Federal Communications Commission*,
    275 F.3d 75, 84 (D.C. Cir. 2001) ("\[W\]hen it is fostering
    innovative methods of exploiting the spectrum, the Commission
    'functions as a policymaker and, inevitably, a seer---roles in which
    it will be accorded the greatest deference by a reviewing court.'")
    (citation omitted).

[^214]: 47 U.S.C. § 316 (a)(1).

[^215]: *California Metro Mobile Communications v. FCC,* 365 F.3d 38, 45
    (D.C. Cir.2004) (*CMCC*). In *CMMC**,*** the court upheld the
    authority of the Commission to modify CMMC's license by deleting a
    frequency which had the potential to cause interference to an
    existing licensee. The Commission undertook the action to correct an
    error of a frequency coordinator, who recommended that the
    Commission grant CMMC a license after the coordinator had
    incorrectly determined that the requested frequencies would not
    cause interference to any existing licensee. Among other things, the
    court found that section 316 is not unambiguous and therefore
    deferred to the Commission's interpretation that "section 316
    contains no limitation on the time frame within which it may act to
    modify a license and that its action under the section is not
    subject to the limitations on revocation, modification or
    reconsideration imposed by \[s\]ection 405." 365 F.3d at 45
    (*citations omitted*)*.* The court also found that the Commission's
    modification served the public interest, even though the
    modification was based on potential rather than actual interference,
    and it caused a minor disruption in CMMC's operations. *Id*. at
    46*.*

[^216]: *Peoples Broadcasting Co. v. United States*, 209 F.2d 286, 288
    (D.C. Cir. 1953). In *People's Broadcasting*, the court upheld the
    Commission's authority to modify a television station license
    without an application by the licensee for such a modification,
    noting that "if modification of licenses were entirely dependent
    upon the wishes of existing licensees, a large part of the
    regulatory power of the Commission would be nullified."

[^217]: *Community Television, Inc. v. FCC*, 216 F.3d 1133, 1140 (D.C.
    Cir. 2000). In *Community Television*, the court upheld the FCC's
    rules establishing procedures and timetable under which television
    broadcasting would migrate from analog to digital technology.

[^218]: *See CMCC,* 365 F.3d 38, n. Error: Reference source not found
    *supra.*

[^219]: *Teledesic LLC v. Federal Communications Commission*, 275 F.3d
    at 86.

[^220]: *See Rainbow Broadcasting v. FCC*, 949 F.2d 405, 410 (D.C. Cir.
    1991)(*Rainbow Broadcasting*), in which the court held the
    Commission had the authority to allow noncommercial and commercial
    television licensees to exchange channels without exposing licensees
    to competing applications, despite third-party interest in acquiring
    swapped license. We disagree with commenters who assert that
    subsequent amendments in the Balanced Budget Act of 1997, which
    generally requires auctions whenever mutually exclusive applications
    for initial licenses are filed, change the applicability of these
    cases. *See* Attachment to Letter, dated April 2, 2004 from R.
    Michael Senkowski, Esq. to John Rogovin, General Counsel, Federal
    Communications Commission at 6. For the reasons we discuss at ¶ 73
    *infra,* we believe that Section 309(j), as amended by the Balanced
    Budget Act, is consistent with our conclusion that we have the
    authority to avoid mutual exclusivity in this context if it is in
    the public interest to do so.

[^221]: Establishing Rules and Policies for the Use of Spectrum for
    Mobile Satellite Services in the Upper and Lower L-Band, *Report and
    Order*, 17 FCC Rcd 2704 (2002) (*MSS Order*).

[^222]: *MSS Order,* 17 FCC Rcd at 2795 ¶ 1.

[^223]: *MSS Order,* 17 FCC Rcd at 2713-2714 ¶ 25.

[^224]: Amendment of the Commission's Rules to Relocate the Digital
    Electronic Message Service from the 18 GHz Band to the 24 GHz band
    and to Allocate the 24 GHz Band for Fixed Service, *Order*, 12 FCC
    Rcd 3471 (1997).

[^225]: *See* ¶ 61 *supra* and ¶¶ 213-216 *infra.*

[^226]: *See* ¶¶ 217-222 *infra.*

[^227]: *Ashbacker v. FCC*, 326 U.S. 327 (1945).

[^228]: 47 U.S.C. § 309(a). This provision authorizes the Commission,
    upon examination of an application for a station license, to grant
    it if the Commission determines that the public interest,
    convenience, and necessity would be served by the grant.

[^229]: 47 U.S.C. § 309(j)(1) provides "\[i\]f, consistent with the
    obligations described in paragraph (6)(e), mutually exclusive
    applications are accepted for any initial license or construction
    permit, then . . . the Commission shall grant the license or permit
    to a qualified applicant through a system of competitive bidding
    that meets the requirements of this subsection."

[^230]: *See Community Television, Inc. v. FCC,* 216 F.3d 1133, n.
    Error: Reference source not found *supra*.

[^231]: *Rainbow Broadcasting,* 949 F.2d at 409-410.

[^232]: *MSS Order* 17 FCC Rcd at 2175 ¶ 27. *See also* Amendment of the
    Commission's Rules to Relocate the Digital Electronic Message
    Service from the 18 GHz Band to the 24 GHz band and to Allocate the
    24 GHz Band for Fixed Service, *Memorandum Opinion and Order*, 13
    FCC Rcd 15147 at 15173 ¶ 59 (1998) ("Because its actions \[to
    relocate *DEMS* licensees to new spectrum\] were license
    modifications under authority of Section 316, and did not involve
    the grant of initial licenses, the Commission was not authorized
    under 309(j) of the Act to use auction procedures.").

[^233]: *See, e.g.,* U.S. Cellular Comments at 5; CTIA December 4, 2003
    *Ex Parte* at 8.

[^234]: CTIA December 4, 2003 *Ex Parte* at 8-9, *citing Implementation
    of Section 309(j) of the Communications Act---Competitive Bidding,*
    PP Docket No. 93-253, *Second Report and Order*, 9 FCC Rcd 2348,
    2355 ¶ 37 (1994).

[^235]: Verizon Wireless submitted a ULS application and a Form 175
    application for the 1910-1915 MHz/1990-1995 MHz band but these
    applications were dismissed on July 7, 2004. *See* Letter, dated
    July 7, 2004, from Kathryn Garland, Deputy Chief, Auctions and
    Spectrum Access Division, Wireless Telecommunications Bureau,
    Federal Communications Commission to John T. Scott, III, Cellco
    Partnership d/b/a Verizon Wireless; Letter, July 7, 2004, from
    Wireless Telecommunications Bureau to John T. Scott, III, Cellco
    Partnership d/b/a Verizon Wireless.

[^236]: Verizon Wireless White Paper at 9 (April 1, 2004) citation
    omitted

[^237]: Similarly, we disagree with parties who assert that under
    *Fresno Mobile Radio v. FCC,* 165 F.3d 965 (D.C. Cir. 1999), the
    grant of the 1.9 GHz spectrum must be considered an "initial
    license" subject to auction under Section 309(j). *See Verizon White
    Paper at 10-11 and CTIA Ex Parte* (December 4, 2003) at 8-9*.* In
    *Fresno*, a group of incumbent licensees challenged the
    Commission\'s decision to auction newly established geographic-area
    SMR licenses in the upper 200 channels of the SMR band, arguing
    that, to the extent the new licenses did not cover a new service,
    new territory or previously unused spectrum, the Commission should
    have treated the SMR authorizations as modifications of the
    incumbents\' existing licenses and not as auctionable \"initial
    licenses\" within the meaning of Section 309(j)(1). The court
    disagreed, upholding the Commission\'s determination that it could
    classify a new license as an \"initial\" one, even if the initial
    and preexisting licenses have such overlap, \"if it is the first
    awarded for a particular frequency under a new licensing scheme,
    that is, one involving a different set of rights and obligations for
    the licensee*.*" *Fresno*, 165 F.3d at 970. As explained above, we
    do not consider the authorizations that Nextel will hold as a result
    of the restructuring process to differ significantly enough---in
    terms of rights and responsibilities---from Nextel\'s existing
    authorizations so as to warrant treatment as the issuance of an
    initial license rather than as a modification of license. Moreover,
    even if we were to classify the 1.9 GHz authorization as a matter of
    initial licensing, we have not authorized the filing of mutually
    exclusive applications; none are, in fact, on file; and, as
    discussed in ¶ 73, *infra,* we have the authority---and
    obligation---to impose threshold qualifications that preclude the
    filing of such mutually exclusive applications if we determine that
    the public interest requires such an approach.

[^238]: 47 U.S.C. §309(j)(6)(E) *(emphasis added).* The legislative
    history of the Balanced Budget Act of 1997 also makes clear that
    Congress did not want the Commission to interpret its expanded
    auction authority in a way that would reduce its Section 309(j)(6)
    (E) obligation: "\[T\]he conferees emphasize that, notwithstanding
    its expanded auction authority, the Commission must still ensure
    that its determinations regarding mutual exclusivity are consistent
    with the Commission\'s obligations under section 309(j)(6)(E). The
    conferees are particularly concerned that the Commission might
    interpret its expanded competitive bidding authority in a manner
    that minimizes its obligations under section 309(j)(6)(E), thus
    overlooking engineering solutions, negotiations, or other tools that
    avoid mutual exclusivity.\" H.R. Conf. Rep. No. 105-217, 105th
    Cong., 1st Sess., at 572 (1997). *See also* Commission's Rules
    Regarding Multiple Address Systems, *Report and Order*, 15 FCC
    Rcd11956, 11962-63 (2000) ("Section 309 (j)(6) (E) has been
    construed to give the Commission broad authority to create or avoid
    mutual exclusivity in licensing, based on the Commission's
    assessment of the public interest," *citing DirectTV, Inc. v. FCC*,
    110 F.3d 816, 828 (D.C. Cir. 1997)). *Cf. Benkelman Telephone Co. v.
    FCC*, 220 F.3d 601, 605-606 (D.C. Cir. 2000) (Section 309(j)(6)(E)
    neither requires the Commission to avoid mutual exclusivity, nor to
    create it; the touchstone is what best serves the public interest).

[^239]: *See* 47 U.S.C. § 151 (listing as one of Act's central purposes
    "promoting safety of life and property through the use of wire and
    radio communication"). *See also* 47 U.S.C. §§ 303(c) (instructing
    the Commission to assign frequencies to individual stations as the
    public convenience, interest or necessity requires), 309(j)(6)(C)
    (providing 309(j) should not be construed to diminish the authority
    of the Commission to regulate or reclaim spectrum licenses);
    309(j)(7) (prohibiting Commission from basing the decision whether
    to auction spectrum on a desire for federal revenue); 309(j)(2)(A)
    (setting out auctions exemption for public safety radio service
    licenses, thus recognizing that auctions may not always serve the
    public interest in connection with public safety licensing), and
    309(j)(6)(G) (providing that Section 309(j) shall not be construed
    to prevent the Commission from awarding licenses to persons who make
    significant contributions to the development of new
    telecommunications services or technologies).

[^240]: The Supreme Court upheld the Commission's authority to limit
    eligibility to apply for a license where the Commission was able to
    demonstrate that doing so furthered the public interest. *See United
    States v. Storer Broadcasting Company*, 351 U.S. 192, 202 (1956).
    *See also* 47 U.S.C. § 309 (j)(3), which directs that "in specifying
    eligibility \[,\] . . . the Commission shall include safeguards to
    protect the public interest in the use of the spectrum and shall
    seek to promote the purposes specified in section 1 of this Act."

[^241]: Section 4(i) of the Act provides that "\[t\]he 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." 47 U.S.C § 154. Section 303(r)
    provides that "the Commission . . . as public convenience, interest,
    or necessity requires shall \[m\]ake such rules and regulations and
    prescribe such restrictions and conditions, not inconsistent with
    law, as may be necessary to carry out the provisions of this Act..."
    47 USC § 303 (r). *See United States v. Storer Broadcasting*, 351
    U.S. 192, 202 (1956) (finding that these provisions "grant general
    rulemaking power not inconsistent with the Act or law").

[^242]: *See* ¶ 179 *infra*.

[^243]: *Mtel v. FCC*, 77 F.3d 1399 (D.C. Cir. 1996).

[^244]: *Id.* at 1406.

[^245]: *Id.*

[^246]: *See* ¶ 299 *infra.*

[^247]: *See* ¶ 214 *infra*.

[^248]: *See* ¶¶ 236-238 *infra*.

[^249]: 47 USC § 309 (j)(3)(C). Since an auction of 1.9 GHz licenses is
    incompatible with the approach adopted herein for solving the 800
    MHz band interference problems that compromise the public safety, we
    have fashioned an alternative that is consistent with our
    competitive bidding authority and otherwise within our statutory
    authority.

[^250]: *See* Letter, dated June 28, 2004, from William Barr, Verizon to
    Michael Powell, Chairman, Federal Communications Commission (Verizon
    Wireless June 28 *Ex Parte)*; Letter dated June 29, 2004, from
    Walter Dellinger to Michael Powell, Chairman, Federal Communications
    Commission; Letter, dated July 1, 2004, from Richard Thornburgh to
    Michael Powell, Chairman, Federal Communications Commission.

[^251]: The Anti-Deficiency Act, 31 U.S.C. § 1341(a)(1)(B).

[^252]: The Miscellaneous Receipts Act, 31 U.S.C. § 3302(b).

[^253]: Section 641 of Title 18 concerns the embezzlement and theft of
    public money, property or records and imposes criminal liability on
    "whoever . . . without authority, sells, conveys, or disposes of
    anything of value of the United States or of any department or
    agency thereof." Our actions today are authorized and clearly do not
    implicate this provision.

[^254]: *See* Verizon Wireless June 28 *Ex Parte* at 6.

[^255]: *See* ¶¶ 151-158, *infra*.

[^256]: 31 U.S.C. § 1341(a)(1)(B).

[^257]: 21 Atty.Gen. Op. 248 (1895).

[^258]: Act of July 12, 1870,ch. 251, § 7, 16 Stat. 251.

[^259]: 31 U.S.C. § 3302(b).

[^260]: *See Scheduled Airlines Traffic Offices, Inc. v. Department of
    Defense*, 87 F.3d 1356, 1360 (1996).

[^261]: *See* ¶¶ 64-67 *supra.*

[^262]: Pub. L. No. 103-66, § 6002, 107 Stat. 312, 387-397.

[^263]: *See, e.g.,* Redevelopment of Spectrum to Encourage Innovation
    in the Use of New Telecommunications Technologies, *First Report and
    Order and Third Notice of Proposed* Rulemaking, 7 FCC Rcd. 6886
    (1993) (reallocating 220 MHz spectrum for emerging technologies);
    Amendment of Part 90 of the Commission's Rules to Create the
    Emergency Medical Radio Service, *Report and Order,* 71 Rad. Reg. 2d
    1305 (1993) (assigning frequencies to improve the communications
    capabilities of entities providing life support activities); Basic
    Exchange Telecommunications Radio Service *Report and Order,* 3 FCC
    Rcd 214 (1988) (establishing a rural radio service designed to make
    basic telephone service more accessible to household and
    businesses); and Educational Television, *Report and Order*, 39 FCC
    846 (1963) (establishing Instructional Television Fixed Service
    (ITFS) for the transmission of instructional material to schools).
    *See also* 303(g) ("\[T\]he Commission ... as public convenience,
    interest, or necessity requires shall ... \[s\]tudy new uses for
    radio, provide for experimental uses of frequencies, and generally
    encourage the larger and more effective uses of radio in the public
    interest.")

[^264]: *See* 47 U.S.C. 309(j)(7).

[^265]: *See* 47 U.S.C. 309(j)(3).

[^266]: *To the Sec'y, Smithsonian Inst.,* 42 Comp. Gen. 650 (1963),
    *overruled*, 51 Comp. Gen. 506 (1972).

[^267]: *Id.* at 652-653 (*citations omitted).*

[^268]: *Id.* at 653.

[^269]: *See* 31 U.S.C. 1341.

[^270]: *See PLC Construction Services, Inc. v. United States* 96 Fed.
    Appx. 672 (April 7, 2004) (U.S. Bureau of Reclamation did not
    violate ADA even though contract obligated Bureau to pay more than
    \$33 million for construction project before Congress appropriated
    the funds because Bureau was separately authorized to enter into
    contracts under other provisions providing for the reclamation and
    irrigation of lands by the federal government); *cf. Association of
    Civilian Technicians v. Federal Labor Relations Authority*, 269 F.3d
    1112 (D.C. Cir. 2001) (court vacated finding by Federal Labor
    Relations Authority that collective bargaining agreement that would
    reimburse employees for out-of-pocket losses resulting from agency
    cancellation of previously approved leave would violate the
    Anti-Deficiency Act and remanded the decision for the Authority to
    consider whether the disputed provisions are "authorized by the
    collective bargaining law").

[^271]: *Cf. Brazos v. U.S.*, 49 Fed. Cl. 398, 411 (Fed. Cl. 2001)
    (pre-existing contracts -- not the MRA -- govern whether the Rural
    Utilities Service (RUS) should assess a \$16.5 million penalty
    against an electric utility for prepayment of a promissory note; the
    MRA merely required the RUS to deposit prepayment funds with
    Treasury once they were received).

[^272]: Motorola described its *Technical Toolbox* in a series of *ex
    parte* letters to the Commission. *See*, *e.g.*, Motorola May 6 *Ex
    Parte*, Letter, dated May 30, 2003, from Mary E. Brooner, Motorola,
    to Marlene H. Dortch, Federal Communications Commission, WT Docket
    No. 02-55 (attaching May 29, 2003 presentation to the Office of
    Engineering and Technology) (Motorola May 30 *Ex Parte*); Letter,
    dated June 20, 2003, from Steve B. Sharkey, Director, Spectrum and
    Standards Strategy, Motorola, Inc. to James D. Schlichting, Esq.,
    Federal Communications Commission, WT Docket No. 02-55 (Motorola
    June 20 *Ex Parte*).

[^273]: Collectively, Enhanced Best Practices. *See ¶* 16 *supra.*

[^274]: Various parties have divided OOBE into more specific categories
    such as adjacent channel interference, sideband noise, and phase
    noise. *See*, *e.g.,* Cingular Comments at 7; Ameren Reply Comments
    at 4. Except where the context requires otherwise, we will subsume
    all of these categories under OOBE. Some interference encountered by
    public safety mobiles or portables is caused by what commenting
    parties have variously characterized as receiver "overload,"
    "desensing," or gain compression. Motorola defines both overload and
    desensing as, "\[a\]n informal term often used to describe a
    scenario where a receiver is functioning other than expected,
    presumably due to excessive signal power at the receiver RF input
    port." Motorola July 18 *Ex Parte* at 3. Gain compression occurs
    when a nearby undesired signal or signals are so exceptionally
    strong that they exceed the amplification capability of the first
    active devices in the radio receiver, such that the gain of these
    active devices begins to decrease with increasing levels of
    undesired signal(s). It is often defined by the 1 dB compression
    point---the point at which undesired strong signals reduce the gain
    of an active device by 1 dB. In some instances of these modes of
    interference, other circuits in the radio are implicated, such as
    automatic gain control (AGC) circuits.

[^275]: *See, e.g.,* New York State Comments at 7, 9 (adjacent channel
    interference is primary cause); Fort Lauderdale Comments at 5
    (signal overload is the primary problem); Motorola Comments at 18
    (5^th^ order intermodulation interference is the most common type of
    interference).

[^276]: Recently, Motorola recommended a measurement technique that
    allows a more refined analysis of the source of interference.
    However, even with use of this technique, Motorola's own field tests
    showed that it was not always possible to characterize interference.
    *See* Motorola June 20 *Ex Parte* at 8.

[^277]: Intermodulation products are categorized according to "order"
    and can result from the interaction of two or more frequencies.
    Thus, in the case of two-frequency (F1 and F2), third-order,
    intermodulation, the intermodulation products (P) within the 800 MHz
    band are calculated by: P~intermod.~ = 2\*F1­F2 and P~intermod.~ =
    2\*F2 - F1. The fifth order, two frequency intermodulation products
    within the 800 MHz band are calculated by: P~intermod.\ =~ 3\*F1 -
    2\*F2 and P~intermod.~ = 3\*F2 - 2 \*F1. Intermodulation products
    can also be generated by interaction of three or more transmitters,
    for example, some third-order, three frequency (F1, F2 and F3)
    intermodulation products falling in the 800 MHz band can be
    calculated by P~intermod.~ = F1+F2 - F3 and  P~intermod.~ =
    F2-F1+F3. In general, within the 800 MHz band, fifth order and
    higher intermodulation products are less significant than
    third-order products. The greater the number of frequencies
    involved, the greater the number of intermodulation products
    generated.

[^278]: *See* Nextel Comments at 19.

[^279]: *Id*. The first stage of a receiver is usually an amplifier.
    *See also Best Practices Guide* at 9.

[^280]: *See* Nextel Comments at 19.

[^281]: *See* Island SMR Comments, Exhibit A at 10. However, receiver
    components are not the only source of intermodulation products. A
    junction of dissimilar metals, when presented with strong signals,
    can generate intermodulation products. For example, some parties
    have identified corroded bolts on base station towers as a source of
    intermodulation products. If a base station combiner allows signals
    from the final amplifier of one transmitter to enter the final
    amplifier of another transmitter, the two signals can mix, due to
    non-linearities in the final amplifiers, and the resultant
    intermodulation product is radiated from the cell antenna. *See ex
    parte* communication, dated May 27, 2003, from RACOM, Inc. and I.E.
    Communications to Michael J. Wilhelm, Esq., Federal Communications
    Commission. It also has been suggested that ferrite used in base
    station isolators has nonlinear properties that support generation
    of intermodulation products. *See, e.g.,* Motorola June 20 *Ex
    Parte* at 1.

[^282]: *See* 47 C.F.R. § 90.621(b).

[^283]: *See* 47 C.F.R. § 90.187(b)(2)(iii).

[^284]: The "noise floor" is the cumulative value of noise generated
    internally in the receiver and environmental noise, such as that
    created by automobile ignition systems, high voltage electrical
    transmission lines and a host of other "incidental radiators." *See*
    47 C.F.R. § 15.3.

[^285]: Some commenting parties suggested the Commission adopt a "zero
    tolerance" policy whereby any radio system interfering with a public
    safety signal in the 800 MHz band would immediately have to cease
    operation until interference-free operation of the public safety
    system was assured. *See* City of New York Comments at 5; IACP
    Comments at 4; City of New York Comments to Supplemental Comments of
    the Consensus Parties at 8.

[^286]: *See, e.g.,* 47 C.F.R. § 73.699, Figures 9, 10 and 10b.

[^287]: Consensus Parties Aug. 7 *Ex Parte* at 45-50 and Appendix F at
    2, § 1.2.

[^288]: *Id.* Appendix F at 3, § 2.1.1.

[^289]: *Id.* Appendix F at 8, § 4.1.1a.

[^290]: "Carrier" in the sense used here, equates with "desired signal;"
    *i.e.* the signal from the public safety, CII or other non-cellular
    base station.

[^291]: Consensus Parties Aug. 7 *Ex Parte* Appendix F at 2, § 1.2.1.

[^292]: *Id.* Appendix F at 2, § 1.2.2.

[^293]: The median received power level for interference protection in
    the Guard Band at 816-817/861-862 MHz that Nextel later proposed to
    be designated for non-ESMR operations increases as a function of
    frequency. *See* ¶¶ 157-158 & Figure 1 *infra*.

[^294]: Consensus Parties Aug. 7 *Ex Parte* Appendix F at 3, § 2.1.1a.
    This level is the power in decibels above one-milliwatt at the R.F.
    input terminals of a receiver. The Consensus Parties originally
    proposed a measured desired signal power of -98 dBm, but lowered
    these values in response to parties who expressed concern that this
    level was too stringent and that the resultant area of interference
    free operation would be smaller than the area in which many public
    safety systems expect reliable coverage. *See* Comments of Motorola
    to Supplemental Comments of the Consensus Parties at 11; Comments of
    NY OIT to Supplemental Comments of the Consensus Parties at 12-14;
    Comments of San Diego to Supplemental Comments of the Consensus
    Parties at 7; Comments of Xcel to Supplemental Comments of the
    Consensus Parties at 6-7; Comments of Con-Ed to Supplemental
    Comments of the Consensus Parties at 6; Comments of Entergy Reply to
    Supplemental Comments of the Consensus Parties at 7-8; Reply
    Comments of NY OIT to Supplemental Comments of the Consensus Parties
    at 9-10; Reply Comments of San Diego to Supplemental Comments of the
    Consensus Parties at 7-8; Reply Comments of Xcel to Supplemental
    Comments of the Consensus Parties at 5-6.

[^295]: *Id.*

[^296]: *Id.,* Appendix F at 9-10, § 5.0. The Consensus Parties made
    this amendment in response to one commenting party which argued that
    the Commission should not set a minimum received power level for
    interference protection unless and until an agreed-upon procedure
    for measuring the power level had been established. *See* Comments
    of New York OIT to Supplemental Comments of the Consensus Parties at
    13; Reply Comments of NY OIT to Supplemental Comments of the
    Consensus Parties at 10-11.

[^297]: *See* Consensus Parties Aug 7 *Ex Parte*, Appendix F at 8, §
    4.1.1. Class A receivers are those intended for an urban
    environment; Class B receivers are suitable only for rural
    environments.

[^298]: *Id.* Appendix F at 8, § 4.1.1b. The amount of the increase
    above the levels described above would be determined by the amount
    of desired signal power necessary to restore the receiver in
    question to the same C/(I+N) ratio as a Class A receiver in the same
    environment. We note that Motorola has reported that approximately
    93 percent of its recent portable receiver inventory meets Class A
    standards. *See* Motorola November 3 *Ex Parte* at 5, Table 3.
    Motorola further reported that eighty-five percent of their 2003
    year-to-date shipments of mobile radios met Class A standards. *Id.*
    The most significant difference between the two classes of receivers
    lies in their intermodulation rejection performance. Class A
    portable receivers must have at least a 70 dB intermodulation
    rejection ratio (Class A mobiles must achieve at least 75 dB of
    intermodulation rejections); Class B portable receivers must have at
    least a 50 dB intermodulation rejection ratio (Class B mobile
    receivers must have at least a 70 dB intermodulation rejection
    ratio). *See* TIA/EIA -603-A, August 2001 at 124. *See also* TIA/EIA
    TSB102.CAAB, August 1994, at 6 and 7. TIA is an American National
    Standard Institute-accredited standards development organization and
    provides technical expertise to the telecommunications industry in a
    wide range of areas, including system performance, interference
    abatement, compatibility and interoperability. *See
    http://www.tiaonline.org/about/overview.cfm.*

[^299]: *See* Comments of Alliant to Supplemental Comments of the
    Consensus Parties at 1; Comments of Ameren to Supplemental Comments
    of the Consensus Parties at 14.

[^300]: *See* Ameren Reply Comments at 4; UTC Reply Comments at 19;
    Comments of Preferred to Consensus Parties Reply Comments at 11;
    Comments of UTC to Supplemental Comments of the Consensus Parties at
    15.

[^301]: *See* ¶¶ 157-158 and Figure 1 *infra*.

[^302]: *See* ¶ 105-107 *infra*.

[^303]: This stems from the questions raised in the *NPRM* seeking
    comment on whether to abate interference by requiring increased
    public safety signals or by reducing CMRS signals. *See NPRM,* 17
    FCC Rcd at 4914 ¶¶ 76-77.

[^304]: *See* ¶ 108, *infra*. *See also* Consensus Parties Aug. 7 *Ex
    Parte* at 48. The TIA TR-8 subcommittee is responsible for mobile
    and personal private radio standards. *See*
    http://www.tiaonline.org.

[^305]: *See* Consensus Parties Aug. 7 *Ex Parte* at Attachment 1.

[^306]: *See* Motient Comments at 4; Cascade Radio Comments at 2;
    Supreme Radio Comments at 7; Florida Comments at 8; Comments of
    Border Area Coalition to Supplemental Comments of the Consensus
    Parties at 12, 18; Comments of Pinnacle to Supplemental Comments of
    the Consensus Parties at 9; Comments of UTC to Supplemental Comments
    of the Consensus Parties at 15; Reply Comments of San Diego to
    Supplemental Comments of the Consensus Parties at 7.

[^307]: Alliant Energy Comments at 1; UTC Comments at 19; Entergy Reply
    Comments at 2; Pinnacle Reply Comments at 3-4.

[^308]: With regard to antenna designs, we note that the Commission's
    Spectrum Policy Task Force (SPTF) recommended that we consider
    "\[p\]romoting the use of advanced antenna technology and system
    design techniques that would enhance the uniformity of transmitted
    signal strength levels through a service area." *See* SPTF Report,
    ET Docket No. 02-135, November 2002, at 32.

[^309]: Consensus Parties Aug. 7 *Ex Parte,* Appendix F at 9 § 4.1.2.

[^310]: *See* Reply Comments of Rural Cellular to Supplemental Comments
    of the Consensus Parties at 2.

[^311]: Note that the signal powers are specified in decibels below one
    milliwatt and thus are negative numbers. Therefore, for example, a
    --90 dBm signal is stronger than a --100 dBm signal. For our
    discussion of 816-816.35 MHz/861-861.35 MHz band segment, see ¶¶
    157-158 *infra.*

[^312]: "Project 25" was an APCO initiative that resulted in a digital
    standard which was substantially incorporated into the ANSI/TIA/EIA
    102 suite of standards. The TIA standard has been adopted as the
    mandatory standard for public safety radios operating on narrowband
    interoperability voice and data channels in the 700 MHz public
    safety band.

[^313]: *See* TIA/EIA-102.CAAB, November 2002, § 3.1.14. Manufacturers'
    sensitivity specifications indicate that many Class B receivers meet
    this limit. The average radiation sensitivity of a receiver is the
    power received by a halfwave dipole measured into a 50 Ω load when
    substituted for a receiver that is receiving a signal at the
    reference sensitivity. *See* TIA-102.CAAA-A, November, 2002
    §2.1.14.1.

[^314]: *See* Comments of San Diego to Supplemental Comments of the
    Consensus Parties at 7; Comments of Con-Ed to Supplemental Comments
    of the Consensus Parties at 6-7; Reply Comments of N.Y. OIT to
    Supplemental Comments of the Consensus Parties at 10; Reply Comments
    of San Diego Reply to Supplemental Comments of the Consensus Parties
    at 7.

[^315]: *See* Comments of Palomar Comm. to Supplemental Comments of the
    Consensus Parties at 7-8; Comments of Consumers Energy to
    Supplemental Comments of the Consensus Parties at 18; Reply Comments
    of Xcel to Supplemental Comments of the Consensus Parties at 5; Peak
    Relay, February 6, 2004 *ex parte* filing.

[^316]: *See* TIA-102.CAAB-A September 2002, § 3.1.4. (minimum reference
    sensitivity ‑116 dBm) *See also* Typical Performance Specifications
    for Motorola Astro XTS 5000 transceiver.
    http://www.motorola.com/cgiss/docs/xts5000_service.pdf (reference
    sensitivity of 0.25 microvolts = -119 dBm).

[^317]: Although the Consensus Parties' filings are not clear on the
    subject, we assume the threshold to be used (-101 or -104 dBm) will
    be determined by the kind of radio that was in use when interference
    was encountered. Thus, if the interference complaint originated from
    a party using a hand-held portable radio, the -101 dBm criterion
    would apply. However, if the party encountering interference was
    using a mobile unit, the -104 dBm criterion would apply.

[^318]: *See* Consensus Parties Aug 7 *Ex Parte*, Appendix F at 2, §
    1.2.2.

[^319]: We note that manufacturers of non-voice equipment generally rely
    on bit error rate (BER) to specify acceptable system performance,
    rather than the C/(I+N) ratio used for voice systems. We therefore
    expect that most manufacturers will specify a BER for non-voice
    systems.

[^320]: *See* Consensus Parties Aug 7 *Ex Parte*, at Appendix F, §§
    5.0-5.8.

[^321]: Revision of Parts 2 and 15 of the Commission\'s Rules to Permit
    Unlicensed National Information Infrastructure (U-NII) devices in
    the 5 GHz band, FCC 03-287, ET Docket No. 03-122 ¶ 39 (released Nov.
    18, 2003).

[^322]: *See* Motorola Comments at 21; Motorola November 3 *Ex Parte* at
    4.

[^323]: As with most technical equipment, such radios' performance is
    bounded by cost and other considerations. For example, the
    intermodulation rejection ratio of a portable radio is directly tied
    to the amount of power that the radios' battery can supply. Thus,
    although a portable radio with an intermodulation rejection ratio
    better than that specified *supra* could be manufactured; it would
    either have a battery so heavy that it would not be practical to
    carry the radio on the person of a public safety official; or, if
    the battery were light enough to be carried, its amp-hour capacity
    would not be sufficient for the radio to operate through an entire
    eight-hour, or more, shift. *See* Motorola Comments at 20-21; Public
    Safety 800 MHz Interference, FCC Briefing September 19, 2002
    attached to Letter, dated September 20, 2002, from Steve B. Sharkey,
    Director, Spectrum and Standards Strategy, Motorola, Inc. to Marlene
    H. Dortch, Secretary, Federal Communications Commission at 13
    (Motorola September 20 *Ex Parte*).

[^324]: Supplemental Comments of the Consensus Parties, Appendix F at
    F-7-8, § 4.1.1.

[^325]: Based in part on an absence of evidence in the record suggesting
    there are issues regarding minimum receiver performance criteria for
    non-voice equipment, we find it unnecessary at this time to specify
    any such criteria.

[^326]: *See* CTIA Reply Comments at 9-10; Supplemental Comments of the
    Consensus Parties, Appendix F at F-7, Item 4.1; Comments of CTIA to
    Supplemental Comments of the Consensus Parties at 10; Comment of
    Motorola to Supplemental Comments of the Consensus Parties at 20-21.

[^327]: *See* TIA- TSB102.CAAA at 2.1.9.2 and TIA/EIA-603-A at 2.1.9.2.

[^328]: *See* Motorola November 3 *Ex Parte* at 4-5.

[^329]: We also note that, in some important respects, there is no
    difference between Class A and B receiver specifications. For
    example, the recommended delivered audio quality ("DAQ") for both is
    3.4, and that DAQ requires a ratio of C/(I+N) of approximately 20 dB
    for analog receivers and 17.7 dB for digital receivers. *See* Table
    A-1, Annex A of TSB-88A.

[^330]: *See* Supplemental Comments of the Consensus Parties, Appendix F
    at F-8, § 4.1.1b.

[^331]: *See* Motorola May 6 *Ex Parte.*

[^332]: *Id* at 5.

[^333]: *Id.*

[^334]: *Id.* at 7, Figure 1.

[^335]: *See* Letter, dated June 20, 2003, from Steve B. Sharkey,
    Director, Spectrum and Standards Strategy, Motorola, Inc. to James
    Schlichting, Deputy Chief, Office of Engineering and Technology,
    Federal Communications Commission at 7-8 (Motorola June 20 *Ex
    Parte*).

[^336]: *Id.*

[^337]: 47 U.S.C § 151. *See also* 4.9 GHz Band Transferred from Federal
    Government Use, WT Docket No. 00-32, *Memorandum Opinion and Order
    and Third Report and Order*, 18 FCC Rcd 9152 (2003) (allocating
    spectrum for public safety in furtherance of Commission\'s Section 1
    obligation to promote safety of life and property); E911 Accuracy
    Standards Imposed on TIER III Carriers for Locating Wireless
    Subscribers Under Rule Section 20.18(H), WT Docket No. 02-377,
    *Order*, FCC 03-297 (2003) (denying a petition for forbearance from
    certain E911 requirements because of the strong connection between
    such requirements and the Commission\'s obligation to promote safety
    of life).

[^338]: *See* ¶¶ 124-127 *infra*.

[^339]: "Best Practices" as used herein refers to the recommendations
    for voluntary interference abatement contained in the *Best
    Practices Guide*. *See* n. Error: Reference source not found
    *supra.*

[^340]: *See, e.g.,* Letter, dated May 29, 2003, from Jill Lyon, Esq.,
    Vice President and General Counsel, UTC to Marlene H. Dortch,
    Secretary, Federal Communications Commission.

[^341]: *See* ¶ 124 *infra.*

[^342]: *See* ¶¶ 132-141 *infra.*

[^343]: This is due to the increased use of this band by public safety
    licensees as well as the increased use necessitated by the expanding
    subscribership of ESMR and cellular systems.

[^344]: *See* Comments of APCO at 9-10; IACP *et. al.* Comments 4-5;
    Nextel Reply Comments at 58; Reply Comments of Consensus Parties to
    Supplemental Comments of Consensus Parties at 13.

[^345]: *See* Letter, dated December 19, 2003, from Regina M. Keeny,
    Counsel to Nextel to Michael J. Wilhelm, Esq., Federal
    Communications Commission at 12.

[^346]: *Id.* at 10-11.

[^347]: *Id.* at 10.

[^348]: *Id.* at 12. Denver contends that it has spent in excess of
    \$130,000 to mitigate interference and Anne Arundel County estimates
    these costs to be "hundreds of thousands of dollars." *See* Letter,
    dated November 3, 2003 from Alan Tilles, Esq., Counsel to the City
    and County of Denver to John Muleta, Esq., Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission. *See
    also* Application for Review in WT Docket 02-100, filed August 6,
    2003, by Anne Arundel County at 6.

[^349]: *See* ¶ 41 *supra*.

[^350]: *See* Letter, dated May 16, 2003, from Robert Foosaner, Senior
    Vice President and Chief Regulatory Officer to Nextel Marlene
    Dortch, Secretary, Federal Communications Commission at 14-15; Sun
    Fire Group Study at 11-13; Denver SOW at 1-2; Letter, dated December
    19, 2003, from Regina M. Keeny, Counsel to Nextel to Michael J.
    Wilhelm, Esq., Federal Communications Commission at 10-11.

[^351]: *See* Supplemental Comments of the Consensus Parties at 39.

[^352]: We will not require ESMR or cellular telephone licensees to
    furnish prior notice information to non-public safety or non-CII
    licensees although we encourage the exchange of such information
    when specifically requested by a non-public safety or non-CII
    licensee.

[^353]: *See* Appendix B *infra.*

[^354]: *See* 800 MHz Users Coalition May 29, 2003 *Ex Parte* at 6.

[^355]: *See* TSB-88A, June 1999 at vii (Introduction). The TIA document
    does not contemplate interference from low site ESMR and cellular
    telephone systems of the kind discussed herein. For example,
    intermodulation interference is discussed only in the context of
    base station receivers, not mobile or portable receivers. *See id.*
    at § 5.4.2-5.4.4.

[^356]: TSB-88A, June 1999 at 36 ¶ 5.1.

[^357]: *Id.*

[^358]: *Id* at 86.

[^359]: *See, e.g*., Project 39*,* Interference to Public Safety 800 MHz
    Radio Systems, *Interim Report to the FCC,* December 24, 2001 at
    12-21. *See also* *Best Practices Guide* at 7-8; Motorola Comments
    at 20.

[^360]: *See* Digital Output Protection Technology and Recording Method
    Certifications, *Order*, MM Docket 04-68, DA 04-716 (rel. Mar 17,
    2004). *See also* 47 C.F.R §§ 0.457, 0.459.

[^361]: In imposing strict responsibility for the abatement of
    unacceptable interference we are doing no more than formalizing the
    interference-abatement responsibilities underlying the Commission's
    initial approval of cellular-architecture systems operating in the
    800 MHz band. *See* Fleet Call, Inc., Waiver Request at 32-33. There
    the Commission noted that Fleet Call's statement about interference
    potential "firmly guides our consideration of Fleet Call\'s
    proposal." *Id.*

[^362]: *See* n. Error: Reference source not found and n. Error:
    Reference source not found *supra.*

[^363]: We decline to specify what remedies may be necessary in a
    particular circumstance, but observe that they could include
    responsibility for furnishing affected non-cellular systems with
    additional base stations or more interference-resistant mobile and
    portable radios.

[^364]: *See* 47 C.F.R. §§ 22.971(b)(2) and 90.673(b)(2) in Appendix C
    *infra.*

[^365]: *See, e.g.,* Verizon Comments at 2; Southern LINC Comments at
    11; and Cingular Comments at 2-3. Some parties argued that reports
    of interference were anecdotal in nature, and for that reason, did
    not represent a true evaluation of the problem. *See* Cinergy
    Comments at 7-9.

[^366]: *See, e.g.,* Anne Arundel County *ex parte* letter dated July
    29, 2003 at 2 (indicating that, in addition to Nextel, both Cingular
    and Verizon contribute to interference). *See also* Denver June 10
    *Ex Parte* at 1 (stating that field measurements and analysis
    implicate AT&T Wireless as a source of interference).

[^367]: *See* 47 C.F.R. §§ 22.972 and 90.674 in Appendix C *infra.*

[^368]: *See e.g.,* City of Portland, Oregon Comments at 3 (describing
    difficulty in securing Nextel\'s cooperation in resolving
    interference); Department of Information Technology, Fairfax County,
    Virginia Comments (indicating that Nextel causes interference but
    has implemented no mitigation measures); Attachment to Letter, dated
    September 17, 2003, from Alan H. Tilles, Counsel for City and County
    of Denver to Marlene H. Dortch, Secretary, Federal Communications
    Commission at 4 (stating that AT&T has taken no steps to mitigate
    ongoing interference).

[^369]: *See* 47 C.F.R. §§ 22.972(c) and 90.674(c) in Appendix C
    *infra.*

[^370]: *See, e.g.,* Supplemental Comments of the Consensus Parties,
    Appendix F at F-5-6; Comments of Alltel, *et al.* to Supplemental
    Comments of the Consensus Parties, Appendix A at A-2-3; Comments of
    Consumers Energy to Supplemental Comments of the Consensus Parties,
    Appendix A at A-2-3; McDermott, Will and Emery *ex parte*
    presentation dated March 12, 2003, (McDermott, Will and Emery March
    12 *Ex Parte*), Appendix A at A-2-3; 800 MHz User Coalition May 29
    *Ex Parte*, Appendix A.

[^371]: We note that Nextel currently has such a mechanism in place.
    Parties claiming that Nextel systems are causing interference to
    their systems can email [public safety@Nextel.com]{.underline}.
    *See* Attachment to Nextel October 22, 2003 *Ex Parte* at 3.

[^372]: *See* Comments of Cinergy to Supplemental Comments of Consensus
    Parties, Appendix A at A-2-3; Comments of Consumers Energy to
    Supplemental Comments of Consensus Parties, Appendix A at A-2-3; 800
    MHz Users Coalition June 11, 2003 *Ex Parte* at 4.

[^373]: *See* Supplemental Comments of the Consensus Parties at Appendix
    F.

[^374]: *Id.* at F 5-6; Comments of Alltel, *et. al* to Supplemental
    Comments of the Consensus Parties, Appendix A at A-2; McDermott,
    Will and Emery March 12 *Ex Parte*, Appendix A at A-2, item B.2; 800
    MHz User Coalition May 29 *Ex Parte*, Appendix A at 5.

[^375]: *See e.g.,* Motorola *ex parte* presentation dated October 30,
    2002 (Using data taken in the Chicago area, Motorola demonstrates
    that---beyond 5,000 feet---the signal strength from ESMR base
    stations would be insufficient to cause intermodulation interference
    to a radio with 70 dB intermodulation rejection ninety-percent of
    the time).

[^376]: *See e.g.,* Supplemental Comments of the Consensus Parties at
    Appendix F, § 3.2; 800 MHz User Coalition June 11, 2003 *Ex Parte*
    at 5.

[^377]: *See* Supplemental Comments of the Consensus Parties at Appendix
    F at F 6; Comments of Alltel, *et. al.* to Supplemental Comments of
    the Consensus Parties, Appendix A at A-3; McDermott, Will and Emery
    March 12 *Ex Parte,* Appendix A at A-3, item 3; 800 MHz User
    Coalition May 29 *Ex Parte* presentation, Appendix A at 5.

[^378]: *See generally* Appendix D *infra.*

[^379]: *See* Motorola April 11, 2003, *ex parte* presentation to
    Federal Communications Commission Office of Engineering and
    Technology at 15-17.

[^380]: In cases in which intractable interference problems have not
    yielded to other technical remedies, Nextel and public safety
    licensees have entered into agreements for "channel swaps," whereby
    Nextel moves its 800 MHz ESMR operations to the public safety
    licensees' channels and the public safety licensee relocates its
    operations to Nextel's ESMR frequencies. Under these agreements,
    Nextel would pay all or most of the expense associated with
    equipment retuning or replacement. The Commission has granted
    several applications implementing channel swaps in Anne Arundel
    County, Maryland. *See, e.g.,* Application for Modification of
    License of Station KNJU756, File No. 476003. The Commission is also
    reviewing another such agreements between Nextel and the City of
    Denver. We also have been informed that the city and county of San
    Diego, California are considering similar agreements. *See
    generally,* Denver SOW and San Diego *Ex Parte*. As yet,
    insufficient information exists on the results of channel swaps to
    allow us to assess their efficacy. However, we believe that the
    swaps will provide a test bed for band reconfiguration, to the
    extent they yield valuable information on process; *i.e.,* the time
    required to negotiate the agreements; the determination and
    apportionment of costs and responsibilities, the time required to
    make the necessary technical changes, and the disruption, if any, of
    public safety services.

[^381]: Should disputes arise in connection with such matters, parties
    are encouraged to resolve them using arbitration, mediation or other
    alternative dispute mechanisms.

[^382]: We stress that we only provide this "safety valve" to public
    safety licensees.

[^383]: *See* 47 C.F.R. § 1.16.

[^384]: The Washington, D.C. office of the Wireless Telecommunication
    Bureau is: 445 12^th^ Street SW, Washington, D.C. 20554. Complaints
    should be addressed to the Public Safety and Critical Infrastructure
    Division.

[^385]: We recommend, but do not require, that the affected parties keep
    records of interference complaints and the resolution thereof; and
    make such records available to the Commission on request.

[^386]: *See* ¶¶ 143-146 *infra*.

[^387]: We take these steps pursuant to our authority under Sections
    316, 303, 301 and 154(i) of the Act. *See* ¶¶ 62-87 *supra* for our
    legal authority to address this issue.

[^388]: *See* ¶ 144 *infra*.

[^389]: For example, the Consensus Parties propose relocating all ESMR
    channels to the 862-869 MHz band segment while all cellular
    telephone channels would remain in the adjacent 869-894 MHz band
    segment. Thus ESMR and cellular telephone channels could be closely
    spaced only in the upper portion of the ESMR band segment, which
    corresponds to the lower portion of the cellular telephone band
    segment.

[^390]: In a sense, the preselector or input filter is the "front door"
    of the radio which currently must be open wide enough that
    potentially interfering ESMR signals can enter unimpeded. However,
    when the 800 MHz band is reconfigured, the "front door" need be
    opened only widely enough to admit signals from 851-862 MHz. With
    the door not open as wide, signals above 862 MHz---including ESMR
    and cellular telephone signals---would have a difficult time
    squeezing through and causing interference.

[^391]: *See* Supplemental Comments of the Consensus Parties at 14*.*

[^392]: *Id.*

[^393]: *Id.* at Appendix F, F-8 § 4.1.2.

[^394]: *See* Attachment to Letter, dated September 17, 2002 \[sic\],
    filed September 22, 2003 from Alan S. Tilles, Esq. Counsel to the
    City and County of Denver to Marlene H. Dortch, Secretary, Federal
    Communications Commission at 7.

[^395]: We expect that most public safety systems will operate below
    814/859 MHz, but public safety systems will have the option of
    operating in the Expansion Band or Guard Band segments between
    814-817/859-862 MHz should they elect to do so.

[^396]: On July 30, 2003, the Consensus Parties conducted a live
    demonstration of base station and portable retuning using both
    Motorola and Kenwood equipment. The retuning was accomplished within
    a brief period without the need to change any system components. The
    "down-time" of the equipment was minimal. In one instance, the
    technicians demonstrated use of a portable base station that was
    substituted, temporarily, for the equipment being retuned. In the
    latter demonstration, the only "down-time" was the few seconds
    required to disconnect and reconnect the system antennas. The
    Consensus Parties do not claim, nor do we believe, that all systems
    could be retuned with equal facility; however the demonstration
    suggests that retuning time need not be a concern when modern
    equipment is involved.

[^397]: The Consensus Plan envisions that Nextel would fund the
    reconfiguration of its own systems separately. *See* Attachment to
    Letter, dated March 14, 2004, from Regina M. Keeney, Esq., Counsel
    to Nextel to Marlene H. Dortch, Secretary Federal Communications
    Commission.

[^398]: Some such concerns were directed to the Nextel *White Paper*
    proposal in which B/ILT and non-cellular SMR facilities all were to
    be relocated to the 700 MHz Guard Band and the 900 MHz land mobile
    band. That proposal was superseded by the band plan proposed by the
    Consensus Parties, which retains incumbents in the 800 MHz band,
    excepting those electing a "2 for 1" proposal whereby they would
    obtain double their existing spectrum if they relocated from 800 MHz
    to 900 MHz. *See* Supplemental Comments of the Consensus Parties at
    13.

[^399]: *See, e.g.,* 47 C.F.R. § 90.699(d).

[^400]: The proposal to use the Upper 700 MHz band for public safety was
    advanced by, among others, AT&T Wireless, Cingular, Alltel, Southern
    LINC and CTIA. *See* AT&T Wireless Comments at 7-14; Cingular and
    Alltel Comments at 16-19; CTIA Comments at 9-10; Alltel, *et al.*
    Reply Comments at 15-18; CTIA Reply Comments at 4-7; Southern LINC
    Reply Comments at 14-25. We find these plans inferior to most of the
    other band plans submitted. As an initial matter, the 700 MHz
    spectrum is unusable in most parts of the country because it is
    encumbered by television stations---a condition likely to persist
    for several years. In addition, some of these commenting parties
    envisioned that, when public safety is moved to the Upper 700 MHz
    band, the 800 MHz spectrum vacated by public safety licensees could
    be auctioned to pay for relocation costs. *See* Cingular and Alltel
    Comments at 17-18; CTIA Reply Comments at 7. However, no party
    advancing this proposal has provided either estimates of the cost of
    relocating the 800 MHz public safety licensees or the revenue that
    might be obtained from auctioning vacated 800 MHz spectrum. Thus,
    the economic feasibility of implementing these plans is highly
    problematic.

[^401]: For instance, Nextel states that once it vacates the interleaved
    spectrum and consolidates its systems in the 816-824 MHz /861-869
    MHz band segment, it will be better able to control the spread of
    intermodulation products from its cell sites. *See* Nextel Reply
    Comments, Appendix II at 3; Comments of Nextel to Consensus Parties
    Reply Comments, Appendix I at 3. By limiting the span between the
    highest and lowest frequency at any given cell site, Nextel
    indicates that it will be able to avoid producing third-order
    intermodulation products that fall on portions of the band occupied
    by public safety systems. Because an instance of two-tone
    third-order intermodulation interference is defined by the
    relationship F~INTERMOD~ = 2\*F~1~ - F~2~, limiting the difference
    between the highest and lowest frequency at a cell site
    correspondingly limits the range over which third-order
    intermodulation products will fall. *See* Motorola Comments at
    18-19.

[^402]: *See* Supplemental Comments of the Consensus Parties at 43 and
    Appendix F at F-8, item 4.1.2. Nextel believes that reconfiguring
    the 800 MHz band to separate cellular systems from non-cellular
    systems will substantially reduce interference to public safety
    created by OOBE. Nextel states that if the 800 MHz band is
    reconfigured, it can replace current base station transmitter
    duplexers with new duplexers that will "roll-off" RF energy
    immediately below 861 MHz. *See* Comments of Nextel to Consensus
    Parties Reply Comments, Appendix I at 1-2.

[^403]: The Consensus Plan offers additional spectrum rights to public
    safety by giving it exclusive access to channels below 816/861 MHz
    that are either vacated by Nextel or by licensees who relocate above
    816MHz/861 MHz as described in ¶¶ 152, 158 *infra.* This exclusive
    access will last for a five-year period after the completion of band
    reconfiguration. *See* Consensus Parties Reply Comments at 25. By
    contrast, Motorola and Preferred proposed plans which provide no
    additional spectrum rights for public safety after band
    reconfiguration. *See* Motorola Reply Comments at 8; Comments of
    Preferred to the Consensus Parties Reply Comments at 17. NAM and M/A
    COM propose plans whereby public safety will likely lose spectrum
    rights in markets where public safety currently operates systems in
    the General Category (Ch 1-150). For instance, under NAM's original
    plan, public safety receives only 0.25 x 0.25 MHz of spectrum rights
    to relocate systems from the General Category. Therefore, under that
    plan, public safety would lose spectrum rights in any market where
    it currently occupies more then ten channels in the General
    Category. M/A COM's proposal offers no spectrum rights for
    relocating public safety systems from the General Category.
    Therefore, under M/A COM's proposal, public safety would lose
    spectrum rights in markets where public safety occupies any spectrum
    in the General Category. *See NPRM,* 17 FCC Rcd at 4885 ¶ 22; M/A
    COM comments at 10. UTC proposed a plan which appears to
    substantially reduce the amount of spectrum public safety would have
    access to after band reconfiguration. UTC would allow licensees in
    the "lower 80" SMR channels to exchange rights with public safety
    licensees in the NPSPAC band. Under UTC's plan, however, public
    safety would exchange 3 x 3 MHz of contiguous NPSPAC spectrum rights
    for rights to 2 x 2 MHz non-contiguous spectrum in the interleaved
    portion of the band. *See* UTC Comments at 26-28.

    The OH MARCS, DC OCTO and the original Nextel White Paper plans
    offer public safety rights to more spectrum after band
    reconfiguration than the Consensus Plan. *See* OH MARCS Comments at
    5-9; DC OCTO Comments at 6-11 and *NPRM* at 4886-87 ¶¶ 23-25.
    Nonetheless, the OH MARCS's plan is inferior from an interference
    mitigation standpoint because it would leave NPSPAC systems
    immediately adjacent to cellular telephone A-band systems. The DC
    OCTO plan and the original Nextel White Paper proposals are inferior
    because of their excessive cost and disruption. Thus, the DC OCTO
    plan would require almost every non-cellular licensee to relocate
    within the 800 MHz band. The original Nextel White Paper proposal
    would require moving all B/ILT and Non-cellular SMR systems out of
    the 800 MHz band into the 700 MHz and 900 MHz bands.

[^404]: *See NPRM,* 17 FCC Rcd 4887 ¶ 26. With regard to our management
    of the 1.9 GHz band, we note that we are rededicating five megahertz
    of spectrum from UPCSa service for which no equipment has been
    verified by the Commissionto land mobile communications, thus
    making more efficient use of the spectrum by bringing new service to
    the public and rededicating five megahertz of spectrum to land
    mobile use from "reserve" MSS spectrum, thus providing the
    opportunity for initiation of a service that may be more immediately
    and widely used by the public.

[^405]: As with the current 800 MHz band plan, adjustments will be
    necessary in the areas bordering Canada and Mexico to provide for an
    equitable distribution of channels with those countries. *See* ¶¶
    175-176 *infra*.

[^406]: *See* ¶¶ 152-153 *infra.*

[^407]: We believe that, under most circumstances, the Expansion Band
    offers B/ILT, CII and non-cellular SMR licensees equivalent capacity
    and quality of service as defined in 47 C.F.R. § 90.699(d).

[^408]: *See* ¶ 162 *infra.*

[^409]: *See* ¶ 154-155 *infra.*

[^410]: *See* ¶ 162 *infra.*

[^411]: *See* ¶ 158 and Figure 1 *infra.*

[^412]: *See* ¶ 207 *infra*.

[^413]: This time period is a modification of the Consensus Parties'
    original proposal to only allow public safety access to this
    spectrum for a five-year period. *See* Supplemental Comments of the
    Consensus Parties at 12. Our modification comes in response to the
    comments of CII parties who found this too restrictive. *See, e.g.,*
    Comments of Alliant Energy to Supplemental Comments of the Consensus
    Parties at 4, and Comments of Amaren to Supplemental Comments of the
    Consensus Parties at 10-11. If Nextel does not surrender its rights
    to operate on this spectrum, Nextel channels would remain adjacent
    to public safety channels potentially causing adjacent channel OOBE
    interference, one of the major types of interference we are seeking
    to abate in this proceeding.

[^414]: *See* "Public Safety and Sound Spectrum Management Go Hand in
    Hand," Keynote Address by Federal Communications Commission
    Commissioner Kathleen Q. Abernathy to the National Forum on Public
    Safety Spectrum Management, February 10, 2004. We make these
    modifications under the authority granted us by Sections 4, 301, 303
    and 316 of the Act, 47 U.S.C. §§ 316, 303, 301, and 154(i). We set
    forth a detailed description of our legal authority in ¶¶ 62-87
    *supra.*

[^415]: *See* 47 C.F.R. § 90.615 in Appendix C *infra.*

[^416]: *See* Consensus Parties Reply Comments at 9.

[^417]: *See* 47 C.F.R. § 90.617(a), Table 1 in Appendix C, *infra.*

[^418]: Because we "exchanged" all public safety channels in the
    Expansion Band with SMR channels, the Expansion Band will consist of
    a mix of B/ILT and SMR channels. Nonetheless, we will allow public
    safety licensees to remain in the Expansion Band if they so choose.
    In addition, any public safety licensee who chooses to relocate to
    the Expansion Band may do so through inter-category sharing. *See*
    47 C.F.R. §§ 90.621(e) and 90.677 in Appendix C *infra.*

[^419]: *See* 47 C.F.R. § 90.617(a), Table 1*.*

[^420]: "Loss" in this context refers to the attenuation of the
    transmitter carrier when it passes through the combiner. The loss is
    dissipated in the form of heat and the net result is that the
    ERPand hence the coverageof a system can be reduced significantly
    if the combiner introduces excessive loss.

[^421]: *See* Development of Operational, Technical and Spectrum
    Requirements for Meeting Federal, State and Local Public Safety
    Agency Communication Requirements Through the Year 2010;
    Establishment of Rules and Requirements for Priority Access Service,
    WT Docket No. 96-86, *Third Memorandum Opinion and Order and Third
    Report and Order,*15 FCC Rcd 19844, 19857 (2000).

[^422]: *See* 47 C.F.R. § 90.617(a), Table 1 in Appendix C, *infra.*

[^423]: We believe that there is little risk of interference to public
    safety from these grandfathered non-cellular SMR incumbents. These
    incumbents will be prohibited from operating cellular systems in the
    non-cellular portion of the 800 MHz band. *See* 47 C.F.R. § 90.614
    in Appendix C, *infra.* Further, any grandfathered site-based B/ILT
    or non-cellular SMR licensee who chooses to modify its license on
    one of these new public safety channels will be required to obtain
    frequency coordination and receive concurrence from a certified
    public safety coordinator. *See* 47 C.F.R. §§ 90.175(c) and (e).
    EA-based non-cellular SMR licensees who are grandfathered on these
    new public safety channels and choose not to relocate---while not
    subject to frequency coordination---will nonetheless be limited to
    operating within the EA of their license. *See* 47 C.F.R. §
    90.683(a).

[^424]: *See* 47 C.F.R. § 90.617(j) in Appendix C *infra.*

[^425]: *Id.*

[^426]: The Guard Band would serve a purpose similar to the guard band
    channels developed to protect public safety systems from
    interference from commercial systems in the 700 MHz band. Cellular
    operations are prohibited in the 700 MHz guard band channels
    (746-747 MHz, 776-777 MHz, 762-764 MHz, and 792-794 MHz) to provide
    a buffer between public safety and commercial spectrum allocations.
    *See* 47 C.F.R. § 27.2(b).

[^427]: *See* 47 C.F.R. § 90.617(h) in Appendix C *infra.*

[^428]: *See* Southern LINC Comments at 4.

[^429]: *See* Letter, dated November 7, 2003, from Elizabeth Sachs,
    counsel for Airtell Wireless and Nevada Wireless to Marlene H.
    Dortch, Secretary, Federal Communications Commission.

[^430]: *See* Comments of Preferred to the Consensus Parties Reply
    Comments at 8.

[^431]: *Id.*

[^432]: *See* Supplemental Comments of Consensus Parties at 44-46.

[^433]: *Id.*

[^434]: *Id*. at 45-46. Thus, for example, Southern LINC would be
    strictly responsible, financially and otherwise, for immediately
    abating any unacceptable interference; or would have to discontinue
    operation on the offending frequency or frequencies. *Id*. at 46.

[^435]: *See* Letter, dated April 5, 2004, from Christine M. Gill,
    Counsel for Southern LINC to Michael K. Powell, Chairman, Federal
    Communications Commission.

[^436]: *See* ¶ 160 *supra.*

[^437]: It attributes the lack of interference to the fact it currently
    operates few high-channel-density low-elevation sites. *See*
    Southern Comments at 6. *See also* Motorola Comments at 14, n. 24.

[^438]: *See ¶¶* 157-158 *supra.*

[^439]: *See* ¶¶ 154-156 *supra.*

[^440]: *See* 47 C.F.R. § 90.617(j) in Appendix C *infra.*

[^441]: *Id.* These operators, however, would be subject to possible
    frequency moves as necessary in order to implement reconfiguration
    of the 800 MHz band.

[^442]: These non-Nextel ESMR licensees must state their option in the
    realignment schedule that the Transition Administrator will transmit
    to the Commission. *See* ¶ 201 *infra*.

[^443]: *See* ¶ 201 *infra.*

[^444]: *See* Letter, dated June 30, 2004, from James B. Goldstein,
    Esq., Senior Attorney, Nextel Communications, Inc. to Michael
    Wilhelm, Deputy Chief - Legal, Public Safety and Critical
    Infrastructure Division, Wireless Telecommunications Bureau, Federal
    Communications Commission. *See also* Letter, dated June 30, 2004,
    from Christine M. Gill, Esq., Counsel to Southern LINC to Michael
    Wilhelm, Esq., Federal Communications Commission.

[^445]: When the ESMR spectrum is not adequate to accommodate all
    eligible licensees that wish to relocate to the ESMR block, and
    parties are unable to agree, we may apportion the ESMR block as a
    function of the relative spectrum rights each licensee holds in a
    given EA. For example, in a hypothetical market, outside the area
    shown in Appendix G, in which licensee "A" currently has rights to
    150 channels and licensee "B" has rights to 250 channels, the 320
    channels in the ESMR block would be apportioned by giving licensee
    "A" access to 128 channels (40%) and licensee "B" access to 192
    channels (60%).

[^446]: *See* 47 C.F.R. § 90.621.

[^447]: We note that co-channel spacing may be reduced through
    short-spacing agreements. *See* 47 C.F.R. § 90.621(b)(5).

[^448]: *See* Comments of Cinergy to Supplemental Comments of Consensus
    Parties at 19; Comments of AMTA to Supplemental Comments of
    Consensus Parties at 4; Comments of Baltimore to Supplemental
    Comments of Consensus Parties at 7; Comments of Entergy to
    Supplemental Comments of Consensus Parties at 29; Comments of Scott
    C. Macintyre to Supplemental Comments of Consensus Parties at 1;
    Reply Comments of Cinergy to Supplemental Comments of Consensus
    Parties at 28; Reply Comments of Con-Ed to Supplemental Comments of
    Consensus Parties at 10; letter, dated May 6, 2004, from Shirley
    Fujimoto, Council for Entergy Corporation, Consumers Energy and
    Cinergy Corporation, to John Muleta Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission
    (Entergy, Consumers and Cinergy May 6 *Ex Parte*).

[^449]: We note that, because we are affording CII licensees a special
    status because of their safety-related communications, we believe it
    would be anomalous to allow CII licensees to convert their systems
    to CMRS operation in which communications seldom are safety-related.
    Accordingly, we limit our definition of CII to those entities who
    operate radios systems for private internal use. *See* n. Error:
    Reference source not found*supra*. Any licensee who converts to CMRS
    will fall outside our definition of CII and no longer be eligible
    for any of the benefits we extend to CII licensees

[^450]: *See* Reply Comments of Consensus Parties to Supplemental
    Comments of Consensus Parties at 28.

[^451]: *Id.*

[^452]: *See* Entergy, Consumers and Cinergy May 6 *Ex Parte* at 1.

[^453]: *Id.* at 1.

[^454]: *Id.*

[^455]: We emphasize that this definition of "800 MHz cellular system"
    applies only for this purpose in the 800 MHz band, and is not
    intended as a basis for making cellular/non-cellular distinctions
    for other purposes.

[^456]: We recognize that this definition encompasses operations where
    the overlapping interactive sites comprise only a portion of the
    overall communications "system" of a licensee. The licensee needs to
    obtain a waiver, however, only with respect to particular sites in
    the overlapping site clusters that satisfy the second criterion.

[^457]: 47 C.F.R. § 1.925.

[^458]: Any cellular architecture system operating in the non-cellular
    portion of the band, whether authorized by waiver or otherwise, must
    strictly comply with the provisions of Section 90.673 as adopted in
    this *Report and Order.*

[^459]: *See* Comments of King County RCB to Supplemental Comments of
    the Consensus Parties at 4; Comments of MI DIT to Supplemental
    Comments of the Consensus Parties at 5; Comments of NY OIT to
    Supplemental Comments of the Consensus Parties at 6-8; Reply
    Comments of NY OIT to Supplemental Comments of the Consensus Parties
    at 5-6. Current international agreements designate five channels in
    the NPSPAC portion of the band (821-824/866-869 MHz) for public
    safety mutual aid between the U.S. and Canada and Mexico. These five
    channels are intended to facilitate interoperability between
    Canadian, Mexican and U.S. public safety licensees. The mutual aid
    channels are 821.0125/866.0125 MHz (calling), 821.5125/866.5125 MHz,
    822.0125/867.0125 MHz 822.5125/867.5125 MHz and 823.0125/868.0125
    MHz. *See U.S --Mexico Agreement,* Appendix C at Section 1 and *1990
    U.S.-Canada Agreement* at Section 2.1c.

[^460]: *See* Supplemental Comments of the Consensus Parties, Appendix
    G-4.

[^461]: *See* Comments of American Elec. to Supplemental Comments of the
    Consensus Parties at 15-16; Comments of Boeing to Supplemental
    Comments of the Consensus Parties at 5-8; Comments of Border Area
    Coalition to Supplemental Comments of the Consensus Parties at 6-8;
    Comments of Consumers to Supplemental Comments of the Consensus
    Parties at 11-12; Comments of NY OIT to Supplemental Comments of the
    Consensus Parties at 4-6; Comments of Pinnacle to Supplemental
    Comments of the Consensus Parties at 6; Reply Comments of Boeing
    Reply to Supplemental Comments of the Consensus Parties at 9; Reply
    Comments of Central ME Power to Supplemental Comments of the
    Consensus Parties at 2-3; Reply Comments of Consumers Energy to
    Supplemental Comments of the Consensus Parties at 5-6; Reply
    Comments of NY OIT to Supplemental Comments of the Consensus Parties
    at 4-5; Reply Comments of San Diego Reply to Supplemental Comments
    of the Consensus Parties at 2-5.

[^462]: *See* Comments of American Elec. to Supplemental Comments of the
    Consensus Parties at 16; Comments of Border Area Coalition to
    Supplemental Comments of the Consensus Parties, Exhibit B at 3;
    Comments of Pinnacle to Supplemental Comments of the Consensus
    Parties at 6; Comments of NY OIT to Supplemental Comments of the
    Consensus Parties at 6.

[^463]: *See* Comments of Border Area Coalition to Supplemental Comments
    of the Consensus Parties, Exhibit A at 1-2, Exhibit B at 1-2, 7-8;
    Comments of San Diego to Supplemental Comments of the Consensus
    Parties at 2-4. Co-channel stations are generally required to
    maintain a fixed distance separation of 70 miles (113 km). *See* 47
    C.F.R § 90.621(b).

[^464]: *Id.*

[^465]: *See* Comments of Snohomish County ERS to Supplemental Comments
    of the Consensus Parties at 2-3.

[^466]: *See* Comments of Border Area Coalition to Supplemental Comments
    of the Consensus Parties, Exhibit D at 2-3; Comments of Consumers
    Energy to Supplemental Comments of the Consensus Parties at 9.

[^467]: *See* Comments of Boeing to Supplemental Comments of the
    Consensus Parties at 10-11; Comments of Border Area Coalition to
    Supplemental Comments of the Consensus Parties, Appendix D at 3;
    Comments of Pinnacle to Supplemental Comments of the Consensus
    Parties at 3-4; Reply Comments of Boeing to Supplemental Comments of
    the Consensus Parties at 8-9.

[^468]: *See* Comments of Industry Canada to Supplemental Comments of
    the Consensus Parties at 7.

[^469]: *Id* at 6.

[^470]: *See,* *e.g.,* 47 C.F.R. § 90.619 in Appendix C *infra*.

[^471]: *Id.*

[^472]: In the event that the requisite border area agreements are not
    reached within thirty-six months of the release date of the Public
    Notice announcing the start of reconfiguration of the first NPSPAC
    Region, Nextel shall elect to extend the life of the letter of
    credit or secure a separate letter of credit for a sum of money
    equal to that which would have been incurred had the Commission band
    plan been implemented along the borders without regard to
    international agreements.

[^473]: *See* ¶¶ 120-121 *supra*.

[^474]: *See* ¶ 29 *supra. See also* n. Error: Reference source not
    found *infra.*

[^475]: We note that 800 MHz licensees may divide relocation costs with
    Nextel if they so choose. For instance, we observe that Southern
    LINC and Nextel are working on an agreement whereby costs for
    relocating Southern LINC's facilities may be divided between the two
    parties. *See* ¶¶ 164-168 *supra*.

[^476]: *See* ¶ 201 *infra.*

[^477]: *See* ¶ 194 *infra.*

[^478]: Supplemental Comments of the Consensus Parties at iv-v.

[^479]: We take this step pursuant to Section 4(i) of the Communications
    Act. 47 U.S.C. § 154(i).

[^480]: *See* n. Error: Reference source not found *infra.*

[^481]: This is consistent with the Commissions actions in the Upper 200
    and Microwave Relocation proceedings. *See* Amendment of Part 90 of
    the Commission's Rules to Facilitate Future Development of SMR
    Systems in the 800 MHz Frequency Band, PR Docket No. 93-144 and
    Amendment to the Commission's Rules Regarding a Plan for Sharing
    Costs of Microwave Relocation, WT Docket No. 95-157.

[^482]: Supplemental Comments of the Consensus Parties at 6 (noting
    estimate of total costs for relocating public safety licensees is
    subject to several significant variables such as the number of total
    radios which will need to be replaced).

[^483]: *See* Supplemental Comments of the Consensus Parties at 12.

[^484]: *See NPRM,* 17 FCC Rcd at 4899 ¶ 45.

[^485]: *See, e.g.,* Supplemental Comments of the Consensus Parties at
    8; Nextel Nov 3 *Ex Parte.*

[^486]: *See* Supplemental Comments of the Consensus Parties at 8*.*

[^487]: *See* Nextel Nov. 3 *Ex Parte* at 3.

[^488]: *See id.* at 3; Supplemental Comments of the Consensus Parties
    at 7-8; *cf. NPRM,* 17 FCC Rcd at 4899 ¶ 45 (seeking comment on
    safeguards to guarantee that the "then state of finances of a
    contributing party or parties" would not hinder the completion of
    band reconfiguration).

[^489]: *See* Comments of Mobile Relay Associates to Supplemental
    Comments of the Consensus Parties at 6; (no way to determine whether
    Consensus Plan adequately estimates overall funding needs); Comments
    of Border Area Coalition to Supplemental Comments of the Consensus
    Parties at 12 (Consensus Plan does not take into account additional
    costs that border area licensees would incur); Comments of Small
    Business in Telecommunications to Supplemental Comments of the
    Consensus Parties at 2-4 (questioning estimate of \$17,000 per
    channel for relocation and \$12,000 per channel for rebanding.).
    *See also* Comments of CTIA to Supplemental Comments of the
    Consensus Parties at 10 and Comments of Michigan DIT to Supplemental
    Comments of the Consensus Parties at 3 (Consensus Plan
    underestimates number of small public safety systems that would be
    relocated).

[^490]: Nextel's estimates are based on replacing one percent of public
    safety portable and mobile radios. However, the City and County of
    San Diego provided estimates that more than thirty percent of its
    units would have to be replaced. *See* Comments of San Diego to
    Supplemental Comments of the Consensus Parties at 12-13.
    Subsequently, Nextel filed a letter stating that the San Diego
    estimates were overstated; but that, nonetheless, more than one
    percent of the units in the San Diego system would have to be
    replaced. *See* Letter, dated February 20, 2004, from Larry Krevor,
    Esq., Nextel to Michael Wilhelm, Esq. Public Safety and Critical
    Infrastructure Division, Wireless Telecommunications Bureau, Federal
    Communications Commission. The San Diego system may not be
    representative inasmuch as it was constructed in 1991 and is still
    using radios of that vintage. *See also, e.g.* Reply Comments of
    ALLTEL *et. al.* to Supplemental Comments of the Consensus Parties
    at 6-7 (the cost of receiver replacement increases \$78 million for
    every one percent increase in number of receivers that must be
    replaced.) *See also* Comments of Verizon Wireless to Supplemental
    Comments of the Consensus Parties at 10 and Comments of Preferred
    Communications to Supplemental Comments of the Consensus Parties at
    9-10 (Questioning Consensus Plan estimate that one percent of public
    safety receivers would need to be replaced) Comments of Ameren to
    Supplemental Comments of the Consensus Parties at 5 (Consensus Plan
    proposal of \$150 million to relocate B/ILT incorrectly assumes that
    relocation would only require the replacement of only five percent
    of B/ILT equipment).

[^491]: We emphasize that the required \$2.5 billion security is not a
    \"cap\" on Nextel\'s obligations hereunder, whether for 800 MHz band
    reconfiguration or 1.9 GHz band clearance. We further emphasize that
    this determination does not represent a finding by the Commission
    that 800 MHz band reconfiguration can, in fact, be accomplished for
    \$2.5 billion.

[^492]: *See* ¶¶ 186 *infra.*

[^493]: The model letter of credit provides that the letter will be
    issued for five years unless it contains an "evergreen" clause. If
    such a clause is included in the letter of credit and the issuing
    institution gives notice of non-renewal, Nextel shall ensure that a
    replacement letter is issued no later than thirty days prior to the
    expiration date of the letter of credit. A failure to do so shall
    entitle the Commission to instruct the Trustee to make a draw on the
    letter of credit for the entire remaining balance thereof.

[^494]: A bank that is acceptable to the Commission to issue the Letter
    of Credit is a) any United States Bank that (i) is among the 50
    largest United States banks, determined on the basis of total assets
    as of December 31, 2003, (ii) whose deposits are insured by the
    Federal Deposit Insurance Corporation, and (iii) has a long-term
    unsecured credit rating issued by Standard & Poor's of A- or better
    (or an equivalent rating from another nationally recognized credit
    rating agency); and b) any non-U.S. bank that (i) is among the 50
    largest non-U.S. banks in the world, determined on the basis of
    total assets as of December 31, 2003 (determined on a U.S. dollar
    equivalent basis as of such date), (ii) has a branch office in New
    York City or such other branch office agreed to by the Commission,
    (iii) has a long-term unsecured credit rating issued by a
    widely-recognized credit rating agency that is equivalent to an A-
    or better rating by Standard & Poor's, and (iv) issues the Letter of
    Credit payable in United States dollars. Should the bank's credit
    rating fall below A- or equivalent rating, the Commission may
    require Nextel to procure the issuance of a letter of credit in an
    amount equivalent to that remaining on the current letter of credit
    by a bank that meets the criteria set forth herein.

[^495]: *Id.*

[^496]: *See* Appendix E--Annex C, *infra* (Termination of Letter of
    Credit form)*.*

[^497]: The contract will authorize the formation of the "800 MHz
    Relocation Trust" and the corpus of the trust will be the letter or
    letters of credit issued pursuant to the terms of this Order. The
    trust will be permitted to receive and hold draws under the letter
    of credit to facilitate multiple payments to particular licensees,
    vendors, contractors, etc., to pay for approved relocation costs. An
    outline of the key terms envisaged by the Commission are attached
    hereto as Appendix E-Annex D.

[^498]: *See* ¶¶ 186, 329-332 *infra.*

[^499]: *See NPRM,* 17 FCC Rcd at 4891 ¶ 31.

[^500]: *Id.* at 4898 ¶ 45.

[^501]: *See* Supplemental Comments of the Consensus Parties at 14-17.

[^502]: *Id*. at 16. Appendix E of the Supplemental Comments of the
    Consensus Parties provides a sample prioritization scheme.

[^503]: *Id*. at 18.

[^504]: *Id.* at 21.

[^505]: *Id*. at 21-22.

[^506]: *Id*. at 24.

[^507]: *See NPRM*, 17 FCC Rcd at 4998-99 ¶ 45.

[^508]: *See, e.g.,* Comments of Carolina Power and Light to
    Supplemental Comments of the Consensus Parties at 3, 7-8; Comments
    of Cinergy to Supplemental Comments of the Consensus Parties at 16;
    Comments of Consumers Energy, Inc. to Supplemental Comments of the
    Consensus Parties at 25-26.

[^509]: *See, e.g.,* Comments of Alliant Energy to Supplemental Comments
    of the Consensus Parties at 3, Comments of Ameren Corp. to
    Supplemental Comments of the Consensus Parties at 12-13, Comments of
    Boeing to Supplemental Comments of the Consensus Parties at 25-26.

[^510]: We will make this appointment pursuant to the authority given to
    us under Section 4(i) of the Act. *See* 47 U.S.C. § 154(i). The
    Commission has used similar third-party solutions in the past. In
    1994, the Commission appointed an independent, non-governmental
    entity, UTAM, as the coordinating body to oversee the transition
    from fixed microwave operations to UPCS and to manage the transition
    to full band clearing. *See* Amendment of the Commission's Rules to
    Establish New Personal Communications Services, *Memorandum Opinion
    and Order*, 9 FCC Rcd at 4957 ¶ 209 (1994). In 1996, the Commission
    appointed the Personal Communications Industry Association (PCIA)
    and the Industrial Telecommunications Association, Inc. (ITA), two
    private non-governmental entities, to administer the microwave
    clearinghouse cost-sharing plan. *See* Amendment of the
    Commission\'s Rules Regarding a Plan for Sharing the Costs of
    Microwave Relocation, WT Docket No. 95-157, *Memorandum Opinion and
    Order,* 11 FCC Rcd 9394 (WTB 1996).

[^511]: We chose these parties because we believe they closely represent
    a cross-section of the viewpoints presented in the proceeding by
    parties having a vested interest in the manner in which the 800 MHz
    band is to be reconfigured.

[^512]: ^510A^ Should the selected Transition Administrator be a company
    or other entity providing services to multiple clients, the salaries
    of the principals of such a company are not relevant to our inquiry.
    In such a case, the Transition Administrator shall report the
    billing rates of those persons performing the Transition
    Administrator function; which rates shall be no more than the
    billing rates charged for similar services in a project of similar
    complexity.

[^513]: Courts often appoint special masters as a means of addressing,
    *inter alia,* judicial limitations such as time constraints, lack of
    expertise in esoteric areas and lack of skill in certain roles, such
    as the facilitation of settlement negotiations. *See* Wayne D.
    Brazil, *Special Masters in Complex Cases: Extending the Judiciary
    or Reshaping Adjudication?*, 53 U. Chi. L. Rev. 394-394-395 (1986).

[^514]: We note, however, that some government agencies can not engage
    in mediation or arbitration.

[^515]: The Transition Administrator will devise a suitable payment
    system with respect to each system that is reconfigured, including,
    if appropriate, instructing the Letter of Credit Trustee to make
    stage payments to licensees, vendors, *etc*.

[^516]: In developing such a schedule, the Transition Administrator has
    the discretion to exclude certain non-public safety licensees from a
    NPSPAC region relocation schedule, provided that they are eventually
    relocated prior to the end of band reconfiguration.

[^517]: An audited statement is one that comports to the relevant
    Financial Accounting Standards Board (FASB) standards. *See* n.
    510A, *supra.*

[^518]: In this connection, we observe that during band reconfiguration
    the provisions of Section 90.157 will not apply to Nextel and
    non-Nextel stations that have been shut down in order to accommodate
    our rebanding plan. *See* 47 C.F.R. § 90.157.

[^519]: In this regard, we will allow inter-category sharing for the
    limited purpose of this proceeding. *See* 47 C.F.R. § 90.677 in
    Appendix C, *infra*.

[^520]: ^517A^ Although the Transition Administrator will specify
    replacement channels, the Transition Administrator is not
    necessarily required to select these replacement channels itself.
    The Transition Administrator may rely on a third party or parties
    for the selection of replacement channels.

[^521]: Licensees that fail to act in good faith or unreasonably decline
    to cooperate may be subject to enforcement action.

[^522]: The Trustee will disburse funds in accordance with the
    Transition Administrator's instructions which may include directions
    to pay contractors in a lump sum or over time in accordance with
    milestone payments set forth in the contractor's contract with the
    licensee.

[^523]: In this connection, we strongly encourage frequency coordinators
    to complete any necessary review within thirty days.

[^524]: *See, e.g.*, *Batterton* *v. Francis,* 97 S.Ct. 2399, 2407
    (1977) (Secretary of Health, Education, and Welfare had authority to
    tie AFDC benefits to state unemployment compensation determinations
    since in doing so the Secretary "incorporated a well-known and
    widely applied standard.") and *R. H. Johnson & Co. v. SEC*, 198
    F.2d 690, 695 (2^nd^ Cir. 1952), *cert. denied* 344 U.S. 855, 73
    S.Ct. 94, 97 L.Ed. 664 (1952) (SEC did not unconstitutionally
    delegate powers to National Association of Securities Dealers
    because it retained power to approve or disapprove rules and to
    review disciplinary actions). *Compare United Black Fund, Inc. v.
    Hampton*, 352 F.Supp. 898, 904 (D.D.C. 1972) (Civil Service
    Commission Chairman may permit private entities preliminarily to
    determine eligibility of local health and welfare agencies for
    participation in the Combined Federal Campaign where Chairman set
    standards local agencies must meet, and where the Chairman retained
    final review authority) *with National Park and Conservation Ass'n
    v. Stanton*, 54 F. Supp.2d 7, 20 (D.D.C.1999) (National Park
    Service's ("NPS") delegation of management of national scenic river
    to a private council constitutes unlawful delegation because "NPS
    retains no oversight over the \[c\]ouncil, no final reviewing
    authority over the council's actions or inaction, and the
    \[c\]ouncil's dominant private local interests are likely to
    conflict with the national environmental interests that NPS is
    statutorily mandated to represent."); *cf*. *USTA v. FCC* (DC Cir.
    Mar. 2, 2004) (holding that the Commission had impermissibly
    subdelegated its authority to the states.)

[^525]: *See* ¶ 162 *supra*.

[^526]: *See* 47 C.F.R. § 90.699(b)(2). *See also* Comments of NAM/MRFAC
    to Supplemental Comments of Consensus Parties at 11-12; Cinergy
    Corp., Consumers Energy Corp., Entergy Corp, Entergy Services March
    12, 2003 *Ex Parte*.

[^527]: Among the factors relevant to a good-faith determination are:
    (1) whether the party responsible for paying the cost of band
    reconfiguration has made a *bona fide* offer to relocate the
    incumbent to comparable facilities; (2) the steps the parties have
    taken to determine the actual cost of relocation to comparable
    facilities; and (3) whether either party has unreasonably withheld
    information, essential to the accurate estimation of relocation
    costs and procedures, requested by the other party. *See* Amendment
    to the Commission's Rules Regarding a Plan for Sharing the Costs of
    Microwave Relocation, *First Report and Order and Further Notice of
    Proposed Rulemaking,* 11 FCC Rcd 8825, 8837-8838 ¶ 21.

[^528]: 47 U.S.C. § 316.

[^529]: *See generally,* 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,
    19112-19113 ¶ 89-95 (1997) (*Upper 200 SMR Second Report and
    Order*).

[^530]: Our rules define channel capacity as the same number of channels
    with the same bandwidth that is currently available to the end user.
    *See Upper 200 SMR Second Report and Order*, 12 FCC Rcd 19079,
    19112-13 ¶ 92. *See also* 47 C.F.R. § 90.699(d)(2). For example, if
    an incumbent's system consists of five 25 kHz channels, the
    replacement system must also have five 25 kHz channels. Our rules do
    not, however, mandate identical channel configuration. *See* *Upper
    200 SMR Second Report and Order*, 12 FCC Rcd 19079, 19112-13 ¶ 92.

[^531]: *See Upper 200 SMR Second Report and Order*, 12 FCC Rcd 19079,
    19112-13 ¶ 92. *See also* 47 C.F.R. § 90.699(d)(2).

[^532]: *Id.*

[^533]: *See* *Upper 200 SMR Second Report and Order*, 12 FCC Rcd 19079,
    19113 ¶ 94. *See also* 47 C.F.R. § 90.699(d)(4). These costs will be
    estimated and paid as part of the relocation costs.*.*

[^534]: In this regard we observe that our definition of comparable
    facilities is limited to already existing facilities.

[^535]: *See* Supplemental Comments of the Consensus Parties at 15-19
    and Appendix C.

[^536]: *See, e.g*., 47 U.S.C. §§ 312, 503*.*

[^537]: *See, e.g.*, *Upper 200 SMR Second Report and Order*, 12 FCC Rcd
    19079; Petition For Declaratory Ruling Concerning The Requirement
    For Good Faith Negotiations Among Economic Area Licensees And
    Incumbent Licensees In The Upper 200 Channels Of The 800 MHz Band,
    *Memorandum Opinion and Order*, 16 FCC Rcd 4882 (2001) (*Good Faith
    MO&O*).

[^538]: *See* Supplemental Comments of the Consensus Parties at Appendix
    C, C-4-5.

[^539]: *See* Supplemental Comments of Consensus Parties at 26.

[^540]: *See, e.g.,* Letter, dated November 13, 2003, from R. David
    Laurrell, County Administrator, County of Campbell, Virginia Board
    of Supervisors to Marlene H. Dortch, Secretary, Federal
    Communications Commission; Comments of American Electric Power
    Company, Inc. to Supplemental Comments of the Consensus Parties at
    9-10.

[^541]: The mandatory negotiation period essentially ends six months
    after voluntary negotiations begin.

[^542]: For example, this may include licensees with extended
    implementation authority, new licensees, or licensees with pending
    requests for extension of current authorization.

[^543]: *See* 47 C.F.R. § 1.925.

[^544]: *See* 47 C.F.R. § 90.685(b).

[^545]: *See* Supplemental Comments of the Consensus Parties at 13.

[^546]: Nextel's need for the 900 MHz spectrum may arise if there are
    two 800 MHz ESMR licensees in a market, *e.g.* Nextel and Southern
    LINC, and both cannot be accommodated in the 817-824 MHz / 862-869
    MHz cellular-architecture spectrum segment. In that instance, Nextel
    must surrender the additional spectrum necessary to accommodate the
    non-Nextel cellular-architecture system. The 800 MHz spectrum that
    Nextel loses in such a case may be compensated for by Nextel
    shifting some of its operations to its 900 MHz SMR frequencies.
    *See* ¶ 159 *supra.*

[^547]: *See* ¶¶ 335-337 *infra*.

[^548]: *See* ¶ 61 *supra.*

[^549]: *See* ¶¶ 217-222 *infra*.

[^550]: *See* ¶¶ 329-332 *infra*.

[^551]: These benefits may also have an economic component, though it is
    difficult to quantify. One study in the record posits that if
    improved public safety communications reduced the societal loss from
    crime and fire by one-tenth of one percent, the nation would save
    \$1 billion every year. *See* Nextel Sunfire *Ex Parte* at 10.

[^552]: *See* Letter, dated April 29, 2004, from Steve Largent,
    President and CEO CTIA to Michael Powell, Chairman, Federal
    Communications Commission at 2-3. *See also* n. Error: Reference
    source not found-Error: Reference source not found *supra.*

[^553]: We note that Nextel's cost for such additional letters of credit
    likely would increase if Nextel's band reconfiguration progress did
    not meet projections, thus affecting the risk-analysis of the
    issuing bank(s).

[^554]: *See* ¶ 201 *supra.*

[^555]: We note that the Commission has issued Notices of Apparent
    Liability for Forfeiture assessing substantial penalties on carriers
    that have failed to comply with Commission rules intended to enhance
    the safety of life and property. *See* In re T-Mobile USA, Inc.,
    *Notice of Apparent Liability for a Forfeiture*, 18 F.C.C.R. 3501
    (EB 2003); *see also* In re AT&T Wireless Services, Inc., *Notice of
    Apparent Liability for a Forfeiture,* 17 F.C.C.R. 9903 (EB 2002).

[^556]: Communications Act of 1934, Title I, Section 1, 47 U.S.C. § 151.

[^557]: *See* *NPRM* at 17 FCC Rcd at 4904 ¶ 57.

[^558]: *See* ¶¶ 224-235 *infra.*

[^559]: For a discussion of our legal authority to take this step in
    furtherance of the public interest *see* ¶¶ 62-87 *supra.*

[^560]: We reach this conclusion based upon our assessment of the state
    of communications technology and its current deployment, and
    cognizant of our obligations pursuant to 47 U.S.C. § 151. *See* ¶
    211 *supra.*

[^561]: *See* CTIA April 29 *ex parte* at 2; CTIA May 7 *ex parte* at 2.
    CTIA proposed that Nextel not receive 2.1 GHz spectrum until the
    rebanding process is complete. As discussed in ¶¶ 213-216 *supra*,
    we conclude that it is appropriate to grant spectrum rights to
    Nextel at the commencement of the rebanding process with those
    rights conditioned on the successful and timely completion of
    rebanding.

[^562]: CTIA May 7 *ex parte* at 5.

[^563]: Nextel May 14 *ex parte* 3-4.

[^564]: *Id.* at 4.

[^565]: *Id.* at 4.

[^566]: CTIA May 7 E*x Parte* at 5-6.

[^567]: Verizon states that would be prepared to bid a "substantial"
    amount for 2.1 GHz spectrum, but less than what it would bid for 1.9
    GHz spectrum. Verizon May 27 *Ex Parte* at 3.

[^568]: In addition to equipment costs and band-clearing issues, Nextel
    cites inferior propagation characteristics at 2.1 GHz in comparison
    to 1.9 GHz as reducing the relative value of 2.1 GHz spectrum.
    Nextel May 14 *Ex Parte* at 3-5. We accord very little weight to
    this factor: the differential free space path loss between 1.9 GHz
    and 2.1 GHz is less than one-tenth of a dB, and the attenuation due
    to foliage, precipitation, and other environmental factors is
    essentially identical for the two bands.

[^569]: *See* *Ex Parte* presentation of James Kay, dated June 25, 2003,
    at 11.

[^570]: Ericsson Comments to *AWS Third NPRM* at 3-4.

[^571]: Nextel Comments to *AWS Third NPRM* at 5-12.

[^572]: *See, e.g.*, CTIA Comments to *AWS Third NPRM* at 2; Verizon
    Comments to *AWS Third NPRM* at 5. See also Ascom Comments to *AWS
    Third NPRM* at 2 (agreeing with re-designation of 1910-1920 MHz for
    fixed and mobile uses); Motorola Comments to *AWS Third NPRM* at ii,
    3 (agreeing with re-designation of 1915-1920 MHz for PCS use).

[^573]: *See, e.g.*, Ad Hoc Comments to *AWS Third NPRM* at 4-5;
    Cingular Comments to *AWS Third NPRM* at 4 (stating that allocation
    will add flexibility for MDS to provide fixed and mobile services);
    DCT Los Angeles (DCT) Comments to *AWS Third NPRM* at 14; Nucentrix
    Comments to *AWS Third NPRM* at 11-13 (asserting that MDS proponents
    have worked to provide technically viable solution for displaced MDS
    that no other proponents of various allocation schemes have
    submitted); WCA Comments to *AWS Third NPRM* at 13, 18. In the
    Second R&O, we reallocated MDS spectrum at 2150-2155 MHz for AWS.
    MDS Channels 1 and 2/2A consist of the 2150-2160/62 MHz band. While
    our recent decision to relocate MDS channels 1 and 2 to the 2.5 GHz
    band, discussed *infra*, makes these proposals moot, we believe that
    they continue to be of value to this proceeding insofar that they
    illustrate commenters' beliefs that high-powered services could
    occupy the band.

[^574]: *See, e.g.,* Motorola Comments to *AWS Third NPRM* at 4; Verizon
    Comments to *AWS Third NPRM* at 5, Ericsson Comments to *AWS Third
    NPRM* at 3, Lucent Reply Comments to *AWS Third NPRM* at 2.

[^575]: *See, e.g.,* Ad Hoc Comments to *AWS Third NPRM* at 5; CTIA
    Comment to *AWS Third NPRM* at 3; Nextel Comments to *AWS Third
    NPRM* at 11-12; UTAM Comment to *AWS Third NPRM* at 4; Verizon
    Comments to *AWS Third NPRM* at 5-6.

[^576]: UTAM Comments to *AWS Third NPRM* at 2; PVT Reply Comments to
    *AWS Third NPRM* at 2-3; See also UTStarcom Comments to *AWS Third
    NPRM* at 3-4 (proposes community wireless systems in UPCS extended
    band); Inventel Reply Comments to *AWS Third NPRM* at 2; Midstate
    Communications (Midstate) Reply Comments to *AWS Third NPRM* at 2
    ("Leaving UCPS spectrum for unlicensed use will encourage deployment
    of niche services and local mobility applications that show great
    promise to benefit consumers in rural, underserved and tribal
    areas"); PBC Reply Comments to *AWS Third NPRM* at 2.

[^577]: *See, e.g.*, UTAM Comments to *AWS Third NPRM* at 4-5 (stating
    record does not show evidence that reduction of spectrum by ten
    megahertz is feasible, and evidence shows something to the
    contrary).

[^578]: Ericsson Comments to *AWS Third NPRM* at 5; ICO Comments to *AWS
    Third NPRM* at 5; Motorola Comments to *AWS Third NPRM* at 8-10.

[^579]: JSM Comments to *AWS Third NPRM* at 2; UTStarcom Comments to
    *AWS Third NPRM* at 4-5.

[^580]: *See, e.g.*, Ascom Comments to *AWS Third NPRM* at 2; Siemens
    Comments to *AWS Third NPRM* at 2; Verizon Comments to *AWS Third
    NPRM* at 6; WCA Comments to Third NRPM at 17, 20; See also Ericsson
    Comments to *AWS Third NPRM* at 5 (stating that such an expansion is
    consistent with current use of spectrum); Siemens Comments to *AWS
    Third NPRM* at 3 (noting that expansion improves spectrum efficiency
    and reduces levels of interference, thereby enhancing quality of
    service); Cingular Comments to *AWS Third NPRM* at 2-3 (support
    retaining 1916-1930 MHz for UPCS).

[^581]: *See* *ex parte* Comments of Siemens Corp., et. al. filed in ET
    Docket 00-258 on December 12, 2003. DECT is a digital wireless
    technology that originated in Europe and is used in a variety of
    wireless applications, including cordless telephones and wireless
    office telecommunications products.

[^582]: *See, e.g.*, Ad Hoc Comments to *Third NPRM* at 4; Cingular
    Comments to *Third NPRM* at 4; WCA Comments to *Third NPRM* at
    12-13. Because this decision exclusively considers the resolution of
    allocation matters in the 1910-1915 and 1990-1995 MHz bands, we make
    no decision herein with respect to relocation of MDS operations
    other than to conclude that assignment of this spectrum to Nextel
    best serves the public interest

[^583]: Amendment of Parts 1, 21, 73, 74 and 101 of the Commission's
    Rules to Facilitate the Provision of Fixed and Mobile Broadband
    Access, Educational and Other Advanced Services in the 2150-2162 and
    2500-2690 MHz Bands, *et al.*; WT Docket Nos. 03-66, *et al.*,
    *Report and Order and Further Notice of Proposed Rulemaking*, FCC
    04-135 (rel. Jul. 29, 2004) (*2.5 GHz MDS Restructuring R&O and
    NPRM*).

[^584]: *Id.* at 15-16. Currently, 47 C.F.R. §15.321(e) requires the
    measurement of the carrier frequency in order to ensure its
    frequency stability. WINForum believes that for asynchronous data
    devices that transmit in short bursts, explicit measurement of the
    carrier frequency as a function of time for a short modulated burst
    is inherently problematic. WINForum's proposal would allow for a
    more realistic measurement of the frequency stability of the device.

[^585]: *See* UTStarcom Petition at 2.

[^586]: *See* UTStarcom Reply Comments to *AWS Third NPRM* at 3.

[^587]: *AWS Third NPRM*, 18 FCC Rcd 2223 ¶¶ 47-49.

[^588]: *AWS Third R&O*, 18 FCC Rcd 2223 ¶ 28.

[^589]: CTIA Comments to *AWS Third NPRM* at 2. *See also* Ericsson
    Comments to *AWS Third NPRM* at 3; Nextel Comments to *AWS Third
    NPRM* at 10.

[^590]: Cingular Comments to *AWS Third NPRM* at 4-5. *See also* DCT Los
    Angeles Comments to *AWS Third NPRM* at 14.

[^591]: Nextel Comments to *AWS Third NPRM* at 10; CTIA Comments to *AWS
    Third NPRM* at 2.

[^592]: Microwave systems operating with paired frequencies use the
    1910-1930 MHz band paired with the 2160-2180 MHz band. We note that
    UTAM previously relocated certain microwave incumbents from the
    1910-1920 MHz band in conjunction with the designation of the
    1910-1930 MHz band for UPCS use. We discuss relocation and
    reimbursement procedures for the 1910-1915 MHz band to account for
    the re-designation in ¶¶ 239-249, *infra*. We observe that the rules
    adopted in the 1992 *Emerging Technologies* proceeding apply to this
    band. *Emerging Technologies First Report and Order and Third Notice
    of Proposed Rule Making*, 7 FCC Rcd at 6890 ¶¶ 23-24. This
    relocation right was affirmed in the *Emerging Technologies
    Memorandum Opinion and Order and Third Notice of Proposed Rulemaking
    and Order*, 13 FCC Rcd 23949 (1998). The rules are codified in 47
    C.F.R. §§ 101.69-101.99. Because these procedures are well known,
    parties can move expediently to initiate any relocation deemed
    necessary (to the extent that UTAM has not already completed such
    work). For these reasons, we believe that service providers can roll
    out service in this band quickly.

[^593]: As discussed *supra,* we further conclude that it serves the
    public interest to assign this paired spectrum block to Nextel in
    conjunction with our efforts to resolve public safety interference
    issues in the 800 MHz band.

[^594]: 47 C.F.R. § 24.239.

[^595]: *See* Nextel Comments to the Third NPRM at 16.

[^596]: This obligation ends on the sunset date, at which time
    individual operations in the band will become secondary. *See* 47
    C.F.R. § 101.79.

[^597]: *AWS Third NPRM*, 18 FCC Rcd 2223 ¶¶ 29-30.

[^598]: UTAM Comments to *AWS Third NPRM* at 6-7; Nextel Comments to
    *AWS Third NPRM* at 15-16; PCIA Comments to *AWS Third NPRM* at 4-5.

[^599]: UTAM Comments to *AWS Third NPRM* at 6.

[^600]: *Id.*

[^601]: *Id* at 7.

[^602]: *Id*. POP is an abbreviated term for population used by the
    Commission. One pop equals one person. The Commission currently uses
    the 1990 census as a measure of population. *See*
    http://wireless.fcc.gov/auctions/glossary.html.

[^603]: Nextel Comments to *AWS Third NPRM* at 15.

[^604]: *Id.* at 15-16. *See also* Nextel Reply Comments to *AWS Third
    NPRM* at 6.

[^605]: Cost-sharing procedures for relocation of microwave incumbents
    are found in § 24.239 through § 24.253 of the Commission's Rules.

[^606]: PCIA Comments to *AWS Third NPRM* at 4-5.

[^607]: UTAM Comments to *AWS Third NPRM* at 6.

[^608]: Thus, Nextel's future relocation obligations will not
    necessarily represent a twenty-five percent share of any future
    microwave relocation costs in the 1910-1930 MHz band. If UTAM funds
    the relocation of a paired microwave link where only one half of the
    paired link operates in the 1910-1915 MHz band and the relocation
    costs are evenly divisible between both links, then Nextel would be
    liable to reimburse UTAM for one half of the total relocation costs
    associated with that paired link. Because we are not altering the
    current allocation of the 1915-1920 MHz band at this time, we are
    not modifying the existing procedure whereby UTAM is responsible for
    costs associated with the relocation of incumbent microwave
    facilities in that band.

[^609]: We do not suggest that Nextel is not obligated to reimburse UTAM
    a *pro rata* share of such expensesonly that the timing and means
    of this reimbursement is best left to the parties to negotiate
    within the thirty-six month band reconfiguration process.

[^610]: Nextel must also meet other conditions precedent to the
    commencement of operations in the 1.9 GHz band. *See* ¶¶ 344,347
    *infra.*

[^611]: *See* ¶ 56 *supra.* As noted earlier, we will address the
    petitions for reconsideration or clarification of BAS relocation
    decisions made in the *MSS Third R&O* in this proceeding. We will,
    however, address the FS relocation issues raised in the pending
    joint petition for reconsideration or clarification of the *MSS
    Third R&O* at a later date.

[^612]: *See* MSTV/NAB/Nextel May 3, 2004 *Ex Parte*. This plan was also
    supported by SBE. *See ex parte* comments, dated May 7, 2004, from
    SBE (SBE May 7, 2004 *Ex Parte*)*.*

[^613]: In return, Nextel requests that the Commission assign to Nextel
    replacement spectrum in the 1910-1915/1990-1995 MHz bands and
    receive credit for BAS relocation costs. MSTV/NAB/Nextel May 3, 2004
    *Ex Parte* at 2.

[^614]: MSTV/NAB/Nextel May 3, 2004 *Ex Parte* at 2-3. The parties also
    note that "these targets may be adjusted to take into account issues
    regarding the availability of equipment, tower crews and other
    installation technicians." *Id.* at 3.

[^615]: *See* Redevelopment of Spectrum to Encourage Innovation in the
    Use of New Telecommunications Technologies, ET Docket No. 92-9,
    *First Report and Order and Third Notice of Proposed Rule* Making, 7
    FCC Rcd 6886 (1992); *Second Report and Order*, 8 FCC Rcd 6495
    (1993); *Third Report and Order and Memorandum Opinion and Order*, 8
    FCC Rcd 6589 (1993); *Memorandum Opinion and Order*, 9 FCC Rcd 1943
    (1994); *Second Memorandum Opinion and Order*, 9 FCC Rcd 7797
    (1994); *aff'd Association of Public Safety Communications
    Officials-International, Inc. v. FCC*, 76 F.3d 395 (D.C. Cir. 1996)
    (collectively, "*Emerging Technologies* proceeding").

[^616]: *MSS Third R&O*, 18 FCC Rcd 23638.

[^617]: *See* 47 C.F.R. §§ 74.690, 101.73.

[^618]: Each authorized 2 GHz MSS licensee receives an equal share of
    the available frequencies in which its primary service operations
    will take place, to be chosen at the time it has launched one
    satellite into its intended orbit. Each authorized 2 GHz MSS system
    may also operate at other frequencies in the 2 GHz MSS band,
    provided it does not cause harmful interference to other assigned
    satellite networks or incumbent terrestrial services that have not
    been relocated. *See* In The Matter Of The Establishment Of Policies
    And Service Rules For The Mobile Satellite Service In The 2 GHz
    Band, IB Docket 99-81, *Report and Order,* 15 FCC Rcd 16127,
    16138-140 ¶¶ 16-21 (2000).

[^619]: *MSS Third R&O*, 18 FCC Rcd at 23654-57 ¶¶ 32-35.

[^620]: MSTV/NAB/Nextel May 3, 2004 *Ex Parte* at 3-6.

[^621]: *Id.* at 7.

[^622]: MSTV/NAB/Nextel May 3, 2004 *Ex Parte* at 3-4. *See also* ¶ 253
    *supra.*

[^623]: *See* 47 C.F.R. §§ 74.690(d) and 78.40(d-e). For example, a BAS
    licensee's operations in an adjacent market may need to be relocated
    even though Nextel does not initiate operations in that adjacent
    market.

[^624]: MSTV/NAB/Nextel May 3, 2004 *Ex Parte* at 5.

[^625]: *Id.* at 7-8.

[^626]: *See* ¶ 253-254 *supra.*

[^627]: The one-year mandatory negotiation period for MSS and BAS
    licensees in markets 1-30 and all BAS fixed stations, regardless of
    market size, is already in effect and lasts until December 8, 2004.
    After this date, any MSS entrant may involuntarily relocate
    incumbent BAS operations. *See* ¶ 57, *supra.*

[^628]: MSTV/NAB/Nextel May 3, 2004 *Ex Parte* at 3-4.

[^629]: Because BAS incumbents would already be in relocation
    negotiations with Nextel, allowing MSS licensees to accelerate the
    mandatory negotiation period under the MSS plan for markets 31 and
    above may satisfy the intent of the mandatory negotiation
    requirement.

[^630]: *MSS Third R&O,* 18 FCC Rcd at 23644 ¶ 10.

[^631]: Nextel proposes that the payments by other entrants are made to
    the U.S. Treasury because, unlike Nextel, which would be receiving
    replacement spectrum, these other entrants would be receiving
    initial licenses. *See* MSTV/NAB/Nextel May 3, 2004 *Ex Parte* at 8.
    We decline to adopt this proposal. By allowing Nextel to relocate
    incumbent BAS licensees and retaining our existing rules that allow
    MSS licensees to also relocate BAS incumbents, we meet the key
    objective of providing BAS licensees with relocation to comparable
    facilities. Adoption of the proposal would not further these core
    relocation objectives.

[^632]: This deadline coincides with the date Nextel is required to
    submit its first status report on its BAS relocation efforts.

[^633]: Under the MSS plan, MSS licensees are required to clear the top
    30 BAS markets and all fixed BAS stations, regardless of market
    size, before beginning operations. The accounting among MSS
    licensees to settle relocation expenditures would not occur until
    after the end of the MSS relocation process. *MSS Second R&O*, 15
    FCC Rcd at 12338 ¶ 68.

[^634]: *See generally*, 47 C.F.R. § 24 *et. seq.* We will ensure that
    Nextel's base/mobile operations conform to lower-adjacent broadband
    PCS operations. Specifically, we will require Nextel to operate its
    mobile/portable stations in the 1910-1915 MHz block and operate its
    base stations in the 1990-1995 MHz block. *See* 47 C.F.R. §
    24.229(c) in Appendix C *infra*.

[^635]: *See* 47 C.F.R. § 24.237. *See also* Amendment of the
    Commission's Rules to Establish New Personal Communications
    Services, *Second Report and Order*, 8 FCC Rcd 7700, 7762 ¶ 150
    (1993); *Memorandum Opinion and Order*, 9 FCC Rcd 4957, 5029 ¶ 186
    (1994). Bulletin TSB 10-F describes interference criteria for
    microwave systems in public fixed radio services and private
    operational fixed microwave service bands.

[^636]: 47 C.F.R. § 101.105 (c).

[^637]: *See MSS Second R&O*, 15 FCC Rcd at 12346 ¶ 97, n.160. *See
    also* 47 C.F.R. §101.79 (a).

[^638]: *See MSS Third R&O*, 18 FCC Rcd at 23672 ¶ 70.

[^639]: TSB-86 was developed by a Joint Working Group comprised of the
    Telecommunications Industry Association (TIA) Engineering
    Subcommittees on Spectrum and Orbit Utilization, the TIA Engineering
    Subcommittee on Interference Criteria for Microwave Systems, and the
    National Spectrum Managers Association. *MSS Second R&O*, 15 FCC Rcd
    at 12340-41 ¶ 78, n.131.

[^640]: Since the 1990-2025 MHz band is the MSS uplink band, BAS
    receivers would be subject to interference from nearby MSS handsets.

[^641]: *MSS Second R&O*, 15 FCC Rcd at 12325-26 ¶¶ 25-28.

[^642]: *See* MSTV/NAB Joint Petition at 6-9 & 12-15; SBE Petition at
    1-2; *see also* RTNDA Comments at 3-6. *But see* Boeing Opposition
    at 4-7 & 9-10; Boeing Reply at 2-3; ICO Reply at 3-4.

[^643]: *See* SBE Petition at 3; MSTV/NAB Joint Petition at 10-12. *But
    see* Boeing Opposition at 11-14.

[^644]: In addition, the broadcast parties contend that the revised
    relocation plan is inconsistent with the Commission's localism,
    diversity, public safety, and homeland security initiatives. *See*
    MSTV/NAB Joint Petition at 15-21; RTNDA Comments at 4. *But see*
    Boeing Opposition at 10-11.

[^645]: *See* Boeing Petition at 3-8; *see also* ICO Reply at 4-6.

[^646]: *See* Boeing Petition at 5-8. *But see* MSTV/NAB Joint
    Opposition 3-7; MSTV/NAB/SBE Joint Reply at 3-8. In their opposition
    and reply, the broadcast parties object to the aforementioned Boeing
    proposal by arguing that Phase II compensation would be delayed
    until after the sunset date. Therefore, they request that the
    Commission eliminate the ten-year sunset period and "create
    incentives that tie the ability of entrants to continue their own
    operations to timely fulfillment of their relocation compensation
    obligations to BAS incumbents." *See* MSTV/NAB/SBE Joint Reply at 8.
    In its reply, Boeing argues that no justification exists to
    eliminate the ten-year sunset deadline and points to the
    Commission's decision in the *MSS Third R&O*, which states that "we
    continue to believe that a sunset date is a vital component of the
    *Emerging Technologies* relocation principles." *See* Boeing Reply
    at 4 (citing ¶ 46 of the *MSS Third R&O*). Because we are not
    adopting Boeing's plan, we need not address MSTV, NAB and SBE's
    request to eliminate the sunset period.

[^647]: *See* Boeing Petition at 8-13; Boeing Opposition at 8;
    MSTV/NAB/SBE Joint Reply at 9; ICO Reply at 7.

[^648]: *Id.*

[^649]: MSTV/NAB/Nextel *May 3, 2004 Ex Parte* at 7-8.

[^650]: Under the MSS plan, MSS licensees may invoke involuntary
    relocation of BAS operations in the top 30 TV markets and fixed BAS
    stations, regardless of market size, after December 8, 2004. As we
    stated earlier, MSS licensees will have an opportunity to coordinate
    with Nextel on which top 30 BAS markets and fixed BAS stations the
    MSS licensees plan to invoke involuntary relocation. *See* ¶ 257
    *supra.*

[^651]: This deadline applies to all 2 GHz MSS licensees except TMI. TMI
    must certify that its system is fully operational by November 2008.
    *See* TMI Communications and Company, Limited Partnership and
    TerreStar Networks, Inc. Application for Review and Request for
    Stay, *Memorandum Opinion and Order*, FCC 04-144 (released June 29,
    2004).

[^652]: *MSS Third R&O*, 18 FCC Rcd at 23653-61.

[^653]: MSTV and NAB state that the *MSTV/NAB/Nextel May 3, 2004 Ex
    Parte* addresses the concerns raised in their joint petition. *See
    MSTV/NAB/Nextel May 3, 2004 Ex Parte* at 5; *see also* SBE May 7,
    2004 *Ex Parte* at 2.

[^654]: *See* Amendment of Part 2 of the Commission's Rules to Allocate
    Spectrum Below 3 GHz for Mobile and Fixed Services to Support the
    Introduction of New Advanced Wireless Services, including Third
    Generation Wireless Systems, ET Docket No. 00-258.

[^655]: MSTV/NAB Joint Petition at 22; SBE Petition at 4-5.

[^656]: In the *MSS Second R&O*, we permitted BAS licensees the choice
    of surrendering BAS channel 1 during Phase I or relocating to the
    14.5 MHz- and 15 MHz-wide Phase I channels. To facilitate an orderly
    coordination process and to prevent interference, we required all
    BAS licensees within the same Nielsen DMA to coordinate and chose
    one of these channel plans. *MSS Second R&O*, 15 FCC Rcd at 12330 ¶
    45.

[^657]: *MSS Third R&O,* 18 FCC Rcd at 23668 ¶ 58.

[^658]: SBE Petition at 4.

[^659]: 47 C.F.R. §74.24(c). Section 74.24(c) states that a BAS station
    operating under short-term authority does so on a secondary,
    non-interference basis to regularly authorized stations.

[^660]: MSTV/NAB Joint Petition at 22.

[^661]: SBE Petition at 4-5.

[^662]: *Id.*

[^663]: MSTV/NAB Joint Petition at 22.

[^664]: *See* Comments of Alltel, et. al. to Consensus Parties Reply
    Comments at 12-13; Comments of Verizon to Consensus Parties Reply
    Comments at 10; Comments of Access Spectrum to Supplemental Comments
    of the Consensus Parties at 13-14; Comments of Alltel, et. al. to
    Supplemental Comments of the Consensus Parties at 7; Comments of
    Verizon to Supplemental Comments of the Consensus Parties at 11-12;
    (claiming that the grant of 1.9 GHz spectrum to Nextel would result
    in a windfall). *But see* Comments of Nextel to Consensus Parties
    Reply Comments at 24-27; Comments of Nextel to Supplemental Comments
    of the Consensus Parties at 15-17; Reply Comments of the Consensus
    Parties to Supplemental Comments of the Consensus Parties at 50;
    Reply Comments of Nextel to Supplemental Comments of the Consensus
    Parties at15-17 (claiming that grant of 1.9 GHz spectrum to Nextel
    will make Nextel whole in return for substantial spectral
    contributions).

[^665]: *See* Consensus Parties Reply Comments at 17-19.

[^666]: *See* Kane Reece Study; Kane Reece Study II; CTIA April 29 *Ex
    Parte*.

[^667]: *See* Kane Reece Study at 41-58; Kane Reece Study II at 8-12.

[^668]: *See* Sun Fire Study at 13-33.

[^669]: *See generally* Kane Reece Study n. Error: Reference source not
    found *supra*; Letter from John Scott, Vice President and Deputy
    General Counsel -- Regulatory Law, Verizon Wireless, WT Docket No.
    02-55 at 2 (dated Feb. 26, 2004) (Verizon Feb. 26, 2004 *Ex Parte*
    Letter).

[^670]: Verizon Feb. 26, 2004 *Ex Parte* Letter at 2.

[^671]: *Id.*

[^672]: *Id.*

[^673]: *See* Letter from Diane Cornell, Vice President, CTIA, WT Docket
    No. 02-55 (filed July 9, 2003) (CTIA Filing).

[^674]: The data used by CTIA in its evaluation of the Verizon-North
    Coast Transaction are as follows:

    **Purchase Price** \$750,000,000

    **POPS** 47,400,000

    **MHz** 10

    **Price/POP/MHz** \$1.58

    *See Id.*

[^675]: The data used by CTIA in its evaluation of the Cingular-NextWave
    Transaction are as follows:

    **Purchase Price**^\*^ \$1,500,000,000

    **POPS** 80,700,000

    **MHz** 10

    **Price/POP/MHz** \$1.86

    ^\*^We note that CTIA bases the purchase price estimate on press and
    analyst reports. *See id*.

[^676]: *Id.*

[^677]: *See* Sun Fire Study at 32-33 and Appendix G.

[^678]: According to Nextel, the Verizon-Northcoast Transaction
    consisted of fifty BTAs with an average value of \$1.58 per MHz-pop.
    *Id.*

[^679]: Nextel states that the average value per MHz-pop was \$0.42.
    *See id*.

[^680]: The average value per MHz-pop was \$0.25. *See id*.

[^681]: *See id*.

[^682]: *See*, for example, Shannon P. Pratt, Robert F. Reilly, and
    Robert P. Schweihs*, Valuing a Business: The Analysis and Appraisal
    of Closely Held Companies*, Fourth Edition, McGraw-Hill (2000), at
    437-448.

[^683]: The CTIA Filing, made at a time that the Cingular acquisition of
    certain NextWave spectrum was only "Proposed/Reported," uses a \$1.5
    billion purchase price, citing as sources the New York Times and
    three analyst reports (Bear Stearns 6/12/03, Credit Suisse/First
    Boston (5/28/03, and Goldman (5/28/03). As the Sun Fire Study points
    out (at 31, footnote 73), the correct purchase price was later
    disclosed to be \$1.4 billion. *See* Cingular Press Release, Aug. 5,
    2003 (http://www.cingular.com/about/latest_news\_/03_08_05).

    As the Sun Fire Study also points out (at 31), the CTIA Filing
    additionally errs in not recognizing that Cingular is acquiring
    twenty megahertz, rather than ten megahertz in two cities. Finally,
    we note that the CTIA Filing's estimate of population living in the
    areas included in the transaction differs slightly from the official
    U.S. Census figures for 2000, which we use below in determining the
    price per MHz-pop for this transaction.

[^684]: Kane Reece Study at 21 and Exhibit B.

[^685]: *Id*. at 26 and Table 2.

[^686]: *Id*. at 40 and Exhibit F.

[^687]: *See* ¶¶ 288-292 *infra*.

[^688]: Morgan Stanley, "Wireless Operator Valuation Table," Dec, 19,
    2003, at 1.

[^689]: *See* the analysis by American Appraisal Associates (American
    Appraisal Report), submitted in Nextel ex parte filing, May 6, 2004,
    at 6-7.

[^690]: "Economic Analysis of the Kane Reece Spectrum Valuation," by
    Gregory L. Rosston, submitted in Nextel ex parte filing, Mar. 18,
    2004, Exhibit A.

[^691]: *Id*. at 14.

[^692]: *See*, for example, Frank C. Evans, Evans and Evans, Certified
    Public Accountants, "Valuation of Companies: The Practical Aspects,"
    Copyright 1994, American Management Association, at 100-105.

[^693]: "Source of Control Premium Data & What It Doesn't Tell Us,"
    Mercer Capital, Transaction Advisor, Vol. 11, No. 3, 1999, available
    at
    http://www.bizval.com/publications/articlelibrary/SourceControlPremiumData.htm.

[^694]: Sun Fire Study at 24, American Appraisal Report at 8-9.

[^695]: *See* Pratt, Reilly, and Schweihs at 25-26, 48-49, and 354-361;
    "Goodwill Hunting: Part II," Mercer Capital, Transaction Advisor,
    Vol. 4. No. 3, 2001, available at
    http://www.bizval.com/publications/articlelibrary/GoodwillHuntingPart2.htm.

[^696]: *See,* for example, James Tobin, Money Credit and Capital,
    McGraw Hill (1998) at 147-155. The ratio of the market value of the
    firm to the replacement costs of its assets is known as "Tobin's q."

[^697]: That is, Tobin's q has been estimated as significantly greater
    than one. *See* "A New Bull, or a Bear Market Rally?" by David
    Edwards, in TheSreet.com, June 3, 2003, available at:
    http:/thestreet.com/funds/managerstoolbox/10090875.html.

[^698]: "Measuring and Valuing Intangible Capital in the Wireless
    Communications Industry," by Mark Klock and Pam Megna, The Quarterly
    Review of Economics and Finance, 40 (200) 519-532.

[^699]: Sun Fire Study at 22, 26-27, 32-33.

[^700]: Kane Reece Study at 18-19.

[^701]: While these auction data are seven years old, and are not useful
    for estimating the absolute value of spectrum today, we are using
    them here only to estimate the relative level of prices across
    geographic areas. While different geographic areas, of course, have
    grown at different rates over the last seven years, we do not
    believe that the relative pattern of values across licenses today is
    significantly different from that at the time the auction closed.

[^702]: While we find the Auction No. 11 evidence sufficient to conclude
    that the estimate resulting from the tiered pricing model is too
    low, we do not attempt to use Auction No. 11 results to make any
    alternative value estimates. Differences among the three auctioned
    license blocks in how prices varied across license areas suggest
    that the Auction No. 11 results should not be relied upon to produce
    an adjustment to the result of the tiered pricing model.

[^703]: Throughout our analysis here of secondary market transactions,
    where we compute per MHz-pop values we employ population counts for
    the appropriate geographic areas from the 2000 Census. *See* the
    data at:
    http://wireless.fcc.gov/auctions/data/maps/cntysv2000_census.xls

[^704]: "Sale of Wireless Assets Positive for both VXW and Q," Analyst
    Comment, Goldman Sachs, July 2, 2004.

[^705]: "T-Mobile USA to End Network Venture with Cingular and Acquire
    California/Nevada Network and Spectrum," Press Release, May 25,
    2004.

[^706]: "NextWave Auction Attracts Winning Bids Totaling \$973.5
    Million," News Release, NextWave Telecom, July 8, 2004.

[^707]: For the calculation of the total dollar amount, we use the total
    year 2000 population for the United States including possessions, or
    285.62 million.

[^708]: We provide these offsets pursuant to our authority under Section
    4(i) of the Act. 47 U.S.C. § 154 (i). *See* ¶¶ 75-76 *supra.*

[^709]: *See* Supplemental Comments of the Consensus Parties at 5-6.

[^710]: *See* Comments of Nextel to Supplemental Comments of the
    Consensus Parties at 15-17.

[^711]: Verizon June 30 ex parte at 3-4. *See also* Verizon June 9 ex
    parte at 6.

[^712]: *Id.* at 4.

[^713]: Nextel July 27 ex parte at 1-2. *See* n. Error: Reference source
    not found *supra.*

[^714]: Nextel June 21, July 27 ex partes. Nextel states as a result of
    giving up the additional 2 megahertz, it will require more expensive
    filters so that it can operate closer to the band edge while still
    protecting the relinquished spectrum from OOBE. In addition, Nextel
    will need to install filters at a greater number of base station
    sites than under the previous plan. Nextel July 27 ex parte at 2.

[^715]: Nextel July 27 ex parte at 2. Although Nextel will ultimately
    relocate from the current General Category and interleaved channels
    to the old NPSPAC block, it will not do so directly. Instead, it
    will need to relocate many of its operations to temporary channels
    in the 800 MHz band or to spectrum in the 900 MHz band while it is
    clearing the General Category block and moving non-Nextel General
    Category licensees to channels it has vacated in the interleaved
    bands. Only after the new NPSPAC block is cleared of incumbents and
    NPSPAC operations can be relocated there will Nextel be able to move
    its operations back from the 900 MHz band to the old NPSPAC block.

[^716]: Nextel June 21 ex parte at 2; Verizon June 30 ex parte at 3-4.

[^717]: Verizon June 9 *ex parte* at 6.

[^718]: MSTV/NAB/Nextel May 3, 2004 Ex Parte at 4; Nextel June 21 *ex
    parte* at 2.

[^719]: Verizon June 9 *ex parte* at 6.

[^720]: In the event that Nextel were to incur any BAS-related
    relocation expenses after the thirty-six month reconfiguration
    period, they are outside the scope of this proceeding and Nextel may
    not claim credit for them, under the band clearing expense offset
    process we have established herein.

[^721]: Nextel June 21 ex parte at 2.

[^722]: *See* Nextel Reply Comments at 7. *See also* Consensus Parties
    Reply Comments at 18.

[^723]: Nextel June 9 *Ex Parte* at 2.

[^724]: *See* Kane Reece Study at Table 7; Kane Reece Study II at 2.

[^725]: *See* Sun Fire Study at 27-28.

[^726]: *See* Kane Reece Study at 43-52.

[^727]: *Id.* at 42, Table 7.

[^728]: *See* Rosston Study at 7-9.

[^729]: *See* Sun Fire Study at 17.

[^730]: *See* Letter dated Dec. 19, 2003 from Regina Keeney, Esq.
    Counsel for Nextel to Michael J. Wilhelm, Esq., WTB at 16. *See
    also* Nextel Communications, Inc. Proposed Spectrum Swap: Working
    Through the Noise, *UBS Investment Research Report* dated April 15,
    2004 at 6 (*April 15 UBS Report*).

[^731]: Nextel June 4, 2004 *Ex Parte* at 3. This record statement by
    Nextel, as with all such statements in the record, is governed by
    Section 1.17 of the Commission's rules governing accuracy in written
    statements to the Commission. *See* 47 C.F.R. § 1.17.

[^732]: We make a small downward adjustment to the two megahertz offset
    because while Nextel is giving up all of its spectrum holdings at
    816-817/861-862 MHz, our records indicate that there are seventeen
    EA licenses in this band licensed to parties other than Nextel,
    which these licensees are not required to relinquish. Accordingly,
    in calculating the MHz-pop (11.56 million pops) value of the two
    megahertz of spectrum given up by Nextel, we have deducted the
    population of those non-Nextel EAs from the calculation.

[^733]: Kane Reece Report at Table 7.

[^734]: *See* Sun Fire Study. The Sun Fire valuation is based on
    Nextel\'s acquisition of Chadmoore Communications. Although this
    transaction is a useful data point, we do not believe it provides
    sufficient support in and of itself for the valuation proposed in
    the report.

[^735]: 47 C.F.R. § 90.683.

[^736]: For purposes of this review, we have analyzed eleven of the top
    fifteen US markets, excluding three border markets---Detroit,
    Seattle, and San Diego---as well as Atlanta. The border markets are
    excluded because under band reconfiguration, Nextel will both give
    up and receive smaller amounts of 800 MHz spectrum in these markets,
    so they are not representative. We have excluded Atlanta because
    Southern LINC may receive a significant portion of the contiguous
    800 MHz spectrum in that market if it elects ESMR status. *See* ¶¶
    164-169 *supra.* Thus, it is also not a representative market.

[^737]: *See* Exhibits attached to Letter, dated July 26, 2002, from
    Michael K. Powell, Chairman, Federal Communications Commission to
    the Honorable W.J. (Billy) Tauzin, Chairman, Committee on Energy and
    Commerce, U .S. House of Representatives (*2002 Report to
    Congress*).

[^738]: We recognize that the \$1.70 MHz-pops value we have derived for
    1.9 GHz is based in part on the nationwide nature of that spectrum
    block, whereas the 800 MHz spectrum being given up by Nextel does
    not cover 100 percent of the population. However, the coverage
    afforded by Nextel's 800 MHz interleaved and General Category
    spectrum is substantial: Nextel covers approximately 234 million
    pops (about eighty-one percent of the national population) and
    virtually all major markets. We regard this as sufficiently close to
    nationwide coverage that applying the same valuation is appropriate.

[^739]: *See* Kane Reece Study at 36, Table 5B. Kane Reece bases the
    estimate of Nextel's coverage on Commission licensing records.

[^740]: *See* 47 CFR § 90.615

[^741]: *See* 47 C.F.R. § 90.621.

[^742]: *See 2002 Report to Congress*.

[^743]: Our calculations based on the top markets show Nextel giving up
    an average of 4.96 megahertz in these markets rather than the 4.5
    megahertz that Nextel identified based on a running average of all
    markets nationwide. Because the top markets are where demand for
    spectrum capacity is likely to be highest, we see them as providing
    an appropriate measure of the value of spectrum that Nextel is
    giving up, even if the average amount of spectrum on a nationwide
    basis is slightly lower.

[^744]: *See* ¶ 35 *supra*.

[^745]: *See* ¶ 278 *supra*.

[^746]: Nextel Partners (Partners) is an affiliate of Nextel
    Communications, Inc. (Nextel.) Nextel holds about a thirty-percent
    non-controlling interest in Partners which is separately listed and
    traded on NASDAQ. Nextel and Partners have an agreement concerning
    the branding of Partner\'s service as Nextel and associated quality,
    marketing, switch sharing and related standards and provisions.
    Partners, an independent FCC licensee, was created for the express
    purpose of speeding the deployment of Nextel\'s iDEN service in
    secondary, tertiary and rural markets. Partners filed in this
    proceeding confirming its support of the Consensus Plan and
    agreement to contribute its spectrum to and participate in the 800
    MHz realignment along with Nextel. Accordingly, Nextel\'s
    commitments include Partners' service areas as well.

[^747]: We hereby delegate to the Wireless Telecommunications Bureau
    this approval authority.

[^748]: The expiration of the 1.9 GHz licenses shall be ten years from
    the date this *Report and Order* is published in the Federal
    Register. In the event that the Commission must revoke Nextel's
    license for failing to complete reconfiguration in a timely fashion,
    the Commission will provide Nextel a Special Temporary Authorization
    to allow its customers a reasonable amount of time to migrate to
    other CMRS providers.

[^749]: ^745A^ *See* n. 510A, *infra.*

[^750]: *See* ¶ 212 *supra*.

[^751]: *See* ¶¶ 12, 34-35, 212 *supra*.

[^752]: *See* ¶¶ 298-323 *supra*.

[^753]: ^748A^ *See* n. 510A, *infra.*

[^754]: *See* *NPRM*, 17 FCC Rcd at 4917-18 ¶¶ 84-85.

[^755]: *See, e.g.,* Ameren Comments at 6; API Comments at 16-17;
    Cinergy Comments at 58-60; Entergy Comments at 53; Exelon Comments
    at 9; FL P&L Comments at 5; Scana Comments at 42.

[^756]: *See, e.g.,* API Comments at 16-17; Cinergy Comments at 58-60;
    Entergy Comments at 53; FL P&L Comments at 5; Scana Comments at 42;
    *but see, e.g.,* Ameren Comments at 6; Exelon Comments at 9; API
    Comments at 16-17 (noting, for reasons explained below, that API is
    not "strictly opposed" to the proposed consolidation of the two
    frequency pools).

[^757]: API Comments at 16; Cinergy Comments at 58-60; Entergy Comments
    at 53; FL P&L Comments at 5; Scana Comments at 42.

[^758]: *Compare* 47 C.F.R. § 90.35(b) (Business Pool) *with* 47 C.F.R §
    90.617(b) (Industrial//Land Transportation Pool).

[^759]: Cinergy Comments at 58-60; Entergy Comments at 53; Scana
    Comments at 42; *see also* API Comments at 16.

[^760]: "If the freeze were lifted, it is likely that history would
    repeat itself and SMR applicants will inundate the Commission with
    requests for intercategory sharing with a view towards converting
    increasingly scarce private radio spectrum to commercial services."
    Boeing Comments at 12.

[^761]: Cascade Two Way Radio Comments at 4.

[^762]: Exelon Comments at 9. In addition to consolidating the 800 MHz
    and 900 MHz Business and Industrial/Land Transportation services
    into one pool, Exelon also recommends that we "permit new
    intercategory sharing." *Id.* Exelon contends that the only
    restriction on this new intercategory sharing should be a strict
    prohibition against the operation of cellularized systems in the
    expanded pools in order to protect them from the same interference
    problems currently being experienced by Business and Industrial/Land
    Transportation licensees. *Id.*

[^763]: *See* Exelon Comments at 9.

[^764]: *See* 47 C.F.R. § 90.35.

[^765]: *See generally* In The Matter Of 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 Frequency
    Assignments Policies Of The Private Land Mobile Services, PR Docket
    No. 92-235 (*Refarming*)*.*

[^766]: API Comments at 16; Cinergy Comments at 58-60; Entergy Comments
    at 53; FL P&L Comments at 5; Scana Comments at 42.

[^767]: Under the existing rules, there are provisions that allow
    entities establishing eligibility under one radio service to obtain
    a license for a frequency in another radio service under certain
    conditions (interservice sharing). Because we are consolidating the
    Business and Industrial/Land Transportation Pools into one pool and
    eliminating the individual radio service categories, interservice
    sharing rules will no longer be necessary with regard to applicants
    from either service seeking frequencies previously allotted to the
    other service. Under consolidation, applicants will have the
    opportunity to apply directly for in-pool frequencies that were
    previously allocated to either the Business or Industrial/Land
    Transportation service. We will modify the Commission's Rules
    accordingly. However, our action does not otherwise affect the
    current freeze on intercategory sharing with respect to applicants
    from the newly consolidated Business/Industrial Land Transportation
    Pool seeking intercategory sharing of those frequencies specifically
    allocated to Public Safety Pool. *See* Inter-Category Sharing of
    Private Mobile Radio Frequencies in the 806-821/851-866 MHz Bands,
    *Order,* 10 FCC Rcd 7350 (WTB 1995) (*Intercategory Freeze Order*).

[^768]: *See generally,* Implementation of Sections 309(j) and 337 of
    Communications Act of 1934 as Amended, WT Docket 99-87 (*BBA
    Proceeding)*.

[^769]: *See* Implementation of Sections 309(j) and 337 of
    Communications Act of 1934 as Amended, *Report and Order and Further
    Notice of Proposed Rulemaking*, WT Docket 99-87, 15 FCC Rcd 22709,
    22761 ¶¶ 110-111 (FCC 2000) (*BBA R&O and FNPRM*).

[^770]: *Id.*, 15 FCC Rcd at 22773-22774 ¶¶ 143-144.

[^771]: *NPRM*, 17 FCC Rcd 4918 at ¶ 86. This essentially transferred
    the issue from WT Docket 99-87 to the instant proceeding. *See*
    Implementation of Sections 309(j) and 337 of Communications Act of
    1934 as Amended, *Second Report and Order and Second Further Notice
    of Proposed Rulemaking*, 18 FCC Rcd 3034, 3047 n. 5.

[^772]: *See* Nextel Comments at 65. *See also* Ad Hoc Wireless Alliance
    Comments at 8-10.

[^773]: *See* ¶ 159 *supra.*

[^774]: *BBA R&O and FNPRM*, 15 FCC Rcd 22709, 22774 ¶ 144.

[^775]: Moreover, we believe our existing rules also provide necessary
    safeguards. *See* 47 C.F.R. § 90.155 (requires licensees to have
    stations placed in operation within twelve months from the date of
    grant to avoid automatic cancellation; 47 C.F.R. § 90.609 (requires
    complete construction of a radio facility prior to any transfer or
    assignment) and 47 C.F.R. 90.157 (licenses will cancel automatically
    if there is a discontinuance of station operation for twelve months
    or more).

[^776]: *See* 47 U.S.C. § 151.

[^777]: The expiration of each said further modified license shall be
    the date specified thereon. Provided, however, that if such a
    specified date is less than five years from the date this *Report
    and Order* is published in the Federal Register, then,
    notwithstanding the expiration date specified on the license, the
    license shall expire five years after the date this *Report and
    Order* is published in the Federal Register.

[^778]: "Substantial service" is defined as service which is sound,
    favorable, and substantially above a level of mediocre service which
    just might minimally warrant renewal.

[^779]: ^773A^ *See* n. 510A, *infra.*

[^780]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601-612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^781]: *See* Improving Public Safety Communications in the 800 MHz
    Band; Consolidating the 900 MHz Industrial/Land Transportation and
    Business Pool Channels, WT Docket No. 02-55, *Notice of Proposed
    Rulemaking*, 17 FCC Rcd 4873, 4927 (2002) (*NPRM*).

[^782]: *See id.* at 4920 ¶ 93.

[^783]: Business Autophones, Inc., Comments on IRFA (May 6, 2002)
    Skitronics, LLC, Comments on IRFA (May 6, 2002); Small Business in
    Telecommunications, Comments on IRFA (May 6, 2002).

[^784]: *See* 5 U.S.C. § 604.

[^785]: Business Autophones, Inc., Comments on IRFA (May 6, 2002)
    Skitronics, LLC, Comments on IRFA (May 6, 2002); Small Business in
    Telecommunications, Comments on IRFA (May 6, 2002).

[^786]: *See* Business Autophones Comments on IRFA at 2-3.

[^787]: Skitronics Comments on IRFA at 6-10.

[^788]: *Id.* at 10-11.

[^789]: *Id.* at 11-13.

[^790]: *Id.* at 4, 16.

[^791]: SBT Comments at 3-4 (*citing* 5 U.S.C. § 603(a)).

[^792]: *Id.* at 4. According to SBT, the Commission's tentative
    conclusion that spectrum reallocation serves the public interest
    because it would resolve harmful interference to 800 MHz public
    safety licensees "falls far short" of satisfying the requirements of
    5 U.S.C. § 603(b)(1). *See id.*

[^793]: *Id.* at 5-10.

[^794]: *Id* at 10-11. For the same reason, SBT concurs with the IRFA's
    conclusion that the *NPRM* does not propose any rule that
    duplicates, overlaps, or conflicts with other federal rules. *See
    id.* at 12.

[^795]: *Id* at 11, 12. In addition, SBT recommends that the Commission
    amend the IRFA to comply with 5 U.S.C. § 603(c)(3) by discussing
    alternatives to rules proposed by the Commission. *See id.* at 11.
    Once again, SBT reiterates that the Commission has not proposed any
    rules and therefore could not have discussed alternatives to such
    rules. *Id.* To the extent that the IRFA discusses alternative
    proposals for rule changes that were *submitted to* the Commission,
    SBT contends that such "alternatives" do not qualify as alternatives
    *proposed by* the Commission *Id.*

[^796]: *Id.* at 12-13. SBT believes that the Commission should use a
    NOI "whenever it lacks information about the industry to be
    regulated or the exact nature of the problem to be addressed." *Id.*
    at 13.

[^797]: *See NPRM* at 4927.

[^798]: *Id.*

[^799]: 5 U.S.C. § 603(b)(3).

[^800]: 5 U.S.C. § 601(6).

[^801]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small-business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
    small business applies "unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment, establishes one or more
    definitions of such term which are appropriate to the activities of
    the agency and publishes such definition(s) in the Federal
    Register."

[^802]: 15 U.S.C. § 632.

[^803]: 5 U.S.C. § 601(4).

[^804]: Independent Sector, The New Nonprofit Almanac & Desk Reference
    (2002).

[^805]: See SBA, Programs and Services, SBA Pamphlet No. CO-0028, at
    page 40 (July 2002).

[^806]: 5 U.S.C. § 601(5).

[^807]: U.S. Census Bureau, Statistical Abstract of the United States:
    2000, Section 9, pages 299-300, Tables 490 and 492.

[^808]: 13 C.F.R. § 121.201, NAICS code 513322 (changed to 517212 in
    October 2002).

[^809]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    "Information," Table 5, Employment Size of Firms Subject to Federal
    Income Tax: 1997, NAICS code 513322 (issued October 2000).

[^810]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    "Information," Table 5, Employment Size of Firms Subject to Federal
    Income Tax: 1997, NAICS code 513322 (issued October 2000). The
    census data do not provide a more precise estimate of the number of
    firms that have employment of 1,500 or fewer employees; the largest
    category provided is "Firms with 1000 employees or more."

[^811]: *See* subparts A and B of Part 90 of the Commission\'s Rules, 47
    C.F.R. §§ 90.1-90.22. Police licensees include 26,608 licensees that
    serve state, county, and municipal enforcement through telephony
    (voice), telegraphy (code), and teletype and facsimile (printed
    material). Fire licensees include 22,677 licensees comprised of
    private volunteer or professional fire companies, as well as units
    under governmental control. Public Safety Radio Pool licensees also
    include 40,512 licensees that are state, county, or municipal
    entities that use radio for official purposes. There are also 7,325
    forestry service licensees comprised of licensees from state
    departments of conservation and private forest organizations that
    set up communications networks among fire lookout towers and ground
    crews. The 9,480 state and local governments are highway maintenance
    licensees that provide emergency and routine communications to aid
    other public safety services to keep main roads safe for vehicular
    traffic. Emergency medical licensees (1,460) use these channels for
    emergency medical service communications related to the delivery of
    emergency medical treatment. Another 19,478 licensees include
    medical services, rescue organizations, veterinarians, persons with
    disabilities, disaster relief organizations, school buses, beach
    patrols, establishments in isolated areas, communications standby
    facilities, and emergency repair of public communications
    facilities.

[^812]: *See* 13 C.F.R. § 121.201 (NAICS Code 517212).

[^813]: There is no information currently available about the number
    within the 127,540 that have less than 1500 employees.

[^814]: This number is based on the Commission's licensing database.

[^815]: 47 C.F.R. § 90.814(b)(1).

[^816]: *See* Letter, dated Aug. 10, 1999, from A. Alvarez,
    Administrator, Small Business Administration to Tom Sugrue, Chief,
    Wireless Telecommunications Bureau, Federal Communications
    Commission.

[^817]: 13 C.F.R. § 121.201, NAICS code 334220.

[^818]: The number of \"establishments\" is a less helpful indicator of
    small business prevalence in this context than would be the number
    of \"firms\" or \"companies,\" because the latter take into account
    the concept of common ownership or control. Any single physical
    location for an entity is an establishment, even though that
    location may be owned by a different establishment. Thus, the number
    given may reflect inflated numbers of businesses in this category,
    including the numbers of small businesses. In this category, the
    Census break-out data for firms or companies only gives the total
    number of such entities for 1997, which was 1,089.

[^819]: U.S. Census Bureau, *1997 Economic Census*, Industry Series:
    Manufacturing, \"Industry Statistics by Employment Size,\" Table 4,
    (issued August 1999) NAICS code 334220. We note, however that the
    predominant manufacturers of 800 MHz equipment, Motorola and M/A COM
    Private Radio Systems, Inc. are not considered small businesses.

[^820]: We note, however that the predominant manufacturers of 800 MHz
    equipment, Motorola and M/A COM Private Radio Systems, Inc. are not
    considered small businesses.

[^821]: 13 C.F.R. § 121.201, NAICS code 515120.

[^822]: *Id*. NAICS code 515112.

[^823]: "Concerns are affiliates of each other when one concern controls
    or has the power to control the other or a third party or parties
    controls or has to power to control both." 13 C.F.R. §
    121.103(a)(1).

[^824]: "SBA counts the receipts or employees of the concern whose size
    is at issue and those of all its domestic concern's size." 13 C.F.R.
    § 121.103(a)(4).

[^825]: FCC News Release, "Broadcast Station Totals as of September 30,
    2002" (Nov. 6, 2002).

[^826]: "Concerns are affiliates of each other when one concern controls
    or has the power to control the other, or a third party or parties
    controls or has the power to control both." 13 C.F.R. §
    121.103(a)(1).

[^827]: "SBA counts the receipts or employees of the concern whose size
    is at issue and those of all its domestic and foreign affiliates,
    regardless of whether the affiliates are organized for profit, in
    determining the concern's size." 13 C.F.R. § 121.103(a)(4).

[^828]: 13 C.F.R. § 121.201, NAICS code 517510 (changed from 513220 in
    October 2002).

[^829]: *Id.*

[^830]: 13 C.F.R. § 121.201, NAICS code 517410 (changed from 513340 in
    October 2002).

[^831]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Receipt Size of Firms Subject to Federal Income Tax:
    1997," Table 4, NAICS code 513340 (issued October 2000).

[^832]: *Id.*

[^833]: 47 CFR Part 101 *et seq*. (formerly, part 21 of the Commission's
    Rules).

[^834]: Persons eligible under Parts 80 and 90 of the Commission's rules
    can use Private-Operational Fixed Microwave services. *See* 47 CFR
    parts 80 and 90. Stations in this service are called
    operational-fixed to distinguish them from common carrier and public
    fixed stations. Only the licensee may use the operational-fixed
    station, and only for communications related to the licensee's
    commercial, industrial, or safety operations.

[^835]: Auxiliary Microwave Service is governed by Part 74 of Title 47
    of the Commission's Rules. *See* 47 CFR Part 74 *et seq*. Available
    to licensees of broadcast stations and to broadcast and cable
    network entities, broadcast auxiliary microwave stations are used
    for relaying broadcast television signals from the studio to the
    transmitter, or between two points such as a main studio and an
    auxiliary studio. The service also includes mobile TV pickups, which
    relay signals from a remote location back to the studio.

[^836]: 13 C.F.R. § 121.201, NAICS code 517212 (formerly 213322).

[^837]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Employment Size of Firms Subject to Federal Income
    Tax: 1997," Table 5, NAICS code 217212 (issues Oct. 2000).

[^838]: *Id*. The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is "Firms with 1,000
    employees or more."

[^839]: *See* 5 U.S.C. § 603(c)(1-4).

[^840]: *See* 5 U.S.C. § 801(a)(1)(A).

[^841]: *See* 5 U.S.C. § 604(b).

[^842]: *See* Undated Letter from Allen Rosenzweig, REMEC, Inc.;
    Motorola Comments at 20.

[^843]: *See Best Practices* Guide at 7, Technical Appendix to Island
    Cellular Comments at 7.

[^844]: *See* Nextel Oct. 31, 2003 *ex parte* submission at 9. *See
    also* Motorola Comments at 20; C&M Comments at 3.

[^845]: REMEC claims that antennas could generate these patterns by
    approximating a cosecant squared function. *See* Undated Letter from
    Allen Rosenzweig, REMEC, Inc.

[^846]: *See, e.g*., Project 39*,* Interference to Public Safety 800 MHz
    Radio Systems, *Interim Report to the FCC,* December 24, 2001 at
    12-21, *Best Practices* at 7-8; Motorola Comments at 20. *See also*
    Alltel, *et al.,* Comments at 14; Alltel, *et al.,* Reply Comments
    at 31; Delmarva P&L Reply Comments at 22.

[^847]: *Id*.

[^848]: *See* PSWN Comments at 18; Consensus Parties' Aug. 7 *Ex Parte*
    at 40-41.

[^849]: *See* Motorola Interference Technical Appendix to the Best
    Practices Guide at 11.

[^850]: *See, e.g*., Project 39*,* Interference to Public Safety 800 MHz
    Radio Systems, *Interim Report to the FCC,* December 24, 2001 at
    12-21, Best Practices Guide at 7-8, Motorola Comments at 20.

[^851]: For example, at a distance of 305 meters (1000) feet from a cell
    site, the free space loss for antennas mounted at 61 meters (200
    feet) AGL and 6 meters (20 feet) AGL differs by only 0.17 dB,
    calculated as follows: The distance (D) over a straight line from a
    receiving antenna to the radiation center of the transmitting
    antenna is defined for particular heights (H) by (D² + H²) ^0.5^.
    The path loss over the distance (D) is defined by 53.3 + 20
    log(D~meters~) + 20 log (F~MHz~).

[^852]: Thus, for example, given an antenna having a 10 degree 3 dB
    beamwidth, the main beam of the antenna will intersect the ground at
    1134 feet from the cell when mounted on a 200 foot tower, but only
    at 113 feet from the cell when mounted on a 20 foot tower.

[^853]: *See* Motorola Interference Technical Appendix to Best Practices
    Guide at 11*. See also* Motorola Comments at 20.

[^854]: *See Best Practices* Guide at 7, Island SMR Comments, Exhibit A
    at 7.

[^855]: Thus, we have decided to exclude systems using transmitting
    antennas 200 feet above ground level or higher from our definition
    of an 800 MHz cellular system. *See* Section VI.e *supra.*

[^856]: *See* UTC Comments at 19-20; Motient Comments at 4-5; Southern
    LINC Comments at 20.

[^857]: *See* Consensus Parties' Aug 7 *Ex Parte* at 23.

[^858]: *Id.*

[^859]: *See e.g.,* recent articles indicating that Nextel is testing
    CDMA technology in the 1.9 GHz band:
    http://phx.corporate-ir.net/phoenix.zhtml?c=63347&p=irol-newsArticle&t=Regular&id=492688&,
    http://www.flarion.com/newsroom/about_06_14a_02.html and
    Communications Daily Feb. 9, 2004 at 9.

[^860]: *See Best Practices Guide* at 12*.*

[^861]: *Id.*

[^862]: *See* TIA Comments at 4.